Richard Gebhardt v. Elaine Duke
879 F.3d 980
9th Cir.2018Background
- In 2000 Richard Gebhardt was convicted in California of lewd and lascivious conduct with a child under 14. He served three years.
- Gebhardt, a U.S. citizen, filed I-130 petitions in 2005 for his non-citizen wife and her three children; USCIS initially approved them in 2006.
- After the Adam Walsh Act took effect (July 27, 2006), a later background check uncovered Gebhardt’s conviction; USCIS issued a notice of intent to revoke, sought evidence that he posed “no risk,” and ultimately revoked approval.
- Gebhardt submitted extensive evidence (affidavits, psychosexual evaluation); appeals to the BIA were dismissed for lack of jurisdiction; new I-130 petitions were denied in 2010.
- Gebhardt sued alleging statutory and constitutional violations; the district court dismissed for lack of subject-matter jurisdiction, and the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Adam Walsh Act applies to petitions filed before its effective date but pending adjudication | Adam Walsh should not apply to petitions already filed before the Act took effect | Act governs petitions filed but not yet adjudicated because Congress intended to bar approvals to convicted persons, not the physical filing of forms | Applies to pending, not-yet-adjudicated petitions; USCIS applied Act correctly |
| Whether applying the Act here violates the Ex Post Facto Clause | Application is retroactive and punitive because Gebhardt’s offense predated the Act | Statute is civil and preventative, not punitive; purpose is child protection and prevention of access | No Ex Post Facto violation: Act is civil in purpose and not so punitive in effect |
| Whether courts may review USCIS standards (e.g., "beyond any reasonable doubt," presumed denial, notice-and-comment, ultra vires) used to implement the “no risk” determination | USCIS used unlawful/adopted improper standards and procedures and failed to follow rulemaking | Clause grants Secretary “sole and unreviewable discretion”; INA bars review of discretionary decisions | Lack of jurisdiction: challenges attack the Secretary’s discretionary adjudication standards and are unreviewable |
| Whether Plaintiff stated colorable constitutional claims (substantive and procedural due process) | Denial infringes family integrity (substantive) and USCIS procedures denied due process (procedural) | Congress has plenary immigration power; Gebhardt received notice and opportunity to submit evidence; procedures were adequate | Constitutional claims not colorable: substantive due process defeated by plenary immigration power; procedural due process failed because Gebhardt received meaningful notice and opportunity |
Key Cases Cited
- Roland v. USCIS, 850 F.3d 625 (4th Cir. 2017) (USCIS has sole, unreviewable discretion to find “no risk”)
- Privett v. Secretary, Dep’t of Homeland Sec., 865 F.3d 375 (6th Cir. 2017) (courts may decide whether Adam Walsh Act applies to an individual but not the Secretary’s discretionary risk determination)
- Bremer v. Johnson, 834 F.3d 925 (8th Cir. 2016) (grant of “sole and unreviewable discretion” precludes review of no-risk determinations)
- Tapia v. Gonzales, 430 F.3d 997 (9th Cir. 2005) (courts retain jurisdiction over predicate legal questions distinct from discretionary decisions)
- Smith v. Doe, 538 U.S. 84 (2003) (two-step Ex Post Facto analysis: determine civil vs punitive and whether effects negate civil intent)
- Clark v. Ryan, 836 F.3d 1013 (9th Cir. 2016) (factors to assess whether a statutory scheme is punitive)
- Ortiz v. Meissner, 179 F.3d 718 (9th Cir. 1999) (lack of jurisdiction to review agency interpretation/application of substantive eligibility criteria)
- Califano v. Sanders, 430 U.S. 99 (1977) (courts should hesitate before reading statutes to bar review of constitutional claims)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due process requires opportunity to be heard at a meaningful time and manner)
- Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076 (9th Cir. 2010) (family interests do not override Congress’s plenary immigration power)
- Torres-Aguilar v. INS, 246 F.3d 1267 (9th Cir. 2001) (jurisdiction requires at least a colorable constitutional claim)