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Bourdon v. United States Department of Homeland Security (DHS)

United States Court of Appeals, Eleventh Circuit

October 3, 2019

DOUGLAS BOURDON, Plaintiff-Appellant,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY (DHS), JEH CHARLES JOHNSON, Secretary of DHS, LORETTA LYNCH, Attorney General of the United States, UNITED STATES CITIZENSHIP ANDIMMIGRATION SERVICES (USCIS), LEON RODRIGUEZ, Director of the USCIS, TONY BRYSON, District Director, District 10, USCIS, LAURA CASTILLO, Acting Field Office Director, West Palm Beach Field Office, USCIS, Defendants-Appellees.

          Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:17-cv-80207-RLR

          Before JORDAN, GRANT, and BALDOCK, [*] Circuit Judges.


         Douglas Bourdon, a United States citizen, sought to bring his wife, a Vietnamese citizen, here to the United States under a program that allows sponsorship of close relatives. But a problem presented itself: Bourdon had been convicted of possession of child pornography, which put him outside the bounds of the visa-sponsorship program unless he could show that he posed no risk to his wife. This he could not do-at least not according to United States Citizenship and Immigration Services, which under a statute known as the Adam Walsh Act has "sole and unreviewable discretion" to determine if citizens like Bourdon pose "no risk" to their foreign relatives. Bourdon sued, alleging that Immigration Services violated the Administrative Procedure Act in two ways: when it used a beyond-a-reasonable-doubt standard rather than a preponderance-of-the-evidence standard to evaluate his petition, and when it did not allow him to offer rebuttal evidence. The district court dismissed the suit, concluding that it had no jurisdiction to review Bourdon's administrative objections to the process behind the no-risk decision. We affirm; courts lack jurisdiction to review either the process or the outcome of the no-risk decision.


         We begin by providing a brief background of the immigration procedures and rules at issue. Generally, by filing an I-130 petition, "any citizen of the United States" can 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); see also 8 C.F.R. § 204.1(a)(1). In response to that request, "the Attorney General shall, 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," approve the petition. 8 U.S.C. § 1154(b). The foreign national can then enter the United States without regard to numerical limits on immigration. Id. § 1151(b).

         But Congress created an exception to that allowance in 2006 when it passed the Adam Walsh Child Protection and Safety Act. According to that Act, the general rule permitting a U.S. citizen to petition for foreign 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." Id. § 1154(a)(1)(A)(viii)(I) (emphasis added). So the status quo for citizens convicted of specified offenses against a minor-a list that includes kidnapping a child, using a child in a sexual performance, soliciting a child to practice prostitution, and possession of child pornography-is that they are ineligible to sponsor their immediate relative's immigration petition. See 34 U.S.C. § 20911(7) (formerly codified at 42 U.S.C. § 16911(7)) (defining "specified offense against a minor"). Unless, that is, the Secretary affirmatively acts in their favor-a task Congress has authorized Immigration Services to perform for the Secretary. See 6 U.S.C. § 271(b). Whether the Secretary-or the Secretary's delegate, Immigration Services-will act in favor of the convicted citizens, in turn, is committed to the Secretary's "sole and unreviewable discretion." 8 U.S.C. § 1154(a)(1)(A)(viii)(I).

         Turning to the facts here, Bourdon was convicted of possession of child pornography in 2003. Five years later, he married Thi Thuan Tran, a Vietnamese citizen. Shortly after their marriage, Bourdon filed an I-130 petition to establish Tran as his immediate relative so that she could join him in the United States as a legal permanent resident. But Immigration Services told Bourdon that his child-pornography conviction prevented him from filing an I-130 petition-unless he could prove that he posed no risk to his wife. Immigration Services also sent Bourdon a request for evidence regarding his offense and rehabilitation. Bourdon eventually submitted several documents in support of his petition, including an affidavit from his wife; reports from a psychologist and social worker/forensic examiner; and evidence of trips to Vietnam and Thailand to visit his wife.

         Immigration Services ultimately denied Bourdon's petition in a written opinion. That opinion-which Immigration Services had no duty to issue- explained that Bourdon had failed to prove "beyond any reasonable doubt" that he posed no risk to his wife. The opinion also stated that Immigration Services found the records that Bourdon submitted of trips to Vietnam and Thailand "disturbing." According to Immigration Services, the records showed that Bourdon repeatedly visited "countries that have literally no child protection laws and where child pornography, child prostitution, and child sex tourism are sources of national income and are tolerated by their respective governments." To support those assertions, the opinion cited to "[c]ountry reports by U.S. Department of State, UNHCR, World Relief, UNICEF, UN-ACT etc."

         After receiving the opinion denying his petition, Bourdon brought this action. Bourdon alleges that Immigration Services violated the APA in two distinct ways when it analyzed whether he posed any risk to his wife.[1]

         First, Bourdon argues that Immigration Services violated the APA when it applied a beyond-a-reasonable-doubt standard to weigh the evidence that he submitted in support of his petition, rather than the preponderance-of-the-evidence standard that he contends is required under In re Chawathe, 25 I. & N. Dec. 369, 375 (USCIS Admin. Appeals Office 2010). According to Chawathe, "[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." Id. Because the Secretary of Homeland Security designated that decision as precedent, Bourdon argues, Immigration Services is required to abide by it. See 8 C.F.R. § 103.3(c) (administrative decisions designated as precedent "are binding on all Service employees"). And because, Bourdon says, the Adam Walsh Act does not supply a different standard, the agency should have applied a preponderance standard- rather than a beyond-a-reasonable-doubt standard-to weigh the evidence that he presented in support of his application.

         Second, Bourdon alleges that the agency violated the APA because it did not give him the opportunity to inspect and rebut the country reports that the agency cited when it found his travels to Vietnam and Thailand "disturbing." According to Bourdon, 8 C.F.R. § 103.2(b)(16)(i) gives him a right to inspect and rebut any derogatory information that the agency relied on in denying his petition. Id. § 103.2(b)(16)(i) ("If the decision will be adverse to the applicant or petitioner and is based on derogatory information considered by the Service and of which the applicant or petitioner is unaware, he/she shall be advised of this fact and offered an opportunity to rebut the information and present information in his/her own behalf before the decision is rendered . . . .").

         These two alleged APA violations, Bourdon argues, survive the Adam Walsh Act's apparent bar on court review because they challenge Immigration Services' compliance with mandatory administrative procedures rather than the agency's ultimate conclusion, which even Bourdon concedes cannot be reviewed. The district court disagreed, and thus dismissed Bourdon's APA claim for lack of subject-matter jurisdiction. Bourdon v. Sessions, No. 9:17-CV-80207, 2017 WL 5187833, at *4-5 (S.D. Fla. Nov. 9, 2017). In explaining its decision, the court stated that the statutory scheme shields from judicial review "not only the ultimate determination of whether a petitioner has met his burden of proving 'no risk' to the petition's beneficiary, but also the agency's decision-making process, including what evidence to consider and how to weigh such evidence." Id. at *4. The court decided that it was therefore powerless to review the burden of proof that the agency used to weigh the evidence when determining if Bourdon posed no risk to his wife. Id. at *4-5. Likewise, the court concluded that the agency's "unreviewable discretion" over the decision-making process included the agency's failure to allow Bourdon to rebut the country reports that it relied on in denying his petition. Id. at *4. In sum, the court reasoned that Bourdon's attack on the agency's "assessment of the evidence is no less a challenge to" the agency's "discretionary denial of the I-130 than a straightforward challenge to the denial itself, and the Court lacks subject matter jurisdiction to consider an attack from either front." Id. at *4. Bourdon timely appealed the district court's ruling, which we review de novo. See Perez v. U.S. Bureau of Citizenship & Immigration Servs., 774 F.3d 960, 964-65 (11th Cir. 2014) (per curiam).


         We repeat: the Adam Walsh Act gives the Secretary of Homeland Security "sole and unreviewable discretion" to determine whether a citizen like Bourdon poses no risk to his foreign relative. 8 U.S.C. § 1154(a)(1)(A)(viii)(I); see also 5 U.S.C. § 701(a)(1) (no APA review of administrative actions when "statutes preclude judicial review"). So the question is whether the processes that Bourdon challenges-the Secretary's chosen burden of proof and the Secretary's denial of an opportunity to rebut derogatory information-fall within the Secretary's unreviewable discretion. If they do, then we are powerless to review Bourdon's APA claim.


         The Adam Walsh Act provides, full stop, that a citizen like Bourdon cannot 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." 8 U.S.C. § 1154(a)(1)(A)(viii)(I). The forceful phrase "sole and unreviewable discretion" is the first sign that the Secretary is not bound by otherwise-applicable standards when determining if a citizen poses no risk. "A grant of 'sole' discretion is among the strongest known to the law." Bremer v. Johnson, 834 F.3d 925, 931 (8th Cir. 2016). That phrase, in combination with the rest of the statute's text as well as its grammar, its structure, and its history, leads to the conclusion that the Secretary's discretion reaches beyond the final decision to include the Secretary's process for arriving at that decision. Both are therefore shielded from judicial review.

         To identify the boundaries of the Secretary's discretion, we begin with the words Congress chose to describe it. The Act gives the Secretary sole and unreviewable discretion to determine if a citizen poses a risk, and determine means "establish or ascertain definitely, as after consideration, investigation, or calculation." The American Heritage Dictionary of the English Language 494 (5th ed. 2011); see also Webster's New World College Dictionary 402 (5th ed. 2014) ("to reach a decision about after thought and investigation; decide upon"); New Oxford American Dictionary 474 (3d ed. 2010) ("ascertain or establish exactly, typically as a result of research or calculation"). These definitions show that "determine" encompasses making a final decision-and the method for reaching that final decision (or, as the dictionaries put it, the thought, consideration, research, investigation, or calculation). So Congress, by choosing the verb "determine"-rather than a noun like "decision" that refers only to the final conclusion-extended the Secretary's discretion to the action of determining rather than only to the final determination.[2] Moreover, there "is no stark use of indefinite articles in the text to suggest that the grant of discretion is narrowly confined to a single act." Bremer, 834 F.3d at 931. "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." Bakran v. Sec'y, U.S. Dep't of Homeland Sec., 894 F.3d 557, 563 (3d Cir. 2018).

         Even allowing for any definitional ambiguity, both the grammar and the structure of the statute also indicate that the Act prevents courts from reviewing not only the Secretary's final decision but also his decision-making process. We start with grammar. Congress chose a grammatical order that makes the Secretary's exercise of his discretion over the decision-making process unreviewable. "Sole and unreviewable" modifies the word "discretion"-as opposed to "decision" or any other word that would mark the conclusion of the process rather than the process itself. Using common principles of grammar-which we look to because we presume that Congress, in drafting the statute, applied ordinary grammar rules-we can see that the Act is written in a way that makes the Secretary's exercise of his discretion over the decision-making process itself unreviewable. See Antonin Scalia & Bryan A. Garner, Reading Law 140 (2012) ("Words are to be given the meaning that proper grammar and usage would assign them."); BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1187-88 (11th Cir. 2001).

         The statute's structure reinforces this conclusion. Cf. Assa'ad v. U.S. Att'y Gen., 332 F.3d 1321, 1333-34 (11th Cir. 2003) (looking to a statute's structure to ascertain its meaning). The Act's very starting point demonstrates that the status quo forecloses relief: It entirely bars citizens convicted of specified offenses against a minor from petitioning for immediate-relative recognition. See 8 U.S.C. § 1154(a)(1)(A)(viii)(I) ("Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor . . . ."). They are, to put it simply, categorically ineligible for the benefit available to other U.S. citizens. The only possible grace offered from this exclusion is if the Secretary affirmatively acts in favor of the applicant. And any action-or inaction-occurs according to the Secretary's "sole and unreviewable discretion." Id.

         One other factor informs our view of the statute's meaning: the Adam Walsh Act's history, which confirms that the Act bars judicial review of the Secretary's decision-making process. Statutory history sheds light on "the context of the statute." Scalia & Garner, supra, at 256. When analyzing statutory history, we presume that "a change in the language" of a statute, whether by reenactment or amendment, "connotes a change in meaning." Id. What we can also presume is that the new language means something. See id. at 174 ("If possible, every word and every provision is to be given effect . . . . None should be ignored.").

         Here, the relevant statutory history shows that all U.S. citizens could petition the government to recognize certain family members as immediate relatives until 2006, when Congress passed the Adam Walsh Act. See 8 U.S.C. § 1154(a)(1)(A)(i). And at the time of the Act's passage, another provision of the Immigration and Nationality Act (INA) already prohibited courts from reviewing any "decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." Id. § 1252(a)(2)(B)(ii). Thus, to bar judicial review of only the Secretary's final decision, rather than the processes behind it, Congress would have simply needed to commit the no-risk decision to the Secretary's discretion so that § 1252 would apply.

         But that is not what Congress did. Instead of making the no-risk decision unreviewable, Congress made the exercise of discretion itself unreviewable by reserving to the Secretary "sole and unreviewable discretion" to determine whether a citizen posed any risk. The Adam Walsh Act's language establishes a different meaning than § 1252: Congress went beyond the existing provision that bars review of all discretionary decisions and instead shielded the Secretary's decision-making process from judicial review. A more limited interpretation would render the "sole and unreviewable discretion" language entirely duplicative of § 1252(a)(2)(B)(ii).[3]

         We note, finally, that our interpretation of the Act aligns with that of every circuit court to have considered the same question-five of our sister circuits have also concluded that courts lack authority to review challenges to the processes that the Secretary uses to determine if a citizen poses no risk. See Bakran v. Sec'y, U.S. Dep't of Homeland Sec., 894 F.3d 557, 563 (3d Cir. 2018); Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018); Privett v. Sec'y, Dep't of Homeland Sec., 865 F.3d 375, 380-82 (6th Cir. 2017); Roland v. U.S. Citizenship & Immigration Servs., 850 F.3d 625, 628-30 (4th Cir. 2017); Bremer v. Johnson, 834 F.3d 925, 930-31 (8th Cir. 2016). Some of these courts reach this conclusion on the basis of the Adam Walsh Act alone, while others consider that Act in combination with § 1252(a)(2)(B)(ii). But none concludes that the Secretary's decisional process is anything but unreviewable-the same conclusion we adopt here.


         Applying this understanding of the Act to the facts here, we consider Bourdon's arguments. Bourdon asked the district court to review (1) the Secretary's use of the beyond-a-reasonable-doubt standard to weigh the evidence and (2) the Secretary's refusal to provide Bourdon with an opportunity to respond to the country reports referenced in the opinion rejecting his petition. He argues that both of those challenges attack the how of the Secretary's decision rather than the decision itself. But that is precisely the point.

         As the Board of Immigration Appeals has explained, the "application of the appropriate standard of proof is part and parcel of the ultimate exercise of discretion delegated" to the Secretary. In re Aceijas-Quiroz, 26 I. & N. Dec. 294, 299 (B.I.A. 2014). And the Secretary's decision not to provide Bourdon with the opportunity to respond to the country reports also falls directly within the Secretary's discretion. If a court can dictate which arguments the Secretary must entertain or how the Secretary weighs the evidence, then the Secretary can hardly be said to have "sole and unreviewable discretion" to determine if a citizen poses no risk. That reasoning, plain as it is, shows why both of the challenged processes-the Secretary's preferred burden of proof and the Secretary's refusal to offer an interactive decision-making process-are bound up in the Secretary's "sole and unreviewable discretion." 8 U.S.C. § 1154(a)(1)(A)(viii)(I).

         Just how inextricably Bourdon's demands are intertwined with the Secretary's discretion becomes more apparent when his claims are contrasted against Adam Walsh Act claims that other circuits have noted do not involve the Secretary's discretion. One of the courts that refused to review the beyond-a-reasonable-doubt standard still reasoned that the Secretary's discretion would not be implicated by deciding whether a petitioner's offense actually constituted a "specified offense against a minor." See Privett, 865 F.3d at 379. And others have likewise stated that a citizen does not challenge the Secretary's discretion when he contends that the Adam Walsh Act does not apply to petitions filed before the Act took effect, or to claims that the Act is impermissibly retroactive. See Gebhardt, 879 F.3d at 985-86 (concluding that courts may decide whether the Act applies to already-filed petitions); Bremer, 834 F.3d at 929 (whether the Act "is inapplicable" is a legal question "over which the district court has jurisdiction"); see also Bakran, 894 F.3d at 564 n.5 ("[W]e are not holding that a court lacks jurisdiction to review an action beyond the authority Congress granted to the agency . . . ."). These are all conditions precedent to the Secretary's discretionary process. We too could conjure up legal claims relating to the Adam Walsh Act that would not imperil its grant of discretion. But Bourdon's challenges go to the heart of the Secretary's decisional process. The district court was therefore correct when it held that the Adam Walsh Act prevented it from reviewing those challenges. So too for this Court.

         In reaching this conclusion, we do "not lightly interpret a statute to confer unreviewable power on an administrative agency," Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454 (1979), and indeed we "recognize the 'strong presumption' in favor of judicial review that we apply when we interpret statutes." Cuozzo Speed Techs., LLC v. Lee, 136 S.Ct. 2131, 2140 (2016). At the same time, this presumption "is just that-a presumption." Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984). And, like all other presumptions used in interpreting statutes, it "may be overcome by 'clear and convincing' indications, drawn from 'specific language'" in the statute showing "that Congress intended to bar review." Cuozzo Speed Techs., 136 S.Ct. at 2140 (quoting Block, 467 U.S. at 349-50). When Congress commands that we refrain from reviewing a particular administrative decision, we are obligated to follow that statutory limitation rather than defer to our judicial presumptions.

         We are, after all, a court of limited jurisdiction whose power to hear cases is defined by Congress: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, § 1; see also id. art. III, § 2, cl. 1 (giving federal courts authority to hear cases arising under "the Laws of the United States"). "Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). And "the exercise of federal jurisdiction is proper only when prescribed by Congress." Marshall v. Gibson's Prods., Inc., 584 F.2d 668, 672 (5th Cir. 1978). "A corollary to this principle is that Congress may withhold from the federal courts jurisdiction over a class of cases even though the judicial power of the United States, as described in article III, § 2 of the Constitution, includes that class." Id. We cannot extend the court's hand to seize topics Congress has put beyond our reach. Indeed, we "possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen, 511 U.S. at 377 (citations omitted).

         It is thus no surprise that the Supreme Court has regularly construed statutes to prohibit judicial review of administrative actions-even when the statute lacks any explicit jurisdiction-stripping language and context is the primary indicator of congressional intent to bar judicial review. See, e.g., Thunder Basin Coal Co. v.Reich, 510 U.S. 200, 207 (1994) (Federal Mine Safety and Health Amendments Act of 1977 bars judicial review of preenforcement challenges to the Act); Block, 467 U.S. at 352 ("structure" of the Agricultural Marketing Agreement Act of 1937 "implies that Congress intended to preclude" judicial review of challenges to the Secretary of Agriculture's milk-market orders brought by dairy-product consumers); S. Ry. Co., 442 U.S. at 454-55 (statute barred judicial review of the Interstate Commerce Commission's decision not to investigate a proposed rate increase); Morris v. Gressette, 432 U.S. 491, 501 (1977) (under the Voting Rights Act of 1965, courts lack jurisdiction to review Attorney General's failure to object to a change in voting procedures). In passing the Adam Walsh Act, Congress explicitly rendered unreviewable the kind of administrative processes that Bourdon challenges here when it gave the Secretary "sole and unreviewable discretion" to determine if a citizen poses "no risk." Moreover, ...

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