Privett v. Sec'y, Dep't of Homeland Sec.

• Citation: 865 F.3d 375
• Decision Date: 26 July 2017
• Docket Number: No. 16-3243,16-3243
• Parties: Joseph PRIVETT, Plaintiff-Appellant, v. SECRETARY, DEPARTMENT OF HOMELAND SECURITY, et al., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

865 F.3d 375

Joseph PRIVETT, Plaintiff-Appellant,

v.SECRETARY, DEPARTMENT OF HOMELAND SECURITY, et al., Defendant-Appellee.

No. 16-3243

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2016

Decided and Filed: July 26, 2017

ARGUED: Nicklaus Misiti, LAW OFFICES OF NICKLAUS MISITI, PLLC, New York, New York, for Appellant. Yamileth G. Davila, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nicklaus Misiti, LAW OFFICES OF NICKLAUS MISITI, PLLC, New York, New York, for Appellant. Vinita B. Andrapalliyal, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: COLE, Chief Judge; BOGGS and SILER, Circuit Judges.

BOGGS, J., delivered the opinion of the court in which SILER, J., joined, and COLE, C.J., joined in part. COLE, C.J. (p. 384), delivered a separate opinion concurring in part and dissenting in part.

OPINION

BOGGS, Circuit Judge.

In 2013, Joseph Privett sought to bring his spouse, Doris, into the United States by filing an I-130 immigrant visa petition. Because Privett had been convicted of a sexual offense in 2004, however, the petition implicated the Adam Walsh Child Protection and Safety Act of 2006 ("AWA"), Pub. L. No. 109-248, 120 Stat. 587, which prevents American citizens "convicted of a specified offense against a minor" from filing petitions on behalf of immediate relatives (including spouses) that would permit those relatives to apply for an immigrant visa and Green Card unless the Secretary of Homeland Security ("Secretary") determines that the citizen "poses no risk to the alien" who is the subject of the petition. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). United States Citizenship and Immigration Services ("USCIS") denied Privett's petition after determining that he could pose a risk to his wife, and he then filed suit against the Secretary of Homeland Security and others, claiming violations of the Ex Post Facto Clause, the Fifth and Eighth Amendments, and the Administrative Procedure Act ("APA"). The district court granted the defendants' motion to dismiss on jurisdictional grounds, holding that the denial fell within the unreviewable discretion of the Secretary. We affirm in part and reverse in part.

I

The Immigration and Nationality Act ("INA") permits United States citizens to file petitions that establish their relationship with aliens who are immediate relatives, which in turn allow those relatives to seek an immigrant visa to enter the United States. See 8 U.S.C. § 1154(a)(1)(A)(i) ; 8 C.F.R. § 204.1(a)(1). If the facts stated in the petition are true and the alien is an immediate relative of the petitioner, then the Attorney General "shall ... approve the petition." 8 U.S.C. § 1154(b). These petitions may not, however, be filed by those citizens who have "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 ... is filed." 8 U.S.C. § 1154(a)(1)(A)(viii)(I). A "specified offense against a minor" is defined as including, among other conduct, "[c]riminal sexual conduct involving a minor" and "conduct that by its nature is a sex offense against a minor." 42 U.S.C. § 16911(7)(H), (I) ; see also 8 U.S.C. § 1154(a)(1)(A)(viii)(II).

On November 17, 2004, Joseph Privett pleaded guilty to and was convicted of two counts of sexual battery in violation of Ohio Rev. Code § 2907.03(A)(5). That law prohibits "sexual conduct with another, not the spouse of the offender, when ... [t]he offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person." Ohio Rev. Code § 2907.03(A)(5).

Nine years later, Privett, a United States citizen, married Doris, a Nigerian-born foreign citizen, and sought to have her join him in the United States as a lawful permanent resident. To that end, he filed a Form I-130 petition around the beginning of May 2013 to establish Doris as his spouse, which would trigger her qualification for a visa and eventually a Green Card. After waiting sixteen months for the petition to be resolved, Privett filed a Complaint for Mandamus Relief in September 2014. In December 2014, USCIS sent a Notice of Intent to Deny and requested additional evidence that would demonstrate that Privett was not convicted for a "specified offense against a minor" and "also requested ... evidence that demonstrate[d], beyond a reasonable doubt, that [he] pose[d] no risk to the safety and wellbeing of" his wife. On February 23, 2015, Privett provided documents responsive to USCIS's request, including a statement from his attorney and a transcript of his plea hearing. Nevertheless, USCIS rejected his petition on March 5, 2015, finding that "the evidence submitted fail[ed] to demonstrate that the particular crime for which [Privett was] convicted is not a ‘specified offense against a minor’ as defined by the Adam Walsh Act" and "failed to demonstrate that [Privett] pose[d] no risk to the beneficiary" of the petition. After USCIS moved to dismiss Privett's mandamus action, Privett amended his complaint to include claims of violations of the Ex Post Facto Clause, the Fifth and Eighth Amendments, and the APA, and that the AWA was impermissibly retroactive.

The district court dismissed the case for lack of jurisdiction, basing its ruling on a jurisdiction-stripping provision of the INA that states that "no court shall have jurisdiction to review" a decision of the Secretary of Homeland Security "the authority for which is specified under this subchapter to be in the discretion of the ... Secretary of Homeland Security." 8 U.S.C. § 1252(a)(2)(B). The Secretary, in turn, has delegated his discretion in immigration matters to USCIS. Dep't of Homeland Sec., Delegation No. 0150.1(II)(H) (June 5, 2003). Because the INA bars the petition of one 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" the petition was filed, the court found that the petition fell within the Secretary's (and USCIS's) discretion and therefore was beyond its jurisdiction. 8 U.S.C. § 1154(a)(1)(A)(viii)(I) (emphasis added). Privett timely appealed.

II

We review a decision on the existence of subject-matter jurisdiction de novo. Abu-Khaliel v. Gonzales , 436 F.3d 627, 630 (6th Cir. 2006). As noted above, Congress included a jurisdiction-stripping provision in the INA that withholds jurisdiction over decisions made by the Attorney General or Secretary of Homeland Security specifically designated as discretionary, absent an exception inapplicable here. 8 U.S.C. § 1252(a)(2)(B). Thus, if the entire denial of Privett's petition is encompassed within the Secretary's discretion, it would be outside of our jurisdiction.¹ See CDI Info. Servs., Inc. v. Reno , 278 F.3d 616, 620 (6th Cir. 2002).

Privett argues, however, that the clause at issue in 8 U.S.C. § 1154 should be understood as consisting of two parts: First, with the background rule of § 1154(a)(1)(A)(i)'s general permission for United States citizens to petition the Attorney General, it provides a nondiscretionary bar on petitions by citizens convicted of specified offenses against a minor. 8 U.S.C. § 1154(a)(1)(A)(viii)(I) ("Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor....") (emphasis added). Second, it provides a discretionary exception to that mandatory rule. Ibid. (enforcing the bar "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"). The Secretary contends in response that where the denial is based on a "determination that the petitioner did not show that he posed no risk to the intended beneficiary, the denial is wholly discretionary ... [and] this Court is without jurisdiction to review any of Privett's claims."

Section 1252's jurisdiction-stripping provision "prevents us from reexamining only discretionary decisions.... ‘[N]on-discretionary decisions,’ by contrast, are within our purview, even where they ‘underlie determinations that are ultimately discretionary.’ " Aburto-Rocha v. Mukasey , 535 F.3d 500, 502 (6th Cir. 2008) (alteration in original) (quoting Billeke-Tolosa v. Ashcroft , 385 F.3d 708, 711 (6th Cir. 2004) ). While the district court preferred to avoid "splinter[ing]" the language of § 1154(a)(2)(A)(viii), the provision is best understood as containing a mandatory rule with a discretionary exception. The function of the statutory mechanism becomes more apparent in practice. For example, if USCIS were to deny a petition filed by one convicted of tax evasion, but indisputably innocent of any offense against minors, on the basis that the petitioner posed a risk to the alien in question, USCIS could not argue that its decision rested within the scope of its discretion, which is limited to those occasions where a citizen has in fact been convicted of a specified offense against a minor. Otherwise, the grant of discretion would be a carte blanche with which USCIS could reject any and all petitions, regardless of the offenses committed by a petitioner. Instead, the language indicates that a conviction for a specified offense against a minor is a condition precedent to the Secretary's use of discretion and thus reviewable. See Hosseini v. Johnson , 826 F.3d 354, 358–59 (6th Cir. 2016).

This reasoning is in keeping with the decisions cited by the district court in support of its holding, as well as with our and other circuits' precedent—and the Secretary's position in a very similar case. Those lower-court decisions holding that there was no jurisdiction...