Privett v. Secretary, Department of Homeland Security, No. 16-3243 (6th Cir. 2017)Annotate this Case
In 2004, Privett pleaded guilty to sexual battery. Nine years later, Privett married a foreign citizen and filed Form I-130 to establish her qualification for a visa and eventually a Green Card. USCIS sent Notice of Intent to Deny and requested additional evidence that Privett was not convicted of a “specified offense against a minor” and to “demonstrate, beyond a reasonable doubt, that [he] pose[d] no risk to the safety and wellbeing of” his wife. Under the Adam Walsh Act (AWA), 8 U.S.C. 1154(a)(1)(A)(viii)(I) the request of a citizen convicted of a specified offense against a minor may be denied. Privett provided a transcript of his plea hearing. USCIS rejected his petition. The district court dismissed Privett's claims for lack of jurisdiction to review a decision of the Secretary of Homeland Security “the authority for which is specified under this subchapter to be in the discretion of the . . . Secretary of Homeland Security,” 8 U.S.C. 1252(a)(2)(B). The Sixth Circuit reversed in part. Certain predicate legal issues that determine the bounds of a discretionary decision remain within the jurisdiction of the courts. Privett’s challenge to whether his crime is a specified offense against a minor is such a predicate legal issue. Privett’s challenge to USCIS’s beyond-a-reasonable-doubt standard is directed at the Secretary’s discretion and beyond judicial review.