                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 9 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

MALCOLM BURBANK,                                 No. 15-35760

              Plaintiff-Appellant,               D.C. No. 2:14-cv-00292-RMP

 v.
                                                 MEMORANDUM*
KIRSTJEN NIELSEN, Secretary,
Department of Homeland Security; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                           Submitted December 5, 2017**
                             San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and ROSENTHAL,*** Chief
District Judge.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
         The Honorable Lee H. Rosenthal, Chief United States District Judge for
the Southern District of Texas, sitting by designation.
       Plaintiff Malcolm Burbank appeals the district court’s decision dismissing

this action under Federal Rule of Civil Procedure 12(b)(6). We vacate the district

court’s order, remand, and instruct the district court to dismiss the action for lack

of jurisdiction.

       1. We lack—and the district court lacked—jurisdiction to review Plaintiff’s

statutory claims. The Immigration and Nationality Act ("INA") clearly precludes

judicial review of the Secretary’s "no risk" determinations because those

determinations fall within the Secretary’s "sole and unreviewable discretion." 8

U.S.C. § 1154(a)(1)(A)(viii)(I). Because each of Plaintiff’s statutory claims

challenges how the Secretary exercises that discretion, this court lacks jurisdiction

to review them. City of Rialto v. W. Coast Loading Corp., 581 F.3d 865, 872–73

(9th Cir. 2009).1

       2. We lack—and the district court lacked—jurisdiction to review Plaintiff’s

claim regarding his fundamental right to marry. Assuming, without deciding, that

the INA permits us to review colorable constitutional claims, Plaintiff’s substantive

due process claim is not a colorable one. A non-citizen’s deportation does not

violate his or her family’s substantive due process rights. Morales-Izquierdo v.

Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010), overruled in part on

       1
        The government argues that Plaintiff waived a number of his statutory
claims. Because those claims, too, are unreviewable, we need not consider
whether Plaintiff waived them.
other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en

banc). Holding otherwise here would undermine Congress’ plenary power over

immigration. Landon v. Plasencia, 459 U.S. 21, 32 (1982).

      VACATED and REMANDED with instructions. The parties shall bear

their own costs on appeal.




                                        3
