Federal court assumes jurisdiction over visa non-issuance

By Nicholas Malfitano | Jun 19, 2015


PHILADELPHIA – A motion to dismiss filed on behalf of U.S. Immigration Services and the Department of Justice regarding the non-issuance of an immigrant visa for lack of subject matter jurisdiction was denied in federal court on June 10.

Judge John R. Padova, of the U.S. District Court for the Eastern District of Pennsylvania, ruled the Court is within its right to assume jurisdiction over the litigation regarding the denial of an immigrant visa for the wife of Phoenixville resident Ahmed Bakran, a convicted sex offender.

In 2004, Bakran was convicted of one count of aggravated indecent assault and one count of unlawful contact with a minor. Two years later, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006, which amended the Immigration and Nationality Act (INA), to bar citizens convicted of a “specified offense against a minor” from filing any family-based visa petition – unless the citizen can prove to the satisfaction of the Secretary of Homeland Security that they pose no risk to the intended immigrant.

In 2012, Bakran married a foreign woman, Zara Qazi. Bakran summarily filed an I-130 immigrant visa petition in July 2012, seeking to have his wife classified as an immediate relative, so she could come to the United States.

Approximately a year and a half later, Bakran received notice of intent to deny his I-130 petition from the United States Citizenship & Immigration Services (CIS) department in January 2014 – unless he could show that his offenses were not committed against a minor and that he was not a danger to Qazi.

Despite submitting documentation to that effect, Bakran’s I-130 petition was officially denied by the government through a Notice of Decision in December. CIS cited the parameters of the Walsh Act as grounds for denying the petition, since Bakran’s offenses were committed against a minor.

Bakran then filed the instant complaint in January, charging the denial of his I-130 petition violated both the U.S. Constitution and Administrative Procedures Act (APA). His suit named Department of Homeland Security Secretary Jeh Johnson, U.S. CIS Director Leon Rodriguez, U.S. CIS Lee’s Summit, Mo. Field Office Director Robert Cowan and U.S. Attorney General Eric Holder as defendants.

Padova outlined the specific Constitutional causes of Bakran’s complaint: 1) “That the statutory prohibition on the filing of I-130 petitions by individuals with such convictions violates the ex post facto clause in Article I of the Constitution under circumstances (such as his) in which the individual was convicted of the qualifying crime prior to enactment of the Walsh Act; 2) That application of the same statutory prohibition violates his substantive and procedural due process rights under the Fifth Amendment, because it burdens his fundamental constitutional right to marriage, cannot survive strict scrutiny, and is not accompanied by adequate procedural protections; and 3) That the statutory prohibition, as interpreted by CIS, violates his right to be free from constitutionally excessive punishment because it, in effect, banishes his spouse from the United States for life.”

According to the other causes of Bakran’s complaint tied to violation of the APA, they included the CIS “creating a presumption of denial” for I-130 petitions against any individuals convicted of an offense against a minor; not utilizing proper notice and comment procedures required by the APA; and by issuing rules outside the scope of its legislative authority.

Padova explained the defendants argued in their motion to dismiss that federal court lacks subject matter jurisdiction over Bakran’s claims because the immigration decision and actions being challenged lie within CIS’s discretion. However, Bakran contends the Court does have jurisdiction per the APA, and that he is not challenging any discretionary aspect of CIS’s determinations.

“Defendants argue that any challenges to their denial of Bakran’s I-130 Petition or to agency rules concerning I-130 Petitions are barred because the Walsh Act delegates unfettered discretion to CIS to determine risk on a case-by-case basis,” Padova said.

“In this regard, they point to [federal law], which grants CIS ‘sole and unreviewable discretion’ to determine whether a family-based petitioner with a specified criminal conviction poses a risk to the intended foreign national beneficiary. Defendants contend that Bakran is challenging CIS’s discretionary ‘no risk’ assessment and the rules concerning this discretionary assessment, and they therefore maintain that both the APA and INA make clear that we have no jurisdiction to hear Bakran’s claims,” Padova added.

Though it was the belief of the defendants Bakran’s allegations challenged that discretionary assessment from the CIS, Padova declared otherwise.

“Contrary to defendants’ assertions, Bakran’s complaint in this case does not question the Secretary’s determination, in its ‘sole and unreviewable discretion,’ that Bakran had failed to prove that he posed no risk to his wife. Rather, Bakran claims that CIS’s non-discretionary threshold determination that he may not file an I-130 petition on his wife’s behalf because he has been convicted of a “specified offense against a minor” violates his constitutional rights,” Padova said.

Padova concluded by ruling the U.S. District Court for the Eastern District of Pennsylvania did have grounds to hear Bakran’s case, and not the CIS.

“In light of the foregoing, we conclude that Bakran’s claims do not challenge any aspect of CIS’s discretionary ‘no risk’ assessment. We therefore reject defendants’ argument that the INA’s jurisdiction stripping provision bars our review of those claims, and we conclude that we have jurisdiction over the claims,” Padova said.

The plaintiff is represented by Nicklaus Misiti in New York, N.Y. and William John Vandenberg of Hogan & Vandenberg in Philadelphia.

The defendants are represented by Geoffrey Forney of the U.S. Department of Labor in Philadelphia and Sarah S. Wilson of the U.S. Department of Justice in Washington, D.C.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00127

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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