United States District Court, E.D. Virginia, Alexandria Division
T. S. ELLIS, III, District Judge.
Plaintiffs in this immigration case challenge the denial by the United States Citizenship and Immigration Services ("USCIS") of a petition for immediate relative status filed by plaintiff Frank Scott Struniak on behalf of his spouse, Aygul Minigalina. Specifically, plaintiffs argue that:
(1) the USCIS's denial of Struniak's petition was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, " in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2)(A);
(2) the USCIS's application of certain provisions of the Adam Walsh Child Protection and Safety Act ("AWA") to Struniak's petition was impermissibly retroactive;
(3) the USCIS's implementation of the AWA (i) by applying the AWA to petitioners with adult beneficiaries and (ii) by imposing a "beyond a reasonable doubt" standard of proof on petitioners to demonstrate their eligibility to petition exceeds the scope of the statutory authority, in violation of the APA, 5 U.S.C. § 706(2)(C); and
(4) the USCIS's denial of Struniak's petition infringes on Struniak's constitutionally protected liberty interest in marriage and family life, specifically his interest in residing with his spouse in the United States.
Accordingly, plaintiffs seek (i) a declaration that the USCIS's denial of plaintiff's petition was unlawful, (ii) a remand to the USCIS for further findings and approval of the petition, and (iii) reasonable attorney's fees and costs under the Equal Access to Justice Act.
The USCIS argues that there is no subject matter jurisdiction to review the denial of plaintiffs' petition and that plaintiffs' arguments fail as a matter of law. Thus, the USCIS moved to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. The matter was fully briefed and argued orally, and is thus now ripe for disposition. For the reasons that follow, the motion to dismiss must be granted.
At the outset, a brief overview of the relevant statutory and regulatory scheme is helpful. In general, "any citizen of the United States claiming that an alien is entitled... to an immediate relative status... may file a petition with the Attorney General for such classification." 8 U.S.C. § 1154(a)(1)(A)(i). Unsurprisingly, a spouse qualifies as an immediate relative for purposes of § 1154. See 8 U.S.C. § 1151(b)(2)(A)(i). Where, as here, a citizen seeks to obtain an immediate relative status for his spouse, he does so by filing a Form I-130 petition with the USCIS. See 8 C.F.R. § 204.1(a)(1).
Yet, Congress enacted in 2006 as part of the AWA an exception to the general rule that "any citizen" can file an I-130 petition. Specifically, "a citizen of the United States who has been convicted of a specified offense against a minor" is not entitled to file a petition for immediate relative status "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 the petition... is filed." 8 U.S.C. § 1154(a)(1)(A)(viii)(I). For purposes of this exception, a "specified offense against a minor" includes any offense against a minor that involves, inter alia, (i) solicitation to engage in sexual conduct, (ii) criminal sexual conduct involving a minor, or (iii) any conduct that by its nature is a sex offense against a minor. See id. § 1154(a)(1)(A)(viii)(II) (referencing the definition in 42 U.S.C. § 16911(7)).
Authority to adjudicate immigrant visa petitions, including Form I-130 petitions, rests with the USCIS. See 6 U.S.C. § 271(b)(1). This authority includes the power to "establish policies for performing" immigrant visa petition adjudications. Id. § 271(a)(3)(A). As relevant here, one of the "policies" of the USCIS in reviewing I-130 petitions submitted by qualifying convicted offenders under § 1154(a)(1)(A)(viii)(I) is that the burden is on the petitioner to establish beyond a reasonable doubt that he or she poses no risk to his or her beneficiary, a policy that derives from a 2007 policy memorandum from Michael Aytes, Associate Director of Domestic Operations for the USCIS ("Aytes Memorandum"). See In re Aceijas-Quiroz, 26 I. & N. Dec. 294, 296 n.5 (BIA 2014) (discussing the policy).
A denial of an I-130 petition is appealable to the Board of Immigration Appeals ("BIA"). See 8 C.F.R. § 204.2(a)(3). The BIA, however, has concluded that it lacks jurisdiction to review the USCIS's "no risk" determinations under the AWA as codified at 8 U.S.C. § 1154(a)(1)(A)(viii)(I). See In re Aceijas-Quiroz, 26 I. & N. Dec. at 300-01.
Given this legal background, the pertinent facts here may be succinctly stated. Plaintiff Struniak is a United States citizen who, in 1993, was convicted of a series of crimes in Pennsylvania state court. These convictions included qualifying offenses against minors that, under the AWA, would render Struniak ineligible to file an I-130 petition absent a showing that he poses "no risk" to the beneficiary of the petition. Specifically, the USCIS cited the following convictions as qualifying offenses:
(i) Two counts of rape;
(ii) Two counts of statutory rape;
(iii) Two counts of involuntary deviate sexual intercourse;
(iv) Two counts of incest;
(v) Two counts of indecent assault;
(vi) Two counts of indecent exposure;
(vii) Two counts of simple assault;
(viii) Terrorist threats;
(ix) Two counts of corruption of minors; and
(x) Two counts of endangering welfare of children.
In February 2007, Struniak married plaintiff Minigalina, and the two have lived together in Alexandria, Virginia, since the time of their marriage. In April 2007, Struniak filed with the USCIS a Form I-130 petition on behalf of Minigalina, seeking to have Minigalina classified as an immediate relative of a U.S. citizen. Approximately one year later, plaintiffs were interviewed by USCIS officials in the USCIS district office in Washington, D.C. Shortly thereafter, the USCIS issued a request for evidence, seeking certified copies of the police and court records pertaining to Struniak's 1993 Pennsylvania convictions. This evidence was submitted. Thereafter, in September 2009, plaintiffs inquired about the status of Struniak's pending I-130 petition. Plaintiffs were advised that a decision had been made, although the decision was not then disclosed. On the advice of counsel, Minigalina sua sponte submitted a sworn statement to the USCIS on September 23, 2009, confirming that she was aware of Struniak's convictions.
A few months later, in January 2010, the USCIS issued a second request for evidence, this time seeking certified records confirming that Struniak successfully completed counseling or rehabilitation or, in the alternative, seeking a certified evaluation from a licensed professional assessing Struniak's level of rehabilitation and behavior modification. Accordingly, plaintiffs provided an evaluation letter from Struniak's psychologist. Six months later, in June 2010, the USCIS conducted a second interview with plaintiffs at the district office in Washington, D.C.
Approximately nine months after plaintiffs' second USCIS interview, the USCIS issued a third request for evidence along with a notice of the intent to deny Struniak's I-130 petition. The USCIS notice informed plaintiffs that it appeared that Struniak was ineligible to submit an I-130 petition because he had been convicted of a qualifying disabling offense under the AWA. Thus, the USCIS instructed Struniak that his petition would be denied unless he submitted evidence demonstrating beyond a reasonable doubt that he poses no risk to Minigalina. In August 2011, ...