Parella v. Johnson et al
Filing
15
MEMORANDUM-DECISION and ORDERED, that Defendants Motion (Dkt. No. 10) is GRANTED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED with prejudice. Signed by Senior Judge Lawrence E. Kahn on June 27, 2016. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ALFRED PARELLA,
Plaintiff,
-against-
1:15-cv-0863 (LEK/DJS)
JEH JOHNSON, Secretary, Department
of Homeland Security, et al.,
Defendants.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Plaintiff Alfred Parella (“Plaintiff”) commenced this action against various officers and
employees of the United States (collectively, “Defendants”), alleging violations of his constitutional
rights and of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. Dkt. No. 1
(“Complaint”). Specifically, Plaintiff challenges orders of the United States Citizenship and
Immigration Services (“USCIS”)1 denying petitions that sought to classify his alien wife as an
immediate relative and thereby obtain lawful permanent residence for her. Compl. ¶¶ 6-7, 25-33;
Dkt. Nos. 1-1 to -3 (“Exhibits 1-3”); see also 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A)(i). These
petitions were denied because 8 U.S.C. § 1154(a)(1)(A)(viii)(I) removes the right to petition from
any “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 [the] petition . . . is
1
USCIS is a part of the Department of Homeland Security.
filed.” See Compl. ¶ 7; Exs. 1-3.2
On October 9, 2015, Defendants filed a Motion to dismiss for lack of subject matter
jurisdiction and for failure to state a claim. Dkt. No. 10 (“Motion”); see also Dkt. Nos. 13
(“Opposition”); 14 (“Reply”). For the reasons stated below, Defendants’ Motion is granted.
II.
BACKGROUND
A. Plaintiff’s Criminal History and the Adam Walsh Act
The following facts are taken from the Complaint and are assumed to be true for purposes of
Defendants’ Motion. Plaintiff is a United States citizen who, in 2000, was convicted by the New
York state courts of sexual abuse in the first degree. Compl. ¶ 8; see also N.Y. PENAL LAW §
130.65(1) (“A person is guilty of sexual abuse in the first degree when he or she subjects another
person to sexual contact . . . [b]y forcible compulsion.”). The victim of this offense was a minor.
Compl. ¶ 7; see also Ex. 2 at 2 (noting that Plaintiff was “charged with sexually abusing a 15 year
old girl”).
In 2006, Congress passed the Adam Walsh Child Protection and Safety Act (“AWA”), Pub.
L. No. 109-248, 120 Stat. 587 (2006). In relevant part, the AWA barred United States citizens from
petitioning for the classification of an alien as the citizen’s immediate relative when the citizen “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 [the] petition . . . is filed.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I); see also 42
2
“On a motion to dismiss, the court may consider ‘any written instrument attached to [the
complaint] as an exhibit or any statements or documents incorporated in it by reference.’” Yak v.
Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001) (alteration in original) (quoting Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)).
2
U.S.C. § 16911(7), (14) (defining the term “specified offense against a minor”).3 Plaintiff’s
conviction for sexual abuse in the first degree qualifies under the AWA as a specified offense
against a minor. Compl. ¶ 7; see also Exs. 1-3.
On February 8, 2007, without notice-and-comment rulemaking, “USCIS issued a policy
memorandum adopting a new standard” for making the determination that “the citizen poses no risk
to the alien” as required by the AWA. Compl. ¶¶ 37-38; Memorandum from Michael Aytes, Assoc.
Dir., USCIS, to Reg’l Dirs. et al. (Feb. 8, 2007) (“Aytes Memo”). Under the Aytes Memo, a citizen
seeking approval of a petition who has been convicted of a specified offense against a minor “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
beneficiary(ies).” Aytes Memo at 5 (emphasis added); accord Compl. ¶ 39. Pursuant to the Aytes
Memo, this demonstration is required even when “none of the intended beneficiaries are children,”
in which case the question is “whether the petitioner poses any risk to the safety or well-being of the
adult beneficiary.” Aytes Memo at 7; accord Compl. ¶ 39.
On September 24, 2008, “USCIS issued another memorandum regarding AWA
cases”—again without notice-and-comment rulemaking procedures—“transmit[ting] a Standard
Operating Procedure . . . for the adjudication of [petitions] under the [AWA].” Compl. ¶¶ 40, 4445; Memorandum from Donald Neufeld, Acting Assoc. Dir., USCIS, to Field Leadership (Sept. 24,
2008) (“Neufeld Memo”). The Neufeld Memo states that:
3
The Secretary of Homeland Security has delegated authority to make the “no risk”
determination to USCIS. Dep’t of Homeland Sec. Delegation No. 0150.1 § II(W) (June 5, 2003);
see also 8 C.F.R. § 2.1 (“The Secretary of Homeland Security may, in the Secretary’s discretion,
delegate any such authority or function to any official, officer, or employee of the Department of
Homeland Security . . . .”).
3
USCIS interprets the “poses no risk to the beneficiary” provision to
mean that the petitioner must pose no risk to the safety or well-being of
the beneficiary, including the principal beneficiary and any alien
derivative beneficiary. A petitioner who has been convicted of a
specified offense against a minor must submit 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 beneficiary(ies).
Generally, rehabilitation is paramount to the “poses no risk”
determination.
Neufeld Memo at 9; Compl. ¶ 43. The Neufeld Memo also notes that, “given the nature and
severity of many of the underlying offenses and the intent of the AWA, approval recommendations
should be rare.” Neufeld Memo at 2 (emphasis omitted).
B. Plaintiff’s Petitions and Administrative Appeal
In 2006, Plaintiff married his wife, Olga Parella, who is a foreign national. Compl. ¶¶ 11,
19, 25.4 On February 7, 2007, Plaintiff filed a Petition for Alien Relative, or Form I-130, seeking
classification of his wife as an immediate relative and a corresponding change in her immigration
status. Compl. ¶ 29; Ex. 1 at 4.5 On September 24, 2007, USCIS responded to the petition with a
“Request for Evidence and Notice of Intent to Deny” (“RFE/NOID”) based on Plaintiff’s conviction
for sexual abuse, and Plaintiff was given 30 days to respond with evidence showing that he poses no
risk to his alien spouse. Ex. 1 at 4. Plaintiff submitted a significant amount of evidence in response
to the RFE/NOID. See id. at 4-5. Despite this evidence, USCIS denied Plaintiff’s petition, finding
that his “evidence does not demonstrate, beyond a reasonable doubt, that [Plaintiff] pose[s] no risk
4
Plaintiff also states that their marriage is “a loving and nurturing relationship” and that his
wife was “fully aware of the facts and circumstances of his conviction and freely chose to marry him
and live with him.” Compl. ¶¶ 10-11.
5
For this Exhibit, the Court uses the pagination assigned by the Court’s Electronic Court
Filing (“ECF”) system.
4
to the safety and well-being of [his] beneficiary.” Id. at 4, 9-10; Compl. ¶ 30.
On August 2, 2010, Plaintiff again filed a Form I-130 to classify his wife as an immediate
relative. Compl. ¶ 31; Ex. 2 at 1. “On July 6, 2011, USCIS requested that [Plaintiff] submit
evidence that demonstrates, beyond any reasonable doubt, that [he] pose[s] no risk to the safety and
well-being of the beneficiary.” Ex. 2 at 3. Again, Plaintiff submitted evidence in response to this
demand. See id. at 3-4. On January 19, 2012, USCIS again concluded, “in its exercise of sole and
unreviewable discretion, that [Plaintiff] ha[s] not sufficiently demonstrated that [he] pose[s] no risk
to the beneficiary” and accordingly denied his petition. Id. at 4; Compl. ¶ 32. Plaintiff then
appealed this determination to the Board of Immigration Appeals (“BIA”). Compl. ¶ 33; Ex. 3. On
March 24, 2015, the BIA denied Plaintiff’s appeal, holding that the BIA “lack[s] jurisdiction to
review [USCIS’s] risk determination,” since the AWA provides that this “determination lies within
the sole and unreviewable discretion of the Secretary.” Ex. 3.
C. Procedural History
On July 7, 2015, Plaintiff filed this lawsuit, seeking relief from the denials of his I-130
petitions. Compl. In the Complaint, Plaintiff sets out six causes of action: (1) application of the
AWA against Plaintiff is an unconstitutional ex post facto application of law, (2) the denial of
Plaintiff’s petitions violates his right to procedural and substantive due process, (3) the AWA’s
petition bar is an unconstitutionally excessive punishment, (4) USCIS’s interpretation of the AWA
(pursuant to the Aytes and Neufeld Memos) is arbitrary and capricious in violation of the APA,
(5) USCIS was required to employ notice-and-comment rulemaking in the adoption of the Aytes and
Neufeld Memos, and (6) the Aytes and Neufeld Memos exceed USCIS’s statutory authority.
Compl. ¶¶ 51-115.
5
On October 9, 2015, Defendants moved to dismiss the Complaint, arguing that the Court
lacks subject matter jurisdiction over Plaintiff’s procedural due process claim and Plaintiff’s APA
claims. Mot.; see also Dkt. No. 10-1 (“Defendants’ Memorandum”) at 5. Defendants contend that
8 U.S.C. § 1252(a)(2)(B) bars the Court from reviewing these claims, since the statute strips courts
of jurisdiction to review any “decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under [the immigration code] to be in the
discretion of the Attorney General or the Secretary of Homeland Security.” Additionally,
Defendants moved to dismiss any remaining claims on the ground that Plaintiff’s Complaint fails to
state a claim for which relief may be granted. Mot.; Defs.’ Mem. at 10-25.
III.
LEGAL STANDARD
A. Subject Matter Jurisdiction
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows motions to dismiss for lack of
subject matter jurisdiction. “Dismissal of a case for lack of subject matter jurisdiction under Rule
12(b)(1) is proper ‘when the district court lacks the statutory or constitutional power to adjudicate
it.’” Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (quoting Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000)).
When the challenge to subject matter jurisdiction is facial—namely, when it is “based solely
on the allegations of the complaint or the complaint and exhibits attached to it”—the Court must
accept the plaintiff’s factual allegations as true and draw “all reasonable inferences in favor of the
plaintiff.” Carter v. HealthPort Techs., LLC, No. 15-1072, 2016 WL 2640989, at *6 (2d Cir. May
10, 2016) (quoting Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)). If, however, the
jurisdictional challenge is based on factual evidence provided by the defendant, “plaintiffs will need
6
to come forward with evidence of their own to controvert that presented by the defendant.” Id.
at *7. In such a case, “[t]he plaintiff bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638
(2d Cir. 2005).
B. Failure to State a Claim
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept as
true the factual allegations contained in a complaint and draw all inferences in favor of the plaintiff.
See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed
pursuant to Rule 12(b)(6) only when it appears that there are not “enough facts to state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plausibility requires “enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct].”
Id. at 556. The plausibility standard “asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at
555). Where a court is unable to infer more than the mere possibility of the alleged misconduct
based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the
action is subject to dismissal. See id. at 678-79.
7
IV.
DISCUSSION
A. Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction,” and “possess only that power authorized
by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). The extent of this power is limited where, as here, Congress imposes specific jurisdictional
restrictions by statute. Specifically, 8 U.S.C. § 1252(a)(2)(B) provides that “no court shall have
jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of
Homeland Security the authority for which is specified under [the immigration code] to be in the
discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of
[asylum].”
Defendants in this case argue that this provision precludes review of USCIS’s decisions on
Plaintiff’s I-130 petitions, thus barring Plaintiff’s procedural due process and APA claims. Mot.;
Defs.’ Mem. at 5. Defendants are partially correct: while the Court cannot hear Plaintiff’s claim that
USCIS’s decisions were arbitrary and capricious (and thus in violation of the APA), the Court does
have subject matter jurisdiction to hear Plaintiff’s constitutional claims and his other APA claims
(namely his claims that the Aytes and Neufeld Memos were improperly adopted and exceed
statutory authority).
The question for each claim in determining whether the Court has subject matter jurisdiction
is whether or not the claim constitutes a challenge to USCIS’s exercise of discretion. See 8 U.S.C.
§ 1252(a)(2)(B); see also 5 U.S.C. § 701(a)(2) (prohibiting judicial review when “agency action is
committed to agency discretion by law”). Any challenge to USCIS’s no risk determination itself is
barred because the statute expressly leaves this determination to “the Secretary’s sole and
8
unreviewable discretion.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I); see also Heckler v. Chaney, 470 U.S.
821, 830 (1985) (finding judicial review under the APA unavailable “when Congress has expressed
an intent to preclude judicial review” or when “the statute . . . can be taken to have ‘committed’ the
decisionmaking to the agency’s judgment absolutely”). Accordingly, insofar as Plaintiff’s
Complaint states any claim that USCIS’s decisions with respect to his particular case were arbitrary
and capricious, the Court lacks subject matter jurisdiction to hear it.6 See Ruiz v. Mukasey, 552
F.3d 269, 276 n.5 (2d Cir. 2009) (“[F]actual determinations regarding whether an applicant
convicted of an offense against a minor will pose a risk to the alien on whose behalf an I-130
application is filed are committed to the ‘unreviewable discretion’ of the Secretary of Homeland
Security.”).
This commitment to agency discretion must also bar the Court’s review of whether the
adoption of the standards specified in the Aytes and Neufeld Memos was similarly arbitrary and
capricious. If the decision as to whether a petitioner poses no risk to an alien beneficiary is left to
“the Secretary’s sole and unreviewable discretion,” the Secretary’s choice of guidelines specifying
how USCIS is to exercise this discretion also cannot be subject to judicial review. See Struniak v.
Lynch, No. 15-CV-1447, 2016 WL 393953, at *8 (E.D. Va. Jan. 29, 2016) (“The weighing of
individual pieces of evidence cannot yield a final result if one does not know how much weight is
necessary to reach a conclusion. In light of this reality, the Secretary of Homeland Security has
established, via the Aytes Memorandum, that discretion should only be exercised in favor of making
a ‘no risk’ determination if there is evidence sufficient to conclude beyond a reasonable doubt that a
6
Plaintiff repeatedly states in his papers that he “does not challenge” USCIS’s “‘no risk’
determination” itself. E.g., Opp’n at 5-7.
9
petitioner poses no risk to his beneficiary. . . . Because the burden of proof, like the weighing of
evidence, is a necessary component in formulating a discretionary determination, § 1252(a)(2)(B)(ii)
withdraws subject matter jurisdiction to review the burden employed.”). As such, the Court lacks
subject matter jurisdiction to hear Plaintiff’s arbitrary-and-capricious claims.
The Court does, however, possess jurisdiction to hear Plaintiff’s remaining procedural and
constitutional claims, including his claims that the standards expressed in the Aytes and Neufeld
Memos were ultra vires and were required to undergo notice and comment. These claims do not
constitute a challenge to USCIS’s exercise of discretion, but instead challenge the agency’s actions
as procedurally or constitutionally unlawful.
The Second Circuit recently addressed the distinction between challenges to the Secretary’s
exercise of discretion and procedural and constitutional challenges in Mantena v. Johnson, 809 F.3d
721 (2d Cir. 2015), a case concerning the revocation of an employment visa petition. There, the
court reiterated that “the Secretary may well not have complete discretion over the procedure for
making a decision, even if the substantive decision falls within his discretion.” Id. at 729. In
Mantena, the plaintiff challenged the Secretary’s decision on the ground that it failed to comply with
the Department’s own regulations. Id. at 728-29. Accordingly, the Circuit found that
§ 1252(a)(2)(B)’s jurisdictional bar did not apply and that the district court should have reached the
merits of the plaintiff’s complaint. Id. at 728-30; accord Kurapati v. U.S. Bureau of Citizenship &
Immigration Servs., 775 F.3d 1255, 1261-62 (11th Cir. 2014). While the challenge in Mantena was
based on an I-140 petition and a failure to comply with regulations, its reasoning equally applies to
an I-130 petition and a challenge based on a failure to comply with statutes (namely, the APA and
the AWA itself).
10
Defendants also argue that the Court lacks subject matter jurisdiction to hear Plaintiff’s
procedural due process claim, but Mantena similarly forecloses this argument. It makes no
difference whether the procedural requirement stems from the agency’s own regulation, a federal
statute, or from the Constitution itself: compliance with the law (and especially with the
Constitution) is not subject to the agency’s discretion. See Garcia v. Neagle, 660 F.2d 983, 988
(4th Cir. 1981) (“Where the controlling statute indicates that particular agency action is committed
to agency discretion, a court may review the action if there is a claim that the agency has violated
constitutional, statutory, regulatory or other restrictions, but may not review agency action where the
challenge is only to the decision itself.” (citing Ness Inv. Corp. v. USDA, 512 F.2d 706, 715
(9th Cir. 1975))). Indeed, in Mantena, the district court found subject matter jurisdiction over the
plaintiff’s procedural due process claim and proceeded to address it on the merits, a path that the
Circuit did not disturb. See 809 F.3d at 727; see also Reynolds v. Johnson, 628 F. App’x 497, 498
(9th Cir. 2015) (reversing the district court for finding a lack of subject matter jurisdiction over the
plaintiff’s constitutional claim concerning the AWA); Makransky v. Johnson, No. 15-CV-1259,
2016 WL 1254353, at *3-4 (E.D.N.Y. Mar. 29, 2016) (finding subject matter jurisdiction over a
constitutional challenge to the AWA). Additionally, “where Congress intends to preclude judicial
review of constitutional claims its intent to do so must be clear . . . in part to avoid the ‘serious
constitutional question’ that would arise if a federal statute were construed to deny any judicial
forum for a colorable constitutional claim.” Webster v. Doe, 486 U.S. 592, 603 (1988).
For the reasons stated above, Plaintiff’s arbitrary-and-capricious APA claims, Compl. ¶¶ 8794, are dismissed for lack of subject matter jurisdiction. For Plaintiff’s remaining claims, the Court
finds that it does have subject matter jurisdiction and thus proceeds to consider whether Plaintiff
11
successfully states a claim for which relief may be granted.
B. Failure to State a Claim
1. Ex Post Facto Law
The Constitution prohibits the adoption of any ex post facto law, U.S. CONST. art. I, § 9,
cl. 3, a mandate that prevents “retroactive application of penal legislation,” Landgraf v. USI Film
Prods., 511 U.S. 244, 266 (1994). In United States v. Ward, 448 U.S. 242 (1980), the Supreme
Court outlined a two-part test for determining whether a statutory provision is civil or criminal in
nature, and thus whether the Ex Post Facto Clause applies. “First, we have set out to determine
whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly
a preference for one label or the other. Second, where Congress has indicated an intention to
establish a civil penalty, we have inquired further whether the statutory scheme was so punitive
either in purpose or effect as to negate that intention.” Id. at 248-49 (citation omitted); accord Doe
v. Pataki, 120 F.3d 1263, 1274-75 (2d Cir. 1997).
Addressing the first prong, the AWA lists titles for the relevant sections as “Immigration
Law Reforms to Prevent Sex Offenders from Abusing Children,” and “Barring Convicted Sex
Offenders from Having Family-Based Petitions Approved.” Pub. L. No. 109-248, tit. IV, 120 Stat.
587, 622. Nothing in these titles suggests that the provisions in question are intended to be punitive
instead of designed to prospectively guard potential immigrants from previously convicted sex
offenders. The only nonconclusory allegation on this point provided by Plaintiff is a reference to a
speech by Senator Patrick Leahy, in which the Senator argues that the relevant section of the AWA
could “harshly and unnecessarily penalize people seeking entry to the United States who have a
family member in the country.” 152 Cong. Rec. S8028 (2006) (emphasis added); Compl. ¶ 57.
12
Even if Senator Leahy’s individual speech could be said to “indicate[] an intention” of Congress,
Ward, 448 U.S. at 248, his language plainly reflected a concern that the AWA would “harshly and
unnecessarily penalize” the beneficiary, not the citizen petitioner. As such, Plaintiff has alleged no
facts—and the Court can find none—showing that the immigration provision of the AWA was
designed to punish people previously convicted of sex crimes, rather than to protect potential
immigrants as a forward-looking, civil statute.
Turning to the second prong of the Ward test, “[t]he Ex Post Facto Clause does not preclude
[Congress] from making reasonable categorical judgments that conviction of specified crimes
should entail particular regulatory consequences.” Smith v. Doe, 538 U.S. 84, 103-04 (2003)
(upholding the application of Alaska’s sex offender registration system to offenders convicted prior
to the system’s adoption). In determining whether such a regulatory consequence is excessively
punitive so as to make the provision penal instead of civil, “[t]he question is whether the regulatory
means chosen are reasonable in light of the nonpunitive objective.” Id. at 105. In this case, barring
persons convicted of sex crimes against children from petitioning for family-based visas is
reasonable in light of the statute’s objective, namely protecting potential beneficiaries from harm
that could come from establishing residency in the United States with an immigration status that is
dependant upon the petitioner. Though Plaintiff includes allegations suggesting that the AWA’s
provisions are not very effective at achieving its stated goals, see Compl. ¶ 56, the government is
not required to adopt the best or narrowest statute to avoid its classification as penal, see Smith, 538
U.S. at 105 (“The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in
determining whether the legislature has made the best choice possible to address the problem it
seeks to remedy.”).
13
Other courts that have addressed this issue have also concluded that the AWA is a civil
provision not subject to the Ex Post Facto Clause. E.g., Makransky, 2016 WL 1254353, at *6;
Suhail v. U.S. Attorney Gen., No. 15-CV-1259, 2015 WL 7016340, at *8-9 (E.D. Mich. Nov. 12,
2015). Because the provision challenged by Plaintiff is not penal in nature, it is not subject to the
prohibition of the Ex Post Facto Clause.
2. Constitutionally Excessive Punishment
The Eighth Amendment to the Constitution prohibits the infliction of “cruel and unusual
punishments.” This text has been interpreted to prohibit punishments that are excessive in relation
to the crime, as “it is a precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.” Atkins v. Virginia, 536 U.S. 304, 311 (2002) (alteration in original)
(quoting Weems v. United States, 217 U.S. 349, 367 (1910)); see also Rummel v. Estelle, 445 U.S.
263, 291 (1980) (Powell, J., dissenting) (“[T]he Eighth Amendment prohibits grossly excessive
punishment.”).
Similar to the Court’s ex post facto analysis above, a statute or other governmental act must
be penal in nature—either on its face or because of its effect—in order to invite scrutiny as cruel and
unusual punishment under the Eighth Amendment. See Trop v. Dulles, 356 U.S. 86, 94-95 (1958)
(basing Eighth Amendment analysis of a citizenship-stripping statute on a “[d]etermination of
whether th[e] statute is a penal law”); see also Austin v. United States, 509 U.S. 602, 609-11 (1993)
(analyzing whether forfeiture should be understood as punishment, and thus whether it is subject to
Eighth Amendment scrutiny); Makransky, 2016 WL 1254353, at *6 (employing the same analysis
for the AWA). Because the challenged provision of the AWA is not penal in nature, it cannot
constitute cruel and unusual punishment that is contrary to the Eighth Amendment.
14
3. Due Process
In addition to his Eighth Amendment and ex post facto claims, Plaintiff also alleges that
both the procedures used and the substance of USCIS’s decision violated his right to due process.
Compl. ¶¶ 65-79. As discussed below, even assuming that Plaintiff has a protected interest
sufficient to warrant procedural protections, due process was afforded in USCIS’s denials of his I130 petitions. Additionally, the substantive component of the Due Process Clause does not create a
fundamental right to the admission of an alien spouse. As such, Plaintiff’s due process claims must
be dismissed.
a. Procedural Due Process
The procedural component of the Due Process Clause prevents the deprivation of a protected
interest absent the provision of sufficient procedural protections. Thus, the inquiry into a procedural
due process claim is a two-prong test: “(1) whether plaintiffs possessed a protected liberty or
property interest, and, if so, (2) what process plaintiffs were due before they could be deprived of
that interest.” Adams v. Suozzi, 517 F.3d 124, 127 (2d Cir. 2008) (quoting Sealed v. Sealed, 332
F.3d 51, 55 (2d Cir. 2003)); see also Zinermon v. Burch, 494 U.S. 113, 126 (1990) (“[T]o determine
whether a constitutional violation has occurred, it is necessary to ask what process the State
provided, and whether it was constitutionally adequate.”).
While Plaintiff must establish both of these prongs in order to successfully state a procedural
due process claim, the Court need not reach the question of whether there is a protected liberty
interest in the approval of an I-130 petition sufficient to invoke constitutional procedure
15
requirements.7 This is because, under the Supreme Court’s procedural due process precedent,
sufficient process was provided in this case.
“Due process . . . is a flexible concept that varies with the particular situation.” Zinermon,
494 U.S. at 127. The amount of process that is due is generally determined by balancing three
distinct factors:
First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Examining the Mathews v. Eldridge factors suggests that minimum procedural protections
are required in making the discretionary no risk determination under the AWA. Even assuming that
the private interest in obtaining legal immigration status for an alien spouse is significant, the other
factors weigh heavily against Plaintiff’s position in this case. The risk of erroneous deprivation is
effectively zero where, as here, the determination is entirely within the agency’s discretion.
Furthermore, the procedures afforded here allowed Plaintiff to submit substantial evidence
regarding why he presented no risk to his proposed beneficiary; any additional procedures on this
7
While the Court ultimately decides this case on other grounds, the case Plaintiff uses to
support his argument that he has a protected interest in the approval of his I-130 petition is plainly
inapplicable here. Plaintiff cites to Ching v. Mayorkas, 725 F.3d 1149, 1155 (9th Cir. 2013), in
which the Ninth Circuit found a property right in the approval of an I-130 petition only because the
petitioner there was “entitled, as a matter of right, to the approval of his petition.” Because Plaintiff
is not entitled to approval of his I-130 petition, and in fact is barred from approval in the absence of
discretionary relief from the Secretary, the reasoning of Ching cannot support Plaintiff’s claims.
Second Circuit case law similarly suggests that there is not a protected interest in this case. See
Azizi v. Thornburgh, 908 F.2d 1130, 1134-36 (2d Cir. 1990).
16
point would provide minimum additional value to USCIS’s determination. Finally, the
government’s interest in maintaining simple procedures is strong given the entirely discretionary
nature of the no risk determination.
Also instructive on this point is the Supreme Court’s recent case of Kerry v. Din, 135 S. Ct.
2128 (2015). In Din, the Court addressed the denial of a spousal visa application under the
Immigration and Nationality Act’s bar against visas for aliens who engaged in “terrorist activity,” 8
U.S.C. § 1182(a)(3)(B). 135 S. Ct. at 2132. The notice of denial provided no explanation or
reasoning other than that the denial was made under § 1182(a)(3)(B). Id. The citizen spouse
brought suit, claiming that the lack of explanation for the visa denial violated her right to procedural
due process. Id. Although the case led to a significantly fractured Court, the controlling
opinion—authored by Justice Kennedy—found that “even assuming [Din] has [a protected liberty]
interest, the Government satisfied due process when it notified Din’s husband that his visa was
denied under the immigration statute’s terrorism bar.” Id. at 2139 (Kennedy, J., concurring in the
judgment). The procedural safeguards in that case were extremely minimal, see id. at 2144 (Breyer,
J., dissenting) (arguing that “neither spouse here has received any procedural protection”), but the
Court nevertheless found that sufficient constitutional process was afforded to Din.
Plaintiff claims that the Due Process Clause “requires a petitioner to have a meaningful
opportunity to respond to the evidence, to make an argument against a proposed deprivation and to
face his accusers.” Compl. ¶ 74.8 Even if Plaintiff were entitled to all of these protections, there are
8
Plaintiff’s additional claim that “procedural due process requires . . . the right to appeal,”
Compl. ¶ 73, is simply incorrect, see United States v. MacCollom, 426 U.S. 317, 323 (1976)
(plurality opinion) (“The Due Process Clause of the Fifth Amendment does not establish any right to
an appeal . . . .”). Plaintiff is also incorrect in saying that he “is left with no avenue to seek review
of the agency’s decisions,” Compl. ¶ 78, as the Court fully reviews Plaintiff’s constitutional and
17
no allegations in the Complaint suggesting that they were denied to him.9 Here, Plaintiff submitted
a significant quantity of evidence and received written decisions detailing the evidence presented
and describing the Secretary’s denial of the discretionary relief sought. See Exs. 1-2. The
Complaint fails to allege any specific procedural requests that were denied, any evidence that he was
barred from presenting, or any events suggesting that the USCIS agents did not evaluate his petition
in a fair and unbiased manner.10 See Compl. ¶¶ 72-76. Conclusory allegations that Plaintiff’s rights
were violated, without specific facts showing what procedures were denied to him, cannot formulate
a successful Fifth Amendment claim.
The only remaining allegation concerning procedural due process reflects Plaintiff’s
argument that “the [Aytes and Neufeld] memoranda dictate that the agency is already prejudiced
against such petitions and states approval should be ‘rare,’” and that, accordingly, Defendants’
“adoption of a policy of presumptive denial and their elevating the burden of proof . . . violates the
Plaintiff’s right to due process.” Compl. ¶¶ 75-76. This allegation has nothing to do with the
procedural protections afforded in Plaintiff’s attempt to make a no risk demonstration, but instead
challenges the Secretary’s determination of how he will exercise his discretion. Plaintiff cannot
repackage his arbitrary-and-capricious claim in a constitutional wrapping, and as such, this claim
must be dismissed.
remaining APA claims in this opinion.
9
Indeed, Plaintiff’s Opposition only argues that “Plaintiff’s substantive due process rights
have been violated.” Opp’n at 13. Because the Complaint does attempt to state a procedural due
process claim, however, see Compl. ¶¶ 72-78, the Court addresses this claim here.
10
The possible sole exception to this is Plaintiff’s claim that the Aytes and Neufeld Memos
themselves biased the reviewing USCIS agents by creating a presumption against a no risk
determination. See Compl. ¶¶ 75-76. This argument is further addressed below.
18
b. Substantive Due Process
In addition to the procedural protections afforded by the Fifth Amendment, the Supreme
Court has also interpreted the Due Process Clause to include a substantive component. See, e.g.,
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 848-50 (1992) (describing the standard for
adjudicating substantive due process claims). This substantive due process “protects individual
liberty against ‘certain government actions regardless of the fairness of the procedures used to
implement them.’” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v.
Williams, 474 U.S. 327, 331 (1986)).
In evaluating a substantive due process claim, “the first step is to determine whether the
asserted right is ‘fundamental.’” Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003). “Rights
are fundamental when they are ‘implicit in the concept of ordered liberty,’ or ‘deeply rooted in this
Nation’s history and tradition.’” Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 460-61 (2d Cir.
1996) (quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937), overruled on other grounds by
Benton v. Maryland, 395 U.S. 784 (1969); Moore v. City of East Cleveland, 431 U.S. 494, 503
(1977)). If a right is fundamental, strict scrutiny applies and any restriction on the right must be
narrowly tailored to serve a compelling governmental interest. Leebaert, 332 F.3d at 140;
Immediato, 73 F.3d at 460. “Where the claimed right is not fundamental, the governmental
regulation need only be reasonably related to a legitimate state objective.” Immediato, 73 F.3d at
461 (citing Reno v. Flores, 507 U.S. 292, 303-06 (1993); Bowers v. Hardwick, 478 U.S. 186, 196
(1986), overruled on other grounds by Lawrence v. Texas, 539 U.S. 558 (2003)).
In his Complaint, Plaintiff argues that the AWA—and USCIS’s denial of Plaintiff’s petitions
under the AWA—violates his “fundamental right to marry and live with his spouse as husband and
19
wife.” Compl. ¶ 71; accord id. ¶ 68. As such, the Court must address whether the right to live in
the United States with one’s alien spouse is a fundamental right subject to the substantive due
process protections of the Fifth Amendment.
At the outset, it is plainly correct that the Supreme Court has long recognized a fundamental
right to marry. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (overturning bans on interracial
marriages); Zablocki v. Redhail, 434 U.S. 374 (1978) (striking down a statute that required court
approval in order for persons failing to make child support payments to marry); Turner v. Safley,
482 U.S. 78 (1987) (invalidating a regulation that restricted marriage access for prison inmates).
The most recent apex of this principle is found in the Supreme Court’s same-sex marriage cases,
United States v. Windsor, 133 S. Ct. 2675 (2013), and Obergefell v. Hodges, 135 S. Ct. 2584
(2015).
Plaintiff extensively cites these marriage cases in his Complaint and Opposition. See
Compl. ¶ 70 & n.1; Opp’n at 17-20. It is important to note, however, that all of these cases reflected
one of two fundamental rights: the fundamental right to marry, and the fundamental right to marry
the person of one’s choice. The Supreme Court’s decision in Obergefell further explains that the
fundamental right to marry the person of one’s choosing is derived in part from the right to equal
protection under the law, and thus the prevention of discrimination against protected classes should
be seen as a core component of the Court’s jurisprudence in this area. See 135 S. Ct. at 2602-04
(explaining how, within the marriage context, “[t]he Due Process Clause and the Equal Protection
Clause are connected in a profound way”); see also Windsor, 133 S. Ct. at 2693-96 (same).11
11
Plaintiff attempts just such an argument in his Opposition. Opp’n at 20 (“[The AWA] is a
law that targets a politically disfavored group, sex offenders, not for reasons like government
efficiency but rather to impose a ‘disadvantage, a separate status, and so a stigma upon’ them.”
20
But this is not a case concerning the right to marry, or even the right to marry the person of
one’s choosing. These rights were already realized by Plaintiff when he married his wife in 2006.
Instead, this case is about the right to obtain a visa for an alien spouse. Plaintiff argues that this
right stems from an expanded view of the fundamental right to marry, which “necessarily
incorporates the right . . . to live together as husband and wife.” Opp’n at 20. In support of this
proposition, Plaintiff points to the Supreme Court’s language in Meyer v. Nebraska, in which the
Court listed—without engaging in present-day substantive due process analysis—a number of rights
denoted by the liberty interest in the Due Process Clause, including the right “to marry, establish a
home and bring up children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit
of happiness by free men.” 262 U.S. 390, 399 (1923).12 Inferences derived from dicta in a nearcentury old case cannot overcome the consistent voice of today’s courts, which even under a
dramatically expanded understanding of fundamental rights have found that there is no such right to
immigration benefits for one’s alien spouse. See Morales-Izquierdo v. Dept. of Homeland Sec., 600
F.3d 1076, 1091 (9th Cir. 2010) (finding no substantive due process right for U.S. citizens to live
with their alien spouses), overruled in part on other grounds by Garfias-Rodriguez v. Holder, 702
F.3d 504 (9th Cir. 2012) (en banc); Struniak, 2016 WL 393953, at *14-18 (denying a substantive
due process claim against the AWA); Burbank v. Johnson, No. 14-CV-292, 2015 WL 4591643,
(quoting Windsor, 133 S. Ct. at 2693)). Simply put, sex offenders are not a protected class. Roe v.
Marcotte, 193 F.3d 72, 82 (2d Cir. 1999); Taylor v. N.Y. State Dep’t of Corr. Servs.,
No. 07-CV-1288, 2009 WL 3522781, at *2 (N.D.N.Y. Oct. 29, 2009).
12
Meyer itself concerned a criminal conviction under “[a]n act relating to the teaching of
foreign languages in the state of Nebraska.” 262 U.S. at 396-97.
21
at *7-8 (E.D. Wash. July 29, 2015) (same); Cardenas v. United States, No. 12-CV-346, 2013 WL
4495795, at *7 (D. Idaho Aug. 19, 2013) (“[T]here is no constitutional right to reside with one’s
spouse in the United States.”); see also Boyal v. Napolitano, No. 09-CV-3263, 2011 WL 864618,
at *4 (E.D. Cal. Mar. 10, 2011) (noting the existence of “clear case law holding that there is no
substantive due process right to reside with one’s spouse”).
The uniformity of these cases is not surprising, since even if there were a fundamental right
to live with one’s spouse when both partners are citizens of the United States, the immigration
context of this case significantly alters the constitutional analysis. “In the exercise of its broad
power over naturalization and immigration, Congress regularly makes rules that would be
unacceptable if applied to citizens,” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976), and “‘over no
conceivable subject is the legislative power of Congress more complete than it is over’ the
admission of aliens,” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting Oceanic Navigation Co. v.
Stranahan, 214 U.S. 320, 339 (1909)). “Courts have long recognized the power to expel or exclude
aliens as a fundamental sovereign attribute exercised by the Government’s political departments
largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,
210 (1953). The expansion of substantive due process into the realm of immigration thus cannot be
“deeply rooted in this Nation’s history and tradition,” Immediato, 73 F.3d at 460-61 (quoting
Moore, 431 U.S. at 503), and requiring the government to admit any alien who is married to a U.S.
resident is not “implicit in the concept of ordered liberty,” id. (quoting Palko, 320 U.S. at 325-26).
“[J]udicial self-restraint requires us to exercise the utmost care whenever we are asked to
break new ground” in the field of substantive due process. Collins, 503 U.S. at 125. In light of this
principle, the Court will not expand its understanding of the constitutional marriage right in a
22
manner that contradicts the traditional sovereign prerogative concerning immigration. As discussed
earlier in the ex post facto context, the AWA’s immigration provision is reasonably related to a
legitimate governmental objective, namely the prevention of harm to potential immigration
beneficiaries by convicted sex offenders. See Immediato, 73 F.3d at 461 (applying rational basis
review when the claimed right is not fundamental).13 As such, Plaintiff cannot prevail on his
substantive due process claim.
4. APA Claims
Plaintiff’s final two claims arise under the APA, which requires notice and comment
procedures for the enactment of new rules and prohibits agency action “in excess of statutory . . .
authority.” 5 U.S.C. §§ 553, 706(2)(C). The factual predicate for both is the adoption of the Aytes
and Neufeld Memos, with Plaintiff complaining that the procedures used in their adoption and the
evaluative standards they espouse violate the APA and AWA’s statutory requirements. See Compl.
¶¶ 95-116. Because the Aytes and Neufeld Memos are exempt from the APA’s notice and comment
requirements, and fit within the broad discretion afforded to the Secretary under the AWA,
Plaintiff’s remaining APA claims must be dismissed.
a. Notice and Comment Rulemaking
The APA typically requires agencies to propose and adopt new rules using a notice-andcomment rulemaking process, in which a notice of proposed rulemaking is published in the Federal
Register and interested persons are allowed to submit their views to the agency before the rule is
finally adopted. 5 U.S.C. § 553(b)-(c). A key exception to this rulemaking procedure exists,
13
Nowhere in Plaintiff’s papers does he suggest that the AWA does not survive rational
basis review. See Compl.; Opp’n.
23
however, where the rule in question is “interpretative” (or “interpretive” as it is commonly referred
to by the courts). Id. § 553(b)(A).
“While the APA does not define interpretative (nor interpretive) rules, courts have
developed several general formulations in order to distinguish interpretive rules from those that are
‘substantive’ or ‘legislative,’ which must comply with the notice and comment provisions of the
APA.” Sweet v. Sheahan, 235 F.3d 80, 90 (2d Cir. 2000). Legislative rules “grant[] rights,
impose[] obligations, or produce[] other significant effects on private interests.” White v. Shalala, 7
F.3d 296, 303 (2d Cir. 1993) (quoting Perales v. Sullivan, 948 F.3d 1348, 1354 (2d Cir. 1991)).
More simply put, “[l]egislative rules have the force of law.” N.Y.C. Emps.’ Ret. Sys. v. SEC, 45
F.3d 7, 12 (2d Cir. 1995). “Interpretive rules, on the other hand, do not create rights, but merely
‘clarify an existing statute or regulation.’” Id. (quoting White, 7 F.3d at 303). Quoting the D.C.
Circuit, another Second Circuit case described four questions used in making this determination:
(1) whether in the absence of the rule there would not be an adequate
legislative basis for enforcement action or other agency action to confer
benefits or ensure the performance of duties, (2) whether the agency has
published the rule in the Code of Federal Regulations, (3) whether the
agency has explicitly invoked its general legislative authority, or (4)
whether the rule effectively amends a prior legislative rule. If the answer
to any of these questions is affirmative, we have a legislative, not an
interpretive rule.
Sweet, 235 F.3d at 91 (quoting Am. Mining Congress v. Mine Safety & Heath Admin., 995 F.2d
1106, 1112 (D.C. Cir. 1993)).
In this case, the Aytes and Neufeld Memos are properly classified as interpretive rules. The
Memos do not create generally applicable law or policy, but instead direct USCIS field agents as to
how the agency (and by extension, the Secretary) would like them to exercise its “sole and
unreviewable discretion” in making the AWA’s no risk determination. The Memos do not have the
24
force of law, see N.Y.C. Emps.’ Ret. Sys., 45 F.3d at 12, and the answer to each of the four
questions discussed in Sweet suggests an interpretive rule, see 235 F.3d at 91. At least one other
court has also found that the Aytes and Neufeld Memos are interpretive for purposes of the APA.
See Makransky, 2016 WL 1254353, at *7-8. As such, USCIS was not required to engage in notice
and comment rulemaking before adopting the Aytes and Neufeld Memos.
b. Ultra Vires
Plaintiff also argues that the policies found within the Aytes and Neufeld Memos exceed the
statutory authority granted to the Secretary under the AWA, specifically focusing on the adoption of
a “beyond any reasonable doubt” standard for the approval of a no risk determination. Compl.
¶¶ 106-12.14 According to Plaintiff, this “‘beyond any reasonable doubt’ standard violates the plain
language of the statue and is inconsistent with the law,” in part because normal visa adjudications
rely on the lower “preponderance of the evidence” standard. Compl. ¶¶ 106-07. As such, the Court
must examine whether the AWA can permit the adoption of this heightened standard for the
Secretary’s grant of discretionary relief.
While agency interpretations of the statutes they administer are often afforded significant
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
14
Though not reflected in the ultra vires section of his Complaint, Plaintiff also argues that
the “presumption of denial” expressed in the Aytes and Neufeld Memos is “found nowhere in the
statute” and thus violates the APA. Opp’n at 24-25. The sole case cited by Plaintiff for the
proposition that a presumption of denial violates the APA is Director, Office of Workers’
Compensation Programs, Department of Labor v. Greenwich Collieries, 512 U.S. 267, 280-81
(1994), in which the Court struck down a regulation that shifted the burden of proof away from the
petitioner, who was seeking benefits under the Black Lung Benefits Act. This case only serves to
rebut Plaintiff’s point, since far from prohibiting any presumption of denial, Greenwich Collieries
reiterates the APA’s general position that the proponent of an order or petition—in this case,
Plaintiff—carries the burden of proof. Cf. 5 U.S.C. § 556(d) (noting that, in hearings, “the
proponent of a rule or order has the burden of proof”).
25
842-43 (1984), this respect for an agency’s interpretation depends upon the degree of authority
delegated to the agency and the manner in which it adopted the challenged rule, see United States v.
Mead Corp., 533 U.S. 218, 226-27 (2001) (“We hold that administrative implementation of a
particular statutory provision qualifies for Chevron deference when it appears that Congress
delegated authority to the agency generally to make rules carrying the force of law, and that the
agency interpretation claiming deference was promulgated in the exercise of that authority.”). Here,
however, the Court need not determine whether the Aytes and Neufeld Memos warrant Chevron
deference, because the Memos represent a valid exercise of statutory authority even under the
limited deference of Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also Reno v. Koray,
515 U.S. 50, 61 (1995) (finding that an “internal agency guideline, which is akin to an ‘interpretive
rule’ that ‘do[es] not require notice and comment,’ is still entitled to some deference” (alteration in
original) (quoting Shalala v. Guernesy Mem’l Hosp., 514 U.S 87, 99 (1995))).
Starting with the language of the statute, the provision in question states that the right to
petition for immediate relatives “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 . . . is filed.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I). It is important to
note what interpretation of this section is being challenged. USCIS does not claim that this section
creates or requires the use of a “beyond any reasonable doubt” standard. Instead, the Memos
explain how USCIS will exercise the Secretary’s discretion when making no risk determinations
under the AWA, including by requiring the submission of “evidence that clearly demonstrates,
beyond any reasonable doubt, that [the petitioner] poses no risk to the safety and well-being of his or
26
her intended beneficiary(ies).” Aytes Memo at 5. Thus, the question is whether USCIS’s
interpretation of the statute as permitting the use of this heightened standard before granting
discretionary relief is acceptable.
Skidmore holds that the degree of deference afforded to an interpretation “depend[s] upon
the thoroughness evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give it power to persuade, if lacking
power to control.” 323 U.S. at 140. Given the plain text of the statute, which grants “sole and
unreviewable discretion” to the Secretary in making no risk determinations, an interpretation of
§ 1154(a)(1)(A)(viii)(I) as allowing the adoption of a beyond any reasonable doubt standard—or any
other standard, for that matter—fits the clearest reading of the statute, and certainly survives review
under Skidmore. The AWA provides the Secretary with total discretion on how to make the no risk
determination. Requiring a heightened showing by petitioners in these circumstances—a position
that USCIS has consistently taken and explains in the Aytes and Neufeld Memos—clearly fits the
statute’s intent and discretionary scheme. Because requiring petitioners to make the no risk
demonstration “beyond any reasonable doubt” is a legitimate exercise of the Secretary’s discretion
under the AWA, the agency’s interpretation of that statute is proper and the adoption of the Aytes
and Neufeld Memos was not ultra vires.
Insofar as the Complaint also alleges that applying the AWA is ultra vires when the
petition’s beneficiary is an adult, see Compl. ¶ 113, this argument is clearly belied by the text of the
statute. The statute requires a no risk determination for any “alien with respect to whom a
petition . . . is filed,” 8 U.S.C. § 1154(a)(1)(A)(viii)(I), and does not make any distinction between
adult and child beneficiaries. “If the intent of Congress is clear, that is the end of the matter; for the
27
court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842-43. Here, the plain text of the statute requires a no risk determination for
every beneficiary, including adults. USCIS’s compliance with the plain text of the statute cannot
give rise to an ultra vires APA claim.
Though not discussed in his Opposition, Plaintiff’s Complaint also keys in on the language
of § 1154(a)(1)(A)(i), claiming that the AWA can only prohibit him from “filing” an I-130 petition,
but that once a petition is filed, it cannot be denied on account of his status as a convicted sex
offender. Compl. ¶ 114. This argument is obviously unavailing. First, Plaintiff’s interpretation is
absurd on its face. Under his view, if a USCIS agent fails to tackle a petitioner before his papers
reach their inbox, they would be forced to approve the petition despite the clear intentions of
Congress. “Where an examination of the statute as a whole demonstrates that a party’s
interpretation would lead to ‘absurd or futile results . . . plainly at variance with the policy of the
legislation as a whole,’ that interpretation should be rejected.” Yerdon v. Henry, 91 F.3d 370, 376
(2d Cir. 1996) (alteration in original) (quoting EEOC v. Commercial Office Prods. Co., 486 U.S.
107, 120 (1988)). Second, Plaintiff’s reading ignores the plain language of § 1154(a)(1)(A)(viii)(I),
which states that the entire petitioning procedure “shall not apply to a citizen of the United States
who has been convicted of a specified offense against a minor” absent discretionary relief from the
Secretary. For all of these reasons, Plaintiff has failed to state a claim under the APA for which
relief may be granted.
IV.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that, for the reasons stated above, Defendants’ Motion (Dkt. No. 10) is
28
GRANTED; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED with prejudice; and it
is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
June 27, 2016
Albany, New York
29
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