Ahmed Bakran v. Secretary United States Depart

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-3440
______________
AHMED BAKRAN,
Appellant
v.
SECRETARY, UNITED STATES DEPARTMENT OF
HOMELAND SECURITY;
DIRECTOR, UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES;
ROBERT COWAN, Field Office Director, Lee’s Summit,
MO Field Office,
United States Citizenship and Immigration Services;
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2:15-cv-00127)
District Judge: Hon. John R. Padova
______________
Argued: March 16, 2017
______________
Before: GREENAWAY, JR., SHWARTZ, Circuit Judges,
and SIMANDLE, Senior District Judge*
(Opinion Filed: July 5, 2018)
Nicklaus J. Misiti [ARGUED]
Law Offices of Nicklaus Misiti, PLLC
40 Wall Street, 28th Floor
New York, NY 10005
Counsel for Appellant
Sophie Kaiser
Benjamin C. Mizer
William C. Peachey
Sarah S. Wilson [ARGUED]
United States Department of Justice
Office of Immigration Litigation
Room 6223
450 5th Street, N.W.
Washington, D.C. 20530
Counsel for Appellees
*
Honorable Jerome B. Simandle, United States District
Judge of the United States District Court for the District of
New Jersey, sitting by designation. Judge Simandle assumed
senior status after the case was argued before the panel.
2
______________
OPINION OF THE COURT
______________
SHWARTZ, Circuit Judge.
Ahmed Bakran appeals from the District Court’s order
granting summary judgment in favor of the Secretary of the
United States Department of Homeland Security, the Director
of the United States Citizenship and Immigration Services (the
“USCIS”), and the Attorney General (“Defendants”) on
Bakran’s statutory and constitutional challenges to the Adam
Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, § 402(a), 120 Stat. 587, 622-23 (2006) (the “AWA”),
and related agency memoranda.
The AWA restricts the ability of a United States citizen
convicted of a sex offense to sponsor an immediate relative’s
immigration application. Bakran claims that certain protocols
used to enforce the AWA violate the Administrative
Procedures Act, 5 U.S.C. § 701 et seq. (the “APA”). The
protocols he challenges, however, simply guide the Secretary’s
determination, and as we explain herein, we lack jurisdiction
to review them.
Bakran also asserts that the AWA violates his right to
marriage and is impermissibly retroactive. The AWA does not
infringe his marriage right but rather deprives him of an
immigration benefit to which he has no constitutional right.
Moreover, because the Act is aimed at providing prospective
3
protection, it is not impermissibly retroactive. Therefore, we
will vacate the District Court’s order granting summary
judgment to Defendants on Bakran’s APA claims, and remand
with directions to dismiss the APA claims for lack of
jurisdiction, and affirm the District Court’s order denying relief
on his constitutional and retroactivity challenges to the AWA.
I
A
Before 2006, the Immigration and Nationality Act, 8
U.S.C. §§ 1101 et seq. (the “INA”), provided that “[a]ny
citizen of the United States claiming that an alien is entitled
to . . . immediate relative status . . . may file a petition with the
Attorney General for such classification.” Id.
§ 1154(a)(1)(A)(i). “Immediate relatives” generally include
the spouses, children, and parents of a United States citizen.
Id. § 1151(b)(2)(A)(i). Such relatives may enter the United
States without regard to numerical limitations on immigration
to the United States. Id. § 1151(b). In 2006, the AWA
amended the INA so that a citizen “who has been convicted of
a specified offense against a minor”1 may not file any petition
on behalf of such relatives “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
1
The AWA relies on 42 U.S.C. § 16911(7)(H)’s
definition of a “specified offense against a minor,” 8 U.S.C.
§ 1154(a)(1)(A)(viii)(II), and 42 U.S.C. § 16911(7)(H) defines
“a specified offense against a minor” to include “[c]riminal
sexual conduct involving a minor, or the use of the Internet to
facilitate or attempt such conduct,” id.
4
respect to whom a petition . . . is filed.” Id.
§ 1154(a)(1)(A)(viii)(I). This provision is intended to
effectuate the AWA’s stated purposes: “[t]o protect children
from sexual exploitation and violent crime, [and] to prevent
child abuse and child pornography.” AWA, 120 Stat. at 587.
The USCIS issued two memoranda relevant to our
consideration of the AWA. The first, written by Michael
Aytes, Associate Director of Domestic Operations of the
USCIS (the “Aytes Memo”), sets forth the burden of proof a
petitioner must meet to show that he or she poses no risk to his
or her alien relative. Specifically, the memo interpreted the
“no risk” requirement to mean that to avoid denial of a petition,
“a petitioner 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 beneficiar[ies].” U.S.
Citizenship and Immigration Services, 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), available at
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memor
anda/Static_Files_Memoranda/adamwalshact020807.pdf.
The second, written by Donald Neufeld, Acting Associate
Director of Domestic Operations of the USCIS (the “Neufeld
Memo”), states that “given the nature and severity of many of
the underlying offenses and the intent of the [AWA], approval
recommendations should be rare.” U.S. Citizenship and
Immigration Services, Transmittal of SOP for Adjudication of
Family-Based Petitions Under the Adam Walsh Child
Protection and Safety Act of 2006 (Sept. 24, 2008) (emphasis
omitted).
5
B
Bakran is a United States citizen. In 2004, he was
convicted of aggravated indecent assault and unlawful contact
with a minor. He was sentenced to 11.5 to 23 months’
imprisonment, 10 years of probation, and lifetime sexual
offender registration. He was required to undergo a
psychosexual evaluation and prohibited from any unsupervised
contact with minors.
In 2012, Bakran married Zara Qazi, an adult Indian
national. He then sought lawful permanent resident status for
her by filing a Form I-130, Petition for Alien Relative, 8 C.F.R.
§ 204.1(a)(1), and a Form I-485, Application for Permanent
Residence, 8 C.F.R. 245.2(a)(3)(iii), with the USCIS. In
January 2014, he received a Request for Evidence/Notice of
Intent to Deny his petition (the “Notice”), which noted that his
2004 conviction prevented him from designating his wife as
his immediate relative for the purposes of exempting her
Application for Permanent Residence from the worldwide
levels of numerical limitations pursuant to 8 U.S.C.
§ 1151(b)(2)(A)(i) unless he could show he posed no risk to
her. Bakran had already submitted materials regarding his
conviction with his initial application, and he filed additional
documents in response to the Notice. The USCIS determined
that Bakran had committed a “specified offense against a
minor” under the AWA, and denied his application.
Bakran filed suit in the United States District Court for
the Eastern District of Pennsylvania against Defendants based
6
on the denial of his petition. He alleged the denial violated the
Constitution and APA. Defendants moved to dismiss the
complaint for lack of subject matter jurisdiction, arguing that
the District Court lacked jurisdiction to review the Secretary’s
determination of Bakran’s petition. The District Court denied
the motion, reasoning that Bakran “does not question the
Secretary’s . . . ‘unreviewable discretion’” concerning the
decision about him. Bakran v. Johnson, CIV. A. No. 15-127,
2015 WL 3631746, at *4 (E.D. Pa. June 11, 2015). Instead,
according to the District Court, Bakran challenges the
Secretary’s “non-discretionary threshold determination” and
argues that his inability to “file an I-130 petition on his wife’s
behalf . . . violates his constitutional rights.” Id. The District
Court held that Bakran’s APA challenge did not seek review
“of the discretionary ‘no risk’ assessment or even the substance
of the rules adopted regarding that assessment.” Id. The Court
therefore concluded that it had jurisdiction to review all of
Bakran’s claims.
Defendants then moved for summary judgment, which
the District Court granted. On the APA claims, the Court ruled
that (1) the agency’s adoption of a beyond-any-reasonable-
doubt standard was not ultra vires2 under Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-
43 (1984), Bakran v. Johnson, 192 F. Supp. 3d 585, 601 (E.D.
2
Bakran’s ultra vires claim, pursuant to 5 U.S.C.
§ 706(2)(C), alleges that the USCIS took action “in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right . . . .” 5 U.S.C. § 706(2)(C); see also Ultra
Vires, Black’s Law Dictionary (10th ed. 2014) (stating that
“ultra vires” means “[u]nauthorized; beyond the scope of
power allowed or granted . . . by law”).
7
Pa. 2016); (2) the assessment of risk after filing and
presumption of denial, per the Neufeld Memo, were not
arbitrary and capricious, id. at 598-99; and (3) the Aytes and
Neufeld Memos qualify as “interpretive rules” that do not
require notice-and-comment rule-making,” id. at 599-600. On
the constitutional claims, the Court concluded that the AWA
was neither punitive nor impermissibly retroactive, id. at 594-
95, and Bakran’s due process claim failed because the AWA
does not infringe his fundamental constitutional right to marry,
id. at 595-97. Bakran appeals.
II3
A
3
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
Our review of the District Court’s grant of summary
judgment is plenary. Mylan Inc. v. SmithKline Beecham
Corp., 723 F.3d 413, 418 (3d Cir. 2013). We apply the same
standard as the District Court, viewing facts and making all
reasonable inferences in the non-movant’s favor. Hugh v.
Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir.
2005). Summary judgment is appropriate where “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).
Here, there are no disputed facts. The moving party is entitled
to judgment as a matter of law when the non-moving party fails
to make “a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
8
We first address whether we have subject matter
jurisdiction over Bakran’s claim that the Secretary violated the
APA by imposing a beyond-any-reasonable-doubt burden of
proof and a presumption of denial of AWA applications, as
expressed in the Aytes and Neufeld Memos.
District courts have jurisdiction to review agency action
under 28 U.S.C. § 1331, “subject only to preclusion-of-review
statutes created or retained by Congress.” Chehazeh v. Att’y
Gen. of U.S., 666 F.3d 118, 126 (3d Cir. 2012) (quoting
Califano v. Sanders, 430 U.S. 99, 105 (1977)). The APA bars
judicial review where “statutes preclude judicial review” or
“agency action is committed to agency discretion by law.”
5 U.S.C. § 701(a). The INA provides that “no court shall have
jurisdiction to review . . . any . . . decision or action of . . . the
Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of . . . the
Secretary of Homeland Security.” 8 U.S.C.
§ 1252(a)(2)(B)(ii). The INA’s “jurisdiction–stripping
language . . . applies not to all decisions the [Secretary] is
entitled to make, but to a narrower category of decisions where
Congress has taken the additional step to specify that the sole
authority for the action is in the [Secretary]’s discretion.”
Alaka v. Att’y Gen. of U.S., 456 F.3d 88, 95 (3d Cir. 2006).
Of relevance here, the AWA states that a citizen, such as
Bakran, convicted of a specified offense may not file a petition
for immediate relative status “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). The AWA therefore precludes
judicial review of the Secretary’s no-risk determination
concerning a specific citizen.
9
The issue here is whether the two procedures set forth
in the Aytes and Neufeld Memos are themselves reviewable.
Bakran argues that the Secretary, through the USCIS, acted
ultra vires in imposing upon citizen petitioners a requirement
that they prove beyond any reasonable doubt that they pose no
risk to the alien beneficiary and by informing field officers that
granting permission to file petitions on the beneficiaries’
behalf should be rare.4 Our authority to review these claims
depends on whether the standard of proof and rareness
directive are part of the Secretary’s statutorily-granted
unreviewable discretion. To make this decision, we examine
the statute’s language to identify the boundaries of the
discretion granted to the agency.
The INA and Alaka instruct that courts lack jurisdiction
to review decisions that are within the Secretary’s sole
discretion. Id. § 1252(a)(2)(B)(ii); Alaka, 456 F.3d at 95. The
AWA states that the Secretary has sole and unreviewable
discretion when it “determines” that a citizen petitioner poses
no risk to the alien for whom the petition is filed. The choice
of the word “determines” frames the matters within this
discretion. The word “determine” means “to fix conclusively
or authoritatively” as well as “to come to a decision concerning
as the result of investigation or reasoning.” Webster’s Third
New International Dictionary 616 (1993). Congress’s use of
the word “determines” therefore grants the Secretary
unreviewable discretion in both concluding that a petitioner
poses no risk and the process by which the Secretary reaches
this decision. Thus, the exercise of discretion includes
4
Bakran raised arbitrary-and-capricious claims in his
complaint but abandons those claims on appeal.
10
deciding the type of proof required, the evidentiary standard a
petitioner must satisfy, and whether the petitioner’s evidence
meets that standard. Because these considerations are
inextricably intertwined with how and whether to exercise that
discretion, and § 1252(a)(2)(B)(ii) provides that “no court shall
have jurisdiction to review . . . any . . . decision or action
of . . . the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the discretion
of . . . the Secretary of Homeland Security,” we are precluded
from reviewing both the decision and process for reaching it.
See Gebhardt v. Nielsen, 879 F.3d 980, 984-85, 987 (9th Cir.
2018) (holding that courts lack jurisdiction to review
challenges to the beyond-any-reasonable-doubt standard and
the requirement of a no-risk determination, among other
claims; “each one challenges how the Secretary exercises—or
has exercised—his or her ‘sole and unreviewable discretion’ to
adjudicate I-130 petitions” (emphasis in original)); Roland v.
U.S. Citizenship & Immigration Servs., 850 F.3d 625, 630 (4th
Cir. 2017) (concluding that courts lack jurisdiction to review
petitioner’s APA challenge based in part on that Circuit’s
precedent that “relevant determinations ‘cannot be divorced
from the denial [of an application to adjust status] itself’”
(quoting Lee v. U.S. Citizenship & Immigration Servs., 592
F.3d 612, 620 (4th Cir. 2010))); Bremer v. Johnson, 834 F.3d
925, 930-31 (8th Cir. 2016) (holding that courts lack
jurisdiction over an APA claim that the USCIS exceeded its
statutory authority by requiring applicants to prove beyond any
reasonable doubt that they pose no risk to beneficiaries because
the claim “challenge[d] how the Secretary, acting through the
USCIS, has exercised his discretion to make a no-risk
determination under the [AWA]”); Struniak v. Lynch, 159 F.
Supp. 3d 643, 654 (E.D. Va. 2016) (holding that
Ҥ 1252(a)(2)(B)(ii) strips courts of jurisdiction to review both
11
the ultimate decision that is discretionary and the steps that are
a necessary and ancillary part of reaching the ultimate
decision”); cf. Jilin Pharm. USA v. Chertoff, 447 F.3d 196, 204
(3d Cir. 2006) (observing that an agency’s determination of
whether good cause to revoke a visa exists in a particular case
also includes “what constitutes such cause in the first place,”
and that the good cause determination is within the agency’s
unreviewable discretion (citation and internal quotation mark
omitted)).
For these reasons, federal courts lack jurisdiction to
review the burden of proof and rareness directives that guide
the Secretary’s determination concerning whether a petitioning
sex offender poses no risk to the beneficiary of his or her
petition.5 Thus, the District Court should have dismissed
5
Our ruling here does not render each and every one of
the Secretary’s actions immune from review. We are
cognizant that there is a “strong presumption in favor of
judicial review of administrative action.” INS v. St. Cyr, 533
U.S. 289, 298 (2001); see also, e.g., Hanna v. Phila. Asbestos
Co., 743 F.2d 996, 999 (3d Cir. 1984) (“[A] statute should not
be interpreted as precluding judicial review absent clear
evidence of Congressional intent.” (citing Johnson v. Robison,
415 U.S. 361, 373-74 (1974))). As a result, we are not holding
that a court lacks jurisdiction to review an action beyond the
authority Congress granted to the agency, which the
Government concedes would be reviewable, Oral Arg. at
27:14-27:25,
http://www2.ca3.uscourts.gov/oralargument/audio/16-
3440Bakranv.SecretaryUnitedStatesDepartmentofHomelandS
ecurity.mp3, or an action that would violate the Constitution,
see, e.g., Bartlett v. Bowen, 816 F.2d 695, 698-99, 703-07
12
Bakran’s APA claims, and we will therefore vacate the order
granting summary judgment in favor of Defendants on
Bakran’s APA claims and remand with a directive that the
District Court dismiss these claims.
B
1
Bakran also makes two challenges to the AWA: the
AWA violates his substantive due process right to marry,6 and
the AWA is impermissibly retroactive. Unlike Bakran’s APA
challenges to the Secretary’s actions, we have jurisdiction to
review these challenges to the statute. See Johnson v. Robison,
415 U.S. 361, 367 (1974); Kreschollek v. S. Stevedoring Co.,
78 F.3d 868, 873-74 (3d Cir. 1996).
2
Bakran asserts that by barring him from petitioning to
adjust his foreign spouse’s immigration status, the AWA
infringes his right to marry because it deprives him of benefits
(D.C. Cir. 1987) (construing § 1252(a)(2)(B)(ii) to permit
judicial review of constitutional claims because concluding
that Article III courts lack jurisdiction to do so would raise
constitutional concerns since Congress would be allowed to
legislate and judge the constitutionality of its actions). Rather,
we hold here only that we lack jurisdiction to review Bakran’s
claims pertaining to the Aytes and Neufeld Memos.
6
Bakran’s complaint also alleged a violation of his
procedural due process rights, but he has not pursued that claim
on appeal.
13
flowing from his marriage, including the ability to live with his
spouse in the United States. The due process guarantees of the
Fifth Amendment “include a substantive component, which
forbids the government to infringe certain ‘fundamental’
liberty interests at all, no matter what process is provided,
unless the infringement is narrowly tailored to serve a
compelling state interest.” Reno v. Flores, 507 U.S. 292, 301-
02 (1993) (emphasis omitted). The right to marry is one such
fundamental right. Obergefell v. Hodges, 135 S. Ct. 2584,
2604 (2015); Loving v. Virginia, 388 U.S. 1, 12 (1967).
The AWA’s restriction on a convicted sex offender’s
ability to sponsor his spouse’s immigration petition does not
infringe the fundamental right to marry. Citizens like Bakran
are not barred from marrying, and in fact Bakran has married.
Recognizing this, Bakran asserts that the AWA interferes with
his ability to live in the United States with his foreign spouse.
Thus, he asserts that he has a constitutional right to sponsor his
foreign spouse’s immigration application. His assertion fails
for several reasons.
First, cognizant of Congress’s plenary authority to set
the conditions for an alien’s entry into the United States, see,
e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S.
537, 543 (1950), no court has recognized that a citizen spouse
has a constitutional right to have his or her alien spouse reside
in the United States, see Gebhardt, 879 F.3d at 988 (“Boiled
down, Plaintiff’s theory is that he has a fundamental right to
reside in the United States with his non-citizen [spouse]. But
that theory runs headlong into Congress’ plenary power over
immigration.”); Bangura v. Hansen, 434 F.3d 487, 496 (6th
Cir. 2006) (holding that “[t]he Constitution does not recognize
the right of a citizen spouse to have his or her alien spouse
14
remain in the country” (alteration in original ) (quoting
Almario v. Att’y Gen., 872 F.2d 147, 151 (6th Cir. 1989)));
Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 555 (2d Cir.
1975) (holding that a citizen spouse has no constitutional right
to seek to bar the deportation of an alien spouse); Silverman v.
Rogers, 437 F.2d 102, 107 (1st Cir. 1970) (same); Swartz v.
Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (same); cf.
Moralez-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076,
1091 (9th Cir. 2010) (concluding that the denial of adjustment
of status did not violate any of the petitioner’s or his family’s
substantive rights, where the petitioner argued that the denial
violated their right to live together as a family in the United
States), abrogated in part on other grounds by Garfias-
Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).7
7
Bakran argues that the dissent in Kerry v. Din, 135 S.
Ct. 2128 (2015), along with Justice Kennedy’s opinion for the
majority in Obergefell, support his view that his due process
rights have been infringed. Bakran is incorrect. First, although
Obergefell reaffirmed the fundamental right to marry, see 135
S. Ct. at 2598-2605, 2608, that case does not stand for the
proposition that Bakran has a fundamental right to petition for
the lawful permanent resident status in the United States for his
alien wife. Second, in Din, the Supreme Court focused on
procedural rather than substantive due process rights, and
Bakran has not pursued his procedural due process claim on
appeal. See 135 S. Ct. at 2138 (plurality of Scalia, J., joined
by Roberts and Thomas, JJ.) (holding that the denial of the visa
application of the petitioner’s husband did not deprive her of
any life, liberty, or property, so she was not entitled to
constitutional due process protections); id. at 2139 (Kennedy,
J., concurring, joined by Alito, J.) (noting that even assuming
Din had a protected liberty interest, the notice she received
15
Second, Bakran’s sex offense conviction impacts his
access to an immigration benefit, which is not limited to
married persons. Put differently, unlike the benefits identified
in Obergefell that are granted only to married couples, 135 S.
Ct. at 2599-2601, the availability of this immigration benefit is
not exclusively contingent on marriage because parents and
children may seek the benefit. Thus, this immigration benefit
does not fall within the types of marriage benefits that the
Supreme Court identified that serve the goals marriage
advances.
Third, Bakran is denied access to this immigration
benefit because of his prior sex conviction. Limiting the rights
of convicted felons has historical roots. See, e.g., 10 U.S.C.
§ 504(a) (ineligibility to serve in the armed forces, unless an
exception is made); 18 U.S.C. § 922(g)(1) (restriction on
possession of a firearm); 21 U.S.C. § 862 (providing that
individuals convicted of drug offenses may be denied federal
benefits including grants, contracts, loans, professional
licenses, and commercial licenses); 28 U.S.C. § 1865(b)(5)
(restriction on right to serve on federal grand and petit juries
unless the individual’s civil rights have been restored);
McKune v. Lile, 536 U.S. 24, 38 (2002) (plurality opinion)
(“[L]awful conviction and incarceration necessarily place
limitations on the exercise of a defendant’s privilege against
self-incrimination.”); Jones v. Helms, 452 U.S. 412, 418-23
(1981) (upholding restrictions on a felon’s constitutionally
satisfied due process requirements); id. at 2142 (Breyer, J.,
dissenting, joined by Ginsburg, Sotomayor, and Kagan, JJ.)
(concluding that the petitioner had a liberty interest in living
with her husband in the United States “to which the Due
Process Clause grants procedural protection”).
16
protected right to travel); Richardson v. Ramirez, 418 U.S. 24,
56 (1974) (upholding a state law that disenfranchised
convicted felons); see also, e.g., A.A. ex rel. M.M. v. New
Jersey, 341 F.3d 206, 208, 213 (3d Cir. 2003) (noting previous,
unsuccessful constitutional challenges to New Jersey’s
Megan’s Law and holding that any privacy interest sex
offenders may have in their home addresses was substantially
outweighed by the state’s interest in protecting the public).
Thus, once one sustains a felony conviction, consequences
follow, including the loss of certain rights and government
benefits. Bakran’s loss of his ability to sponsor his spouse may
impede his ability to assist her to adjust her status, but this
impediment is no more burdensome than other limitations
placed on convicted felons’ constitutional rights.
In short, while the AWA restricts Bakran’s access to
certain immigration benefits because of his prior conviction, it
does not deprive Bakran of his fundamental right to marry or a
benefit uniquely available to married persons. As a result, the
District Court correctly entered judgment in favor of
Defendants on this claim.
3
Bakran’s second argument attacking the AWA also
lacks merit. In his complaint, Bakran asserted that the AWA
violates the Ex Post Facto Clause, U.S. Const. art. I § 9, cl. 3,
which applies only to penal legislation that applies
retroactively, Landgraf v. USI Film Prods., 511 U.S. 244, 266
n.19 (1994); Myrie v. Comm’r, N.J. Dep’t of Corrs., 267 F.3d
251, 255 (3d Cir. 2001); see also Weaver v. Graham, 450 U.S.
24, 29 (1981). Bakran’s abandonment of his Ex Post Facto
claim on appeal reflects his acknowledgment that the AWA is
17
not penal.8 Relying on the general principle of anti-
retroactivity, and statutory construction, he claims that the
AWA is impermissibly retroactive because it attaches new
legal consequences to his prior conviction.
When examining retroactivity, we ask “whether
Congress has expressly provided that the statute should be
retroactive.” Atkinson v. Att’y Gen. of U.S., 479 F.3d 222,
226 (3d Cir. 2007) (citing Landgraf, 511 U.S. at 280). “If the
answer is yes, our inquiry is over.” Id. If the statute does not
have any express statement of retroactivity, then we must
determine whether “normal rules of statutory construction
unequivocally remove the possibility of retroactivity.” Id.
(emphasis omitted). If there is no express command or intent
to apply the statute only prospectively, then we must determine
whether applying the statute to events predating its enactment
would have a retroactive effect. Landgraf, 511 U.S. at 280;
Atkinson, 479 F.3d at 226. An act has retroactive effect if 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.” Atkinson, 479 F.3d at 227
(quoting INS v. St. Cyr, 533 U.S. 289, 321 (2001)). If the
8
The AWA’s stated purpose is to protect children and
the public at large from sex offenders, 42 U.S.C. §§ 16901,
16935(3), and the Supreme Court has said that “restrictive
measures on sex offenders adjudged to be dangerous is ‘a
legitimate nonpunitive governmental objective and has been
historically so regarded,’” Smith v. Doe, 538 U.S. 84, 93
(2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 363
(1997)); accord Bremer, 834 F.3d at 932. Thus, the AWA is
not penal.
18
statute has a retroactive effect, “we employ the strong
presumption against applying such a statute retroactively.” Id.
at 226 (citation and internal quotation marks omitted).
The AWA neither expressly provides that it should
apply retroactively nor unequivocally removes the possibility
of it being applied retroactively. It does, however, suggest that
Congress intended for past events to impact a citizen’s ability
to invoke benefits under the INA. For instance,
§ 1154(a)(1)(A)(viii)(I) states that the provision allowing
citizens to file family-based petitions does not apply to a
citizen “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). The
use of “has been” suggests that the AWA applies to persons
who were convicted before its enactment. Thus, Congress
appears to have intended for the Secretary to consider events
that predate the statute.
The statute’s focus, however, is on “dangers that arise
postenactment.” Vartelas v. Holder, 566 U.S. 257, 271 n.7
(2012). “[S]pecifically,” the AWA addresses “the dangers that
convicted sex offenders may pose to new immigrants.”
Bremer, 834 F.3d at 932; see also, e.g., Gebhardt, 879 F.3d at
986 (concluding that Congress enacted the AWA “[t]o protect
children from sexual exploitation and violent crime, to prevent
child abuse and child pornography, to promote Internet safety,
and to honor the memory of . . . child crime victims” (quoting
AWA, 120 Stat. at 587) (emphasis omitted); “[t]o that end, the
entire scheme focuses on prevention—not punishment”);
Suhail v. U.S. Att’y Gen., No. 15-cv-12595, 2015 WL
19
7016340, at *9 (E.D. Mich. Nov. 12, 2015) (concluding that
application of the AWA was “a civil matter to prevent future
additional sex offenses against children”); Matter of Jackson,
26 I. & N. Dec. 314, 318 (B.I.A. 2014) (“Because the Adam
Walsh Act addresses the potential for future harm posed by
such sexual predators to the beneficiaries of family-based visa
petitions, we find that the application of its provisions to
convictions that occurred before its enactment does not have
an impermissible retroactive effect.”). The AWA therefore
resembles, for example, “laws prohibiting persons convicted of
a sex crime against a victim under 16 years of age from
working in jobs involving frequent contact with minors” in that
the wrongful activity targeted by the statute is the potential
future conduct rather than the past offense. Vartelas, 566 U.S.
at 271 n.7. The no-risk provision bolsters the conclusion that
the statute’s purpose is preventing post-enactment danger as
opposed to attaching a new disability. For these reasons, the
AWA “do[es] not operate retroactively.” Id. Therefore, the
District Court correctly rejected Bakran’s retroactivity
argument.
III
For the foregoing reasons, we will affirm in part, with
respect to Bakran’s constitutional claims, and we will vacate in
part, with respect to his APA claims, and remand with
directions to dismiss the APA claims.
20