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Bremer v. Johnson

United States District Court, W.D. Missouri, Western Division

July 31, 2017

JOEL BREMER,, Plaintiffs,
JEH JOHNSON, et al., Defendants.



         Pending 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).

         I. BACKGROUND

         The 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.

         Mr. 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.

         The 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 decision.

         Plaintiffs 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.

         Plaintiffs 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 consideration.

         II. STANDARD

         A 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).


         The 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.

         In 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 ...

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