Ahmed Bakran v. Secretary United States Depart

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 16-3440

______________

AHMED BAKRAN,

Appellant

v.

SECRETARY, UNITED STATES DEPARTMENT OF

HOMELAND SECURITY;

DIRECTOR, UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES;

ROBERT COWAN, Field Office Director, Lee’s Summit,

MO Field Office,

United States Citizenship and Immigration Services;

ATTORNEY GENERAL UNITED STATES OF AMERICA

______________

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 2:15-cv-00127)

District Judge: Hon. John R. Padova

______________

Argued: March 16, 2017

______________

Before: GREENAWAY, JR., SHWARTZ, Circuit Judges,

and SIMANDLE, Senior District Judge*

(Opinion Filed: July 5, 2018)

Nicklaus J. Misiti [ARGUED]

Law Offices of Nicklaus Misiti, PLLC

40 Wall Street, 28th Floor

New York, NY 10005

Counsel for Appellant

Benjamin C. Mizer

William C. Peachey

Sarah S. Wilson [ARGUED]

United States Department of Justice

Office of Immigration Litigation

Room 6223

450 5th Street, N.W.

Washington, D.C. 20530

Counsel for Appellees

*

Honorable Jerome B. Simandle, United States District

Judge of the United States District Court for the District of

New Jersey, sitting by designation. Judge Simandle assumed

senior status after the case was argued before the panel.

2

______________

OPINION OF THE COURT

______________

SHWARTZ, Circuit Judge.

Ahmed Bakran appeals from the District Court’s order

granting summary judgment in favor of the Secretary of the

United States Department of Homeland Security, the Director

of the United States Citizenship and Immigration Services (the

“USCIS”), and the Attorney General (“Defendants”) on

Bakran’s statutory and constitutional challenges to the Adam

Walsh Child Protection and Safety Act of 2006, Pub. L. No.

109-248, § 402(a), 120 Stat. 587, 622-23 (2006) (the “AWA”),

and related agency memoranda.

The AWA restricts the ability of a United States citizen

convicted of a sex offense to sponsor an immediate relative’s

immigration application. Bakran claims that certain protocols

used to enforce the AWA violate the Administrative

Procedures Act, 5 U.S.C. § 701 et seq. (the “APA”). The

protocols he challenges, however, simply guide the Secretary’s

determination, and as we explain herein, we lack jurisdiction

to review them.

Bakran also asserts that the AWA violates his right to

marriage and is impermissibly retroactive. The AWA does not

infringe his marriage right but rather deprives him of an

immigration benefit to which he has no constitutional right.

Moreover, because the Act is aimed at providing prospective

protection, it is not impermissibly retroactive. Therefore, we

3

will vacate the District Court’s order granting summary

judgment to Defendants on Bakran’s APA claims, and remand

with directions to dismiss the APA claims for lack of

jurisdiction, and affirm the District Court’s order denying relief

on his constitutional and retroactivity challenges to the AWA.

I

A

Before 2006, the Immigration and Nationality Act, 8

U.S.C. §§ 1101 et seq. (the “INA”), provided that “[a]ny

citizen of the United States claiming that an alien is entitled

to . . . immediate relative status . . . may file a petition with the

Attorney General for such classification.” Id.

§ 1154(a)(1)(A)(i). “Immediate relatives” generally include

the spouses, children, and parents of a United States citizen.

Id. § 1151(b)(2)(A)(i). Such relatives may enter the United

States without regard to numerical limitations on immigration

to the United States. Id. § 1151(b). In 2006, the AWA

amended the INA so that a citizen “who has been convicted of

a specified offense against a minor”1 may not file any petition

on behalf of such relatives “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.” Id.

1

The AWA relies on 42 U.S.C. § 16911(7)(H)’s

definition of a “specified offense against a minor,” 8 U.S.C.

§ 1154(a)(1)(A)(viii)(II), and 42 U.S.C. § 16911(7)(H) defines

“a specified offense against a minor” to include “[c]riminal

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

facilitate or attempt such conduct,” id.

4

§ 1154(a)(1)(A)(viii)(I). This provision is intended to

effectuate the AWA’s stated purposes: “[t]o protect children

from sexual exploitation and violent crime, [and] to prevent

child abuse and child pornography.” AWA, 120 Stat. at 587.

The USCIS issued two memoranda relevant to our

consideration of the AWA. The first, written by Michael

Aytes, Associate Director of Domestic Operations of the

USCIS (the “Aytes Memo”), sets forth the burden of proof a

petitioner must meet to show that he or she poses no risk to his

or her alien relative. Specifically, the memo interpreted the

“no risk” requirement to mean that to avoid denial of a petition,

“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 beneficiar[ies].” U.S.

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), available at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memor

anda/Static_Files_Memoranda/adamwalshact020807.pdf.

The second, written by Donald Neufeld, Acting Associate

Director of Domestic Operations of the USCIS (the “Neufeld

Memo”), states that “given the nature and severity of many of

the underlying offenses and the intent of the [AWA], approval

recommendations should be rare.” U.S. Citizenship and

Immigration Services, Transmittal of SOP for Adjudication of

Family-Based Petitions Under the Adam Walsh Child

Protection and Safety Act of 2006 (Sept. 24, 2008) (emphasis

omitted).

5

B

Bakran is a United States citizen. In 2004, he was

convicted of aggravated indecent assault and unlawful contact

with a minor. He was sentenced to 11.5 to 23 months’

imprisonment, 10 years of probation, and lifetime sexual

offender registration. He was required to undergo a

psychosexual evaluation and prohibited from any unsupervised

contact with minors.

In 2012, Bakran married Zara Qazi, an adult Indian

national. He then sought lawful permanent resident status for

her by filing a Form I-130, Petition for Alien Relative, 8 C.F.R.

§ 204.1(a)(1), and a Form I-485, Application for Permanent

Residence, 8 C.F.R. 245.2(a)(3)(iii), with the USCIS. In

January 2014, he received a Request for Evidence/Notice of

Intent to Deny his petition (the “Notice”), which noted that his

2004 conviction prevented him from designating his wife as

his immediate relative for the purposes of exempting her

Application for Permanent Residence from the worldwide

levels of numerical limitations pursuant to 8 U.S.C.

§ 1151(b)(2)(A)(i) unless he could show he posed no risk to

her. Bakran had already submitted materials regarding his

conviction with his initial application, and he filed additional

documents in response to the Notice. The USCIS determined

that Bakran had committed a “specified offense against a

minor” under the AWA, and denied his application.

Bakran filed suit in the United States District Court for

the Eastern District of Pennsylvania against Defendants based

on the denial of his petition. He alleged the denial violated the

6

Constitution and APA. Defendants moved to dismiss the

complaint for lack of subject matter jurisdiction, arguing that

the District Court lacked jurisdiction to review the Secretary’s

determination of Bakran’s petition. The District Court denied

the motion, reasoning that Bakran “does not question the

Secretary’s . . . ‘unreviewable discretion’” concerning the

decision about him. Bakran v. Johnson, CIV. A. No. 15-127,

2015 WL 3631746, at *4 (E.D. Pa. June 11, 2015). Instead,

according to the District Court, Bakran challenges the

Secretary’s “non-discretionary threshold determination” and

argues that his inability to “file an I-130 petition on his wife’s

behalf . . . violates his constitutional rights.” Id. The District

Court held that Bakran’s APA challenge did not seek review

“of the discretionary ‘no risk’ assessment or even the substance

of the rules adopted regarding that assessment.” Id. The Court

therefore concluded that it had jurisdiction to review all of

Bakran’s claims.

Defendants then moved for summary judgment, which

the District Court granted. On the APA claims, the Court ruled

that (1) the agency’s adoption of a beyond-any-reasonable-

doubt standard was not ultra vires2 under Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-

43 (1984), Bakran v. Johnson, 192 F. Supp. 3d 585, 601 (E.D.

Pa. 2016); (2) the assessment of risk after filing and

2

Bakran’s ultra vires claim, pursuant to 5 U.S.C.

§ 706(2)(C), alleges that the USCIS took action “in excess of

statutory jurisdiction, authority, or limitations, or short of

statutory right . . . .” 5 U.S.C. § 706(2)(C); see also Ultra

Vires, Black’s Law Dictionary (10th ed. 2014) (stating that

“ultra vires” means “[u]nauthorized; beyond the scope of

power allowed or granted . . . by law”).

7

presumption of denial, per the Neufeld Memo, were not

arbitrary and capricious, id. at 598-99; and (3) the Aytes and

Neufeld Memos qualify as “interpretive rules” that do not

require notice-and-comment rule-making,” id. at 599-600. On

the constitutional claims, the Court concluded that the AWA

was neither punitive nor impermissibly retroactive, id. at 594-

95, and Bakran’s due process claim failed because the AWA

does not infringe his fundamental constitutional right to marry,

id. at 595-97. Bakran appeals.

II3

A

3

The District Court had jurisdiction pursuant to 28

U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

Our review of the District Court’s grant of summary

judgment is plenary. Mylan Inc. v. SmithKline Beecham

Corp., 723 F.3d 413, 418 (3d Cir. 2013). We apply the same

standard as the District Court, viewing facts and making all

reasonable inferences in the non-movant’s favor. Hugh v.

Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir.

2005). Summary judgment is appropriate where “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Here, there are no disputed facts. The moving party is entitled

to judgment as a matter of law when the non-moving party fails

to make “a sufficient showing on an essential element of her

case with respect to which she has the burden of proof.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

8

We first address whether we have subject matter

jurisdiction over Bakran’s claim that the Secretary violated the

APA by imposing a beyond-any-reasonable-doubt burden of

proof and a presumption of denial of AWA applications, as

expressed in the Aytes and Neufeld Memos.

District courts have jurisdiction to review agency action

under 28 U.S.C. § 1331, “subject only to preclusion-of-review

statutes created or retained by Congress.” Chehazeh v. Att’y

Gen. of U.S., 666 F.3d 118, 126 (3d Cir. 2012) (quoting

Califano v. Sanders, 430 U.S. 99, 105 (1977)). The APA bars

judicial review where “statutes preclude judicial review” or

“agency action is committed to agency discretion by law.”

5 U.S.C. § 701(a). The INA provides that “no court shall have

jurisdiction to review . . . any . . . decision or action of . . . the

Secretary of Homeland Security the authority 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 INA’s “jurisdiction–stripping

language . . . applies not to all decisions the [Secretary] is

entitled to make, but to a narrower category of decisions where

Congress has taken the additional step to specify that the sole

authority for the action is in the [Secretary]’s discretion.”

Alaka v. Att’y Gen. of U.S., 456 F.3d 88, 95 (3d Cir. 2006).

Of relevance here, the AWA states that a citizen, such as

Bakran, convicted of a specified offense may not 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 a petition . . . is filed.” 8 U.S.C.

§ 1154(a)(1)(A)(viii)(I). The AWA therefore precludes

judicial review of the Secretary’s no-risk determination

concerning a specific citizen.

9

The issue here is whether the two procedures set forth

in the Aytes and Neufeld Memos are themselves reviewable.

Bakran argues that the Secretary, through the USCIS, acted

ultra vires in imposing upon citizen petitioners a requirement

that they prove beyond any reasonable doubt that they pose no

risk to the alien beneficiary and by informing field officers that

granting permission to file petitions on the beneficiaries’

behalf should be rare.4 Our authority to review these claims

depends on whether the standard of proof and rareness

directive are part of the Secretary’s statutorily-granted

unreviewable discretion. To make this decision, we examine

the statute’s language to identify the boundaries of the

discretion granted to the agency.

The INA and Alaka instruct that courts lack jurisdiction

to review decisions that are within the Secretary’s sole

discretion. Id. § 1252(a)(2)(B)(ii); Alaka, 456 F.3d at 95. The

AWA states that the Secretary has sole and unreviewable

discretion when it “determines” that a citizen petitioner poses

no risk to the alien for whom the petition is filed. The choice

of the word “determines” frames the matters within this

discretion. The word “determine” means “to fix conclusively

or authoritatively” as well as “to come to a decision concerning

as the result of investigation or reasoning.” Webster’s Third

New International Dictionary 616 (1993). Congress’s use of

the word “determines” therefore grants the Secretary

unreviewable discretion in both concluding that a petitioner

poses no risk and the process by which the Secretary reaches

this decision. Thus, the exercise of discretion includes

4

Bakran raised arbitrary-and-capricious claims in his

complaint but abandons those claims on appeal.

10

deciding the type of proof required, the evidentiary standard a

petitioner must satisfy, and whether the petitioner’s evidence

meets that standard. Because these considerations are

inextricably intertwined with how and whether to exercise that

discretion, and § 1252(a)(2)(B)(ii) provides that “no court shall

have jurisdiction to review . . . any . . . decision or action

of . . . the Secretary of Homeland Security the authority for

which is specified under this subchapter to be in the discretion

of . . . the Secretary of Homeland Security,” we are precluded

from reviewing both the decision and process for reaching it.

See Gebhardt v. Nielsen, 879 F.3d 980, 984-85, 987 (9th Cir.

2018) (holding that courts lack jurisdiction to review

challenges to the beyond-any-reasonable-doubt standard and

the requirement of a no-risk determination, among other

claims; “each one challenges how the Secretary exercises—or

has exercised—his or her ‘sole and unreviewable discretion’ to

adjudicate I-130 petitions” (emphasis in original)); Roland v.

U.S. Citizenship & Immigration Servs., 850 F.3d 625, 630 (4th

Cir. 2017) (concluding that courts lack jurisdiction to review

petitioner’s APA challenge based in part on that Circuit’s

precedent that “relevant determinations ‘cannot be divorced

from the denial [of an application to adjust status] itself’”

(quoting Lee v. U.S. Citizenship & Immigration Servs., 592

F.3d 612, 620 (4th Cir. 2010))); Bremer v. Johnson, 834 F.3d

925, 930-31 (8th Cir. 2016) (holding that courts lack

jurisdiction over an APA claim that the USCIS exceeded its

statutory authority by requiring applicants to prove beyond any

reasonable doubt that they pose no risk to beneficiaries because

the claim “challenge[d] how the Secretary, acting through the

USCIS, has exercised his discretion to make a no-risk

determination under the [AWA]”); Struniak v. Lynch, 159 F.

Supp. 3d 643, 654 (E.D. Va. 2016) (holding that

Ҥ 1252(a)(2)(B)(ii) strips courts of jurisdiction to review both

11

the ultimate decision that is discretionary and the steps that are

a necessary and ancillary part of reaching the ultimate

decision”); cf. Jilin Pharm. USA v. Chertoff, 447 F.3d 196, 204

(3d Cir. 2006) (observing that an agency’s determination of

whether good cause to revoke a visa exists in a particular case

also includes “what constitutes such cause in the first place,”

and that the good cause determination is within the agency’s

unreviewable discretion (citation and internal quotation mark

omitted)).

For these reasons, federal courts lack jurisdiction to

review the burden of proof and rareness directives that guide

the Secretary’s determination concerning whether a petitioning

sex offender poses no risk to the beneficiary of his or her

petition.5 Thus, the District Court should have dismissed

5

Our ruling here does not render each and every one of

the Secretary’s actions immune from review. We are

cognizant that there is a “strong presumption in favor of

judicial review of administrative action.” INS v. St. Cyr, 533

U.S. 289, 298 (2001); see also, e.g., Hanna v. Phila. Asbestos

Co., 743 F.2d 996, 999 (3d Cir. 1984) (“[A] statute should not

be interpreted as precluding judicial review absent clear

evidence of Congressional intent.” (citing Johnson v. Robison,

415 U.S. 361, 373-74 (1974))). As a result, we are not holding

that a court lacks jurisdiction to review an action beyond the

authority Congress granted to the agency, which the

Government concedes would be reviewable, Oral Arg. at

27:14-27:25,

http://www2.ca3.uscourts.gov/oralargument/audio/16-

3440Bakranv.SecretaryUnitedStatesDepartmentofHomelandS

ecurity.mp3, or an action that would violate the Constitution,

see, e.g., Bartlett v. Bowen, 816 F.2d 695, 698-99, 703-07

12

Bakran’s APA claims, and we will therefore vacate the order

granting summary judgment in favor of Defendants on

Bakran’s APA claims and remand with a directive that the

District Court dismiss these claims.

B

1

Bakran also makes two challenges to the AWA: the

AWA violates his substantive due process right to marry,6 and

the AWA is impermissibly retroactive. Unlike Bakran’s APA

challenges to the Secretary’s actions, we have jurisdiction to

review these challenges to the statute. See Johnson v. Robison,

415 U.S. 361, 367 (1974); Kreschollek v. S. Stevedoring Co.,

78 F.3d 868, 873-74 (3d Cir. 1996).

2

Bakran asserts that by barring him from petitioning to

adjust his foreign spouse’s immigration status, the AWA

infringes his right to marry because it deprives him of benefits

(D.C. Cir. 1987) (construing § 1252(a)(2)(B)(ii) to permit

judicial review of constitutional claims because concluding

that Article III courts lack jurisdiction to do so would raise

constitutional concerns since Congress would be allowed to

legislate and judge the constitutionality of its actions). Rather,

we hold here only that we lack jurisdiction to review Bakran’s

claims pertaining to the Aytes and Neufeld Memos.

6

Bakran’s complaint also alleged a violation of his

procedural due process rights, but he has not pursued that claim

on appeal.

13

flowing from his marriage, including the ability to live with his

spouse in the United States. The due process guarantees of the

Fifth Amendment “include a substantive component, which

forbids the government to infringe certain ‘fundamental’

liberty interests at all, no matter what process is provided,

unless the infringement is narrowly tailored to serve a

compelling state interest.” Reno v. Flores, 507 U.S. 292, 301-

02 (1993) (emphasis omitted). The right to marry is one such

fundamental right. Obergefell v. Hodges, 135 S. Ct. 2584,

2604 (2015); Loving v. Virginia, 388 U.S. 1, 12 (1967).

The AWA’s restriction on a convicted sex offender’s

ability to sponsor his spouse’s immigration petition does not

infringe the fundamental right to marry. Citizens like Bakran

are not barred from marrying, and in fact Bakran has married.

Recognizing this, Bakran asserts that the AWA interferes with

his ability to live in the United States with his foreign spouse.

Thus, he asserts that he has a constitutional right to sponsor his

foreign spouse’s immigration application. His assertion fails

for several reasons.

First, cognizant of Congress’s plenary authority to set

the conditions for an alien’s entry into the United States, see,

e.g., United States ex rel. Knauff v. Shaughnessy, 338 U.S.

537, 543 (1950), no court has recognized that a citizen spouse

has a constitutional right to have his or her alien spouse reside

in the United States, see Gebhardt, 879 F.3d at 988 (“Boiled

down, Plaintiff’s theory is that he has a fundamental right to

reside in the United States with his non-citizen [spouse]. But

that theory runs headlong into Congress’ plenary power over

immigration.”); Bangura v. Hansen, 434 F.3d 487, 496 (6th

Cir. 2006) (holding that “[t]he Constitution does not recognize

the right of a citizen spouse to have his or her alien spouse

14

remain in the country” (alteration in original ) (quoting

Almario v. Att’y Gen., 872 F.2d 147, 151 (6th Cir. 1989)));

Burrafato v. U.S. Dep’t of State, 523 F.2d 554, 555 (2d Cir.

1975) (holding that a citizen spouse has no constitutional right

to seek to bar the deportation of an alien spouse); Silverman v.

Rogers, 437 F.2d 102, 107 (1st Cir. 1970) (same); Swartz v.

Rogers, 254 F.2d 338, 339 (D.C. Cir. 1958) (same); cf.

Moralez-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076,

1091 (9th Cir. 2010) (concluding that the denial of adjustment

of status did not violate any of the petitioner’s or his family’s

substantive rights, where the petitioner argued that the denial

violated their right to live together as a family in the United

States), abrogated in part on other grounds by Garfias-

Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc).7

7

Bakran argues that the dissent in Kerry v. Din, 135 S.

Ct. 2128 (2015), along with Justice Kennedy’s opinion for the

majority in Obergefell, support his view that his due process

rights have been infringed. Bakran is incorrect. First, although

Obergefell reaffirmed the fundamental right to marry, see 135

S. Ct. at 2598-2605, 2608, that case does not stand for the

proposition that Bakran has a fundamental right to petition for

the lawful permanent resident status in the United States for his

alien wife. Second, in Din, the Supreme Court focused on

procedural rather than substantive due process rights, and

Bakran has not pursued his procedural due process claim on

appeal. See 135 S. Ct. at 2138 (plurality of Scalia, J., joined

by Roberts and Thomas, JJ.) (holding that the denial of the visa

application of the petitioner’s husband did not deprive her of

any life, liberty, or property, so she was not entitled to

constitutional due process protections); id. at 2139 (Kennedy,

J., concurring, joined by Alito, J.) (noting that even assuming

Din had a protected liberty interest, the notice she received

15

Second, Bakran’s sex offense conviction impacts his

access to an immigration benefit, which is not limited to

married persons. Put differently, unlike the benefits identified

in Obergefell that are granted only to married couples, 135 S.

Ct. at 2599-2601, the availability of this immigration benefit is

not exclusively contingent on marriage because parents and

children may seek the benefit. Thus, this immigration benefit

does not fall within the types of marriage benefits that the

Supreme Court identified that serve the goals marriage

advances.

Third, Bakran is denied access to this immigration

benefit because of his prior sex conviction. Limiting the rights

of convicted felons has historical roots. See, e.g., 10 U.S.C.

§ 504(a) (ineligibility to serve in the armed forces, unless an

exception is made); 18 U.S.C. § 922(g)(1) (restriction on

possession of a firearm); 21 U.S.C. § 862 (providing that

individuals convicted of drug offenses may be denied federal

benefits including grants, contracts, loans, professional

licenses, and commercial licenses); 28 U.S.C. § 1865(b)(5)

(restriction on right to serve on federal grand and petit juries

unless the individual’s civil rights have been restored);

McKune v. Lile, 536 U.S. 24, 38 (2002) (plurality opinion)

(“[L]awful conviction and incarceration necessarily place

limitations on the exercise of a defendant’s privilege against

self-incrimination.”); Jones v. Helms, 452 U.S. 412, 418-23

(1981) (upholding restrictions on a felon’s constitutionally

satisfied due process requirements); id. at 2142 (Breyer, J.,

dissenting, joined by Ginsburg, Sotomayor, and Kagan, JJ.)

(concluding that the petitioner had a liberty interest in living

with her husband in the United States “to which the Due

Process Clause grants procedural protection”).

16

protected right to travel); Richardson v. Ramirez, 418 U.S. 24,

56 (1974) (upholding a state law that disenfranchised

convicted felons); see also, e.g., A.A. ex rel. M.M. v. New

Jersey, 341 F.3d 206, 208, 213 (3d Cir. 2003) (noting previous,

unsuccessful constitutional challenges to New Jersey’s

Megan’s Law and holding that any privacy interest sex

offenders may have in their home addresses was substantially

outweighed by the state’s interest in protecting the public).

Thus, once one sustains a felony conviction, consequences

follow, including the loss of certain rights and government

benefits. Bakran’s loss of his ability to sponsor his spouse may

impede his ability to assist her to adjust her status, but this

impediment is no more burdensome than other limitations

placed on convicted felons’ constitutional rights.

In short, while the AWA restricts Bakran’s access to

certain immigration benefits because of his prior conviction, it

does not deprive Bakran of his fundamental right to marry or a

benefit uniquely available to married persons. As a result, the

District Court correctly entered judgment in favor of

Defendants on this claim.

3

Bakran’s second argument attacking the AWA also

lacks merit. In his complaint, Bakran asserted that the AWA

violates the Ex Post Facto Clause, U.S. Const. art. I § 9, cl. 3,

which applies only to penal legislation that applies

retroactively, Landgraf v. USI Film Prods., 511 U.S. 244, 266

n.19 (1994); Myrie v. Comm’r, N.J. Dep’t of Corrs., 267 F.3d

251, 255 (3d Cir. 2001); see also Weaver v. Graham, 450 U.S.

24, 29 (1981). Bakran’s abandonment of his Ex Post Facto

claim on appeal reflects his acknowledgment that the AWA is

17

not penal.8 Relying on the general principle of anti-

retroactivity, and statutory construction, he claims that the

AWA is impermissibly retroactive because it attaches new

legal consequences to his prior conviction.

When examining retroactivity, we ask “whether

Congress has expressly provided that the statute should be

retroactive.” Atkinson v. Att’y Gen. of U.S., 479 F.3d 222,

226 (3d Cir. 2007) (citing Landgraf, 511 U.S. at 280). “If the

answer is yes, our inquiry is over.” Id. If the statute does not

have any express statement of retroactivity, then we must

determine whether “normal rules of statutory construction

unequivocally remove the possibility of retroactivity.” Id.

(emphasis omitted). If there is no express command or intent

to apply the statute only prospectively, then we must determine

whether applying the statute to events predating its enactment

would have a retroactive effect. Landgraf, 511 U.S. at 280;

Atkinson, 479 F.3d at 226. An act has retroactive effect if it

“takes away or impairs vested rights acquired under existing

laws, or creates a new obligation, imposes a new duty, or

attaches a new disability, in respect to transactions or

considerations already past.” Atkinson, 479 F.3d at 227

(quoting INS v. St. Cyr, 533 U.S. 289, 321 (2001)). If the

8

The AWA’s stated purpose is to protect children and

the public at large from sex offenders, 42 U.S.C. §§ 16901,

16935(3), and the Supreme Court has said that “restrictive

measures on sex offenders adjudged to be dangerous is ‘a

legitimate nonpunitive governmental objective and has been

historically so regarded,’” Smith v. Doe, 538 U.S. 84, 93

(2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 363

(1997)); accord Bremer, 834 F.3d at 932. Thus, the AWA is

not penal.

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statute has a retroactive effect, “we employ the strong

presumption against applying such a statute retroactively.” Id.

at 226 (citation and internal quotation marks omitted).

The AWA neither expressly provides that it should

apply retroactively nor unequivocally removes the possibility

of it being applied retroactively. It does, however, suggest that

Congress intended for past events to impact a citizen’s ability

to invoke benefits under the INA. For instance,

§ 1154(a)(1)(A)(viii)(I) states that the provision allowing

citizens to file family-based petitions does not apply to a

citizen “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 a

petition . . . is filed.” 8 U.S.C. § 1154(a)(1)(A)(viii)(I). The

use of “has been” suggests that the AWA applies to persons

who were convicted before its enactment. Thus, Congress

appears to have intended for the Secretary to consider events

that predate the statute.

The statute’s focus, however, is on “dangers that arise

postenactment.” Vartelas v. Holder, 566 U.S. 257, 271 n.7

(2012). “[S]pecifically,” the AWA addresses “the dangers that

convicted sex offenders may pose to new immigrants.”

Bremer, 834 F.3d at 932; see also, e.g., Gebhardt, 879 F.3d at

986 (concluding that Congress enacted the AWA “[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” (quoting

AWA, 120 Stat. at 587) (emphasis omitted); “[t]o that end, the

entire scheme focuses on prevention—not punishment”);

Suhail v. U.S. Att’y Gen., No. 15-cv-12595, 2015 WL

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7016340, at *9 (E.D. Mich. Nov. 12, 2015) (concluding that

application of the AWA was “a civil matter to prevent future

additional sex offenses against children”); Matter of Jackson,

26 I. & N. Dec. 314, 318 (B.I.A. 2014) (“Because the Adam

Walsh Act addresses the potential for future harm posed by

such sexual predators to the beneficiaries of family-based visa

petitions, we find that the application of its provisions to

convictions that occurred before its enactment does not have

an impermissible retroactive effect.”). The AWA therefore

resembles, for example, “laws prohibiting persons convicted of

a sex crime against a victim under 16 years of age from

working in jobs involving frequent contact with minors” in that

the wrongful activity targeted by the statute is the potential

future conduct rather than the past offense. Vartelas, 566 U.S.

at 271 n.7. The no-risk provision bolsters the conclusion that

the statute’s purpose is preventing post-enactment danger as

opposed to attaching a new disability. For these reasons, the

AWA “do[es] not operate retroactively.” Id. Therefore, the

District Court correctly rejected Bakran’s retroactivity

argument.

III

For the foregoing reasons, we will affirm in part, with

respect to Bakran’s constitutional claims, and we will vacate in

part, with respect to his APA claims, and remand with

directions to dismiss the APA claims.

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