Ryan Castaneira v. Kristi NoemRyan Castaneira v. Kristi Noem
Ryan Castaneira, pro se, argued the cause and filed the briefs for appellant.
Cameron Beach, Student Counsel, appointed by the court, argued the cause as amicus curiae in support of appellant. With her on the briefs were J. Scott Ballenger, Lori Alvino McGill, and Catherine E. Stetson, appointed by the court, and Lauren Emmerich and Benjamin Leonard, Student Counsel.
Jordan K. Hummel, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Brett A. Shumate, Acting Assistant Attorney General, Civil Division.
Before: SRINIVASAN, Chief Judge, WILKINS, Circuit Judge, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
EDWARDS, Senior Circuit Judge: Under the Immigration and Nationality Act, any United States citizen may file а “Form I-130” petition with the United States Citizenship and Immigration Services (“USCIS“) to request that the Attorney General recognize a foreign national family member, like a spouse or child, as an “immediate relative.”
In 2019, Ryan Castaneira, the Appellant in this case, filed a Form I-130 petition for his spouse, a Mexican national. USCIS sent Appellant a Notice of Intent to Deny because he had been convicted of crimes in Georgia that appeared to qualify as “special offenses against a minor” under the Adam Walsh Act. USCIS told Castaneira that, to succeed with his Form I-130 petition, he would need to prove “beyond any reasonable doubt” that he posed “no risk” to his wife. In his response to USCIS, Appellant claimed that the agency could not deny his petition on the grounds asserted because his prior convictions involved an undercover officer, not a minor, and thus could not have constituted an offense “against a minor” under the statute.
With USCIS‘s final decision still pending, Appellant filed a pro se complaint in the District Court, seeking injunctive and declaratory relief, challenging the agency‘s use of the beyond-any-reasonable-doubt standard for adjudicating his Form I-130 petition, and requesting a judgment declaring the Adam Walsh Act inapplicable to his convictions. After USCIS issued its final decision, Appellant filed an amended complaint with the District Court.
Appellant‘s amended complaint advanced the following principal contentions: (1) in applying a beyond-any-reasonable-doubt standard, USCIS failed to follow its own binding precedent; (2) his prior convictions do not qualify as “specified offense[s] against a minor” under the Adam Walsh Act; and (3) USCIS violated the Administrative Procedure Act (“APA“) in
The District Court rejected Appellant‘s contentions. It held that the Act‘s definition of offenses against a minor covers the conduct underlying Appellant‘s prior convictions, because it “by its nature” constituted an “offense against a minor.” Castaneira v. Mayorkas, 682 F. Supp. 3d 19, 30 (D.D.C. 2023) (quoting
We affirm the District Court‘s ruling in part. Appellant‘s prior convictions are covered by the applicable statutory definition of “specified offense against a minor” and his I-130 petition thus fell within the Act‘s scope. But, while USCIS has unreviewable discretion in making the “no risk” determination, the agency does not dispute that it has the authority to cabin this grant of discretion by adopting an evidentiary standard less stringent than beyond a reasonable doubt to govern the processing of Form I-130 petitions. If USCIS chooses to tie its own hands through binding agency precedent, and then departs from the standard it has adopted, such departure would be reviewable under the APA.
Because neither the District Court nor the agency has addressed whether Chawathe or any other agency decision purports to establish a controlling standard for adjudicating Form I-130 petitions under the Adam Walsh Act, and whether that standard was in fact violated by USCIS in adopting the beyond-any-reasonable-doubt standard in the Notice it sent to Appellant, we vacate the District Court‘s jurisdictional ruling and remand the case for further proceedings.
I. BACKGROUND
A. The Adam Walsh Act
As outlined above, under the Immigration and Naturalization Act (“INA“), if a U.S. citizen wishes to obtain permanent residence for an immediate alien relative, he or she can file a Form I-130 petition with USCIS.
In 2006, Congress enacted the Adam Walsh Act to, inter alia, “protect children from sexual exploitation” and “promote Internet safety” for childrеn.
If the U.S. citizen petitioner is found to have been convicted of any of the enumerated categories of offenses, he is then foreclosed from petitioning for immigration benefits “unless the Secretary of Homeland Security, in the Secretary‘s sole and unreviewable discretion, determines that the citizen poses no risk” to the alien beneficiary.
In leaving for the agency to determine whether the petitioner poses “no risk” to the alien beneficiary, the AWA does not specify how that determination is to be made, including the applicable evidentiary standard pursuant to which the petitioner must demonstrate that he poses no such risk. In 2007, the agency instructed field officers in an internal interoffice memorandum that, to “avoid denial” of an I-130 petition under the statute, the petitioner must “submit evidence of rehabilitation . . . that clearly demonstrates, beyond any reasonable doubt, that he or she poses no risk to the safety and well-being” of the beneficiary, including any “alien derivate beneficiary” - i.e., alien children of the spouse in an I-130 petition. Michael Aytes, Interoffice Memorandum at 5 (Fеb. 8, 2007), Joint Appendix (“J.A.“) 43 (emphasis added).
However, a different standard of proof has been adopted by USCIS in a precedential and arguably binding decision. Under Department of Homeland Security regulations, when the Attorney General so approves, the Secretary of Homeland Security - and, by extension, USCIS - “may file with the Attorney General decisions relating to the administration of the immigration laws of the United States for publication as precedent in future proceedings.”
B. Facts and Procedural History
Appellant Ryan Castaneira is a U.S. citizen seeking permanent residence for his spouse, a Mexican national. He originally filed a Form I-130 petition in August 2019. In March 2022, USCIS sent Appellant a Notice of Intent to Deny (“Notice“) his petition, offering him “the opportunity to submit documentary evidence to overcome the grounds for the intended denial” of his petition. USCIS, Notice of Intent to Deny at 1 (March 8, 2022), J.A. 31.
In this Notice, USCIS explained that its records indicated that Appellant was previously convicted of offenses covered by the Adam Walsh Act: he had previously bеen convicted of criminal attempt to commit child molestation, criminal attempt to entice a child for indecent purposes, computer
Given these past offenses, USCIS informed Appellant that he could still qualify for an I-130 benefit if he demonstrated by a preponderance of the evidence that he had not been convicted of a “specified offense against a minor” under the AWA.
Before submitting any of the evidence listed above, Appellant filed a pro se suit in federal district court, contesting the beyond-any-reasonable-doubt evidentiary standard as arbitrary, capricious and otherwise contrary to law,
After the denial was issued, Appellant then amended his complaint to challenge the final denial on the ground that the beyond-any-reasonable-doubt standard was arbitrary and capricious because it contradicts binding agency precedent set out in Chawathe, and because USCIS did not articulate why the Chawathe standard did not apply here. Additionally, Appellant reiterated that his prior Georgia state convictions did not fall within the AWA,
The District Court rejected both arguments. Castaneira, 682 F. Supp. 3d at 21. The court concluded that Appellant‘s prior state convictions fell within the statutory definition of “specified offense against a minor,”
Appellant then filed this pro se appeal challenging the District Court‘s dismissal of his complaint for failure to state a claim as to count III, and for lack of jurisdiction as to counts I, II, IV and V. This court appointed an amicus curiae to present arguments on behalf of Appellant.1
II. ANALYSIS
A. Standard of Review
We review dismissals for failure to stаte a claim and for lack of jurisdiction de novo. Zukerman v. U.S. Postal Serv., 961 F.3d 431, 441 (D.C. Cir. 2020).
B. Appellant‘s Prior Convictions Fall Within the Scope of the Adam Walsh Act
The AWA applies only to petitioners who were convicted of “specified offense[s] against a minor.”
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) invоlving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
The Government relies on subsection (I), arguing that Appellant‘s conduct underlying his state convictions “by its nature” constituted a sex offense against a minor. Appellant contends that this subsection does not encompass his prior convictions, because they were premised on criminal attempt, rathеr than the actual committing of the offenses charged. Because these state offenses do not require as an element the involvement of an actual minor, Appellant argues, they cannot trigger the AWA. We disagree.
Second, as other circuits have also observed,
An attempt to engage in conduct involving a minor, which is included in subsection (H), does not require an actual minor victim, as our courts have long held that a mistaken belief by the defendant is not a defense to criminal attempt. See United States v. Lieu, 963 F.3d 122, 126-27 (D.C. Cir. 2020). Because subsection (I) naturally subsumes the attempted crimes outlined in subsection (H), Appellant‘s convictions for criminal attempt under the Georgia statute fall within the scope of the AWA. Moreover, this interpretation is consistent with SORNA‘s definition of “sex offense,” which expressly includes attempts.
Finаlly, we need not opine on whether the District Court erred in applying a “circumstance-specific” approach in interpreting
But applying either approach here would yield the same result, because the central inquiry would remain what constitutes an “offense against a minor” under
Because Appellant was previously convicted of attempted offenses which, by their nature, constituted sex offenses against a minor, we thus affirm the District Court‘s dismissal of his claim that the AWA does not encompass his past state convictions.
C. The District Court Erred in Declining to Review Appellant‘s Procedural Challenge to the Standard of Proof
Having correctly determined that Appellant‘s conduct fell within the scope of the AWA, USCIS next turned to whether he could overcome the Act‘s bar to immigrant relative petitions. It concluded that he did not, having failed to demonstrate “beyond any reasonable doubt” that he posed no risk to the petition beneficiary.
The District Court dismissed this claim for want of jurisdiction, holding that questions involving the no-risk determination fall within the “sole and unreviewable discretion” of USCIS. Castaneira, 682 F. Supp. 3d at 26-27; see also
At the outset, we note that there is no dispute here that USCIS‘s ultimate no-risk determinations are beyond the reach of judicial review. In a separate statute, Congress has explicitly precluded judicial review
Rather, Appellant reasonably argues that if the Secretary exercised her discretion to bind herself to a preponderance standard in no-risk determinations under this statute, the fact that she has the “sole and unreviewable” discretion to make that determination does not preclude judicial review of whether she properly disregarded applicable agency precedent and spurned the preponderance standard when she denied his Form I-130 petition.
We address this question guided by a “strong presumption” in favor of judicial review of administrative action, which can only be overcome by “clear and convincing evidence of congressional intent to preclude judicial review.” Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020) (internal quotation marks and citation omitted); see also Kucana v. Holder, 558 U.S. 233, 251-52 (2010). The Supreme Court has moreover “consistently applied the presumption of reviewability to immigration statutes,” such as
The Government does not dispute that Chawathe constitutes binding agency prеcedent pursuant to the agency‘s own regulations. See Chawathe, 25 I. & N. Dec. 369;
The Government‘s position goеs too far. While Congress has granted USCIS unreviewable discretion to determine whether a citizen petitioner poses no risk to the Form I-130 beneficiary, USCIS has not provided “clear and convincing evidence of congressional intent to preclude judicial review” over its decision to exert this discretion in a manner that violates its own binding regulations and published precedents. Guerrero-Lasprilla, 589 U.S. at 229. As the Supreme Court has explained, Congress may shield from judicial review an agency‘s ultimate determination without precluding courts from reviewing the “practice[s] or procedure[s] employed in making” such individual determinations. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492 (1991).
While USCIS‘s final no-risk determinations are unreviewable, “general collateral challenges” to the agency‘s practices and policies still fall within judicial purview. Id.; see also Grace v. Barr, 965 F.3d 883, 893 (D.C. Cir. 2020) (finding jurisdiction over “facial challenges to the written policies that govern” individual determinations, as opposed to “direct review of individual aliens’ . . . determinations“); Make The Rd. N.Y. v. Wolf, 962 F.3d 612, 630 (D.C. Cir. 2020) (interpreting
The Government attempts to distinguish McNary and circuit precedent by arguing that beсause the Act here utilizes the verb-form “determines,” rather than the noun-form “determination” as in the statute in McNary, the grant of discretion here is broader and bars challenges to the procedural standards USCIS applies in reaching its final determination. See Bakran v. Sec‘y, U.S. Dep‘t of Homeland Sec., 894 F.3d 557, 563 (3d Cir. 2018); Bourdon v. U.S. Dep‘t of Homeland Sec., 940 F.3d 537, 542-43 (11th Cir. 2019). We are not persuaded by such grammatical gymnastics. See Janus Cap. Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 142 (2011) (“‘Make’ followed by a noun with the indefinite article is often nearly equivalent to the verb intransitive corresponding to that noun.” (citation omitted)); see also Bourdon, 940 F.3d at 556 (Jordan, J., dissenting). Under McNary, the presumption of judicial reviewability thus applies with full force in cases involving facial challenges to standards USCIS applies in making its no-risk determination under the AWA, including evidentiary standards that allegedly contradict binding agency precedent. 498 U.S. at 492.
The Government observes that some circuits have interpreted the AWA‘s reviewability bar to preclude challenges to the applicable evidentiary standard. See Bakran, 894 F.3d at 563; Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018); Privett v. Sec‘y, Dep‘t of Homeland Sec., 865 F.3d 375, 380-81 (6th Cir. 2017); Bourdon, 940 F.3d 537. However, only one circuit has squarely addressed the question before us here: whether the statute shields from judicial review challenges that the agency has violated its own binding precedent in applying the beyond-any-reasonable-doubt standard. See Bremer v. Johnson, 834 F.3d 925, 930-31 (8th Cir. 2016). Unlike in cases addressing whether the agency is free to set the standard of proof it chooses, see Gebhardt, 879 F.3d at 987, the undеrlying question before us is whether the agency can arbitrarily depart from the standard it chooses to set.
The Eighth Circuit found that Chawathe did not apply in the AWA context, Bremer, 834 F.3d at 930-31, but the Government does not meaningfully make this argument before us here. Instead, the Government relies on Bremer to argue generally that because the AWA affords USCIS broad discretion, that statute itself supplies an alternate standard from Chawathe. This circular argument assumes that because Congress has authorized an agency to act with discretion, it can exercise this discretion without heeding its own regulations, procedures, and precedents. But the Government cites to no authority - and neither does the сourt in Bremer - to support this premise. Indeed, this is not how administrative law works. Instead, “[i]t is a familiar rule of administrative law that an agency
Even where Congress has accorded an agency broad discretion, if the agency itself chooses to bind itself to published procedures, this choice means that it must then “exercise its own discretion” in accordance with its own “existing valid regulations” and binding precedents. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954). Thus, if Chawathe applies here, the agency has cabined its own discretion through its own precedent, and it must exercise its discretion in the manner it itself sets out. See Steenholdt, 314 F.3d at 639; see also Aburto-Rocha, 535 F.3d at 503 (holding that
As in Aburto-Rocha, where the agency‘s regulations “themselves indicate that adherence to precedent is a non-discretionary act,” whether the agency has adhered to its own precedent is not a question barred by a statute that precludes judicial review over discretionary determinations. Id. (citing
It is possible that Chawathe does not apply in the AWA context and that, in making its preponderance-of-the-evidence standard precedential, the Departmеnt did not mean to disturb the beyond-any-reasonable doubt standard that may have already been in place for no-risk determinations under the AWA. But because the District Court did not address this possibility, and because the Government does not make this argument before us, we cannot conclude that the agency has not violated its own binding precedent. Nothing in the Act required the agency to adopt any particular standard. But if there was a standard in place, then the agency was required to follow it.
We therefore remand for the District Court to consider, in the first instance, whether USCIS has indeed adopted a standard of proof that would bind it in this case, and whether it has violated its own standard. If the District Court finds that Chawathe is indeed binding here, then it must exercise its judicial review over Appellant‘s challenge to the standard of proof.
III. CONCLUSION
For the foregoing reasons, we affirm the District Court‘s decision in part, vacate its jurisdictional holding as to counts I, II, IV and V, and remand for further proceedings consistent with this opinion.
So ordered.