Healey v. Johnson

Filing 53

ORDER Granting Summary Judgment In Favor of Defendants re: 32 ."The court therefore grants the Governments motion for summary judgment, ECF No. 32 , and denies Healeys motion for summary judgment, ECF No. 30 .For the reasons stated in the Ninth Circuits ruling in Burbank v. Nielsen, 708 F. Appx 465 (9 Cir. 2018), this court therefore lacks jurisdiction over Jeffrey Healeys claims. The court therefore grants summary judgment in favor of Defendants and directs the Clerk of Court to enter judgment in Defendants' favor and to close this case." Signed by JUDGE SUSAN OKI MOLLWAY on 6/29/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JEFFREY HEALEY,

)
)
Plaintiff,
)
)
vs.
)
)
KIRSTJEN M. NIELSEN,
)
Secretary, U.S. Department of )
Homeland Security;
)
)
L. FRANCIS CISSNA, Director, )
United States Citizenship and )
Immigration Services;
)
)
CHRISTOPHER ROBINSON,
)
Honolulu Field Office
)
Director, United States
)
Citizenship and Immigration
)
Services;
)
)
JEFFERSON B. SESSIONS III,
)
Attorney General of the
)
United States,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 14-00373 SOM/KSC
ORDER GRANTING SUMMARY
JUDGMENT IN FAVOR OF
DEFENDANTS

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS
I.

INTRODUCTION.
In 1996, Plaintiff Jeffrey Healey was convicted of sex

crimes with a minor.

Fifteen years later, in 2011, Jeffrey

Healey married a Japanese citizen whose married name is Yuko
Healey.

In March 2011, Jeffrey Healey sought to have his wife

become a lawful permanent resident, which was denied because
Jeffrey Healey’s convictions for sex crimes with a minor caused
the Secretary of U.S. Homeland Security to decline to determine

that Jeffrey Healey posed “no risk” to his wife.
seeks judicial review of that decision.

Jeffrey Healey

Because the court lacks

jurisdiction over that decision, the court grants the
Government’s motion for summary judgment and denies Jeffrey
Healey’s motion for summary judgment.1
II.

FACTUAL BACKGROUND.
The facts of this case are largely undisputed.
On October 19, 1996, Jeffrey Healey was convicted in

the Circuit Court, Twelfth Judicial Circuit in and for Sarasota
County, Florida, of two sex crimes involving a minor: (1) sexual
activity with a child while in familial or custodial authority in
violation of section 794.011 of Florida Statutes; and
(2) handling/fondling a child under 16 years of age in a lewd,
lascivious, or indecent manner in violation of section 800.04.(1)
of Florida Statutes.
29, PageID # 297.

See Judgment, Case No. 95-1708F, ECF No.

He was sentenced to 48 months of imprisonment

followed by 5 years of probation.

Id., PageID # 300.

On January 11, 2011, Jeffrey Healey married Yuko
Sakashita, a citizen of Japan.

See id., PageID # 246; PageID

# 212.

1

Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Defendants listed in the caption of this order are
substituted for their predecessors, who were sued in their
official capacities but have since been replaced in those
official capacities.
2

On March 21, 2011, Jeffrey Healey submitted to U.S.
Citizenship and Immigration Services a Form I-130, Petition for
Alien Relative.

Id., PageID # 219.

The Form I-130 notified U.S.

Citizenship and Immigration Services of Jeffrey Healey’s marriage
to Yuko Sakashita Heal ey and of her intent to apply for
adjustment of her status from visitor to lawful permanent
resident.

Id., PageID #s 219, 221.
On December 7, 2011, the U.S. Citizenship and

Immigration Services sent Jeffrey Healey a Request for Evidence
and Notice of Intent to Deny his Form I-130 petition.
PageID # 227-31.

See id.,

This notice informed Jeffrey Healey that,

“[b]efore the decision becomes final, we are providing you an
opportunity to submit documentary evidence in an effort to
overcome the deficiencies forming the grounds of the intended
denial discussed below.”

Id., PageID # 227.

The notice stated

that, in reviewing the petition, “USCIS discovered that you
committed what appears to be an offense that would render you
ineligible to act as a petitioner for the family-based visa . . .
.”

Id.

That is, Jeffrey Healey was told that, because he had

committed a “specified offense against a minor,” U.S. Citizenship
and Immigration Services could not determine that he posed “no
risk” to the safety or well-being of his wife.
28.

3

Id., PageID 227-

The petition was denied on July 22, 2014.

Id., PageID

# 219 (petition is stamped “denied”), PageID # 223-26 (denial
decision).
III.

ANALYSIS.
In relevant part, the Immigration and Nationality Act,

8 U.S.C. § 1154, allows a United States Citizen to file a Form I130 petition to have his or her spouse classified as an immediate
relative, the first step toward the relative’s becoming a lawful
permanent resident.
The Adam Walsh Child Protection and Safety Act of 2006
amended § 1154 to prohibit a citizen convicted of a specified
offense against a minor from filing a family-based visa petition.
As amended, 8 U.S.C. § 1154 states:
(a)(1)(A)(i) Except as provided in clause
(viii), any citizen of the United States
claiming that an alien is entitled . . . to
an immediate relative status under section
1151(b)(2)(A)(i) of this title may file a
petition with the Attorney General for such
classification.
. . . .
(viii)(I) 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, determines that the
citizen poses no risk to the alien with
respect to whom a petition described in
clause (i) is filed.

4

On July 22, 2014, U.S. Citizenship and Immigration
Services denied Jeffrey Healey’s petition to have his wife
classified as an immediate relative for lawful permanent resident
purposes.
On August 21, 2014, Jeffrey Healey filed the present
Complaint, asserting seven causes of action.
On July 29, 2015, several months before the Complaint
was filed in this matter, Chief Judge Rosanna Malouf Peterson, of
the Eastern District of Washington, issued an order dismissing
nearly identical claims filed by Attorney Nicklaus J. Misiti on
behalf of Malcolm Burbank.

See Burbank v. Johnson, et al., 2015

WL 4591643 (E.D. Wash. July 29, 2015).

Misiti is also the

attorney for Jeffrey Healey in the present case.

The issues

raised by the motions for summary judgment before this court in
this case were raised in Burbank.
Chief Judge Peterson examined whether § 1154(a)(1)(A)
barred the court from exercising jurisdiction.

She ruled that it

did not, reasoning that Burbank’s claims did not go to the U.S.
Citizenship and Immigration Services’ exercise of discretion in
determining whether Burbank posed “no risk” to his foreign
spouse.

2015 WL 4591643, *5.

the court stayed this action.

While that decision was on appeal,
See ECF No. 46.

On appeal, the Ninth Circuit vacated Chief Judge
Peterson’s decision in Burbank, ruling that the court lacked

5

jurisdiction with respect to all of Burbank’s claims.
Burbank v. Nielsen, 708 F. App'x 465 (9th Cir. 2018).

See
In light

of the Ninth Circuit’s ruling, the court lifts the stay.

Given

that ruling and the identical claims raised in both Burbank and
this action, this court rules that it lacks jurisdiction with
respect to all of Jeffrey Healey’s claims.

The court therefore

grants the Government’s motion for summary judgment, ECF No. 32,
and denies Healey’s motion for summary judgment, ECF No. 30.
IV.

CONCLUSION.
For the reasons stated in the Ninth Circuit’s ruling in

Burbank v. Nielsen, 708 F. App’x 465 (9th Cir. 2018), this court
lacks jurisdiction over Jeffrey Healey’s claims.

The court

therefore grants summary judgment in favor of Defendants and
directs the Clerk of Court to enter judgment in Defendants’ favor
and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 29, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Healey v. Nielsen, et al., CIVIL NO. 14-00373 SOM/KSC; ORDER GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANTS

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