NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT YOGESHKUMAR PATEL, No. 19-17095 Plaintiff-Appellant, D.C. No. 3:17-cv-00860-JD v. MEMORANDUM* TRACY RENAUD, in her official capacity, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security1; et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding Submitted March 10, 2021** San Francisco, California 1 On January 20, 2021, Tracy Renaud replaced Kenneth T. Cuccinelli, II as the temporary head of USCIS and was automatically substituted as a defendant. See Fed. R. App. P. 43(c). Other defendants have been similarly substituted. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: GOULD and FRIEDLAND, Circuit Judges, and ERICKSEN,*** District Judge. Plaintiff Yogeshkumar Patel, a U.S. citizen, filed a family-sponsored visa petition for his wife, Maimi Murakami, a noncitizen. United States Citizenship and Immigration Services (“USCIS”) denied the petition because, pursuant to the Adam Walsh Child Protection and Safety Act (“AWA”), Pub. L. No. 109-248, 120 Stat. 587 (2006), it could not conclude that Patel, who had served three years in prison for a sex offense against a minor, posed “no risk” to his wife.2 Patel sued in district court, alleging multiple constitutional violations, and the district court dismissed Patel’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.3 Patel first contends that, because the AWA took effect after he committed the crime at issue, the government violated the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, by applying the AWA to his petition. We disagree. As the district *** The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota, sitting by designation. 2 In 2004, Patel was convicted of using the internet to induce minors to engage in sexual activity. Patel does not dispute that his conviction qualifies as a “specified offense against a minor” under the AWA. See 34 U.S.C. § 20911(7); 8 U.S.C. § 1154(a)(1)(A)(viii)(II). 3 Patel raised substantive and procedural due process claims in the district court, but he does not challenge the dismissal of those claims on appeal, so we do not address them here. 2 court correctly concluded, this argument is foreclosed by our decision in Gebhardt v. Nielsen, 879 F.3d 980 (9th Cir. 2018). In Gebhardt, we held that applying the AWA to situations in which the crime predated the AWA’s enactment did not violate the Ex Post Facto Clause. Id. at 987. Patel attempts to distinguish Gebhardt by pointing out that the plaintiff in that case filed petitions for his wife and her three children, whereas Patel only petitions for …
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