Giordano v. Garland
| Decision Date | 14 July 2021 |
| Docket Number | Civ. 20-07875 (KM) |
| Court | U.S. District Court — District of New Jersey |
| Parties | THOMAS GIORDANO and EVELYN ANSING GIORDANO, Plaintiffs, v. MERRICK GARLAND, TRACY RENAUD, and the UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendants. |
Thomas Giordano, an American citizen, married Evelyn Ansing Giordano, a Filipino citizen. The Giordanos applied to the United States Citizenship and Immigration Services (the “Service”) for a spousal visa and employment authorization for Mrs. Giordano. The Service denied their applications because Mr. Giordano had previously been convicted of offenses which, under the Adam Walsh Child Protection and Safety Act, Pub. L. No. 09-248, 120 Stat. 622 (2006), preclude the offender from seeking a family-based visa. The Giordanos sued the Service, its Acting Director and the Attorney General (collectively, the “Government”), asserting claims under the the Administrative Procedure Act (“APA”), 5 U.S.C § 701 et seq., and the U.S. Constitution. The Government moved to dismiss for lack of subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and failure to state a claim, Fed.R.Civ.P. 12(b)(6). (DE 15.)[1] In response, the Giordanos cross-moved for summary judgment. (DE 27.) For the following reasons, the Government's motion (DE 15) will be treated as one for summary judgment and is GRANTED. The Giordano's motion (DE 27) is DENIED.
The Immigration and Nationality Act (“INA”) allows a U.S. citizen to petition the Service to classify the citizen's foreign spouse, child, or parent as “an immediate relative, ” a classification that allows the person to immigrate to the United States. 8 U.S.C. § 1154(a)(1)(A)(i), (b). If that person is already in the United States, he or she may apply to become a lawful permanent resident. 8 C.F.R. §§ 245.1(a), 245.2(a)(2)(B).
That process differs when the Adam Walsh Act applies. Congress passed the Act “to protect the public from sex offenders and offenders against children.” 34 U.S.C. § 20901. To that end, the Act prevents citizens “convicted of a specified offense against a minor” from petitioning on behalf of their relatives for a family-based visa “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 . . . is filed.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I). “Specified offense against a minor” is defined as “an offense against a minor that involves, ” among other things, “[u]se in sexual performance” or “[a]ny conduct that by its nature is a sex offense against a minor.” Id. § 20911(7)(D), (I). “Sex offense” in turn means “a criminal offense that has an element involving a sexual act or sexual contact with another.” Id. § 20911(5)(a)(i).
When confronted with a petition from a citizen to whom the Act may apply, the Service engages in a two-step inquiry. First, the Service determines whether a petitioner's prior conviction qualifies as a “specified offense against a minor.” If it does, then the Service determines whether the petitioner nonetheless poses no risk to the relative. Privett v. Sec'y, Dep't of Homeland Security, 865 F.3d 375, 379-80 (6th Cir. 2017). For that second determination, the petitioner “must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiar[ies].” Bakran v. Sec'y, U.S. Dep't of Homeland Security, 894 F.3d 557, 560 (3d Cir. 2018) .
The Giordanos are a married couple who petitioned for a spousal visa for Mrs. Giordano and for accompanying employment authorization. (Am. Compl. ¶¶ 6-7.) The Service denied the petition for a spousal visa. The Service noted that Mr. Giordano had been convicted in 1996 for aggravated sexual assault, sexual assault, and endangering the welfare of children. (Notice at 2.) These convictions stemmed from sexual activity with Mr. Giordano's then 15-year-old daughter. (Id. at 5.) The Service concluded that each of his convictions qualified as a “specified offense against a minor” under the Adam Walsh Act. (Id. at 4.)
Proceeding to analyze the risk Mr. Giordano posed, the Service considered evidence that (1) Mrs. Giordano was not a minor and was close in age to Mr. Giordano, (2) she attested that he never hurt her, and (3) a psychological evaluation stated that Mr. Giordano had a low risk of causing harm. (Id. at 4-6.) The Service concluded that Mr. Giordano could not sustain his burden to show no risk because he failed to provide (1) police reports and court records so that the Service could evaluate the circumstances of his convictions, (2) original psychological evaluations, and (3) direct evidence indicating completion of sex offender-specific psychotherapy. (Id.) Thus, the Service denied the petition and subsequently denied the applications for employment authorization. (Am. Compl. ¶ 9.)
The Giordanos sued the Service, its Acting Director, and the Attorney General[2] under the APA, alleging that (1) the Adam Walsh Act is impermissibly retroactive, (2) the Act does not apply to their circumstances, (3) the Act is impermissibly retroactive (this count is repetitive of Count 1), (4) the “beyond a reasonable doubt” standard used by the Service is unlawful, (5) the Act violates the Fifth and Eighth Amendments, (6) the Act exceeds the powers of Congress, (7) the Service unlawfully failed to apply the categorical approach when adjudicating their applications, and (8) the denial of the employment authorization was unlawful. (Id. ¶¶ 10-25.)
The Government moved to dismiss. (Gov't Mot.) In response, the Giordanos cross-moved for summary judgment. (Pl. Mot.) The Government responded to their arguments but did not take issue with the permissibility of such a cross-motion. (DE 32.)
Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal quotation marks and citation omitted). In such a case, “[a] court can fully resolve any purely legal question on a motion to dismiss, there is no inherent barrier to reaching the merits at the 12(b)(6) stage, ” and “there is no real distinction in this context between the question presented on a 12(b)(6) motion and a motion for summary judgment.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); cf. 5 U.S.C. § 706(2) (). Accordingly, “[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and consistent with the APA standard of review.” Tomasi v. Township of Long Beach, 364 F.Supp.3d 376, 389 (D.N.J. 2019) (citation omitted), aff'd, 796 Fed.Appx. 766 (3d Cir. 2020). Because the plaintiffs have moved for summary judgment, and the Government does not oppose that procedure, I will treat this case as one presenting cross-motions for summary judgment. Neto v. Thompson, 506 F.Supp.3d 239, 244 (D.N.J. 2020).
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). “While summary judgment is the proper mechanism for APA cases . . ., the usual summary judgment standard does not apply in the sense that the district court does not need to determine whether there are disputed facts to resolve at trial since the administrative agency is the finder of fact.” Neto, 506 F.Supp.3d at 244 (quotation marks and citation omitted). Instead, my task is to review the administrative record and determine whether, as a matter of law, the Service's action complied with the APA. Id.
The APA empowers courts to review agency actions and set them aside if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Each “claim” by the Giordanos alleges a different way that the Service's actions here were unlawful. I address each in turn.
Counts 1 and 3 allege that the Adam Walsh Act should not apply to Mr. Giordano's convictions because they predate the passage of the Act, so that its application would be impermissibly retroactive. (Am. Compl. ¶¶ 11, 15.) “Retroactivity is not favored in the law, ” and a court may bar a statute's retroactive effect in an appropriate case. Francisco-Lopez v. Att'y Gen. 970 F.3d 431, 436 (3d Cir. 2020), as amended (May 15, 2020). To do so, a court must first determine whether a statute is indeed retroactive-i.e., whether it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Bakran, 894 F.3d at 567 (citation omitted). In Bakran, the Third Circuit held that the Adam Walsh Act is not impermissibly retroactive, because “the wrongful activity targeted by the statute is the potential future conduct” of applying for an immigration benefit. Id. In other words, the Act does not come into play until a person takes a specific post-enactment action. See Id. ...
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