Gebhardt v. Nielsen, No. 15-56072 (9th Cir. 2018)Annotate this Case
The Ninth Circuit affirmed the district court's dismissal for lack of jurisdiction of plaintiff's action challenging DHS's denial of I-130 visa petitions. Plaintiff filed petitions seeking Legal Permanent Residence (LPR) status for his non-citizen wife and her three non-citizen children. DHS denied the petitions pursuant to the Adam Walsh Child Protection and Safety Act of 2006 because defendant had been convicted of committing a lewd and lascivious act with a child under the age of fourteen. Because the Adam Walsh Act clearly delineates who may have a petition granted—rather than who may literally file a petition—the panel held that the amended statute applied to petitions that were filed before, but were still pending on, its effective date. Therefore, USCIS correctly applied the Adam Walsh Act in plaintiff's case. The panel also held that applying the Adam Walsh Act to pending petitions did not violate the Ex Post Facto Clause; the panel lacked jurisdiction to review plaintiff's statutory claims concerning the "no risk" determination; and plaintiff's constitutional claims were not colorable.