United States District Court, D. Montana, Missoula Division
L. Christensen, Chief District United States District Judge.
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.
AND PROCEDURAL BACKGROUND 
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.
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.)
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.”
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.)
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.
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).
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
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.
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).
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
The Board's Construction of
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 ...