United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) DENYING PLAINTIFFS' MOTION
FOR SUMMARY JUDGMENT, AND (2) GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT
are cross-motions for summary judgment. For the following
reasons, the Court denies Plaintiffs' motion for summary
judgment (Doc. #44), and grants Defendants' motion for
summary judgment (Doc. #51).
Immigration and Nationality Act (“INA”) permits
any United States citizen to petition for a visa on behalf of
a foreign-national spouse or child by filing a form I-130
with the United States Citizenship and Immigration Services
(“USCIS”). 8 U.S.C. § 1154(a); see
8 C.F.R. § 204.1(a)(1). In 2006, Congress amended the
INA by passing the Adam Walsh Child Protection and Safety Act
of 2006 (“AWA”). Pub. L. No. 109-248, 120 Stat.
587. The law was passed “to protect the public from sex
offenders and offenders against children.” Id.
Under the AWA, a petitioner may not file an I-130 petition if
he or she has been convicted of a qualifying crime,
“unless the Secretary of Homeland Security, in the
Secretary's sole and unreviewable discretion”
determines the petitioner poses no risk to the petition's
beneficiary. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). The
petitioner and beneficiary bear the burden of proving
eligibility under the INA. 8 U.S.C. § 1361.
Joel Bremer and Mrs. Ma Susan Bremer
(“Plaintiffs”) filed a class action complaint in
this Court on December 20, 2013. Mr. Bremer, a United States
citizen, had twice filed I-130 petitions with USCIS seeking
to classify Mrs. Bremer, his foreign national spouse, as an
immediate relative so she could become a lawful permanent
resident. Each petition was rejected because Mr. Bremer was
convicted of an AWA qualifying crime, sexually abusing his
eleven-year-old daughter, in 2001.
first petition, filed in 2009, was assigned a file number.
After a background check revealed his prior conviction for
sexual abuse, Mr. Bremer received a “Request for
Evidence and Notice of Intent to Deny.” In a reasoned
five-page letter, the USCIS explained Mr. Bremer failed to
show he posed “no risk” to Mrs. Bremer, the
intended beneficiary of his petition, and accordingly, denied
his I-130 petition. The second petition, filed in 2011, was
assigned a file receipt number. Mr. Bremer provided
additional evidence, but the USCIS again denied Mr.
Bremer's I-130 petition. USCIS provided a form with which
Mr. Bremer could appeal the decision to the Board of
Immigration Appeals, but Mr. Bremer did not appeal the
alleged Defendants improperly denied their visa petitions
pursuant to the AWA in violation of the Administrative
Procedures Act (“APA”) and various Constitutional
provisions. The Court certified the action as a class action
pursuant to Rule 23. Doc. #27. After considering the
parties' cross-motions for summary judgment, the Court
determined the AWA's statutory language giving the
Secretary “‘sole and unreviewable discretion'
plainly and unambiguously creates a discretionary decision or
action.” Doc. #28, at 4. Accordingly, the Court
dismissed the complaint for lack of jurisdiction.
Id., at 7.
appealed the Court's determination. Doc. #30. The Eighth
Circuit affirmed in part, reversed in part, and remanded to
this Court for further proceedings. Bremer v.
Johnson, 834 F.3d 925, 927 (8th Cir. 2016). The Eighth
Circuit remanded for further consideration only the question
relevant to Count II of Plaintiffs' Complaint -
“whether Mr. Bremer's petition has already been
filed, and if so, whether Clause (viii) is
inapplicable” - because the question is a predicate
legal question over which this Court has jurisdiction.
Id., at 929-930. The parties' filed
cross-motions for summary judgment on this question (Docs.
#44, 51), and the matter is now ripe for the Court's
moving party is entitled to summary judgment on a claim only
if there is a showing that “there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Williams v. City
of St. Louis, 783 F.2d 114, 115 (8th Cir. 1986).
“[W]hile the materiality determination rests on the
substantive law, it is the substantive law's
identification of which facts are critical and which facts
are irrelevant that governs.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Wierman v.
Casey's Gen. Stores, 638 F.3d 984, 993 (8th Cir.
2011) (quotation omitted). In applying this standard, the
Court must view the evidence in the light most favorable to
the non-moving party, giving that party the benefit of all
inferences that may be reasonably drawn from the evidence.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 588-89 (1986); Tyler v. Harper, 744
F.2d 653, 655 (8th Cir. 1984). However, a party opposing a
motion for summary judgment “may not rest upon the mere
allegations or denials of the…pleadings, but…by
affidavits or as otherwise provided in [Rule 56], must set
forth specific facts showing that there is a genuine issue
for trial.” Fed.R.Civ.P. 56(e).
parties agree on the facts in this matter. As described
above, Mr. Bremer's I-130 petition was denied by USCIS on
two separate occasions because the Secretary determined Mr.
Bremer posed a risk to the intended beneficiary of his I-130
petition. The parties do not agree on the predicate legal
question remanded to this Court by the Eighth Circuit - to
wit, “whether Mr. Bremer's petition has already
been filed, and if so, whether Clause (viii) is
inapplicable.” Defendants interpret the AWA,
specifically 8 U.S.C. § 1154(a)(1)(A)(viii)(I) as it
amended the INA, to require review of a petitioner's past
criminal conviction only after the USCIS initially accepts an
I-130 petition from a United States citizen. Plaintiffs argue
this interpretation is an ultra vires interpretation
inconsistent with the AWA's plain language. Rather than
allow review of a petitioner's past criminal conviction,
Plaintiffs argue the I-130 petition is deemed
“filed” when the USCIS accepts the petition, at
which point the AWA no longer applies, and the petition
should only be adjudicated pursuant to 8 U.S.C. §
1154(b)'s guidance for approval of a visa application.
2008, Acting Associate Director of USCIS Donald Neufeld
issued a memorandum regarding adjudication of AWA cases. Doc.
#1-2. In relevant part, the memorandum stated:
The statute states that a petitioner convicted of any
specified offense against a minor is prohibited from filing a
family-based petition. As a practical matter, however, we
need to accept the petition and conduct the necessary
analysis to determine whether the AWA provisions apply.
Depending on ...