Bremer et al v. Beers et al

Filing 28

ORDER AND OPINION DISMISSING CASE WITHOUT PREJUDICE FOR LACK OF JURISDICTION. Signed on 12/17/14 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JOEL BREMER, et al.,

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Plaintiffs,
vs.
JEH JOHNSON, et al.,
Defendants.

Case No. 13-1226-CV-W-ODS

ORDER AND OPINION DISMISSING CASE WITHOUT PREJUDICE
FOR LACK OF JURISDICTION
Pending are the parties’ cross-Motions for Summary Judgment (Doc. # 12, Doc.
# 16). For the reasons set forth below, the case is dismissed without prejudice for lack
of jurisdiction.
I.

BACKGROUND

Mr. Joel Bremer and Mrs. Ma Susan Bremer (“Plaintiffs”) filed a class action
complaint in this Court on December 20, 2013. Pursuant to the Immigration and
Nationality Act (“INA”), Mr. Bremer, a United States citizen, filed an I-130 petition with
United States Citizenship and Immigration Services (“USCIS”) seeking to classify Mrs.
Bremer, his foreign national spouse, as an immediate relative so she could become a
lawful permanent resident. Under the Adam Walsh Act (“AWA”), USCIS may not
approve I-130 petitions if the petitioner has been convicted of a qualifying crime, “unless
the Secretary of Homeland Security, in the Secretary’s sole and unreviewable
discretion” determines that the petitioner poses no risk to the beneficiary of the petition.
8 U.S.C. 1154(a)(1)(A)(viii)(I). In 2001, Mr. Bremer was convicted of an AWA qualifying
crime. USCIS determined Mr. Bremer failed to show he posed “no risk” to Mrs. Bremer,
the intended beneficiary of his petition, and for that reason denied his I-130 petition.
Plaintiffs allege in their Complaint that Defendants improperly denied their visa
petitions pursuant to the AWA. Plaintiffs generally allege these improper denials

violated the Administrative Procedures Act (“APA”) and various Constitutional
provisions.
On October 10, 2014, the Court certified the action as a class action pursuant to
Rule 23 (Doc. #27), defining the class as follows:
Individuals residing within the jurisdiction of the United States District Court for
the Western District of Missouri who (1) have been or will in the future be the
petitioner of an I-130 visa petition filed on behalf of a spouse with USCIS or who
have been or will be a beneficiary of an I-130 visa petition, and (2) for whose
case USCIS has determined that 8 U.S.C. 1154(a)(1)(A)(viii)(“the Adam Walsh
Act” or “the AWA”) applies based on a finding that the petitioner “has been
convicted of a specified offense against a minor” and thus require a
determination by the Secretary of Homeland Security that the petitioner “poses
no risk” to the beneficiary, and (3) whose I-130 visa petition USCIS denied
based on a determination by USCIS that the petitioner failed to establish that he
or she poses no risk to the beneficiary.
Also created is a separate limited class or “issues class,” with respect to Count
VI, consisting of those individuals described above who: (1) have had their I-130
denied, and (2) in whose case USCIS relied on a criminal conviction that was
final on or before July 27, 2006 (the effective date of the AWA).
On August 8, 2014, Defendants filed their Motion for Summary Judgment (Doc.
#12) and on September 2, 2014, filed their Suggestions in Opposition to Plaintiffs’
Motion for Summary Judgment (Doc. #22), asserting therein that the Court lacks
jurisdiction to review Plaintiffs’ claims.
II.

STANDARD

“[F]ederal courts are courts of limited jurisdiction.” Dakota, Minnesota & E.R.R.
Corp. v. Schieffer, 715 F.3d 712 (8th Cir. 2013) (citations omitted). The party invoking
federal jurisdiction has the burden of establishing that it exists. Id. See also, Jones v.
United States, 727 F.3d 844, 846 (8th Cir. 2013); Bowe v. NW. Airlines, Inc., 974 F.2d
101, 103 (8th Cir. 1992). “Without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the cause.”
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998).

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III.

DISCUSSION
A.

There are three broad categories of potential claims that can be raised regarding
USCIS’s “no risk determination” under the AWA: (1) review of the USCIS’s discretionary
decision on the merits that an individual petitioner failed to demonstrate he or she posed
no risk to the intended beneficiary of his or her petition, (2) a petitioner’s individual
constitutional or legal claims that are specific to his or her petition process, and (3)
collateral constitutional or legal claims that address the general manner in which the
AWA program is implemented. Plaintiffs raise claims that fall within the first and third
categories. While Plaintiffs contend they do not raise challenges that are individual in
nature, the Court found in its October 10, 2014 Order that Counts I and III of Plaintiffs’
Complaint implicated issues that fall within the first category.
Defendants argue this Court lacks jurisdiction to review all of Plaintiffs’ claims
pursuant to the judicial review scheme established in 8 U.S.C. § 1252(a)(2), which bars
judicial review of the Secretary of Homeland Security’s discretionary decisions and
actions by declaring “no court shall have jurisdiction to review…(ii) any other decision or
action of the Attorney General or the Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the discretion of the Attorney General
or the Secretary of Homeland Security…” 8 U.S.C. § 1252(a)(2)(B)(ii). The statute
further states that § 1252(a)(2)(B)(ii) should not “be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review filed with an
appropriate court of appeals…” Id. at § 1252(a)(2)(D).
This statutory scheme creates a sweeping bar of judicial review, but permits a
party to raise constitutional claims or questions of law in a court of appeals. The Eighth
Circuit held that Section 1252(a)(2)(D), “applies only to questions of law ‘raised upon a
petition for review filed with an appropriate court of appeals.’ Thus, it does not grant
jurisdiction to review questions of law in district court cases.” Abdelwahab v. Frazier,
578 F.3d 817, 812 (8th Cir. 2009) (citations omitted).
The Court must determine whether the AWA language in § 1154(a)(1)(A)(viii)
creates a discretionary decision or action, and thus, falls under the judicial review
scheme found under § 1252(a)(2). This judicial review scheme applies to all
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discretionary decisions or actions found under Subchapter II of the INA, which covers
sections 1151-1381. The AWA provision at issue is found in § 1154(a)(1)(A)(viii). This
AWA provision provides that an I-130 petition will not be granted if the petitioner “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” the petition is filed. 8 U.S.C.
§ 1154(a)(1)(A)(viii) (emphasis added). The statutory language “sole and unreviewable
discretion” plainly and unambiguously creates a discretionary decision or action.
In Abdelwahab v. Frazier, the Eighth Circuit examined another INA provision – 8
U.S.C. § 1155 – to determine whether that provision created a discretionary decision or
action that fell under the coverage of the § 1252(a)(2) judicial review scheme. 578 F.3d
817 (8th Cir. 2009). Section 1155 states, “The Secretary of Homeland Security may, at
any time, for what he deems to be good and sufficient cause, revoke the approval of
any petition approved by him...” The Eighth Circuit determined the language “‘may’
revoke…‘at any time, for what he deems to be good and sufficient cause’” created
actions “‘specified [by statute] to be in the discretion of…the Secretary’ within the
meaning of § 1252(a)(2)(B)(ii), and therefore not subject to judicial review.”
Abdelwahab, 578 F.3d at 821. The language “sole and unreviewable discretion” found
in Section 1154(a)(1)(A)(viii) establishes a discretionary decision or action even more
unambiguously than the language at issue in Abdelwahab.
Consequently, § 1252 (a)(2)(B)(ii) and § 1252(a)(2)(D) control the judicial review
of AWA decisions and actions. Section 1252(a)(2)(D) states without qualification that
“constitutional claims or questions of law” are to be “raised upon a petition for review
filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D). Consequently,
Plaintiffs’ legal and constitutional claims – individual and general – must be raised in
accordance with Section 1252(a)(2)(D), and this Court does not have jurisdiction to
review these claims.
B.
Plaintiffs rely on McNary v. Haitian Refugee Center to argue this Court retains
jurisdiction to review their general legal and constitutional claims. 498 U.S. 479 (1991).

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The review scheme at issue in McNary is not the same review scheme at issue in this
case. Compare 8 § U.S.C. 1160(e) with 8 U.S.C. 1252(a)(2)(B) and (D). The scheme
in McNary described the review process of individual denials of Special Agricultural
Workers (“SAW”) status applications. The statutory scheme only permitted judicial
review of these denials in courts of appeals; district courts were precluded from
reviewing these denials.
In examining the SAW review scheme, the McNary Court noted, “The critical
words…describe the provision as referring only to review ‘of a determination respecting
an application’ for SAW status. Significantly, the reference to ‘a determination’
describes a single act rather than a group of decisions or a practice or procedure
employed in making decisions.” McNary, 498 U.S. at 491-92 (emphasis in original)
(citations omitted). This language focused singularly on the review of individual denials,
and thus the Court determined this review scheme did not contemplate general
constitutional challenges to the manner in which the SAW program was implemented.
Because the review scheme did not contemplate how to review general constitutional
challenges, the McNary Court held district courts were not foreclosed from reviewing
these general constitutional challenges.
The McNary Court noted that if Congress had not intended for the judicial
preclusion provision to be limited to individual denials, then “it could easily have used
broader statutory language.” 498 U.S. at 494. Here, the judicial review scheme is
markedly different than the review scheme at issue in McNary. Compare 8 § U.S.C.
1160(e) with 8 U.S.C. § 1252(a)(2). The review scheme found in § 1252(a)(2) does not
focus only on individual determinations, rather it relates to “any other decision or action.”
Id. at § 1252(a)(2)(B)(ii). Unlike the review scheme in McNary, § 1252(a)(2)(B)(ii) uses
broad and general language. Thus, under the reasoning of McNary, § 1252(a)(2)(B)(ii)
cannot be said to not contemplate general constitutional and legal challenges.
Moreover, the review scheme under § 1252(a)(2) was enacted in 1996, several years
after the Supreme Court issued the McNary decision.
Finally, the McNary statutory scheme focused only on the review of individual
denials of SAW status applications, it did not address the review of legal and
constitutional claims related to those denials – collateral or otherwise. Here, the
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statutory scheme found in § 1252(a)(2) does address judicial review of legal and
constitutional claims, stating that these types of claims should be reviewed in the
appropriate court of appeals. Consequently, the McNary decision does not support
Plaintiffs’ contention that this Court retains jurisdiction to review Plaintiffs’ claims.

C.
As discussed under Section III.A, the Court determined Plaintiffs raised individual
issues in their Complaint under Counts I and III. Plaintiffs argue this Court retains
jurisdiction to review these types of claims pursuant to the Board of Immigration
Appeals (“BIA”) decision, Matter of Aceijas-Quiroz. 26 I. & N. Dec. 294 (BIA 2014). The
Court finds this BIA decision does not support Plaintiffs’ argument.
As a preliminary matter, pursuant to § 1252(a)(2)(B)(ii) the Court does not have
jurisdiction to review the USCIS’s discretionary decision on the merits that an individual
petitioner failed to demonstrate he or she posed no risk to the intended beneficiary of
his or her petition. As discussed earlier in Section III.A, the AWA language in §
1154(a)(1)(A)(viii) creates a discretionary decision or action. Thus, § 1252(a)(2)(B)(ii)
bars this Court’s review of that type of claim.
Next, in Matter of Aceijas-Quiroz, the BIA only examined the language found in §
1154(a)(1)(A)(viii); significantly, the BIA did not examine the relationship between this
provision and the judicial review scheme found under § 1252(a)(2). As discussed in
Section III.A, § 1252(a)(2) governs the judicial review of decisions and actions under §
1154(a)(1)(A)(viii). Additionally, the issue before the BIA was not whether federal courts
have jurisdiction to review USCIS’s “no risk” determination, but whether the BIA has this
jurisdiction. The BIA discussed federal court jurisdiction only in the context of analyzing
whether the Board retained jurisdiction.
Finally, Plaintiffs appear to argue that because the BIA is controlled by the
Attorney General, the Department of Justice determined in Matter of Aceijas-Quiroz that
this Court does not lack jurisdiction to review Plaintiffs’ individual claims. Consequently,
Plaintiffs contend the Department of Justice cannot argue in this case that this Court
lacks jurisdiction. The Court does not find this argument persuasive. A party cannot
confer jurisdiction by agreement or otherwise if jurisdiction does not exist.
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IV.

CONCLUSION

For the foregoing reasons, the case is dismissed without prejudice for lack of
jurisdiction.
IT IS SO ORDERED

DATE: December 17, 2014

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

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