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Droegemeier v. Barr

United States District Court, D. Montana, Missoula Division

September 17, 2019

WILLIAM P. BARR, Attorney General of the United States; KIRSTJEN M. NIELSEN, Secretary of the Department of Homeland Security; L. FRANCIS CISSNA, Director of U.S. Citizenship and Immigration Services; EDWARD A. NEWMAN, District Director of the Vermont Service Center, U.S. Citizenship and Immigration Services, Defendant.


          Dana L. Christensen, Chief District United States District Judge.

         Before the Court is the Motion to Dismiss of the Federal Defendants. (Doc. 13.) In this lawsuit, Plaintiff Eric Christopher Droegemeier (“Droegemeier”) challenges the U.S. Citizenship and Immigration Services' denial of his I-130 Petition for Alien Relative, which he filed on behalf of his wife, Russian citizen Marina Droegemeier (“Marina”). At issue is whether the agency violated the Administrative Procedure Act (“APA”) when it denied Droegemeier's petition on the ground that Droegemeier “has been convicted of a specified offense against a minor, ” 8 U.S.C. § 1154(1)(A)(viii)(I)-more specifically here, of “an offense . . . that involves . . . [a]ny conduct that by its nature is a sex offense against a minor, ” 34 U.S.C. § 20911(7)(I).


         In early 1998, Droegemeier, an American citizen, was charged with one felony count of “lewd act upon a child” and one felony count of “anal and/or genital penetration by foreign object, ” with both charges relating to events alleged to have occurred in 1996. (Doc. 1-7.) In March 2003-over five years later-and in exchange for the dismissal of the felony charges, Droegemeier pled guilty to the misdemeanor violation of California Penal Code 647.6(a), which prohibits “annoy[ing] or molest[ing] [a] child under 18 years of age.” (Doc. 1-7 at 2.) He was sentenced to three years of probation. On June 15, 2010, a California court ordered that Droegemeier's guilty plea “be set aside and vacated and a plea of not guilty be entered and that the complaint be, and is hereby, dismissed” pursuant to a rehabilitative statute, California Penal Code § 1203.4.

         Droegemeier married Marina on January 10, 2009 in Grand Junction, Colorado. (Doc. 1-3.) Marina is a Russian citizen, born in 1986 in the Kabardino-Balkar Autonomous Soviet Socialist Republic, located in the far southwest corner of the former USSR, just north of Georgia. (Doc. 1-4.) Shortly after the wedding, the couple began seeking citizenship for Marina. Droegemeier filed a pro se Petition for Alien Relative, and Marina concurrently filed a pro se adjustment of status application. (Docs. 1 at 8 & 1-5.)

         In 2010, the United States Citizenship and Immigration Services (the “Services”) issued a Notice of Intent to Deny Droegemeier's petition on the basis of his prior conviction under California Penal Code § 647.6(a). (Doc. 1-5.) The Services wrote that this conviction “may render [him] ineligible to act as a petitioner” and that Droegemeier therefore “must submit” “[c]ertified copies of all existing police reports and court records relating to the offense”; “[a]ny existing trial transcripts”; “any other criminal, violent or abusive behavior, incidents, arrests, and/or convictions”; and “[t]he terms and conditions of [his] sentence, release, parole, [and/or] probation.” (Id.)

         Droegemeier filed a response, arguing that: (1) because California vacated his plea of guilt under California Penal Code § 1203.4, he had not been “convicted” of violating § 647.6(a); (2) violation of § 647.6(a) is not a “specified offense against a minor” and therefore is not grounds for denying his petition; and (3) even if Droegemeier had been convicted of a specified offense against a minor, his petition should be granted because he does not pose a danger to Marina. (Doc. 1-7 at 2-6.) He attached as criminal records the underlying criminal complaint (listing the two felony counts upon which he was not convicted) and the check-box judgment form listing his crime of conviction and imposing criminal penalties. (Doc. 17 at 15-18.) The Services rejected Droegemeier's arguments and denied his petition on June 10, 2011. (Doc. 1-6.)

         Droegemeier timely appealed the Services' denial of his petition to the Board of Immigration Appeals (the “Board”), making the same arguments previously made to the Services. (Docs. 1 at 9, 1-8, & 1-9.) The Board dismissed his appeal on March 10, 2017. In response to Droegemeier's argument that he had not been convicted of a crime, the Board relied heavily on its 2017 decision of In re Calcano de Millan, 26 I. & N. Dec. 904 (BIA 2017), in which it held that relief under California penal code § 1203.3 does not render a conviction void for the purpose of determining whether a citizen may petition for a status change for an alien family member. As for Droegemeier's contention that his offense was not a “specified offense against a minor, ” the Board referred to an earlier decision, In re Introcaso, 26 I. & N. Dec. 304 (2014), for the proposition that a petitioner bears the burden of proving, looking to the facts and circumstances of an underlying proceeding, that a conviction does not bar the filing of a petition.


         Droegemeier's challenge is brought pursuant to the APA, which demands that this Court “hold unlawful and set aside agency actions, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Ordinary administrative law principles, including the two-step Chevron test, govern challenges to the Board's construction of immigration statutes. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999).[2]

         Under Chevron, the Court must first determine “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The Court uses “traditional tools of statutory construction” to ascertain congressional intent. Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Cir. 2001) (en banc) (quoting Chevron, 467 U.S. at 843 n.9).

         If, on the other hand, the statute is ambiguous or silent on the issue, the Court proceeds to step two of the Chevron test, where “the question for the court is whether the agency's answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Review under step two is deferential; the Court “may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.” Id. at 844.


         Congress passed the Adam Walsh Act (“AWA”) “[t]o protect children from sexual exploitation and violent crime, to prevent child abuse and internet pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.” Pub. L. No. 10-9-248, pmbl., 120 Stat. 587 (2006). The AWA overhauled federal law relating to sex offenses against children. As relevant here, the AWA amended the Immigration and Nationality Act (“INA”) by placing a new limitation on family requests for citizenship changes, providing that a citizen is not entitled to petition for a change in a spouse's immigration status if that citizen “has been convicted of a specified offense against a minor.” 8 U.S.C. § 1154. The amended statute cross-references another provision of the AWA, which defines “a specified offense against a minor” to include, as relevant here, “an offense . . . that involves . . . [a]ny conduct that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I).

         Droegemeier challenges the Board's determination that, absent discretionary relief, he was foreclosed from seeking a status change for Marina. He argues that he has not “been convicted of a specified offense against a minor” because: (1) his conviction was vacated; and (2) the offense at issue does not qualify as a “specified offense.”

         I. The Board's Construction of “Conviction”

         Droegemeier and the Federal Defendants dispute whether the Board acted arbitrarily and capriciously in finding that Droegemeier was “convicted” of a crime when his conviction was later vacated under a rehabilitative statute. The INA provides a statutory definition of “conviction, ” but it applies only to aliens:

[t]he term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if ...

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