“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In October 2019, Trump Eleventh Circuit judge Britt Grant cast the deciding vote affirming the denial of a U.S. citizen’s legal green card sponsorship application for his wife, ignoring Immigration Services precedent decisions outlining the standard of proof. The case is Bourdon v. USDHS.

Douglas Bourdon is a U.S. citizen who wanted to sponsor his wife, a Vietnamese citizen, to come to the U.S. as a legal permanent resident. In 2003, Bourdon was convicted of possessing child pornography. Because of his conviction and as part of the application process for sponsorship, Bourdon had to demonstrate that he did not pose a risk to his wife, a foreign relative. As proof, Bourdon submitted reports by psychological and social worker/forensic examiners, an affidavit from his wife and evidence of trips he took to visit her. Bourdon’s sponsorship petition was denied and he sued, seeking recourse from the Eleventh Circuit.

The U. S. Citizenship and Immigration Services (USCIS) statute addressing the “no risk” requirement is silent on the standard of proof needed to show that someone would be a risk to the prospective legal permanent resident. Bourdon argued that the court wrongly used a “beyond a reasonable doubt” standard to deny the sponsorship petition rather than a “preponderance of the evidence” standard.

The majority, including Judge Britt Grant, concluded that the Court had no jurisdiction to review the sponsorship process or the outcome of Immigration Services’ decision.

Judge Adalberto Jordan dissented, explaining that 30 years ago, an en banc panel of the Eleventh Circuit ruled that the Executive Branch’s discretionary authority may be subject to judicial scrutiny when its discretion is arbitrarily withheld. He went on to say that in 2010 the Board of Immigration Appeals even published a decision making preponderance of the evidence the standard of proof when a statute is silent on that issue. USCIS is obligated to follow its own rules.