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Gebhardt v. Nielsen

United States Court of Appeals, Ninth Circuit

January 9, 2018

Richard Gebhardt, Plaintiff-Appellant,
v.
Kirstjen Nielsen, Secretary, Department of Homeland Security; L. Francis Cissna, Director, U.S. Citizenship and Immigration Services ("USCIS"); Irene Martin, Field Office Director, San Bernardino Field Office, USCIS; Jean Tharpe, Field Office Director, Vermont Field Office, USCIS; Jefferson B. Sessions III, Attorney General, U.S. Department of Justice, Defendants-Appellees.

          Argued and Submitted December 5, 2017 San Francisco, California

         Appeal from the United States District Court for the Central District of California D.C. No. 5:14-cv-02277-VAP-DTB, Virginia A. Phillips, Chief Judge, Presiding

          Vishwanath Kootala Mohan (argued) and Peter Afrasiabi, One LLP, Newport Beach, California, for Plaintiff-Appellant.

          Joshua S. Press (argued), Trial Attorney; Hans H. Chen, Senior Litigation Counsel; William C. Peachey, Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

          Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Lee H. Rosenthal, [*] Chief District Judge.

         SUMMARY [**]

         Immigration

         The panel affirmed the district court's dismissal for lack of jurisdiction of Richard Gebhardt's action challenging the Department of Homeland Security's denial of the I-130 visa petitions he filed on behalf of his wife and her children.

         The panel noted that Gebhardt's I-130 petitions would have been otherwise granted, but the DHS denied the petitions under the Adam Walsh Child Protection and Safety Act of 2006, which creates an exception for visa petitioners who have been convicted of certain sex offenses against a child. Gebhardt had been convicted of a covered offense, and the DHS found that he failed to show that, despite the conviction, he posed "no risk" to the beneficiaries of the petitions.

         The panel held that a pair of jurisdictional provisions insulated the "no risk" determination from review. First, the Immigration and Nationality Act bars review of any decision the authority for which is specified as falling under the discretion of the Secretary of the DHS. Second, the Adam Walsh Act grants the Secretary "sole and unreviewable discretion" in making "no risk" determinations. Thus, the panel concluded that it could review Gebhardt's claims only insofar as they challenged actions beyond the scope of the Secretary's sole and unreviewable discretion.

         The panel concluded it had jurisdiction to consider the predicate legal issue of whether the Adam Walsh Act applied to Gebhardt's case even though he filed his petitions before the statute took effect. The panel held that the Adam Walsh Act applies to petitions, like those of Gebhardt, that were filed, but not yet adjudicated, before the statute's effective date. The panel also concluded that it had jurisdiction to consider Gebhardt's argument that, because the Adam Walsh Act took effect after he committed the crime resulting in the denial of his petitions, the application of the statute to him violated the Ex Post Facto Clause. The panel rejected this contention, concluding that Congress intended to create a civil, non-punitive scheme, and that the Adam Walsh Act is not so punitive that it negates Congress' intent to create a civil regime.

         The panel further determined that it lacked jurisdiction to review Gebhardt's remaining statutory claims because each one challenged how the Secretary exercises - or has exercised - his or her sole and unreviewable discretion. Finally, the panel assumed, without deciding, that the Adam Walsh Act permits the court to review colorable constitutional claims concerning "no risk" determinations, but the panel concluded that it lacked jurisdiction to consider his substantive and procedural due process claims because they were not colorable.

          OPINION

          GRABER, Circuit Judge

         Plaintiff Richard Gebhardt, a United States citizen, filed I-130 petitions with the United States Citizenship and Immigration Services ("USCIS"), seeking Legal Permanent Residence ("LPR") status for his non-citizen wife and her three non-citizen children. The Secretary of Homeland Security rejected those petitions pursuant to the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"). Although the I-130 petitions would have been granted otherwise, the Adam Walsh Act amended the statute by creating an exception for petitioners who have been convicted of certain sex offenses against a child, and Plaintiff has been convicted of a covered offense.[1] The Secretary determined that Plaintiff had failed to show that, despite his conviction, he posed "no risk" to the beneficiaries of the petition. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). Plaintiff then brought this action, alleging various statutory and constitutional violations. The district court dismissed the action for lack of subject matter jurisdiction. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2000, a jury convicted Plaintiff of committing a "lewd and lascivious act with a child under the age of fourteen, " in violation of California Penal Code § 288(A).[2] After serving a three-year sentence, Plaintiff married a non-citizen, who has three non-citizen children. Shortly thereafter, in 2005, Plaintiff filed I-130 petitions on behalf of his wife and her children.

         On July 28, 2006, one day after the Adam Walsh Act took effect, USCIS approved the petitions. But in 2009, USCIS ran an additional background check. Upon discovering Plaintiff's record of conviction, USCIS issued a notice of intent to revoke the approval of the petitions. The notice invited Plaintiff to submit evidence that he posed "no risk" to the beneficiaries of his petitions. He responded with extensive evidence, including notarized affidavits from family members, friends, and co-workers and a psychosexual evaluation. Nevertheless, USCIS revoked its earlier approval of the petitions. Plaintiff appealed to the Board of Immigration Appeals, which dismissed the appeal for lack of jurisdiction.

         In 2010, Plaintiff filed a new set of I-130 petitions and submitted additional evidence to support his contention that he posed "no risk" to the beneficiaries of the petitions. USCIS denied those petitions.

         Thereafter, Plaintiff filed the present action. On the government's motion, the district court dismissed the complaint under Federal Rule of Civil ...


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