United States District Court, E.D. Pennsylvania
John R. Padova, J.
Plaintiff Ahmed Bakran, a United States citizen, commenced this action to challenge the denial of a Form I-130 immigrant visa petition that he filed on behalf of his new wife, seeking to have her designated as an immediate relative. Defendants have filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1), arguing that we lack subject matter jurisdiction over Bakran’s claims. For the following reasons, we deny Defendants’ Motion.
The undisputed facts as set forth in the Complaint and other filings are as follows. Plaintiff Ahmed Bakran is a United States Citizen who, in 2004, was convicted of one count of aggravated indecent assault in violation of 18 Pa. Cons. Stat. Ann. § 3125, and one count of unlawful contact with a minor in violation of 18 Pa. Cons. Stat. Ann. § 6318. Two years later, in 2006, Congress passed the Adam Walsh Child Protection and Safety Act of 2006 (the “Walsh Act”), Pub. L. No. 109-248, 120 Stat. 587 (2006), which amended the Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1101 et seq., 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 Homeland Security that they pose no risk to the intended immigrant. See 8 U.S.C. §§ 1154(a)(1)(A)(i), 1154(a)(1)(A)(viii)(I).
In 2012, Bakran married a foreign spouse, Zara Qazi. Shortly thereafter, on July 30, 2012, Bakran filed a Form I-130 immigrant visa petition (“I-130 Petition”), pursuant to § 201(b) of the INA, 8 U.S.C. § 1151(b)(2)(A)(i), seeking to have his wife classified as his immediate relative so that she could immigrate to the United States. See 8 C.F.R. §§ 204.1(a)(1), 204.2(a)(1). On January 21, 2014, Bakran received from United States Citizenship and Immigration Services (“CIS”) a “Request for Evidence/Notice of Intent to Deny” his I-130 Petition. In that Request for Evidence/Notice of Intent to Deny, CIS informed Bakran that, pursuant to the Walsh Act, his 2004 convictions barred him from filing for Qazi’s lawful status unless he could show either that his 2004 convictions did not qualify as specified offenses against a minor or that he posed no risk to his wife. Bakran submitted documentation in response to CIS’s notice but, on December 9, 2014, CIS denied Bakran’s application in a Notice of Decision.
CIS explained in the Notice of Decision that the evidence had established that both of Bakran’s counts of conviction constituted “specified offense[s] against a minor” for purposes of the Walsh Act because each involved “conduct that by its nature is a sex offense against a minor.” (Ex. 3 to Compl. at 4); see also 42 U.S.C. § 16911(7) (H) and (I). As a result, CIS found that “approval of the family-based visa petition [Bakran] submitted on behalf of [his wife]” was “prohibited as a matter of law.” (Ex. 3 to Compl. at 4.) Thus, it explained, in order to avoid the denial of his petition, Bakran was required to demonstrate, beyond any reasonable doubt, that he did not pose a risk to his wife. CIS reviewed the evidence before it and found that Bakran had not met that burden of proof. It therefore denied the I-130 Petition, stating that Bakran had failed to overcome the finding that he was ineligible to file a family-based visa petition because of his conviction for a specified offense against a minor.
Bakran filed his Complaint in this action on January 13, 2015. He alleges that the denial of his I-130 Petition violated the Constitution and the Administrative Procedures Act (the “APA”), 5 U.S.C. § 701 et seq. Specifically, he alleges that Defendants’ denial of his Petition violated the ex post facto clause of Article I of the Constitution, his procedural due process rights under the Fifth Amendment, and his right pursuant to the Fifth and Eighth Amendments to be free of excessive punishment. He further alleges that the denial violated the APA, because CIS arbitrarily and capriciously interpreted the Walsh Act’s requirements, engaged in rule-making regarding the Walsh Act without following the APA’s notice and comment procedures, and issued ultra vires rules, i.e., rules that are beyond the agency’s legislative authority. Defendants have moved to dismiss the Complaint for lack of subject matter jurisdiction.
A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may challenge the court’s jurisdiction on either “factual” or “facial” grounds. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014) (citations omitted). A factual attack, which is what Defendants lodge in the instant case, “is an argument that there is no subject matter jurisdiction because the facts of the case . . . do not support the asserted jurisdiction.” Id. at 358. In a factual challenge, the court is not required to accept as true the Complaint’s allegations and must instead “‘satisfy itself as to the existence of its power to hear the case.’” Mortensen v. First Fed. Savs. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 464 (3d Cir. 2013) (quoting Mortensen, 549 F.2d at 891). In the end, the plaintiff bears the burden of showing that jurisdiction exists. Harris, 724 F.3d at 464.
Defendants argue in the Motion to Dismiss that we lack subject matter jurisdiction over Bakran’s claims because the immigration decision and actions being challenged lie within CIS’s discretion. Bakran contends, however, that we have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and the APA, and urges us to reject Defendants’ jurisdictional arguments because he is not challenging any discretionary aspect of CIS’s determinations.
Section 1331 of Title 28 of the United States Code gives district courts jurisdiction over “all civil actions arising under the Constitution [and] laws . . . of the United States, ” 28 U.S.C. § 1331, and, as such, “‘confer[s] jurisdiction on federal courts to review agency action.’” Chehazeh v. Att’y Gen. of U.S., 666 F.3d 118, 125 n.11 and 126 (3d Cir. 2012) (quoting Califano v. Sanders, 430 U.S. 99, 105 (1977)). Meanwhile, the APA details the manner by which a party may challenge an agency action. As a general matter, the APA provides that any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statue, is entitled to judicial review thereof.” 5 U.S.C. § 702. No review is available, however, where a statute specifically precludes judicial review or where the agency decision or action at issue is “committed to agency discretion by law.” Id. § 701(a).
The INA provides procedures for judicial challenges to agency decisions involving immigration matters. Particularly pertinent here, the INA includes a jurisdiction-stripping provision, which states that “no court shall have jurisdiction to review . . . any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B). On the other hand, that jurisdictional bar is not applicable where the issue to be reviewed is a “‘purely legal question and does not implicate agency discretion.’” Robinson v. Napolitano, 554 F.3d 358, 360 (3d Cir. 2009) (quoting Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005)).
Defendants argue that any challenges to their denial of Bakran’s I-130 Petition or to agency rules concerning I-130 Petitions are barred by § 1252(a)(2)(B) of the INA, because the Walsh Act delegates unfettered discretion to CIS to determine risk on a case-by-case basis. In this regard, they point to 8 U.S.C. § 1154(a)(1)(A)(viii), which grants CIS “sole and unreviewable discretion” to determine whether a family-based petitioner with a specified criminal conviction poses a risk to the intended foreign national beneficiary. Defendants contend that Bakran is challenging CIS’s discretionary “no risk” assessment and the ...