Lukac v. Mayorkas

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RADE LUKAC, Plaintiff, v. ALEJANDRO MAYORKAS, Secretary, Department of Homeland Security; and KEVIN RIDDLE, Field Office Director, Chicago Field Office, U.S. Citizenship & Immigration Services, Defendants.

No. 22-cv-7156

United States District Court, N.D. Illinois, Eastern Division

June 9, 2023

MEMORANDUM OPINION AND ORDER

Steven C. Seeger United States District Judge

Rade Lukac, a United States citizen, wanted to help his wife, a foreign national, secure a visa. But he had a big problem. Years ago, Lukac was convicted of a child pornography offense. Under the governing statute, he is ineligible to petition for visa sponsorship on his wife's behalf unless he demonstrated that he posed no risk to her. And it's up to the United States Citizenship and Immigration Services to decide whether he carried that burden.

Lukac prepared a petition showcasing their long relationship cohabitation, and shared children. He pointed to his academic accomplishments. He also marshalled supportive letters from family and friends, professional psychological assessments and medical records of his wife and children.

In the end, it wasn't enough. The United States Citizenship and Immigration Services denied Lukac's petition. The agency concluded that, in light of his criminal conviction, Lukac had failed to demonstrate that he posed no risk to his wife.

Lukac responded by filing suit. He claims that the agency reached its decision after taking a number of procedural shortcuts. As Lukac sees it, the agency failed to adequately explain its decision and failed to consider all of the evidence.

Defendants in turn, moved to dismiss the case for lack of subject matter jurisdiction. The government points to statutory language that vests the agency with the “sole and unreviewable” power to make eligibility decisions.

For the reasons that follow, the Court concludes that it lacks jurisdiction over Lukac's challenge to the denial of his petition.

Background

The Immigration and Nationality Act creates a visa application process for foreign nationals who are sponsored by “immediate relatives” in the United States. See 8 U.S.C. § 1154(a)(1)(A)(i), (b), (b)(2). Basically, a person can get a green card (i.e., a Permanent Resident Card) and remain in the United States if the United States Citizenship and Immigration Services (“USCIS”) determines that the person is an immediate relative of a citizen.

A citizen gets the ball rolling by petitioning the USCIS to classify a foreign national as an immediate relative. Id. at § 1154(a)(1)(A)(i). A citizen kicks off that process by submitting a so-called Form I-130 petition. Id.

Under the statute, the USCIS “shall” approve the petition “if [it] 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” or is entitled to a preference. See id. at § 1154(b). The Secretary of State then authorizes the consular officer to “grant the preference status” to the beneficiary. Id.

But in 2006, Congress changed the framework by passing the Adam Walsh Child Protection and Safety Act. See Pub. L No. 109-248, 120 Stat. 586. Congress created an exception to the general rule that “any citizen” can file a petition. See 8 U.S.C. § 1154(a)(1)(A)(i).

The Adam Walsh Act flips the script for citizen-petitioners convicted of a “specified offense against a minor.” Id. at § 1154(a)(1)(A)(viii)(I). That category covers “[p]ossession, production, or distribution of child pornography” and “[a]ny conduct that by its nature is a sex offense against a minor.” See 34 U.S.C. § 20911(7).

The Act categorically bars such offenders from filing a visa petition on behalf of others, “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.” See 8 U.S.C. § 1154(a)(1)(A)(viii)(I).

So, for petitioners convicted of offenses involving child pornography, Congress presumptively denied visa beneficiary petitions, unless the Secretary (and only the Secretary) makes a finding that the citizen poses no risk. See id. at § 1154(a)(1)(A)(viii)(I); 34 U.S.C. § 20911(7).

The USCIS has issued guidance clarifying the Adam Walsh Act's application. See Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, Transmittal of Standard Operating Procedure for Adjudication of Family-Based Petitions Under Adam Walsh Child Protection and Safety Act of 2006 (Sept. 24, 2008). In a case where the petitioner seeks a visa for an adult beneficiary, the USCIS “closely examine[s] the petitioner's specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary.” Id. The agency interprets section 1154(a)(1)(A)(viii)(I) to mean that the petitioner “must pose no risk to the safety or well-being of the beneficiary.” Id. at 7 (emphasis added). The petitioner bears the burden of demonstrating that he poses no risk “beyond any reasonable doubt.” Id.

Plaintiff Rade Lukac attempted to navigate through that regulatory framework to get a green card for his wife. In February 2020, Lukac filed an I-130 visa petition on behalf of his wife (Violeta Lukac), who is a foreign national. See Cplt., at ¶ 18 (Dckt. No. 1). They share children and live together in Cook County. Id. at ¶ 11; see also Pl.'s Resp., at 3 (Dckt. No. 11).

Under the statute, Lukac faced an uphill battle. He is a United States citizen, but he has a felony conviction for possessing child pornography. See Cplt., at ¶¶ 17-18 (Dckt. No. 1). In 2004, he was convicted of three counts of violating 18 U.S.C. § 2252A(a)(2)(A) and one count of violating 18 U.S.C. § 2252A(a)(5)(A) for activities relating to material containing child pornography. See Notice of Decision, at 3 (Dckt. No. 9-1).

Perhaps realizing that he fell within the Adam Walsh Act's categorical bar given his criminal convictions, Lukac submitted psychological assessments, character letters from friends, and his children's birth certificates in support of his petition. Id. He also filed extensive documentation of his criminal convictions. See Notice of Decision, at 2-3 (Dckt. No. 9-1).

On October 20, 2020, USCIS issued a Notice of Intent to Deny Lukac's petition, and requested more evidence relating to Lukac's child pornography conviction. Id. at 3; see also Cplt., at ¶ 19 (Dckt. No. 1). Lukac responded with the requested documents, more letters in support, and copies of his academic diplomas. Id.

USCIS ultimately denied Lukac's I-130 petition in a written decision. Id. at ¶ 20. The agency determined that Lukac had been convicted of a “specific offense against a minor” as defined by the Adam Walsh Act. Id. And it concluded that Lukac had failed to demonstrate beyond a reasonable doubt that he posed “no risk” to his wife, as the statute required. Id.

Lukac responded by suing Alejandro Mayorkas, the Secretary of Homeland Security, and Kevin Riddle, the Chicago Field Office Director for USCIS, in their official capacities to challenge the USCIS decision. He brings claims under the Administrative Procedure Act, alleging that USCIS violated the APA in two ways. Id. at ¶ 21.

First, Lukac asserts that the USCIS “fail[ed] to provide any analysis or explanation” as to how he poses a risk to his wife. Id. at ¶ 21. Second, Lukac argues that the decision failed to take into account all of the evidence that he submitted, including the couple's shared children, cohabitation, and educational accomplishments. Id.

As Lukac sees it, both shortcomings violated the APA's requirement that the agency “examine the relevant data and articulate a satisfactory explanation for its action.” See Pl.'s Resp., at 2 (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Lukac asserts that the Court therefore has jurisdiction through the federal question statute, 28 U.S.C. § 1331. He also invokes the Declaratory Judgment Act (which doesn't confer jurisdiction), and the Immigration and Nationality Act. See Cplt., at ¶¶ 29 (Dckt. No. 1) (citing Califano v. Sanders, 430 U.S. 99, 107 (1977)).

Defendants moved to dismiss the complaint for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Defs.' Mtn. (Dckt. No. 8).

Analysis

Federal courts are courts of limited jurisdiction. See Harrington v. Berryhill, 906 F.3d 561, 566 (7th Cir. 2018). “They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Id. (quoting Kokkonen v Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Congress created the lower federal courts, and thus has the power to define the scope of their power. See U.S. Const., art. III, § 1. When it comes to jurisdiction, Congress giveth, and Congress taketh away.

The statute at hand is a good example of how Congress can take away the power of the federal courts. Congress took away the power of courts to hear claims about immigration-related decisions involving petitions from individuals convicted of child pornography offenses. The statute creates a roadblock, and there is no way around it.

As a general matter, the statute deprives federal courts of the power to hear challenges to discretionary decisions by the USCIS. Under the statute, “no court shall have jurisdiction to review . . . any other 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.” See 8 U.S.C. § 1252(a)(2)(B)(ii).

A decision about the risks of someone...