Bessler v. Board of Immigration Appeals

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MICHAEL BESSLER CIVIL ACTION

VERSUS NO. 23-6362

BOARD OF IMMIGRATION SECTION “O”

APPEALS, ET AL.

ORDER AND REASONS

Before the Court in this Administrative Procedure Act case is Defendants’

motion1 to dismiss Plaintiff Michael Bessler’s complaint under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6), or, alternatively, for a stay. This suit challenges the

denial of Plaintiff’s Form I-130 petition seeking to permit his wife—a citizen of

China—to immigrate to the United States. The United States Citizenship and

Immigration Services (“USCIS”) denied Plaintiff’s petition under the Adam Walsh

Act—a federal law requiring petitioners convicted of a “specified offense against a

minor” to show that they pose “no risk” to the petition beneficiary—because the

USCIS concluded that Plaintiff had been convicted of a qualifying offense and that

Plaintiff had failed to show that he posed “no risk” to his wife. Here, Plaintiff alleges

the Act is impermissibly retroactive and USCIS misapplied its no-risk determination.

But Plaintiff’s retroactivity challenge fails to state a claim. And the Court lacks

jurisdiction to review his challenges to USCIS’s no-risk determination. Accordingly,

for these reasons and those that follow, the motion to dismiss is GRANTED.

1 ECF No. 12.

I. BACKGROUND

The Court starts with a review of the immigration rules relevant to this

challenge to USCIS’s denial of Plaintiff’s petition. The Immigration and Nationality

Act (“INA”) permits a United States citizen to file an I-130 petition requesting that

the Attorney General of the United States recognize a foreign-national family

member, like a spouse, as an “immediate relative.” 8 U.S.C. § 1154(a)(1)(A)(i); see also

8 C.F.R. § 204.1(a)(1). In response to that request, “the Attorney General shall”

approve the I-130 petition “if he determines that the facts stated in the petition are

true and that the alien in behalf of whom the petition is made is an immediate relative

. . . .” 8 U.S.C. § 1154(b). The foreign-national family member may then enter the

United States without regard to numerical limits on immigration. 8 U.S.C. § 1151(b).

But the Adam Walsh Child Protection and Safety Act of 2006 stands as an

exception to that allowance. See PUB. L. NO. 109-248, 120 STAT 587 (codified at 8

U.S.C. § 1154(a)(1)(A)(viii)(I) & (B)(i)(I)). Under the Adam Walsh Act, the general rule

permitting a United States citizen to petition for family members to receive

immediate-relative status does “not apply to a citizen of the United States who has

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 the petition . . . is

filed.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I) (emphasis added). USCIS, which is a

component of the Department of Homeland Security, interprets the Adam Walsh

Act’s no-risk requirement to mean that “a petitioner who has been convicted of a

specified offense against a minor must submit evidence of rehabilitation and any

other relevant evidence that clearly demonstrates, beyond any reasonable doubt, that

he or she poses no risk to the safety and well-being of his or her intended

beneficiary(ies).”2 The Act in turn defines “specified offense against a minor” to

include “an offense against a minor that involves . . . [a]ny conduct that by its nature

is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I). The upshot of the Act is that

a citizen convicted of a “specified offense against a minor,” like Plaintiff, is ineligible

to sponsor their immediate relative’s immigration petition unless the Secretary of

Homeland Security—though USCIS—affirmatively acts in the petitioner’s favor. See

8 U.S.C. § 1154(a)(1)(A)(viii)(I). Whether the Secretary (through USCIS) ultimately

does so is committed to the Secretary’s “sole and unreviewable discretion.” Id.

Turning to the facts here, Plaintiff is a United States citizen who was convicted

of criminal sexual assault of a nine-year-old child in 1990.3 All agree: Plaintiff’s

conviction is a “specified offense against a minor” under the Adam Walsh Act.4

Nearly nineteen years after Plaintiff’s sexual-assault conviction, Plaintiff

married a Chinese citizen.5 A few months after they married, Plaintiff filed a Form I-

310 petition to classify his wife as his immediate relative.6

2 See United States Citizenship and Immigration Services, Guidance for Adjudication of

Family Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection

and Safety Act of 2006 (Feb. 8, 2007).

3 ECF No. 1-11 at 66–67; ECF No. 1-13 at 21. Plaintiff alleges that he was convicted in 1989,

ECF No. 1 at ¶ 17, but the order adjudicating him guilty in accordance with his guilty plea is dated

1990, ECF No. 1-11 at 66.

4 See ECF No. 1 at ¶ 17 (admitting that Plaintiff’s conviction “is considered a ‘specified offense

against a minor’ for purposes of the [Adam Walsh Act]”).

5 Id. at ¶ 18; see also ECF No. 1-8 at 9.

6 ECF No. 1 at ¶ 15; see also ECF No. 1-8.

In response, USCIS notified Plaintiff that it intended to deny his petition under

the Adam Walsh Act based on his criminal-sexual-assault conviction.7 But before that

denial became final, USCIS gave Plaintiff “an opportunity to submit documentary

evidence in an effort to overcome” the grounds for the denial.8 Plaintiff did so.9

After reviewing Plaintiff’s evidence, USCIS denied his petition.10 Citing the

Adam Walsh Act, USCIS concluded Plaintiff had been convicted of a “specified offense

against a minor” and Plaintiff “failed to demonstrate he poses no risk to” his spouse.11

Plaintiff appealed the denial of his petition to the Board of Immigration

Appeals.12 But the Board dismissed his appeal.13 In so doing, the Board “decline[d] to

disturb” USCIS’s decision that the Adam Walsh Act barred USCIS from granting the

petition, and the Board noted that USCIS’s no-risk determination under the Act had

“been delegated to the sole and unreviewable discretion of” USCIS.14

This Administrative Procedure Act lawsuit followed.15 Challenging USCIS’s

denial of his petition under the Adam Walsh Act, Plaintiff brought a three-count

complaint against the Attorney General of the United States, the Secretary of the

Department of Homeland Security, the USCIS Director, the Chief Appellate

7 ECF No. 1 at ¶ 18; see also ECF No. 1-10.

8 ECF No. 1-10 at 1.

9 ECF No. 1 at ¶¶ 19–20; see also ECF No. 1-11.

10 ECF No. 1 at ¶ 22; see generally ECF No. 1-12.

11 ECF No. 1 at ¶ 22; see also ECF No. 1-12 at 5.

12 ECF No. 1-13.

13 See generally ECF No. 1-14.

14 ECF No. 1-14 at 2–3 (internal quotation marks and citation omitted).

15 See generally ECF No. 1.

Immigration Judge of the Board of Immigration Appeals, and the Director of the

National Benefits Center.16 Defendants are sued in their official capacities only.17

For count one, Plaintiff alleges that the Adam Walsh Act violates the Ex Post

Facto Clause of the United States Constitution because it is an “impermissibly

retroactive” law.18 Plaintiff reasons that the Act is impermissibly retroactive because

Congress passed the Act in 2006—over a decade-and-a-half after Plaintiff’s

conviction—and the Act “abridges [Plaintiff’s] freedom of marriage and family life.”19

For count two, Plaintiff alleges that USCIS misapplied the no-risk assessment

under the Act because it did not consider Plaintiff’s potential risk to his spouse.20 And

for count three, Plaintiff alleges that USCIS violated the Administrative Procedure

Act by arbitrarily and capriciously failing to act in good faith in its adjudication of

Plaintiff’s petition and by unreasonably and unlawfully denying the petition.21

Now, Defendants move the Court to dismiss Plaintiff’s complaint under Rules

12(b)(1) and 12(b)(6).22 They alternatively move for a stay of this case pending

USCIS’s adjudication of Plaintiff’s second Form I-130 petition.23 Plaintiff opposes.24

16 Id. at ¶¶ 9–13.

17 Id.

18 Id. at ¶¶ 26–35.

19 Id. at ¶¶ 33, 35.

20 Id. at ¶¶ 36–42.

21 Id. at ¶¶ 43–51.

22 ECF No. 12 at 1.

23 Id.; see also ECF No. 12-1 at 17.

24 ECF No. 14.

II. LEGAL STANDARDS

A. Rule 12(b)(1)

A party may move to dismiss a case for lack of subject-matter jurisdiction.

FED. R. CIV. P. 12(b)(1). “If the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(h)(3).

The Court may assess subject-matter jurisdiction based on “(1) the complaint alone;

(2) the complaint supplemented by undisputed facts in the record; or (3) the complaint

supplemented by undisputed facts plus the [C]ourt’s resolution of disputed facts.”

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (internal citation

omitted). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party

asserting jurisdiction,” so “the plaintiff constantly bears the burden of proof that

jurisdiction does in fact exist.” Id. (internal citations omitted).

B. Rule 12(b)(6)

Rule 8(a)(2) requires “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint that does not

meet Rule 8(a)(2)’s pleading standard should be dismissed for failing to state a claim

upon which relief can be granted. FED. R. CIV. P. 12(b)(6). “[T]he pleading standard

Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell. Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitations

of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at

555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Ultimately, “[t]o survive a motion to dismiss” under Rule 12(b)(6), “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(citing Twombly, 550 U.S. at 556). “Although ‘[courts] accept all well-pled facts as

true, construing all reasonable inferences in the complaint in the light most favorable

to the plaintiff, conclusory allegations, unwarranted factual inferences, or legal

conclusions are not accepted as true.’” Hodge v. Engleman, 90 F.4th 840, 843 (5th Cir.

2024) (quoting Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023)).

III. ANALYSIS

Defendants move to dismiss Plaintiff’s retroactivity challenge to the Adam

Walsh Act (count one) for failure to state a claim.25 And Defendants move to dismiss

Plaintiff’s challenges to USCIS’s no-risk determination under the Act (counts two and

three) for lack of jurisdiction.26 Because “[j]urisdiction is always first,” Carswell v.

Camp, 54 F.4th 307, 310 (5th Cir. 2022) (quotation omitted), the Court considers

Defendants’ motion to dismiss counts two and three before turning to count one.

25 ECF No. 12-1 at 7–9.

26 Id. at 11–14.

A. Counts Two and Three: Lack of Subject-Matter Jurisdiction.

The Court dismisses counts two and three under Rule 12(b)(1) because Plaintiff

fails to carry his burden, as the party invoking the Court’s jurisdiction, to show that

the Court has subject-matter jurisdiction to review USCIS’s no-risk determination

and the process by which USCIS exercised its “sole and unreviewable discretion” to

conclude that Plaintiff failed to show that he posed no risk to his wife.

The Court lacks subject-matter jurisdiction over counts two and three. At their

core, both counts challenge USCIS’s no-risk determination and the processes USCIS

employed to make that determination. But the Adam Walsh Act, alone and in

combination with the INA, precludes judicial review of not only USCIS’s no-risk

determination—but also the processes behind USCIS’s no-risk determination.

District courts have jurisdiction to review agency action under the APA subject

to “preclusion-of-review statutes created or retained by Congress.” Califano v.

Sanders, 430 U.S. 99, 105 (1977). The APA in turn bars judicial review where

“statutes preclude judicial review” or “agency action is committed to agency discretion

by law.” 5 U.S.C. § 701(a). As relevant here, the INA provides that “no court shall

have jurisdiction to review . . . any decision or action of . . . the Secretary of Homeland

Security for which is specified under this subchapter to be in the discretion of . . . the

Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). The Adam Walsh Act

no-risk determination is a “decision or action . . . specified under this subchapter to

be in the discretion of” the Secretary, id., because the Adam Walsh Act grants the

Secretary “sole and unreviewable discretion” to “determine[ ]” if the petitioner “poses

no risk to the alien.” 8 U.S.C § 1154(a)(1)(A)(viii)(I). Accordingly, because the Adam

Walsh Act grants the Secretary the “sole and unreviewable discretion” to make a no-

risk determination, and because the INA strips courts of subject-matter jurisdiction

to review discretionary decisions of the Secretary, the Court lacks subject-matter

jurisdiction to review Plaintiff’s challenge to USCIS’s no-risk determination here.

To be sure, the parties have not cited, and the Court has not located, published

Fifth Circuit precedent answering the specific question whether an Adam Walsh Act

no-risk determination is subject to judicial review. But every federal appellate court

that has considered that question has answered “no”: Courts may not review the

Secretary’s discretionary no-risk determination under the Adam Walsh Act or the

processes employed to reach that determination. See, e.g., Bourdon v. Dep’t of

Homeland Sec., 940 F.3d 537, 542–44 (11th Cir. 2019) (holding that courts lack

authority to review not only the discretionary no-risk determination but also the

processes employed to make that determination); Bakran v. Sec’y, U.S. Dep’t of

Homeland Sec., 894 F.3d 557, 563 (3d Cir. 2018) (same); Gebhardt v. Nielsen, 879

F.3d 980, 987 (9th Cir. 2018) (same); Privett v. Sec’y, Dep’t of Homeland Sec., 865 F.3d

375, 380–81 (6th Cir. 2017) (same); Roland v. U.S. Citizenship & Immigr. Servs., 850

F.3d 625, 629–30 (6th Cir. 2017) (same); Bremer v. Johnson, 834 F.3d 925, 930 (8th

Cir. 2016) (same). Plaintiff’s response does not acknowledge any of these authorities

or otherwise persuade the Court that the consensus among the circuits is wrong.27

27 See generally ECF No. 14.

Accordingly, because the Court lacks subject-matter jurisdiction to review

USCIS’s no-risk determination and the processes USCIS employed to reach that no-

risk determination, the Court grants Defendants’ motion to dismiss count two and

three of the complaint without prejudice for lack of subject-matter jurisdiction.

B. Count One: Failure to State a Claim

The Court dismisses count one—Plaintiff’s retroactivity challenge to the Adam

Walsh Act—for failure to state a claim because the Adam Walsh Act is not

impermissibly retroactive and does not violate the Ex Post Facto Clause.

“The so-called Ex Post Facto Clause. . . refers to two prohibitions—one against

the Congress and one against the states—that forbid the government from enacting

any law ‘which imposes a punishment for an act which was not punishable at the

time it was committed; or imposes additional punishment to that then prescribed.’”

United States v. Young, 585 F.3d 199, 202 (5th Cir. 2009) (alterations and footnotes

omitted) (quoting Cummings v. Missouri, 71 U.S. 277, 325–26 (1867)). Only the

prohibition against Congress is relevant here. See U.S. CONST. art. I, § 9, cl. 3.

To decide if applying the Adam Walsh Act to Plaintiff’s petition violates the Ex

Post Facto Clause, the Court employs a two-step inquiry. See Smith v. Doe, 538 U.S.

84, 92 (2003). The Court first asks if Congress meant to establish a civil scheme—

rather than a punitive one—when it enacted the Adam Walsh Act. See id. If Congress

intended to impose punishment, the Adam Walsh Act “is automatically

unconstitutional.” Young, 585 F.3d at 204 (citing Smith, 538 U.S. at 92). But if

Congress instead intended “to enact a regulatory scheme that is civil and

nonpunitive,” the Court asks if “ the Act is “so punitive either in purpose or effect as

to negate [Congress’] intention to deem it civil.” Id. (citations and quotation omitted).

As for the first step, Congress meant to establish a civil scheme—not a punitive

one—when it enacted the Adam Walsh Act. Congress passed the Adam Walsh Act

“[t]o protect children from sexual exploitation and violent crime, to prevent child

abuse and child pornography, to promote Internet safety, and to honor the memory

of . . . child crime victims.” PUB. L. NO. 109-248, § 102, 120 STAT. 587, 587 (2006). As

Congress’ own language indicates, “the entire [statutory] scheme focuses on

prevention—not punishment.” Gebhardt, 879 F.3d at 986 (citing PUB. L. NO. 109-248,

120 STAT. 587, 622). In the end, the Adam Walsh Act “does not retroactively punish

petitioners for past crimes but rather regulates ‘dangers that arise postenactment’—

specifically, the dangers that convicted sex offenders may pose to new immigrants.”

Bremer, 834 F.3d at 932 (quoting Vartelas v. Holder, 566 U.S. 257, 271 n.7 (2012)).

As for the second step, the Adam Walsh Act is not so punitive that it negates

Congress’ intent to create a civil regulatory scheme. To decide if the effects of the

Adam Walsh Act “are in fact overly punitive,” the “most relevant” factors are

“whether, in its necessary operation, the [Act]: has been regarded in our history and

traditions as a punishment; imposes an affirmative disability or restraint; promotes

the traditional aims of punishment; has a rational connection to a nonpunitive

purpose; or is excessive with respect to this purpose.” Young, 585 F.3d at 206

(citations and quotation omitted). The Court’s consideration of these factors confirms

that the Act is not overly punitive. To be sure, the Act “imposes an affirmative

restraint” insofar as it “makes it more difficult for a citizen convicted of a specified

offense to obtain [lawful permanent resident] status for his or her non-citizen

relatives.” Gebhardt, 879 F.3d at 986. But that limited affirmative restraint is

outweighed by the Act’s “clear non-punitive purpose: preventing those convicted of

specified offenses from having access to the persons that they are most likely to

harm.” Id. And “perhaps most importantly,” the Act “is not unduly excessive with

respect to its purpose.” Id. That is because the Adam Walsh Act “expressly provides

an exception for those petitioners who pose ‘no risk’—i.e., those who do not threaten

the civic interests that Congress was trying to protect.” Id. at 987.

For his part, Plaintiff does not engage with any aspect of the required two-step

Ex Post Facto analysis. And Plaintiff does not acknowledge or try to distinguish any

of the federal appellate authority rejecting retroactivity challenges materially

identical to the one he brings here. See, e.g., Bremer, 834 F.3d at 932 (rejecting Ex

Post Facto challenge to the application of the Adam Walsh Act to a I-130 petition);

Gebhardt, 879 F.3d at 986–87 (same); Bakran, 894 F.3d at 566–67 (same).

Accordingly, because Congress meant to establish a non-punitive civil

regulatory scheme when it enacted the Adam Walsh Act, and because the Act is not

so punitive that it negates Congress’ intent to create a civil regulatory scheme,

applying the Act to Plaintiff’s petition does not violate the Ex Post Facto Clause.

Because applying the Adam Walsh Act to Plaintiff’s petition does not violate the Ex

Post Facto Clause, the Court grants Defendants’ motion to dismiss Plaintiff’s

retroactivity challenge to the Adam Walsh Act (count one) for failure to state a claim.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Defendants’ motion?’ to dismiss Plaintiff's complaint

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) is GRANTED.

Plaintiffs complaint is DISMISSED. Count one of the complaint is DISMISSED

WITH PREJUDICE for failure to state a claim. Counts two and three are

DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction.

A final judgment will follow in accordance with Federal Rule of Civil Procedure 58.

New Orleans, Louisiana, this 21st day of February, 2025.

4S S. LONG

UNITED STATES DISTRICT JUDGE

28 ECF No. 12.

13