Bakran v. Johnson, CIVIL ACTION No. 15-127

Decision Date28 June 2016
Docket NumberCIVIL ACTION No. 15-127
Citation192 F.Supp.3d 585
Parties Ahmed BAKRAN v. Jeh JOHNSON, et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Nicklaus Misiti, New York, NY, William John Vandenberg, Hogan & Vandenberg LLC, Philadelphia, PA, for Ahmed Bakran.

Geoffrey Forney, United States Department of Labor, Philadelphia, PA, Sarah S. Wilson, U.S. Dept. of Justice, Washington, DC, for Jeh Johnson, et al.


Padova, District Judge.

Plaintiff Ahmed Bakran, a United States citizen, commenced this action to challenge the denial of a Form I-130 immigrant visa petition that he filed on behalf of his new wife, seeking to have her designated as an immediate relative. Both Bakran and Defendants have filed Motions for Summary Judgment. For the following reasons, we grant Defendants' Motion, deny Bakran's Motion and enter judgment in favor of Defendants on all of Bakran's claims.


The undisputed facts are as follows. Bakran is a United States citizen who, in 2004, pleaded guilty to one count of aggravated indecent assault in violation of 18 Pa. Cons. Stat. Ann. § 3125, and one count of unlawful contact with a minor in violation of 18 Pa. Cons. Stat. Ann. § 6318. (Concise Statement of Stipulated Material Facts ("Stip. Facts"), at ¶¶ 1-2.) He was sentenced to 11½ to 23 months of imprisonment, ten years' probation, and lifetime sex offender registration. (Id.¶ 2.) In addition, as part of his criminal sentence, he was required to undergo a psychosexual evaluation and is prohibited from any unsupervised contact with minors. (Id.) Bakran has complied with his sentence and has no prior or subsequent convictions. (Id.)

Prior to 2006 and currently, the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1101 et seq. , generally permits that "any citizen of the United States claiming that an alien is an immediate relative status under section 1151(b)(2)(A)(i) [including a citizen's spouse]...may file a petition with the Attorney General for such classification." 8 U.S.C. § 1154(a)(1)(A)(i) ; see id.§ 1151(b)(2)(A)(i) (stating that "the term ‘immediate relatives' means the children, spouses, and parents of a citizen of the United States"). On July 27, 2006, however, the Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"), Pub. L. No. 109–248, 120 Stat. 587 (2006), amended the INA to bar any citizen convicted of a "specified offense against a minor" from filing any family-based immigration petition 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 [the] petition... is filed." 8 U.S.C. § 1154(a)(1)(A)(viii)(I).

On February 8, 2007, United States Citizenship and Immigration Services ("USCIS") issued a policy memorandum announcing a new legal standard for Walsh Act cases (the "Aytes Memo"). (Stip. Facts ¶ 9.) The Aytes Memo created a standard whereby a petitioner subject to the Walsh Act must show "beyond a reasonable doubt" that they "pose no risk" to the beneficiary of the petition. (Id.) The Aytes memo did not undergo any notice and comment procedure and became effective the day USCIS issued it. (Id.)

On September 24, 2008, USCIS issued another memorandum regarding Walsh Act cases (the "Neufeld memo"). (Id.¶ 10.) The Neufeld memo states that "approval recommendations should be rare" because of "the nature and severity of many of the underlying offenses." (Id.) The Neufeld memo, like the Aytes memo, did not undergo any notice and comment review. (Id.)

In 2012, Bakran married Zara Qazi, a foreign national of India. (Id.¶ 4.) Bakran has resided with Qazi since 2012, and they have one child together. (Id.) Qazi submitted sworn testimony to USCIS that she is aware of Bakran's conviction and the incidents surrounding it. (Id.)

On July 30, 2012, Bakran filed a Form I-130 immigrant visa petition ("I-130 Petition"), pursuant to the INA, 8 U.S.C. § 1151(b)(2)(A)(i), seeking to have Qazi classified as his immediate relative so that she could immigrate to the United States. (Stip. Facts ¶ 5); see also 8 C.F.R. §§ 204.1(a)(1), 204.2(a)(1). Qazi concurrently filed an I-485 application to adjust her status to a lawful permanent resident. (Stip. Facts ¶ 5.) On January 21, 2014, Bakran received from USCIS a "Request for Evidence/Notice of Intent to Deny" his I-130 Petition. (Id.¶ 6.) In that Request for Evidence/Notice of Intent to Deny, USCIS informed Bakran that, pursuant to the Walsh Act, his 2004 convictions barred him from filing an I-130 petition on behalf of Qazi unless he could show that he posed no risk to her. (Id.¶ 6.) USCIS afforded Bakran eighty-seven days to respond with evidence to meet that standard. (Id.) Bakran timely submitted records from his criminal case, notarized letters from family and friends attesting to his good character, a copy of his 2005 Sexuality Evaluation Study, his 2012 Psychosexual Evaluation, and a 2014 Psychological Report. (Id.¶ 7.) However, after reviewing the totality of the evidence, on December 9, 2014, USCIS denied Bakran's I-130 petition and Qazi's I-485 application. (Id.¶ 8.)

Bakran filed his Complaint in this action on January 13, 2015. The Complaint sets forth seven causes of action. Count 1 asserts that Defendants' application of the Walsh Act to deny Bakran' I-130 petition violated the Ex Post Facto Clause of Article I the United States Constitution. Count 2 asserts that Defendants violated Bakran's due process right under the Fifth Amendment insofar as it burdens his constitutionally protected liberty interest in marriage. Count 3 asserts that Defendants violated Bakran's right pursuant to the Fifth and Eighth Amendments to be free of excessive punishment. Counts 4 and 5 assert that Defendants engaged in arbitrary and capricious conduct in violation of the Administrative Procedures Act (the "APA"), 5 U.S.C. § 701 et seq. Count 6 asserts that Defendants engaged in rule-making regarding the Walsh Act without following the APA's notice and comment procedures. Count 7 asserts that the rules that Defendants issued regarding the Walsh Act were ultra vires, i.e., they were beyond USCIS's legislative authority.

Defendants previously filed a Motion to Dismiss Bakran's Complaint for lack of subject matter jurisdiction, which we denied in a Memorandum and Order entered on June 11, 2015. Both Bakran and Defendants have now filed Motions for Summary Judgment. Defendants seek judgment in their favor on all seven Counts of the Complaint. Bakran seeks judgment in his favor on all Counts except Count 4.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id.

"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmoving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court" that "there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, the adverse party's response "must support the assertion [that a fact is genuinely disputed] by: (A) citing to particular parts of materials in the record...; or (B) showing that the materials [that the moving party has cited] do not establish the absence...of a genuine dispute." Fed. R. Civ. P. 56(c)(1). Summary judgment is appropriate if the nonmoving party fails to respond with a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

A. Ex Post Facto (Count 1)

Count 1 of the Complaint asserts that Defendants' application of the Walsh Act to prohibit the filing of I-130 petitions by individuals with convictions of qualifying crimes against minors, absent a finding of "no risk," violates the Ex Post Facto clause in Article I of the Constitution when the petitioner, like Bakran, was convicted of his or her crime prior to enactment of the Walsh Act. Article I, Section 10 of the Constitution provides that "[n]o State shall...pass any...ex post facto Law...." U.S. Const. art. I, § 10, cl. 1. An ex post facto law is one that "makes more burdensome the punishment for a crime, after its commission." Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (quoting Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216 (1925) ). Accordingly, a law does not violate the Constitution's Ex Post Facto clause unless it is both punitive and retroactive. See Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Defendants argue that judgment should be entered in their favor on this claim because the Walsh Act is neither retroactive nor punitive, while Bakran maintains that the Act is both retroactive and punitive.

1. Punitive

In determining whether legislation is punitive, we first consider whether the legislation is civil or criminal. Legislation that provides for criminal proceedings and penalties is punitive by its very nature. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) ; Smith v. Doe, 538 U.S. 84, 91, 123 S.Ct. 1140, 155 L.Ed.2d...

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