Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017): Definition of "Conviction" Under Adam Walsh Act

 

Introduction: Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017)

On January 12, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017) [PDF version]. The decision dealt with when a U.S. citizen petitioner has been “convicted” of an offense for purpose of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act”) and section 204(a)(1)(A)(viii)(I) of the Immigration and Nationality Act (INA). The Board held that a U.S. citizen is considered to be convicted for purpose of section 204(a)(1)(A)(viii)(I) “where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner's guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.” The decision essentially adopts the same standard for determining whether a U.S. citizen petitioner was “convicted” of a specified offense against a minor under the Adam Walsh Act that would be used for an LPR petitioner. Notably, it clarifies the adjudicative principles when the “adjudication of guilt has been withheld.”

Matter of Calcano de Millan

In this article, we will examine the facts and procedural history of the Matter of Calcano de Millan, the Board's reasoning and decision, and what it means for U.S. citizen or LPR petitioners who may be subject to the Adam Walsh Act, which prohibits U.S. citizens and LPRs who have been convicted of certain sexual offenses against minors from petitioning for an alien relative.

Before reading, please see our full article on the Adam Walsh Act and immigration law [see article].

Factual and Procedural History: 26 I&N Dec. at 904-905

The petitioner, a U.S. citizen, was convicted in 2001 of sexual battery by restraint in violation of section 243.4(a) of the California Penal Code.

The United States Citizenship and Immigration Services (USCIS) Director adjudicating the petitioner's petition determined that his conviction was for a “specified offense against a minor,” as defined in section 111(7) of the Adam Walsh Act (codified as amended at 42 U.S.C. 16911(7) (2012)). The Director then determined that the petitioner had failed to establish that he posed no risk to the beneficiary. Such a determination would have allowed the petition to be approved despite the petitioner's Adam Walsh Act-covered conviction. Due to this determination, the Director determined that the petitioner was ineligible to have his petition approved.

The petitioner conceded that he had been convicted of sexual battery, that his sentence to 4 years of imprisonment had been suspended, and that he had been required to comply with California's sex offender registration requirements. However, the petitioner submitted documentation showing that his conviction had been set aside in 2006 under section 1203.4 of the California Penal Code. Due to his conviction being set aside, the petitioner argued that he had not been “convicted” of a specified sexual offense against a minor under the Adam Walsh Act.

The Director determined that the petitioner's post-conviction relief did not negate his conviction for purposes of the Adam Walsh Act. The Director made this decision upon finding that the relief was granted under a rehabilitative statute, rather than on account of a “procedural or substantive defect in the underlying criminal proceedings.” To this effect, the Director cited to the published Board decisions in the Matter of Pickering, 23 I&N Dec. 621 (BIA 2003) [PDF version], Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000) [PDF version], and Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) [PDF version]. All three of these decisions dealt with the effect of post-conviction relief for criminal convictions in the immigration context.

Issue

The question before the Board was whether the petitioner had a qualifying “conviction” under the relevant provision of the Adam Walsh Act and section 204(a)(1)(A)(viii)(I) of the INA. The petitioner argued that his conviction, having been set aside under California law, was not a “conviction” for purpose of filing a family-sponsored immigrant visa petition under the INA. For reasons that we will examine, the Board ultimately agreed with the Immigration Judge that the petitioner had been convicted of a specified offense against a minor, rendering him subject to the Adam Walsh Act's prohibition on filing a family-sponsored immigrant visa petition.

Analysis of the Statute: 26 I&N Dec. at 905

The Board explained that section 204(a)(1)(A)(i) of the INA states that “any citizen of the United States” may file a family-sponsored immigrant visa petition based on a qualified relationship. However, section 204(a)(1)(A)(viii)(I) of the INA states that clause (i) (see above provision) does not apply to a U.S. citizen “who has been convicted of a specified offense against a minor” may not file such petition unless the Secretary of Homeland Security determines, in his or her sole and unreviewable discretion, that the citizen poses no risk with respect to the petition beneficiary.

Discussion of the Term “Conviction”: 26 I&N Dec. at 906-907

Both parties in the instant case agreed that neither the Adam Walsh Act nor section 204(a)(1)(A)(viii)(I) define the term “conviction.” However, the INA does provide a definition of “conviction” in section 101(a)(48)(A). The Board quoted the relevant statute:

A. The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where-

  • i. a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
  • ii. the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

The Board noted that section 101(a)(48)(A) applies to “an alien.” This language presented an interesting question in the instant case because the petitioner was a U.S. citizen. However, the Board noted that section 101(a) defines terms broadly “[a]s used in [the INA].” Furthermore, the Board noted that section 204(a)(1)(B)(i) extends the provisions of the Adam Walsh Act to LPRs, who are of course “aliens.” Therefore, the Board determined that because section 101(a)(48)(A) applies to the INA broadly, and because the definition of conviction in section 204(a)(1)(B)(i) applies to aliens (LPRs specifically), there existed “no reason to apply a different interpretation of the term 'conviction' to [U.S.] citizens…”

Definition of Conviction Under Adam Walsh Act for U.S. Citizen Petitioners: 26 I&N Dec. at 907

The Board stated that there is no single uniform definition of the term “conviction.” Rather, the meaning of “conviction” tends to be context-dependent. Accordingly, the Board endeavored to provide a uniform definition of “conviction” that applies to section 204(a)(1)(A)(viii)(I) of the INA for U.S. citizen petitioners.

The Board concluded that the definition of “conviction” for section 204(a)(1)(A)(viii)(I) as applied to U.S. citizen petitioners should include “the same elements as those in section 101(a)(48)(A)…”

Accordingly, the Board held that a U.S. citizen petitioner “will be considered to have been 'convicted' of an offense where either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner's guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”

The Board stated that its definition was both consistent with the purpose of the Adam Walsh Act and within the scope of Federal and State laws pertaining to sex offenders.

Rejecting Petitioner's Arguments Regarding Post-Conviction Relief: 26 I&N Dec. at 908

The Board stated that it was “unpersuaded by the petitioner's argument that he does not have a 'conviction' within the meaning of the Adam Walsh Act because he been granted rehabilitative relief under section 1203.4(a)(1) of the California Penal Code.”

The Board recognized that the petitioner was “released from all penalties and disabilities resulting from the offense of which he or she has been convicted” (quoting from the statute). However, the Board cited to the Matter of Marroquin, 23 I&N Dec. 705, 714, n.7 (AG 2005) [PDF version], in noting that “there are considerable limitations on such rehabilitative relief under California law.”

For example, the Board explained, although section 1203.4(a)(1) of the California Penal Code “indicates that an offender will generally be released from disabilities resulting from his or her conviction, it does not affect the existence of a conviction for the purpose of revoking or suspending a driver's license.” The Board explains that section 1203.4(a)(1) also does not negate the existence of the conviction for any subsequent criminal proceedings, and that the individual must disclose the fact of the conviction “in any application for public office or licensure by a State or local agency.

Broader Rule Regarding Rehabilitative Relief: 26 I&N Dec. at 908-910

The Board explained that section 1203.4(a)(2) makes explicit that the dismissal of the conviction does not remove restrictions that the conviction may impose on firearm ownership or possession. Section 290.007 of the California Penal Code requires a sex offender to continue to register as such regardless of whether his or her conviction was dismissed under section 1203.4, unless he or she obtains a certificate of rehabilitation.

For the foregoing reasons, the Board held that it was not convinced that rehabilitative treatment under section 1203.4 had any effect on the conviction for purposes of the Adam Walsh Act and section 204(a)(1)(A)(viii)(I) of the INA.

Additionally, the Board noted that many states aside from California “permit various disabilities to continue to adhere, even where a State may otherwise offer rehabilitative relief.” The Board found that the substantial limits on rehabilitative relief for sex offenders imposed in the majority of states “support the adoption of a uniform definition of a 'conviction' for purposes of the Adam Walsh Act…” The Board that is definition “recognizes a conviction where there had been an adjudication or admission of guilt or responsibility and the imposition of a punishment, even if the offender is afforded some measure of relief under a rehabilitative statute.” To this effect, the Board cited to its precedent decision in the Matter of Salazar, 23 I&N Dec. 223, 230 (BIA 2002) [PDF version].

Additional Challenges: 26 I&N Dec. at 910-911

The Board also rejected the petitioner's argument that his violation of section 243.4(a) of the California Penal Code does not constitute a “specified offense against a minor.” The petitioner had relied upon the Ninth Circuit decision in Sanchez-Avalos v. Holder, 693 F.3d 1011 (9th Cir. 2012) [PDF version], abrogated in part by Descamps v. United States, 133 S.Ct. 2276 [PDF version] [see article], wherein the Ninth Circuit held that section 243.4(a)did not qualify as the aggravated felony “sexual abuse of a minor” under a categorical analysis because the age of the victim was not an element of the statute. However, the Board noted that it held in the Matter of Introcaso, 26 I&N Dec. 304, 309-310 (BIA 2014) [PDF version], that an adjudicator may rely on the “circumstance specific approach” rather than the “categorical approach” in determining whether a conviction is for a “specified offense against a minor.” This approach allows for an inquiry into the facts and circumstances of the offense to determine the age of the victim and the conduct underlying the conviction. The Board found that an analysis of the record showed that the victim in the instant case was 14 or 15, and that the petitioner had submitted a background report during USCIS adjudications indicating that the victim was a minor.

The Board declined to consider the petitioner's arguments that the Director erred in assessing the risk he may present to the beneficiary for lack of jurisdiction. It also declined to consider the petitioner's argument that section 204(a)(1)(A)(viii)(I) is unconstitutional.

Decision: 26 I&N Dec. at 911

The Board concluded that the Director properly found that the petitioner had been convicted of a specified offense against a minor under section 204(a)(1)(A)(viii)(I) of the INA. By statute, the Board lacked jurisdiction to review the Director's determination that the petitioner failed to establish that he posed no risk to the beneficiary of the visa petition. For these reasons, the Board dismissed the petitioner's appeal.

Conclusion

The Matter of Calcano de Millan sets forth a clear definition of what constitutes a conviction under the Adam Walsh Act when the petitioner is a U.S. citizen. In general, the decision means that post-conviction relief will not negate a qualifying conviction under the Adam Walsh Act and section 204(a)(1)(A)(viii)(I) unless the relief was granted based on a defect in the underlying criminal proceedings.

An immigrant visa petitioner should consult with an experienced immigration attorney throughout the petitioning process. If the U.S. citizen or LPR petitioner has a conviction that may render him or her subject to the provisions of the Adam Walsh Act, an experienced immigration attorney will be able to examine the conviction and any post-conviction relief obtained by the petitioner. If the conviction is applicable, an immigration attorney may determine if the petitioner has evidence to establish that he or she does not pose a threat to the petition beneficiary.