RY AN CAST ANEIRA, 

### Plaintiff,
v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Case No. 1:22-cv-01485-RCL ALEJANDRO MAYORKAS, Secretary ofHomeland Security, 

### etal., Defendants.
MEMORANDUM OPINION Plaintiff Ryan Castaneira, 

### pro se, brings this action to challenge the United States Citizenship and Immigration Services's ("USCIS") and Department of Homeland Security's ("DHS") (collectively, "defendants") denial ofhis Form 1-130, Petitionfor AlienRelative ("1-130"
or "petition"), filed on behalf of his Mexican national wife. 

### See Am. Cornpl., ECF No. 15. Castaneira seeks, among other remedies, declaratory and injunctive relief that sets aside the decisionbyUSCIS to deny his petition, 

### see DecisionDenying Petition ("Denial"), ECF No. 15-6, and declares that the AdamWalsh Child Safety and Protection Act of2006 ("AWA"), Pub. L. No. 109-248, 120 Stat. 587, does not apply to his 1-130 proceedings; or, if the AWA does apply, compels defendants to review his petition under a "preponderance of the evidence" standard instead ofa "beyond any reasonable doubt" standard. Arn. Cornpl., Prayer for Relief,r,r a-1. Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6) for lack ofsubject-matterjurisdiction and failure to state a claim upon which reliefcan be granted. 

### See Defs.' Mot. to Dismiss Arn. Cornpl., ECF No. 18. Upon consideration of the parties' filings, the applicable law, and the facts ofthe case, the Court agrees with defendants and

1

### concludes that it has no jurisdiction to review Castaneira's challenges to USCIS's determination and that Castaneira has failed to state a plausible claim that the AW A does not apply to his proceedings. Accordingly, defendants' motion to dismiss will be 

### GRANTED. I. 

### BACKGROUND A. Statutory and Regulatory Background 

### Immediate relatives of U.S. citizens, including spouses and children, receive certain preferential treatment under the Immigration and Nationality Act ("INA"). See, e.g., 8 U.S.C. § 

### 1151(b)(2)(A)(i) (providing that immigration ofimmediate relatives is not subject to numerical limitations). As relevanthere, a U.S. citizenmay file a Form I-130petition with USCIS to classify the petitioner's foreign national spouse or child as an immediate relative to allow the beneficiary to immigrateto the United States. See 8U.S.C. § 

### 1154(a)(l)(A)(i); 8 C.F.R. §§ 

### 204.l(a)(l), 204.2. In 2006, Congress passed the AWA, which, among other things, amended the INA to provide that USCIS must deny a U.S. citizen's Form I-130 petition ifthe petitioner "has been convicted ofa specified offense against aminor, unless the Secretary ofHomeland Security, inthe Secretary's sole and unreviewable discretion, determines that the citizen poses no risk" to the petitioner's beneficiary. 8 U.S.C. § 

### 1154(a)(l)(A)(viii)(I). Congress has authorized USCIS by statute to make such determinations for the Secretary. See 6 U.S.C. §

### 271(b)(l). The provision of the AW A governing those determinations cross-references another statutory provision for its definition of"specified offense against a minor," which includes the following: (A) An offense (unless committed by a parent or guardian) involving kidnapping. (B) Anoffense (unless committedby aparent orguardian) involving false imprisonment. (C) 

### Solicitation to engage in sexual conduct. (D) Use in a sexual performance.
2(E) Solicitation to practiceprostitution. (F) Video voyeurism as described in section 1801 ofTitle 18. (G) Possession, production, or distribution ofchildpornography. (H) Criminal sexual conduct involving a minor, or the use ofthe Internet to facilitate or attempt such conduct. (I) Any conduct that byits nature is a sex offense against a minor. 34 U.S.C. § 20911(7); see 8 U.S.C. § 1154(a)(l)(A)(viii)(II). 

### If a petitioner with a conviction involving any such offenses seeks classification ofhis foreign national spouse or child, USCIS must determine that the petitioner poses "no risk" to the beneficiary in order to approve the petition. 8 U.S.C. § 1154(a)(l)(A)(viii)(I). B. Factual and ProceduralBackground Castaneira is a U.S. citizen residing in Harrisburg, Pennsylvania. Am. Compl. 

## ,r 2. On September20, 2006, Castaneirawas arrestedinGeorgiaandchargedwith "ComputerorElectronic Pornography, Computer Child Exploitation, and DrivingWhile License Suspended orRevoked." See Not. ofIntent to Deny ("NOID") at 2, ECF No. 15-1. The arrest "stemm[ed] from a 2006 internet exchange on an adult-only website with" an individual whom Castaneira "believednotto have attained the age ofmajority" but who was in fact an adult "undercoverpolice officer." Am. Compl. 

## ,r 2. Subsequently, Castaneira was convicted ofviolating O.C.G.A. §§ 16-12-100.2(c)(l) (Computer or Electronic Pornography), 16-12-100.2(d)(l) (Computer Child Exploitation), and 16-4-1 (Criminal Attempt to Commit a Felony). NOID at 2. He was sentenced to ten years confinement, probation, and a fine, andhe was required to register as a sex offender. Id. In 2018, Castaneiramarried a Mexican national, Magdalena Perez Resendiz. Am. Compl. 

## ,r 2; NOID at 

### I. A year later, on August 19, 2019, Castaneira filed a Form I-130 for adjustment of his wife's status pursuant to 8 U.S.C. § l 151(b). Am. Compl. 

## ,r 3. USCIS replied to Castaneira on

3March 8, 2022 with a notice of its intent to deny ("NOrD") his petition. See NOrD. users concludedthat Castaneira's Georgiaconvictions qualified as "specifiedoffense[s] against aminor" undertheAWA, and thus Castaneirawas likely ineligible to proceed with his Form r-130 petition. Id. at 2-3 (citing 8 U.S.C. §§ 1154(a)(l)(A)(viii)). The NOrD described the process for showing that Castaneira's case did not fall under the AW A and, ifthe AW A applied, theprocess for showingthat hepresented "no risk" ofharm to his wife, as well as the types ofevidence to submit to support his claim. Id. at 3-6. It also stated that Castaneiraboretheburden ofestablishing "beyond any reasonable doubt" thatheposed no risk to the safety and well-being ofhis wife. Id. at 4. Finally, the NOrD stated that a decision would not bereached for 87 days, during whichtime he wouldbepermitted to submit evidenceto overcome the reasons for denial. Id. at 6. On May 26, 2022, Castaneira filed his initialpro se Complaint inthis Court to contest the evidentiary standards applied to adjudicate his Form 1-130 petition and for ajudgment declaring theAWAinapplicableto his convictions. See Compl., ECF No. 1. Subsequently, onJune 13, 2022, Castaneira sentusers aresponseto theNOID with facts and evidence surroundingthenature and circumstances ofhis convictions. See Denial at 2. On August 24, 2022, with a final decision on the petition still pending, defendants moved to dismiss the initial Complaint under Federal Rules ofCivil Procedure 12(b )(1) and 12(b )(6) for lack ofsubject-matterjurisdiction and failure to state
a claim upon which reliefcanbe granted. ECF No. 6. Castaneira opposed the motion, ECF No. 9, and defendants filed a reply, ECF No. I0. OnNovember 10, 2022, users formally denied Castaneira's petition. See Denial at 5.
users determined that Castaneira was ineligible to file the petition due to his prior convictions, reasoning that the evidence submitted did not prove his past crimes were not a "specified offense

4against a minor" as defined by the AW A, nor did it establish, beyond any reasonable doubt, that Castaneira posed no risk to the safety and well-being ofhis wife. 

### Id. at 1-5. Defendants notified the Court about the agency's decision on the same day it was issued, 

### see Defs.' Not. ofAgency Decision, ECF No. 11, and Castaneira then sought leave to amend the Complaint, 

### see Pl.'s Mots. to Amend, ECF Nos. 12 & 14. The Court granted Castaneira leave to amend his initial Complaint
on November 22, 2022, 

### see Minute Order (Nov. 22, 2022), and the Amended Complaint was docketed the following day, 

### see Am. Compl. Castaneira asserts five claims intheAmended Complaint: 1. That defendants failed to either follow or overrule USCIS's precedential decision in

### Matter of Chawathe, 25 I. & N. Dec. 369 (USCIS AAO 2010), and therefore violated the requirement that an agency follow its ownregulations in making discretionary decisions, 

### see United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), Am. Compl.

## ,r,r 60---64; 2. That defendants wrongfully applied a beyond any reasonable doubt standard rather than a preponderance ofthe evidence standard, inviolation of

### Chawathe, Am. Compl.

## ,r,r 65---68; 3. That Castaneira's convictions do not qualify as "specified offense[s] against a minor" as defined by 34 U.S.C. § 20911(7) and, consequently, the AWA does not apply to his case, Am. Compl.

## ,r,r 69-73; 4. That the law is uncertainregarding the definitions ofcertainterms USCIS uses in reaching its "no risk" determination, Am. Compl. 

## ,r,r 74-78; and 5. That defendants' decision denying his petition violated the Administrative Procedure Act ("APA") because it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(a), Am. Compl. 

## ,r,r 79-85. On January 23, 2023, defendants filed a motion to dismiss Castaneira's Amended Complaint pursuant to Federal Rules ofCivil Procedure 12(b)(l) and 12(b)(6). 

### See Defs.' Mot. to Dismiss Am. Compl. Castaneira filed an opposition, 

### see Pl.'s Opp'nto Mot. to Dismiss Am. Compl., ECF No. 22, defendants filed a reply, 

### see Defs.' Reply in Supp. ofMot. to Dismiss Am. Compl., ECF

5No. 26, and with the Court's leave, see Order, ECF No. 29, Castaneira filed a surreply, see Pl.'s Surreplyin Opp'nto Mot. to DismissAm. Compl.,ECFNo. 31. Themotionis nowripe forreview. 

### II. LEGAL STANDARDS A. Federal Rule ofCivil Procedure 12(b)(l) A defendantin a civil actionmaymoveto dismiss a complaintunderFederal Rule ofCivil Procedure 12(b)(l) for "lack of subject-matterjurisdiction." A court considering such a motion must take all the well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Doe v. Wash. Metro. Area TransitAuth., 453 F. Supp. 3d 354, 361 (D.D.C. 2020). "However, those factual allegations receive closer scrutinythan they do in the Rule 12(b)(6) context," and the court "maylook to documents outside ofthe complaint inorderto evaluate whether ornot it hasjurisdiction to entertain a claim." Id. (internal quotation marks and citations omitted). Itis the "[p]laintiff[who] bears theburdenofproving subjectmatterjurisdiction by a preponderance ofthe evidence." Am. Farm Bureau v. EPA, 121 F. Supp. 2d 84, 90 (D.D.C. 2000). 

### B. Federal Rule ofCivil Procedure 12(b)(6) A defendant in a civil action may also move to dismiss a complaintunder Federal Rule of Civil Procedure 12(b)(6) for "failureto state a claimupon whichreliefcanbe granted." To survive
a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations, accepted as true, to "state a claim to reliefthat is plausible onits face."Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quotationmarks omitted) (quotingBellAt!. Corp. v. Twombly, 550U.S. 544,570(2007)). A claim is plausible on its face ifit "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court evaluating a Rule 12(b)(6) "motion presumes that the complaint's factual allegations are true and construes them

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### liberally in the plaintiffs favor." Alemu v. Dep 't of For-Hire Vehicles, 

### 327 F. Supp. 3d 29, 40 (D.D.C. 2018). However, "[a] court need not accept aplaintiffs legal conclusions as true, ... nor must a court presume the veracity oflegal conclusions that are couched as factual allegations." Id. 

### (citation omitted). C. Filings byPro Se 

### Parties 

### "A document filed pro se 

### is to be liberally construed, and apro se 

### complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 

### 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). "However, even though apro se 

### complaint must be liberally construed, the complaint must nonetheless present a claim on which the court can grant relief." Williams v. Bank of New York Mellon, 

### 169 F. Supp. 3d 119, 124 (D.D.C. 2016) (internal quotation marks and citation omitted). That is, a pro se plaintiffis not exempt from the requirements ofthe federal rules. See Atherton v. D.C. Office of the Mayor, 

### 567 F.3d 672, 681-82 (D.C. Cir. 2009). III. DISCUSSION 

### Defendants' motion asks the Court to dismiss Castaneira's Amended Complaint pursuant to Federal Rules ofCivil Procedure 12(b)(l) and 12(b)(6) for lack ofsubject-matterjurisdiction and failure to state a plausible claim. Defs.' Mot. to Dismiss Am. Compl. at 2. Forthe reasons that follow, the Court will dismiss the Amended Complaint in full. Specifically, the Court will dismiss Castaneira's first, second;fourth, and fifth claims for lack ofsubject-matterjurisdiction and his third claim for failure to state a claim upon which reliefcan be granted. 1

J Castaneira's surreplyraises two new arguments: that the government's execerise ofdelegated powerto interpret the phrase "sole and umeviewable discretion" violates the non-delegation doctrine, see Pl.'s Surreply in Opp'nto Mot. to Dismiss Am. Compl. at 2-8, and contradicts statutory text enacted prior to the AW A, see id. at 8-10. However, because Castaneira waited until his surreply briefto raise those challenges, the government has had no chance to respond. Courts will generallynot consider arguments raised for the first time in a replybrief. SeeBattle v. Rubin, 121 F. Supp. 2d4, 7 n.3 (D.D.C. 2000). Consequently, the Court will not entertain these two new arguments.
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### A. The Court Lacks Subject-Matter Jurisdiction to Review USCIS's "No Risk" Determination Defendants move to dismiss Castaneira's first, second, fourth, and fifth claims, all of which challenge the manner in which USCIS made its "no risk" determination inhis case, on grounds that the Court lacks subject-matterjurisdictionto review such determinations. See Defs.' Mot. to Dismiss Am. Cornpl. at 12-23. Castaneiramaintains that the Courthas subject-matter jurisdiction to hearthose claims pursuant to 28 U.S.C. §§ 1331 (federal questionjurisdiction), 1361 (mandamus), 2201 etseq. (declaratoryrelief), and 1651 (theAll Writs Act). Arn. Cornpl.

Defendants argue that nojurisdiction exists to review the first, second, fourth, and fifth claims because (1) Congress stated in explicit statutory language that the process and outcome of the "no risk" determination are exercises ofUSCIS's unreviewable discretion, Defs.' Mot. to Dismiss. Arn. Cornpl. at 12-15; (2) the APA, INA, and AWApreclude federal courts from examining the standard ofproofthat USCIS applies in cases subject to the AW A, id. at 15-21; and (3) there is no other source of jurisdiction available, id. at 21-23. Castaneira counters that
evenifUSCIS's ultimate "no risk" determination is shielded from reviewby statute, its policies and procedures for reaching that decision are not, Pl.'s Opp'nto Defs.' Mot. to Dismiss Arn. Comp

### 1. at 10-14, and, more specifically, that Congress intended the term "determination" in the relevant provision ofthe AW A to relate only to a final risk assessment and not the evidentiary standard used to make that assessment, id. at 14-19. Defendants nevertheless reiterate that the language Congress used, "sole and unreviewable discretion," 8 U.S.C. § l 154(a)(l)(A)(viii)(I), plainlyprecludesjudicial review overboththeprocess and outcome ofa "no risk" determination. Defs.' Reply in Supp. ofMot. to Dismiss Am. Cornpl. at 1-4. This Court agrees with defendants.

8Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), and subjectto certain exceptions not at issue here, courts lackjurisdictionto review "any [] decision or action ofthe Attorney General orthe Secretary ofHomeland Security the authority for which is specified under [8 U.S.C., ch. 12, subch. 2] to be inthe discretion ofthe Attorney General orthe Secretary ofHomeland Security." "[T]hekey to § 1252(a)(2)(B)(ii) lies inits requirementthat the discretion givingrise to the jurisdictional barmustbe specified by statute, and [] whether such a specificationhas beenmade is determined by examining the statute as a whole."Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 200 (3d Cir. 2006) (internal quotation marks and citation omitted). Likewise, the APA precludesjudicialreview of"agency action[] committed to agency discretionbylaw." 5 U.S.C. § 70l(a)(2). Accordingly, the Court's task in a case likethis is to determine whetherthe relevant immigration statutemakes the determination at issue discretionary and thus outside the Court's jurisdictionto review. Therelevant statutoryprovision in this case, 8 U.S.C. § 1154(a)(l)(A)(viii)(I), grants "the Secretary ofHomeland Security
... sole and unreviewable discretion [to] determine[]" whether a Form 1-130 petitioner "convicted ofa specified offense against a minor" has established that he presents "no risk" to the intended alien beneficiary. Congress's grant ofdiscretionary authority couldnot bemuch clearer. And for that reason, although the D.C. Circuithas notyet confronted the question, every court ofappeals to do so has held that § 1154(a)(l)(A)(viii), read in conjunction with § 1252(a)(2)(B)(ii), places "no risk" determinations beyondthejurisdiction of courts to review. SeeBourdon v. U.S. Dep 't of HomelandSecurity, 940 F.3d 537, 542-49 (11th Cir. 2019); Bakran v. Sec

## '.Y, Dep 't of HomelandSecurity, 894 F.3d 557, 562 (3d Cir. 2018); Gebhardt v. Nielsen, 879 F.3d 980, 984-85 (9th Cir. 2018); Privett v. Sec

## '.Y, Dep 't of Homeland Security, 865 F.3d 375, 378-82 (6th Cir. 2017); Rolandv. U.S. Citizenship & Immigr. Servs.,

9850 F.3d 625, 629-30 (4th Cir. 2017); 

### Bremer v. Johnson, 834 F.3d 925, 929-31 (8th Cir. 2016). This Court agrees. While Castaneira acknowledges that theultimate "no risk" determination is unreviewable, he insists that courts may review the evidentiary standard used in making that determination. 

### See Pl.'s Opp'n to Mot. to Dismiss Am. Compl. at 11-13. That argument is without merit. As several other courts have held, "[a]pplication ofthe 'no risk' standard[] solely vests in USCIS's authority," and that includes the selection ofan evidentiary standard. 

### See Bourdon, 940 F.3d at 545--49; 

### Gebhardt, 879 F.3d at 987; 

### Bremer, 834 F.3d at 930; 

### Struniak v. Lynch, 159 F. Supp. 3d 643,655 (E.D. Va. 2016); 

### Bakran, 894 F.3d at 563; 

### see also Safadi v. Howard, 466 F. Supp. 2d 696, 699-700 (E.D. Va. 2006) (holdingthat where a statute does not impose limits on discretionary authority, the entire adjudication process is precluded from judicial review under§ 1252(a)(2)(B)(ii)). In other words, the Court lacksjurisdictionto question defendants' application ofthe "beyond anyreasonable doubt" standard, even where the challenge does notpurport to be one to the agency's final "no risk" determination, because the burden ofproofis a necessary factor in reaching that final determination. USCIS may not grant a Form I-130 petitionunless USCIS determines that thepetitionerposes "no risk" to the intendedbeneficiary. 8 U.S.C. § l 154(a)(l)(A)(viii)(I). The "beyond any reasonable doubt" standard is the means by which USCIS determines whetherthe "no risk" requirement is met, a determinationmadeunder § 1154( a)(l)(A)(viii)(I). It therefore falls under thejurisdiction-limitingprovision of § 1252(a)(2)(B)(ii). 

### See Bakran, 894 F.3d at 563. Castaneira argues that the authorities holding that the unreviewability of"no risk" determinations extends to the evidentiary standard were wrongly decided because they failed toaddress the import ofthe USCIS Administrative Appeals Office's precedential decision in 

### Chawathe, which held that, "[e]xcept where a different standard is specifiedby law, a petitioner
orapplicant in administrative immigration proceedings mustproveby a preponderance of evidence that he or she is eligible for the benefit sought." 25 

### I. & N. Dec. at 375. He argues that 

### Chawathe binds defendants under the

### Accardi doctrine, which holds that courts mayreview an agency's failure to follow its ownregulations inmaking a discretionary decision. PL's Opp'n at 14-22; 

### seeAccardi, 347 U.S. at 267-{j8; 

### Service v. Dulles, 354 U.S. 363, 372-73 (1957); 

### Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959). The Court disagrees. As the Eleventh Circuit noted in

### Bourdon, none ofthe

### Accardi line ofcases involved a statutory grant ofauthority including the word "unreviewable."

### Bourdon, 940 F.3d at 549; 

### see Accardi, 347 U.S. at 262-{j3 ("theAttorney General may suspend deportation ofsuch alien" on certain enumerated grounds); 

### Service, 354 U.S. at 370 ("the Secretary ofState may, in his absolute discretion, terminate the employment ofany officer or employee ofthe Department of State or ofthe Foreign Service ofthe United States wheneverhe shall deem suchtermination necessary or advisable inthe interests ofthe United States"); 

### Vitarelli, 359 U.S. at 538-39 (no specific grant ofstatutory authority governing Secretary's authority to terminate certain class of employee).2 And that is an important omission. "Supreme Court cases reviewing the discretion ofExecutive Branch officials cannot guide [the Court] in cases, like this one, where [the courts]
are told by Congress not to review that discretion inthe first place."

### Bourdon, 940 F.3d at 549.

2 The same is true of two of the three primary cases in which Castaneira asserts other courts in this district have accepted "[a]nalogous" arguments in other statutory contexts. Pl.'s Opp'n to Mot. to Dismiss Am. Comp!. at 23-25; see Damus v. Nielsen, 313 F. Supp. 3d 317, 323-24, 326-28 (D.D.C. 2018) (finding nojurisdictionalbar to Accardi review where statute granted authority to "[t]he Attorney General
... in his discretion," 8 U.S.C. § l 182(d)(5)(A)); Moghaddam v. Pompeo, 424 F. Supp. 3d 104, 120-21 (D.D.C. 2020) (stating the uncontroversialproposition that the APA itself does not barAccardi review). The third case did not involve a statutory bar to jurisdiction at all. See generally Whitman-Walker Clinic, Inc. v. US. Dep 't of Health andHuman Servs., 485 F. Supp. 3d 1 (D.D.C. 2020).

11This Court therefore agrees with other courts' interpretation of8 U.S.C. § 1154(a)(l)(A)(viii)(I): the phrase "sole and unreviewable discretion" means precisely what it says. To be clear, nothing in this Memorandum Opinion should beread as expressing any view
onthe merits ofUSCIS's decision to apply a beyond any reasonable doubt standard in making "no risk" determinations under the AWA in spite ofthe rule laid out in 

### Chawathe. But even if USCIS disregarded its ownbindingprecedent and thereby acted unlawfully, it does not follow that this Courthas thepowerto afford Castaneira any sort ofremedy-at least notwhere Congress has deprived the courts ofsuchpowerby statute. That conclusion should come as no surprise. After all, Congress under the Constitutionhas plenarypower over immigration, 

### see Kleindienst v. Mandel, 408 U.S. 753, 765----66 (1972), so is it within thebounds ofCongress's authority to exclude "no risk" determinations from thejurisdiction ofcourts to review. 3 Accordingly, all ofCastaneira's four claims that challenge USCIS's discretionary "no risk" determination and consequent denial ofthe I-130 fall within the scope of§ 1252(a)(2)(B)'s bar onjudicial review. Finally, Castaneira argues that otherbases offederaljurisdictionexistto sustainhis claims, specifically "28 U.S.C. § 1361 (mandamus); 28 U.S.C § 2201, 

### et seq. (declaratory relief); and 28 U.S.C. § 1651 (All Writs Act)." Am. Compl. if13. The Court again disagrees. The Declaratory Judgment Act allows the Court "to declare the rights and other legal relations of any interested party seeking such declaration," 28 U.S.C. § 2201, but it "is not an independent source of federal jurisdiction," 

### C&E Servs., Inc. ofWashington v. D. C. 

### Water & SewerAuth., 310 F.3d 197, 201 (D.C. Cir. 2002) (internal quotation marks and citation omitted).

3 Indeed, the Ninth Circuit has read the phrase "sole and unreviewable discretion" to suggest that Congress intended to prohibit courts from reviewing even constitutional claims concerning "no risk" determinations, although it ultimately assumed without deciding that such claims were reviewable
. See Gebhardt, 879 F. 3d at 987-88.
12

### "Rather, the statute merely creates a remedy in cases otherwise within the Court'sjurisdiction." Hassan v. Holder, 793 F. Supp. 2d 440,446 (D.D.C. 2011). In the same way, the All Writs Act, 28 U.S.C. § 

### 1651(a), "is not itselfa grant of jurisdiction."In re Tennant, 359 F.3d 523,527 (D.C. Cir. 2004). Castaneirafails to explainwhatindependentjurisdiction-granting statute authorizes his claims for reliefunder either the Declaratory Judgment Act or All Writs Act, and therefore his invocation ofthose statutes does not help hisjurisdictional case. 28 U.S.C. § 1361 likewise does not provide a basis forjurisdictioninthis case. "[The] writ ofmandamus
... is intended to provide a remedy for a plaintiffonly ifhehas exhausted all other avenues ofreliefand onlyifthe defendant owes him a clear nondiscretionary duty." Heckler v. Ringer, 466 U.S. 602, 616 (1984). Furthermore, mandamus reliefis appropriate "only where the duty to beperformed is ministerial and the obligation to act peremptory and plainly defined. The law must not only authorize the demanded action, but require it; the duty mustbe clear and indisputable." UnitedStates ex rel. McLennan v. Wilbur, 283 U.S. 414,420 (1931). This Courthasjust construed 8 U.S.C. § 

### 1154(a)(l)(A)(viii)(I) to delegate whollyunreviewable discretion to the agency to determine whether a Form I-130 petitioner convicted ofa specified offense against a minorunder the AW A has established that hepresents "no risk" to the intended alien beneficiary. Defendants therefore do not owe Castaneira a clear, nondiscretionary duty to grant his Form I-130 petition, and mandamus reliefis unavailable. In conclusion, Castaneira's challengeto theburden ofproofthat USC IS applied inmaking its "no risk" determination under 8 U.S.C. § 1154(a)(l)(A)(viii)(I) isjust as unreviewable as the final determination itself. Andthe Court sees no otherbases of jurisdictionto sustainthese claims. Accordingly, the Court will dismiss Castaneira's first, second, fourth, and fifth claims pursuant to Federal Rule ofCivil Procedure 12(b)(l).

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### B. Castaneira Fails to State a Claim Thatthe AW A Does NotApply Defendants move to dismiss Castaneira's third claim-thathis convictions do not qualify
as "specified offense[s] against aminor," 34 U.S.C. § 20911(7), and thus the AWA does not apply to his case-pursuantto Rule 12(b)(6) for failure to state a claim upon whichreliefcanbe granted. See Defs.' Mot. to Dismiss Am. Compl. at 23-28. Thethird claim asserts that Castaneira did not commit a "specified offense against a minor" becausehis crimes did not involve a personyounger than eighteen years old, butinstead, an adult undercoverpolice officer posing as a minor. See Am. Comp

### 1. 

## ,r,r 31-41, 69-73. Defendants argue that that claim fails because an offense can still be a "specified offense gainst aminor" even ifno actual minor was involved, and Castaneira conceded he was convicted ofthe offense and did not appeal or otherwise contest its validity. Defs.' Mot. to Dismiss Am. Compl. at 23-28; Defs.' Reply in Supp. ofMot. to Dismiss Am. Compl. at 7-8. Castaneira does not meaningfullyrespond to those arguments and therefore has arguably conceded them. See Pl.'s Opp'nto Defs.' Mot. to Dismiss Am. Compl. at 26-27. Nevertheless, given Castaneira'sprose status, the Court will explain why it agrees with defendants. As noted above, 34 U.S.C. § 20911(7) lists multiple definitions of"specified offense against a minor." In this case, USCIS invoked the definitions in subsections (C), (G), (H), and (I): "[s]olicitationto engage in sexual conduct"; "[p]ossession, production, or distribution of child pornography"; "[c]riminal sexual conduct involving a minor, orthe use ofthe Internet to facilitate or attempt such conduct"; and "[a]ny conductthat by its nature is a sex offense against
a minor," respectively. 34 U.S.C. §§ 2091(7)(C), (G), (H), (I); see Denial at 2. Thebriefing on themotion to dismiss does not specify which particular definition it purports to interpret, but appears to center on whether Castaneira was convicted of"[a]ny conduct thatby its nature is a

14

### sex offense against a minor." 34 U.S.C. § 2091(7)(!); see Defs.' Mot. to Dismiss Am. Compl. at 23-28. At any rate, the Court concludes that Castaneira's offenses easily meet that definition, so the Court need not consider whether any ofthem meet the other definitions USCIS invoked. As a threshold matter, the Court must determine the applicable interpretive framework. Castaneira contends that the Court must apply the categorical approach, under which courts may "look only to the statutory definitions"-i.e., the elements--ofa defendant's prior orinstant offenses, and not "to the particular facts underlying those convictions." Taylor v. United States, 495 U.S. 575, 600 (1990); see Am. 

### Compl. 

## ,r,r 70-71. Inhis view, the categorical approach requires a reading of"sex offense against a minor" that does not extend to any ofthe Georgia statutes he is convicted ofviolating, because itis possible to violate those statutes where there is
no actual minorvictim. See Am. Comp. 

## ,r 71-72. Anotherpossible interpretive framework is the circumstance-specific approach, under which courts examine notjustthe elements ofthe crime, but "the statutory definition, charging document, writtenplea agreement, transcript ofplea colloquy, and any explicit factual finding bythe trialjudgeto which the defendant assented." See Shepardv. United States, 544 U.S. 13, 16 (2005). While the D.C. Circuithas not addressed whetherthe definition of"sex offense against a minor" is analyzed under the categorical or circumstance-specific approach, every court of appeals to considerthe question has held that the circumstance-specific approach applies. See UnitedStates v. Thayer, 40 F.4th 797, 802-05 (7th Cir. 2022); UnitedStates v. Dailey, 941 F.3d 1183, 1190-93 (9th Cir. 2019); UnitedStates v. Hill, 820 F.3d 1003, 1005 (8th Cir. 2016); United States v. Price, 777 F.3d 700, 708-09 (4th Cir. 2015); UnitedStates v. Dodge, 597 F.3d 1347, 1353-54 (11th Cir. 2010). This Court agrees.

15

### Three aspects ofthe statutepoint toward the circumstance-specific approach as the proper mode ofanalysis. First, while anotherprovision ofthe statute defines a "sex offense" as "a criminal offense that has an 

### elementinvolving a sexual act or sexual contact with another," 34 U.S.C. § 20911(5)(A)(i) (emphasis added),§ 20911(7), which defines "specified offense against
a minor," "contains no reference to the crime's 'elements,"' 

### United States v. Mi KyungByun, 539 F.3d 982, 992 (9th Cir. 2008). Second, the words "against a minor" in§ 20911(7) precede a general list ofcrimes, such as "kidnapping," "false imprisonment," and "[u]se in a sexual performance," that do not reference the victim's identity, suggesting, for example, that "any kidnapping offensebecomes a 'specified offense against a minor' when the victim is a minor." 

### Id. Finally, and mostpointedly, § 20911(7)(1) covers "any 

### conduct that by its nature is a sex offense against a minor." 34 U.S.C. § 20911(7)(1) (emphasis added). The use of"conduct" in the residual clause, as opposed to "conviction," strongly indicates the circumstance-specific approach applies here. 

### Byun, 539 F.3d at 992; 

### cfTaylor, 495 U.S. at 600 (reasoning that use of "convicted" rather than "committed" in a statute shows congressional intent for application of the categorical approach). The question, therefore, is whether theparticular conduct underlying Castaneira's offenses "byits nature is a sex offense against a minor," 34 U.S.C. § 20911(7)(1), eventhough his would-be victim was not infact a minor, but an adult undercover police officer. The answer to that question is "yes." As defendants note, the Board ofImmigration Appeals ("BIA") considered a nearly identical question in

### Matter of Izaguirre, 27 I. & 

### N. Dec. 67 (BIA 2017). The facts ofthat case
are similarto this one. USCIS denied the petitioner's Form I-130 petition, filed on behalfofhis beneficiary spouse, after determinining that his conviction, computer-aided solicitation ofa

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### minor in violation ofLa. R.S. § 14:81.3, was for a "specified offense against a minor" under the AW A. Id. 

### at 67--68. Thepetitionerhad communicated viathe Internet with someonehe presumed was a 14-year-old girl, but was actually an undercoverpolice officer. Id. 

### at 68--69. The BIAheld "that an actual minorneed not be victimized for the [AWA] to apply," because "a perpetratorwho interacts with a person hebelieves is a minor, but who is, in fact, an undercover police officer, has the sameintent as one who actually interacts with a minor." Id. 

### at 69, 71. What little case law exists concerning the same or similar issues under the AW A supports the BIA's conclusion inIzaguirre. The Eleventh Circuithas held, albeit without much analysis, that a sex offense is one "against a minor" for purposes of§ 20911(7) so long as the offender "believedthe victim was a minor." See Dodge, 597 F.3d at 1355-56. And most courts to address the question have held that otherprovisions ofthe AW A, which added the phrase "involves a minorvictim" or "involving a minor victim" to various subsections ofthe Bail Reform Act ("BRA"), 18 U.S.C. §§ 3142(c)(l)(B), (e)(3)(E), (f)(l)(E), apply where the defendant was actually interacting with an adult undercover officer, see United States v. Larson, No. 21-cr-41- JED, 2021 WL 2222737, at *4--6 (N.D. Okla. June 2, 2021); United States v. Schuetz, No. 12-mj3046, 2012 WL 3185905, at *3-4 (C.D. Ill. Aug. 2, 2012); United States v. Rizzuti, 611 F. Supp. 2d 967, 969-70 (E.D. Mo. 2009); but see United States v. Kahn, 524 F. Supp. 2d 1278, 1281-84 (W.D. Wash. 2007). This Court agrees with the BIA and the Eleventh Circuit that an offense maybe "a sex offense against a minor" even where the offender was unwittingly interacting with an adult undercover officer. The text and purpose ofthe AW A point squarely inthat direction. First, as the BIA noted, ifCongress intended the actual identity ofthe victim to be dispositive, it knew howto say so but chose not to. See Izaguirre, 27 I. & 

### N. Dec. at 70-71. Just

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### three years before enacting the AW A, Congress enacted another statute using the term "actual minor." 

### See Prosecutorial Remedies and OtherTools to End the Exploitation ofChildren Today Act of2003, Pub. L. 

### No. 108-21, §§ 

### 502(c), (d), 503(1)(a), 505, 117 Stat. 650, 679-80, 683 (codified at 18 U.S.C. §§ 2252A(a)(3)(B)(ii), (c)(2), (e), 2256(11)). Moreover, three other sections ofthe AWAuse the word "actual" to modify "humanbeing." 

### See AWA, Pub. L. 

### No. 109-248 §§ 502(a)(l), (4), 503(a), 120 Stat. at 625-26 (codified at 18 U.S.C. §§ 2257(a), (h)(2)(A)(i), 2257A(a)). And"[w]here Congress includes particular language in one section ofa statutebut omits it in another
... , itis generally presumed that Congress acts intentionally and purposely inthe disparate inclusion or exclusion." 

### Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks and citation omitted). 4 

### Second, the statutory context in which§ 20911(7)(!) sits suggests that Congress did not intend to require an actual minor victim. That section is a residual clause following a list ofmore specific definitions, including "[c]riminal sexual conduct involving a minor, orthe use ofthe Internet to 

### attempt such conduct." 34 U.S.C. § 20911(7)(H) (emphasis added). As the BIAnoted, 

### attempt to entice a minorto engage in sexual activity does not require an actual minor victim. 

### See Izaguirre, 27 I. & 

### N. Dec. at 70 (citing 

### United States v. Helder, 452 F.3d 751, 753-56 (8th Cir. 2006)). Thus, reading§ 20911(7)(!) in conjunction with its immediatelypreceding subsection, it appears that Congress was focused on the intent ofthe offenderratherthan the actual identity ofthe victim. Third, as the BIA further reasoned, 

### see lzauirre, 27 I. & 

### N. Dec. at 70, a reading that excluded offenders who intended to harm a minor but who were merely factually unable to do so

4 Forthe same reason, even ifthe phrases "involves a minorvictim" and "involving a minorvictim" intheportions of the AW A amending the BRA were properly interpreted to exclude offenses involving adult undercover officers, see Kahn, 524 F. Supp
. 2d at 1281-84, that would actually strengthen the conclusion that Congress's choice to omit the word "victim" in § 20911(7)(1) evinces an intent not to focus on the actual identity ofthe victim.


### 18

### would undermine the express purpose ofthe AWA: "to protect the public from sex offenders and offenders against children," 34 U.S.C. § 20901; 

### see also Dodge, 597 F.3d at 1355 ("Congress cast a wide net to ensnare as many offenses against children as possible"). Having concluded that the phrase "sex offense against a minor" applies to offenses involving adult undercover officers, the Court easily concludes that that phrase applies to Castaneira's conduct. Castaneira concedes that he "was convicted of' the various Georgia offenses for using the "Internetto solicit/entice Cpl. Lackey, a personbelieved to be 15, to engage in sexual conduct" and for "Internet contact containing explicit verbal descriptions of sexual conduct with Cpl. Lackey, a person believed to be 15." Am. Compl. 

## ,r 34 n.10. That is "conduct that byits nature is a sex offense against a minor." 34 U.S.C. § 

### 20911(7)(!). USCIS
was therefore correct that Castaneira was convicted ofa "specified offense against a minor," and the Court must dismiss the third claim in the Amended Complaintpursuant to Rule 12(b)(6) for failure to state a claim upon which reliefcanbe granted. 

### IV. CONCLUSION For the reasons explained above, the Court will GRANT 

### defendants' motion to dismiss Castaneira's Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6). A separate Order shall issue this date.

Date: July _!_!_, 2023 Royce C. Lamberth United States District Judge

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