Gebhardt v. Nielsen
| Citation | 879 F.3d 980 |
| Decision Date | 09 January 2018 |
| Docket Number | No. 15-56072,15-56072 |
| Parties | Richard GEBHARDT, Plaintiff–Appellant, v. Kirstjen NIELSEN, Secretary, Department of Homeland Security; L. Francis Cissna, Director, U.S. Citizenship and Immigration Services ("USCIS"); Irene Martin, Field Office Director, San Bernardino Field Office, USCIS; Jean Tharpe, Field Office Director, Vermont Field Office, USCIS; Jefferson B. Sessions III, Attorney General, U.S. Department of Justice, Defendants–Appellees |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Vishwanath Kootala Mohan (argued) and Peter Afrasiabi, One LLP, Newport Beach, California, for Plaintiff–Appellant.
Joshua S. Press (argued), Trial Attorney; Hans H. Chen, Senior Litigation Counsel; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants–Appellees.
Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Lee H. Rosenthal,* Chief District Judge.
Plaintiff Richard Gebhardt, a United States citizen, filed I–130 petitions with the United States Citizenship and Immigration Services ("USCIS"), seeking Legal Permanent Residence ("LPR") status for his non-citizen wife and her three non-citizen children. The Secretary of Homeland Security rejected those petitions pursuant to the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"). Although the I-130 petitions would have been granted otherwise, the Adam Walsh Act amended the statute by creating an exception for petitioners who have been convicted of certain sex offenses against a child, and Plaintiff has been convicted of a covered offense.1 The Secretary determined that Plaintiff had failed to show that, despite his conviction, he posed "no risk" to the beneficiaries of the petition. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). Plaintiff then brought this action, alleging various statutory and constitutional violations. The district court dismissed the action for lack of subject matter jurisdiction. We affirm.
In 2000, a jury convicted Plaintiff of committing a "lewd and lascivious act with a child under the age of fourteen," in violation of California Penal Code § 288(A).2 After serving a three-year sentence, Plaintiff married a non-citizen, who has three non-citizen children. Shortly thereafter, in 2005, Plaintiff filed I-130 petitions on behalf of his wife and her children.
On July 28, 2006, one day after the Adam Walsh Act took effect, USCIS approved the petitions. But in 2009, USCIS ran an additional background check. Upon discovering Plaintiff's record of conviction, USCIS issued a notice of intent to revoke the approval of the petitions. The notice invited Plaintiff to submit evidence that he posed "no risk" to the beneficiaries of his petitions. He responded with extensive evidence, including notarized affidavits from family members, friends, and co-workers and a psychosexual evaluation. Nevertheless, USCIS revoked its earlier approval of the petitions. Plaintiff appealed to the Board of Immigration Appeals, which dismissed the appeal for lack of jurisdiction.
In 2010, Plaintiff filed a new set of I-130 petitions and submitted additional evidence to support his contention that he posed "no risk" to the beneficiaries of the petitions. USCIS denied those petitions.
Thereafter, Plaintiff filed the present action. On the government's motion, the district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1). Plaintiff timely appeals.
8 U.S.C. § 1154(a)(1)(A)(i) ("Clause (i)"). But the Adam Walsh Act created an exception to that regime:
Clause (i) shall 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 with respect to whom a petition described in clause (i) is filed.
Id. § 1154(a)(1)(A)(viii)(I) ("Clause (viii)(I)").
USCIS has determined that, "given the nature and severity of many of the underlying offenses and the intent of the [Adam Walsh Act]," determinations that a citizen poses no risk should be "rare." U.S. Citizenship and Immigration Servs., U.S. Dep't of Homeland Security, Interoffice Memorandum, Transmittal of SOP for Adjudication of Family–Based Petitions Under the Adam Walsh Child Protection and Safety Act of 2006 (Sept. 24, 2008). A pair of jurisdictional provisions insulate those determinations from review. First, the INA bars us from reviewing any "decision or action ... the authority for which is specified [as falling under] the discretion of the Attorney General or the Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B)(ii). Second, Clause (viii)(I) grants the Secretary "sole and unreviewable discretion" in making "no risk" determinations.
Those provisions clearly demonstrate Congress' intent to prevent us from reviewing how the Secretary exercises his or her "sole and unreviewable discretion" to make "no risk" determinations. See Roland v. USCIS , 850 F.3d 625, 629 (4th Cir. 2017) (); Privett v. Sec'y, Dep't of Homeland Sec. , 865 F.3d 375, 381 (6th Cir. 2017) (same); Bremer v. Johnson , 834 F.3d 925, 929 (8th Cir. 2016) (same).3 Thus, we may review Plaintiff's claims only insofar as they challenge action beyond the scope of the Secretary's "sole and unreviewable discretion."
Plaintiff first claims that the Adam Walsh Act does not apply to his case because he filed his petitions before that statute took effect. We have jurisdiction to consider that issue. See Bremer , 834 F.3d at 929 ( the same). Although the INA precludes "direct review of ... discretionary decisions," it does not bar us from reviewing "predicate legal question[s]." Tapia v. Gonzales , 430 F.3d 997, 999 (9th Cir. 2005). In Tapia , for example, we considered a predicate legal question regarding a non-citizen's eligibility to be considered for relief. Id. And the Sixth Circuit, in a case much like the one before us, held that it retained jurisdiction to consider the "predicate legal issue" of whether a particular conviction qualifies as a "specified offense against a minor" under the Adam Walsh Act. Privett , 865 F.3d at 380.
Whether the Adam Walsh Act applies to already-filed petitions is a similar predicate legal question. Its answer turns entirely on Congress' intent, and the question in no way concerns how the Secretary chooses to exercise discretion. Rather, the issue is whether Plaintiff's case falls within that discretion at all . See id. (). We therefore retain jurisdiction over the issue.
Turning to Plaintiff's argument, then, we hold that the Adam Walsh Act applies to petitions that were filed, but not yet adjudicated, before its effective date. Because Plaintiff's petitions fall within that category, the Act governs his case.
Clause (i) specifies who "may file" a petition for a family-based visa. As noted, the Adam Walsh Act limited that clause: "Clause (i) shall not apply to a citizen ... who has been convicted of a specified offense against a minor," unless the Secretary determines that the petitioner poses "no risk" to the beneficiary of the petition. Clause (viii)(I). Plaintiff would have us read those provisions literally. In his view, the amendment limits who "may," in the ministerial sense, "file" a petition—not which petitions the Secretary may, as a substantive matter, grant.
Despite its awkward wording, the amendment does not literally limit who "may file" a petition. We think it clear that Congress did not enact the statute to bar certain citizens from placing pieces of paper in front of an agency for processing. Rather, when Congress declared that "Clause (i) shall not apply," Congress was expressing its judgment that citizens convicted of certain offenses may not, unless stringent conditions are met, benefit from the petitioning framework described in Clause (i). In keeping with that goal, the Adam Walsh Act provision amending the INA is described as "barring convicted sex offenders" not from filing petitions, but "from having family-based petitions approved ." Pub. L. No. 109–248, § 402, 120 Stat. 587, 622 (2006) (emphasis added) (capitalization removed).
We recognize that the phrase "may file," if read literally, suggests the opposite conclusion. But we should avoid an interpretation that renders part of a statute unnecessary, Marx v. Gen. Revenue Corp. , 568 U.S. 371, 386, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013), as Plaintiff's proposed interpretation does. Clause (viii)(I) directs the Secretary to determine whether a petitioner poses "no risk" to the alien with respect to whom a petition was filed . But if Clause (viii)(I) barred citizens convicted of a specified offense against a minor from filing a petition at all , the Secretary could never make the kind of risk determination that the Adam Walsh Act requires. Because that interpretation would nullify the Secretary's decision-making authority, we decline to read "may file" as Plaintiff proposes we do.
In sum, because the Adam Walsh Act clearly delineates who may have a petition granted—rather than who may literally file a petition—we hold that the amended statute applies to petitions that were filed before, but were still pending on, its effective...
To continue reading
Request your trial
-
Almakalani v. McAleenan
...United States with [their] non-citizen relatives ... runs headlong into Congress’ plenary power over immigration." Gebhardt v. Nielsen , 879 F.3d 980, 988 (9th Cir. 2018). Plaintiffs’ "generic right to live with family is far removed from the specific right to reside in the United States wi......
-
Ramos v. Nielsen
...resulting in family separation inherently violates a U.S. citizen's constitutional rights. For instance, in Gebhardt v. Nielsen , 879 F.3d 980, 988 (9th Cir. 2018), the Ninth Circuit held that U.S. citizen's due process rights were not violated by denial non-citizen wife and her children's ......
-
S.A. v. Trump, Case No. 18-cv-03539-LB
...liberty interest in "the companionship and society of their family members who are stranded in Central America."132 In Gebhardt v. Nielsen , 879 F.3d 980 (9th Cir. 2018), the Ninth Circuit held that the general right to familial companionship cannot form the basis of a due-process claim for......
-
In re Border Infrastructure Envtl. Litig., Case No.: 17cv1215–GPC(WVG)
...was no violation of a clear statutory mandate, the Ninth Circuit upheld the bar on judicial review. Id. Similarly, in Gebhardt v. Nielsen, 879 F.3d 980, 989 (9th Cir. 2018), the Ninth Circuit affirmed a judgment of the district court, which dismissed an action based on a judicial bar on the......
-
Recognizing the Right to Family Unity in Immigration Law.
...6 Nev. L.J. 1165, 1191-97 (2006). (78.) De Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 2009); see also Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018) (holding that "a fundamental right to reside in the United States with ... noncitizen relatives" would be at odds with "Congr......