Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bremer v. Johnson

United States Court of Appeals, Eighth Circuit

August 25, 2016

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.

          Submitted: November 18, 2015

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.