MAX O. COGBURN, JR., District Judge.
The material facts in this case are not in dispute. Plaintiff Robert S. Roland is a United States citizen residing in Hendersonville, North Carolina. His wife, Plaintiff Wan Hang Gloria Chan, is a native of China and a citizen of the United Kingdom residing in Hendersonville, North Carolina. See (# 19-2; 19-3). On July 25, 1983, Roland was charged in Dade County, Florida with one count of lewd and lascivious behavior, two counts of lewd and lascivious assault, and one count of indecent exposure. See Administrative Record ("AR") 753. Roland pleaded no contest to indecent exposure, adjudication of guilt on that charge was withheld, and the court sentenced Roland to one year of probation after the remaining charges were dismissed. Id. On May 29, 1994, Roland was again charged in Dade County with two counts of lewd and lascivious assault on a child under 16 years of age. AR 754. On December 6, 1995, Roland pleaded guilty to the two counts as charged and was sentenced to five years of probation. Id.
On March 20, 2009, Roland and Chan were married in Palm Beach County, Florida. AR 858. On January 11, 2011, Roland filed the I-130 petition ("Form I-130"), which is the first step in obtaining lawful permanent resident status for an alien relative, that is the subject of the instant litigation.
On September 14, 2011, United States Citizenship and Immigration Services ("USCIS") issued Roland a Request for Evidence and Notice of Intent to Deny ("RFE/NOID") the I-130 Form. AR 712-15; 838; (# 19-7). The RFE/NOID concluded that Roland had been convicted of what appeared to be an offense that would render him ineligible to act as a petitioner for the I-130 petition and requested additional evidence to establish that he was not precluded from filing the visa petition. Id. Specifically, the RFE/NOID indicated that Roland's prior convictions appeared to be specified offenses under the Adam Walsh Act ("AWA") and that the evidence submitted failed to show that Roland posed no risk to the safety or well-being of Chan. (# 19-7).
On December 14, 2011, USCIS received Roland's response, which included additional criminal records related to his convictions, additional records of his mental health treatment, copies of newspaper articles, and various photographs of Chan. AR 838; (# 19-8). On June 27, 2013, Roland and Chan appeared for an interview in connection with the I-130 petition and I-485 application. AR 785. On January 13, 2014, USCIS denied the I-130 petition on the basis that Roland had been convicted of a specified offense against a minor as defined in the AWA and failed to prove beyond any reasonable doubt that he posed no risk to the safety and well-being of Chan, the beneficiary of the petition. See Notice of Denial (# 19-8); AR 703. On May 15, 2014, USCIS denied Chan's I-485 application on the basis that there was no approved visa petition. See USCIS Decision (# 19-10); AR 703.
On November 3, 2014, Plaintiffs filed the instant action, seeking review under the Administrative Procedure Act ("APA") and declaratory relief under the Declaratory Judgment Act. By the complaint, Plaintiffs assert that the Defendants' denial of the I-130 Petition is erroneous as a matter of law, arbitrary and capricious, and constitutes and abuse of discretion through its heightened burden of proof and retroactive application. Plaintiffs also argue that Defendants' denial of the I-130 Petition is unconstitutional in that it violates due process and Plaintiff Roland's right to marry and pursue happiness. Finally, Plaintiffs argue that Defendants' denial of the I-485 Application is arbitrary and capricious under the APA. In term of relief requested, Plaintiffs seek declaratory judgments stating that: 1) Defendants' decision denying the I-130 Petition was arbitrary and capricious in violation of the APA; 2) Defendants' interpretation of the Immigration and Nationality Act, as amended by the Adam Walsh Act, infringes on Plaintiffs' fundamental right to marry and their due process rights; 3) Plaintiff Chan is entitled to adjustment of status to that of a lawful permanent resident; and 4) Defendants' decision denying Plaintiff Chan's I-485 Application is unlawful under the APA.
Summary judgment is rendered when there is no genuine issue of material fact which requires a trial and a party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Generally, summary judgment is appropriate "when a party who
Where a court reviews the decision of an administrative agency, "a motion for summary judgment `stands in a somewhat unusual light, in that the administrative record provides the complete factual predicate for the court's review.'" Piedmont Envtl. Council v. U.S. Dep't of Transp., 159 F.Supp.2d 260, 268 (W.D.Va. 2001) aff'd in part, remanded in part, 58 Fed.Appx. 20 (4th Cir.2003) (quoting Krichbaum v. Kelley, 844 F.Supp. 1107, 1110 (W.D.Va.1994), aff'd, 61 F.3d 900 (4th Cir.1995) (unpublished)). Here, to the extent that Plaintiffs assert challenges to a final agency action pursuant to the APA, "it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas `the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'" Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006) (citing Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir.1985); Northwest Motorcycle Ass'n v. United States Dep't of Agriculture, 18 F.3d 1468, 1472 (9th Cir.1994)). "Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. (citations omitted).
The Immigration and Nationality Act ("INA") provides the right for a citizen to file a visa petition for his or her spouse. INA § 204(a)(1)(A)(i), 8 U.S.C. § 1154(a)(1)(A)(i). However, in 2006, Congress passed the Adam Walsh Child Protection and Safety Act of 2006 ("AWA"), Pub.L. No. 109-248, 120 Stat. 587 (2006), which amended the INA to bar citizens convicted of a "specified offense against a minor" from filing any family-based visa petition unless the citizen can prove to the satisfaction of the Secretary of the Department of Homeland Security ("DHS") that they pose no risk to the intended alien beneficiary. See 8 U.S.C. §§ 1154(a)(1)(A)(i), 1154(a)(1)(A)(viii)(I). A "specified offense against a minor," as defined in the AWA, includes all offenses by child predators, 42 U.S.C. § 16911, including, inter alia, "(C) Solicitation to engage in sexual conduct.... (H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct ... [and] (I) Any conduct that by its nature is a sex offense against a minor." See 42 U.S.C. § 16911(7). Thus, where a person such as Plaintiff Roland has been convicted of an offense against a minor, he may not petition on behalf of a beneficiary unless "the Secretary ... in the [DHS] 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(1)(A)(viii)(I) (emphasis added). Review of an I-130 Petition under the AWA therefore involves two determinations: 1) whether the petitioner has been convicted of a qualifying crime and, 2) whether the petitioner has proven that he poses no risk to the alien beneficiary.
As a threshold matter, the court must determine whether it has subject matter jurisdiction to adjudicate Plaintiffs' claims. See Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). The court notes that district courts across the country addressing the precise jurisdictional question presented here have come to different conclusions on the matter. See, e.g. Bittinger v. Johnson, No. 1:14-CV-1560, 2015 WL 3842649, at *3-4 (M.D.Pa. June 22, 2015); Gebhardt v. Johnson, No. 14-0227-VAP, ECF No. 20 at 13-14 (C.D.Cal. May 11, 2015); Bremer v. Johnson, No. 13-1226-CV-W-ODS, 2014 WL 7238064, at *3-4 (W.D.Mo. Dec. 17, 2014)
Plaintiffs here brings their claim pursuant to the APA, which enables a reviewing court to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" 5 U.S.C. § 706(2)(A). The APA further provides
The federal question statute at issue here — the INA — contains a jurisdiction-stripping provision, which provides, in relevant part:
8 U.S.C. § 1252(a)(2)(B)-(D)(emphasis added).
Here, as noted above, USCIS' determination of whether a petitioner poses "no risk" to the beneficiary is in the Secretary's "sole and unreviewable discretion," 8 U.S.C. § 1154(a)(1)(A)(viii), and thus is clearly a "discretionary decision" within the meaning of 8 U.S.C. § 1252(a)(2)(B)(ii). Defendants thus argue that this court's jurisdiction is squarely foreclosed by statute because Plaintiff seeks review of a discretionary determination. Plaintiffs argue that jurisdiction is appropriate in this court because they present questions of law and constitutionality, not a review of the discretionary determination itself. Plaintiffs contend that they seek review of
The court notes that the Fourth Circuit has previously rejected claims that attempt to characterize legal challenges to a discretionary decision as challenges to agency authority and constitutionality where the relief sought is clearly an attempt to bypass the reviewability exception in the APA (5 U.S.C. § 701(a)). For example, in Angelex Ltd. v. United States, 723 F.3d 500 (4th Cir.2013), the Fourth Circuit stated:
We are cognizant of this court's declaration,
Id. at 508 (citing Electricities of N. Carolina, Inc. v. Se. Power Admin., 774 F.2d 1262, 1267 (4th Cir.1985)). In examining the APA claim in Angelex, however, the Circuit "disagree[d] with Appellees' characterization of the Petition as an attack on the statutory authority or constitutionality of the [agency's] actions. First, Appellees cannot with a straight face argue that the [agency] has acted outside the bounds of § 1908(e) [the federal statute granting the agency wide discretion]. Indeed, those bounds are quite limitless ... Likewise, [Appellee's] attempt at turning this matter into a constitutional challenge does not make the matter reviewable and thus, vest the district court with jurisdiction." Id. See also Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d 612, 620 (4th Cir. 2010), discussed infra. The court is thus mindful that it should carefully screen for any improper attempt by Plaintiffs to characterize review of a discretionary decision as a challenge to allegedly unlawful agency action in order to obtain subject matter jurisdiction.
In considering whether subject matter jurisdiction exists in this case, the court has closely read the Fourth Circuit's decision in Lee v. U.S. Citizenship & Immigration Servs., 592 F.3d 612 (4th Cir.2010), which, though presenting slightly different facts than this case, is relatively analogous and contains relevant reasoning.
The court also finds instructive the recent unpublished decision from the Fourth Circuit Calle v. Holder, 599 Fed.Appx. 72, 73 (4th Cir.2015), wherein the Circuit found that it was without jurisdiction to review the petitioner's challenge the Department of Homeland Security's discretionary decision under 8 U.S.C. § 1186a(c)(4), which allows the agency to waive certain requirements relevant to lawful permanent resident status for an alien married to United States citizens. The Circuit noted:
Calle v. Holder, 599 Fed.Appx. 72, 73 (4th Cir.2015) (unpublished).
The court finds that in light of the express jurisdiction-stripping language of 8 U.S.C. § 1252(a)(2)(B)(ii) and the Fourth Circuit cases interpreting it, this court is without jurisdiction to review USCIS's discretionary decision as to whether Plaintiff Roland showed that he posed no risk to Plaintiff Chan.
The court has also considered whether jurisdiction in this court would be appropriate under 8 U.S.C.A. § 1252(a)(2)(D), which, as noted above, provides that "[n]othing in subparagraph (B) or (C), or any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." Id. The Fourth Circuit has noted that "[f]ollowing the enactment of the REAL ID Act ... direct judicial review is available [under § 1252(a)(2)(D)] for constitutional questions or questions of law arising from the agency's decision to deny discretionary relief." Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir.2006). See also Saintha v. Mukasey, 516 F.3d 243, 248 (4th Cir.2008); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir.2006) ("By virtue of § 1252(a)(2)(D), constitutional claims or questions of law raised in a petition for review elude the jurisdiction-stripping provisions of the INA."). Several circuits, including the Fourth Circuit, have held that such jurisdiction only exists in the context of removal proceedings.
In this case, the court notes that even if Plaintiffs were to directly petition the Fourth Circuit for review of their constitutional claims and questions of law raised here, the Circuit would be without jurisdiction to address them under 8 U.S.C. § 1252(a)(2)(D), as they do not rise in the context of removal proceedings. Thus, Plaintiffs' claims, as the procedural posture of the case currently stands, are not reviewable under 8 U.S.C. § 1252(a)(2)(D) in either this court or the Court of Appeals. At the hearing, the court noted that a finding that this court lacked jurisdiction under 1252(a)(2)(B)(ii) to hear Plaintiff's questions of law about the standard applied to his I-130 form, taken in tandem with the fact that the Court of Appeals would lack jurisdiction to hear such claims under 1252(a)(2)(D) unless Plaintiff Chan were put into removal proceedings, would essentially leave Plaintiffs without a means of judicial review of an agency action that may or may not violate the APA. Plaintiffs also stated at the hearing that it is by no means certain that Plaintiff Chan will ever be placed in removal proceedings, which would essentially render the questions of law and constitutional issues raised regarding USCIS' procedures unreviewable. However, the Fourth Circuit commented on this precise conundrum in dicta in Lee, noting:
Lee, 592 F.3d at 620, n. 5. (citing Sigmon Coal Co. v. Apfel, 226 F.3d 291, 308 (4th Cir.2000), aff'd sub nom., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002)). The court finds that the same logic applies in this case. Thus, while the court is not deaf to the Plaintiffs' argument that the structure of judicial review in these proceedings may lead to unjust results, it is without the ability to provide an avenue of judicial review of their claims at this time.
For the reasons stated herein, the court finds that it is without subject matter jurisdiction and accordingly, will dismiss this action with prejudice. The court therefore enters the following Order.
Neang Chea Taing v. Napolitano, 567 F.3d 19, 21 (1st Cir.2009).
Mejia Rodriguez v. U.S. Dep't of Homeland Sec., 562 F.3d 1137, 1142, n. 13 (11th Cir. 2009) (citation omitted).
The Supreme Court recently summarized the rulemaking procedures under the APA:
Perez v. Mortgage Bankers Ass'n, ___ U.S. ___, 135 S.Ct. 1199, 1203-04, 191 L.Ed.2d 186 (2015).
Following Perez, the U.S. District Court for the District of Columbia aptly marked the distinction between binding and non-binding administrative rules in Mountain States Health Alliance v. Burwell, 128 F.Supp.3d 195, 204, No. CV 13-641(RDM), 2015 WL 5297498, at *7 (D.D.C. Sept. 10, 2015):
Mountain States Health Alliance v. Burwell, 128 F.Supp.3d 195, 204, No. CV 13-641(RDM), 2015 WL 5297498, at *7 (D.D.C. Sept. 10, 2015) (internal citations and quotations omitted).
The court notes that even where interpretive rules are not intended to have the force and effect of law, agencies sometimes treat them as though they have a binding effect. As noted by the D.C. Circuit, "[i]f an agency acts as if a document issued at headquarters is controlling in the field, if it treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document ... then the agency's document is for all practical purposes binding." Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1020-21 (D.C.Cir.2000) (citation and quotations omitted). Thus, a guidance document or interpretive rule that is treated like a legislative rule is an impermissible circumvention of the notice and comment procedures required by the APA. See Scenic Am., Inc. v. United States Dep't of Transp., 49 F.Supp.3d 53, 60 (D.D.C.2014). Here, Plaintiff challenges the use of the adoption of the "beyond a reasonable doubt" standard in an immigration context and its retroactive application. While Plaintiff does not appear to directly challenge the agency's routine application of the heightened burden of proof in this case, it appears to the court that the central APA question presented by the facts of this case is whether the agency is unlawfully treating a standard promulgated as administrative guidance as a binding rule. The court finds this particularly concerning in light of the fact that the agency is applying a standard that, to the court's knowledge, is exclusively reserved for proving a person's guilt in a criminal case, to a determination of benefits in a civil immigration proceeding. While that standard may or may not be appropriate, if it is being routinely applied by the agency in a manner that shows that the agency considers the guidance document a binding law, the public deserves an opportunity to comment on it. Nonetheless, as the court lacks subject matter jurisdiction, it will not wade into the lengthy analysis of such question of administrative law. It simply notes that such question has at least raised a concern of improper agency action in this court.
