Wednesday, February 21, 2018
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Ninth Circuit:
Lawful Residency May Be Denied to Daughter of Child Molester
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has rejected an equal protection challenge to the Adam Walsh Child Protection and Safety Act which generally precludes a citizen from petitioning for lawful permanent residency on behalf of family members based on the citizen having been convicted of a sex offense against a child.
The action was brought by Alma Garcia Solorio, daughter of Rafael Garcia-Valdez, who first petitioned July 22, 1992, at the time he was a lawful permanent resident (“LPR”) here, for a family-sponsored visa for his wife and daughters, both then minors. On Dec. 19, 1996 he again petitioned after Solorio became 21, lending her a higher priority level in competition for the 480,000 awards of 480,000 status each fiscal year.
Garcia-Valdez, now a citizen, was convicted in 2009 of a lewd act with a child under the age of 14. As a consequence, the petition to afford lawful permanent resident status on Solorio was rejected.
This was done pursuant to the 2006 Adam Walsh Child Protection and Safety Act (“AWA”), designed “to protect the public from sex offenders and offenders against children.”
It amends the Immigration and Nationality Act to bar a citizen convicted of “a specified offense against a minor” from maintaining a petition for a family-sponsored visa, “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.”
Reasonableness Not Considered
The Ninth Circuit, in a memorandum opinion filed Friday, declined to consider an attack on the reasonableness of the government’s 2012 rejection of Garcia-Valdez’s contention that he poses “no risk” to his 32-year-old daughter. The district court judge, Dale A. Drozd of the Eastern District of California, had likewise spurned the contention, citing a lack of subject matter jurisdiction.
The Ninth Circuit panel—comprised of Senior Circuit Judges Dorothy Nelson and A. Wallace Tashima, and Circuit Judge Morgan Brenda Christen—said:
“The Immigration and Nationality Act…precludes judicial review of the Secretary’s ‘no risk’ determinations because those determinations fall within the Secretary’s ‘sole and unreviewable discretion.’ ”
The opinion went on to say, however:
“While we cannot review the Secretary’s discretion, we may review ‘colorable’ constitutional claims.”
Equal Protection Contention
Drozd, in addressing the equal protection claim, said that Solorio was contrasting treatment of citizens or lawful permanent residents who had been convicted of a sex offense, or certain other types of offense, against a child with those who had not suffered such a conviction. The parties agreed, he noted, that because no suspect class was involved and fundamental right was implicated, the “rational basis” standard pertained.
The district judge declared that there were “several conceivable bases” for “a legislative distinction” between petitioners who had committed offenses against children and those who hadn’t, saying:
“Through the AWA, Congress conceivably intended to treat convicted sex offenders differently by presumptively denying them the right to petition for sponsorship of a family member. Congress could have determined that because convicted sex offenders are more likely to pose a risk of harm to the public generally, including family members, those individuals should be required to make an affirmative showing that they no longer pose such a risk to intended beneficiaries before regaining the right to petition for a family-sponsored visa.”
Other Possible Objectives
He continued:
“Moreover, such additional scrutiny may reflect congressional intent to provide incentives for those convicted to engage in the rehabilitative process. Alternatively, the potential denial of a right to petition for family-based immigration may have been intended to deter future criminal conduct. Because at least one rational basis exists for the challenged classification, plaintiff’s equal protection claim must be dismissed.”
After summarizing Drozd’s view, the Ninth Circuit declared:
“Thus, the AWA passes rational basis review.”
Asserts Own Rights
Solorio also maintained that her own right to equal protection was breached because a different standard was applied to her, based on her father’s conviction, than to other adults who were subjects of family-sponsored visa petitions”
Drozd wrote:
“Specifically, plaintiff contends her immigration petition was revoked despite the fact that she is an adult being denied admission based on her father’s conviction for crimes against a minor….The statute at issue here, however, makes no distinction among beneficiaries based on age. Thus, the complaint effectively seeks judicial creation of a classification, between adult and minor beneficiaries, where none has been created by Congress. Such a remedy is unavailable to the court under the Equal Protection Clause….The facts alleged in the complaint however unfortunate for plaintiff, do not alter the court’s conclusion in this regard.”
The Ninth Circuit responded differently. Although it had declared that it was barred from considering Solorio’s affirmative contention that the government arbitrarily decided against the view that Garcia-Valdez was at “no risk” to relatives, it did assert the frailty of that contention in connection with disposing of Solorio’s equal protection claim.
“Garcia-Valdez failed to show that he no longer posed a risk to Solorio given that his application lacked a risk assessment and medical notes, among other deficiencies,” the opinion says. “Thus, [denial of] Solorio’s as-applied challenge passes rational basis review.”
The case is Solorio v. Sessions, 16-16300.
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