Richard Gebhardt v. Elaine Duke, et al

Filing

FILED OPINION (SUSAN P. GRABER, N. RANDY SMITH and LEE H. ROSENTHAL) AFFIRMED. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [10717431]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD GEBHARDT,
Plaintiff-Appellant,
v.
KIRSTJEN NIELSEN, Secretary,
Department of Homeland Security;
L. FRANCIS CISSNA, Director, U.S.
Citizenship and Immigration
Services (“USCIS”); IRENE MARTIN,
Field Office Director, San
Bernardino Field Office, USCIS;
JEAN THARPE, Field Office Director,
Vermont Field Office, USCIS;
JEFFERSON B. SESSIONS III, Attorney
General, U.S. Department of Justice,
Defendants-Appellees.

No. 15-56072
D.C. No.
5:14-cv-02277VAP-DTB

OPINION

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted December 5, 2017
San Francisco, California
Filed January 9, 2018

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GEBHARDT V. NIELSEN
Before: Susan P. Graber and N. Randy Smith, Circuit
Judges, and Lee H. Rosenthal,* Chief District Judge.
Opinion by Judge Graber

SUMMARY**

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

*

The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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

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procedural due process claims because they were not
colorable.

COUNSEL
Vishwanath Kootala Mohan (argued) and Peter Afrasiabi,
One LLP, Newport Beach, California, for Plaintiff-Appellant.
Joshua 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 DefendantsAppellees.

OPINION
GRABER, Circuit Judge:
Plaintiff 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

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convicted of a covered offense.1 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. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 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).2 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.
On July 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

1

For the purpose of this appeal, Plaintiff does not dispute that his
crime of conviction fits the criteria of the Adam Walsh Act.
2

Because we are reviewing the dismissal of a complaint for lack of
jurisdiction, we take all plausible allegations in the complaint as true.
Armstrong v. Northern Mariana Islands, 576 F.3d 950, 953 n.3 (9th Cir.
2009).

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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.
In 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.
Thereafter, Plaintiff filed the present action. On the
government’s motion, the district court dismissed the
complaint under Federal Rule of Civil Procedure 12(b)(1).
Plaintiff timely appeals.
DISCUSSION
The Immigration and Nationality Act (“INA”) provides
generally that, except in circumstances not present here,
any citizen of the United States claiming that
an alien is entitled to classification [as] . . . an
immediate relative . . . may file [an I-130]
petition.
8 U.S.C. § 1154(a)(1)(A)(i) (“Clause (i)”). But the Adam
Walsh Act created an exception to that regime:
Clause (i) shall not apply to a citizen of
the United States who has been convicted of
a specified offense against a minor, unless the
Secretary of Homeland Security, in the
Secretary’s sole and unreviewable discretion,

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determines that the citizen poses no risk to the
alien with respect to whom a petition
described in clause (i) is filed.
Id. § 1154(a)(1)(A)(viii)(I) (“Clause (viii)(I)”).
USCIS has determined that, “given the nature and
severity of many of the underlying offenses and the intent of
the [Adam Walsh Act],” determinations that a citizen poses
no risk should be “rare.” U.S. Citizenship and Immigration
Servs., U.S. Dep’t of Homeland Security, Interoffice
Memorandum, Transmittal of SOP for Adjudication of
Family-Based Petitions Under the Adam Walsh Child
Protection and Safety Act of 2006 (Sept. 24, 2008). A pair of
jurisdictional provisions insulate those determinations from
review. First, the INA bars us from reviewing any “decision
or action . . . the authority for which is specified [as falling
under] the discretion of the Attorney General or the Secretary
of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii).
Second, Clause (viii)(I) grants the Secretary “sole and
unreviewable discretion” in making “no risk” determinations.
Those provisions clearly demonstrate Congress’ intent to
prevent us from reviewing how the Secretary exercises his or
her “sole and unreviewable discretion” to make “no risk”
determinations. See Roland v. USCIS, 850 F.3d 625, 629 (4th
Cir. 2017) (“It is clear that the USCIS has ‘sole and
unreviewable discretion’ to determine whether a petitioner
poses no risk.”); Privett v. Sec’y, Dep’t of Homeland Sec.,
865 F.3d 375, 381 (6th Cir. 2017) (same); Bremer v. Johnson,
834 F.3d 925, 929 (8th Cir. 2016) (same).3 Thus, we may
3

We therefore cannot and do not consider Plaintiff’s arguments that
the Secretary got his case wrong on the facts.

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review Plaintiff’s claims only insofar as they challenge action
beyond the scope of the Secretary’s “sole and unreviewable
discretion.”
A. Application of the Adam Walsh Act to Already-Filed
Petitions
Plaintiff first claims that the Adam Walsh Act does not
apply to his case because he filed his petitions before that
statute took effect. We have jurisdiction to consider that
issue. See Bremer, 834 F.3d at 929 (holding the same).
Although the INA precludes “direct review of . . .
discretionary decisions,” it does not bar us from reviewing
“predicate legal question[s].” Tapia v. Gonzales, 430 F.3d
997, 999 (9th Cir. 2005). In Tapia, for example, we
considered a predicate legal question regarding a noncitizen’s eligibility to be considered for relief. Id. And the
Sixth Circuit, in a case much like the one before us, held that
it retained jurisdiction to consider the “predicate legal issue”
of whether a particular conviction qualifies as a “specified
offense against a minor” under the Adam Walsh Act. Privett,
865 F.3d at 380.
Whether the Adam Walsh Act applies to already-filed
petitions is a similar predicate legal question. Its answer
turns entirely on Congress’ intent, and the question in no way
concerns how the Secretary chooses to exercise discretion.
Rather, the issue is whether Plaintiff’s case falls within that
discretion at all. See id. (considering whether the Adam
Walsh Act applied to a particular individual in the first place).
We therefore retain jurisdiction over the issue.
Turning to Plaintiff’s argument, then, we hold that the
Adam Walsh Act applies to petitions that were filed, but not

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yet adjudicated, before its effective date. Because Plaintiff’s
petitions fall within that category, the Act governs his case.
Clause (i) specifies who “may file” a petition for a
family-based visa. As noted, the Adam Walsh Act limited
that clause: “Clause (i) shall not apply to a citizen . . . who
has been convicted of a specified offense against a minor,”
unless the Secretary determines that the petitioner poses “no
risk” to the beneficiary of the petition. Clause (viii)(I).
Plaintiff would have us read those provisions literally. In his
view, the amendment limits who “may,” in the ministerial
sense, “file” a petition—not which petitions the Secretary
may, as a substantive matter, grant.
Despite its awkward wording, the amendment does not
literally limit who “may file” a petition. We think it clear that
Congress did not enact the statute to bar certain citizens from
placing pieces of paper in front of an agency for processing.
Rather, when Congress declared that “Clause (i) shall not
apply,” Congress was expressing its judgment that citizens
convicted of certain offenses may not, unless stringent
conditions are met, benefit from the petitioning framework
described in Clause (i). In keeping with that goal, the Adam
Walsh Act provision amending the INA is described as
“barring convicted sex offenders” not from filing petitions,
but “from having family-based petitions approved.” Pub. L.
No. 109-248, § 402, 120 Stat. 587, 622 (2006) (emphasis
added) (capitalization removed).
We recognize that the phrase “may file,” if read literally,
suggests the opposite conclusion. But we should avoid an
interpretation that renders part of a statute unnecessary, Marx
v. Gen. Revenue Corp., 568 U.S. 371, 386 (2013), as
Plaintiff’s proposed interpretation does. Clause (viii)(I)

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directs the Secretary to determine whether a petitioner poses
“no risk” to the alien with respect to whom a petition was
filed. But if Clause (viii)(I) barred citizens convicted of a
specified offense against a minor from filing a petition at all,
the Secretary could never make the kind of risk determination
that the Adam Walsh Act requires.
Because that
interpretation would nullify the Secretary’s decision-making
authority, we decline to read “may file” as Plaintiff proposes
we do.
In sum, because the Adam Walsh Act clearly delineates
who may have a petition granted—rather than who may
literally file a petition—we hold that the amended statute
applies to petitions that were filed before, but were still
pending on, its effective date. USCIS thus correctly applied
the Adam Walsh Act in Plaintiff’s case.
B. Retroactivity
Plaintiff next argues that, because the Adam Walsh Act
took effect after he committed the crime resulting in the
denial of his petitions, the government violated the Ex Post
Facto Clause by applying the amendment in his case. Like
the previous question, this issue concerns Congress’ intent
and not the Secretary’s discretion. As a result, we have
jurisdiction to consider this question, too.
To determine whether the application of a law violates the
Ex Post Facto Clause, we employ a two-step inquiry. Smith
v. Doe, 538 U.S. 84, 92 (2003). We ask first whether
Congress meant to establish a civil scheme—rather than a
punitive one—when it enacted the law. Id. If so, we then
consider whether the statutory scheme is “so punitive either

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in purpose or effect as to negate [Congress’] intention to
deem it civil.” Id. (internal quotation marks omitted).
Congress clearly meant to create a civil, non-punitive
scheme here. It enacted the amendments “[t]o protect
children from sexual exploitation and violent crime, to
prevent child abuse and child pornography, to promote
Internet safety, and to honor the memory of . . . child crime
victims.” Pub. L. No. 109-248, 120 Stat. 587, 587 (2006)
(emphases added). To that end, the entire scheme focuses on
prevention—not punishment. See id. at 622 (describing
“Immigration Law Reforms to Prevent Sex Offenders from
Abusing Children” (emphasis added)).
At the second step, we conclude that the Adam Walsh Act
is not so punitive that it negates Congress’ intent to create a
civil regime. In determining whether a law’s punitive effects
outweigh its regulatory purposes, we consider a number of
factors, including whether the regulatory scheme: “(1) has
been regarded in our history and traditions as a punishment;
(2) imposes an affirmative disability or restraint; (3) promotes
the traditional aims of punishment; (4) has a rational
connection to a nonpunitive purpose; or (5) is excessive with
respect to that purpose.” Clark v. Ryan, 836 F.3d 1013, 1017
(9th Cir. 2016), cert. denied, 137 S. Ct. 1350 (2017).
The Adam Walsh Act undoubtedly makes it more difficult
for a citizen convicted of a specified offense to obtain LPR
status for his or her non-citizen relatives. And, in that sense,
the statute imposes an affirmative restraint on those citizens.
As a result, the statute might have some deterrent effect on
those considering committing one of its specified offenses.

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But the Adam Walsh Act has a clear non-punitive
purpose: preventing those convicted of specified offenses
from having access to the persons that they are most likely to
harm. And the statute, by limiting access to the granting of
LPR status for relatives, does not impose a restraint
commonly thought of as a punishment. Moreover—and
perhaps most importantly—the statutory regime is not unduly
excessive with respect to its purpose. Although the Adam
Walsh Act generally prohibits those convicted of specified
offenses from having their I-130 petitions granted, it
expressly provides an exception for those petitioners who
pose “no risk”—i.e., those who do not threaten the civic
interests that Congress was trying to protect.
Viewed together, the Clark factors lead us to conclude
that the punitive aspects of the Adam Walsh Act do not
outweigh its non-punitive purposes. Applying the statute to
pending petitions thus does not violate the Ex Post Facto
Clause.
C. Plaintiff’s Statutory Claims
Plaintiff challenges several of USCIS’s standards for
adjudicating petitions that trigger the Adam Walsh Act. First,
Plaintiff argues that USCIS wrongly employs a “beyond any
reasonable doubt” standard. Second, Plaintiff contends that
USCIS effectively employs an impermissible “presumption
of denial.” Third, Plaintiff asserts that USCIS was required
to go through the notice-and-comment process before
implementing those standards. And fourth, Plaintiff claims
that USCIS acted ultra vires in adopting those standards.
We lack jurisdiction to review any of those claims
because each one challenges how the Secretary exercises—or

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has exercised—his or her “sole and unreviewable discretion”
to adjudicate I-130 petitions. True, we retain jurisdiction
over challenges to an agency’s “pattern and practice.” City
of Rialto v. W. Coast Loading Corp., 581 F.3d 865, 872–73
(9th Cir. 2009). But, as we have explained before, “the
phrase ‘pattern and practice’ is not an automatic shortcut to
federal court jurisdiction.” Id. at 872. No matter how a
plaintiff characterizes an argument, we can review a claim in
this context only if it challenges a genuinely collateral action.
In Proyecto San Pablo v. INS, 189 F.3d 1130 (9th Cir. 1999),
for example, we considered the collateral question of whether
USCIS had denied the plaintiffs due process by not
permitting them access to certain records before their
applications were adjudicated.
Here, though, Plaintiff’s statutory claims are not collateral
challenges at all. Rather, each claim directly disputes acts
taken within the Secretary’s “sole and unreviewable
discretion.” It does not matter that Plaintiff characterizes his
claims as challenges to the substantive standards that the
Secretary uses. The standards by which the Secretary reaches
a decision within his or her “sole and unreviewable
discretion”—and the methods by which the Secretary adopts
those standards—are just as unreviewable as the Secretary’s
ultimate decisions themselves. See Ortiz v. Meissner,
179 F.3d 718, 722 (9th Cir. 1999) (holding that we lacked
jurisdiction to consider INS’s “interpretation or application of
. . . substantive eligibility criteria”).
Plaintiff claims, at bottom, that the Secretary has set the
bar too high. But the bar is the Secretary’s to set, and the
Secretary enjoys “sole and unreviewable discretion” in doing
so. We thus lack jurisdiction to review Plaintiff’s statutory
claims concerning the “no risk” determination.

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D. Plaintiff’s Constitutional Claims
Finally, Plaintiff makes two constitutional claims relating
to the “no risk” determination. First, Plaintiff claims that the
Adam Walsh Act—either on its face or as applied to his
individual case—infringes his substantive due process rights.
Second, Plaintiff argues that USCIS’s procedures for
adjudicating I-130 petitions infringed his procedural due
process rights.
Again, we must begin by considering our jurisdiction.
The phrase “sole and unreviewable discretion” at least
suggests that Congress meant to prohibit us from reviewing
even constitutional claims concerning “no risk”
determinations. See Bremer, 834 F.3d at 931 (noting that a
grant of “sole and unreviewable discretion” is “among the
strongest known to the law”). But the Supreme Court has
cautioned us to hesitate before interpreting a statutory scheme
as taking the “extraordinary step” of barring review of
constitutional claims. Califano v. Sanders, 430 U.S. 99, 109
(1977) (internal quotation marks omitted). We thus assume,
without deciding, that the Adam Walsh Act permits us to
review colorable constitutional claims. See Bremer, 834 F.3d
at 932 (taking the same approach). Because neither of
Plaintiff’s constitutional claims is colorable, we lack
jurisdiction to review either one. See Torres-Aguilar v. INS,
246 F.3d 1267, 1271 (9th Cir. 2001) (explaining that, to
invoke our jurisdiction, a petitioner must allege a
constitutional violation that is at least colorable).
Plaintiff argues that USCIS, by denying his petitions,
denied him the fundamental right to preserve the integrity of
his family. We see Plaintiff’s claim somewhat differently.
Boiled down, Plaintiff’s theory is that he has a fundamental

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right to reside in the United States with his non-citizen
relatives. But that theory runs headlong into Congress’
plenary power over immigration. Landon v. Plasencia,
459 U.S. 21, 32 (1982). We acknowledge, of course, that
individuals have a strong interest in living with their family
members. But that interest cannot be so fundamental that it
overrides Congress’ plenary power in this domain. As we
have said before, the generic right to live with family is “far
removed” from the specific right to reside in the United
States with non-citizen family members. Morales-Izquierdo
v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir.
2010) overruled in part on other grounds by GarfiasRodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).
That is why, in Morales, we held that a non-citizen’s
deportation did not violate his family’s substantive due
process rights. Id. We therefore conclude that Plaintiff’s
substantive due process claim is not colorable, and we decline
to consider it further.
Plaintiff also asserts a procedural due process violation.
To bring a successful procedural due process claim, a plaintiff
must point to (1) the deprivation of a constitutionally
protected liberty or property interest, and (2) the “denial of
adequate procedural protections.” Foss v. Nat’l Marine
Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998). Plaintiff’s
claim fails on the second point. Even assuming that Plaintiff
has a protected liberty interest, he received all process due to
him.
Due process requires only “the opportunity to be heard at
a meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks
omitted).
Here, USCIS afforded Plaintiff such an
opportunity. USCIS gave Plaintiff notice of its intent to

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revoke his petitions and invited him to submit evidence
showing that he posed “no risk.” Indeed, USCIS reviewed
the 33 documents that Plaintiff submitted for review. Then,
when USCIS revoked its earlier approval of Plaintiff’s I-130
petitions, it did so in a well-reasoned, five-page decision. On
those facts, we have little trouble concluding that Plaintiff
failed to bring a colorable claim—especially because, as we
understand the complaint, Plaintiff has not pointed to a
deficiency in USCIS’s process at all. Rather, Plaintiff’s “due
process claim” essentially rehashes the arguments against the
substantive standards that the Secretary employs.
Plaintiff’s requested relief confirms that deficiency.
Plaintiff does not ask that we instruct USCIS to use some
additional procedure in re-examining his petitions. What
Plaintiff wants is for USCIS to lower its “no risk” standard of
review. But that request has nothing to do with process at all.
We therefore conclude that Plaintiff has not alleged a
colorable due process claim.
CONCLUSION
The Adam Walsh Act applies to Plaintiff’s I-130 petitions
even though he filed them before it took effect. Applying that
Act to pending petitions does not violate the Ex Post Facto
Clause. Plaintiff’s remaining claims are unreviewable.
Plaintiff’s statutory claims, although he characterizes them as
collateral challenges, are actually challenges to action within
the Secretary’s “sole and unreviewable discretion,” and
neither of Plaintiff’s constitutional claims is colorable.
AFFIRMED.