Bremer v. Johnson

• Citation: 834 F.3d 925
• Decision Date: 25 August 2016
• Docket Number: No. 15–1163,15–1163
• Parties: Joel Bremer; Ma Susan Bremer, Plaintiffs–Appellants, v. Jeh Johnson, Secretary of the United States Department of Homeland Security; Leon Rodriguez, Director, National Benefits Center, United States Citizenship and Immigration Services; Robert M. Cowan, Director, National Benefits Center, United States Citizenship and Immigration Services; Loretta E. Lynch, Attorney General of the United States; Laura B. Zuchowski, Director, Vermont Service Center, United States Citizenship and Immigration Services, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

834 F.3d 925

Joel Bremer; Ma Susan Bremer, Plaintiffs–Appellants,

v.Jeh Johnson, Secretary of the United States Department of Homeland Security; Leon Rodriguez, Director, National Benefits Center, United States Citizenship and Immigration Services; Robert M. Cowan, Director, National Benefits Center, United States Citizenship and Immigration Services; Loretta E. Lynch, Attorney General of the United States; Laura B. Zuchowski, Director, Vermont Service Center, United States Citizenship and Immigration Services, Defendants–Appellees.

No. 15–1163

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2015

Filed: August 25, 2016

Matthew Lorn Hoppock, The Hoppock Law Firm, LLC, Overland Park, KS, argued, for appellants.

Sarah S. Wilson, Office of Immigration Litigation, Dist. Court Section, U.S. Dept. of Justice, Washington, D.C., argued (Benjamin C. Mizer, Principal Deputy Asst. Atty. Gen., Civ. Division, William C. Peachey, Director, Dist. Court Section, Stacey I. Young, Senior Litigation Counsel, on the brief), for appellees.

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act” or “AWA”), Pub. L. No. 109–248, 120 Stat. 587, limits who may file a petition for a visa on behalf of an immediate family member who is a foreign national. Under the Act, no citizen previously convicted of a “specified offense against a minor” may file a petition “unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien.” 8 U.S.C. § 1154(a)(1)(A)(viii). In 2009, Joel Bremer, who had previously been convicted of sexual abuse of a minor, petitioned for a spousal visa on behalf of his wife, a native and citizen of the Philippines. The United States Citizenship and Immigration Services (“the USCIS”), exercising discretion delegated to it by the Secretary, determined that Mr. Bremer failed to show that he posed no risk to his wife and denied his petition.

The Bremers filed a class-action complaint in the district court, contending that the manner in which the USCIS makes the no-risk determinations violates the Administrative Procedure Act (“APA”) and the Constitution. After granting in part the Bremers' motion for class certification, the court dismissed the case, concluding that the Bremers sought judicial review of determinations that were committed to the “sole and unreviewable discretion” of the Secretary. We affirm in part, reverse in part, and remand for further proceedings.

I.

The Immigration and Nationality Act (“INA”) permits a United States citizen to petition for a visa on behalf of a foreign-national spouse or child by filing Form I–130 with the USCIS. 8 U.S.C. § 1154(a) ; see 8 C.F.R. § 204.1(a)(1). The Attorney General or her designee is then required to investigate the petition. 8 U.S.C. § 1154(b). If the facts stated in the petition are true and the beneficiary is eligible for preference status, “the Attorney General shall ... approve the petition.” Id. Once the petition is approved, the foreign-national beneficiary can apply for permanent-resident status. See 8 C.F.R. § 245.2. The petitioner and beneficiary bear the burden of proving their eligibility under the INA. 8 U.S.C. § 1361.

In 2006, Congress passed the Adam Walsh Act “[t]o protect the public from sex offenders and offenders against children.” Pub. L. No. 109–248, § 102, 120 Stat. 587, 590 (2006). Among other reforms, the Adam Walsh Act amended the INA to prohibit a citizen from filing a Form I–130 visa petition for an alien if he or she

has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien....

8 U.S.C. § 1154(a)(1)(A)(viii)(I).

The term “specified offense against a minor” includes “conduct that by its nature is a sex offense against a minor.” 42 U.S.C. § 16911(7)(I). The Secretary has delegated to the USCIS the discretion to determine whether the petitioner “poses no risk” to the beneficiary. Dep't of Homeland Sec. Delegation No. 0150.1(II)(H) (June 5, 2003); see 8 C.F.R. § 2.1. Even if none of the intended beneficiaries is a child, the USCIS has interpreted the Adam Walsh Act to require that the petitioner “prove, beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary.”

Joel Bremer is a United States citizen residing in Kansas City, Missouri. In 2001, Mr. Bremer pleaded guilty to sexually abusing his daughter when she was eleven-years old. The court sentenced Mr. Bremer to seven years' imprisonment. Since his release from prison, Mr. Bremer has completed the Missouri Sexual Offender Program and sought therapy.

Mr. Bremer married Ma Susan Suarez Bremer, a native and citizen of the Philippines, in June 2009 and subsequently filed an I–130 visa petition on her behalf. His petition was assigned a file number. After a background check revealed that Mr. Bremer had a prior conviction for a specified offense against a minor, the USCIS mailed Mr. Bremer a “Request for Evidence and Notice of Intent to Deny,” seeking additional information about Mr. Bremer's conviction and rehabilitation. In response, Mr. Bremer submitted evidence of rehabilitation, including letters of support from his wife, his ex-wife, a social worker, a probation officer, two pastors, and numerous friends and family members. On August 21, 2010, the USCIS denied Mr. Bremer's petition because the evidence submitted did not establish that he posed no risk to Mrs. Bremer and because the authors of his support letters—including Mrs. Bremer—did not “appear to be aware of the full nature of [his] crime.”

Mr. Bremer filed a second I–130 visa petition on March 24, 2011, with additional evidence, including a report from a psychologist and a letter from Mrs. Bremer stating that she was aware of the details of her husband's conviction. This petition was assigned a file receipt number. The USCIS rejected this second petition on October 31, 2012, discounting the psychologist report because it was based on a single ninety-minute session, during which the psychologist did not use any recognized actuarial tools to determine Mr. Bremer's recidivism risk. The USCIS also determined that the letters of support from family and friends were insufficient because the authors were presumably biased and lacked the qualifications to assess Mr. Bremer's risk profile. Mr. Bremer did not appeal either denial to the Board of Immigration Appeals.

The Bremers then brought a class action complaint in the district court, and the government did not oppose the Bremers' motion for class certification. The complaint named as defendants five officials in the Department of Justice, Department of Homeland Security, and USCIS, and raised eight claims arising under the APA and the Constitution. The district court granted the Bremers' motion for class certification for six of the eight claims pleaded in their complaint, but determined that two counts (Count I and Count III) raised individual claims.

The parties filed cross-motions for summary judgment. The INA precludes judicial review of any “decision or action ... the authority for which is specified under this subchapter¹ to be in the discretion of the Attorney General or the Secretary of Homeland Security.” 8 U.S.C. § 1252(a)(2)(B)(ii). Referring to the Adam Walsh Act, the district court determined that the phrase “ ‘sole and unreviewable discretion’ plainly and unambiguously creates a discretionary decision or action” and precluded judicial review. Accordingly, the court dismissed the complaint for lack of jurisdiction. We review the decision de novo . Cmty. Fin. Grp., Inc. v. Republic of Kenya , 663 F.3d 977, 980 (8th Cir. 2011).

II.

The INA generally allows any United States citizen to file a visa petition on behalf of certain immediate family members. 8 U.S.C. § 1154(a)(1)(A)(I) (“Clause (i)”). After an investigation, the Attorney General “shall ... approve” the petition, if the facts stated in the petition are true and the beneficiary is entitled to preference status. Id. § 1154(b). The Adam Walsh Act, however, creates an exception to the right to file a visa petition under Clause (i). It provides:

Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed.

Id. § 1154(a)(1)(A)(viii)(I) (“Clause (viii)”). The USCIS has determined that “given the nature and severity of many of the underlying offenses and the intent of the AWA,” determinations that a citizen poses “no risk” should be “rare.”

The APA provides that agency actions are not reviewable when a statute precludes judicial review. 5 U.S.C. § 701(a)(1). Whether a citizen poses no risk to an intended beneficiary of a visa petition is a decision or action of the Secretary that Clause (viii) specifies is in the sole and unreviewable discretion of the Secretary. It is therefore not subject to judicial review. 8 U.S.C. § 1252(a)(2)(B)(ii). On appeal, however, the Bremers argue that their complaint challenges other aspects of the agency's implementation of the Adam Walsh Act that are outside the Secretary's discretion, and that the district court has jurisdiction over those claims.

The Bremers contend that their claims involve “predicate legal questions” over which the district court has jurisdiction. Even where a statute precludes judicial review of discretionary agency actions, courts may review certain non-discretionary legal determinations that underlie an agency's exercise of unreviewable discretion. Such “predicate legal questions” include, for example, whether statutory conditions...