Ryan Castaneira v. Kristi Noem, Secretary for the Department of Homeland Security, in Her Official Capacity

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2025 Decided May 30, 2025
No. 23-5204
R YAN C ASTANEIRA ,
APPELLANT
v.
KRISTI NOEM, S ECRETARY FOR THE DEPARTMENT OF
HOMELAND S ECURITY, IN HER OFFICIAL CAPACITY , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-01485)
Ryan Castaneira, pro se, argued the cause and filed the
briefs for appellant.
Cameron Beach, Student Counsel, appointed by the court,
argued the cause as amicus curiae in support of appellant. With
her on the briefs were J. Scott Ballenger, Lori Alvino McGill,
and Catherine E. Stetson, appointed by the court, and Lauren
Emmerich and Benjamin Leonard, Student Counsel.
Jordan K. Hummel, Trial Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief

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was Brett A. Shumate, Acting Assistant Attorney General, Civil
Division.
Before: S RINIVASAN, Chief Judge, W ILKINS , Circuit
Judge, and EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS .
EDWARDS , Senior Circuit Judge: Under the Immigration
and Nationality Act, any United States citizen may file a “Form
I-130” petition with the United States Citizenship and
Immigration Services (“USCIS”) to request that the Attorney
General recognize a foreign national family member, like a
spouse or child, as an “immediate relative.” 8 U.S.C.
§ 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1) (2025). If the
petition is truthful, the Attorney General “shall . . . approve” it,
and the family member may immigrate to the United States and
obtain lawful permanent resident status. Id. § 1154(b).
However, the Adam Walsh Act (“AWA” or “Act”) excludes
from this process citizens with certain prior sex offense
convictions. The Act states that, with respect to any Form I-130
petitioner who has been convicted of a “specified offense
against a minor,” the Secretary of Homeland Security has “sole
and unreviewable discretion” to determine whether “the citizen
poses no risk to the alien with respect to whom a petition . . . is
filed.” Id. § 1154(a)(1)(A)(viii)(I). If it is determined that the
petitioner poses “no risk,” then the Form I-130 will be granted;
otherwise, the petition will be denied. Id.
In 2019, Ryan Castaneira, the Appellant in this case, filed
a Form I-130 petition for his spouse, a Mexican national.
USCIS sent Appellant a Notice of Intent to Deny because he
had been convicted of crimes in Georgia that appeared to
qualify as “special offenses against a minor” under the Adam

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Walsh Act. USCIS told Castaneira that, to succeed with his
Form I-130 petition, he would need to prove “beyond any
reasonable doubt” that he posed “no risk” to his wife. In his
response to USCIS, Appellant claimed that the agency could
not deny his petition on the grounds asserted because his prior
convictions involved an undercover officer, not a minor, and
thus could not have constituted an offense “against a minor”
under the statute.
With USCIS’s final decision still pending, Appellant filed
a pro se complaint in the District Court, seeking injunctive and
declaratory relief, challenging the agency’s use of the beyond-
any-reasonable-doubt standard for adjudicating his Form I-130
petition, and requesting a judgment declaring the Adam Walsh
Act inapplicable to his convictions. After USCIS issued its
final decision, Appellant filed an amended complaint with the
District Court.
Appellant’s amended complaint advanced the following
principal contentions: (1) in applying a beyond-any-
reasonable-doubt standard, USCIS failed to follow its own
binding precedent; (2) his prior convictions do not qualify as
“specified offense[s] against a minor” under the Adam Walsh
Act; and (3) USCIS violated the Administrative Procedure Act
(“APA”) in arbitrarily and capriciously refusing to adhere to its
own precedent. Appellant claimed that the agency’s prior
decision in Matter of Chawathe, 25 I. & N. Dec. 369 (AAO
2010), is controlling, having imposed a “preponderance of the
evidence” standard “[e]xcept where a different standard is
specified by law.” Id. at 375.
The District Court rejected Appellant’s contentions. It held
that the Act’s definition of offenses against a minor covers the
conduct underlying Appellant’s prior convictions, because it
“by its nature” constituted an “offense against a minor.”

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Castaneira v. Mayorkas, 682 F. Supp. 3d 19, 30 (D.D.C. 2023)
(quoting 34 U.S.C. § 20911(7)(I)); see also 8 U.S.C.
§ 1154(a)(1)(A)(viii)(I). Regarding the applicable evidentiary
standard, the District Court ruled that it had no jurisdiction to
review the counts involving that issue. Because the Act places
the “no risk” determination within USCIS’s “sole and
unreviewable” discretion, the court concluded that the standard
of proof USCIS applies in making that determination is beyond
the reach of judicial review. Castaneira, 682 F. Supp. 3d at 25-
26 (quoting 8 U.S.C. § 1154(a)(1)(A)(viii)(I)).
We affirm the District Court’s ruling in part. Appellant’s
prior convictions are covered by the applicable statutory
definition of “specified offense against a minor” and his I-130
petition thus fell within the Act’s scope. But, while USCIS has
unreviewable discretion in making the “no risk” determination,
the agency does not dispute that it has the authority to cabin
this grant of discretion by adopting an evidentiary standard less
stringent than beyond a reasonable doubt to govern the
processing of Form I-130 petitions. If USCIS chooses to tie its
own hands through binding agency precedent, and then departs
from the standard it has adopted, such departure would be
reviewable under the APA.
Because neither the District Court nor the agency has
addressed whether Chawathe or any other agency decision
purports to establish a controlling standard for adjudicating
Form I-130 petitions under the Adam Walsh Act, and whether
that standard was in fact violated by USCIS in adopting the
beyond-any-reasonable-doubt standard in the Notice it sent to
Appellant, we vacate the District Court’s jurisdictional ruling
and remand the case for further proceedings.

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I. B ACKGROUND
A. The Adam Walsh Act
As outlined above, under the Immigration and
Naturalization Act (“INA”), if a U.S. citizen wishes to obtain
permanent residence for an immediate alien relative, he or she
can file a Form I-130 petition with USCIS. 8 U.S.C.
§ 1154(a)(1)(A)(i); 6 U.S.C. § 271(b)(1) (transferring the
adjudication of immigrant visa petitions to the Bureau of
Citizenship and Immigration Services, later known as USCIS).
The petitioner bears the burden of proving the beneficiary’s
eligibility. 8 U.S.C. § 1361.
In 2006, Congress enacted the Adam Walsh Act to, inter
alia, “protect children from sexual exploitation” and “promote
Internet safety” for children. Pub. L. No. 109-248, 120 Stat.
587, 587 (2006). The AWA, as relevant here, amended the INA
to prevent any U.S. citizen from obtaining permanent resident
status for an alien relative if the citizen petitioner “has been
convicted of a specified offense against a minor.” 8 U.S.C.
§ 1154(a)(1)(A)(viii)(I). The Act defines “specified offense
against a minor” as “an offense against a minor that involves”
a specific list of nine offense categories, including, inter alia,
“[s]olicitation to engage in sexual conduct”; “[c]riminal sexual
conduct involving a minor, or the use of the Internet to facilitate
or attempt such conduct”; and, as a catchall provision, “[a]ny
conduct that by its nature is a sex offense against a minor.” Id.
§ 1154(a)(1)(A)(viii)(II) (cross-referencing 34 U.S.C.
§ 20911(7)).
If the U.S. citizen petitioner is found to have been convicted
of any of the enumerated categories of offenses, he is then
foreclosed from petitioning for immigration benefits “unless
the Secretary of Homeland Security, in the Secretary’s sole and

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unreviewable discretion, determines that the citizen poses no
risk” to the alien beneficiary. Id. § 1154(a)(1)(A)(viii)(I). This
no-risk determination has since been transferred to USCIS. See
6 U.S.C. § 271(b)(1); 8 C.F.R. § 2.1 (2024).
In leaving for the agency to determine whether the
petitioner poses “no risk” to the alien beneficiary, the AWA
does not specify how that determination is to be made,
including the applicable evidentiary standard pursuant to which
the petitioner must demonstrate that he poses no such risk. In
2007, the agency instructed field officers in an internal
interoffice memorandum that, to “avoid denial” of an I-130
petition under the statute, the petitioner must “submit evidence
of rehabilitation . . . that clearly demonstrates, beyond any
reasonable doubt, that he or she poses no risk to the safety and
well-being” of the beneficiary, including any “alien derivate
beneficiary” – i.e., alien children of the spouse in an I-130
petition. Michael Aytes, Interoffice Memorandum at 5 (Feb. 8,
2007), Joint Appendix (“J.A.”) 43 (emphasis added).
However, a different standard of proof has been adopted by
USCIS in a precedential and arguably binding decision. Under
Department of Homeland Security regulations, when the
Attorney General so approves, the Secretary of Homeland
Security – and, by extension, USCIS – “may file with the
Attorney General decisions relating to the administration of the
immigration laws of the United States for publication as
precedent in future proceedings.” 8 C.F.R. § 1003.1(i) (2024).
In Matter of Chawathe, the agency held that “[e]xcept where a
different standard is specified by law, a petitioner or applicant
in administrative immigration proceedings must prove by a
preponderance of evidence that he or she is eligible for the
benefit sought.” 25 I. & N. Dec. 369, 375 (AAO 2010) (citing
to a string of administrative decisions applying the same
standard in a variety of immigration contexts). In 2010, the

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Department of Homeland Security made this decision
precedential with the goal of “guiding USCIS officers in their
administration of the immigration laws.” Chawathe, 25 I. & N.
Dec. at 369 n.1. Notably, Chawathe, which was originally
decided in 2006, pertained to an unrelated provision of the INA
regarding the definition of publicly held corporations. But in
designating Chawathe as precedent, USCIS stated that its
evidentiary standard should control “[i]n most administrative
immigration proceedings.” Id. at 369.
B. Facts and Procedural History
Appellant Ryan Castaneira is a U.S. citizen seeking
permanent residence for his spouse, a Mexican national. He
originally filed a Form I-130 petition in August 2019. In March
2022, USCIS sent Appellant a Notice of Intent to Deny
(“Notice”) his petition, offering him “the opportunity to submit
documentary evidence to overcome the grounds for the
intended denial” of his petition. USCIS, Notice of Intent to
Deny at 1 (March 8, 2022), J.A. 31.
In this Notice, USCIS explained that its records indicated
that Appellant was previously convicted of offenses covered by
the Adam Walsh Act: he had previously been convicted of
criminal attempt to commit child molestation, criminal attempt
to entice a child for indecent purposes, computer pornography
and child exploitation, and obscene Internet contact. See id. 31-
32; Castaneira v. State, 740 S.E.2d 400, 408 (Ga. App. Ct.
2013); Georgia Computer or Electronic Pornography and Child
Exploitation Prevention Act, O.C.G.A. § 16-12-100.2(d)(1),
(e)(1) (West 2024). In 2009, Appellant was convicted in
Georgia state court of criminal attempt to commit these
offenses when he engaged in online conversation on an adult-
only website with an individual whom he believed to be 15
years old, but who was in fact an adult undercover police

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officer. Castaneira, 740 S.E.2d at 402-03; see also O.C.G.A.
§ 16-4-1 (“A person commits the offense of criminal attempt
when, with intent to commit a specific crime, he performs any
act which constitutes a substantial step toward the commission
of that crime.”). For this conduct, Appellant was sentenced to
10 years of confinement and probation, and was required to
register as a sex offender.
Given these past offenses, USCIS informed Appellant that
he could still qualify for an I-130 benefit if he demonstrated by
a preponderance of the evidence that he had not been convicted
of a “specified offense against a minor” under the AWA. 8
U.S.C. § 1154(a)(1)(A)(viii)(I). And, were the AWA to apply,
USCIS told Appellant that he must “prove beyond any
reasonable doubt” that he “pose[d] no risk of harm to the
beneficiary” of his petition – his spouse, who at the time of this
Notice was 35 years old. Notice of Intent to Deny at 4, J.A. 34
(quoting id.). To overcome this burden, Appellant could
provide evidence of having completed rehabilitation programs,
certified evaluations by qualified doctors, evidence of
community service, etc.
Before submitting any of the evidence listed above,
Appellant filed a pro se suit in federal district court, contesting
the beyond-any-reasonable-doubt evidentiary standard as
arbitrary, capricious and otherwise contrary to law, 5 U.S.C.
§ 706(2)(A), and seeking a judgment declaring that the AWA
did not apply to his prior convictions because no actual minor
was involved. A few days later, Appellant then submitted
additional evidence in response to the Notice of Intent to Deny.
USCIS then moved to dismiss the suit in federal court and, in
November 2022, formally denied Appellant’s I-130 petition. In
denying the petition, USCIS explained that the evidence
proffered, including letters by physicians, failed to clear the
beyond-any-reasonable-doubt bar because they indicated that

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Appellant still had “recidivist risk factors” that had to be
“monitor[ed]” so as to avoid “lead[ing] back into his offense
cycle.” Form I-130 Denial Decision at 4-5 (Nov. 10, 2022),
J.A. 70-71.
After the denial was issued, Appellant then amended his
complaint to challenge the final denial on the ground that the
beyond-any-reasonable-doubt standard was arbitrary and
capricious because it contradicts binding agency precedent set
out in Chawathe, and because USCIS did not articulate why the
Chawathe standard did not apply here. Additionally, Appellant
reiterated that his prior Georgia state convictions did not fall
within the AWA, 8 U.S.C. § 1154(a)(1)(A)(viii)(I).
The District Court rejected both arguments. Castaneira,
682 F. Supp. 3d at 21. The court concluded that Appellant’s
prior state convictions fell within the statutory definition of
“specified offense against a minor,” 34 U.S.C. § 20911(7), and
granted the Government’s motion to dismiss for failure to state
a claim as to count III of the complaint. Id. at 29-31. The court
also dismissed the remaining counts – I, II, IV and V – for lack
of jurisdiction, finding that the appropriate evidentiary standard
USCIS adopted for its “no risk” determination was not
judicially reviewable under 8 U.S.C. § 1154(a)(1)(A)(viii)(I)
and 8 U.S.C. § 1252(a)(2)(B)(ii), which bars judicial review
over “decision[s]” that are “specified . . . to be in the discretion”
of the Secretary of Homeland Security. Id. at 25-28. Because
the statute’s grant of discretion shields the “no risk”
determination from review, the court explained, the applicable
evidentiary standard underlying the ultimate determination is
also within USCIS’s discretion and therefore unreviewable.
Moreover, such broad grant of statutory discretion meant that
Appellant could not challenge the standard of proof even if that
standard had violated binding agency precedent.

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Appellant then filed this pro se appeal challenging the
District Court’s dismissal of his complaint for failure to state a
claim as to count III, and for lack of jurisdiction as to counts I,
II, IV and V. This court appointed an amicus curiae to present
arguments on behalf of Appellant.1
II. ANALYSIS
A. Standard of Review
We review dismissals for failure to state a claim and for
lack of jurisdiction de novo. Zukerman v. U.S. Postal Serv., 961
F.3d 431, 441 (D.C. Cir. 2020).
B. Appellant’s Prior Convictions Fall Within the Scope
of the Adam Walsh Act
The AWA applies only to petitioners who were convicted
of “specified offense[s] against a minor.” 8 U.S.C.
§ 1154(a)(1)(A)(viii)(I). In defining such offenses, the Act
cross-references another statute, the Sex Offender Registration
and Notification Act (“SORNA”), 34 U.S.C. § 20911. See 8
U.S.C. § 1154(a)(1)(A)(viii)(II). SORNA, in turn, provides that
the term “specified offense against a minor” is defined as “an
offense against a minor that involves any of the following”:
(A) An offense (unless committed by a parent or
guardian) involving kidnapping.
1 The court expresses its gratitude to Cameron Beach, who presented
oral argument on behalf of Appellant, and to her colleagues at the
University of Virginia School of Law Appellate Litigation Clinic,
who appeared with her on the briefs, for their excellent service to the
court.

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(B) An offense (unless committed by a parent or
guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section
1801 of title 18.
(G) Possession, production, or distribution of
child pornography.
(H) Criminal sexual conduct involving a minor,
or the use of the Internet to facilitate or attempt such
conduct.
(I) Any conduct that by its nature is a sex
offense against a minor.
34 U.S.C. § 20911(7).
The Government relies on subsection (I), arguing that
Appellant’s conduct underlying his state convictions “by its
nature” constituted a sex offense against a minor. Appellant
contends that this subsection does not encompass his prior
convictions, because they were premised on criminal attempt,
rather than the actual committing of the offenses charged.
Because these state offenses do not require as an element the
involvement of an actual minor, Appellant argues, they cannot
trigger the AWA. We disagree.
We begin with the text of § 20911(7)(I), see Esquivel-
Quintana v. Sessions, 581 U.S. 385, 391 (2017), which
references “[a]ny conduct that by its nature is a sex offense
against a minor.” 34 U.S.C. § 20911(7). First, Congress’s
choice to employ the phrase “any conduct” indicates its intent
to sweep broadly. “The Supreme Court has ‘repeatedly
explained’ that ‘the word “any” has an expansive meaning.’”
Lissack v. Comm’r of Internal Revenue, 125 F.4th 245, 254

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(D.C. Cir. 2025) (quoting Patel v. Garland, 596 U.S. 328, 338
(2022)). Other circuits to consider this provision have similarly
concluded that Congress “purposely defined its terms broadly
to ‘cast a wide net to ensnare as many offenses against children
as possible.’” United States v. Hill, 820 F.3d 1003, 1005-06
(8th Cir. 2016) (quoting United States v. Dodge, 597 F.3d
1347, 1355 (11th Cir. 2010)).
Second, as other circuits have also observed, § 20911(7)(I)
is a “catchall,” residual clause, and thus must be broad enough
to include all of the preceding subsections. See United States v.
Mi Kyung Byun, 539 F.3d 982, 988 (9th Cir. 2008); Dodge, 597
F.3d at 1356. Directly preceding subsection (I) lies subsection
(H), which expressly defines as a “specified offense against a
minor” “[c]riminal sexual conduct involving a minor, or the use
of the Internet to facilitate or attempt such conduct.” 34 U.S.C.
§ 20911(7)(H) (emphasis added). Although the Government
does not rely on that subsection, it necessarily informs the
meaning of subsection (I): Generally, when Congress “defines
a broad, final category” preceded by an enumerated list of
categories, that “catchall clause[]” is “to be read as bringing
within a statute categories similar in type to those specifically
enumerated.” Paroline v. United States, 572 U.S. 434, 447
(2014) (cleaned up).
An attempt to engage in conduct involving a minor, which
is included in subsection (H), does not require an actual minor
victim, as our courts have long held that a mistaken belief by
the defendant is not a defense to criminal attempt. See United
States v. Lieu, 963 F.3d 122, 126-27 (D.C. Cir. 2020). Because
subsection (I) naturally subsumes the attempted crimes
outlined in subsection (H), Appellant’s convictions for
criminal attempt under the Georgia statute fall within the scope
of the AWA. Moreover, this interpretation is consistent with
SORNA’s definition of “sex offense,” which expressly

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includes attempts. 34 U.S.C. § 20911(5)(A)(v); see also id.
§ 20911(8) (defining “convicted” with respect to such offenses
to include juveniles convicted of “attempt or conspiracy”).
Appellant’s contention that the AWA’s definition of “sex
offense against a minor” requires an “actual minor” would thus
contradict the text’s broad definition of predicate offenses. It
would also run afoul of the statutory purpose, which under
§ 20911(7) sought to “[e]xpan[d]” the “definition of ‘specified
offense against a minor’ to include all offenses by child
predators.”
Finally, we need not opine on whether the District Court
erred in applying a “circumstance-specific” approach in
interpreting § 20911(7). See Castaneira, 682 F. Supp. 3d at
29-30. Appellant contends that the District Court should have
looked categorically to Appellant’s prior offenses. Under this
categorical approach urged by Appellant, a state conviction
would be a “sex offense against a minor” under the AWA “only
if the least of the acts criminalized by the state statute falls
within the generic federal definition of” sex offense against a
minor. Esquivel-Quintana, 581 U.S. at 389-90. The District
Court rejected this argument: as § 20911(7) expressly
references “conduct,” rather than specific elements of an
offense, the court looked to the specific circumstances of
Appellant’s prior convictions in determining whether his
conduct fell within the statute. Castaneira, 682 F. Supp. 3d at
30; see also Nijhawan v. Holder, 557 U.S. 29, 38-39 (2009).
But applying either approach here would yield the same
result, because the central inquiry would remain what
constitutes an “offense against a minor” under § 20911(7)(I). It
is undisputed that Appellant’s state convictions of criminal
attempt did not require a minor victim as an element, and that
in the specific conduct underlying his conviction, he did not
engage with an actual minor victim. Thus, if the AWA requires

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the actual involvement of a minor – either as an element of the
predicate offense, or in the specific circumstances underlying
the conviction – then Appellant’s prior convictions do not fall
within the statute. Because we conclude that the statute does
not, we need not determine which interpretative approach
applies in this case. Appellant’s argument fails under both. See
United States v. Caso, 723 F.3d 215, 221 (D.C. Cir. 2013);
United States v. Schofield, 802 F.3d 722, 729 (5th Cir. 2015)
(“[W]e need not decide which approach applies here because
Schofield’s offense is a sex offense under both the non-
categorical and categorical approaches.”).
Because Appellant was previously convicted of attempted
offenses which, by their nature, constituted sex offenses against
a minor, we thus affirm the District Court’s dismissal of his
claim that the AWA does not encompass his past state
convictions.
C. The District Court Erred in Declining to Review
Appellant’s Procedural Challenge to the Standard of
Proof
Having correctly determined that Appellant’s conduct fell
within the scope of the AWA, USCIS next turned to whether
he could overcome the Act’s bar to immigrant relative
petitions. It concluded that he did not, having failed to
demonstrate “beyond any reasonable doubt” that he posed no
risk to the petition beneficiary. 8 U.S.C.
§ 1154(a)(1)(A)(viii)(I). Appellant contends that USCIS
applied the wrong evidentiary standard, and that, under binding
agency precedent, the correct standard is one of the
preponderance of the evidence. See Chawathe, 25 I. & N. Dec.
at 369.

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The District Court dismissed this claim for want of
jurisdiction, holding that questions involving the no-risk
determination fall within the “sole and unreviewable
discretion” of USCIS. Castaneira, 682 F. Supp. 3d at 26-27;
see also 8 U.S.C. § 1154(a)(1)(A)(viii)(I). Importantly, the
court declined to ascertain whether the agency had indeed
departed from Chawathe (or any other agency precedent) in
applying the stringent beyond-any-reasonable-doubt standard
of proof. In the view of the District Court, “even if USCIS
disregarded its own binding precedent and thereby acted
unlawfully, it does not follow that this Court has the power to
afford Castaneira any sort of remedy—at least not where
Congress has deprived the courts of such power by statute.”
Castaneira, 682 F. Supp. 3d at 27. The court thus found that
Appellant’s APA claims were not available where a statute
imposes a reviewability bar. Id. We agree with Appellant that
the District Court erred in its reasoning. If there is binding
agency precedent applicable here, challenges to the agency’s
departure from its own precedent are judicially reviewable.
At the outset, we note that there is no dispute here that
USCIS’s ultimate no-risk determinations are beyond the reach
of judicial review. In a separate statute, Congress has explicitly
precluded judicial review of USCIS actions that are committed
to agency discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii); Bouarfa
v. Mayorkas, 604 U.S. 6, 11 (2024). Indeed, Appellant does not
contest that no-risk determinations under the Adam Walsh Act
involve discretionary agency actions that are barred from
judicial review. That is not the issue here.
Rather, Appellant reasonably argues that if the Secretary
exercised her discretion to bind herself to a preponderance
standard in no-risk determinations under this statute, the fact
that she has the “sole and unreviewable” discretion to make that
determination does not preclude judicial review of whether she

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properly disregarded applicable agency precedent and spurned
the preponderance standard when she denied his Form I-130
petition. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). In other words, the
issue before us is whether 8 U.S.C. § 1154(a)(1)(A)(viii)(I), in
granting USCIS “sole and unreviewable discretion” to
“determine[] that the citizen poses no risk,” also affords the
agency discretion to depart from its own binding regulations or
precedents in making this determination. We hold that it does
not. See Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir.
2008) (finding jurisdiction over challenge to Board of
Immigration Appeals’ denial of application for cancelation of
removal despite jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)).
We address this question guided by a “strong presumption”
in favor of judicial review of administrative action, which can
only be overcome by “clear and convincing evidence of
congressional intent to preclude judicial review.” Guerrero-
Lasprilla v. Barr, 589 U.S. 221, 229 (2020) (internal quotation
marks and citation omitted); see also Kucana v. Holder, 558
U.S. 233, 251-52 (2010). The Supreme Court has moreover
“consistently applied the presumption of reviewability to
immigration statutes,” such as 8 U.S.C. § 1252(a)(2)(B)(ii).
Guerrero-Lasprilla, 589 U.S. at 229 (internal quotation marks
and citation omitted).
The Government does not dispute that Chawathe
constitutes binding agency precedent pursuant to the agency’s
own regulations. See Chawathe, 25 I. & N. Dec. 369; 8 C.F.R.
§ 1001.3(i). Appellant contends that because Chawathe
supplies the applicable evidentiary standard, USCIS’s
divergence from that standard was arbitrary and capricious.
The Government offers no intelligible answer. Rather, it
merely asserts in one brief sentence that “Chawathe does not
apply in the AWA context,” Defendants-Appellees’ Br. 21, but
it does not offer any support for this statement. Instead, it

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merely asserts that even if Chawathe applies, Appellant’s
challenge would not be reviewable. Id. at 21 & n.8. We
disagree. See Aburto-Rocha, 535 F.3d at 502-03 (holding that
actions by an agency may still be within the purview of judicial
review even where they underlie determinations that are
ultimately discretionary).
The Government’s position goes too far. While Congress
has granted USCIS unreviewable discretion to determine
whether a citizen petitioner poses no risk to the Form I-130
beneficiary, USCIS has not provided “clear and convincing
evidence of congressional intent to preclude judicial review”
over its decision to exert this discretion in a manner that
violates its own binding regulations and published precedents.
Guerrero-Lasprilla, 589 U.S. at 229. As the Supreme Court has
explained, Congress may shield from judicial review an
agency’s ultimate determination without precluding courts
from reviewing the “practice[s] or procedure[s] employed in
making” such individual determinations. McNary v. Haitian
Refugee Ctr., Inc., 498 U.S. 479, 492 (1991).
While USCIS’s final no-risk determinations are
unreviewable, “general collateral challenges” to the agency’s
practices and policies still fall within judicial purview. Id.; see
also Grace v. Barr, 965 F.3d 883, 893 (D.C. Cir. 2020) (finding
jurisdiction over “facial challenges to the written policies that
govern” individual determinations, as opposed to “direct
review of individual aliens’ . . . determinations”); Make The
Rd. N.Y. v. Wolf, 962 F.3d 612, 630 (D.C. Cir. 2020)
(interpreting 8 U.S.C. § 1225(b)(1)(A)(iii)(I), committing an
action to the Secretary of Homeland Security’s “sole and
unreviewable discretion,” as barring only “individualized
forms of discretionary relief,” rather than “generally applicable
rulemaking governing . . . procedures undertaken by the
Secretary”).

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The Government attempts to distinguish McNary and
circuit precedent by arguing that because the Act here utilizes
the verb-form “determines,” rather than the noun-form
“determination” as in the statute in McNary, the grant of
discretion here is broader and bars challenges to the procedural
standards USCIS applies in reaching its final determination.
See Bakran v. Sec’y, U.S. Dep’t of Homeland Sec., 894 F.3d
557, 563 (3d Cir. 2018); Bourdon v. U.S. Dep’t of Homeland
Sec., 940 F.3d 537, 542-43 (11th Cir. 2019). We are not
persuaded by such grammatical gymnastics. See Janus Cap.
Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 142 (2011)
(“Make followed by a noun with the indefinite article is often
nearly equivalent to the verb intransitive corresponding to that
noun.” (citation omitted)); see also Bourdon, 940 F.3d at 556
(Jordan, J., dissenting). Under McNary, the presumption of
judicial reviewability thus applies with full force in cases
involving facial challenges to standards USCIS applies in
making its no-risk determination under the AWA, including
evidentiary standards that allegedly contradict binding agency
precedent. 498 U.S. at 492.
The Government observes that some circuits have
interpreted the AWA’s reviewability bar to preclude challenges
to the applicable evidentiary standard. See Bakran, 894 F.3d at
563; Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018);
Privett v. Sec’y, Dep’t of Homeland Sec., 865 F.3d 375, 380-81
(6th Cir. 2017); Bourdon, 940 F.3d 537. However, only one
circuit has squarely addressed the question before us here:
whether the statute shields from judicial review challenges that
the agency has violated its own binding precedent in applying
the beyond-any-reasonable-doubt standard. See Bremer v.
Johnson, 834 F.3d 925, 930-31 (8th Cir. 2016). Unlike in cases
addressing whether the agency is free to set the standard of
proof it chooses, see Gebhardt, 879 F.3d at 987, the underlying

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question before us is whether the agency can arbitrarily depart
from the standard it chooses to set.
The Eighth Circuit found that Chawathe did not apply in
the AWA context, Bremer, 834 F.3d at 930-31, but the
Government does not meaningfully make this argument before
us here. Instead, the Government relies on Bremer to argue
generally that because the AWA affords USCIS broad
discretion, that statute itself supplies an alternate standard from
Chawathe. This circular argument assumes that because
Congress has authorized an agency to act with discretion, it can
exercise this discretion without heeding its own regulations,
procedures, and precedents. But the Government cites to no
authority – and neither does the court in Bremer – to support
this premise. Indeed, this is not how administrative law works.
Instead, “[i]t is a familiar rule of administrative law that an
agency must abide by its own regulations.” Fort Stewart Schs.
v. Fed. Lab. Rels. Auth., 495 U.S. 641, 654 (1990). This
fundamental principle remains true even for “gratuitous
procedural rules that limit otherwise discretionary actions.”
Steenholdt v. FAA, 314 F.3d 633, 639 (D.C. Cir. 2003).
Even where Congress has accorded an agency broad
discretion, if the agency itself chooses to bind itself to
published procedures, this choice means that it must then
“exercise its own discretion” in accordance with its own
“existing valid regulations” and binding precedents. United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268
(1954). Thus, if Chawathe applies here, the agency has cabined
its own discretion through its own precedent, and it must
exercise its discretion in the manner it itself sets out. See
Steenholdt, 314 F.3d at 639; see also Aburto-Rocha, 535 F.3d
at 503 (holding that 8 U.S.C. § 1252(a)(2)(B)(ii) did not bar
judicial review where “the choice by the [agency] to disregard
its own binding precedent—even when deciding an issue that

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is within its discretion—is not itself a discretionary decision
Congress has excluded from review”).
As in Aburto-Rocha, where the agency’s regulations
“themselves indicate that adherence to precedent is a non-
discretionary act,” whether the agency has adhered to its own
precedent is not a question barred by a statute that precludes
judicial review over discretionary determinations. Id. (citing 8
C.F.R. § 1003.1(g)). Here, the agency is said to have imposed
a specific standard of proof and made this standard non-
discretionary through binding precedent. See 8 C.F.R.
§ 1003.1(i). This standard thus cannot be a discretionary action
that falls within the judicial reviewability bar: if Chawathe
applies, the standard of proof is not within the agency’s
discretion at all. See also Tello v. Att’y Gen. of U.S., 544 F.
App’x 55, 58 (3d Cir. 2013) (finding jurisdiction where
petitioner challenged that “agency applied the incorrect legal
standard, in violation of its own authority” despite 8 U.S.C.
§ 1252(a)(2)(B)).
It is possible that Chawathe does not apply in the AWA
context and that, in making its preponderance-of-the-evidence
standard precedential, the Department did not mean to disturb
the beyond-any-reasonable doubt standard that may have
already been in place for no-risk determinations under the
AWA. But because the District Court did not address this
possibility, and because the Government does not make this
argument before us, we cannot conclude that the agency has
not violated its own binding precedent. Nothing in the Act
required the agency to adopt any particular standard. But if
there was a standard in place, then the agency was required to
follow it.
We therefore remand for the District Court to consider, in
the first instance, whether USCIS has indeed adopted a

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standard of proof that would bind it in this case, and whether it
has violated its own standard. If the District Court finds that
Chawathe is indeed binding here, then it must exercise its
judicial review over Appellant’s challenge to the standard of
proof.
III. CONCLUSION
For the foregoing reasons, we affirm the District Court’s
decision in part, vacate its jurisdictional holding as to counts I,
II, IV and V, and remand for further proceedings consistent
with this opinion.
So ordered.

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