                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-3253
                                     ____________

                                    NEAL A. NAIK,
                                                           Appellant

                                            v.

               DIRECTOR UNITED STATES CITIZENSHIP AND
                   IMMIGRATION SERVICES VERMONT;
         UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES


                    On Appeal from the United States District Court
                              for the District of New Jersey
                          (District Court No.: 3-12-cv-04057)
                     District Judge: The Honorable Joel A. Pisano


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 7, 2014

             Before: RENDELL, SMITH, and HARDIMAN, Circuit Judges

                                (Filed: August 13, 2014)
                                     ____________

                                     OPINION
                                    ______________

RENDELL, Circuit Judge

      Neal Naik (“Naik”) appeals the order of the United States District Court for the

District of New Jersey granting the motion to dismiss of the defendants, United States

Citizenship and Immigration Services and the Director of the Vermont Service Center of
United States Citizenship and Immigration Services (collectively, “USCIS” or

“Defendants”). For the reasons set forth below, we will affirm.

       Naik is a United States citizen who was convicted of endangering the welfare of a

child in violation of N.J. Stat. Ann. § 2C:24-4a,1 in November 2003. In February 2009,

Naik married Jyosna Naik (“Jyosna”), a citizen of India. On March 15, 2009, Naik filed

a Form I-130 petition (the “I-130 Petition”) with USCIS, seeking to have his wife

classified as an immediate relative for the purpose of allowing her to immigrate to the

United States. See 8 C.F.R. § 204.1–204.2.

       In June 2010, USCIS issued a Notice of Intent to Deny (“NOID”) Naik’s I-130

Petition. In its NOID, USCIS explained that Sections 402(a) and (b) of the Adam Walsh

Child Protection and Safety Act of 2006 (the “Walsh Act”), Pub. L. No. 109-248, 120

Stat. 587 (2006), amended the Immigration and Nationality Act (the “INA”) to prohibit

U.S. citizens and lawful permanent residents who have been convicted of any “specified

offense against a minor” from filing a family-based visa petition on behalf of any


1
       N.J. Stat. Ann. § 2C:24-4(a) provides:

       (1)    Any person having a legal duty for the care of a child or who has
       assumed responsibility for the care of a child who engages in sexual
       conduct which would impair or debauch the morals of the child is guilty of
       a crime of the second degree. Any other person who engages in conduct or
       who causes harm as described in this paragraph to a child is guilty of a
       crime of the third degree.

       (2)    Any person having a legal duty for the care of a child or who has
       assumed responsibility for the care of a child who causes the child harm
       that would make the child an abused or neglected child as defined in
       R.S.9:6-1, R.S.9:6-3 and P.L.1974, c. 119, § 1 (C.9:6-8.21) is guilty of a
       crime of the second degree. Any other person who engages in conduct or
       who causes harm as described in this paragraph to a child is guilty of a
       crime of the third degree.
                                             2
beneficiary unless the Secretary of the Department of Homeland Security determines, in

his or her sole and unreviewable discretion, that the petitioner poses no risk to the

beneficiary of the visa petition. (A50-53.) The NOID requested that Naik submit

evidence sufficient to clearly establish that he did not commit a specified offense against

a minor, or in the alternative, to establish beyond a reasonable doubt that he posed no risk

to the beneficiary of his I-130 Petition. Naik provided documents and information in

response to USCIS’s request in September of 2010.

       After reviewing the evidence submitted by Naik, USCIS concluded that Naik’s

conviction under N.J. Stat. Ann. § 2C:24-4a prohibited the I-130 Petition from being

granted based on the Walsh Act’s definition of the term “specified offense against a

minor” as including “[a]ny conduct that by its nature is a sex offense against a minor.”

Pub. L. No. 109-248, § 111(7)(I) (codified at 42 U.S.C. § 16911(7)(I)). USCIS further

concluded that Naik had failed to meet his evidentiary burden of clearly demonstrating,

beyond any reasonable doubt, that he posed no risk to the safety and well-being of

Jyosna, the beneficiary of the I-130 Petition. Accordingly, USCIS denied Naik’s petition

on December 10, 2010.

       Naik appealed the denial of the I-130 Petition to the Board of Immigration

Appeals (“BIA”). In his appeal, Naik argued that (1) the Walsh Act, which was enacted

in 2006, could not be applied “retroactively” to his 2003 conviction; (2) USCIS failed to

apply the categorical approach to determine if his conviction constituted a “specified

offense” under the Walsh Act; (3) requiring Naik to prove “beyond a reasonable doubt”

that he posed no risk to the beneficiary was inconsistent with the burden of proof

                                              3
generally applicable to a visa petition, and therefore could only be applied after

complying with the notice and comment requirements of the Administrative Procedure

Act (“APA”), 5 U.S.C. § 553; (4) the Walsh Act violates substantive and procedural due

process because it does not provide for a hearing before a neutral adjudicator before

depriving a citizen of a liberty interest in his marriage; and (5) applying the Walsh Act to

Naik’s I-130 Petition “inflict[ed] a constitutionally disproportionate penalty upon a

United States citizen” in violation of the Eighth Amendment.

       On October 14, 2011, the BIA remanded the matter to USCIS for further briefing

and development of the record. Specifically, the BIA requested that the parties respond

to the following questions:

              (1) Whether the government has the burden of proving that
              the petitioner’s conviction is for a “specified offense” against
              a minor under section 111 of the [Walsh Act]?

              (2) Whether the categorical and modified categorical
              approaches should be used in making the foregoing
              determination?

              (3) If the petitioner was found to have been convicted of a
              “specified offense” against a minor, is there a rebuttable
              presumption that the petitioner will pose a risk to the
              principal beneficiary or a derivative beneficiary?

              (4) If the petitioner is found to have been convicted of a
              “specified offense” against a minor, whether and under what
              authority, the government applies a “beyond a reasonable
              doubt” standard in determining—as a matter of discretion—if
              the petitioner is a risk to the safety or well-being of the
              principal beneficiary or a derivative beneficiary?

              (5) Whether the Director must explain the rationale for his/her
              conclusion that the petitioner poses a risk to the principal
              beneficiary or a derivative beneficiary?

                                             4
              (6) As here, where the principal beneficiary is not a minor
              beneficiary and where there are no minor derivative
              beneficiaries, does the [Walsh Act] require the petitioner to
              prove only that he or she poses no risk to the adult principal
              beneficiary and any adult derivative beneficiaries?

              Finally, in the event that the Director denies this visa petition
              again under the [Walsh Act] and the petitioner files an appeal
              to this Board, the parties are advised to include a
              jurisdictional statement. Specifically,

              (7) Whether this Board has jurisdiction to review the question
              of whether the Secretary applied the correct standard in
              determining whether a petitioner has shown he or she is not a
              risk to the principal beneficiary or a derivative beneficiary?

              (8) What is the nature and scope of the Board’s jurisdiction
              over other aspects of the appeal?

       (A29-30.)

       Rather than address the questions raised in the BIA’s remand, on August 21, 2012,

USCIS issued a second NOID, and asked that Naik provide the exact same information it

had originally requested in June of 2010. Counsel for Naik responded that the

information had already been submitted two years earlier. On January 4, 2013, USCIS

filed a motion with the BIA requesting that it reconsider its October 2011 remand of

Naik’s I-130 Petition and requesting leave to file a supplemental brief addressing the

eight questions the Board presented in its October 2011 remand.

       It does not appear that the BIA has, to date, taken any further action on this matter.

It has not granted USCIS leave to file its supplemental brief; nor has it agreed to

reconsider its October 2011 remand. Nor has USCIS itself taken any further action on

Naik’s I-130 Petition. Presumably waiting for some action by the BIA in response to its

                                             5
January 2013 submission, USCIS has not, to our knowledge, officially denied Naik’s I-

130 petition since the Board’s October 2011 remand.

       On June 29, 2012, Naik filed the instant suit in the United States District Court for

the District of New Jersey, seeking, inter alia, a judgment declaring the Walsh Act

inapplicable to the I-130 Petition and ordering USCIS to approve the I-130 Petition.

Naik’s lawsuit asserted essentially the same claims made in his initial appeal to the BIA.

On May 22, 2013, the District Court granted Defendants’ motion to dismiss this lawsuit

for lack of jurisdiction on the ground that there was no final agency action. Analyzing

the matter under the framework set forth in Ocean Cnty. Landfill Corp. v. U.S. E.P.A.

Region II, 631 F.3d 652, 655 (3d Cir. 2011), the District Court stated:

              Defendants’ denial of the I-130 application does not represent
              final agency action because it does not mark the
              consummation of the agency’s decisionmaking process.
              Instead, Plaintiff appealed Defendants’ denial of the I-130
              petition to the BIA, which remanded the petition to
              Defendants “for further development of the record.”
              Defendants issued a NOID letter, and Plaintiff recently
              responded to it. Thus, Defendants’ decisionmaking process
              continues as they reconcile Plaintiff’s response to the NOID
              letter with his I-130 petition and the applicable law. Second,
              rights and obligations concerning Plaintiff’s I-130 petition
              have not been determined because Defendants may still grant
              or deny Plaintiff’s petition; they have not reached a final
              conclusion on it. As a result, Defendants’ denial of Plaintiff’s
              I-130 petition is not the agency’s definitive position on the
              question or has the status of law with the expectation of
              immediate compliance. Because Defendants’ denial was
              appealed, it did not have an immediate impact on Plaintiff’s
              day-to-day operations. Moreover, the petition does not
              involve pure questions of law and requires further factual
              development because the BIA remanded the case to
              Defendants with eight questions that had to be examined.
              Lastly, this Court’s immediate review of Plaintiff’s I-130

                                             6
              petition would not speed its enforcement. Therefore, this
              Court does not have subject matter jurisdiction because there
              is no final agency action.

Naik v. USCIS, No. 12-cv-4057 (JAP) (D.N.J. May 22, 2013 (slip op.)). The District

Court also noted that there is no “futility” exception to the requirement of final agency

action. Finally, the Court held that the lack of final agency action rendered the case

unripe for judicial review. Id.

       Naik brought this timely appeal.2 In it, he argues that there was final agency

action on the statute’s retroactivity because the Department of Homeland Security has

consistently taken the position that the Walsh Act applies even where the underlying

conviction predates the statute’s enactment. He argues that the BIA endorsed that

position by remanding Naik’s petition to USCIS on legal issues other than retroactivity.

He further argues that all of the remaining claims he brought in the District Court involve

purely legal issues that are ripe for review.

       After reviewing the record before us, we conclude that Naik’s suit was correctly

dismissed for lack of jurisdiction. The APA provides for judicial review of “final agency

action,” see 5 U.S.C. §§ 702 & 704. As noted above, the BIA has yet to respond to or act

upon Defendants’ January 2013 submission requesting that it reconsider its October 2011

remand. In addition, and perhaps because the remand remains pending, Defendants have

not taken any action to officially deny Naik’s I-130 Petition since the remand.



2
 We exercise jurisdiction in reviewing the final order of the District Court pursuant to 28
U.S.C. § 1291. The District Court granted the motion to dismiss under Rule 12(b)(1) and
(6), and thus our review is plenary. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120
(3d Cir. 2012); Marran v. Marran, 376 F.3d 143, 149 (3d Cir. 2004).
                                                7
Accordingly, for the reasons the District Court so clearly explained, there is no final

agency action, and the District Court lacked subject matter jurisdiction.

       We acknowledge that at least three of the issues raised in Naik’s appeal and/or in

the BIA’s October 2011 remand appear to now be conclusively resolved by a trio of

precedential opinions regarding the Walsh Act issued subsequent to briefing in this

appeal. In Matter of Aceijas-Quiroz, 26 I & N Dec. 294 (BIA May 20, 2014), the BIA

held that it lacked jurisdiction to review a “no risk” determination made by USCIS under

the Walsh Act, and also lacked jurisdiction to review any legal issues surrounding that

determination, including the appropriate burden of proof. In Matter of Jackson, 26 I & N

Dec. 314 (BIA May 20, 2014), the BIA held that “[b]ecause the Adam Walsh Act

addresses the potential for future harm posed by . . . sexual predators to the beneficiaries

of family-based visa petitions, . . . the application of its provisions to convictions that

occurred before its enactment does not have an impermissible retroactive effect.” Id. at

318. Finally, in Matter of Introcaso, 26 I & N Dec. 304 (BIA May 20, 2014), the BIA

held that the petitioner has the burden of demonstrating that he has not been convicted of

a “specified offense,” and that such determination should be made using a “circumstance-

specific,” rather than categorical or modified categorical approach.

       Both Naik and Appellees urge us to hold that, in light of these decisions resolving

some of the issues Naik raised in his appeal to the BIA, there exists final agency action

that is ripe for review.3 We note that the agency has not issued any ruling that cites or


3
 See Appellant’s 28(j) Letter, dated May 21, 2014; Appellees’ 28(j) Letter, dated May
23, 2014.
                                               8
relies on these decisions. Moreover, the BIA’s decisions in these cases do not dispose of

all of the issues raised in Naik’s appeal. For example, none of these decisions address

Naik’s constitutional claims or his claims under the APA.4 Accordingly, it cannot be the

case that these decisions render Naik’s BIA appeal moot or the agency’s December 2010

denial of Naik’s petition final. But even if the BIA’s subsequent decisions did

conclusively resolve all of the issues raised in Naik’s appeal, such resolution would not

confer subject matter jurisdiction on the District Court. Absent an action by USCIS

officially denying Naik’s I-130 Petition, the fact remains that there has been no final

agency action for the District Court to review.

       Accordingly, we will affirm.




4
 USCIS has taken the position that the BIA does not have jurisdiction over Naik’s
constitutional claims or his claims under the APA. (See A129.) However, as USCIS has
pointed out, “it is for the BIA to determine whether it has jurisdiction and, if so, whether
Naik’s petition should be granted.” (A147.)
                                             9
