Barry Reynolds; Fu Yun Xu Reynolds v. JEH JOHNSON, Secretary of Department of Homeland Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARRY REYNOLDS; FU YUN XU
REYNOLDS,
Plaintiffs - Appellants,
v.
JEH JOHNSON, Secretary of
Department of Homeland Security;
LORETTA E. LYNCH, Attorney
General; CHRISTINA POULOS,
Director, USCIS, Laguna Niguel, CA,
Defendants - Appellees.
No. 12-55675
D.C. No. 8:11-cv-00936-CJC-
RNB
MEMORANDUM*
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
FILED
DEC 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 2 --

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.

-- 2 of 2 --