Privett v. Secretary, Department of Homeland Security
865 F.3d 375
6th Cir.2017Background
- Joseph Privett, a U.S. citizen, pleaded guilty in 2004 to two counts of sexual battery under Ohio Rev. Code § 2907.03(A)(5).
- In 2013 Privett filed an I-130 petition to sponsor his Nigerian-born wife; USCIS issued a Notice of Intent to Deny, requested evidence, and ultimately denied the petition under the Adam Walsh Act (AWA) as a "specified offense against a minor" and for failure to show he "poses no risk" to the beneficiary.
- Privett sued the Secretary of Homeland Security and others raising Ex Post Facto, Fifth and Eighth Amendment, APA, and retroactivity claims and sought mandamus; the district court dismissed for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B).
- On appeal the Sixth Circuit held it retained jurisdiction to decide the predicate legal question whether Privett’s conviction qualifies as a "specified offense against a minor," but lacked jurisdiction to review USCIS’s discretionary "poses no risk" determination or constitutional/retroactivity claims to the extent they required reviewing the Secretary’s discretionary denial.
- The panel adopted a circumstance‑specific approach (not categorical) for determining whether a prior conviction involved a minor under 42 U.S.C. § 16911(7), remanding for factual development on the victim’s age.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether courts have jurisdiction to decide if Privett’s conviction is a "specified offense against a minor" under the AWA | Privett: the question is a legal predicate and non‑discretionary; courts can review it | DHS: the I-130 denial fell within the Secretary’s "sole and unreviewable discretion," barring review | Court: Jurisdiction exists to decide the predicate legal question; reverse district court on this point |
| Whether courts can review USCIS’s "poses no risk" beyond‑a‑reasonable‑doubt standard | Privett: the standard is improper, overly stringent, and reviewable as legal error | DHS: standard and its application are part of Secretary’s unreviewable discretion | Court: Lack of jurisdiction—standard and its application are discretionary and unreviewable |
| Whether constitutional and retroactivity claims are reviewable | Privett: due process and retroactivity claims are distinct legal claims and reviewable | DHS: adjudicating these claims requires reviewing the Secretary’s discretionary decision, so §1252 bars review | Court: Lacks jurisdiction over these claims insofar as they require reviewing the Secretary’s discretionary denial; dismisses them |
| Proper approach (categorical vs. circumstance‑specific) for determining if prior conviction involved a minor | Privett: categorical approach required because conviction is age‑neutral | DHS: circumstance‑specific approach appropriate; look to underlying facts | Court: Adopted circumstance‑specific approach; remanded for factfinding on victim’s age |
Key Cases Cited
- Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir.) (standard of review for jurisdictional questions)
- CDI Info. Servs., Inc. v. Reno, 278 F.3d 616 (6th Cir.) (scope of §1252(a)(2)(B) and discretionary decisions)
- Aburto-Rocha v. Mukasey, 535 F.3d 500 (6th Cir.) (distinguishing discretionary vs. non‑discretionary decisions)
- Billeke-Tolosa v. Ashcroft, 385 F.3d 708 (6th Cir.) (same)
- Johns v. Holder, 678 F.3d 404 (6th Cir.) (courts may review predicate legal issues underlying discretionary relief)
- Hosseini v. Johnson, 826 F.3d 354 (6th Cir.) (existence of conditions that trigger discretionary relief is reviewable)
- Bremer v. Johnson, 834 F.3d 925 (8th Cir.) (district courts have jurisdiction over predicate legal questions under AWA)
- Roland v. U.S. Citizenship & Immigration Servs., 850 F.3d 625 (4th Cir.) (analysis of jurisdictional limits under §1252)
- Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir.) (interpreting scope of §1252 jurisdictional carveouts)
- United States v. Hill, 820 F.3d 1003 (8th Cir.) (circumstance‑specific approach to victim’s age under SORNA)
- United States v. Price, 777 F.3d 700 (4th Cir.) (same)
- United States v. Dodge, 597 F.3d 1347 (11th Cir.) (same)
- United States v. Mi Kyung Byun, 539 F.3d 982 (9th Cir.) (same)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (text suggesting categorical inquiry but used to interpret statutory language)
- DeMarco v. United States, 415 U.S. 449 (1974) (appellate courts should not resolve factual disputes in first instance)