PER CURIAM:
Plaintiff-Appellant Monica Patricia Tenesaca Delgado appeals from a March 3, 2010 judgment of the United States District Court for the Southern District of New York (Chin, J.) dismissing her complaint for lack of jurisdiction, and in the alternative, as barred by res judicata. As a matter of first impression in this circuit, we hold today that a district court lacks jurisdiction over an indirect challenge to an order of removal.
In May 1999, Delgado, who is a native and citizen of Ecuador, attempted to enter the United States using false identification. She was prevented from entering and was removed pursuant to an expedited order of removal. In December 2000, Delgado entered the United States without inspection by crossing the Mexican border.
In January 2006, Delgado married a United States citizen, who is her attorney in this action. On July 11, 2006, the couple filed several forms in order to seek lawful permanent resident status for Delgado, including a Form I-212 for permission to reapply for admission after deportation or
Delgado timely appealed, challenging the reinstatement of her removal order. On February 7, 2008, the Second Circuit upheld the reinstated order, construing 8 U.S.C. § 1182(a)(9)(C)(i)(II) to mean that a previously removed alien who reenters is subject to a "lifetime bar on admission," which is waivable at the Secretary of Homeland Security's discretion if the applicant "reappl[ies] for admission from abroad after at least ten years have elapsed since [her] latest departure from the United States." Delgado v. Mukasey, 516 F.3d 65, 69 (2d Cir.2008). Someone subject to a lifetime bar is "ineligible to apply for adjustment of status from within the United States." Id. at 73.
Delgado subsequently brought this mandamus action to compel USCIS to make a determination on the merits of her I-212 application, alleging that USCIS denied her application in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., the Due Process Clause, and the Equal Protection Clause. On March 2, 2010, the district court dismissed her complaint, concluding that it lacked jurisdiction pursuant to the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(5), and in the alternative, that Delgado's claims were barred by res judicata. See Delgado v. Quarantillo, No. 08 Civ. 9058, 2010 WL 726790 (S.D.N.Y. Mar. 2, 2010). Delgado was removed on May 26, 2010.
We review de novo the district court's dismissal for lack of subject matter jurisdiction. See, e.g., Sharkey v. Quarantillo, 541 F.3d 75, 82 (2d Cir.2008). The REAL ID Act of 2005 amended the immigration laws to provide that "[n]otwithstanding any other provision of law (statutory or nonstatutory), . . . a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter." 8 U.S.C. § 1252(a)(5). "Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction . . . by any other provision of law (statutory or nonstatutory),
Although section 1252(a)(5) would clearly preclude the district court's entertaining of a direct challenge to a removal order, this Court has not previously ruled on whether the district court has jurisdiction over an action like Delgado's, which seeks to force an adjudication on the merits of an I-212 application. We conclude that Delgado is indirectly challenging her reinstated order of removal, and accordingly, we hold that section 1252(a)(5)'s jurisdictional bar applies equally to preclude such an indirect challenge.
We reject Delgado's contention that she is not challenging the order of removal against her because, even if USCIS were to grant her an I-212 waiver, this would not "per se prevent her removal." Pl. Br. 22. Obtaining such a waiver is a necessary prerequisite to her ultimate goal of adjustment of status. We agree with the Ninth Circuit's conclusion that an "adjustment-of-status challenge is inextricably linked to the reinstatement of [an alien's] removal order," because "a nunc pro tunc Form I-212 waiver of inadmissibility and the adjustment of status to that of [a lawful permanent resident]" would render the reinstatement order "invalid." Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1082-83 (9th Cir. 2010).
We also find it inconsequential to our jurisdictional analysis that it was Immigration and Customs Enforcement ("ICE"), not USCIS, that reinstated Delgado's removal order. We agree with the Morales court that the Department of Homeland Security's "adoption of a bifurcated system to adjudicate adjustment-of-status applications and the reinstatement of prior removal orders is [not] determinative . . . of what Congress meant when it enacted [section 1252(a)(5)]." 600 F.3d at 1084. This division of administrative responsibility between ICE and USCIS does not allow an alien to circumvent Congress's clear intent to consolidate review of challenges to orders of removal in the courts of appeals.
Finally, we reject Delgado's arguments that federal question jurisdiction exists here either because her claim arises under the APA or because she is bringing a mandamus action. The APA explicitly does not apply "to the extent that . . . statutes preclude judicial review," 5 U.S.C. § 701(a)(1), as the REAL ID Act does in this instance. E.g., Lee v. CIS, 592 F.3d 612, 620 (4th Cir.2010) ("The claim raised in [the alien's] APA action falls squarely within the scope of § 1252(a)(2)(B)(i). Although Lee's claim in his amended complaint
Because we conclude that the district court lacked jurisdiction over Delgado's complaint, we do not reach her remaining arguments.