Joel Bremer v. Jeh Johnson
2016 U.S. App. LEXIS 15648
8th Cir.2016Background
- Joel Bremer, a U.S. citizen with a prior conviction for sexual abuse of a minor, filed I-130 petitions for his wife, a Philippine national; USCIS denied the petitions after concluding he failed to show he "poses no risk" under the Adam Walsh Act (AWA).
- The AWA amended 8 U.S.C. § 1154(a)(1)(A) to bar citizens convicted of specified offenses against a minor from filing family-visa petitions unless the Secretary of Homeland Security, in his "sole and unreviewable discretion," determines the citizen poses no risk.
- USCIS, pursuant to delegated authority, applies the AWA and requires a high evidentiary threshold (treated as proof beyond a reasonable doubt) and internal guidance indicating approvals should be "rare." Bremer submitted evidence of rehabilitation that USCIS found insufficient.
- Bremer and his wife brought a class-action complaint raising APA and constitutional claims; the district court granted partial class certification but dismissed the case for lack of jurisdiction under INA § 1252(a)(2)(B)(ii).
- On appeal, the Eighth Circuit affirmed dismissal of most claims as barred by the INA’s bar on review of the Secretary’s ‘‘sole and unreviewable discretion,’’ but reversed and remanded one claim (Count II) raising a predicate legal question about whether the AWA applies once a petition has already been filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a petition already assigned a file/receipt number falls outside Clause (viii) so the AWA no longer bars approval (i.e., has petition been "filed") | Bremer: Petition was already filed; once filed the statutory clause limiting who may "file" does not apply and USCIS must adjudicate under §1154(b) standards | Government: Determination whether AWA applies requires adjudicator review of the petition; Secretary can make the no-risk determination after accepting a filing | Court: This is a justiciable predicate legal question; remanded to district court for merits resolution (reversed dismissal of Count II) |
| Whether USCIS’s evidentiary requirements (e.g., requiring specific tests) violate the APA | Bremer: Agency acted arbitrarily and capriciously by dictating specific evidence/tests | Government: Evidentiary rules are integral to how the agency exercises the unreviewable discretion to find "no risk" | Court: Claim challenges discretionary implementation and is barred under §1252(a)(2)(B)(ii); dismissal affirmed |
| Whether internal USCIS guidance creating a high-denial expectation is unlawful (categorical rule) | Bremer: Memoranda create a de facto categorical denial and are non-discretionary rulemaking | Government: Memoranda set a high standard but preserve individualized review; they guide discretion | Court: Guidance concerns how discretion is exercised and is therefore barred from review; dismissal affirmed |
| Whether constitutional claims (Ex Post Facto, excessive punishment, due process—right to marry) are reviewable/colorable | Bremer: AWA retroactively imposes burdens on past convictions and denies liberty interests (marriage) and imposes excessive punishment | Government: AWA is regulatory (public-protection), not punitive; does not bar marriage or deprive process; adequate notice and opportunity provided | Court: Claims are not colorable — ex post facto and excessive-punishment labels fail because statute is regulatory; due-process claim not colorable given Mathews balancing and Din; dismissal affirmed |
Key Cases Cited
- Cmty. Fin. Grp., Inc. v. Republic of Kenya, 663 F.3d 977 (8th Cir.) (standard of de novo review on jurisdictional question)
- Ibrahimi v. Holder, 566 F.3d 758 (8th Cir.) (courts may review predicate legal questions underlying unreviewable discretion)
- Guled v. Mukasey, 515 F.3d 872 (8th Cir.) (same; distinction between discretionary decisions and antecedent legal questions)
- Fults v. Sanders, 442 F.3d 1088 (8th Cir.) (agency may not adopt categorical rules that bypass required individualized consideration)
- Block v. Cmty. Nutrition Inst., 467 U.S. 340 (Sup. Ct.) (statutory grants of discretion can imply broad authority to establish procedures)
- Smith v. Doe, 538 U.S. 84 (Sup. Ct.) (distinguishing punitive from regulatory measures for Ex Post Facto Clause)
- Kerry v. Din, 135 S. Ct. 2128 (Sup. Ct.) (plurality and concurring opinions on procedural due process in denial of spousal-visa claims)
- Heckler v. Chaney, 470 U.S. 821 (Sup. Ct.) (APA inapplicability where statutes preclude judicial review)
- Mathews v. Eldridge, 424 U.S. 319 (Sup. Ct.) (balancing test for what process is due)