Bakran v. Sec'y, U.S. Dep't of Homeland Sec.

• Citation: 894 F.3d 557
• Decision Date: 05 July 2018
• Docket Number: No. 16-3440,16-3440
• Parties: Ahmed BAKRAN, Appellant v. SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Director, United States Citizenship and Immigration Services; Robert Cowan, Field Office Director, Lee’s Summit, MO Field Office, United States Citizenship and Immigration Services; Attorney General United States of America
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

894 F.3d 557

Ahmed BAKRAN, Appellant

v.SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Director, United States Citizenship and Immigration Services; Robert Cowan, Field Office Director, Lee’s Summit, MO Field Office, United States Citizenship and Immigration Services; Attorney General United States of America

No. 16-3440

United States Court of Appeals, Third Circuit.

Argued: March 16, 2017

Opinion Filed: July 5, 2018

Nicklaus J. Misiti [ARGUED], Law Offices of Nicklaus Misiti, PLLC, 40 Wall Street, 28th Floor, New York, NY 10005, Counsel for Appellant

Sophie Kaiser, Benjamin C. Mizer, William C. Peachey, Sarah S. Wilson [ARGUED], United States Department of Justice, Office of Immigration Litigation, Room 6223, 450 5th Street, N.W., Washington, D.C. 20530, Counsel for Appellees

Before: GREENAWAY, JR., SHWARTZ, Circuit Judges, and SIMANDLE, Senior District Judge^*

OPINION OF THE COURT

SHWARTZ, Circuit Judge.

Ahmed Bakran appeals from the District Court’s order granting summary judgment in favor of the Secretary of the United States Department of Homeland Security, the Director of the United States Citizenship and Immigration Services (the "USCIS"), and the Attorney General ("Defendants") on Bakran’s statutory and constitutional challenges to the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 402(a), 120 Stat. 587, 622-23 (2006) (the "AWA"), and related agency memoranda.

The AWA restricts the ability of a United States citizen convicted of a sex offense to sponsor an immediate relative’s immigration application. Bakran claims that certain protocols used to enforce the AWA violate the Administrative Procedures Act, 5 U.S.C. § 701 et seq. (the "APA"). The protocols he challenges, however, simply guide the Secretary’s determination, and as we explain herein, we lack jurisdiction to review them.

Bakran also asserts that the AWA violates his right to marriage and is impermissibly retroactive. The AWA does not infringe his marriage right but rather deprives him of an immigration benefit to which he has no constitutional right. Moreover, because the Act is aimed at providing prospective protection, it is not impermissibly retroactive. Therefore, we will vacate the District Court’s order granting summary judgment to Defendants on Bakran’s APA claims, and remand with directions to dismiss the APA claims for lack of jurisdiction, and affirm the District Court’s order denying relief on his constitutional and retroactivity challenges to the AWA.

I

A

Before 2006, the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. (the "INA"), provided that "[a]ny citizen of the United States claiming that an alien is entitled to ... immediate relative status ... may file a petition with the Attorney General for such classification." Id. § 1154(a)(1)(A)(i). "Immediate relatives" generally include the spouses, children, and parents of a United States citizen. Id. § 1151(b)(2)(A)(i). Such relatives may enter the United States without regard to numerical limitations on immigration to the United States. Id. § 1151(b). In 2006, the AWA amended the INA so that a citizen "who has been convicted of a specified offense against a minor"¹ may not file any petition on behalf of such relatives "unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition ... is filed." Id. § 1154(a)(1)(A)(viii)(I). This provision is intended to effectuate the AWA’s stated purposes: "[t]o protect children from sexual exploitation and violent crime, [and] to prevent child abuse and child pornography." AWA, 120 Stat. at 587.

The USCIS issued two memoranda relevant to our consideration of the AWA. The first, written by Michael Aytes, Associate Director of Domestic Operations of the USCIS (the "Aytes Memo"), sets forth the burden of proof a petitioner must meet to show that he or she poses no risk to his or her alien relative. Specifically, the memo interpreted the "no risk" requirement to mean that to avoid denial of a petition, "a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiar[ies]." U.S. Citizenship and Immigration Services, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006 (Feb. 8, 2007), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf. The second, written by Donald Neufeld, Acting Associate Director of Domestic Operations of the USCIS (the "Neufeld Memo"), states that "given the nature and severity of many of the underlying offenses and the intent of the [AWA], approval recommendations should be rare." U.S. Citizenship and Immigration Services, Transmittal of SOP for Adjudication of Family-Based Petitions Under the Adam Walsh Child Protection and Safety Act of 2006 (Sept. 24, 2008) (emphasis omitted).

B

Bakran is a United States citizen. In 2004, he was convicted of aggravated indecent assault and unlawful contact with a minor. He was sentenced to 11.5 to 23 months' imprisonment, 10 years of probation, and lifetime sexual offender registration. He was required to undergo a psychosexual evaluation and prohibited from any unsupervised contact with minors.

In 2012, Bakran married Zara Qazi, an adult Indian national. He then sought lawful permanent resident status for her by filing a Form I-130, Petition for Alien Relative, 8 C.F.R. § 204.1(a)(1), and a Form I-485, Application for Permanent Residence, 8 C.F.R. 245.2(a)(3)(iii), with the USCIS. In January 2014, he received a Request for Evidence/Notice of Intent to Deny his petition (the "Notice"), which noted that his 2004 conviction prevented him from designating his wife as his immediate relative for the purposes of exempting her Application for Permanent Residence from the worldwide levels of numerical limitations pursuant to 8 U.S.C. § 1151(b)(2)(A)(i) unless he could show he posed no risk to her. Bakran had already submitted materials regarding his conviction with his initial application, and he filed additional documents in response to the Notice. The USCIS determined that Bakran had committed a "specified offense against a minor" under the AWA, and denied his application.

Bakran filed suit in the United States District Court for the Eastern District of Pennsylvania against Defendants based on the denial of his petition. He alleged the denial violated the Constitution and APA. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that the District Court lacked jurisdiction to review the Secretary’s determination of Bakran’s petition. The District Court denied the motion, reasoning that Bakran "does not question the Secretary’s ... ‘unreviewable discretion’ " concerning the decision about him. Bakran v. Johnson, CIV. A. No. 15-127, 2015 WL 3631746, at *4 (E.D. Pa. June 11, 2015). Instead, according to the District Court, Bakran challenges the Secretary’s "non-discretionary threshold determination" and argues that his inability to "file an I-130 petition on his wife’s behalf ... violates his constitutional rights." Id. The District Court held that Bakran’s APA challenge did not seek review "of the discretionary ‘no risk’ assessment or even the substance of the rules adopted regarding that assessment." Id. The Court therefore concluded that it had jurisdiction to review all of Bakran’s claims.

Defendants then moved for summary judgment, which the District Court granted. On the APA claims, the Court ruled that (1) the agency’s adoption of a beyond-any-reasonable-doubt standard was not ultra vires² under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), Bakran v. Johnson, 192 F.Supp.3d 585, 601 (E.D. Pa. 2016) ; (2) the assessment of risk after filing and presumption of denial, per the Neufeld Memo, were not arbitrary and capricious, id. at 598-99 ; and (3) the Aytes and Neufeld Memos qualify as "interpretive rules" that do not require notice-and-comment rule-making," id. at 599-600. On the constitutional claims, the Court concluded that the AWA was neither punitive nor impermissibly retroactive, id. at 594-95, and Bakran’s due process claim failed because the AWA does not infringe his fundamenta l constitutional right to marry, id. at 595-97. Bakran appeals.

II³

A

We first address whether we have subject matter jurisdiction over Bakran’s claim that the Secretary violated the APA by imposing a beyond-any-reasonable-doubt burden of proof and a presumption of denial of AWA applications, as expressed in the Aytes and Neufeld Memos.

District courts have jurisdiction to review agency action under 28 U.S.C. § 1331, "subject only to preclusion-of-review statutes created or retained by Congress." Chehazeh v. Att'y Gen. of U.S., 666 F.3d 118, 126 (3d Cir. 2012) (quoting Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) ). The APA bars judicial review where "statutes preclude judicial review" or "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a). The INA provides that "no court shall have jurisdiction to review ... any ... decision or action of ... the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of ... the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii). The INA’s "jurisdiction-stripping language ... applies not to all decisions the [Secretary] is entitled to make, but to a narrower category of decisions where Congress has taken the additional step to specify that the sole authority for the action is in the [Secretary]’s...