Richard Gebhardt v. Elaine Duke

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RICHARD GEBHARDT, No. 15-56072 Plaintiff-Appellant, D.C. No. v. 5:14-cv-02277- VAP-DTB KIRSTJEN NIELSEN, Secretary, Department of Homeland Security; L. FRANCIS CISSNA, Director, U.S. OPINION Citizenship and Immigration Services (“USCIS”); IRENE MARTIN, Field Office Director, San Bernardino Field Office, USCIS; JEAN THARPE, Field Office Director, Vermont Field Office, USCIS; JEFFERSON B. SESSIONS III, Attorney General, U.S. Department of Justice, Defendants-Appellees. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding Argued and Submitted December 5, 2017 San Francisco, California Filed January 9, 2018 2 GEBHARDT V. NIELSEN Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Lee H. Rosenthal,* Chief District Judge. Opinion by Judge Graber SUMMARY** Immigration The panel affirmed the district court’s dismissal for lack of jurisdiction of Richard Gebhardt’s action challenging the Department of Homeland Security’s denial of the I-130 visa petitions he filed on behalf of his wife and her children. The panel noted that Gebhardt’s I-130 petitions would have been otherwise granted, but the DHS denied the petitions under the Adam Walsh Child Protection and Safety Act of 2006, which creates an exception for visa petitioners who have been convicted of certain sex offenses against a child. Gebhardt had been convicted of a covered offense, and the DHS found that he failed to show that, despite the conviction, he posed “no risk” to the beneficiaries of the petitions. The panel held that a pair of jurisdictional provisions insulated the “no risk” determination from review. First, the * The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. GEBHARDT V. NIELSEN 3 Immigration and Nationality Act bars review of any decision the authority for which is specified as falling under the discretion of the Secretary of the DHS. Second, the Adam Walsh Act grants the Secretary “sole and unreviewable discretion” in making “no risk” determinations. Thus, the panel concluded that it could review Gebhardt’s claims only insofar as they challenged actions beyond the scope of the Secretary’s sole and unreviewable discretion. The panel concluded it had jurisdiction to consider the predicate legal issue of whether the Adam Walsh Act applied to Gebhardt’s case even though he filed his petitions before the statute took effect. The panel held that the Adam Walsh Act applies to petitions, like those of Gebhardt, that were filed, but not yet adjudicated, before the statute’s effective date. The panel also concluded that it had jurisdiction to consider Gebhardt’s argument that, because the Adam Walsh Act took effect after he committed the crime resulting in the denial of his petitions, the application of the statute to him violated the Ex Post Facto Clause. The panel rejected this contention, concluding that Congress intended to create a civil, non-punitive scheme, and ...

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Source: All recent Immigration Decisions In All the U.S. Courts of Appeals