The Effect of the Adam Walsh Child Protection and Safety Act on Immigration Law

Adam Walsh Act, myattorneyusa.com

 

Introduction

The Adam Walsh Child Protection and Safety Act of 2006 [PL 109-248, 120 STAT, July 27, 2006] [PDF version] was a broad piece of legislation designed to protect minors from sexual violence. In furtherance of that goal, the Adam Walsh Act amended selected sections of the Immigration and Nationality Act (INA). This article will explain the specific effects that the Adam Walsh Act has on immigration law.

To learn about the Adam Walsh Act's prohibition on the approval of immigrant visa petitions filed by petitioners who were convicted of a “specified offense against a minor” in greater detail, please see our dedicated article on the issue [see article].

Overview of the Adam Walsh Act and Immigration Law

The Adam Walsh Act (AWA) made three significant changes to immigration law:

1. Established a new ground of deportation for persons convicted under 18 U.S.C. § 2250 [PDF version] for failing to register as a sex offender [found in INA § 237(a)(2)(A)];
2. Prohibited U.S. citizens (USCs) and lawful permanent residents (LPRs) who have been convicted of certain sexual offenses against a minor, as defined in section 111(7) of the AWA, from filing immigrant petitions on behalf of family members, unless in the “unreviewable discretion” of the Secretary of Department of Homeland Security (DHS) the petitioner poses no risk to the beneficiary;
3. Prohibited the approval of a K-visa petition if the petitioner has been convicted of certain sexual offenses against a minor as defined in section 111(7) of the AWA, unless in the “unreviewable discretion” of the Secretary of DHS, the petitioner poses no risk to the beneficiary.1

Furthermore, 18 U.S.C. § 4248(a) contains AWA provisions that can apply to the detention of aliens [but that are not limited to aliens] who are committed to the custody of the Attorney General or the Federal Bureau of Prisons (BOP) and who would otherwise be released on account of a mental condition, but who may be kept in BOP custody upon being determined to be sexually dangerous.2

Deportability Ground for Aliens Who Fail to Register as Sex Offenders

Section 237(a)(2)(A)(v) [PDF version] of the INA, as amended by the AWA, provides that any alien who is convicted under 18 U.S.C. § 2250 [PDF version] is deportable. 18 U.S.C. § 2250 [PDF version] provides that persons who are required to register under the Sex Offender Registration and Notification Act [PDF version] and who fail to do so “shall be fined under this title or imprisoned not more than 10 years, or both.” Furthermore, those who failed to register and who then subsequently commit a “crime of violence” “shall be imprisoned for not less than 5 years and not more than 30 years.”

Such a conviction under 18 U.S.C. § 2250 [PDF version] would likely be catastrophic for an alien, resulting in, among other serious repercussions, ineligibility for non-LPR cancellation of removal [see article]. It is critical that any alien who has been convicted of an offense that requires registration as a sex offender rigorously complies with every aspect of that filing requirement.

Prohibition Against Petitioning for Family Members and Fiancées

Please note that this section only provides a brief overview of the issues. Please see our full article on this provision of the Adam Walsh Act, along with its links to our articles on relevant Board of Immigration Appeals (BIA) decisions, to learn more [see article].

INA §§ 204(a)(1)(A)(viii) and 204(a)(1)(B)(i)(II) [PDF version] prohibit any USC or LPR who has been convicted of an offense against a minor that is included in section 111(7) of the AWA from filing an immigrant petition for a family member. It is important to note that the prohibition affects any family-based immigrant petition, not only family-based petitions for minors. This section also applies to K-visa petitions for fiancées of USCs or LPRs. The specified offenses against a minor are:

(A) Offenses involving kidnapping [unless committed by a parent or guardian]
(B) Offenses involving false imprisonment [unless committed by a parent or guardian].
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in 18 U.S.C. § 1801.3
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.

Point I of AWA § 111(7) includes crimes listed in section 111(5)(A) of the AWA.4 These provisions define “sex offense” by the statute and include:

(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 11535 of title 18, United States Code) under section 1591,6 or chapter 109A, 1107 (other than section 2257, 2257A, or 2258), or 117,8 of title 18, United States Code;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).

AWA § 111(5)(B) extends the sex offenses covered under AWA 111(7)(I) to foreign convictions unless the foreign convictions were deemed to not have been obtained with proper safeguards and due process for the accused.9 Do note that section 111(5)(C) of the AWA [stet] from the sex offenses definition a foreign conviction for “an offense involving consensual sexual conduct” where the victim was at least 13 years old, and the offender was not more than 4 years older than the victim.10 The Board of Immigration Appeals (BIA) has held that the provisions of the AWA may be applied retroactively to convictions prior to the enactment of the AWA, which was July 27, 2006.11

According to a 2006 USCIS interoffice memorandum [PDF version], ineligibility of a USC or LPR to petition for a family-based immigrant visa may only be waived in the if the Secretary of DHS determines in his or her “sole and unreviewable discretion that the petitioner poses no risk to the beneficiary.”12

It is the position of DHS that it has sole discretion to issue waivers. Accordingly, a denied waiver request must be appealed to the Administrative Appeals Office (AAO) rather than the BIA. In 2007, USCIS released a memorandum [PDF version] 13 that instructed that the following evidence may support a petitioner's claim that he or she, despite the conviction, poses no risk to the beneficiary:

certified records, including successful competition of counseling or rehabilitation programs;
certified psychological evaluations conducted by licensed professionals which attest to the degree of a petitioner's rehabilitation or behavior modification;
evidence of good and exemplary service to the community or in the uniformed services;
certified copies of police and court records relating to the offense; and
news accounts and transcripts describing the nature and circumstances surrounding the petitioner's specified offence(s) against a minor and any other criminal, violent, or abusive behavior incidents.

In deciding whether or not to grant a waiver, USCIS will consider, among other factors, the following:

the nature and severity of the offense(s) against a minor;
petitioner's criminal history;
the nature, severity, and mitigating circumstances of any arrest(s), conviction(s), or other factors that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary;
the relationship between the petitioner and the beneficiary and any derivative beneficiary;
the age and, if relevant, the gender of the beneficiary;
whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and
the degree that rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary (evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between the incidence of violent, criminal, or abusive behavior and the submission of the petition).

If the intended beneficiary is a child, USCIS adjudicators are required to “automatically presume that risks exist,” and the burden will be upon the petitioner to overcome the presumption of risk. There is no presumption of risk if none of the petitioner's intended beneficiaries are children, but the burden will still be on the petitioner to demonstrate that he or she poses no risk to the beneficiary. In the event that a petition is approved, USICS adjudicators are nevertheless instructed to disclose any adverse information to the intended beneficiary.

Detention Provisions Under the Adam Walsh Act

18 U.S.C. § 4242(a) relates to persons who are either in BOP custody, committed to the custody of the Attorney General, or who have had all criminal charges dismissed solely on account of a mental condition. In this scenario, the Attorney General, an individual authorized by the Attorney General, or the Director of the BOP may certify that such a person is a “sexually dangerous person,” which will then trigger a hearing to determine whether the person is in fact a “sexually dangerous person.” If the court determines that the person is a sexually dangerous person, his or her release from custody will be stayed. This statute applies to aliens as well as other persons. However, note U.S. v. Hernandez-Arenado, 571 F.3d 662 (7th Cir. 2009) [PDF version], wherein the Seventh Circuit held that an alien who was held in ICE custody, despite being housed in a BOP facility, was not in BOP custody for purpose of the AWA, and thus could not be indefinitely detained as a “sexually dangerous person” under the AWA provisions in 18 U.S.C. § 4242(a).

Conclusion

The main effect of the Adam Walsh Act on immigration law relates to family-based immigrant visa petitions and K visa petitions. A conviction for one of the offenses against a minor specified in the Walsh Act will more often than not be fatal to eligibility to act as a petitioner for a family-based or K visa, especially if the intended beneficiary is a minor. However, the particular facts and circumstances of a given case, especially where none of the intended beneficiaries are children, may make obtaining a waiver possible. Persons in this situation should consult with an experienced immigration attorney for further guidance. To learn more about family-based immigrant visa petitions [see category] and K-1 and K-2 visas [see article], please follow the two links in this passage.

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  1. Citing for the list, I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. (ALIA Publications 14th ed. 2014) 23
  2. Kurzban 583
  3. Defined as “the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy.” [18 U.S.C. § 1801(a)]
  4. Kurzban 1125
  5. Including offenses committed within Indian country.
  6. Sex trafficking of children by “force, fraud, or coercion.”
  7. Chapters 109A and 110 list various categories of sexual abuse, sexual exploitation of, and sexual crimes against children.
  8. Provisions for transportation for purpose of illegal sexual activity.
  9. Kurzban 1125
  10. Id.
  11. Id., citing Matter of Jackson, 26 I&N Dec 314 (BIA 2014)
  12. Memo, Aytes, Assoc. Dir. Domestic Ops., 70/1-P (July 28, 2006)
  13. Memo, Aytes, Assoc. Dir. Domestic Ops., 70/1-P (Feb. 8, 2007)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 113, 1034, 1125, Print. Treatises & Primers.