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SWENSEN v. Lynch (USCIS) AWA I-130 Denial and Complaint Redacted

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SWENSEN v. Lynch (USCIS) Adam Walsh Act I-130 Denial and Complaint.

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SWENSEN v. Lynch (USCIS) AWA I-130 Denial and Complaint Redacted

  1. 1. Case 1:15-cv-02642 Document 1-1 Filed 12/04/15 USDC Colorado Page 2 of 7 U.S. Deportment orllomclond Se.:urity U.S. Citizenship and bnmigration Sen·ices Denver Field Office 12484 East Weaver Place Centennial, CO 80111 U.S. Citizenship and Immigration Services Date: SEP 14 2016 co 80016 DECISION Dear Thank you for submitting Form I-130, Petition for Alien Relative, to U.S. Citizenship and Immigration Services (USCIS) on behalf (the beneficiary). You sought to classify the beneficiary as the spouse ofa U.S. citizen under section 201(b) ofthe Immigration and Nationality Act (lNA). After a thorough review ofyour petition, the testimony provided during your interview, and the record of evidence, we must inform you that we are denying your petition for the following reason(s). On July 27, 2006, the President signed the Adam Walsh Child Protection and Safety Act of2006 (Adam Walsh Act), Pub. L. 109-248, to protect children from sexual exploitation and violent crimes, to prevent child abuse and child pornography, to promote Internet safety and to honor the memory ofAdam Walsh and other child crime victims. Sections 402(a) and (b) ofthe Adam Walsh Act amend rNA sections 10l(a)(15)(K), 204(a)(l)(A), and 204(a)(l)(B)(i), prohibiting U.S. citizens and lawful permanent residents who have been convicted ofany "specified offense against a minor" from filing a family-based visa petition on behalfofany beneficiary, unless the Secretary of the Department ofHomeland Security (the Secretary) determines in his or her sole and unreviewable discretion that the petitioner poses no risk to the beneficiary ofthe visa petition. Under Title 8 Code ofFederal Regulation (8 CFR), section 103.1, the Secretary has delegated that authority to USCIS. Section 111(7) ofthe Adam Walsh Act defines the term "specified offense against a minor" as an offense against a minor that involves any ofthe following: The term 'specified offense against a minor' means an offense against a minor that involves any ofthe following: (A) An offense (unless committed by a parent or guardian) involving kidnapping. ,'· ......... lt, f·o;~, Should be 2015.
  2. 2. Case 1:15-cv-02642 Document 1-1 Filed 12/04/15 USDC Colorado Page 3 of 7 (B) An offense (unless committed by a parent or guardian) involving false imprisonment. (C) Solicitation to engage in sexual conduct. (D) Use in a sexual performance. (E) Solicitation to practice prostitution. (F) Video voyeurism as described in Title 18 United States Code, section 1801. (G) Possession, production or distribution of child pornography. (H) Criminal sexual conduct involving a minor or the use ofthe Internet to facilitate or attempt such conduct. (I) Any conduct that by its nature is a sex offense against a minor. Under section 111(14) ofthe Adam Walsh Act, the term "minor" is defined as an individual who has not attained the age of 18 years. The statutory list of criminal activity in the Adam Walsh Act that may be considered a specified offense against a minor is stated broadly in order to accommodate variances among Federal, state, and foreign criminal laws. The record associated with this petition indicates that you were convicted of an offense which renders you ineligible to act as petitioner on a family-based visa petition. On December 6, 1990, you were convicted ofa violation ofthe Uniform Code ofMilitary Justice (UCMJ) Article 120, specifying that on multiple occasions between October 30, 1988, and May 9, 1990, you committed rape on a child under the age of 16 years. You were convicted ofviolating UCMJ Article 125, that between June 21, 1987, and September 21, 1987, you committed sodomy with a child under the age of 16 years. You were also convicted ofviolating UCMJ Article 134, that between June 21 , 1987, and September 21, 1987, you committed an indecent act upon the body of a female under 16 years ofage. The record shows you were sentenced to serve 15 years of confinement, forfeiture of all pay and allowances, a reduction to the grade of airman basic, and received a dishonorable discharge as a result ofyour convictions. The offense for which you were convicted constitutes a "specified offense against a minor" as defmed in the Adam Walsh Act. USCIS has determined that approval of the family-based visa petition you submitted on behalf of the beneficiary is prohibited, as a matter of law, on the basis of your conviction of a "specified offense against a minor." Thus, the beneficiary may not be eligible for consideration for the visa classification under INA 201(b). On June 5, 2014, USCIS requested that you submit evidence to show that you were not convicted under Kansas Statute Annotated Section 21-5506, Indecent Liberties with a Child OR that the particular crime for which you were convicted is not a "specified offense against a minor" as defined by the Adam Walsh Act. You were provided a list of evidence that you could submit to demonstrate that you were not convicted ofthe offense or that the offense is not a "specified offense against a minor." On September 2, 2014, you submitted the following evidence: • A briefaddressing the issues in the current case, • A photocopy ofa non-notarized statement from you, • A photocopy of a non-notarized statement from your current spouse, • A copy ofa letter from Aurora Mental Health Center, • Copies ofyour Certificate ofRelease from Parole and associated documents, • Copies ofyour various sex offender registrations over the years, and
  3. 3. Case 1:15-cv-02642 Document 1-1 Filed 12/04/15 USDC Colorado Page 4 of 7 • An Offense Specific Mental Health Evaluation from Progressive Therapy Systems, P.C. The Request for Evidence and Notice of Intent to Deny (NOID) issued by the USCIS Nebraska Service Center on June 5, 2014, stated you were convicted in 1991 ofviolating Kansas Statutes Annotated Section 21-5506, Indecent Liberties with a Child. In the briefyou submitted in response to the NOID you dispute that information, and claimed to never have been convicted of a violation ofKansas State law. After a review ofthe documentation available to USCIS, the Denver Field Office concurred with this conclusion. It appears that the initial claim of your violating Kansas State law by USCIS was due to an incorrect interpretation ofyour criminal history relating to your incarceration in Fort Leavenworth, Kansas. The information available made no mention ofyour conviction being due to a general court-martial, and as a result your conviction was presumed to have happened due to violating Kansas State law. However, in your briefyou clearly state that you were found guilty of"sexual assault on a minor by court-martial at Ellsworth Air Force Base in South Dakota on December 6, 1990." As a result ofyour disclosure and in order to establish the correct charges and convictions for the record, the Denver Field Office issued another Request for Evidence on March 16,2015. This request asked you to submit certified court dispositions relating to the charges ofRape ofa Child, Sodomy ofa Child, and Indecent Acts with a Child that were flied in regards to your general court-martial. You were also asked to submit certified copies ofthe charging documents and complaint filed with the military court regarding the charges ofRape ofa Child, Sodomy ofa Child, and Indecent Acts with a Child. On June 8, 2015, USCIS received your response to the Request for Evidence. You provided copies ofthe charging and conviction documents issued in the general court-martial, documentation showing your attempt to obtain the Air Force Office of Special Investigations report oftheir investigation into your offenses, copies of the letter from Mental Health Center your previously submitted in response to the NOID, copies ofyour Certificate ofRelease from Parole and associated documents you previously submitted in response to the NOID, and copies ofyour sex offender registrations from 1997 to the current time. A review of the evidence provided clearly establishes you were charged and convicted by general court-martial on December 6, 1990, under UCMJ Article 120 for committing rape on a child under the age of 16 years. You were also convicted ofviolating UCMJ Article 125 for committing sodomy with a child under the age of 16 years. Finally, you were convicted of violating UCMJ Article 134 for committing an indecent act upon the body ofa female under the age of 16 years. The record also establishes through your own statement that the victim was a child, 8 years of age, while you were 25 years ofage when the initial criminal act took place. The General Court-Martial Order establishes the offenses were not a single incident, but occurred multiple times over an approximate 2 year time span. The evidence submitted fails to demonstrate that you were not convicted under UCMJ Article 120, for rape on a child under the age of 16 years; UCMJ Article 125, for sodomy with a child under the age of 16 years; and UCMJ Article 134, for committing an indecent act upon the body ofa female under 16 years ofage. Furthermore, the evidence submitted fails to demonstrate that the particular crime for which you were convicted is not a "specified offense against a minor" as defined by the Adam Walsh Act. A petitioner who has been convicted ofa "specified offense against a minor" is presumed to be ineligible to petition for family-based benefits. To avoid the denial ofa family-based visa
  4. 4. Case 1:15-cv-02642 Document 1-1 Filed 12/04/15 USDC Colorado Page 5 of 7 petition, a petitioner who has been convicted ofa "specified offense against a minor" must submit evidence that demonstrates, beyond any reasonable doubt, that he or she poses no risk to the beneficiary. In determining whether a petitioner has met this burden ofproof, USCIS will consider all known factors that are relevant to determining whether a petitioner poses any risk to the safety and well-being ofthe beneficiary, including but not limited to: 1. Certified copies ofpolice reports and court records relating to the offense (the court records must include the original indictment or other charging documents, any superseding charging document, any pre-sentencing report, and the conviction (judgment)); 2. Trial transcripts describing the nature and circumstances surrounding the specified offense(s) against a minor and any other criminal, violent or abusive behavior, incidents, arrests, and convictions; 3. The terms and conditions of the sentence, release, parole, probation and any other related requirements set forth by the jurisdiction where the petitioner has resided since the conviction(s); 4. Certified records indicating successful completion of counseling or rehabilitation programs; 5. Certified evaluations by psychiatrists, clinical psychologists, or clinical social workers that attest to the degree ofthe petitioner's rehabilitation or behavior modification; such evaluations should include an assessment by the author/clinician concerning whether the petitioner continues to pose a risk; 6. Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services. On June 5, 2014, USCIS requested that you submit evidence that demonstrates, beyond any reasonable doubt, that you pose no risk to the safety and well-being of the beneficiary and/or any derivative beneficiary. On September 2, 2014, you submitted the following evidence: • A brief addressing the issues in the current case, • A photocopy ofa non-notarized statement from you, • A photocopy ofa non-notarized statement from your current spouse, • A copy ofa letter from Aurora Mental Health Center, • Copies ofyour Certificate ofRelease from Parole and associated documents, • Copies ofyour various sex offender registrations over the years, and • An Offense Specific Mental Health Evaluation from Progressive Therapy Systems, P.C. The evidence you have submitted does provide some positive factors since your conviction for rape of a child, sodomy of a child, and indecent acts with a child. It appears you have committed no further criminal acts since your conviction, completed your parole, and maintained your sex offender registration with local law enforcement as required. Yau and your current spouse have no children, nor does your spouse have any children that would be brought into the marriage. The record shows that you completed your required therapy in 2006: However, the positive aspects of your history do not outweigh the heinous nature of your crime. The facts ofyour case clearly show you sexually assaulted a child multiple times. Such actions are by nature brutal and heinous in the eyes ofsociety. At the time ofthe crime you were 25 years old and the victim was an 8 year old child, a 17 year age difference from the victim. As a person in a position ofauthority, you abused your influence not once, but multiple times in order
  5. 5. Case 1:15-cv-02642 Document 1-1 Filed 12/04/15 USDC Colorado Page 6 of 7 to sexually assault the child. In the 2014 evaluation by Progressive Therapy Systems P.C., an Affinity 2.5, objective measure ofsexual interest, was conducted. The evaluation explains that this is a computer based assessment ofsexual interest. It was noted that your highest measured interests were in adult males followed by adult females. The evaluation states that these interests are considered normal given your demographic, adult, male homosexual. This statement that your demographic is an adult homosexual male is inconsistent with your claim that you are in a heterosexual relationship with the beneficiary. This raises doubts as to the validity of the evaluation. You also claim that no penetration occurred during these assaults, but your claim does not appear to be supported by the definitions associated with the UCMJ. Article 120 ofthe UCMJ states that rape involves a "sexual act upon another person..." UCMJ Article 120(g)(l) defines the term 'sexual act' which shows that penetration is necessary for the act to be constituted a 'sexual act'. Your claim that no penetration of the victim occurred is hard to believe when penetration is necessary according to the definition for a rape in the UCMJ. Also alarming is the way you represented the assault ofthe victim to your spouse when you told her about it. During your October 2, 2014, interview, your spouse was asked ifyou had disclosed your criminal history to her, and she stated you had. When she was asked what she thought about your convictions she stated she was initially worried, but didn't want to judge you without knowing you better. This comment appeared odd in that you sexually assaulted a child multiple times, despite it occurring approximately 25 years ago, and such criminal acts usually garner strong negative responses from people. When your spouse was asked what you had told her about your conviction she testified that you had said you met a girl and had relations, but did not know she was a minor when the incident occurred. This testimony raises concerns about your honesty and how you perceive the incident. In your briefyou clearly state the victim was an 8 year old girl, yet your spouse claims that when you told her about your criminal history in 2013 you stated you did not know the girl was a minor. It is highly unlikely that an 8 year old child would pass for an adult female in physical appearance. Your lack of candor with your spouse is disconcerting. Pursuant to Section 204(a)(l)(A)(viii)(I) ofthe lNA, a United States citizen who has been convicted ofa "specified offense against a minor" is barred from having a family-based visa petition unless they can establish they pose "no risk" to the beneficiary "beyond a reasonable doubt". A review ofthe 2014 evaluation by Progressive Therapy Systems P .C. fails to provide evidence "beyond a reasonable doubt" that you present no risk to the beneficiary. The Risk Assessment and Recommendations section of the report describes the various risk assessment methods that were used in your evaluation. The evaluator states "Mr. is viewed as low risk to sexually offend." This statement does not constitute "no risk", but rather that you are low risk to offend. The report goes on to state "There is no reason to believe that Mr. poses a risk to his wife." This statement by the evaluator does not specifically state you would be no risk to your spouse. The statement provides reasonable doubt, however slight that may be, but reasonable doubt none the less, that you may pose a risk to your spouse. In visa petition proceedings, the petitioner bears the burden of establishing eligibility for the benefits sought. See Matter ofBrantigan, 11 I. & N. Dec. 493 (BIA 1966). A petitioner who has been convicted of a specified offense against a minor, as defined by the Adam Walsh Act, has the additional burden ofproving beyond any reasonable doubt that he or she poses no risk to the safety or well-being ofthe beneficiary.
  6. 6. Case 1:15-cv-02642 Document 1-1 Filed 12/04/15 USDC Colorado Page 7 of 7 Having considered the totality of the evidence submitted, USCIS concludes, in its exercise ofsole and unreviewable discretion, that you have failed to demonstrate that you pose no risk to the beneficiary. Accordingly, the petition is denied. Ifyou disagree with this decision, or ifyou have additional evidence that shows this decision is incorrect, you may appeal this decision to the Board of Immigration Appeals (BIA) or motion USCIS to reopen or reconsider the decision. However, the BIA has determined that it does not have jurisdiction to review users's determination about whether you pose no risk to the beneficiary. See Matter ofAceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014). If an appeal is not received within 30 days ofthe date of this notice, this decision will be final. To file an appeal, complete Form EOIR.-29, Notice ofAppeal to the Board oflmmigration Appeals from a Decision ofa USCIS Officer. Although the appeal will be decided by the BIA, you must send the Form EOIR.-29 and all required documents, including the appropriate filing fee, to the Denver Field Office at the following address: USCIS - Denver Field Office 12484 East Weaver Place Centennial, CO 80111 Ifyou intend to be represented on appeal, your attorney or accredited representative must submit Form EOIR.-27 with Form EOIR.-29. Ifyou or your attorney wishes to file a briefin support of your appeal, the brief must be received by the users office where you file your appeal either with your appeal or no later than 30 days from the date offiling your appeal. Your appeal will be sent for further processing 30 days after the date users receives it; after that time, no brief regarding your appeal can be accepted by the users office. For more information about filing requirements for appeals to the BIA, please see 8 CFR 1003.3 and the Board of Immigration Appeals Practice Manual available at www.usdoj.gov/eoir. Ifyou would like to file a motion to reopen or motion to reconsider, you must file a Form I-290B, Notice ofAppeal or Motion. rfyou do not file your motion within 30 days of the date ofthis notice, this decision will become final. To obtain the Form I-290B, visit www.uscis.gov/forms. For the latest information on filing location, fee, and other requirements, refer to the Form I-290B instructions; review 8 CFR 103.3 or 103.5; call our National Customer Service Center at 1-800-375-5283; or visit your local users office. Sincerely, aAndrew Lambrecht Field Office Director cc: Attorney of Record
  7. 7. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO _________________________________________ RANDY DEAN SWENSEN; and ) IZABELA BOZENA MEDUCKA ) ) Plaintiffs. ) ) vs. ) CIVIL ACT NO. ) LORETTA LYNCH, Attorney General of ) COMPLAINT FOR the United States; JEH JOHNSON, ) DECLARATORY AND Secretary for the Department of ) INJUNCTIVE RELIEF Homeland Security (“DHS”); ) AND REVIEW OF AGENCY LEON RODRIGUEZ, Director for United ) ACTION UNDER THE States Citizenship and Immigration Services ) ADMINISTRATIVE (“USCIS”); KRISTI BARROWS, District ) PROCEDURES ACT Director for the Denver District Office of ) USCIS; United States Department of Homeland ) Security; United States Citizenship and ) Immigration Services ) ) Agency No. WAC-14-905-03484 Defendants. ) COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF BACKGROUND AND STATEMENT OF CASE AND FACTS Randy Dean Swensen and Izabela Bozena Meducka, by way of complaint against the Defendants, complain as follows: 1. This is an action for judicial review, seeking declaratory and injunctive relief for the violation of the Plaintiffs’ rights under the Administrative Procedures Act, as well as the Fifth Amendment and Eighth Amendment to the United States Constitution. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 1 of 16
  8. 8. 2. Plaintiffs bring this action resulting from damages incurred by the unlawful September 14, 2015 decision of the United States Citizenship and Immigration Services (“USCIS”), WAC 14-905-03484 (Exhibit A), which denied an immigrant visa petition by Plaintiff Randy Dean Swensen, a United States citizen, for his wife, Plaintiff Izabela Bozena Meducka, for classification as an immediate relative. Defendants purport to have denied the visa petition based on the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248 (hereinafter, “Walsh Act” or “AWA”). FACTS 3. On or about January 21, 2014, Mr. Swensen filed a Form I-130 Petition for Alien Relative (“Visa Petition”) to classify his wife as an immediate relative. 4. On or about September 14, 2015, USCIS denied Mr. Swensen’s Visa Petition, citing the Walsh Act, alleging that Mr. Swensen was ineligible to file a visa petition for his wife due to a 1990 conviction under the Uniform Code of Military Justice (“UCMJ”) Article 120 for rape of a child under age 16, UCMJ Article 125 for sodomy of a child under age 16, and UCMJ Article 134 for committing an indecent act upon the body of a female under age 16. JURISDICTION 5. Plaintiffs are entitled to judicial review under 28 U.S.C. § 1331 and 5 U.S.C. § 702, et seq. 6. This action arises under the Constitution of the United States; the Immigration and Nationality Act (“INA”), 8 U.S.C. 1101 et. seq.; 28 U.S.C. § 1331; and the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et. seq. This Court has Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 2 of 16
  9. 9. jurisdiction under 5 U.S.C. § 703 and 28 U.S.C. § 1331, as well as under 28 U.S.C. § 2201 and § 2002, relating to the Court’s ability to fashion appropriate remedies. Because Plaintiffs also seek declaratory relief, they also rely on Fed. R. Civ. P. 57. The APA governs the review of agency action where a person has suffered a “legal wrong” or has been “adversely affected or aggrieved” by agency action. 5 U.S.C. § 702. There is no requirement of exhaustion of administrative remedies when such exhaustion is futile. 7. Appeal to the Board of Immigration Appeals (hereinafter, “the Board” or the “BIA”) would be futile. The Board has declined to review Walsh Act cases in published precedent and claims it has no jurisdiction over such cases. Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014). Although the Board is the normal appellate body of the agency to review a denied visa petition, because the Board declines to review Walsh Act cases, appeal to the Board would indeed be futile. 8. Despite a jurisdictional bar found at 8 U.S.C. § 1252 regarding review of discretionary relief, this Court has jurisdiction to review the APA and constitutional violations committed by the Government. The bar does not apply to non-discretionary decisions made by USCIS, including the standard of review for making such decisions. This Court has jurisdiction to review how USCIS is applying the law in Walsh Act cases. The Plaintiffs do not seek review of a discretionary decision. Plaintiffs seek review of the application of the Walsh Act to this case. 9. Despite a jurisdictional bar found at 8 U.S.C. § 1154(a)(1)(A)(viii)(I) regarding review of discretionary decisions, this Court has jurisdiction to review the APA and constitutional violations committed by the Government. The bar does not apply to non-discretionary Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 3 of 16
  10. 10. decisions made by USCIS, including the standard of review for making such decisions. This Court has jurisdiction to review how USCIS is applying the law in Walsh Act cases. The Plaintiffs do not seek review of a discretionary decision. Plaintiffs seek review of the application of the Walsh Act to this case. 10. Plaintiffs are not seeking a review of any discretionary decision. Plaintiffs do challenge the procedure by which the discretionary decision to deny was made. This Court retains jurisdiction to review these constitutional issues and questions of law. Ballesteros v. Holder, 452 F.3d 1153 (10th Cir. 2006). 11. USCIS’s denial of the Visa Petition is arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law. Such denial is, therefore, subject to review under 5 U.S.C. § 706(2)(A). 12. USCIS’s denial of the Visa Petition is in excess of its statutory jurisdiction, authority, or limitations, and short of statutory right, and is, therefore, subject to review under 5 U.S.C. § 706(2)(C). 13. USCIS’s denial of the Visa Petition is without observance of procedure required by law and is, therefore, subject to review under 5 U.S.C. § 706(2)(D). 14. USCIS’s denial of the Visa Petition is unsupported by substantial evidence in the record and is, therefore, subject to review under 5 U.S.C. § 706(2)(E). 15. USCIS’s denial of the Visa Petition is unwarranted by the facts and is, therefore, subject to review under 5 U.S.C. § 706(2)(F). 16. USCIS’s denial is arbitrary and capricious and is not based in law. The INA provides bars to judicial review of discretionary decisions, but review of “constitutional questions Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 4 of 16
  11. 11. or questions of law” is not prohibited. 8 U.S.C. § 1252(b)(2)(D). Petitioner is, therefore, entitled to review because this is a question of law. The agency exceeded the scope of its legal authority and acted ultra vires to the statute. A claim of this nature raises a question of law. Such a question of law is reviewable as an excess of statutory jurisdiction, authority, or limitations, or short of statutory right. 5 U.S.C. § 706(2)(C) 17. Plaintiffs have standing in that they allege “such a personal stake in the outcome of the controversy as to warrant [their] invocation of federal court jurisdiction and to justify exercise of the court’s remedial powers on [their] behalf.” Warth v. Seldin, 422 U.S. 490, 498-499 (1975). Petitioners have “such a personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues.” Baker v. Carr, 369 U.S. 186 (1962). VENUE 18. The District of Colorado is the proper venue for this action. The Plaintiffs reside in Colorado. The Defendants are the United States and various agencies of the United States. 28 U.S.C. § 1391(e); 5 U.S.C. §§ 702, 703. Furthermore, Colorado is the venue in which a substantial amount of the events and legal questions occurred. Id. PARTIES 19. Plaintiff Randy Dean Swensen (“Mr. Swensen”) is a native and citizen of the United States, who resides in Aurora, Colorado. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 5 of 16
  12. 12. 20. Plaintiff Izabela Bozena Meducka (“Ms. Meducka”), a native and citizen of Poland, is married to Mr. Swensen. Ms. Meducka lives with her husband in their home in Aurora, Colorado. 21. Defendant Loretta Lynch is the Attorney General of the United States, and is sued in her official capacity. 22. Defendant Jeh Johnson is the Secretary of the Department of Homeland Security (“DHS”), and is the highest ranking official within DHS. The Secretary is responsible for DHS implementation of the Immigration and Nationality Act and for ensuring compliance with applicable federal laws, including the APA. The Secretary is sued in his official capacity. 23. Defendant Leon Rodriguez is the Director of the United States Citizenship and Immigration Services (“USCIS”) and is the highest ranking official within USCIS, a sub- agency of DHS. The Director is responsible for the implementation of the Immigration and Nationality Act and for ensuring compliance with applicable federal laws, including the APA. The Director is sued in his official capacity. 24. Defendant Kristi Barrows is the District Director of the Denver District Office of USCIS. She is the highest ranking official within the Denver District Office. The Denver District Office is charged with adjudication of certain immigration petitions and applications, including the petition in dispute herein. The District Director is responsible for implementation of the Immigration and Nationality Act and for ensuring compliance with applicable federal laws, including the APA. The District Director is sued in her official capacity. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 6 of 16
  13. 13. 25. Defendant Department of Homeland Security, a federal agency of the United States, is charged with the responsibility for the implementation and administration of the relevant provisions of the Immigration and Nationality Act. 26. Defendant United States Citizenship and Immigration Services, a federal sub-agency within the Department of Homeland Security, is charged with the responsibility for the implementation and administration of the relevant provisions of the Immigration and Nationality Act. GROUNDS FOR RELIEF 27. The INA, as amended, allows for the approval of a visa petition for an immigrant visa when the immigrant is the spouse of a United States citizen. 8 U.S.C. § 1151(b). 28. The Walsh Act purports to prohibit U.S. citizens from filing a family-based visa petition if they have been convicted of certain crimes. 29. While USCIS has discretion to approve or deny a visa based on the Walsh Act, that discretion is not unfettered. 5 U.S.C. § 706. 30. The Agency cannot ignore or discount substantial evidence in the administrative record without a rational basis. See 5 U.S.C. §706; INS v. Yang, 519 U.S. 26 (1996). 31. The case is ripe for review as USCIS issued a denial of the I-130 Visa Petition and any further exhaustion would be futile. 32. Should the Court refuse to consider this case, Plaintiffs will suffer hardship in the breakup of their family as Ms. Meducka will have no choice but to depart the United States, leaving her husband, which will destroy this marriage. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 7 of 16
  14. 14. 33. The standard of review that must be applied in this case is the “substantial evidence” test. 5 U.S.C. § 706(2)(E). The Department’s denial of this visa petition is not supported by substantial evidence in the administrative record. 34. The Court should also resolve any constitutional questions or questions of law, and determine the meaning and applicability of the terms of the Agency’s action. 5 U.S.C. § 706. CLAIMS FOR RELIEF Count One Administrative Procedures Act 35. Plaintiffs incorporate by reference and re-allege paragraphs 1 through 34 above. 36. Plaintiffs have the right to a review of the agency decision under 5 U.S.C. § 702. 37. Defendants’ actions violate federal regulations, the Immigration and Nationality Act, and the Administrative Procedures Act. The Defendants’ actions in making determinations contrary to law as the basis for denial of the visa petition constitutes an agency action that is arbitrary, capricious, an abuse of discretion, and is not in accordance with law under 5 U.S.C. §706(2)(A). 38. By defining a standard of review different from that in other agency proceedings in their Standard Operating Procedure, the Defendants have engaged in rulemaking without a notice and comment period and have issued ultra vires rules which are beyond the scope of the agency’s authority. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 8 of 16
  15. 15. 39. Defendants’ actions violate federal regulations, the Immigration and Nationality Act, and the Administrative Procedures Act. The Defendants have arbitrarily and capriciously ignored or discounted substantial evidence in the administrative record. Defendants refused to consider key evidence filed in the case when determining that Plaintiff Randy Swensen poses a risk to his wife, overlooking evidence filed into the administrative record, which constitutes an agency decision unsupported by law or substantial evidence under 5 U.S.C. § 706(2)(E). 40. Defendants have arbitrarily and capriciously interpreted the Walsh Act and have implemented rules in an arbitrary and capricious manner. 41. Defendants’ actions violate federal regulations, the Immigration and Nationality Act, and the Administrative Procedures Act. The agency’s adoption of Standard Operating Procedures (“SOP”) requiring a petitioner to demonstrate “beyond any reasonable doubt” (emphasis added) that they pose no risk to a beneficiary is contrary to the APA, which requires all agency action, findings, and conclusions to be “in accordance with law.” 5 U.S.C. § 706. The Agency has not promulgated regulations regarding the Walsh Act, specifically with regard to how the “beyond any reasonable doubt” standard is to be implemented or overcome. This standard is a stark departure from the preponderance standard found in most civil proceedings. 42. Defendants’ adoption of their own interpretation and implementation of the Walsh Act constitutes ultra vires agency action not in accordance with law under 5 U.S.C. § 706(2)(A). Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 9 of 16
  16. 16. 43. USCIS has adopted a “beyond any reasonable doubt” standard in reviewing whether a petitioner poses no risk to a beneficiary. Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014). In Aceijas-Quiroz, despite declining to exercise jurisdiction, even the Board demonstrated concern with this standard. Typically, in civil proceedings such as the visa petition in dispute, the standard of review is a preponderance standard. Id.; Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1989); Mater of Soo Hoo, 11 I&N Dec. 151 (BIA 1965); Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). This represents an arbitrary and gross departure from precedent, the statute, and the regulations, without proper notice or comment. 44. USCIS’s Standard Operating Procedure, in violation of notice and comment, further instructs officers that they should rarely approve visa petitions when the Walsh Act is implicated, regardless of any demonstrated rehabilitation or lack of risk. This unjustly creates a presumption against approving a case, contrary to the statute, and is ultra vires of the agency’s authority. 45. Furthermore, USCIS’s denial letter shows that the Agency acted outside the scope of its authority and applied a balancing test when evaluating the discretionary outcome of the case. See generally, Exhibit A. In the denial letter, USCIS goes to great lengths to balance Plaintiff Randy Swensen’s positive factors since his conviction against what the Agency describes as the “heinous nature” of his crime. Id. at 4. Applying a balancing test in determining whether Mr. Swensen poses no risk to his wife is an overbroad interpretation of the statute, which requires merely a determination of risk. Despite USCIS finding positive factors, its judgment of the case is clouded by what it describes as Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 10 of 16
  17. 17. “brutal and heinous” actions that “outweigh” the “positive factors.” Id. This is a clear misapplication of the law by USCIS. 46. By weighing positive and adverse factors in the case, USCIS deviated from the statute which requires a finding that a petitioner poses no risk to their spouse, not whether the petition should be granted based on a balancing test, judging a crime against the petitioner’s documented rehabilitation and compliance with the law. 47. USCIS further ignored evidence in the record showing that he poses no risk to his wife. USCIS was to review the case and determine whether Plaintiff Randy Swensen poses no risk to his wife. 8 U.S.C. § 1154(a)(1)(A)(viii)(I). Instead, the Agency took a much more broad view and denied based on its opinion that he is likely to reoffend. See generally, Exhibit A at 5. 48. USCIS then misapplied the findings of the evaluator. In its decision denying the Visa Petition, USCIS reports that “The evaluator states ‘Mr. Swensen is viewed as low risk to sexually offend.’ This statement does not constitute ‘no risk’, [sic] but rather that you are low risk to offend.” The evaluation reports that he is low risk to sexually offend, while USCIS is expecting a report that he is no risk to offend. However, the statute does not call for a finding that a petitioner is of any risk to offend. The statute merely looks to whether a petitioner poses no risk to an alien spouse. The findings are clear that he poses no risk to his wife, and that he is low risk to offend against anyone else. The statute only requires USCIS to find that he poses no risk to his wife. 49. USCIS has misinterpreted the statute and applied an overbroad definition of risk. The Agency’s review of the case is outside the scope of the statute and, apart from requiring a Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 11 of 16
  18. 18. “beyond any reasonable doubt” showing, has further deviated by employing a balancing test in this case. The Agency has based its decision on its view of a “heinous” crime, and bases its decision on Mr. Swensen’s risk to reoffend, rather than his risk to his wife. 50. USCIS failed to articulate how Mr. Swensen’s evidence did not demonstrate that he poses no risk to his wife. Rather, USCIS alleged that the positive factors in his case are outweighed by what it characterizes as a “heinous” crime, a crime that was committed some twenty-five years ago. Also USCIS found that evidence supports that he is of “low risk” to offend. USCIS relied on the same evidence to show he is of low risk to reoffend that was presented to show that he poses “no risk” to his wife. Yet USCIS failed to articulate a basis for its own “no risk” finding. As such, the decision is arbitrary and capricious, and not supported by the evidence in the record, as well as unsupported by the requirements of the statute. 51. The Government’s actions are not in accordance with law and are in violation of 5 U.S.C. § 706(2)(A). Count Two Eighth Amendment Violation 52. Plaintiffs incorporate by reference and re-allege paragraphs 1 through 51 above. 53. The Walsh Act again punishes Plaintiff Randy Swensen for his conviction after having entered his guilty plea. The application of the Walsh Act, in this case, is an unconstitutional ex post facto application and an additional punishment. Application of the Walsh Act in this case is punitive in nature, and not simply regulatory. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 12 of 16
  19. 19. 54. The Walsh Act constitutes a new and ongoing form of punishment that is both cruel and unusual by limiting Plaintiff Randy Swensen’s fundamental right to be married to whomever he chooses, with no compelling state interest, and without notice or due process of law. 55. Application of the Walsh Act in this case results in excessive punishment by limiting Plaintiff Randy Swensen’s fundamental right to marry whomever he chooses, with no compelling state interest, and without notice or due process of law. Count Three Fifth Amendment Due Process 56. Plaintiffs incorporate by reference and re-allege paragraphs 1 through 55 above. 57. The Fifth Amendment to the United States Constitution provides that no person shall be “deprived of life, liberty, or property, without due process of law.” 58. Defendants’ actions in denying the visa petition constitute a deprivation of liberty without a meaningful review of the substantial evidence by the adjudicator, in violation of Plaintiffs’ rights to due process and equal protection under the Fifth Amendment of the Constitution. 59. The right to marry without undue government restriction is one of the fundamental liberty interests protected by the Due Process Clause. The Walsh Act, as applied by USCIS, unconstitutionally interferes with the fundamental right to marry. It limits a United States citizen’s ability to marry and prohibits him or her from living in the United States with a foreign-national spouse. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 13 of 16
  20. 20. 60. Government impingement on the constitutional right to marry must be reviewed under strict scrutiny, requiring the Government to demonstrate a compelling state interest in regulating marriage which must be narrowly tailored to achieve that interest, and must also be the least restrictive means to do so. While purporting to protect children, USCIS is denying a visa petition for an adult beneficiary. As applied in this case, the Walsh Act is neither narrowly tailored, nor the least restrictive means to achieving the Government’s interest. No child is protected by the denial of this visa petition. Application of the 2006 statute to the 1990 crime is an unconstitutionally retroactive application of the law. 61. The Walsh Act, signed into law in 2006, unconstitutionally penalizes Plaintiff Randy Swensen for a 1990 conviction. The Act is an ex post facto law and is also applied in an unconstitutionally retroactive manner. The Walsh Act constitutes a new and ongoing form of punishment that is both cruel and unusual, by limiting Plaintiff Randy Swensen’s fundamental right to marry whomever he chooses, with no compelling state interest, and without notice or due process of law. This creates a new disability attached to his conviction for which he was given no notice. C.f. Vartelas v. Holder, 566 U.S. __ (2012). 62. Defendants’ position that a petitioner must demonstrate he or she poses no risk to a beneficiary beyond any reasonable doubt is an unconstitutional and unduly burdensome standard for the civil benefit sought. Indeed, despite the traditional standard of proof of demonstrating by a preponderance of the evidence, or, on rare occasion, clear and convincing evidence, the Defendants are imposing a criminal standard, typically borne by a prosecutor, on a United States citizen petitioner. The “beyond any reasonable doubt” Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 14 of 16
  21. 21. standard is used nowhere else by USCIS in adjudicating immigration benefits. Matter of Aceijas-Quiroz, 26 I&N Dec. 294, 303 (BIA 2014) (Mann, dissenting). 63. Plaintiff Izabela Meducka is also deprived of her liberty interest and due process of law as the beneficiary of her husband’s visa petition, due solely to a conviction for a crime she did not commit. 64. The Walsh Act, as applied, unconstitutionally regulates the family unit and the freedom to marry the spouse of one’s choice. Here, Plaintiff Randy Swensen is prohibited from marrying a foreign citizen, and, if he does, his punishment is to choose between exile from the United States or physical separation. The Walsh Act fails to recognize that a disqualifying offense also creates immigration inadmissibility issues in foreign nations similar to the laws of the United States. His conviction limits his ability to emigrate with his wife to another country, further interfering with his constitutionally protected right of marriage. 65. As applied by USCIS, the Walsh Act further places an additional burden on a convicted person to demonstrate that he or she, beyond any reasonable doubt, pose “no risk” to a beneficiary, in order to have a visa approved. This is flagrantly contrary to the Walsh Act’s posing a burden on the Government in other civil matters, requiring the Government to show by “clear and convincing evidence” that a person is a sexually dangerous person for civil commitment. 18 U.S.C. § 4248. In doing so, the Government actions have violated the Plaintiffs’ due process and equal protection by imposing a much higher than civil standard on a private citizen. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 15 of 16
  22. 22. PRAYER FOR RELIEF Wherefore, Plaintiffs respectfully request this Court to: 1. Assume jurisdiction of this action; 2. Issue a permanent injunction against USCIS’s use of the “beyond any reasonable doubt” standard for Walsh Act cases; 3. Reverse the USCIS decision and Order USCIS to grant the I-130 visa petition; 4. Grant reasonable attorney fees and costs as provided under the Equal Access to Justice Act and Administrative Procedures Act; and, 5. Grant such further relief as this Court deems appropriate and reasonable. Respectfully submitted this 4th day of December, 2015, ____/s_Bryon M. Large, Sr.______________ Bryon M. Large, Sr., Colo. Reg. No. 38574 Kolko & Associates, P.C. 303 E. 17th Ave., Ste. 585 Denver, CO 80203 (303) 371-1822 bl@kolkoassociates.com Attorney for Plaintiffs Randy Dean Swensen and Izabela Bozena Meducka. Plaintiffs reside at 7495 S. Coolidge Way, Aurora, CO 80016. Case 1:15-cv-02642 Document 1 Filed 12/04/15 USDC Colorado Page 16 of 16

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