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FILED NOT FOR PUBLICATION FEB 16 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALMA GARCIA SOLORIO, No. 16-16300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. 2 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,” ...

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