GIORDANO et al v. BARR et al
OPINION. Signed by Judge Kevin McNulty on 7/14/2021. (lag, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THOMAS GIORDANO and EVELYN
MERRICK GARLAND, TRACY
RENAUD, and the UNITED STATES
CITIZENSHIP & IMMIGRATION
Civ. No. 20-07875 (KM)
KEVIN MCNULTY, U.S.D.J.:
Thomas Giordano, an American citizen, married Evelyn Ansing Giordano,
a Filipino citizen. The Giordanos applied to the United States Citizenship and
Immigration Services (the “Service”) for a spousal visa and employment
authorization for Mrs. Giordano. The Service denied their applications because
Mr. Giordano had previously been convicted of offenses which, under the Adam
Walsh Child Protection and Safety Act, Pub. L. No. 09-248, 120 Stat. 622
(2006), preclude the offender from seeking a family-based visa. The Giordanos
sued the Service, its Acting Director, and the Attorney General (collectively, the
“Government”), asserting claims under the the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et seq., and the U.S. Constitution. The Government
moved to dismiss for lack of subject-matter jurisdiction, see Fed. R. Civ. P.
12(b)(1), and failure to state a claim, Fed. R. Civ. P. 12(b)(6). (DE 15.) 1 In
Certain citations to the record are abbreviated as follows:
DE = docket entry number
Am. Compl. = Amended Complaint (DE 11)
Notice = Notice of Decision (Sept. 8, 2020) (DE 11, Ex. C)
response, the Giordanos cross-moved for summary judgment. (DE 27.) For the
following reasons, the Government’s motion (DE 15) will be treated as one for
summary judgment and is GRANTED. The Giordano’s motion (DE 27) is
A. Statutory Background
The Immigration and Nationality Act (“INA”) allows a U.S. citizen to
petition the Service to classify the citizen’s foreign spouse, child, or parent as
“an immediate relative,” a classification that allows the person to immigrate to
the United States. 8 U.S.C. § 1154(a)(1)(A)(i), (b). If that person is already in the
United States, he or she may apply to become a lawful permanent resident. 8
C.F.R. §§ 245.1(a), 245.2(a)(2)(B).
That process differs when the Adam Walsh Act applies. Congress passed
the Act “to protect the public from sex offenders and offenders against
children.” 34 U.S.C. § 20901. To that end, the Act prevents citizens “convicted
of a specified offense against a minor” from petitioning on behalf of their
relatives for a family-based visa “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 . . . is filed.” 8 U.S.C.
§ 1154(a)(1)(A)(viii)(I). “Specified offense against a minor” is defined as “an
offense against a minor that involves,” among other things, “[u]se in sexual
performance” or “[a]ny conduct that by its nature is a sex offense against a
minor.” Id. § 20911(7)(D), (I). “Sex offense” in turn means “a criminal offense
that has an element involving a sexual act or sexual contact with another.” Id.
Gov’t Mot. = The Government’s Brief in Support of its Motion to Dismiss (DE
Pl. Mot. = The Giordano’s Brief in Support of their Cross-Motion for Summary
Judgment (DE 27-2)
When confronted with a petition from a citizen to whom the Act may
apply, the Service engages in a two-step inquiry. First, the Service determines
whether a petitioner’s prior conviction qualifies as a “specified offense against a
minor.” If it does, then the Service determines whether the petitioner
nonetheless poses no risk to the relative. Privett v. Sec’y, Dep’t of Homeland
Security, 865 F.3d 375, 379–80 (6th Cir. 2017). For that second determination,
the petitioner “must submit evidence of rehabilitation and any other relevant
evidence that clearly demonstrates, beyond any reasonable doubt, that he or
she poses no risk to the safety and well-being of his or her intended
beneficiar[ies].” Bakran v. Sec’y, U.S. Dep’t of Homeland Security, 894 F.3d 557,
560 (3d Cir. 2018) (quoting U.S. Citizenship & Immigr. Servs., Guidance for
Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e)
under the Adam Walsh Child Protection and Safety Act of 2006 (Feb. 8, 2007)).
B. The Giordanos’ Case
The Giordanos are a married couple who petitioned for a spousal visa for
Mrs. Giordano and for accompanying employment authorization. (Am. Compl.
¶¶ 6–7.) The Service denied the petition for a spousal visa. The Service noted
that Mr. Giordano had been convicted in 1996 for aggravated sexual assault,
sexual assault, and endangering the welfare of children. (Notice at 2.) These
convictions stemmed from sexual activity with Mr. Giordano’s then 15-year-old
daughter. (Id. at 5.) The Service concluded that each of his convictions qualified
as a “specified offense against a minor” under the Adam Walsh Act. (Id. at 4.)
Proceeding to analyze the risk Mr. Giordano posed, the Service
considered evidence that (1) Mrs. Giordano was not a minor and was close in
age to Mr. Giordano, (2) she attested that he never hurt her, and (3) a
psychological evaluation stated that Mr. Giordano had a low risk of causing
harm. (Id. at 4–6.) The Service concluded that Mr. Giordano could not sustain
his burden to show no risk because he failed to provide (1) police reports and
court records so that the Service could evaluate the circumstances of his
convictions, (2) original psychological evaluations, and (3) direct evidence
indicating completion of sex offender-specific psychotherapy. (Id.) Thus, the
Service denied the petition and subsequently denied the applications for
employment authorization. (Am. Compl. ¶ 9.)
The Giordanos sued the Service, its Acting Director, and the Attorney
General 2 under the APA, alleging that (1) the Adam Walsh Act is impermissibly
retroactive, (2) the Act does not apply to their circumstances, (3) the Act is
impermissibly retroactive (this count is repetitive of Count 1), (4) the “beyond a
reasonable doubt” standard used by the Service is unlawful, (5) the Act violates
the Fifth and Eighth Amendments, (6) the Act exceeds the powers of Congress,
(7) the Service unlawfully failed to apply the categorical approach when
adjudicating their applications, and (8) the denial of the employment
authorization was unlawful. (Id. ¶¶ 10–25.)
The Government moved to dismiss. (Gov’t Mot.) In response, the
Giordanos cross-moved for summary judgment. (Pl. Mot.) The Government
responded to their arguments but did not take issue with the permissibility of
such a cross-motion. (DE 32.)
STANDARD OF REVIEW
“When a party seeks review of agency action under the APA, the district
judge sits as an appellate tribunal. The entire case on review is a question of
law.” Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001)
(internal quotation marks and citation omitted). In such a case, “[a] court can
fully resolve any purely legal question on a motion to dismiss, there is no
inherent barrier to reaching the merits at the 12(b)(6) stage,” and “there is no
real distinction in this context between the question presented on a 12(b)(6)
When the Giordanos filed their Amended Complaint, William Barr was the
Attorney General and Mark Koumans was the Acting Director of the Service. (Am.
Compl. ¶ 3.) Now, Merrick Garland is the Attorney General and Tracy Renaud is now
the Acting Director of the Service. Pursuant to Fed. R. Civ. P. 25(d), when a public
official is a party to an action and subsequently leaves office, that official’s successor
may be substituted as a party. Accordingly, Merrick Garland is substituted for William
Barr; and Tracy Renaud is substituted for Mark Koumans. The accompanying order
will direct the clerk of the court to amend the docket and caption accordingly.
motion and a motion for summary judgment.” Marshall Cnty. Health Care Auth.
v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993); cf. 5 U.S.C. § 706(2) (“To the
extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law . . . .”). Accordingly, “[s]ummary judgment
is the proper mechanism for deciding, as a matter of law, whether an agency
action is supported by the administrative record and consistent with the APA
standard of review.” Tomasi v. Township of Long Beach, 364 F. Supp. 3d 376,
389 (D.N.J. 2019) (citation omitted), aff’d, 796 F. App’x 766 (3d Cir. 2020).
Because the plaintiffs have moved for summary judgment, and the Government
does not oppose that procedure, I will treat this case as one presenting crossmotions for summary judgment. Neto v. Thompson, 506 F. Supp. 3d 239, 244
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “While summary judgment is the
proper mechanism for APA cases . . . , the usual summary judgment standard
does not apply in the sense that the district court does not need to determine
whether there are disputed facts to resolve at trial since the administrative
agency is the finder of fact.” Neto, 506 F. Supp. 3d at 244 (quotation marks and
citation omitted). Instead, my task is to review the administrative record and
determine whether, as a matter of law, the Service’s action complied with the
The APA empowers courts to review agency actions and set them aside if
they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Each “claim” by the Giordanos
alleges a different way that the Service’s actions here were unlawful. I address
each in turn.
A. Counts 1 and 3
Counts 1 and 3 allege that the Adam Walsh Act should not apply to Mr.
Giordano’s convictions because they predate the passage of the Act, so that its
application would be impermissibly retroactive. (Am. Compl. ¶¶ 11, 15.)
“Retroactivity is not favored in the law,” and a court may bar a statute’s
retroactive effect in an appropriate case. Francisco-Lopez v. Att’y Gen., 970 F.3d
431, 436 (3d Cir. 2020), as amended (May 15, 2020). To do so, a court must
first determine whether a statute is indeed retroactive—i.e., whether it “takes
away or impairs vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability, in respect to
transactions or considerations already past.” Bakran, 894 F.3d at 567 (citation
omitted). In Bakran, the Third Circuit held that the Adam Walsh Act is not
impermissibly retroactive, because “the wrongful activity targeted by the
statute is the potential future conduct” of applying for an immigration benefit.
Id. In other words, the Act does not come into play until a person takes a
specific post-enactment action. See id. Accordingly, it does not have a
retroactive effect, and a retroactivity challenge fails. Id. 3
For those reasons, the Court will enter summary judgment in the
Government’s favor on Counts 1 and 3.
B. Count 2
The Giordanos allege that the Service erred in denying the petition
because the Adam Walsh Act does not apply to petitions involving consenting
adults. (Am. Compl. ¶ 13.) In their view, the Act prohibits sex offenders from
petitioning on behalf of child aliens only. (Pl. Mot. at 11.)
Before addressing their reasoning, I must address the Government’s
argument that I lack jurisdiction over this claim. (Gov’t Mot. at 13.) Although
the APA allows for judicial review of agency decisions, it bars review where
“statutes preclude judicial review” or “agency action is committed to agency
The Giordanos concede that their retroactivity claims must fail under Bakran.
(Pl. Mot. at 11.)
discretion by law.” 5 U.S.C. § 701(a). Because the Adam Walsh Act commits the
no-risk determination to “the Secretary’s sole and unreviewable discretion,”
that determination is unreviewable. Bakran, 894 F.3d at 562. Thus, to the
extent the Giordanos allege that the Service should have considered their
circumstances and how they interact with the statute’s purpose when
determining risk, I would lack jurisdiction over that claim.
But the Giordanos also seem to argue that, when the Act is read with its
purposes and principles of constitutional avoidance in mind, it does not apply
here. To that extent their argument involves, not a discretionary determination,
but a “predicate legal issue” which I do have the authority to review. Privett,
865 F.3d at 380; see also Bremer v. Johnson, 834 F.3d 925, 929 (8th Cir.
2016). In other words, their argument goes to “whether statutory conditions
precedent to the agency’s authority to exercise discretion have been satisfied.”
Bremer, 834 F.3d at 929. As to such a challenge, I have jurisdiction. See
Bakran, 894 F.3d at 564 n.5 (“[W]e are not holding that a court lacks
jurisdiction to review an action beyond the authority Congress granted to the
agency . . . .”).
Nonetheless, on the merits, their argument is unpersuasive. They first
reason that the purpose of the Act is to protect children, so it should not apply
when a citizen petitions on behalf of his consenting adult spouse. Yet the
statutory language must be given its natural scope, even if Congress was most
concerned with a different problem. Bostock v. Clayton County, 140 S. Ct.
1731, 1737, 1749 (2020). The statutory sections clearly provide that “any
citizen” may petition on behalf of “children, spouses, and parents” unless that
citizen “has been convicted of a specified offense against a minor.” 8 U.S.C.
§§ 1154(a)(1)(A)(i), (viii)(I), 1151(2)(A)(i). Mr. Giordano, as he concedes, plainly
falls within the literal terms of the statute. That Congress may have enacted a
prohibition broader than the primary evil it sought to address is of no
consequence. See Bostock, 140 S. Ct. at 1737. 4
Next, the Giordanos invoke the canon of constitutional avoidance. (Pl.
Mot. at 13–14.) Under the canon, when a court faces two readings of a statute,
one of which would create a constitutional problem, the court should adopt the
interpretation that avoids the problem. Nielsen v. Preap, 139 S. Ct. 954, 971–
72 (2019). The Giordanos argue that interpreting the Act to apply to them
infringes on Mr. Giordano’s constitutional rights. But the Act is only capable of
one meaning—it applies to Mr. Giordano—so the canon of constitutional
avoidance is irrelevant. Id.
Perhaps what the Giordanos are saying is that the Act is
unconstitutional as applied to Mr. Giordano. See id. (even when the
constitutional avoidance canon is inapplicable, a plaintiff can bring an asapplied challenge to the statute as interpreted by the court); Heffner v. Murphy,
745 F.3d 56, 65 (3d Cir. 2014) (an “as-applied” challenge “does not contend
that a law is unconstitutional as written but that its application to a particular
person under particular circumstances deprived that person of a constitutional
right”). That argument fares no better, however. The Giordanos never identify
which constitutional right of Mr. Giordano’s the Act infringes upon. To the
extent he invokes the right to marry, the Third Circuit has rejected such a
challenge. Bakran, 894 F.3d at 564–65.
For these reasons, the Court will enter summary judgment in the
Government’s favor on Count 2.
To the extent the Giordanos argue that it is arbitrary and capricious for an
agency to interpret the Act to apply here, that argument fails. Courts only review
whether an interpretation is arbitrary and capricious if the statute is ambiguous.
Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 52–53 (2011).
The Adam Walsh Act is not ambiguous, so the arbitrary-and-capricious standard is
not triggered. Struniak v. Lynch, 159 F. Supp. 3d 643, 658 (E.D. Va. 2016).
C. Count 4
The Giordanos allege that the Service’s “beyond a reasonable doubt”
standard for its no-risk determinations is contrary to the Adam Walsh Act, that
it is inconsistent with usual burdens of proof for civil adjudications, and that it
violates the APA’s requirement that rules go through notice-and-comment
rulemaking. (Am. Compl. ¶ 17.) The Third Circuit, however, held that the
Secretary has “unreviewable discretion” regarding “the process by which the
[he or she] reaches this [no-risk] decision.” Bakran, 894 F.3d at 563. That
means the Secretary alone can decide “the type of proof required, the
evidentiary standard a petitioner must satisfy, and whether the petitioner’s
evidence meets that standard.” Id. As a result, the Bakran court held that it
could not review the decision to adopt a “reasonable doubt” standard. Id.
Nonetheless, the Giordanos argue that they present a purely legal issue
unaddressed by Bakran: whether the “reasonable doubt” standard violates
other statutory and agency directives commanding that “preponderance of the
evidence” is the default burden of proof. (Pl. Mot. at 15–18.) The argument is
incorrect. Bakran held that the Secretary, and thereby the Service, have
specifically been granted the unreviewable discretion to fix “the evidentiary
standard.” 894 F.3d at 563. The Giordanos disagree with the Secretary’s choice
of standard, but that is the Secretary’s choice to make under the text of the
Act. Id. What is more, the Giordanos cannot be right that their argument
escapes Bakran; there, the plaintiff raised the same argument and the Bakran
Court held that it could not review it. Id. at 561 (plaintiff argued that the
agency lacked authority to adopt a “reasonable doubt” standard and that
notice-and-comment rulemaking was required); see also Appellant’s Opening
Brief at 13–17, Bakran, 894 F.3d 557 (No. 16-3440).
I thus lack jurisdiction over Count 4, and it will be dismissed.
D. Count 5
The Giordanos allege that the Adam Walsh Act, as applied here, violates
Fifth Amendment’s procedural and substantive due process protections and
the Eighth Amendment’s protection against cruel and unusual punishment.
(Am. Compl. ¶ 19.) I disagree.
First, the Fifth Amendment provides that the federal government cannot
“deprive” a person “of life, liberty, or property, without due process of law.”
U.S. Const. amend. V. This guarantee encompasses “a substantive component,
which forbids the government to infringe certain ‘fundamental’ liberty interests
at all,” including the right to marry. Bakran, 894 F.3d at 564 (citations
omitted). The Third Circuit, in a decision which binds this Court, has held that
the Adam Walsh Act does not infringe upon that right. Id.
The Fifth Amendment also means that the federal government must
provide “notice and an opportunity to be heard” before depriving someone of a
recognized interest. Dusenbery v. United States, 534 U.S. 161, 167 (2002)
(citation omitted); Dungan v. Slater, 252 F.3d 670, 676 (3d Cir. 2001). I assume
for purposes of analysis that such an interest is implicated here. But see Kerry
v. Din, 576 U.S. 86, 100–01 (2015) (plurality) (citizen did not have protected
interest in her non-citizen husband’s visa). Nonetheless, due process only
requires “the opportunity to be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation marks
omitted). The Giordanos received notice of the possible denial of their petitions,
were invited to present evidence and arguments, and received a written,
reasoned explanation for the denial. That is sufficient to discharge the
government’s obligation to afford due process. Gebhardt v. Nielsen, 879 F.3d
980, 987 (9th Cir. 2018); Bremer, 834 F.3d at 933.
Finally, the Eighth Amendment “limit[s] the government’s power to
punish.” Austin v. United States, 509 U.S. 602, 609 (1993). Accordingly, for the
Amendment’s limits to apply, the Giordanos must show that the Adam Walsh
Act’s prohibition is a punishment. Id. at 609–10. Yet the Bakran court already
held that the Act does not seek to punish, but to protect the public from sex
offenders by limiting their access to immigration benefits. 894 F.3d at 566 &
n.8. As a result, the Eighth Amendment does not apply. Bremer, 834 F.3d at
For those reasons, the Court will enter summary judgment in the
Government’s favor on Count 5.
E. Count 6
The Giordanos allege that the Adam Walsh Act “is unconstitutional as an
enactment beyond the powers delegated to Congress.” (Am. Compl. ¶ 21.) Their
brief clarifies that they press two constitutional claims here: (1) the Act is not
supported by one of Congress’s enumerated powers, and (2) the Act is an
unconstitutional delegation of authority from Congress to an agency. (Pl. Mot.
at 23–26.) Neither claim has merit.
Congress may only pass laws pursuant to its enumerated powers under
the Constitution. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 534
(2012). One such enumerated power is the authority to “establish an uniform
Rule of Naturalization.” U.S. Const. Art. I, § 8, cl. 4. This clause grants
Congress a “broad, undoubted power over the subject of immigration and the
status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012). As an act
that regulates the status of aliens, the Adam Walsh Act is a proper exercise of
The Giordanos argue that the Act regulates citizens—not aliens—by
depriving them of the company of their family members. Because the Act is not
focused only on aliens, they reason, it is not an exercise of Congress’s power to
regulate aliens. (Pl. Mot. at 24–25.) At bottom, however, the Act dictates
whether certain persons may receive family-member visas. Although that
determination depends on who the citizen-sponsor is, the role of a citizen in the
application process does not change the application’s fundamental nature as
one for an adjustment of alien status. Congress has “broad, undoubted power”
in this area, Arizona, 567 U.S. at 394, and the Act falls within that scope.
The Giordanos’ second Constitutional claim rests on the non-delegation
doctrine. Although the Constitution grants only Congress the power to
legislate, Congress may delegate that power to administrative agencies in the
Executive branch “if it lays down by legislative act an intelligible principle to
which the person or body authorized to exercise the delegated authority is
directed to conform.” United States v. Bruce, 950 F.3d 173, 175 (3d Cir. 2020)
(cleaned up). The requirement that Congress provide an “intelligible principle”
is called the non-delegation doctrine. Id. That doctrine is violated by the Adam
Walsh Act, the Giordanos argue, because the Act does not sufficiently cabin the
Service’s discretion. (Pl. Mot. at 26.) In other words, there is nothing in the
statute which would stop the Secretary from, for example, ruling that all
applications “filed on a Tuesday must be denied.” (Id.) Again, it seems that the
Giordanos take issue with the Secretary’s power to adopt a “beyond a
reasonable doubt” standard because its decision to do so was not sufficiently
confined by an “intelligible principle” articulated by Congress.
The non-delegation claim fails for two reasons. First, “the non-delegation
doctrine applies only to delegations by Congress of legislative power; it has no
application to exercises of executive power.” Bruce, 950 F.3d at 175.
Limitations on delegation do not apply where Congress simply allows the
Executive to exercise an authority it already enjoys. Id. “The exclusion of
aliens” is one area where the Executive already enjoys substantial authority.
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).
Moreover, determining the evidence required to make a decision on an
application is an inherently executive power. As such, the broad discretion
Congress granted the Secretary through the Adam Walsh Act cannot violate the
Second, at any rate, Congress in enacting the Adam Walsh Act did
provide sufficiently intelligible principles; the Secretary’s promulgation of a
particular evidentiary standard is a gap he or she is allowed to fill. The Act
provides that the Secretary can grant a visa if “the citizen poses no risk to the
alien.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I). “No risk” is sufficiently intelligible. See
Gundy v. United States, 139 S. Ct. 2116, 2129 (2019) (plurality) (collecting
cases where the Court upheld “very broad delegations” such as the “public
interest,” “authorizations for agencies to set ‘fair and equitable’ prices and ‘just
and reasonable’ rates,” and “a delegation to an agency to issue whatever air
quality standards are ‘requisite to protect the public health’” (citations
omitted)). The level of evidence required to assure the Secretary that there is no
risk is a “feasibility” judgment which the Secretary must make in deciding how
to carry out his or her mandate. Id. at 2130. In other words, Congress need not
provide limits on every aspect of the Secretary’s decision-making. Id. Congress
can give the Secretary “broad general directives” and leave the rest to him or
her to implement.
For these reasons, the Court will enter summary judgment in the
Government’s favor on Count 6.
F. Count 7
The Giordanos allege that the Service “unlawfully failed to apply the
controlling categorical approach” when deciding their application. (Am. Compl.
¶ 23.) In their brief, however, they withdraw Count 7. (Pl. Mot. at 3.) I will treat
the withdrawal as a voluntary dismissal under Federal Rule of Civil Procedure
41(a)(2). Count 7 is therefore dismissed.
G. Count 8
The Giordanos allege that the Service also erroneously denied Mrs.
Giordano’s employment authorizations. (Am. Compl. ¶ 25.) But because the
Service lawfully denied the visa application, the employment authorizations
were also properly denied. 8 U.S.C. § 1255(a). 8 C.F.R. §§ 245.1(a), (b),
274a.14(b)(1). For that reason, the Court will enter summary judgment in the
Government’s favor on Count 8.
For the reasons set forth above, the Government’s motion to dismiss is
treated as one for summary judgment and is granted. The Giordanos’ crossmotion for summary judgment is denied.
A separate order will issue.
Dated: July 14, 2021
/s/ Kevin McNulty
Hon. Kevin McNulty
United States District Judge
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