Roland v. U.S. Citizenship & Immigration Servs., 15-2529

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: THACKER, Circuit Judge
• Citation: 850 F.3d 625
• Parties: Robert S. ROLAND; Wan Hang Gloria Chan, Plaintiffs-Appellants, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; John F. Kelly, Secretary, United States Department of Homeland Security; Jefferson B. Sessions III, Attorney General of the United States; Leon Rodriguez, Director, United States Citizenship and Immigration Services; Denise Frazier, District Director, United States Citizenship and Immigration Services Atlanta Region; Leander Holston, Charlotte Field Office Director, United States Citizenship and Immigration Services; James Comey, Director, Federal Bureau of Investigation, Defendants-Appellees.
• Docket Number: No. 15-2529,15-2529
• Decision Date: 08 March 2017

850 F.3d 625

Robert S. ROLAND; Wan Hang Gloria Chan, Plaintiffs-Appellants,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; John F. Kelly, Secretary, United States Department of Homeland Security; Jefferson B. Sessions III, Attorney General of the United States; Leon Rodriguez, Director, United States Citizenship and Immigration Services; Denise Frazier, District Director, United States Citizenship and Immigration Services Atlanta Region; Leander Holston, Charlotte Field Office Director, United States Citizenship and Immigration Services; James Comey, Director, Federal Bureau of Investigation, Defendants-Appellees.

No. 15-2529

United States Court of Appeals, Fourth Circuit.

Argued: January 24, 2017
Decided: March 8, 2017

ARGUED: Andrew William Clopman, ANDREW W. CLOPMAN, P.A., Stuart, Florida, for Appellants. Katherine Elizabeth Mallo Goettel, UNITED STATES DEPARTMENT OF JUSTICE, Chicago, Illinois, for Appellees. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, William C. Peachey, Director, Elizabeth J. Stevens, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Before AGEE, KEENAN, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Agee and Judge Keenan joined.

THACKER, Circuit Judge:

Following the denial of his Form I-130 Petition for Alien Relative ("Form I-130 Petition" or "Petition"), which is used to petition for immediate relative status by American citizens on behalf of their alien spouses, Robert S. Roland and his wife Wan Hang Gloria Chan (collectively, "Appellants") brought this lawsuit in the District Court for the Western District of North Carolina against the United States Citizenship and Immigration Services ("USCIS") and related government officials (collectively, "Appellees"). As part of his Form I-130 Petition filed on behalf of his wife, Roland submitted documentation of his prior criminal convictions, which included sexual offenses against minors. Based on those convictions, the USCIS concluded that Roland posed a risk to his wife, the beneficiary of his Form I-130 Petition, and thus denied the Petition. Concluding that the USCIS acted within its unreviewable discretion, the district court granted summary judgment to the USCIS, determining it lacked subject matter

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jurisdiction per 8 U.S.C. § 1252(a)(2)(B)(ii).

On appeal, Appellants argue that because their claims involve legal and constitutional issues and they do not challenge the agency decision itself, the district court possessed jurisdiction. We disagree. The plain language of 8 U.S.C. § 1252(a)(2)(B)(ii) and our application of the same in Lee v. U.S. Citizenship & Immigration Servs. , 592 F.3d 612 (4th Cir. 2010), compel us to affirm.

I.

Roland is a United States citizen residing in North Carolina, and his wife, Chan, is a citizen of the United Kingdom. Chan entered the United States in 2007 pursuant to the Visa Waiver Program. The Visa Waiver Program permitted Appellant Chan to stay in the United States for 90 days subject to the relevant conditions under 8 U.S.C. § 1187(a)(1)–(12), which require that she be a national of a country that reciprocates immigration privileges to United States citizens and nationals; that she have a valid unexpired passport; and that she is not a safety threat to the United States, among other conditions. However, Appellant Chan stayed beyond the 90-day period. Appellants ultimately married in Florida on March 20, 2009.

In 1983, Roland was charged in Florida with one count of lewd and lascivious behavior, two counts of lewd and lascivious assault on a child under 16 years old, and one count of indecent exposure. He pled no contest to the indecent exposure count. He received a one year sentence of probation and was required to undergo out-patient counseling. Nearly a decade later, in 1994, Roland was again charged in Florida with two counts of lewd and lascivious assault on a child under 16 years old. He pled guilty to both counts and received a five year sentence of probation. He was also required to complete another counseling program and register as a sexual offender.

On January 11, 2011, Roland filed a Form I-130 Petition to obtain lawful permanent resident status for his wife. That Petition included Roland's criminal record, proof of his sex-offender counseling, and affidavits by individuals vouching for his character. Chan simultaneously filed a Form I-485 Application to Register Permanent Residence or Adjust Status ("Form I-485 Application"). Nine months later, the USCIS sent Roland a Request for Evidence and Notice of Intent to Deny the Form I-130 Petition. The USCIS noted that Roland was convicted of offenses which render him ineligible to petition on behalf of his wife because the Adam Walsh Child Protection and Safety Act ("AWA") prohibits United States citizens convicted of a "specified offense against a minor" from filing a Form I-130 Petition on behalf of a beneficiary. The sole exception to that prohibition is if the Secretary of the Department of Homeland Security ("Secretary") determines that the petitioning citizen poses "no risk" to the safety and well-being of the beneficiary.¹ The USCIS determined that Roland likely posed a risk to his wife, but nonetheless requested more information, including certified copies of Roland's police and court records, trial transcripts, and the terms and conditions of his sentences. Appellants timely responded with a copy of Roland's Notice of Termination of Supervised Release dated March 16, 2001, letters from Roland's mental health counselors, certificates regarding Chan's law enforcement career in

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Hong Kong, and affidavits by individuals attesting to Roland's good character.

Nonetheless, on January 13, 2014, the USCIS denied the Form I-130 Petition. It found that Roland failed to demonstrate beyond a reasonable doubt that he posed no risk to his wife's safety and well-being. The USCIS determined that Roland's convictions constituted specified offenses against a minor and that he failed to rebut that determination. The USCIS also...