GIORDANO v. GARLAND
2:20-cv-07875
D.N.J.Jul 14, 2021Background
- Thomas (U.S. citizen) and Evelyn Giordano (Filipino citizen) married and applied for a family-based spousal visa and related employment authorization for Evelyn.
- Thomas had 1996 convictions for aggravated sexual assault, sexual assault, and endangering the welfare of children arising from sexual activity with his then-15-year-old daughter.
- Under the Adam Walsh Child Protection and Safety Act, citizens convicted of a "specified offense against a minor" cannot sponsor family-based visas unless the Secretary (or designee) in "sole and unreviewable discretion" finds they pose no risk.
- USCIS determined Thomas’s convictions were specified offenses, found his submitted evidence insufficient (requested police/court records, original psychological evaluations, proof of sex-offender-specific treatment), and denied the petition and employment authorization.
- The Giordanos sued under the APA and the Constitution raising retroactivity, statutory scope, evidentiary-standard, due process/Eighth Amendment, nondelegation, and employment-authorization claims; the government’s motion was treated as one for summary judgment and granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of Adam Walsh Act (Counts 1 & 3) | Act impermissibly retroactive as it applies to convictions that predate the Act | Act is triggered by the post-enactment act of applying for immigration benefits, so it is not retroactive | Court applied Bakran and held the Act is not retroactive; summary judgment for government |
| Applicability to consenting-adult spouse (Count 2) | Act should not bar citizens from petitioning for consenting adult spouses; statute was meant to protect children | Statutory text covers any citizen convicted of a specified offense; plain language governs | Court enforced the statute's plain terms and held it applies to Giordano; summary judgment for government |
| Evidentiary standard (Count 4) | USCIS’s "beyond a reasonable doubt" standard is unlawful and required notice-and-comment rulemaking; default is preponderance | Secretary has unreviewable discretion to set process and evidentiary standard under the Act | Court lacked jurisdiction under Bakran to review the Secretary's chosen evidentiary process; claim dismissed |
| Due process and Eighth Amendment (Count 5) | Act as applied violates Fifth Amendment procedural/substantive due process and the Eighth Amendment | Act does not infringe fundamental rights here; procedures provided were adequate; Act is regulatory not punitive | Court held due process was satisfied (notice, opportunity to present evidence, reasoned decision) and Eighth Amendment inapplicable because Act is not punishment; summary judgment for government |
| Constitutional powers and non-delegation (Count 6) | Act exceeds Congress's enumerated powers and unlawfully delegates broad discretion to the Executive | Immigration/naturalization clause supports Act; intelligible principle exists ("no risk" standard); exclusion is traditional executive authority | Court upheld Act as within Congress's immigration power and not violative of non-delegation; summary judgment for government |
| Employment authorization denial (Count 8) | Denial of employment authorization was unlawful | Employment authorization correctly denied because visa application was lawfully denied | Court held employment authorization denial proper as derivative of lawful visa denial; summary judgment for government |
Key Cases Cited
- Bakran v. Sec'y, U.S. Dep't of Homeland Sec., 894 F.3d 557 (3d Cir. 2018) (held Secretary’s no-risk determination is committed to unreviewable discretion and rejected retroactivity challenge)
- Privett v. Sec'y, Dep't of Homeland Sec., 865 F.3d 375 (6th Cir. 2017) (describes two-step inquiry: whether conviction is specified offense and then a no-risk determination)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (principles of statutory interpretation require giving statutory language its ordinary meaning)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (established balancing test for procedural due process)
- Gundy v. United States, 139 S. Ct. 2116 (2019) (plurality upheld broad delegations and explained intelligible-principle inquiry)
- Knauff v. Shaughnessy, 338 U.S. 537 (1950) (recognized strong executive authority over exclusion of aliens)
- Gebhardt v. Nielsen, 879 F.3d 980 (9th Cir. 2018) (procedural sufficiency where notice, opportunity to present evidence, and reasoned decision were provided)
- Bremer v. Johnson, 834 F.3d 925 (8th Cir. 2016) (addressed constitutional challenges to Adam Walsh Act in immigration context)