and Submitted December 5, 2017 San Francisco, California
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.
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
Before: Susan P. Graber and N. Randy Smith, Circuit Judges,
and Lee H. Rosenthal, [*] Chief District Judge.
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
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.
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
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.
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.
GRABER, Circuit Judge
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. 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.
AND PROCEDURAL BACKGROUND
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). 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.
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.
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.
Plaintiff filed the present action. On the government's
motion, the district court dismissed the complaint under
Federal Rule of Civil ...