For that second determination, the petitioner “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].” Bakran v. Sec'y, U.S. Dep't of Homeland Security, 894 F.3d 557, 560 (3d Cir. 2018) (quoting U.S. Citizenship & Immigr. Servs., 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)).
"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." Bakran v. Sec’y, U.S. Dep’t of Homeland Sec. , 894 F.3d 557, 563 (3d Cir. 2018). We pause to highlight that the dissent apparently misunderstands our argument, which is not, in fact, built on the "supposed distinction between the words ‘determine’ and ‘decide.’ "
And for that reason, although the D.C. Circuit has not yet confronted the question, every court of appeals to do so has held that § 1154(a)(1)(A)(viii), read in conjunction with § 1252(a)(2)(B)(ii), places "no risk" determinations beyond the jurisdiction of courts to review. See Bourdon v. U.S. Dep't of Homeland Security, 940 F.3d 537, 542-49 (11th Cir. 2019); Bakran v. Sec'y, Dep't of Homeland Security, 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); Roland v. U.S. Citizenship & Immigr. Servs., 850 F.3d 625, 629-30 (4th Cir. 2017); Bremer v. Johnson, 834 F.3d 925, 929-31 (8th Cir. 2016). This Court agrees.
However, the Third Circuit recently rejected a nearly identical argument. See Bakran v. Sec'y, United States Dep't ofHomeland Sec., 894 F.3d 557, 565 n.7 (3d Cir. 2018). While Young has a fundamental right to marry the spouse of her choice, see Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015), "no court has recognized that a citizen spouse has a constitutional right to have his or her alien spouse reside in the United States," Bakran, 894 F.3d 557, 565 n.7; Fasano v. United States, 230 F. App'x 239, 240 (3d Cir. 2007) ("The Constitution 'does not recognize the right of a citizen spouse to have his or her alien spouse remain in the country.'"
In fact, every circuit to consider this issue has disclaimed jurisdiction over claims like Bourdon's. See Bakran v. Sec'y, U.S. Dep't of Homeland Sec. , 894 F.3d 557, 562–64 (3d Cir. 2018) ; Gebhardt v. Nielsen , 879 F.3d 980, 987 (9th Cir. 2018) ; Privett v. Sec'y, Dep't of Homeland Sec. , 865 F.3d 375, 378–82 (6th Cir. 2017) ; Roland v. U.S. Citizenship & Immigr. Servs. , 850 F.3d 625, 628–30 (4th Cir. 2017) ; Bremer v. Johnson , 834 F.3d 925, 929–31 (8th Cir. 2016). And although the dissent tries to differentiate this case from those, it cannot argue with a more basic point: we all agree that courts lack jurisdiction over these claims.
The Ninth Circuit is the only Court of Appeals to have embraced this asserted right-every other Circuit to consider the issue has rejected it. See Colindres v. U.S. Dept. of State, 71 F. 4th 1018, 1021 (CADC 2023); Baaghil v. Miller, 1 F. 4th 427, 433 (CA6 2021); Bakran v. Secretary, U.S. Dept. of Homeland Security, 894 F.3d 557, 564 (CA3 2018); Bright v. Parra, 919 F.2d 31, 34 (CA5 1990) (per curiam); Burrafato v. U.S. Dept. of State, 523 F.2d 554, 554-557 (CA2 1975); Silverman v. Rogers, 437 F.2d 102, 107 (CA11970). In Din, this Court considered but did not resolve the question.
See, e.g., Campeau v. Sandercock, No. 597 M.D. 2015 at 6-7 (Pa. Commw. Ct. Aug. 15. 2016). Additionally, it is well settled that, in accordance with Congress's plenary authority to set immigration requirements for aliens to enter the United States, a citizen does not have a Constitutional right to have an alien spouse reside in the United States, see Bakran v. Sec'y, United States Dept. of Homeland Sec., 894 F.3d 557, 565 (3d Cir. 2018). The fact that the appellants have children together does not change our analysis.
See Gonzalez-Cuevas v. Immigr. & Naturalization Serv., 515 F.2d 1222, 1224 (5th Cir. 1975) ("Legal orders of deportation to their parents do not violate any constitutional right of citizen children[.]"); Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting decisions of the former Fifth Circuit as binding precedent); cf. Bakran v. Sec'y, United States Dep't of Homeland Sec., 894 F.3d 557, 565 (3d Cir. 2018) ("[N]o court has recognized that a citizen spouse has a constitutional right to have his or her alien spouse reside in the United States[.]"). Next up, his equal-protection challenge.
And, interpreting the same provision, several sister circuits have held that a suit purporting to challenge policies that guide DHS in making its ultimate decision seeks "review" of that decision. See Bakran v. DHS , 894 F.3d 557 (3d Cir. 2018) ; Gebhardt v. Nielsen , 879 F.3d 980, 987 (9th Cir. 2018) ; Privett v. DHS , 865 F.3d 375, 380–81 (6th Cir. 2017) ; Bremer v. Johnson , 834 F.3d 925, 929–32 (8th Cir. 2016) ; Lee v. USCIS , 592 F.3d 612, 620 (4th Cir. 2010) ; Walid El-Baz Abdelwahab v. Frazier , 578 F.3d 817, 821 (8th Cir. 2009) ; but cf. Musunuru v. Lynch , 831 F.3d 880, 887–88 (7th Cir. 2016) ( section 1252(a)(2)(B)(ii) does not prevent court from considering whether immigration authorities complied with procedure in making discretionary decision); Mantena v. Johnson , 809 F.3d 721, 728 (2d Cir. 2015) (same); Kurapati v. U.S. Bureau of Citizenship and Immigration Servs ., 775 F.3d 1255, 1262 (11th Cir. 2014) (same). That the plaintiffs characterize their suit as a challenge to Matter of A-B- and the Guidance should not prevent us from recognizing what, in reality, it is—an APA challenge to their respective credible fear determinations.
And that problem aside, “no court has recognized that a citizen spouse has a constitutional right to have his or her alien spouse reside in the United States.” Bakran v. Sec'y, 894 F.3d 557, 565 (3d Cir. 2018).