Gebhardt v. Nielsen, No. 15-56072 (9th Cir. 2018)
Annotate this CaseThe 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.
Court Description: 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 GEBHARDT V. NIELSEN 3 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 4 GEBHARDT V. NIELSEN procedural due process claims because they were not colorable.
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