Alma Solorio v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
FEB 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALMA GARCIA SOLORIO, No. 16-16300
Plaintiff-Appellant, D.C. No.
1:15-cv-01123-DAD-EPG
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted February 5, 2018
San Francisco, California
Before: D.W. NELSON, TASHIMA, and CHRISTEN, Circuit Judges.
Plaintiff Alma Garcia Solorio brought an action challenging United States
Citizenship and Immigration Services’ (“USCIS”) rejection of her father Rafael
Garcia-Valdez’s petition for legal permanent residence status (“LPR”) for Solorio.
USCIS revoked its approval of the petition because it determined that the Adam
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Walsh Act (“AWA”) applied to Garcia-Valdez. Solorio now appeals the district
court’s dismissal of her statutory and constitutional claims under Federal Rule of
Civil Procedure 12(b)(6). We affirm.
First, the district court correctly held that federal courts lack subject matter
jurisdiction over Solorio’s Administrative Procedure Act (“APA”) claims. The
Immigration and Nationality Act (“INA”) precludes judicial review of the
Secretary’s “no risk” determinations because those determinations fall within the
Secretary’s “sole and unreviewable discretion.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I);
Gebhardt v. Nielsen, 879 F.3d 980, 984 (9th Cir. 2018). Because Solorio’s APA
claims challenge “how the Secretary exercises–or has exercised–his or her ‘sole
and unreviewable discretion’ to adjudicate I-130 petitions[,]” we have no
jurisdiction to review them.1 Id. at 987.
1
While we sometimes have jurisdiction over revoked visa petitions under
ANA Int’l v. Way, 393 F.3d 886 (9th Cir. 2004) and Herrera v. USCIS, 571 F.3d
881 (9th Cir. 2009), those cases did not consider the Adam Walsh Act. As here,
Gebhardt also involved a revocation of an earlier approved petition, rather than an
initial denial. See Gebhardt, 879 F.3d at 984. Gebhardt makes no mention of the
distinction between initial denial of visa petitions versus revocation of previously
approved visa petitions. As discussed above, the panel in Gehbardt nonetheless
concluded that there was no jurisdiction to review the “no risk” determination even
under circumstances where approval of the petition was revoked. Because
Gebhardt is apposite on these facts, we conclude the same.
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Second, Solorio appeals the district court’s finding that the AWA does not
violate equal protection. While we cannot review the Secretary’s discretion, we
may review “colorable” constitutional claims. See id. at 988 (citing Bremer v
Johnson, 834 F.3d 925, 932 (8th Cir. 2016)). A “colorable” claim is one that has
“some possible validity.” Arteaga-De Alvarez v. Holder, 704 F.3d 730, 736 (9th
Cir. 2012).
The AWA distinguishes between citizen or LPR petitioners who have
specified offenses and citizen or LPR petitioners who do not.
See § 1154(a)(1)(A)(viii)(I). The rational basis standard of review applies to
Solorio’s equal protection claim because it concerns “a classification neither
involving fundamental rights nor proceeding along suspect lines,” such as race or
gender. Heller v. Doe, 509 U.S. 312, 319 (1993). “This lowest level of review
does not look to the actual purposes of the law. Instead, it considers whether there
is some conceivable rational purpose that Congress could have had in mind when it
enacted the law.” See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471,
481 (9th Cir. 2014). As the district court pointed out, “Congress could have
determined that because convicted sex offenders are more likely to pose a risk of
harm to the public generally, including family members, those individuals should
be required to make an affirmative showing that they no longer pose such a risk to
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intended beneficiaries before regaining the right to petition for a family-sponsored
visa.” The initial revocation of a visa petition and opportunity to demonstrate
rehabilitation are not “so attenuated as to render the [classification] arbitrary or
irrational” to this purpose. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (citations
omitted). Thus, the AWA passes rational basis review.
Solorio also argues that the AWA, as applied to her, violates equal
protection. For the same reasons above, it was not irrational for USCIS to
determine that Garcia-Valdez failed to show that he no longer posed a risk to
Solorio given that his application lacked a risk assessment and medical notes,
among other deficiencies. Thus, Solorio’s as-applied challenge passes rational
basis review.
AFFIRMED.
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