Bourdon v. U.S. Dep't of Homeland Sec., No. 17-15787

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtGRANT, Circuit Judge
Citation940 F.3d 537
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.
Docket NumberNo. 17-15787
Decision Date03 October 2019

940 F.3d 537

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.

No. 17-15787

United States Court of Appeals, Eleventh Circuit.

October 3, 2019


940 F.3d 539

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, Civil Division, Office of Immigration Litigation, WASHINGTON, DC, Troy David Liggett, U.S. Dept. of Justice Civil Division, Office of Immigration Litigation, FORT LAUDERDALE, FL, Marilynn Koonce Lindsey, U.S. Attorney's Office, FORT LAUDERDALE, FL, Lindsay Marie Vick, U.S. Department of Justice, Civil Division, WASHINGTON, DC, for Defendants - Appellees.

Before JORDAN, GRANT, and BALDOCK,* Circuit Judges.

GRANT, Circuit Judge:

Douglas Bourdon, a United States citizen, sought to bring his wife, a Vietnamese citizen, here to the United States under a program that allows sponsorship of close relatives. But a problem presented itself: Bourdon had been convicted of possession of child pornography, which put him outside the bounds of the visa-sponsorship program unless he could show that he posed no risk to his wife. This he could not do—at least not according to United States Citizenship and Immigration Services, which under a statute known as the Adam Walsh Act has "sole and unreviewable discretion" to determine if citizens like Bourdon pose "no risk" to their foreign relatives. Bourdon sued, alleging that Immigration Services violated the Administrative Procedure Act in two ways: when it used a beyond-a-reasonable-doubt standard rather than a preponderance-of-the-evidence standard to evaluate his petition, and when it did not allow him to offer rebuttal evidence. The district court dismissed the suit, concluding that it had no jurisdiction to review Bourdon’s administrative objections to the process behind the no-risk decision. We affirm; courts lack jurisdiction to review either the process or the outcome of the no-risk decision.

I.

We begin by providing a brief background of the immigration procedures and rules at issue. Generally, by filing an I-130 petition, "any citizen of the United States" can request that the Attorney General recognize a foreign national family member,

940 F.3d 540

like a spouse or child, as an "immediate relative." 8 U.S.C. § 1154(a)(1)(A)(i) ; see also 8 C.F.R. § 204.1(a)(1). In response to that request, "the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative," approve the petition. 8 U.S.C. § 1154(b). The foreign national can then enter the United States without regard to numerical limits on immigration. Id. § 1151(b).

But Congress created an exception to that allowance in 2006 when it passed the Adam Walsh Child Protection and Safety Act. According to that Act, the general rule permitting a U.S. citizen to petition for foreign family members to receive immediate-relative status does "not apply to a citizen of the United States who 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 alien." Id. § 1154(a)(1)(A)(viii)(I) (emphasis added). So the status quo for citizens convicted of specified offenses against a minor—a list that includes kidnapping a child, using a child in a sexual performance, soliciting a child to practice prostitution, and possession of child pornography—is that they are ineligible to sponsor their immediate relative’s immigration petition. See 34 U.S.C. § 20911(7) (formerly codified at 42 U.S.C. § 16911(7) ) (defining "specified offense against a minor"). Unless, that is, the Secretary affirmatively acts in their favor—a task Congress has authorized Immigration Services to perform for the Secretary. See 6 U.S.C. § 271(b). Whether the Secretary—or the Secretary’s delegate, Immigration Services—will act in favor of the convicted citizens, in turn, is committed to the Secretary’s "sole and unreviewable discretion." 8 U.S.C. § 1154(a)(1)(A)(viii)(I).

Turning to the facts here, Bourdon was convicted of possession of child pornography in 2003. Five years later, he married Thi Thuan Tran, a Vietnamese citizen. Shortly after their marriage, Bourdon filed an I-130 petition to establish Tran as his immediate relative so that she could join him in the United States as a legal permanent resident. But Immigration Services told Bourdon that his child-pornography conviction prevented him from filing an I-130 petition—unless he could prove that he posed no risk to his wife. Immigration Services also sent Bourdon a request for evidence regarding his offense and rehabilitation. Bourdon eventually submitted several documents in support of his petition, including an affidavit from his wife; reports from a psychologist and social worker/forensic examiner; and evidence of trips to Vietnam and Thailand to visit his wife.

Immigration Services ultimately denied Bourdon’s petition in a written opinion. That opinion—which Immigration Services had no duty to issue—explained that Bourdon had failed to prove "beyond any reasonable doubt" that he posed no risk to his wife. The opinion also stated that Immigration Services found the records that Bourdon submitted of trips to Vietnam and Thailand "disturbing." According to Immigration Services, the records showed that Bourdon repeatedly visited "countries that have literally no child protection laws and where child pornography, child prostitution, and child sex tourism are sources of national income and are tolerated by their respective governments." To support those assertions, the opinion cited to "[c]ountry reports by U.S. Department of State, UNHCR, World Relief, UNICEF, UN-ACT etc."

After receiving the opinion denying his petition, Bourdon brought this action. Bourdon alleges that Immigration Services violated the APA in two distinct ways

940 F.3d 541

when it analyzed whether he posed any risk to his wife.1

First , Bourdon argues that Immigration Services violated the APA when it applied a beyond-a-reasonable-doubt standard to weigh the evidence that he submitted in support of his petition, rather than the preponderance-of-the-evidence standard that he contends is required under In re Chawathe , 25 I. & N. Dec. 369, 375 (USCIS Admin. Appeals Office 2010). According to Chawathe , "[e]xcept where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought." Id. Because the Secretary of Homeland Security designated that decision as precedent, Bourdon argues, Immigration Services is required to abide by it. See 8 C.F.R. § 103.3(c) (administrative decisions designated as precedent "are binding on all Service employees"). And because, Bourdon says, the Adam Walsh Act does not supply a different standard, the agency should have applied a preponderance standard—rather than a beyond-a-reasonable-doubt standard—to weigh the evidence that he presented in support of his application.

Second, Bourdon alleges that the agency violated the APA because it did not give him the opportunity to inspect and rebut the country reports that the agency cited when it found his travels to Vietnam and Thailand "disturbing." According to Bourdon, 8 C.F.R. § 103.2(b)(16)(i) gives him a right to inspect and rebut any derogatory information that the agency relied on in denying his petition. Id. § 103.2(b)(16)(i) ("If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered ....").

These two alleged APA violations, Bourdon argues, survive the Adam Walsh Act’s apparent bar on court review because they challenge Immigration Services’ compliance with mandatory administrative procedures rather than the agency’s ultimate conclusion, which even Bourdon concedes cannot be reviewed. The district court disagreed, and thus dismissed Bourdon’s APA claim for lack of subject-matter jurisdiction. Bourdon v. Sessions , No. 9:17-CV-80207, 2017 WL 5187833, at *4–5 (S.D. Fla. Nov. 9, 2017). In explaining its decision, the court stated that the statutory scheme shields from judicial review "not only the ultimate determination of whether a petitioner has met his burden of proving ‘no risk’ to the petition’s beneficiary, but also the agency’s decision-making process, including what evidence to consider and how to weigh such evidence." Id. at *4. The court decided that it was therefore powerless to review the...

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19 practice notes
  • Newyork v. Wolf, No. 19-5298
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 2020
    ...heralds Congress's judgment to commit the decision exclusively to agency discretion. See Bourdon v. United States Dep't of Homeland Sec. , 940 F.3d 537, 542 (11th Cir. 2019). For example, in Webster v. Doe , 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the Supreme Court stressed th......
  • Bourdon v. U.S. Dep't of Homeland Sec. (DHS), No. 17-15787
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 23, 2020
    ...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......
  • Make Rd. N.Y. v. Wolf, No. 19-5298
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 2020
    ...heralds Congress's judgment to commit the decision exclusively to agency discretion. See Bourdon v. United States Dep't of Homeland Sec., 940 F.3d 537, 542 (11th Cir. 2019). For example, in Webster v. Doe, 486 U.S. 592 (1988), the Supreme Court stressed that an agency's power to terminate a......
  • Dekalb Cnty. Bd. of Tax Assessors v. Barrett, A21A1032
    • United States
    • United States Court of Appeals (Georgia)
    • October 25, 2021
    ...as to matters of taxability, uniformity of assessment, and value ....").27 Bourdon v. United States Dep't of Homeland Sec. (DHS) , 940 F.3d 537, 548 (II) (C) (11th Cir. 2019) (punctuation omitted and emphasis supplied); see In re Nestorovski Estate , 283 Mich.App. 177, 769 N.W.2d 720, 732 (......
  • Request a trial to view additional results
19 cases
  • Newyork v. Wolf, No. 19-5298
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 2020
    ...heralds Congress's judgment to commit the decision exclusively to agency discretion. See Bourdon v. United States Dep't of Homeland Sec. , 940 F.3d 537, 542 (11th Cir. 2019). For example, in Webster v. Doe , 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the Supreme Court stressed th......
  • Bourdon v. U.S. Dep't of Homeland Sec. (DHS), No. 17-15787
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • December 23, 2020
    ...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......
  • Make Rd. N.Y. v. Wolf, No. 19-5298
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 2020
    ...heralds Congress's judgment to commit the decision exclusively to agency discretion. See Bourdon v. United States Dep't of Homeland Sec., 940 F.3d 537, 542 (11th Cir. 2019). For example, in Webster v. Doe, 486 U.S. 592 (1988), the Supreme Court stressed that an agency's power to terminate a......
  • Dekalb Cnty. Bd. of Tax Assessors v. Barrett, A21A1032
    • United States
    • United States Court of Appeals (Georgia)
    • October 25, 2021
    ...as to matters of taxability, uniformity of assessment, and value ....").27 Bourdon v. United States Dep't of Homeland Sec. (DHS) , 940 F.3d 537, 548 (II) (C) (11th Cir. 2019) (punctuation omitted and emphasis supplied); see In re Nestorovski Estate , 283 Mich.App. 177, 769 N.W.2d 720, 732 (......
  • Request a trial to view additional results

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