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

______________2 Argued : March 16 , 2017

______________

Before: GREENAWAY

, JR., SHWARTZ, Circuit Judges

, and SIMANDLE, Senior District Judge *

( Opinion F iled : 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.3 ______________

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 restrict s 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 violate s his right to marriage and is impermissibly retroactive. T he 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 i s aimed at providing prospective protection, it is not impermissibly retroactive. Therefore, we4 will vacate the District Court’s order granting summary judgment to Defendants on Bakran’s APA claim s , and remand

with direction s 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 c itizen.

I d. § 1151(b)(2)(A)(i)

. Such relatives may enter the United States without regard to numerical limitations on i mmigration

to the United States. I d. § 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. ” I d.

1 T he 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

facili tate or attempt such conduct,” id.5 § 1154(a)(1)(A)(viii)(I). This provision is inte nded to

effectuate the AWA’s stated purpose s : “[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 f irst, written by Michael Aytes, Associate Director of Domestic Operations of the USCIS (the “Aytes Memo”), set s forth the burden of proof a petitioner must meet to show that he or she poses no risk to his

or her alien relative. Specifica lly, 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 s econd, written by Donald Neufeld, Acting Assoc iate Director of Domestic Operations of the US CIS (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 ).6 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 lifetim e sexual offender registration. He was required to undergo a psychosexual evaluation and prohibited f rom 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

- 48 5, 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. B akran 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 the7 Constitution and APA

. D efendants m oved 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

t he 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 vires 2 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 limitatio ns, or short of statutory right

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

V ires

, Black’s Law Dictionary (10th ed. 2014) (stating that “ultra vires” means “[u]nauthorized; beyond the scope of power allowed or granted

. . . by law”).8 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 B akran’s due process claim failed because the AWA does not infringe his fundament al constitutional right to marry,

id. at 595

- 97

. Bakran appeals.

II 3

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 “the re 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).9 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

un der 28 U.S.C. § 1331, “ subject only to preclusion

- of

- review

statutes c reated 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 wher e “statutes preclude judicial review” or “agency action is committed t o 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 subcha pter 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 [Sec retary] 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, t he 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). T he AWA therefore precludes judicial review of the Secretary’s no

- risk determination concerning a specific citizen.10 The issue here is whether the two procedures set forth in the Aytes and Neufeld M emos 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 a ny 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.

T he 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. T he 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. T he 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 de cision 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

- ca pricious claims in his complaint but abandons t hose claims on appeal.11 deciding the type of proof required, the evidentiary st andard 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

fro m 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 court s 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 ‘canno t be divorced

from the denial [ of an application to adjus t 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 r isk to beneficiaries because

the claim “challenge[d] how the Secretary, acting through the USCIS, has exercised his discretion to make a no

- risk

determinati on under the [AWA]” ); Struniak v. Lynch , 159 F. Supp. 3d 643, 654 (E.D. Va. 2016) ( holding that “§ 1252(a)(2)(B)(ii) strips courts of jurisdiction to review both12 the ultimate decision that is discretionary and the steps that are a necessary and ancillary p art 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 ca u se in the first place, ”

and that the good cause determination is within the agency’s unreviewable discretion (citation and internal quotation mark omitted)).

F or these reasons, f

ederal 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 cou rt 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.c a3.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

- 0713 Bakran’s APA claim s , and we will therefore vacate the order granting summary judgment in favor of Defendants on

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

District Court dismiss t hese claims

.

B

1

Bakran also makes two challenges to the AWA : t he

AWA violates his substantive due process right to marry, 6 and the AWA is impermissibly retroactive. Unlike Bakran’s APA challenge s 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.14 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 governm ent 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 ri ght 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

in fringe 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 , 87 9 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 48 7, 496 (6th Cir. 2006) (holding that “[t]he Constitution does not recognize the right of a citizen spouse to have his or her alien spouse15 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. Roger s , 254 F.2d 3 38, 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 right s, 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 infr inged. Bakran is incorrect. First, a lthough 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 pr ocess protections ); id. at 2139 (Kennedy,
J., concurring, joined by Alito, J.) ( noting that even assuming Din had a protected liberty interest, the notice she received16 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 availabilit y 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 a rmed 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, professiona l licenses, and commercial licenses); 28 U.S.C. § 1865(b)(5) (restriction on r ight 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 restriction s 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”).17 protected right to travel); Richardson v. Ramirez , 418 U.S. 24, 56 (1974) (upholding a state law that disenfranchised

c onvicted 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 c hallenges 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 protect ing the public ). Thus, once one sustains a felony conviction, consequen ces 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 h er to adjust her status, but this impedi ment 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 fund amental 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 is18 not penal. 8 R elying on the general principl e of anti

retroactivity , and statutory construction, he claims that the

AWA is impermissibly retroactive because it attaches new legal conse quences 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 expre ss statement of retroactivity, then we must
determine whether “ normal rules of statutory construction unequivocally remove th e possibility of retroactivity. ” Id. (emphasis omitted ). I f 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

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

Atkinson , 479 F.3d at 226. An act has ret roactive 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)). I f the

8 The AWA’s stated purpose is to protect children a nd 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 ha s been historically so re garded,’” 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.19 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 provide s that it should apply retroactively nor unequivocally remove s 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

Secr etary’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 fr om 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 WL20 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 provision s 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 j obs 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 f oregoing reasons, we will affirm in part, with
respect to Bakran’s constitutional claims, and we will vacate in part, with respect to his APA claim s , and remand with

directions to dismiss the APA claims

.