Matter of Tatiana ACEIJAS-QUIROZ, Beneficiary of a visa petition filed by Aubrey Edward Haverly, Petitioner
Interim Decision #3800
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 20, 2014
26 I&N Dec. 294
FOR PETITIONER: Dan R. Larsson, Esquire, Bend, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Margaret A. Rosenast, Associate Counsel
AMICUS CURIAE: American Immigration Lawyers Association1
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER, Board Member. Dissenting Opinion: MANN, Board Member.
GUENDELSBERGER, Board Member:
In a decision dated July 23, 2010, the Field Office Director (“Director“) denied the Petition for Alien Relative (Form I-130) filed by the United States citizen petitioner on behalf of the beneficiary as his spouse. The Director concluded that the petitioner is ineligible to have a visa petition approved under the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act“). The petitioner has appealed from that decision.2 The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The petitioner filed a visa petition on February 24, 2008, to accord his wife immediate relative status under section 201(b)(2)(A)(i) of the
On June 9, 2009, the petitioner replied with additional documents and arguments. After considering those submissions, the Director denied the visa petition, concluding that the petitioner‘s offenses qualified as “specified offense[s] against a minor” under the Adam Walsh Act and that the petitioner had failed to show “beyond any reasonable doubt” that he poses no risk to the safety and well-being of the beneficiary to overcome his statutory ineligibility.
II. ADAM WALSH ACT
The stated purpose of the Adam Walsh Act is “[t]o protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” Adam Walsh Act, 120 Stat. at 587. The issues raised in this appeal involve title IV, “Immigration Law Reforms to Prevent Sex Offenders from Abusing Children.”3 Specifically, section 402(a)(2) of the Adam Walsh Act, 120 Stat. at 622, amended section 204(a)(1) of the Act,
III. ISSUES
The petitioner does not challenge the determination that he has been convicted of a “specified offense against a minor,” as defined by section 111(7) of the Adam Walsh Act, 120 Stat. at 592 (codified as amended at
The parties disagree regarding the appropriate standard of proof to be applied to this “no risk” determination. The petitioner argues that the preponderance of the evidence standard should be applied and that the Director erred in requiring proof “beyond a reasonable doubt” that he poses no risk to the beneficiary. The parties also disagree on the threshold issue of the Board‘s jurisdiction to address the appropriate standard of proof to be applied by the Director in making this determination. As discussed below, we conclude that Congress has entrusted the “no risk” determination entirely to the Department of Homeland Security (“DHS“), including the standard of proof to be applied.
IV. ANALYSIS
The petitioner contends that the “beyond a reasonable doubt” standard is typically reserved for criminal prosecutions where the Government must meet a heavy burden in order to protect liberty interests of individuals charged with criminal conduct. Noting that the long-established standard of proof in civil cases and visa petition proceedings is proof by a preponderance of the evidence, the petitioner points out that no statutory or regulatory provision explicitly empowers the USCIS to raise the standard of proof in Adam Walsh Act cases to require the petitioner to prove beyond a reasonable doubt that there is no risk to the beneficiary.5 He suggests that
The parties agree that the Board has jurisdiction in Adam Walsh Act cases to review determinations regarding general eligibility requirements, including whether the required relationship has been established and whether an offense qualifies as a “specified offense against a minor.” They disagree, however, as to whether Congress’ placement of the “no risk” determination in the DHS‘s “sole and unreviewable discretion” precludes us from reviewing such questions as the appropriate standard of proof to be applied.
As a threshold matter then, we must determine the extent of our jurisdiction over these issues. The Board has limited jurisdiction to review certain decisions of officers of the DHS under the authority delegated by the Attorney General.
In considering our jurisdiction, we begin with the language of the Adam Walsh Act. As with all cases involving statutory construction, we assume that the legislative purpose is expressed by the ordinary meaning of the words Congress chose to use. Matter of A-A-, 20 I&N Dec. 492, 495 (BIA 1992) (citing INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984)). When the language of the controlling statute is plain, there is no issue of interpretation because we
The provision relevant to the Board‘s jurisdiction in this case is section 204(a)(1)(A)(viii)(I) of the Act, which states the following:
Clause (i) [specifying a citizen‘s eligibility to file for a visa petition on behalf of a spouse or child] shall not apply to a citizen of the United States 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 a petition described in clause (i) is filed.
(Emphasis added.)
In its brief, amicus asserts that Congress’ assignment of “sole and unreviewable discretion” was intended to shield the “no risk” determination from judicial review, while leaving in place the Board‘s authority to review de novo all issues in family-based visa petition appeals, including the “no risk” determination. We disagree. First, when Congress has acted to limit judicial review under the Act, it has expressly referred to court jurisdiction, stating that “no court shall have jurisdiction to review” certain determinations, orders, decisions, judgments, or actions. See, e.g., sections 242(a)(2)(A)-(C) of the Act,
Additionally, when Congress has used the “sole and unreviewable discretion” language in other situations, it has done so in order to vest ultimate responsibility for the determination in one Federal agency in situations where there might otherwise be overlapping or shared agency responsibility. For example, in section 212(d)(3)(B) of the Act,
The petitioner argues that even if Congress’ assignment of the “no risk” determination to the DHS is construed as precluding the Board from reviewing the discretionary aspects of that determination, it nevertheless leaves jurisdiction with the Board to review legal issues underlying the exercise of discretion. We find that the term “sole and unreviewable discretion” plainly reflects Congress’ intent that the DHS should have the sole authority to establish a framework for USCIS adjudicators to use in making the “no risk” discretionary determination in individual cases. Establishment of such a framework is essential to the uniform application of the law to the individual determinations of risk that will be made by USCIS officials. The application of the appropriate standard of proof is part and parcel of the ultimate exercise of discretion delegated to the DHS. There is no precedent for the Board to review any part of a discretionary determination by the USCIS in visa petition proceedings, so this is not a departure from current standards. For this reason, we find that the standard of proof necessarily falls within the scope of the DHS‘s sole responsibility for the “no risk” determination.
Since its creation in 2003, the DHS has existed separate and apart from the Department of Justice.6 Although the DHS and Department of Justice continue to have shared responsibility in immigration-related matters, Congress has delineated authority and responsibility between the agencies, with certain functions now accorded to the DHS as a separate and distinct agency from the Department of Justice. Compare section 103(a)(1) of the Act,
In passing the Adam Walsh Act, Congress indicated the high importance it placed on protecting children from sexual exploitation and violent crime. A Senate sponsor of the Adam Walsh Act described it as “the most comprehensive child crimes and protection bill in our Nation‘s
The petitioner and amicus rely on Federal court cases that draw a distinction between discretionary determinations and purely legal issues when applying jurisdictional limits on review of agency decisions. See, e.g., Al Ramahi v. Holder, 725 F.3d 1133, 1138 n.2 (9th Cir. 2013) (collecting cases). However, this distinction is based on statutory language that explicitly preserves court review of legal issues when judicial review authority has otherwise been eliminated. See section 242(a)(2)(D) of the Act (mandating that specified provisions eliminating judicial review shall not be “construed as precluding review of constitutional claims or questions of law raised upon a petition for review“).
There is no comparable provision in the Adam Walsh Act that reserves purely legal issues underlying the DHS‘s “no risk” determination for review by the Board. Had Congress intended to make such a distinction in the Adam Walsh Act, it could have specified that the “no risk” determination was delegated to the DHS only in regard to the discretionary aspects of that determination. Were such a distinction intended, however, there would be many other legal challenges to “no risk” determinations, including whether the Director considered all the evidence, the legal analysis was sufficient, and the evidence ultimately met the requisite burden of proof. Such a bifurcated approach to Board review of the “no risk” determination would conflict with Congress’ plain language delegating this determination to the DHS‘s “sole and unreviewable discretion.”
We do not have review authority comparable to that exercised by the courts under the
We conclude by noting that the petitioner and amicus have raised significant issues concerning the application of a “beyond a reasonable
If we had jurisdiction to determine the standard of proof for the “no risk” determination, we would find it appropriate to consider such matters as the evidentiary difficulties involved and the individual and governmental interests at stake. However, as discussed above, we lack jurisdiction to resolve this issue under our limited review authority.
To the extent that the petitioner has raised arguments challenging the constitutionality of the Adam Walsh Act provision at issue in this case, we may not, as a general matter, entertain constitutional challenges to provisions of the immigration laws. See Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985); Matter of Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997).
Accordingly, the petitioner‘s appeal will be dismissed.
ORDER: The appeal is dismissed.
DISSENTING OPINION: Ana M. Mann, Board Member
I respectfully dissent.
I would hold that the Board retains jurisdiction to review the legal standard applied by the Secretary of Homeland Security to the “no risk” determination. The term “sole and unreviewable discretion” reflects Congress’ intent that the Field Office Director (“Director“) should have the sole authority to review the petitioner‘s evidence and to make a binding discretionary determination that the petitioner poses “no risk” to the beneficiary. However, the proper evidentiary standard to be applied is purely a question of law that is within our expertise to decide. It is also a
The Federal regulations explicitly provide that “[t]he Board may review all questions arising in appeals from decisions issued by Service officers de novo.”
The United States Citizenship and Immigration Services (“USCIS“) has employed the standard of “beyond a reasonable doubt,” which is neither authorized under the Adam Walsh Act nor the Immigration and Nationality Act. The USCIS has not implemented regulations interpreting the Adam Walsh Act. Rather, it simply states that based on the nature of the offenses to which the Adam Walsh Act relates and the potential risk of harm to the intended beneficiaries, it will interpret the “no risk” language of the statute to require a higher level of evidence than that required in general visa petition cases like marriage fraud cases. While I agree with the importance of the interests at stake in these cases, the Secretary‘s use of this standard of proof goes beyond the express terms of the Immigration and Nationality Act and the Adam Walsh Act.
In section 402(a) of the Adam Walsh Act, 120 Stat. at 622-23, Congress imposed a heavy burden on petitioners to prove that they have not been convicted of a “specified offense against a minor” and, if they fail to meet that burden, to prove that they would pose no risk to the beneficiary in order to merit a favorable exercise of the Secretary‘s discretion. These statutory hurdles are substantial for a petitioner to surmount. Thus, the legitimate aims of the Adam Walsh Act would not necessarily be furthered by imposing the kind of burden of proof usually reserved for the Government to meet in criminal matters.
These examples involve allegations of fraud that can only be rebutted with “clear and convincing” evidence that the relationship is bona fide. See, e.g., Matter of Patel, 19 I&N Dec. 774, 782-83 (BIA 1988). In marriage fraud cases, the standard of “clear and convincing” evidence is actually explicit in the statute at section 204(a)(2)(A)(ii) of the Act,
Based on the lack of explicit statutory or regulatory authority for the heightened standard, I would find that “beyond a reasonable doubt” is not an appropriate standard to apply in these cases. I further believe that we can review whether the Director fully considered and evaluated all of the evidence and clearly set forth the basis for denial of the visa petition. See Memorandum from Michael Aytes, Assoc. Dir., Domestic Operations, to USCIS officials, at 7 (Feb. 8, 2007) (stating that the adjudicator must clearly articulate the factual basis for the determination), available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf; see also Whetstone v. INS, 561 F.2d 1303, 1306 (9th Cir. 1977).
Notes
To avoid denial of a petition or the revocation of a prior approval, a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and other relevant evidence that clearly demonstrates, beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary(ies).
Memorandum from Michael Aytes, Assoc. Dir., Domestic Operations, to USCIS officials, at 5 (Feb. 8, 2007) (emphasis added), available at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf.