                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 16 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALMA GARCIA SOLORIO,                             No.   16-16300

              Plaintiff-Appellant,               D.C. No.
                                                 1:15-cv-01123-DAD-EPG
 v.

JEFFERSON B. SESSIONS III, Attorney              MEMORANDUM*
General; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Dale A. Drozd, District Judge, Presiding

                      Argued and Submitted February 5, 2018
                            San Francisco, California

Before: D.W. NELSON, TASHIMA, and CHRISTEN, Circuit Judges.

      Plaintiff Alma Garcia Solorio brought an action challenging United States

Citizenship and Immigration Services’ (“USCIS”) rejection of her father Rafael

Garcia-Valdez’s petition for legal permanent residence status (“LPR”) for Solorio.

USCIS revoked its approval of the petition because it determined that the Adam


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Walsh Act (“AWA”) applied to Garcia-Valdez. Solorio now appeals the district

court’s dismissal of her statutory and constitutional claims under Federal Rule of

Civil Procedure 12(b)(6). We affirm.

      First, the district court correctly held that federal courts lack subject matter

jurisdiction over Solorio’s Administrative Procedure Act (“APA”) claims. The

Immigration and Nationality Act (“INA”) 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);

Gebhardt v. Nielsen, 879 F.3d 980, 984 (9th Cir. 2018). Because Solorio’s APA

claims challenge “how the Secretary exercises–or has exercised–his or her ‘sole

and unreviewable discretion’ to adjudicate I-130 petitions[,]” we have no

jurisdiction to review them.1 Id. at 987.




      1
         While we sometimes have jurisdiction over revoked visa petitions under
ANA Int’l v. Way, 393 F.3d 886 (9th Cir. 2004) and Herrera v. USCIS, 571 F.3d
881 (9th Cir. 2009), those cases did not consider the Adam Walsh Act. As here,
Gebhardt also involved a revocation of an earlier approved petition, rather than an
initial denial. See Gebhardt, 879 F.3d at 984. Gebhardt makes no mention of the
distinction between initial denial of visa petitions versus revocation of previously
approved visa petitions. As discussed above, the panel in Gehbardt nonetheless
concluded that there was no jurisdiction to review the “no risk” determination even
under circumstances where approval of the petition was revoked. Because
Gebhardt is apposite on these facts, we conclude the same.
                                            2
      Second, Solorio appeals the district court’s finding that the AWA does not

violate equal protection. While we cannot review the Secretary’s discretion, we

may review “colorable” constitutional claims. See id. at 988 (citing Bremer v

Johnson, 834 F.3d 925, 932 (8th Cir. 2016)). A “colorable” claim is one that has

“some possible validity.” Arteaga-De Alvarez v. Holder, 704 F.3d 730, 736 (9th

Cir. 2012).

      The AWA distinguishes between citizen or LPR petitioners who have

specified offenses and citizen or LPR petitioners who do not.

See § 1154(a)(1)(A)(viii)(I). The rational basis standard of review applies to

Solorio’s equal protection claim because it concerns “a classification neither

involving fundamental rights nor proceeding along suspect lines,” such as race or

gender. Heller v. Doe, 509 U.S. 312, 319 (1993). “This lowest level of review

does not look to the actual purposes of the law. Instead, it considers whether there

is some conceivable rational purpose that Congress could have had in mind when it

enacted the law.” See SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471,

481 (9th Cir. 2014). As the district court pointed out, “Congress could have

determined that because convicted sex offenders are more likely to pose a risk of

harm to the public generally, including family members, those individuals should

be required to make an affirmative showing that they no longer pose such a risk to


                                          3
intended beneficiaries before regaining the right to petition for a family-sponsored

visa.” The initial revocation of a visa petition and opportunity to demonstrate

rehabilitation are not “so attenuated as to render the [classification] arbitrary or

irrational” to this purpose. Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (citations

omitted). Thus, the AWA passes rational basis review.

      Solorio also argues that the AWA, as applied to her, violates equal

protection. For the same reasons above, it was not irrational for USCIS to

determine that Garcia-Valdez failed to show that he no longer posed a risk to

Solorio given that his application lacked a risk assessment and medical notes,

among other deficiencies. Thus, Solorio’s as-applied challenge passes rational

basis review.

      AFFIRMED.




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