Bourdon v. Sessions
| Decision Date | 08 November 2017 |
| Docket Number | CASE NO. 9:17-CV-80207-ROSENBERG/HOPKINS |
| Parties | DOUGLAS BOURDON Plaintiff, v. JEFFERSON B. SESSIONS, Attorney General of the United States, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court on Defendants' Motion to Dismiss [DE 34]. The Motion has been fully briefed by both sides. The Court has reviewed the documents in the case file and is fully advised in the premises. For the reasons set forth below, Defendants' Motion to Dismiss is granted.
Plaintiff Douglas Bourdon is a United States citizen. On June 18, 2008, Bourdon submitted a petition (the "I-130 petition") to the United States Citizenship and Immigration Services ("USCIS"), requesting that USCIS recognize his wife, Ms. Thi Thuan Tran, a citizen of Vietnam, as the immediate relative of a United States Citizen so that Ms. Tran could apply for an immigrant visa. Compl. ¶¶ 21-22, 31-32. On January 15, 2009, Plaintiff and Ms. Tran appeared for an interview on the petition. Id. ¶ 32. At the interview, Plaintiff was informed that he was ineligible to submit an I-130 pursuant to the Adam Walsh Child Safety and Protection Act of 2006, Pub. L. No. 109-248 (the "AWA"), because he had been convicted of a "specified offense against a minor" and had not established that he posed "no risk" to Ms. Tran as required by the AWA. Id. Specifically, in 2003, Plaintiff was convicted of possession of a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B). Compl. at Ex. A at 2.
The USCIS issued Plaintiff a Request for Evidence ("RFE") regarding Plaintiff's offense and rehabilitation. Id. ¶ 33. Plaintiff responded, providing documentation including an affidavit from his wife and reports from a social worker and forensic examiner. Id. ¶ 34. The USCIS denied Plaintiff's petition again, based on his prior conviction and a determination that he had not demonstrated "beyond a reasonable doubt" that he posed no risk to Ms. Tran. Id. ¶ 35.
Plaintiff appealed that denial to the Board of Immigration Appeals ("BIA") and, on February 15, 2012, the BIA remanded Bourdon's petition to USCIS for further development of the record and additional briefing. Id. ¶ 36. USCIS subsequently issued another RFE, in response to which Bourdon submitted additional documentation, including additional forensic reports, affidavits from Bourdon, Ms. Tran, and Ms. Tran's family, medical records, and employment records. Id. ¶¶ 38-39. On November 21, 2014, after considering the newly submitted evidence, USCIS once again denied Bourdon's petition. USCIS concluded "in its exercise of sole and unreviewable discretion" that Plaintiff "failed to demonstrate that [he] pose[s] no risk to the beneficiary." Compl., Ex. A.
On December 23, 2015, Plaintiff commenced this action, attempting to allege six causes of action: (1) Count I: Impermissible Retroactive Application of the AWA, alleging that USCIS applied the Adam Walsh Act in an impermissibly retroactive manner because Bourdon's convictions preceded the statute; (2) Count II: Violation of Fifth Amendment Due Process and Equal Protection Guarantees, alleging violations of Bourdon's fundamental right to marry; (3) Count III: Violation of Congress's Enumerated Powers, alleging that the AWA is anunauthorized interference with governmental recognition of Plaintiff's marriage; (IV) Violation of the Administrative Procedures Act ("APA"), alleging that USCIS adoption of a "beyond a reasonable doubt" standard required notice and comment; (5) Count VI: Violation of Procedural Due Process, alleging that USCIS improperly interfered with Bourdon's purported constitutional liberty interest in living with his wife in the United States; and (6) Count VI: Violation of the APA, based on USCIS's weighing and consideration of certain evidence and its requiring petitioners to establish "no risk" to the beneficiary, including adult beneficiaries, by a "beyond any reasonable doubt" standard.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). A federal court is powerless to act beyond its statutory grant of subject matter jurisdiction. See Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).
Motions to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack jurisdiction facially or factually. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). When the jurisdictional attack is factual, the Court may look outside the four corners of the complaint to determine if jurisdiction exists. Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982). In a factual attack, the presumption of truthfulness afforded to a plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Because thevery power of the Court to hear the case is at issue in a Rule 12(b)(1) motion, the Court is free to weigh evidence outside the complaint. Eaton, 692 F.2d at 732.
On a motion to dismiss for failure to state a claim, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). To survive a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added) (quoting Twombly, 550 U.S. at 555). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted).
The Immigration and Nationality Act ("INA"), as amended, allows a U.S. citizen to file a petition seeking to classify his or her foreign national spouse as an immediate relative for the purpose of allowing his or her spouse to immigrate to the United States. See 8 U.S.C. § 1154(a)(1)(A)(i). Congress delegated the authority to adjudicate immigrant visa petitions classifying aliens as immediate relatives to USCIS. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 451(b)(1) (Nov. 25, 2002) (codified at 6 U.S.C. § 271(b)(1)). Congress also delegated authority to establish policies governing the adjudication of immigrant visa petitions toUSCIS. Id. § 451(a)(3)(A). A U.S. citizen may seek classification of his or her foreign national spouse as an immediate relative by filing a Form I-130 petition with USCIS. See 8 C.F.R. §§ 204.1(a)(1), 204.2(a)(1). The petitioner bears the burden of establishing that he or she is eligible to petition for the alien beneficiary of the petition. See 8 U.S.C. § 1361.
In 2006, Congress amended the INA through passage of the Adam Walsh Child Protection and Safety Act ("AWA"), Pub. L. No. 109-248, 120 Stat. 586. The AWA bars a citizen from filing a visa petition on behalf of his or her spouse if that citizen has been convicted of a "specified offense against a minor," unless the Secretary of Homeland Security, in the Secretary's "sole and unreviewable discretion" determines that the citizen "poses no risk" to the visa petitioner's beneficiary.1 See Pub. L. No. 109-248, § 402(a) (codified at 8 U.S.C. § 1154(a)(1)(A)(viii) & (B)(i)(I)). The list of "specified offense[s]" includes "[p]osession, production, or distribution of child pornography" and "[a]ny conduct that by its nature is a sex offense against a minor." Id. § 111(7) (codified at 42 U.S.C. § 16911(7)).
USCIS has issued guidance memoranda clarifying certain issues regarding the AWA. See Michael Aytes, Associate Director, Domestic Operations, 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 (USCIS Feb. 8, 2007), https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf ("Aytes Memorandum."). USCIS interprets the AWA's provision that a petitioner "poses no risk to the beneficiary" to mean "that the petitioner must pose no risk to the safety or well-being of the beneficiary, which includes the principal beneficiary and any alien derivative beneficiary."Id. at 5. The petitioner must submit evidence that demonstrates "beyond any reasonable doubt" that he or she poses no risk to the intended beneficiary. Id.
In a case where the petitioner seeks a visa for an adult beneficiary, USCIS "closely examine[s] the petitioner's specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary." Id. at 7. Because the statute conditions granting an I-130 petition on an affirmative finding of "no risk" to the beneficiary, the petitioner bears the burden of proving "beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary." Id. "The fact that a petitioner's past criminal acts may have been perpetrated only against children . . . may not, in and of [itself] be sufficient to convince USCIS that the petitioner poses no risk to the adult beneficiary." Id.
If USCIS denies an I-130 petition, the petitioner has the right to appeal the decision...
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