Federal Judge finds jurisdiction over Adam Walsh Immigration denial

NEW YORK - June 23, 2015 - PRLog -- Anyone, effected by the Adam Walsh act (“AWA”) understands that it effectively bars a US citizen from filing a family based petition unless they can show they pose “no risk” to the immediate relative they are filing for.   Immigration has interpreted the law to create an extremely difficult standard where a petitioner must show they pose “no risk” to their beneficiary relative.  Immigration also claims that their decisions are not reviewable on appeal because Congress stated the “no risk” determination is at the “sole, unreviewable, discretion” of the attorney general.

         Until recently most Federal Courts had sided with immigration and held they did not have discretion to even consider a challenge to an AWA based denial.  In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014) the Board of Immigration Appeals (“BIA”) held that it does not have jurisdiction to consider challenges to immigrations “no risk” determination.

         Likewise, in Bremer v. Johnson, Case No. 13-cv-1226 in the Western District of Missouri the Federal judge dismissed the petitioner’s challenge to the AWA stating the court did not have jurisdiction to hear it.

         With the BIA and Federal District courts refusing to even hear AWA based challenges it appeared they were rubber stamping AWA denials and the prospects for these petitions appeared dim.  However, recently attorney Nicklaus Misiti was able to turn the tide and convince a Federal Judge to diverge from his colleagues opinions.

         In Bakran v. Johnson¸ 15-cv-127 (Eastern District of Pennsylvania) Mr. Misiti argued and the Federal Judge agreed that the AWA should be analyzed in two portions.  The first is immigration’s non-discretionary determination that the petitioner is barred from filing for his immediate relative under the AWA.  The second is immigration’s discretionary decision as to whether the petitioner poses “no risk” to the beneficiary.  In so ruling the Judge agreed the “sole, unreviewable discretion” language only applies to the “no risk” determination and he does have jurisdiction over whether the bar created by the AWA violates Constitutional rights and the Administrative Procedures act.  The Federal Judge agreed that Mr. Misiti was not challenging immigrations “no risk” determination but instead whether applying the AWA was even lawful.  In a footnote the Federal judge stated they were aware of the contrary decision in Bremer but that decision was not binding on this particular Court.

         This decision is a huge step forward for those affected by the AWA, as the largest hurdle to this point has been convincing a Federal Judge to even hear the case.  This decision breathes new life into families negatively affected by the AWA and anyone who has had their AWA petition denied should contemplate continuing the fight in Federal Court.