Bakran v. Secretary, United States Department of Homeland Security, No. 16-3440 (3d Cir. 2018)Annotate this Case
"Immediate relatives” of U.S. Citizens can enter the United States without regard to numerical limitations on immigration. The Adam Walsh Child Protection and Safety Act of 2006, 120 Stat. 587 (AWA) amended the statute so that a citizen “who has been convicted of a specified offense against a minor” may not file any petition on behalf of such relatives “unless the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that the citizen poses no risk to the alien.” The definition of a “specified offense against a minor,” includes “[c]riminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.” U.S. Citizenship and Immigration Services (USCIS) memos state that “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 poses no risk and that “approval recommendations should be rare.” In 2004, Bakran, a U.S. citizen, was convicted of aggravated indecent assault and unlawful contact with a minor. In 2012, Bakran married an adult Indian national and sought lawful permanent resident status for her. USCIS denied his application citing AWA. Bakran claimed violations of the Constitution and Administrative Procedures Act, 5 U.S.C. 701. The Third Circuit held that the protocols Bakran challenged simply guide the Secretary’s determination; courts lack jurisdiction to review them. The AWA does not infringe Bakran’s marriage right but deprives him of an immigration benefit to which he has no constitutional right. The Act is aimed at providing prospective protection and is not impermissibly retroactive.