AHMED BAKRAN, Appellant v. SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY; DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; ROBERT COWAN, Field Office Director, Lee‘s Summit, MO Field Office, United States Citizenship and Immigration Services; ATTORNEY GENERAL UNITED STATES OF AMERICA
No. 16-3440
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
July 5, 2018
PRECEDENTIAL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. No. 2:15-cv-00127) District Judge: Hon. John R. Padova. Argued: March 16, 2017
PRECEDENTIAL
Argued: March 16, 2017
Before: GREENAWAY, JR., SHWARTZ, Circuit Judges, and SIMANDLE, Senior District Judge*
(Opinion Filed: July 5, 2018)
Nicklaus J. Misiti [ARGUED]
Law Offices of Nicklaus Misiti, PLLC
40 Wall Street, 28th Floor
New York, NY 10005
Counsel for Appellant
Benjamin C. Mizer
William C. Peachey
Sarah S. Wilson [ARGUED]
United States Department of Justice
Office of Immigration Litigation
Room 6223
450 5th Street, N.W.
Washington, D.C. 20530
Counsel for Appellees
* Honorable Jerome B. Simandle, United States District Judge of the United States District Court for the District of New Jersey, sitting by designation. Judge Simandle assumed senior status after the case was argued before the panel.
SHWARTZ, Circuit Judge.
Ahmed Bakran appeals from the District Court‘s order granting summary judgment in favor of the Secretary of the United States Department of Homeland Security, the Director of the United States Citizenship and Immigration Services (the “USCIS“), and the Attorney General (“Defendants“) on Bakran‘s statutory and constitutional challenges to the Adam Walsh Child Protection and Safety Act of 2006,
The AWA restricts the ability of a United States citizen convicted of a sex offense to sponsor an immediate relative‘s immigration application. Bakran claims that certain protocols used to enforce the AWA violate the Administrative Procedures Act,
Bakran also asserts that the AWA violates his right to marriage and is impermissibly retroactive. The AWA does not infringe his marriage right but rather deprives him of an immigration benefit to which he has no constitutional right. Moreover, because the Act is aimed at providing prospective protection, it is not impermissibly
I
A
Before 2006, the Immigration and Nationality Act,
This provision is intended to effectuate the AWA‘s stated purposes: “[t]o protect children from sexual exploitation and violent crime, [and] to prevent child abuse and child pornography.” AWA,
The USCIS issued two memoranda relevant to our consideration of the AWA. The first, written by Michael Aytes, Associate Director of Domestic Operations of the USCIS (the “Aytes Memo“), sets forth the burden of proof a petitioner must meet to show that he or she poses no risk to his or her alien relative. Specifically, the memo interpreted the “no risk” requirement to mean that to avoid denial of a petition, “a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any 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 beneficiar[ies].” U.S. Citizenship and Immigration Services, Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006 (Feb. 8, 2007), available at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf. The second, written by Donald Neufeld, Acting Associate Director of Domestic Operations of the USCIS (the “Neufeld Memo“), states that “given the nature and severity of many of the underlying offenses and the intent of the [AWA], approval recommendations should be rare.” U.S. Citizenship and Immigration Services, Transmittal of SOP for Adjudication of Family-Based Petitions Under the Adam Walsh Child Protection and Safety Act of 2006 (Sept. 24, 2008) (emphasis omitted).
B
Bakran is a United States citizen. In 2004, he was convicted of aggravated indecent
In 2012, Bakran married Zara Qazi, an adult Indian national. He then sought lawful permanent resident status for her by filing a Form I-130, Petition for Alien Relative,
Bakran filed suit in the United States District Court for the Eastern District of Pennsylvania against Defendants based on the denial of his petition. He alleged the denial violated the Constitution and APA. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that the District Court lacked jurisdiction to review the Secretary‘s determination of Bakran‘s petition. The District Court denied the motion, reasoning that Bakran “does not question the Secretary‘s . . . ‘unreviewable discretion‘” concerning the decision about him. Bakran v. Johnson, CIV. A. No. 15-127, 2015 WL 3631746, at *4 (E.D. Pa. June 11, 2015). Instead, according to the District Court, Bakran challenges the Secretary‘s “non-discretionary threshold determination” and argues that his inability to “file an I-130 petition on his wife‘s behalf . . . violates his constitutional rights.” Id. The District Court held that Bakran‘s APA challenge did not seek review “of the discretionary ‘no risk’ assessment or even the substance of the rules adopted regarding that assessment.” Id. The Court therefore concluded that it had jurisdiction to review all of Bakran‘s claims.
Defendants then moved for summary judgment, which the District Court granted. On the APA claims, the Court ruled that (1) the agency‘s adoption of a beyond-any-reasonable-doubt standard was not ultra vires2 under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), Bakran v. Johnson, 192 F. Supp. 3d 585, 601 (E.D. Pa. 2016); (2) the assessment of risk after filing and
presumption of denial, per the Neufeld Memo, were not arbitrary and capricious, id. at 598-99; and (3) the Aytes and Neufeld Memos qualify as “interpretive rules” that do not require notice-and-comment rule-making,” id. at 599-600. On the constitutional claims, the Court concluded that the AWA was neither punitive nor impermissibly retroactive, id. at 594-95, and Bakran‘s due process claim failed because the AWA does not infringe his fundamental
II3
A
We first address whether we have subject matter jurisdiction over Bakran‘s claim that the Secretary violated the APA by imposing a beyond-any-reasonable-doubt burden of proof and a presumption of denial of AWA applications, as expressed in the Aytes and Neufeld Memos.
District courts have jurisdiction to review agency action under
The issue here is whether the two procedures set forth in the Aytes and Neufeld Memos are themselves reviewable. Bakran argues that the Secretary, through the USCIS, acted ultra vires in imposing upon citizen petitioners a requirement that they prove beyond any reasonable doubt that they pose no risk to the alien beneficiary and by informing field officers that granting permission to file petitions on the beneficiaries’ behalf should be rare.4 Our authority to review these claims depends on whether the standard of proof and rareness directive are part of the Secretary‘s statutorily-granted unreviewable discretion.
The INA and Alaka instruct that courts lack jurisdiction to review decisions that are within the Secretary‘s sole discretion.
deciding the type of proof required, the evidentiary standard a petitioner must satisfy, and whether the petitioner‘s evidence meets that standard. Because these considerations are inextricably intertwined with how and whether to exercise that discretion, and
the ultimate decision that is discretionary and the steps that are a necessary and ancillary part of reaching the ultimate decision“); cf. Jilin Pharm. USA v. Chertoff, 447 F.3d 196, 204 (3d Cir. 2006) (observing that an agency‘s determination of whether good cause to revoke a visa exists in a particular case also includes “what constitutes such cause in the first place,” and that the good cause determination is within the agency‘s unreviewable discretion (citation and internal quotation mark omitted)).
For these reasons, federal courts lack jurisdiction to review the burden of proof and rareness directives that guide the Secretary‘s determination concerning whether a petitioning sex offender poses no risk to the beneficiary of his or her
Bakran‘s APA claims, and we will therefore vacate the order granting summary judgment in favor of Defendants on Bakran‘s APA claims and remand with a directive that the District Court dismiss these claims.
B
1
Bakran also makes two challenges to the AWA: the AWA violates his substantive due process right to marry,6 and the AWA is impermissibly retroactive. Unlike Bakran‘s APA challenges to the Secretary‘s actions, we have jurisdiction to review these challenges to the statute. See Johnson v. Robison, 415 U.S. 361, 367 (1974); Kreschollek v. S. Stevedoring Co., 78 F.3d 868, 873-74 (3d Cir. 1996).
2
Bakran asserts that by barring him from petitioning to adjust his foreign spouse‘s immigration status, the AWA infringes his right to marry because it deprives him of benefits
flowing from his marriage, including the ability to live with his spouse in the United States. The due process guarantees of the Fifth Amendment “include a substantive component, which forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 301-02 (1993) (emphasis omitted). The right to marry is one such fundamental right. Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015); Loving v. Virginia, 388 U.S. 1, 12 (1967).
The AWA‘s restriction on a convicted sex offender‘s ability to sponsor his spouse‘s immigration petition does not infringe the fundamental right to marry. Citizens like Bakran are not barred from marrying, and in fact Bakran has married. Recognizing this, Bakran asserts that the AWA interferes with his ability to live in the United States with his foreign spouse. Thus, he asserts that he has a constitutional right to sponsor his foreign spouse‘s immigration application. His assertion fails for several reasons.
remain in the country” (alteration in original ) (quoting Almario v. Att‘y Gen., 872 F.2d 147, 151 (6th Cir. 1989))); Burrafato v. U.S. Dep‘t of State, 523 F.2d 554, 555 (2d Cir. 1975) (holding that a citizen spouse has no constitutional right to seek to bar the deportation of an alien spouse); Silverman v. Rogers, 437 F.2d 102, 107 (1st Cir. 1970) (same); Swartz v. Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (same); cf. Moralez-Izquierdo v. Dep‘t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010) (concluding that the denial of adjustment of status did not violate any of the petitioner‘s or his family‘s substantive rights, where the petitioner argued that the denial violated their right to live together as a family in the United States), abrogated in part on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).7
Second, Bakran‘s sex offense conviction impacts his access to an immigration benefit, which is not limited to married persons. Put differently, unlike the benefits identified in Obergefell that are granted only to married couples, 135 S. Ct. at 2599-2601, the availability of this immigration benefit is not exclusively contingent on marriage because parents and children may seek the benefit. Thus, this immigration benefit does not fall within the types of marriage benefits that the Supreme Court identified that serve the goals marriage advances.
Third, Bakran is denied access to this immigration benefit because of his prior sex conviction. Limiting the rights of convicted felons has historical roots. See, e.g.,
offenders may have in their home addresses was substantially outweighed by the state‘s interest in protecting the public). Thus, once one sustains a felony conviction, consequences follow, including the loss of certain rights and government benefits. Bakran‘s loss of his ability to sponsor his spouse may impede his ability to assist her to adjust her status, but this impediment is no more burdensome than other limitations placed on convicted felons’ constitutional rights.
In short, while the AWA restricts Bakran‘s access to certain immigration benefits because of his prior conviction, it does not deprive Bakran of his fundamental right to marry or a benefit uniquely available to married persons. As a result, the District Court correctly entered judgment in favor of Defendants on this claim.
3
Bakran‘s second argument attacking the AWA also lacks merit. In his complaint, Bakran asserted that the AWA violates the Ex Post Facto Clause,
AWA is impermissibly retroactive because it attaches new legal consequences to his prior conviction.
When examining retroactivity, we ask “whether Congress has expressly provided that the statute should be retroactive.” Atkinson v. Att‘y Gen. of U.S., 479 F.3d 222, 226 (3d Cir. 2007) (citing Landgraf, 511 U.S. at 280). “If the answer is yes, our inquiry is over.” Id. If the statute does not have any express statement of retroactivity, then we must determine whether “normal rules of statutory construction unequivocally remove the possibility of retroactivity.” Id. (emphasis omitted). If there is no express command or intent to apply the statute only prospectively, then we must determine whether applying the statute to events predating its enactment would have a retroactive effect. Landgraf, 511 U.S. at 280; Atkinson, 479 F.3d at 226. An act has retroactive effect if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Atkinson, 479 F.3d at 227 (quoting INS v. St. Cyr, 533 U.S. 289, 321 (2001)). If the statute has a retroactive effect, “we employ the strong presumption against applying such a statute retroactively.” Id. at 226 (citation and internal quotation marks omitted).
The AWA neither expressly provides that it should apply retroactively nor unequivocally removes the possibility of it being applied retroactively. It does, however, suggest that Congress intended for past events to impact a citizen‘s ability to invoke benefits under the INA. For instance,
The statute‘s focus, however, is on “dangers that arise postenactment.” Vartelas v. Holder, 566 U.S. 257, 271 n.7 (2012). “[S]pecifically,” the AWA addresses “the dangers that convicted sex offenders may pose to new immigrants.” Bremer, 834 F.3d at 932; see also, e.g., Gebhardt, 879 F.3d at 986 (concluding that Congress enacted the AWA “[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 . . . child crime victims” (quoting AWA,
III
For the foregoing reasons, we will affirm in part, with respect to Bakran‘s constitutional claims, and we will vacate in part, with respect to his APA claims, and