Can a federal judge order an adjustment in status pursuant to the Immigration Reform Act?

In Rubio de Cachu v. INS, 568 F.2d 625 (9th Cir.1977), this court asserted jurisdiction over the petitioner's constitutional claims even though the record did not reflect any application for an adjustment in status pursuant to the statute she was challenging. The court apparently had a sufficient factual record, however, to determine that the petitioner would in fact be denied an adjustment in status pursuant to the statute she was challenging. The court apparently had a sufficient factual record, however, to determine that the petitioner would in fact be denied an adjustment in status by operation of the statute if she applied. See also Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985) (noting that failure to resort to a statutory procedure can be excused only if it can be determined in advance that the procedure is incapable of affording due process to a petitioner).