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Privett v. Secretary, Department of Homeland Security

United States Court of Appeals, Sixth Circuit

July 26, 2017

Joseph Privett, Plaintiff-Appellant,
v.
Secretary, Department of Homeland Security, et al., Defendant-Appellee.

          Argued: December 8, 2016

         Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:14-cv-00714-Susan J. Dlott, District Judge.

         ARGUED:

          Nicklaus Misiti, LAW OFFICES OF NICKLAUS MISITI, PLLC, New York, New York, for Appellant.

          Yamileth G. Davila, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Nicklaus Misiti, LAW OFFICES OF NICKLAUS MISITI, PLLC, New York, New York, for Appellant.

          Vinita B. Andrapalliyal, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

          Before: COLE, Chief Judge; BOGGS and SILER, Circuit Judges.

          OPINION

          BOGGS, Circuit Judge.

          In 2013, Joseph Privett sought to bring his spouse, Doris, into the United States by filing an I-130 immigrant visa petition. Because Privett had been convicted of a sexual offense in 2004, however, the petition implicated the Adam Walsh Child Protection and Safety Act of 2006 ("AWA"), Pub. L. No. 109-248, 120 Stat. 587, which prevents American citizens "convicted of a specified offense against a minor" from filing petitions on behalf of immediate relatives (including spouses) that would permit those relatives to apply for an immigrant visa and Green Card unless the Secretary of Homeland Security ("Secretary") determines that the citizen "poses no risk to the alien" who is the subject of the petition. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). United States Citizenship and Immigration Services ("USCIS") denied Privett's petition after determining that he could pose a risk to his wife, and he then filed suit against the Secretary of Homeland Security and others, claiming violations of the Ex Post Facto Clause, the Fifth and Eighth Amendments, and the Administrative Procedure Act ("APA"). The district court granted the defendants' motion to dismiss on jurisdictional grounds, holding that the denial fell within the unreviewable discretion of the Secretary. We affirm in part and reverse in part.

         I

         The Immigration and Nationality Act ("INA") permits United States citizens to file petitions that establish their relationship with aliens who are immediate relatives, which in turn allow those relatives to seek an immigrant visa to enter the United States. See 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). If the facts stated in the petition are true and the alien is an immediate relative of the petitioner, then the Attorney General "shall . . . approve the petition." 8 U.S.C. § 1154(b). These petitions may not, however, be filed by those citizens who have "been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition . . . is filed." 8 U.S.C. § 1154(a)(1)(A)(viii)(I). A "specified offense against a minor" is defined as including, among other conduct, "[c]riminal sexual conduct involving a minor" and "conduct that by its nature is a sex offense against a minor." 42 U.S.C. § 16911(7)(H), (I); see also 8 U.S.C. § 1154(a)(1)(A)(viii)(II).

         On November 17, 2004, Joseph Privett pleaded guilty to and was convicted of two counts of sexual battery in violation of Ohio Rev. Code § 2907.03(A)(5). That law prohibits "sexual conduct with another, not the spouse of the offender, when . . . [t]he offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person." Ohio Rev. Code § 2907.03(A)(5).

         Nine years later, Privett, a United States citizen, married Doris, a Nigerian-born foreign citizen, and sought to have her join him in the United States as a lawful permanent resident. To that end, he filed a Form I-130 petition around the beginning of May 2013 to establish Doris as his spouse, which would trigger her qualification for a visa and eventually a Green Card. After waiting sixteen months for the petition to be resolved, Privett filed a Complaint for Mandamus Relief in September 2014. In December 2014, USCIS sent a Notice of Intent to Deny and requested additional evidence that would demonstrate that Privett was not convicted for a "specified offense against a minor" and "also requested . . . evidence that demonstrate[d], beyond a reasonable doubt, that [he] pose[d] no risk to the safety and wellbeing of" his wife. On February 23, 2015, Privett provided documents responsive to USCIS's request, including a statement from his attorney and a transcript of his plea hearing. Nevertheless, USCIS rejected his petition on March 5, 2015, finding that "the evidence submitted fail[ed] to demonstrate that the particular crime for which [Privett was] convicted is not a 'specified offense against a minor' as defined by the Adam Walsh Act" and "failed to demonstrate that ...


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