Submitted: November 18, 2015
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
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.
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
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.
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).
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."
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.
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."
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 ...