Federal Court Rules Immigration Law Doesn't Implicate Right to Marriage

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Federal Court Rules Immigration Law Doesn't Implicate Right to Marriage

Update date:

Wednesday, July 6, 2016 - 09:12

Original Source:

Immigration Law Doesn't Implicate Right to Marriage: From New York Law Journal 

http://www.newyorklawjournal.com/id=1202761205927/Immigration-Law-Doesnt...

The fundamental right to marriage is not implicated by an immigration law that allows authorities to block convicted sex offenders from obtaining visas for their spouses, a federal judge has ruled.

Northern District Judge Lawrence Kahn rejected the lawsuit brought by petitioner Alfred Parella, who was convicted in New York in 2000 of first-degree sexual abuse in a case involving a 15-year-old girl.

Parella married his wife, Olga Parella, a foreign national, in 2006 and filed a petition seeking classification of his wife as an immediate relative and a change in her immigration status.

Because of his conviction, Parella was subject to the 2006 Adam Walsh Child Protection and Safety Act (AWA).

The act bars a U.S. citizen from petitioning for an immediate relative when the citizen "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 [the] petition ... is filed."

Ultimately, the United States Citizenship and Immigration Services, (USCIS), issued a memo saying a petitioner had to show "beyond any reasonable doubt" that he or she poses no risk to the safety or well being of his or her intended beneficiaries—and must make that showing even if none of the beneficiaries are children.

The USCIS later clarified in a 2008 memo that a showing of rehabilitation "is paramount to the 'poses no risk' determination" and that such grants should be rarely given.

Parella claims he submitted significant evidence of rehabilitation in 2007 and again in 2011 but was rejected. The Board of Immigration Appeals denied his appeal in 2015 and he filed suit in the Northern District, saying the AWA was an unconstitutional ex post facto application of the law, denied him due process and was an unconstitutionally excessive punishment. He also alleged that the two memos were improperly adopted as policy and exceeded the statutory authority of the USCIS.

Kahn rejected the ex post facto claim, saying Parella "has alleged no facts—and the court can find none—showing that the immigration provision of the AWA was designed to punish people previously convicted of sex crimes, rather than to protect potential immigrants as a forward-looking, civil statute."

The statute, the judge said, was reasonable in light of its goal—"protecting potential beneficiaries from harm that could come from establishing residency in the United States with an immigration status that is dependent upon the petitioner."

Because it's a civil statute that is not penal in nature, Kahn said the law does not impose cruel and unusual punishment under the Eighth Amendment.

The judge denied Parella's claim that his procedural due process rights were violated and then he turned to a substantive due process claim based on Parella's asserted fundamental right to marry. Parella cited, to no avail, the string of Supreme Court cases culminating in the court's same-sex marriage cases—United States v. Windsor, 133 S.Ct. 2675 (2013) and Obergefell v. Hodges, 135 S Ct. 2584 (2015).

"But this is not a case concerning the right to marry, or even the right to marry the person of one's choosing," the judge said. "These rights were already realized by plaintiff when he married his wife in 2006. Instead, this case is about the right to obtain a visa for an alien spouse."

The judge said the immigration context significantly changes the constitutional analysis. Moreover, Kahn said the case law demands judges exercise self-restraint and be extremely cautious when being asked to "'break new ground' in the field of substantive due process."