Bourdon v. U.S. Dep't of Homeland Sec. (DHS)
| Decision Date | 23 December 2020 |
| Docket Number | No. 17-15787,17-15787 |
| Citation | 983 F.3d 473 (Mem) |
| Parties | Douglas BOURDON, Plaintiff - Appellant, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY (DHS), Jeh Charles Johnson, Secretary of DHS, Loretta Lynch, Attorney General of the United States, United States Citizenship and Immigration Services (USCIS), Leon Rodriguez, Director of the USCIS, Tony Bryson, District Director, District 10, USCIS, Laura Castillo, Acting Field Office Director, West Palm Beach Field Office, USCIS, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ira J. Kurzban, John Patrick Pratt, Edward Fortunato Ramos, Ian Keith Shaw, Kurzban Kurzban Tetzeli & Pratt, PA, Coral Gables, FL, for Plaintiff-Appellant.
Gladys Marta Steffens Guzman, U.S. Department of Justice, Office of Immigration Litigation, Lindsay Marie Vick, U.S. Department of Justice, Civil Division, Washington, DC, Troy David Liggett, Marilynn Koonce Lindsey, U.S. Department of Justice, Office of Immigration Litigation, Fort Lauderdale, FL, for Defendants-Appellees.
Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges.
A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting rehearing en banc, it is ORDERED that this case will not be reheard en banc.
GRANT, Circuit Judge, concurring in the denial of rehearing en banc:
A majority of the Court voted against en banc review in this case. I believe that was the right call. For the reasons I explained in the panel opinion, the Adam Walsh Act prevents us from reviewing Bourdon's claim. See Bourdon v. U.S. Dep't of Homeland Sec. , 940 F.3d 537 (11th Cir. 2019). I see no need to repeat those arguments here. But I cannot let today's dissent go entirely unanswered. While there is more to take issue with, I will limit myself to a few points.
To begin, I agree with the dissent that there is a "strong presumption" in favor of judicial review. Mach Mining, LLC v. EEOC , 575 U.S. 480, 486, 135 S.Ct. 1645, 191 L.Ed.2d 607 (2015) (quoting Bowen v. Mich. Acad. of Fam. Physicians , 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) ). But that presumption is rebutted when a "statute's language or structure demonstrates that Congress wanted an agency to police its own conduct." Id. And that is precisely what the Adam Walsh Act did by making the Secretary's discretion "sole and unreviewable." 8 U.S.C. § 1154(a)(1)(A)(viii)(I).
The dissent sees things differently. It argues that Bourdon went against Supreme Court precedent, contending that the Court has not found preclusion "even in the face of statutes that do directly address judicial review." Dissenting Op. at 479. To support this point, the dissent—mistakenly—relies on three Supreme Court cases.
The first is Traynor v. Turnage , 485 U.S. 535, 108 S.Ct. 1372, 99 L.Ed.2d 618 (1988). According to the dissent, the statute in Traynor did not overcome the presumption against preclusion despite its "clear statement withdrawing judicial review." Dissenting Op. at 480. In reality, though, the Court never addressed whether the statute's language precluding judicial review was sufficient to do so. It did not have to. That's because its holding was that a statute blocking judicial review of certain decisions under veterans’ benefits laws administered by the Veterans Administration did not also block judicial review of claims arising under a different sort of law, one that applied to all federal agencies. Traynor , 485 U.S. at 543–45, 108 S.Ct. 1372. Simply put, the claim in Traynor did not arise under one of the statutes that fell within the preclusion provision. That is an unremarkable proposition—and not the one the dissent identifies.
The dissent's only other cases— INS v. St. Cyr , 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Demore v. Kim , 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) —also fail to prove its point. Those two cases are about habeas review, not judicial review. And that matters. After all, courts have recognized a "longstanding distinction" between the two. St. Cyr , 533 U.S. at 312 n.35, 121 S.Ct. 2271. But the preclusion of habeas review and the "serious and difficult" constitutional issue that such preclusion would raise are not present here, so St. Cyr and Demore have little to teach us in this case. Id. at 305, 121 S.Ct. 2271. Not only is the would-be beneficiary of judicial review here not seeking release from custody, or even relief from deportation, he is seeking nearly the opposite—entry of a second person into the United States.
Even so, the dissent argues that these habeas cases direct our holding here. On its reading, by permitting habeas review in St. Cyr despite "seemingly ironclad language" precluding it, the Supreme Court has barred our holding on judicial review in Bourdon . Dissenting Op. at 480. Not so.
The dissent itself seems to spot the daylight between those cases and this one. After analyzing the three cases at length, it backpedals, asserting that it is "of no moment" that the cited cases are not on point. The real purpose, it says, is to show that the statutes interpreted in those cases (whether or not relevant) had language that explicitly precluded "judicial review"—and even they were unsuccessful at doing so. Id. at n.2. The dissent argues that the Adam Walsh Act, in contrast, "says nothing about judicial review." Id. at 481. But that's just not so. I do not see how the Adam Walsh Act's forceful language conferring "sole and unreviewable" discretion to the Secretary is anything less than "explicit" that the federal judiciary cannot interfere in the Secretary's determinations. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). I take Congress at its word—Bourdon's claim is unreviewable, so courts lack jurisdiction to review it.
This Court is not the only one to say so. In fact, every circuit to consider this issue has disclaimed jurisdiction over claims like Bourdon's. See Bakran v. Sec'y, U.S. Dep't of Homeland Sec. , 894 F.3d 557, 562–64 (3d Cir. 2018) ; Gebhardt v. Nielsen , 879 F.3d 980, 987 (9th Cir. 2018) ; Privett v. Sec'y, Dep't of Homeland Sec. , 865 F.3d 375, 378–82 (6th Cir. 2017) ; Roland v. U.S. Citizenship & Immigr. Servs. , 850 F.3d 625, 628–30 (4th Cir. 2017) ; Bremer v. Johnson , 834 F.3d 925, 929–31 (8th Cir. 2016). And although the dissent tries to differentiate this case from those, it cannot argue with a more basic point: we all agree that courts lack jurisdiction over these claims.
For these reasons and those stated in the panel opinion, I stand by that decision.
MARTIN, Circuit Judge, joined by JORDAN and JILL PRYOR, Circuit Judges, dissenting from the denial of rehearing en banc:
I write in dissent because I believe the panel opinion in Bourdon v. U.S. Department of Homeland Security, 940 F.3d 537 (11th Cir. 2019), errs both in its method of interpretation and the result it reached. The panel ruled that Douglas Bourdon can have no judicial review of the Secretary of Homeland Security's decision to deny his petition for a visa for his wife. In so ruling, the panel relied on the wrong provision of the Administrative Procedure Act ("APA"). Nothing in the statute at issue in Mr. Bourdon's case explicitly "preclude[s] judicial review" under the APA, 5 U.S.C. § 701(a)(1). As a result, this court has jurisdiction to review Mr. Bourdon's claim that the agency acted arbitrarily and capriciously by failing to adhere to its own internal procedures.
For this reason, and the reasons stated in Judge Jordan's compelling dissenting opinion, I respectfully dissent from the court's denial of en banc rehearing.
Under 8 U.S.C. § 1154(a)(1)(A)(i), "any citizen of the United States" may file a petition with the Attorney General seeking immigrant status on behalf of his non-citizen immediate family members. In 2006, Congress amended § 1154 to provide an exception for citizens who have been "convicted of a specified offense against a minor." Pub. L. No. 109-248, § 402 (2), 120 Stat. 587 (). Citizens with these convictions are allowed to petition for immigrant status on behalf of a relative if the Secretary of Homeland Security (the "Secretary"), in his "sole and unreviewable discretion, determines that the citizen poses no risk to the" noncitizen on whose behalf the petition is filed. Id.
A separate statute, 8 U.S.C. § 1252(a)(2)(B)(ii), also precludes judicial review of discretionary immigration decisions:
Notwithstanding any other provision of law (statutory or nonstatutory), ... no court shall have jurisdiction to review ... any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security ....
But I will discuss why neither the Adam Walsh Act nor § 1252 provides a basis for the majority's conclusion.
Douglas Bourdon was convicted in 2003 of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B). This conviction is a "specified offense" under the Adam Walsh Act. See 8 U.S.C. § 1154(a)(1)(A)(viii)(II) ; 34 U.S.C. § 20911(7)(G). In May 2008, when he was 63 years old, Mr. Bourdon married Thi Thuan Tran, who is a 59-year-old citizen of Vietnam. The next month, Mr. Bourdon submitted an I-130 Petition for Alien Relative on Ms. Tran's behalf. Following an in-person interview with Mr. Bourdon and Ms. Tran, the United States Citizenship and Immigration Services ("USCIS") asked Mr. Bourdon for supplemental documentation reflecting that he poses no risk to his wife. The evidence submitted by Mr. Bourdon in...
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...v. U.S. Att'y Gen., 796 F. App'x 993, 996 (11th Cir. 2020), discussed infra. 2. See generally Bourdon v. U.S. Dep't of Homeland Sec., 983 F.3d 473 (11th Cir. 2020).3. Id.4. Id at 474. Under 8 U.S.C. § 1154(a)(1)(A)(i), "any citizen of the United States" may file a petition with the Attorney......