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.
No. 15-1163
United States Court of Appeals, Eighth Circuit.
August 25, 2016
833 F.3d 925
Submitted: November 18, 2015
Accordingly, we affirm the judgment of the district court.
Sarah S. Wilson, Office of Immigration Litigation, Dist. Court Section, U.S. Dept. of Justice, Washington, D.C., argued (Benjamin C. Mizer, Principal Deputy Asst. Atty. Gen., Civ. Division, William C. Peachey, Director, Dist. Court Section, Stacey I. Young, Senior Litigation Counsel, on the brief), for appellees.
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“),
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.
In 2006, Congress passed the Adam Walsh Act “[t]o protect the public from sex offenders and offenders against children.”
The term “specified offense against a minor” includes “conduct that by its nature is a sex offense against a minor.”
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 Philip-
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 authors were presumably biased and lacked the qualifications to assess Mr. Bremer‘s risk profile. Mr. Bremer did not appeal either denial to the Board of Immigration Appeals.
The Bremers then brought a class action complaint in the district court, and the government did not oppose the Bremers’ motion for class certification. The complaint named as defendants five officials in the Department of Justice, Department of Homeland Security, and USCIS, and raised eight claims arising under the APA and the Constitution. The district court granted the Bremers’ motion for class certification for six of the eight claims pleaded in their complaint, but determined that two counts (Count I and Count III) raised individual claims.
The parties filed cross-motions for summary judgment. The INA precludes judicial review of any “decision or action ... the authority for which is specified under this subchapter1 to be in the discretion of the Attorney General or the Secretary of Homeland Security.”
II.
The INA generally allows any United States citizen to file a visa petition on behalf of certain immediate family members.
Clause (i) shall not apply to a citizen of the United States who 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 with respect to whom a petition described in clause (i) is filed.
Id.
The APA provides that agency actions are not reviewable when a statute precludes judicial review.
The Bremers contend that their claims involve “predicate legal questions” over which the district court has jurisdiction. Even where a statute precludes judicial review of discretionary agency actions, courts may review certain non-discretionary legal determinations that underlie an agency‘s exercise of unreviewable discretion. Such “predicate legal questions” include, for example, whether statutory conditions precedent to the agency‘s authority to exercise discretion have been satisfied. Ibrahimi v. Holder, 566 F.3d 758, 763-64 (8th Cir. 2009); Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir. 2008). We consider the Bremers’ claims seriatim.
A.
In Count II of their complaint, the Bremers allege that the Adam Walsh Act no longer applies to Mr. Bremer‘s petition. The Adam Walsh Act limits the application of Clause (i). That provision specifies who may “file” a petition for a family-based visa.
We agree with the Bremers that whether Mr. Bremer‘s petition has already been filed, and if so, whether Clause (viii) is inapplicable, are predicate legal questions over which the district court has jurisdiction. Resolution of these questions requires construction of the INA and the Adam Walsh Act on a matter antecedent to the Secretary‘s exercise of sole and unreviewable discretion to determine whether a petitioner poses no risk to an alien beneficiary. We express no view on the merits of the claim, but conclude that
The Bremers’ complaint alleges four other violations of the APA. Each of these counts, although framed as presenting a legal question, challenges how the Secretary, acting through the USCIS, has exercised his discretion to make a no-risk determination under the Adam Walsh Act. The INA therefore bars judicial review of these claims.
In Count I, the Bremers contend that the USCIS acted arbitrarily and capriciously by requiring Mr. Bremer to submit the results of a certain psychological test. What evidence the agency requires or considers, however, is an essential part of how the agency exercises its discretion to determine whether a citizen poses no risk. The power to dictate what evidence the agency considers would give courts a large measure of control over the ultimate discretionary decision. This claim therefore challenges a decision within the “sole and unreviewable discretion” of the agency.
Count III asserts that the USCIS violated the APA by “creating a presumption of denial of all AWA petitions.” This claim focuses on two interoffice memoranda addressed to USCIS field offices. The memoranda provide guidance on how to evaluate petitions filed by persons with convictions that trigger the Adam Walsh Act. In those memoranda, the USCIS advises evaluators that “approval recommendations should be rare.”
The Bremers contend that this direction amounts to a categorical rule and thus is “not an exercise of discretion at all.” See Fults v. Sanders, 442 F.3d 1088, 1092 (8th Cir. 2006). Direction that approval should be rare, however, addresses only the standard by which petitions will be evaluated. Reviewers are still instructed to “closely examine the petitioner‘s specified offense and other past criminal acts to determine whether the petitioner poses any risk.” Unlike in Fults, where the Bureau of Prisons failed to consider certain statutory factors and excluded an entire class of inmates from discretionary placement in a halfway-house program, the USCIS did not refuse to address Mr. Bremer‘s petition individually. The agency simply set a high threshold for securing a favorable exercise of discretion, given “the nature and severity of many of the underlying offenses and the intent of the AWA.” Count III thus challenges the manner in which the Secretary, through the USCIS, exercises his discretion, and the claim is therefore barred by the INA.
Count IV raises a procedural challenge to the same memoranda addressed in Count III. The Bremers argue that these memoranda should have been promulgated through notice-and-comment rulemaking. See
Finally, Count V alleges that the USCIS acted in excess of statutory authority by requiring applicants to prove beyond a reasonable doubt that they pose no risk to visa beneficiaries. The Bremers rely on a USCIS administrative decision issued in a different context, which states that “[e]xcept where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings
The Bremers disagree with these conclusions. They believe that the INA shields from judicial review only the Secretary‘s ultimate fact-specific decision whether a particular petitioner poses a risk to the beneficiary, while allowing what they call collateral challenges to the agency‘s practices or policies. They rely on McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), where the Court ruled that a prohibition on district court review “of a determination respecting an application” did not preclude review of “collateral challenges” to an agency‘s procedures. Id. at 492. The Court reasoned that the reference to “a determination” described “a single act rather than a group of decisions or a practice or procedure employed in making decisions.” Id. The Court then observed that other provisions concerning judicial review of an “administrative record” and an “abuse-of-discretion” standard of review in the court of appeals indicated that the limitation on district court review applied only to claims that were based on an individualized administrative adjudication. Id. at 493.
The Adam Walsh Act is phrased differently. It begins by providing that a citizen with a qualifying conviction is ineligible to file a visa petition unless the Secretary exercises discretion in his favor. The statute then gives the Secretary “sole and unreviewable discretion” to determine whether the citizen poses no risk to the intended beneficiary. The statute does not contain companion provisions implying that broader procedural decisions about how to adjudicate eligibility are outside the scope of the Secretary‘s discretion. There is no stark use of indefinite articles in the text to suggest that the grant of discretion is narrowly confined to a single act.
Whereas the statute in McNary provided that a specific determination could not be reviewed in the district court, the Adam Walsh Act provides that the Secretary‘s discretion itself is “sole and unreviewable.” A grant of “sole” discretion is among the strongest known to the law. It implies that the decisionmaker “is simply not bound by standards set by [another] authority.” Ronald Dworkin, Taking Rights Seriously 32 (1977). This type of discretion necessarily includes authority to implement practices or procedures for making decisions. Like the Board of Immigration Appeals, we believe it is “fairly discernible in the statutory scheme,” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) (quotation omitted), that Congress has granted the Secretary “sole authority to establish a framework for USCIS adjudicators to use in making the ‘no risk’ discretionary determination.” In re Aceijas-Quiroz, 26 I. & N. Dec. at 299. Accordingly, we affirm the district court‘s dismissal of Counts I, III, IV, and V.
The Bremers also allege violations of the Constitution. This court has held that the INA‘s bar on judicial review of discretionary decisions does not extend to colorable constitutional claims. E.g., Garcia-Aguillon v. Mukasey, 524 F.3d 848, 849-50 (8th Cir. 2008); see
The government argues, however, that the Adam Walsh Act precludes review more broadly, because there is a clear congressional intent to preclude review of all constitutional claims. We assume for the sake of analysis that the statute does not preclude judicial review of colorable constitutional claims, but conclude that the Bremers have not raised such a colorable claim.
The Bremers allege in Count VI that the USCIS‘s application of the Adam Walsh Act violates the Ex Post Facto Clause,
These constitutional provisions apply only when a statute is punitive. See Landgraf v. USI Film Prods., 511 U.S. 244, 266 & n.19, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (Ex Post Facto Clause); Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (excess punishment); see Doe v. Miller, 405 F.3d 700, 723 & n.6 (8th Cir. 2005). Congress, however, passed the Adam Walsh Act “to protect the public from sex offenders.”
The Bremers’ claim under Count VII asserts a deprivation of a liberty interest in the right to marry without due process of law, in violation of the Due Process Clause. The Adam Walsh Act, however, does not restrict the ability to marry. The Act merely denies Mrs. Bremer one avenue of obtaining permanent residency in the United States. The Bremers remain married, and Mrs. Bremer may still petition for lawful entry to the United States on other grounds. A plurality of the Supreme Court recently concluded that a statute denying a foreign-national spouse entry into the United States does not infringe upon a protected liberty interest. Kerry v. Din, 576 U.S. 86, 135 S.Ct. 2128, 2138, 192 L.Ed.2d 183 (2015) (plurality opinion).
Even assuming that there is a protected liberty interest here, the Bremers received all process that might be due to them under the Constitution. See id. at 2139 (Kennedy, J., concurring in the judgment). Due process requires only “the opportunity to be heard at a meaningful time
C.
The Bremers argue alternatively that even if
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For the foregoing reasons, we reverse the district court‘s dismissal of Count II, affirm dismissal of the remaining counts, and remand for further proceedings.