Bakran v. Secretary (3rd Cir. 2018)

Bakran v. Secretary, 894 F.3d 557 (3rd Cir. 2018)

Nature of Case: Appellant had been convicted of a sex offense and subsequently sought to sponsor the immigration application of an immediate relative. The Adam Walsh Act amended the Immigration and Nationality Act to specify that people convicted of specified crimes may not do so unless the Secretary of Homeland Security determined that the individual poses no risk to the individual on whose behalf the petition is being filed. The AWA specified that this determination was to be made in the Secretary’s “sole and unreviewable” discretion.

Appellant, a US citizen, sought lawful permanent resident status for an adult Indian national. USCIS denied Appellant’s application on the grounds of a 2004 offense, and Appellant brought suit, challenging the denial alleging that it violated the United States Constitution as well as the Administrative Procedures Act. The trial court granted summary judgment in favor of the defendant-appellees, finding that USCIS’ standards with respect to risk implemented by the AWA was not ultra vires, presumption of denial was not arbitrary and capricious, and that notice-and-comment rulemaking was not required. With respect to the constitutional claims, the court found that the AWA was not punitive nor impermissibly retroactive, and that Appellant’s due process claim failed as the AWA did not infringe upon his constitutional right to marry. Appellant then sought review from the Third Circuit.

Holding: The Third Circuit Court of Appeals affirmed in part. The Court held that the APA precluded judicial review of the Secretary’s determination in regards to immigration petitions, and thus concluded that the district court lacked jurisdiction to even consider them and reversed that portion of the judgment.

With respect to the constitutional claims, the Court affirmed. Appellant’s fundamental right was not a substantive Due Process violation because Appellant, in fact, married. Appellant did not have a constitutional right to have his spouse live with him in the United States. Further, the AWA does not violate the Ex Post Facto clause.