Bremer v. Johnson, No. 15-1163 (8th Cir. 2016)
Annotate this CaseThe Adam Walsh Child Protection and Safety Act of 2006, 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. 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 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 suit contending that the manner in which the USCIS makes the no-risk determinations violates the Administrative Procedure Act (APA), 5 U.S.C. 701(a)(1), and the Constitution. The district court granted in part the Bremers' motion for class certification, dismissed the case, and concluded that the Bremers sought judicial review of determinations that were committed to the “sole and unreviewable discretion” of the Secretary. The court remanded to the district court for further consideration of Count II where the Bremers allege that the Adam Walsh Act no longer applies to Mr. Bremer's petition; the court agreed 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; the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., bars judicial review of the Bremers' challenges to how the Secretary has exercised his discretion to make a no-risk determination under the Act; and the court rejected the Bremers' remaining claims.
Court Description: {Colloton, Author, with Gruender and Shepherd, Circuit Judges] Civil case. Bremer, a convicted sex offender, filed a I-130 on behalf of his wife, a native and citizen of the Philippines, and the USCIS denied the petition because the evidence Bremer submitted did not establish that he posed no risk to the woman and because the authors of the letters did not, in the agency's words, "appear to be aware of the full nature of [his]crime; in this class action, Bremer alleged the manner in which USCIS made "no-risk" determinations violates the APA and the Constitution, and the district court granted class certification and then dismissed the case, concluding Bremer sought judicial review of determinations that were committed to the "sole and unreviewable discretion" of the Secretary of Homeland Security; the district court erred in dismissing Count II of the complaint in which Bremer alleged that the Adam Walsh Act no longer applies to his petition since it had already been filed; the issue of whether the petition had been filed and if so, whether Clause viii of the Act is inapplicable, are predicate legal questions over which the district court had jurisdiction; the remaining claims challenge how the Secretary, acting through USCIS, has exercised his jurisdiction to make a no-risk determination under the Adam Walsh Act and judicial review of these claims is barred under the Immigration and Naturalization Act; claims that the USCIS's application of the Act violates the Ex Post Facto Clause rejected, as are Bremer's Fifth Amendment, Eighth Amendment and due process claims. Remanded for further proceedings on Count II.
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