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Carkeet v. Director, National Benefits Center

United States District Court, M.D. Florida, Orlando Division

July 2, 2019

KENNETH DALE CARKEET, Plaintiff,
v.
DIRECTOR, NATIONAL BENEFITS CENTER, U.S. CITIZENSHIP AND IMMIGRATION SERVICES; DIRECTOR, USCB; and SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendants.

          ORDER

          ROY B.DALTON JR. UNITED STATES DISTRICT JUDGE

         In the instant action, Plaintiff Kenneth Carkeet sues Defendants over the denial of his Petition for Alien Relative ("Form 1-130 Petition") seeking permanent residence status for his spouse Alejandro Sanguines Carkeet. (Doc. 1, ¶¶ 1/10.) Plaintiff brings two counts against Defendants. In Count One, Plaintiff seeks a declaration that: (1) Defendants wrongfully denied his petition; or (2) alternatively, Defendants are infringing on his Fifth Amendment right to equal protection. (Id. ¶¶ 23-27.) In Count Two, Plaintiff seeks a writ of mandamus and injunctive relief compelling Defendants to adjudicate the application. (Id. ¶¶ 28-31.) Defendants move to dismiss this case for lack of subject matter jurisdiction and for failure to state a claim (Doc. 14 ("Motion")), which Plaintiff opposes (Doc. 16). On review, the Motion is granted.

         I. Background

         This action centers on Defendants the U.S. Citizenship and Immigration Services ("USCIS") and the Department of Homeland Security ("DHS") application of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act") to Plaintiffs Form I-130 Petition. (Doc. 1.) Among other things, the Adam Walsh Act prohibits U.S. citizens who have been convicted of any "specified offense against a minor" from filing a family-based visa petition on behalf of any beneficiary unless the Secretary of DHS, now delegated to USCIS, determines in its sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. (Doc. 1-1, p. 10.) "Specified offense against a minor" includes possession, production, or distribution of child pornography. (Id. at 11.)

         Plaintiff is a U.S. Citizen who has been married to Alejandro Carkeet, a citizen of Mexico, since August 1, 2013. (Doc. 1, ¶ 4.) After Plaintiff submitted his Form 1-130 Petition to USCIS on behalf of his spouse, USCIS notified him that his petition may be subject to review under the Adam Walsh Act based on records it obtained that Plaintiff was arrested and prosecuted in the Netherlands for trafficking in child pornography. (Doc. 1, ¶¶ 4, 17-19; Doc. 1-1, pp. 92-93.) So USCIS requested additional evidence from Plaintiff, specifically certified copies of Plaintiff s arrest records and court dispositions, to evaluate the nature and circumstances of this charge. (Id.) Plaintiff responded that he couldn't obtain the requested records because Dutch law forbids sending written personal information to anyone. (Id. at 94-95.)

         USCIS then sent Plaintiff a "Request for Evidence and Notice of Intent to Deny" thoroughly explaining the Adam Walsh Act, how it works, and what Plaintiff could submit to prevent the denial of his Form 1-130 Petition. (Id. at 10-14.) Specifically, USCB stated, "The evidence you submit must clearly establish that either: (a) you were not convicted of violating Dutch Criminal Code, Article 240b; or (b) the offense for which you were convicted is not a 'specified offense against a minor' as set forth in Section 111(7) of the Adam Walsh Act." (Id. at 11.) To prove either, USCIS told Plaintiff he must submit: (1) certified copies of all police reports and court records relating to the offense; (2) any existing trial transcripts describing the nature and circumstances surrounding his offense, including information as to the specific age of the victim; and (3) the terms and conditions of his sentence, release, parole, probation, and any other related requirements. (Id. at 12.)

         On the other hand, if Plaintiff was convicted of a "specified offense against a minor" as defined by the Adam Walsh Act, USCIS informed him that his petition "will be denied unless [he] submit[s] evidence that demonstrates, beyond any reasonable doubt, that [he] pose[s] no risk to the safety and well-being of the Beneficiary." (Id.) In making this "no risk" determination, USCIS informed Plaintiff that it would consider "all known factors" that were relevant "including, but not limited to: the nature, severity and circumstances of the conduct which led to [his] adjudication" and he "should submit evidence" such as "certified copies of all police reports and court records relating to the offense" for USCIS to complete this evaluation. (Id. (emphasis added).) At the end of the day, USCIS informed Plaintiff that" [i]n visa petition proceedings, the petitioner bears the burden of establishing eligibility for the benefits sought." (Id. at 13 (citing Matter of Brantigan, 11 l&NDec. 493 (BIA1966)).)

         In response, Plaintiff submitted letters from family members, friends, and his counsel and evaluations from a psychologist and mental health counselor. (Id. at 4; see Id. at 15-90.) He did not submit any copies of police reports, arrest records, or court records relating to the offense as required to establish that he was not convicted of violating the Dutch Criminal Code or that this conviction is not a specified offense against a minor. (Id. at 3-5.) Nor did he submit "documentary evidence" to support his counsel's assertion that it would be an undue burden to travel to the Netherlands to obtain these documents. (Id. at 4.) So, at the first step, USCIS found that Plaintiff failed to satisfy his burden of proof "to establish thathe wasnot convicted ... or that such a conviction is not a specified offense against a minor." (Id. at 4-5.)

         Thus, "to avoid the denial of his family-based visa petition," USCIS turned its inquiry to whether Plaintiff submitted "evidence demonstrating, beyond any reasonable doubt, thathe poses no risk to the Beneficiary of the petition." (Id. at 5.) This turned on several relevant factors: (1) the nature and severity of the offense; (2) Plaintiff's criminal history; (3) Plaintiff's completion of his sentence; (4) Plaintiff's relationship to the Beneficiary, the age and gender of the Beneficiary, and whether Plaintiff and the Beneficiary would be residing in the same household; (5) Plaintiff's completion of counseling or rehabilitation; and (6) Plaintiff's submission of certified evaluations. (Id. at 5-7.) Given the lack of evidence related to the underlying offense, USCIS was unable to evaluate the first and third factors. (Id.) It also gave little probative value to the counseling and rehabilitative evidence and Plaintiff's service record, which preceded the Netherlands charge. (See id.) Overall, USCIS concluded:

Considering the nature and severity of [Plaintiffs] Adam Walsh Act qualifying offense, the complete absence of police and court records, the complete absence of Petitioner's terms and conditions of sentence, and the lack of any risk assessment for [Plaintiff] by a qualified mental health professional, [Plaintiff] failed to demonstrate that he poses "no risk" to the safety and well-being of the Beneficiary. Accordingly, the petition is denied.

(Id. at 7.)

         USCIS informed Plaintiff of his right to appeal the decision. (Id. at 8.) He did not, instead filing a new petition for his spouse on May 9, 2018. (Doc. 1, ¶ 22.) USCIS issued a new request for criminal records from the Netherlands. (Id.) Plaintiff then initiated this action, bringing two claims against USCIS and DHS's directors. (Doc. 1.) First, he claims USCIS wrongfully applied the Adam Walsh Act to his Petition, as he "never conceded" that he has a qualifying conviction, and USCIS never identified a "source" for Plaintiffs conviction but required him to prove he hadn't been convicted. (Id. ¶ 24.) Then, assuming he had been convicted, Plaintiff claims that USCIS failed to follow its own implementing memorandum because the intended beneficiary is his spouse, not a child, and USCB didn't consider whether the possession charge would make Plaintiff a risk to his spouse. (Id. ¶ 25.) Alternatively, Plaintiff contends Defendants "are infringing on his right to equal protection under the law under the Firth [sic] Amendment to the U.S. Constitution" because it is irrational to apply the Adam Walsh Act to a spousal petition. (Id. ¶ 27.) Second, he seeks a writ of mandamus from this Court compelling Defendants to properly adjudicate his 1-130 Petition. (Id. ¶¶ 28-31.) Defendants have moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. (Doc. 14.) With Plaintiff's response (Doc. 16), the matter is ripe.

         II. Legal Standards

         A. R ...


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