                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 31 2015

                                                                         MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


BARRY REYNOLDS; FU YUN XU                        No. 12-55675
REYNOLDS,
                                                 D.C. No. 8:11-cv-00936-CJC-
              Plaintiffs - Appellants,           RNB

 v.
                                                 MEMORANDUM*
JEH JOHNSON, Secretary of
Department of Homeland Security;
LORETTA E. LYNCH, Attorney
General; CHRISTINA POULOS,
Director, USCIS, Laguna Niguel, CA,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                      Argued and Submitted February 9, 2015
                               Pasadena, California

Before:       KOZINSKI, CHRISTEN and HURWITZ, Circuit Judges.

      1. Barry Reynolds raises a number of reasons why United States Citizenship

and Immigration Services should have concluded that he “pose[d] no risk” to his

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                                   page 2
spouse. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). Because a no-risk determination is

committed to the “sole and unreviewable discretion” of the Secretary of Homeland

Security, we can’t address these claims. Id.; id. § 1252(a)(2)(B)(ii).


      2. Reynolds claims that the 2006 Adam Walsh Act (AWA) doesn’t apply to

him because the AWA can’t attach a new disability to his 1994 conviction. But the

AWA “address[es] dangers that arise postenactment” and therefore “do[es] not

operate retroactively.” Cf. Vartelas v. Holder, 132 S. Ct. 1479, 1489 n.7 (2012).


      3. The district court erred in dismissing for lack of jurisdiction Reynolds’s

claim that the application of the AWA unconstitutionally burdens his fundamental

right to marry. See Mamigonian v. Biggs, 710 F.3d 936, 945 (9th Cir. 2013)

(holding that “district courts have jurisdiction to hear cases challenging final

agency determinations . . . made on nondiscretionary grounds”); Kwai Fun Wong

v. United States, 373 F.3d 952, 963 (9th Cir. 2004) (concluding that

unconstitutional decisions cannot be “discretionary”). We remand for the district

court to consider Reynolds’s constitutional claim in the first instance.


      AFFIRMED in part and VACATED and REMANDED in part. No costs.
