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 Filed: 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 restricts 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 violates his right to 

marriage and is impermissibly retroactive. The 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 is aimed at providing prospective 

protection, it is not impermissibly retroactive. Therefore, we 
4

will vacate the District Court’s order granting summary 

judgment to Defendants on Bakran’s APA claims, and remand 

with directions 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 citizen.

Id. § 1151(b)(2)(A)(i). Such relatives may enter the United 

States without regard to numerical limitations on immigration 

to the United States. Id. § 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.” Id.

 

1 The 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 

facilitate or attempt such conduct,” id. 
5

§ 1154(a)(1)(A)(viii)(I). This provision is intended to 

effectuate the AWA’s stated purposes: “[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 first, written by Michael 

Aytes, Associate Director of Domestic Operations of the 

USCIS (the “Aytes Memo”), sets forth the burden of proof a 

petitioner must meet to show that he or she poses no risk to his 

or her alien relative. Specifically, 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 second, written by Donald Neufeld, Acting Associate 

Director of Domestic Operations of the USCIS (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 lifetime sexual 

offender registration. He was required to undergo a 

psychosexual evaluation and prohibited from 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-485, 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. Bakran 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 the 
7

Constitution and APA. Defendants moved 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 

the District Court granted. On the APA claims, the Court ruled 

that (1) the agency’s adoption of a beyond-any-reasonabledoubt standard was not ultra vires2 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 limitations, or short of 

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

Vires, 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 Bakran’s due process claim failed because the AWA

does not infringe his fundamental constitutional right to marry, 

id. at 595-97. Bakran appeals. 

II3

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 “there 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 

under 28 U.S.C. § 1331, “subject only to preclusion-of-review 

statutes created 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 where “statutes preclude judicial review” or 

“agency action is committed to 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 subchapter 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 [Secretary] 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, the 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). The 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 Memos 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 any 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. 

The 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. The 

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. The 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 decision 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-capricious claims in his 

complaint but abandons those claims on appeal. 
11

deciding the type of proof required, the evidentiary standard 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

from 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 courts 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 ‘cannot be divorced 

from the denial [of an application to adjust 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 risk to beneficiaries because 

the claim “challenge[d] how the Secretary, acting through the 

USCIS, has exercised his discretion to make a no-risk 

determination 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 both 
12

the ultimate decision that is discretionary and the steps that are 

a necessary and ancillary part 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 cause in the first place,”

and that the good cause determination is within the agency’s 

unreviewable discretion (citation and internal quotation mark

omitted)).

For these reasons, federal 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 court 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.ca3.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, 703-07
13

Bakran’s APA claims, and we will therefore vacate the order 

granting summary judgment in favor of Defendants on 

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

District Court dismiss these claims.

B

1

Bakran also makes two challenges to the AWA: the 

AWA violates his substantive due process right to marry,6and 

the AWA is impermissibly retroactive. Unlike Bakran’s APA 

challenges 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 processrights, 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 government 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 right 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 

infringe 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, 879 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 487, 496 (6th 

Cir. 2006) (holding that “[t]he Constitution does not recognize 

the right of a citizen spouse to have his or her alien spouse 
15

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. 

Rogers, 254 F.2d 338, 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 rights, 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 GarfiasRodriguez 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 infringed. Bakran is incorrect. First, although 

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 process protections); id. at 2139 (Kennedy, 

J., concurring, joined by Alito, J.) (noting that even assuming 

Din had a protected liberty interest, the notice she received 
16

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 availability 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 armed 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, professional 

licenses, and commercial licenses); 28 U.S.C. § 1865(b)(5) 

(restriction on right 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 restrictions 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 

convicted 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 challenges 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 protecting the public). 

Thus, once one sustains a felony conviction, consequences 

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 her to adjust her status, but this 

impediment 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 fundamental 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 is 
18

not penal.8 Relying on the general principle of antiretroactivity, and statutory construction, he claims that the 

AWA is impermissibly retroactive because it attaches new 

legal consequences 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 express statement of retroactivity, then we must 

determine whether “normal rules of statutory construction 

unequivocally remove the possibility of retroactivity.” Id.

(emphasis omitted). If 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 

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

Atkinson, 479 F.3d at 226. An act has retroactive 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)). If the 

 

8 The AWA’s stated purpose is to protect children and 

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 has been 

historically so regarded,’” 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 provides that it should 

apply retroactively nor unequivocally removes 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 

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). 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 from 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 WL 
20

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 provisions 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 jobs 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 foregoing reasons, we will affirm in part, with 

respect to Bakran’s constitutional claims, and we will vacate in 

part, with respect to his APA claims, and remand with 

directions to dismiss the APA claims.