Ryan Castaneira v. Kristi Noem

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 19, 2025 Decided May 30, 2025

No. 23-5204

RYAN CASTANEIRA,

APPELLANT

v.

KRISTI NOEM, SECRETARY FOR THE DEPARTMENT OF

HOMELAND SECURITY, IN HER OFFICIAL CAPACITY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-01485)

Ryan Castaneira, pro se, argued the cause and filed the

briefs for appellant.

Cameron Beach, Student Counsel, appointed by the court,

argued the cause as amicus curiae in support of appellant. With

her on the briefs were J. Scott Ballenger, Lori Alvino McGill,

and Catherine E. Stetson, appointed by the court, and Lauren

Emmerich and Benjamin Leonard, Student Counsel.

Jordan K. Hummel, Trial Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

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was Brett A. Shumate, Acting Assistant Attorney General, Civil

Division.

Before: SRINIVASAN, Chief Judge, WILKINS, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Under the Immigration

and Nationality Act, any United States citizen may file a “Form

I-130” petition with the United States Citizenship and

Immigration Services (“USCIS”) to request that the Attorney

General recognize a foreign national family member, like a

spouse or child, as an “immediate relative.” 8 U.S.C.

§ 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1) (2025). If the

petition is truthful, the Attorney General “shall . . . approve” it,

and the family member may immigrate to the United States and

obtain lawful permanent resident status. Id. § 1154(b).

However, the Adam Walsh Act (“AWA” or “Act”) excludes

from this process citizens with certain prior sex offense

convictions. The Act states that, with respect to any Form I-130

petitioner who has been convicted of a “specified offense

against a minor,” the Secretary of Homeland Security has “sole

and unreviewable discretion” to determine whether “the citizen

poses no risk to the alien with respect to whom a petition . . . is

filed.” Id. § 1154(a)(1)(A)(viii)(I). If it is determined that the

petitioner poses “no risk,” then the Form I-130 will be granted;

otherwise, the petition will be denied. Id.

In 2019, Ryan Castaneira, the Appellant in this case, filed

a Form I-130 petition for his spouse, a Mexican national.

USCIS sent Appellant a Notice of Intent to Deny because he

had been convicted of crimes in Georgia that appeared to

qualify as “special offenses against a minor” under the Adam

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Walsh Act. USCIS told Castaneira that, to succeed with his

Form I-130 petition, he would need to prove “beyond any

reasonable doubt” that he posed “no risk” to his wife. In his

response to USCIS, Appellant claimed that the agency could

not deny his petition on the grounds asserted because his prior

convictions involved an undercover officer, not a minor, and

thus could not have constituted an offense “against a minor”

under the statute.

With USCIS’s final decision still pending, Appellant filed

a pro se complaint in the District Court, seeking injunctive and

declaratory relief, challenging the agency’s use of the beyond-

any-reasonable-doubt standard for adjudicating his Form I-130

petition, and requesting a judgment declaring the Adam Walsh

Act inapplicable to his convictions. After USCIS issued its

final decision, Appellant filed an amended complaint with the

District Court.

Appellant’s amended complaint advanced the following

principal contentions: (1) in applying a beyond-any-

reasonable-doubt standard, USCIS failed to follow its own

binding precedent; (2) his prior convictions do not qualify as

“specified offense[s] against a minor” under the Adam Walsh

Act; and (3) USCIS violated the Administrative Procedure Act

(“APA”) in arbitrarily and capriciously refusing to adhere to its

own precedent. Appellant claimed that the agency’s prior

decision in Matter of Chawathe, 25 I. & N. Dec. 369 (AAO

2010), is controlling, having imposed a “preponderance of the

evidence” standard “[e]xcept where a different standard is

specified by law.” Id. at 375.

The District Court rejected Appellant’s contentions. It held

that the Act’s definition of offenses against a minor covers the

conduct underlying Appellant’s prior convictions, because it

“by its nature” constituted an “offense against a minor.”

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Castaneira v. Mayorkas, 682 F. Supp. 3d 19, 30 (D.D.C. 2023)

(quoting 34 U.S.C. § 20911(7)(I)); see also 8 U.S.C.

§ 1154(a)(1)(A)(viii)(I). Regarding the applicable evidentiary

standard, the District Court ruled that it had no jurisdiction to

review the counts involving that issue. Because the Act places

the “no risk” determination within USCIS’s “sole and

unreviewable” discretion, the court concluded that the standard

of proof USCIS applies in making that determination is beyond

the reach of judicial review. Castaneira, 682 F. Supp. 3d at 25-

26 (quoting 8 U.S.C. § 1154(a)(1)(A)(viii)(I)).

We affirm the District Court’s ruling in part. Appellant’s

prior convictions are covered by the applicable statutory

definition of “specified offense against a minor” and his I-130

petition thus fell within the Act’s scope. But, while USCIS has

unreviewable discretion in making the “no risk” determination,

the agency does not dispute that it has the authority to cabin

this grant of discretion by adopting an evidentiary standard less

stringent than beyond a reasonable doubt to govern the

processing of Form I-130 petitions. If USCIS chooses to tie its

own hands through binding agency precedent, and then departs

from the standard it has adopted, such departure would be

reviewable under the APA.

Because neither the District Court nor the agency has

addressed whether Chawathe or any other agency decision

purports to establish a controlling standard for adjudicating

Form I-130 petitions under the Adam Walsh Act, and whether

that standard was in fact violated by USCIS in adopting the

beyond-any-reasonable-doubt standard in the Notice it sent to

Appellant, we vacate the District Court’s jurisdictional ruling

and remand the case for further proceedings.

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I. BACKGROUND

A. The Adam Walsh Act

As outlined above, under the Immigration and

Naturalization Act (“INA”), if a U.S. citizen wishes to obtain

permanent residence for an immediate alien relative, he or she

can file a Form I-130 petition with USCIS. 8 U.S.C.

§ 1154(a)(1)(A)(i); 6 U.S.C. § 271(b)(1) (transferring the

adjudication of immigrant visa petitions to the Bureau of

Citizenship and Immigration Services, later known as USCIS).

The petitioner bears the burden of proving the beneficiary’s

eligibility. 8 U.S.C. § 1361.

In 2006, Congress enacted the Adam Walsh Act to, inter

alia, “protect children from sexual exploitation” and “promote

Internet safety” for children. Pub. L. No. 109-248, 120 Stat.

587, 587 (2006). The AWA, as relevant here, amended the INA

to prevent any U.S. citizen from obtaining permanent resident

status for an alien relative if the citizen petitioner “has been

convicted of a specified offense against a minor.” 8 U.S.C.

§ 1154(a)(1)(A)(viii)(I). The Act defines “specified offense

against a minor” as “an offense against a minor that involves”

a specific list of nine offense categories, including, inter alia,

“[s]olicitation to engage in sexual conduct”; “[c]riminal sexual

conduct involving a minor, or the use of the Internet to facilitate

or attempt such conduct”; and, as a catchall provision, “[a]ny

conduct that by its nature is a sex offense against a minor.” Id.

§ 1154(a)(1)(A)(viii)(II) (cross-referencing 34 U.S.C.

§ 20911(7)).

If the U.S. citizen petitioner is found to have been convicted

of any of the enumerated categories of offenses, he is then

foreclosed from petitioning for immigration benefits “unless

the Secretary of Homeland Security, in the Secretary’s sole and

6

unreviewable discretion, determines that the citizen poses no

risk” to the alien beneficiary. Id. § 1154(a)(1)(A)(viii)(I). This

no-risk determination has since been transferred to USCIS. See

6 U.S.C. § 271(b)(1); 8 C.F.R. § 2.1 (2024).

In leaving for the agency to determine whether the

petitioner poses “no risk” to the alien beneficiary, the AWA

does not specify how that determination is to be made,

including the applicable evidentiary standard pursuant to which

the petitioner must demonstrate that he poses no such risk. In

2007, the agency instructed field officers in an internal

interoffice memorandum that, to “avoid denial” of an I-130

petition under the statute, the petitioner must “submit evidence

of rehabilitation . . . that clearly demonstrates, beyond any

reasonable doubt, that he or she poses no risk to the safety and

well-being” of the beneficiary, including any “alien derivate

beneficiary” – i.e., alien children of the spouse in an I-130

petition. Michael Aytes, Interoffice Memorandum at 5 (Feb. 8,

2007), Joint Appendix (“J.A.”) 43 (emphasis added).

However, a different standard of proof has been adopted by

USCIS in a precedential and arguably binding decision. Under

Department of Homeland Security regulations, when the

Attorney General so approves, the Secretary of Homeland

Security – and, by extension, USCIS – “may file with the

Attorney General decisions relating to the administration of the

immigration laws of the United States for publication as

precedent in future proceedings.” 8 C.F.R. § 1003.1(i) (2024).

In Matter of Chawathe, the agency held that “[e]xcept where a

different standard is specified by law, a petitioner or applicant

in administrative immigration proceedings must prove by a

preponderance of evidence that he or she is eligible for the

benefit sought.” 25 I. & N. Dec. 369, 375 (AAO 2010) (citing

to a string of administrative decisions applying the same

standard in a variety of immigration contexts). In 2010, the

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Department of Homeland Security made this decision

precedential with the goal of “guiding USCIS officers in their

administration of the immigration laws.” Chawathe, 25 I. & N.

Dec. at 369 n.1. Notably, Chawathe, which was originally

decided in 2006, pertained to an unrelated provision of the INA

regarding the definition of publicly held corporations. But in

designating Chawathe as precedent, USCIS stated that its

evidentiary standard should control “[i]n most administrative

immigration proceedings.” Id. at 369.

B. Facts and Procedural History

Appellant Ryan Castaneira is a U.S. citizen seeking

permanent residence for his spouse, a Mexican national. He

originally filed a Form I-130 petition in August 2019. In March

2022, USCIS sent Appellant a Notice of Intent to Deny

(“Notice”) his petition, offering him “the opportunity to submit

documentary evidence to overcome the grounds for the

intended denial” of his petition. USCIS, Notice of Intent to

Deny at 1 (March 8, 2022), J.A. 31.

In this Notice, USCIS explained that its records indicated

that Appellant was previously convicted of offenses covered by

the Adam Walsh Act: he had previously been convicted of

criminal attempt to commit child molestation, criminal attempt

to entice a child for indecent purposes, computer pornography

and child exploitation, and obscene Internet contact. See id. 31-

32; Castaneira v. State, 740 S.E.2d 400, 408 (Ga. App. Ct.

2013); Georgia Computer or Electronic Pornography and Child

Exploitation Prevention Act, O.C.G.A. § 16-12-100.2(d)(1),

(e)(1) (West 2024). In 2009, Appellant was convicted in

Georgia state court of criminal attempt to commit these

offenses when he engaged in online conversation on an adult-

only website with an individual whom he believed to be 15

years old, but who was in fact an adult undercover police

8

officer. Castaneira, 740 S.E.2d at 402-03; see also O.C.G.A.

§ 16-4-1 (“A person commits the offense of criminal attempt

when, with intent to commit a specific crime, he performs any

act which constitutes a substantial step toward the commission

of that crime.”). For this conduct, Appellant was sentenced to

10 years of confinement and probation, and was required to

register as a sex offender.

Given these past offenses, USCIS informed Appellant that

he could still qualify for an I-130 benefit if he demonstrated by

a preponderance of the evidence that he had not been convicted

of a “specified offense against a minor” under the AWA. 8

U.S.C. § 1154(a)(1)(A)(viii)(I). And, were the AWA to apply,

USCIS told Appellant that he must “prove beyond any

reasonable doubt” that he “pose[d] no risk of harm to the

beneficiary” of his petition – his spouse, who at the time of this

Notice was 35 years old. Notice of Intent to Deny at 4, J.A. 34

(quoting id.). To overcome this burden, Appellant could

provide evidence of having completed rehabilitation programs,

certified evaluations by qualified doctors, evidence of

community service, etc.

Before submitting any of the evidence listed above,

Appellant filed a pro se suit in federal district court, contesting

the beyond-any-reasonable-doubt evidentiary standard as

arbitrary, capricious and otherwise contrary to law, 5 U.S.C.

§ 706(2)(A), and seeking a judgment declaring that the AWA

did not apply to his prior convictions because no actual minor

was involved. A few days later, Appellant then submitted

additional evidence in response to the Notice of Intent to Deny.

USCIS then moved to dismiss the suit in federal court and, in

November 2022, formally denied Appellant’s I-130 petition. In

denying the petition, USCIS explained that the evidence

proffered, including letters by physicians, failed to clear the

beyond-any-reasonable-doubt bar because they indicated that

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Appellant still had “recidivist risk factors” that had to be

“monitor[ed]” so as to avoid “lead[ing] back into his offense

cycle.” Form I-130 Denial Decision at 4-5 (Nov. 10, 2022),

J.A. 70-71.

After the denial was issued, Appellant then amended his

complaint to challenge the final denial on the ground that the

beyond-any-reasonable-doubt standard was arbitrary and

capricious because it contradicts binding agency precedent set

out in Chawathe, and because USCIS did not articulate why the

Chawathe standard did not apply here. Additionally, Appellant

reiterated that his prior Georgia state convictions did not fall

within the AWA, 8 U.S.C. § 1154(a)(1)(A)(viii)(I).

The District Court rejected both arguments. Castaneira,

682 F. Supp. 3d at 21. The court concluded that Appellant’s

prior state convictions fell within the statutory definition of

“specified offense against a minor,” 34 U.S.C. § 20911(7), and

granted the Government’s motion to dismiss for failure to state

a claim as to count III of the complaint. Id. at 29-31. The court

also dismissed the remaining counts – I, II, IV and V – for lack

of jurisdiction, finding that the appropriate evidentiary standard

USCIS adopted for its “no risk” determination was not

judicially reviewable under 8 U.S.C. § 1154(a)(1)(A)(viii)(I)

and 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review

over “decision[s]” that are “specified . . . to be in the discretion”

of the Secretary of Homeland Security. Id. at 25-28. Because

the statute’s grant of discretion shields the “no risk”

determination from review, the court explained, the applicable

evidentiary standard underlying the ultimate determination is

also within USCIS’s discretion and therefore unreviewable.

Moreover, such broad grant of statutory discretion meant that

Appellant could not challenge the standard of proof even if that

standard had violated binding agency precedent.

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Appellant then filed this pro se appeal challenging the

District Court’s dismissal of his complaint for failure to state a

claim as to count III, and for lack of jurisdiction as to counts I,

II, IV and V. This court appointed an amicus curiae to present

arguments on behalf of Appellant. 1

II. ANALYSIS

A. Standard of Review

We review dismissals for failure to state a claim and for

lack of jurisdiction de novo. Zukerman v. U.S. Postal Serv., 961

F.3d 431, 441 (D.C. Cir. 2020).

B. Appellant’s Prior Convictions Fall Within the Scope

of the Adam Walsh Act

The AWA applies only to petitioners who were convicted

of “specified offense[s] against a minor.” 8 U.S.C.

§ 1154(a)(1)(A)(viii)(I). In defining such offenses, the Act

cross-references another statute, the Sex Offender Registration

and Notification Act (“SORNA”), 34 U.S.C. § 20911. See 8

U.S.C. § 1154(a)(1)(A)(viii)(II). SORNA, in turn, provides that

the term “specified offense against a minor” is defined as “an

offense against a minor that involves any of the following”:

(A) An offense (unless committed by a parent or

guardian) involving kidnapping.

1

The court expresses its gratitude to Cameron Beach, who presented

oral argument on behalf of Appellant, and to her colleagues at the

University of Virginia School of Law Appellate Litigation Clinic,

who appeared with her on the briefs, for their excellent service to the

court.

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(B) An offense (unless committed by a parent or

guardian) involving false imprisonment.

(C) Solicitation to engage in sexual conduct.

(D) Use in a sexual performance.

(E) Solicitation to practice prostitution.

(F) Video voyeurism as described in section

1801 of title 18.

(G) Possession, production, or distribution of

child pornography.

(H) Criminal sexual conduct involving a minor,

or the use of the Internet to facilitate or attempt such

conduct.

(I) Any conduct that by its nature is a sex

offense against a minor.

34 U.S.C. § 20911(7).

The Government relies on subsection (I), arguing that

Appellant’s conduct underlying his state convictions “by its

nature” constituted a sex offense against a minor. Appellant

contends that this subsection does not encompass his prior

convictions, because they were premised on criminal attempt,

rather than the actual committing of the offenses charged.

Because these state offenses do not require as an element the

involvement of an actual minor, Appellant argues, they cannot

trigger the AWA. We disagree.

We begin with the text of § 20911(7)(I), see Esquivel-

Quintana v. Sessions, 581 U.S. 385, 391 (2017), which

references “[a]ny conduct that by its nature is a sex offense

against a minor.” 34 U.S.C. § 20911(7). First, Congress’s

choice to employ the phrase “any conduct” indicates its intent

to sweep broadly. “The Supreme Court has ‘repeatedly

explained’ that ‘the word “any” has an expansive meaning.’”

Lissack v. Comm’r of Internal Revenue, 125 F.4th 245, 254

12

(D.C. Cir. 2025) (quoting Patel v. Garland, 596 U.S. 328, 338

(2022)). Other circuits to consider this provision have similarly

concluded that Congress “purposely defined its terms broadly

to ‘cast a wide net to ensnare as many offenses against children

as possible.’” United States v. Hill, 820 F.3d 1003, 1005-06

(8th Cir. 2016) (quoting United States v. Dodge, 597 F.3d

1347, 1355 (11th Cir. 2010)).

Second, as other circuits have also observed, § 20911(7)(I)

is a “catchall,” residual clause, and thus must be broad enough

to include all of the preceding subsections. See United States v.

Mi Kyung Byun, 539 F.3d 982, 988 (9th Cir. 2008); Dodge, 597

F.3d at 1356. Directly preceding subsection (I) lies subsection

(H), which expressly defines as a “specified offense against a

minor” “[c]riminal sexual conduct involving a minor, or the use

of the Internet to facilitate or attempt such conduct.” 34 U.S.C.

§ 20911(7)(H) (emphasis added). Although the Government

does not rely on that subsection, it necessarily informs the

meaning of subsection (I): Generally, when Congress “defines

a broad, final category” preceded by an enumerated list of

categories, that “catchall clause[]” is “to be read as bringing

within a statute categories similar in type to those specifically

enumerated.” Paroline v. United States, 572 U.S. 434, 447

(2014) (cleaned up).

An attempt to engage in conduct involving a minor, which

is included in subsection (H), does not require an actual minor

victim, as our courts have long held that a mistaken belief by

the defendant is not a defense to criminal attempt. See United

States v. Lieu, 963 F.3d 122, 126-27 (D.C. Cir. 2020). Because

subsection (I) naturally subsumes the attempted crimes

outlined in subsection (H), Appellant’s convictions for

criminal attempt under the Georgia statute fall within the scope

of the AWA. Moreover, this interpretation is consistent with

SORNA’s definition of “sex offense,” which expressly

13

includes attempts. 34 U.S.C. § 20911(5)(A)(v); see also id.

§ 20911(8) (defining “convicted” with respect to such offenses

to include juveniles convicted of “attempt or conspiracy”).

Appellant’s contention that the AWA’s definition of “sex

offense against a minor” requires an “actual minor” would thus

contradict the text’s broad definition of predicate offenses. It

would also run afoul of the statutory purpose, which under

§ 20911(7) sought to “[e]xpan[d]” the “definition of ‘specified

offense against a minor’ to include all offenses by child

predators.”

Finally, we need not opine on whether the District Court

erred in applying a “circumstance-specific” approach in

interpreting § 20911(7). See Castaneira, 682 F. Supp. 3d at

29-30. Appellant contends that the District Court should have

looked categorically to Appellant’s prior offenses. Under this

categorical approach urged by Appellant, a state conviction

would be a “sex offense against a minor” under the AWA “only

if the least of the acts criminalized by the state statute falls

within the generic federal definition of” sex offense against a

minor. Esquivel-Quintana, 581 U.S. at 389-90. The District

Court rejected this argument: as § 20911(7) expressly

references “conduct,” rather than specific elements of an

offense, the court looked to the specific circumstances of

Appellant’s prior convictions in determining whether his

conduct fell within the statute. Castaneira, 682 F. Supp. 3d at

30; see also Nijhawan v. Holder, 557 U.S. 29, 38-39 (2009).

But applying either approach here would yield the same

result, because the central inquiry would remain what

constitutes an “offense against a minor” under § 20911(7)(I). It

is undisputed that Appellant’s state convictions of criminal

attempt did not require a minor victim as an element, and that

in the specific conduct underlying his conviction, he did not

engage with an actual minor victim. Thus, if the AWA requires

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the actual involvement of a minor – either as an element of the

predicate offense, or in the specific circumstances underlying

the conviction – then Appellant’s prior convictions do not fall

within the statute. Because we conclude that the statute does

not, we need not determine which interpretative approach

applies in this case. Appellant’s argument fails under both. See

United States v. Caso, 723 F.3d 215, 221 (D.C. Cir. 2013);

United States v. Schofield, 802 F.3d 722, 729 (5th Cir. 2015)

(“[W]e need not decide which approach applies here because

Schofield’s offense is a sex offense under both the non-

categorical and categorical approaches.”).

Because Appellant was previously convicted of attempted

offenses which, by their nature, constituted sex offenses against

a minor, we thus affirm the District Court’s dismissal of his

claim that the AWA does not encompass his past state

convictions.

C. The District Court Erred in Declining to Review

Appellant’s Procedural Challenge to the Standard of

Proof

Having correctly determined that Appellant’s conduct fell

within the scope of the AWA, USCIS next turned to whether

he could overcome the Act’s bar to immigrant relative

petitions. It concluded that he did not, having failed to

demonstrate “beyond any reasonable doubt” that he posed no

risk to the petition beneficiary. 8 U.S.C.

§ 1154(a)(1)(A)(viii)(I). Appellant contends that USCIS

applied the wrong evidentiary standard, and that, under binding

agency precedent, the correct standard is one of the

preponderance of the evidence. See Chawathe, 25 I. & N. Dec.

at 369.

15

The District Court dismissed this claim for want of

jurisdiction, holding that questions involving the no-risk

determination fall within the “sole and unreviewable

discretion” of USCIS. Castaneira, 682 F. Supp. 3d at 26-27;

see also 8 U.S.C. § 1154(a)(1)(A)(viii)(I). Importantly, the

court declined to ascertain whether the agency had indeed

departed from Chawathe (or any other agency precedent) in

applying the stringent beyond-any-reasonable-doubt standard

of proof. In the view of the District Court, “even if USCIS

disregarded its own binding precedent and thereby acted

unlawfully, it does not follow that this Court has the power to

afford Castaneira any sort of remedy—at least not where

Congress has deprived the courts of such power by statute.”

Castaneira, 682 F. Supp. 3d at 27. The court thus found that

Appellant’s APA claims were not available where a statute

imposes a reviewability bar. Id. We agree with Appellant that

the District Court erred in its reasoning. If there is binding

agency precedent applicable here, challenges to the agency’s

departure from its own precedent are judicially reviewable.

At the outset, we note that there is no dispute here that

USCIS’s ultimate no-risk determinations are beyond the reach

of judicial review. In a separate statute, Congress has explicitly

precluded judicial review of USCIS actions that are committed

to agency discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii); Bouarfa

v. Mayorkas, 604 U.S. 6, 11 (2024). Indeed, Appellant does not

contest that no-risk determinations under the Adam Walsh Act

involve discretionary agency actions that are barred from

judicial review. That is not the issue here.

Rather, Appellant reasonably argues that if the Secretary

exercised her discretion to bind herself to a preponderance

standard in no-risk determinations under this statute, the fact

that she has the “sole and unreviewable” discretion to make that

determination does not preclude judicial review of whether she

16

properly disregarded applicable agency precedent and spurned

the preponderance standard when she denied his Form I-130

petition. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). In other words, the

issue before us is whether 8 U.S.C. § 1154(a)(1)(A)(viii)(I), in

granting USCIS “sole and unreviewable discretion” to

“determine[] that the citizen poses no risk,” also affords the

agency discretion to depart from its own binding regulations or

precedents in making this determination. We hold that it does

not. See Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir.

2008) (finding jurisdiction over challenge to Board of

Immigration Appeals’ denial of application for cancelation of

removal despite jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)).

We address this question guided by a “strong presumption”

in favor of judicial review of administrative action, which can

only be overcome by “clear and convincing evidence of

congressional intent to preclude judicial review.” Guerrero-

Lasprilla v. Barr, 589 U.S. 221, 229 (2020) (internal quotation

marks and citation omitted); see also Kucana v. Holder, 558

U.S. 233, 251-52 (2010). The Supreme Court has moreover

“consistently applied the presumption of reviewability to

immigration statutes,” such as 8 U.S.C. § 1252(a)(2)(B)(ii).

Guerrero-Lasprilla, 589 U.S. at 229 (internal quotation marks

and citation omitted).

The Government does not dispute that Chawathe

constitutes binding agency precedent pursuant to the agency’s

own regulations. See Chawathe, 25 I. & N. Dec. 369; 8 C.F.R.

§ 1001.3(i). Appellant contends that because Chawathe

supplies the applicable evidentiary standard, USCIS’s

divergence from that standard was arbitrary and capricious.

The Government offers no intelligible answer. Rather, it

merely asserts in one brief sentence that “Chawathe does not

apply in the AWA context,” Defendants-Appellees’ Br. 21, but

it does not offer any support for this statement. Instead, it

17

merely asserts that even if Chawathe applies, Appellant’s

challenge would not be reviewable. Id. at 21 & n.8. We

disagree. See Aburto-Rocha, 535 F.3d at 502-03 (holding that

actions by an agency may still be within the purview of judicial

review even where they underlie determinations that are

ultimately discretionary).

The Government’s position goes too far. While Congress

has granted USCIS unreviewable discretion to determine

whether a citizen petitioner poses no risk to the Form I-130

beneficiary, USCIS has not provided “clear and convincing

evidence of congressional intent to preclude judicial review”

over its decision to exert this discretion in a manner that

violates its own binding regulations and published precedents.

Guerrero-Lasprilla, 589 U.S. at 229. As the Supreme Court has

explained, Congress may shield from judicial review an

agency’s ultimate determination without precluding courts

from reviewing the “practice[s] or procedure[s] employed in

making” such individual determinations. McNary v. Haitian

Refugee Ctr., Inc., 498 U.S. 479, 492 (1991).

While USCIS’s final no-risk determinations are

unreviewable, “general collateral challenges” to the agency’s

practices and policies still fall within judicial purview. Id.; see

also Grace v. Barr, 965 F.3d 883, 893 (D.C. Cir. 2020) (finding

jurisdiction over “facial challenges to the written policies that

govern” individual determinations, as opposed to “direct

review of individual aliens’ . . . determinations”); Make The

Rd. N.Y. v. Wolf, 962 F.3d 612, 630 (D.C. Cir. 2020)

(interpreting 8 U.S.C. § 1225(b)(1)(A)(iii)(I), committing an

action to the Secretary of Homeland Security’s “sole and

unreviewable discretion,” as barring only “individualized

forms of discretionary relief,” rather than “generally applicable

rulemaking governing . . . procedures undertaken by the

Secretary”).

18

The Government attempts to distinguish McNary and

circuit precedent by arguing that because the Act here utilizes

the verb-form “determines,” rather than the noun-form

“determination” as in the statute in McNary, the grant of

discretion here is broader and bars challenges to the procedural

standards USCIS applies in reaching its final determination.

See Bakran v. Sec’y, U.S. Dep’t of Homeland Sec., 894 F.3d

557, 563 (3d Cir. 2018); Bourdon v. U.S. Dep’t of Homeland

Sec., 940 F.3d 537, 542-43 (11th Cir. 2019). We are not

persuaded by such grammatical gymnastics. See Janus Cap.

Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 142 (2011)

(“Make followed by a noun with the indefinite article is often

nearly equivalent to the verb intransitive corresponding to that

noun.” (citation omitted)); see also Bourdon, 940 F.3d at 556

(Jordan, J., dissenting). Under McNary, the presumption of

judicial reviewability thus applies with full force in cases

involving facial challenges to standards USCIS applies in

making its no-risk determination under the AWA, including

evidentiary standards that allegedly contradict binding agency

precedent. 498 U.S. at 492.

The Government observes that some circuits have

interpreted the AWA’s reviewability bar to preclude challenges

to the applicable evidentiary standard. See Bakran, 894 F.3d at

563; Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018);

Privett v. Sec’y, Dep’t of Homeland Sec., 865 F.3d 375, 380-81

(6th Cir. 2017); Bourdon, 940 F.3d 537. However, only one

circuit has squarely addressed the question before us here:

whether the statute shields from judicial review challenges that

the agency has violated its own binding precedent in applying

the beyond-any-reasonable-doubt standard. See Bremer v.

Johnson, 834 F.3d 925, 930-31 (8th Cir. 2016). Unlike in cases

addressing whether the agency is free to set the standard of

proof it chooses, see Gebhardt, 879 F.3d at 987, the underlying

19

question before us is whether the agency can arbitrarily depart

from the standard it chooses to set.

The Eighth Circuit found that Chawathe did not apply in

the AWA context, Bremer, 834 F.3d at 930-31, but the

Government does not meaningfully make this argument before

us here. Instead, the Government relies on Bremer to argue

generally that because the AWA affords USCIS broad

discretion, that statute itself supplies an alternate standard from

Chawathe. This circular argument assumes that because

Congress has authorized an agency to act with discretion, it can

exercise this discretion without heeding its own regulations,

procedures, and precedents. But the Government cites to no

authority – and neither does the court in Bremer – to support

this premise. Indeed, this is not how administrative law works.

Instead, “[i]t is a familiar rule of administrative law that an

agency must abide by its own regulations.” Fort Stewart Schs.

v. Fed. Lab. Rels. Auth., 495 U.S. 641, 654 (1990). This

fundamental principle remains true even for “gratuitous

procedural rules that limit otherwise discretionary actions.”

Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003).

Even where Congress has accorded an agency broad

discretion, if the agency itself chooses to bind itself to

published procedures, this choice means that it must then

“exercise its own discretion” in accordance with its own

“existing valid regulations” and binding precedents. United

States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268

(1954). Thus, if Chawathe applies here, the agency has cabined

its own discretion through its own precedent, and it must

exercise its discretion in the manner it itself sets out. See

Steenholdt, 314 F.3d at 639; see also Aburto-Rocha, 535 F.3d

at 503 (holding that 8 U.S.C. § 1252(a)(2)(B)(ii) did not bar

judicial review where “the choice by the [agency] to disregard

its own binding precedent—even when deciding an issue that

20

is within its discretion—is not itself a discretionary decision

Congress has excluded from review”).

As in Aburto-Rocha, where the agency’s regulations

“themselves indicate that adherence to precedent is a non-

discretionary act,” whether the agency has adhered to its own

precedent is not a question barred by a statute that precludes

judicial review over discretionary determinations. Id. (citing 8

C.F.R. § 1003.1(g)). Here, the agency is said to have imposed

a specific standard of proof and made this standard non-

discretionary through binding precedent. See 8 C.F.R.

§ 1003.1(i). This standard thus cannot be a discretionary action

that falls within the judicial reviewability bar: if Chawathe

applies, the standard of proof is not within the agency’s

discretion at all. See also Tello v. Att’y Gen. of U.S., 544 F.

App’x 55, 58 (3d Cir. 2013) (finding jurisdiction where

petitioner challenged that “agency applied the incorrect legal

standard, in violation of its own authority” despite 8 U.S.C.

§ 1252(a)(2)(B)).

It is possible that Chawathe does not apply in the AWA

context and that, in making its preponderance-of-the-evidence

standard precedential, the Department did not mean to disturb

the beyond-any-reasonable doubt standard that may have

already been in place for no-risk determinations under the

AWA. But because the District Court did not address this

possibility, and because the Government does not make this

argument before us, we cannot conclude that the agency has

not violated its own binding precedent. Nothing in the Act

required the agency to adopt any particular standard. But if

there was a standard in place, then the agency was required to

follow it.

We therefore remand for the District Court to consider, in

the first instance, whether USCIS has indeed adopted a

21

standard of proof that would bind it in this case, and whether it

has violated its own standard. If the District Court finds that

Chawathe is indeed binding here, then it must exercise its

judicial review over Appellant’s challenge to the standard of

proof.

III. CONCLUSION

For the foregoing reasons, we affirm the District Court’s

decision in part, vacate its jurisdictional holding as to counts I,

II, IV and V, and remand for further proceedings consistent

with this opinion.

So ordered.