Introduction

  

On July 27, 2006, The Adam Walsh Child Protection and Safety Act of 2006 took effect. The Adam Walsh Act is a broad piece of legislation designed to protect minors from sexual violence and to target perpetrators. Among its myriad provisions, the Adam Walsh Act amended provisions of the Immigration and Nationality Act (INA). Please see our general article on the Adam Walsh Act and immigration law to learn about the various provisions of the INA that it amended [see article]. In this article, we will examine the Adam Walsh Act prohibitions on the approval of family-based immigrant visa petitions filed by U.S. citizen and lawful permanent resident (LPR) petitioners who have been convicted of a “specified offense against a minor,” which is the most broad-reaching provision of the legislation involving immigration. The prohibition also extends to U.S. citizens filing K nonimmigrant petitions.

  

https://www.youtube.com/watch?v=uddF5AQ_2NE

  

Statutes: “Specified Offense Against a Minor” Prohibition on Family-Based Petition Approval

  

Section 204(a)(1)(A)(viii)(I) of the Immigration and National Act (INA) prohibits a U.S. citizen petitioner who has been convicted of a “specified offense against a minor” from having a family-based immigrant visa petition approved on behalf of a relative. It is important to note that this applies to all family-based petitions regardless of whether the petition beneficiary is a minor. The statute provides a limited exception in the event that the Secretary of Homeland Security, in his or her “sole and unreviewable discretion,” determines that the petitioner poses no risk to the beneficiary. Section 204(a)(1)(B)(i)(II) contains an identical provision for lawful permanent resident (LPR) petitioners. Under sections 101(a)(15)(K)(i) and (ii) of the INA, this prohibition is extended to petitioners for K1 and K2 (fiancé and derivatives) and K3 and K4 (certain alien spouses and derivatives) beneficiaries.

  

Defining “Specified Offense Against a Minor”

  

Under section 204(a)(1)(A)(viii)(II), the term “specified offense against a minor” is defined in 42 U.S.C. 16911, which codified the relevant provision of the Adam Walsh Act (section 111(7)). The following is the list of specified offenses against minors found in 42 U.S.C. 16911(7):

  

(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 [see article].
  (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.

  

It is important to note that under 42 U.S.C. 169111(14), a “minor” is defined as an individual who has not yet attained the age of 18.

  

Under 42 U.S.C. 16911(B), foreign convictions do not qualify as “sex offense” convictions under the Adam Walsh Act if they were “not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations…” Otherwise, foreign convictions may qualify.

  

Under 42 U.S.C. 16911(C), an offense involving consensual conduct is not a conviction under 42 U.S.C. 16911 if the victim was at least 13 years old and the offender was not more than four years older than the victim.

  

United States Citizenship and Immigration Services Guidance

  

The most comprehensive United States Citizenship and Immigration Services (USCIS) guidance regarding the implementation of the Adam Walsh Act was released on February 8, 2007. The Memorandum, authored by then USCIS Associate Director, Domestic Operations, Michael Aytes, is titled “Guidance for Adjudication of Family-Based Petitions and I-129F Petition for Alien Fiancé(e) under the Adam Walsh Child Protection and Safety Act of 2006” (“2007 Aytes Memo”) [PDF version].

  

Relevant Laws Are Those In Effect At Time of Decision on the Petition

  

The 2007 Aytes Memo made clear, citing to the Board of Immigration Appeals (BIA) precedent decision in the Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992) [PDF version], that “[i]n general, an application for benefits under the [INA] is adjudicated according to the facts and law as they exist on the date of the decision.” This means that the USCIS may bar approval for petitions under the Adam Walsh Act based on convictions pre-dating the enactment of the Adam Walsh Act. It may also deny petitions based on the Adam Walsh Act that were initially filed prior to its enactment. As we will examine in the section on Board of Immigration Appeals (BIA) precedent decisions on the Adam Walsh Act, this guidance has subsequently been upheld.

  

The Aytes guidance instructs USCIS adjudicators that, in order for an offense to be a “specified offense against a minor,” the crime of conviction “must be substantially similar to an offense defined as such in the Adam Walsh Act.”

  

Procedures for Determining Whether Petitioner Was Convicted of “Specified Offense Against a Minor”

  

The 2007 Aytes Memo cited to a July 28, 2006 Memorandum that Aytes had issued on the Adam Walsh Act titled “Adam Walsh Child Protection and Safety Act of 2006” (“2006 Aytes Memo”) [PDF version] for the procedures to be followed when a background check of the petitioner raises Adam Walsh Act concerns. In this event, USCIS officers are directed to issue a Request for Evidence (RFE) to the petitioner “for all police arrest records and court disposition documents and schedule the petitioner for fingerprints if the petitioner’s IBS check revealed a hit for any offense that is or potentially may be a ‘specified offense against a minor’ as specified…” (quote from 2007 Aytes Memo).

  

The 2007 Aytes Memo notes that if the petitioner in question is a LPR, the case must be handled in accordance with IBIS procedures relating to an “egregious public safety threat.” If it is determined that the conviction in question meets the definition of an “egregious public safety threat,” the USCIS will suspend adjudication of the petition and make a referral to the United States Immigration and Customs Enforcement (ICE). Depending on the facts of the case, the ICE may opt to institute removal proceedings against the LPR petitioner if the offense renders him or her deportable. It is important to note, however, that this provision only applies to LPR petitioners. It does not apply to U.S. citizen petitioners because U.S. citizens are not subject to immigration enforcement.

  

If the petition has already been approved, the USCIS adjudicator must issue an RFE or a Notice of Intent to Revoke (NOIR) “for applicable police arrest records and court disposition documents.”

  

The 2007 Aytes Memo states that if the petitioner fails to response to the RFE or NOIR, the petition should be denied or revoked accordingly. For this reason, it is crucial for petitioners to respond to an RFE or NOIR.

  

If the fingerprint results and other evidence submitted in response to an RFE or NOIR establish that the petitioner was not in fact convicted of a “specified offense against a minor,” the USCIS will resume adjudication of the petition in accordance with the applicable regulations.

  

However, in the event that the adjudicator is unsure whether the petitioner’s conviction is a “specified offense against a minor,” or where a criminal case pending against the petitioner is pending or the result of a criminal case in question is otherwise unknown, the USCIS adjudicator will forward the file to USCIS attorneys.

  

Making a “No Risk to the Beneficiary” Determination

  

If the USCIS determines that the petitioner was convicted of a specified offense against a minor, the petition will be denied unless the USCIS is satisfied that the petitioner poses no risk to the alien beneficiary. The petitioner must establish that he or she not only poses no risk to the principal beneficiary but also to any derivative beneficiaries.

  

In responding to an RFE or NOIR, the petitioner must submit evidence supporting his or her case for “no risk to the beneficiary” in order for the evidence to be considered. The petitioner must submit evidence that clearly establishes, “beyond a reasonable doubt,” that he or she poses no risk to the beneficiary. The 2007 Aytes Memo addresses the types of evidence that may support the petitioner’s case:

  

Certified records indicating successful completion of counseling or rehabilitation programs;
  Certified evaluations conducted by licensed professionals, such as psychiatrists, criminal psychologists, or clinical social workers, which attest to the degree of a petitioner’s rehabilitation or behavior modification;
  Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services;
  Certified copies of police reports and court records relating to the offense (the court records must include the original indictment or other charging document, any superseding charging document, any pre-sentencing report, and the conviction judgment); and
  News accounts and trial transcripts describing the nature and circumstances surrounding the petitioner’s specified offense(s) against a minor and any other criminal, violent, or abusive behavior incidents, arrests, and convictions.

  

The above list is non-exhaustive, but represents the basic types of evidence that a petitioner would be well-advised to submit, where applicable. The weight and credibility afforded to the evidence is subject to the sole and unreviewable discretion of the USCIS.

  

In rendering a decision on a “no risk” determination, the USCIS will consider the following factors:

  

The nature and severity of the offense(s) against a minor;
  The 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).

  

The primary purpose of the Adam Walsh Act is to protect children from sexual violence. Accordingly, the 2007 Aytes Memo instructs adjudicators that they must “automatically presume that risk exists in any case where the intended beneficiary is a child, irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another.” This means that the petitioner will face a very high burden in endeavoring to have a petition for a child approved. The 2007 Aytes Memo makes clear that the petitioner bears the burden to rebut and overcome this presumption through the provision of credible and persuasive evidence of rehabilitation and any other relevant evidence to support the claim, beyond a reasonable doubt, that he or she poses no risk to the intended child beneficiary.

  

The automatic presumption does not apply where no intended beneficiary of the petition is a child. However, it is important to understand that the Adam Walsh Act bars apply to all family-based petitions, not just those involving child beneficiaries. Where no beneficiary is a child, the 2007 Aytes Memo instructs adjudicators to “closely examine the petitioner’s specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary.” The Memo instructs adjudicators to pay special attention to “past acts of spousal abuse or other acts of violence…” Merely establishing that his or her past offense(s) were only perpetrated against children would not by itself be sufficient for the petitioner to establish that he or she poses no risk to an adult beneficiary. The same applies in circumstances where the adult beneficiary would not be living in the same household or in close proximity to the petitioner. The petitioner bears the burden of proving beyond a reasonable doubt that he or she poses no risk to the intended adult beneficiary.

  

If the USCIS adjudicator determines that the petitioner has failed to establish that he or she poses no risk to the beneficiary, the adjudicator must deny the petition “and clearly articulate the factual basis for the determination.”

  

If a petition is denied or if an approved petition is revoked, the petitioner will be notified of his or her right to appeal the adverse decision to the Administrative Appeals Office (AAO).

  

Several Federal appellate courts have determined that the denial of an immigrant visa petition under the Adam Walsh Act is not subject to judicial review. Please see the relevant section of this article for more information [see section].

  

Handling of Petitions Affected by Adam Walsh Act

  

On April 22, 2011, the USCIS released a Policy Memorandum titled “Supplemental Guidance to USCIS Service Centers on Adam Walsh Act Adjudication — Centralization of Identified Adam Walsh Act Related Petitions at the Vermont Service Center for Adjudication and Review (AFM Update AD11-23)” (“2011 Memo”) [PM-602-0033.1]. This was the last major USCIS policy guidance issued on the Adam Walsh Act as of the publication of this article.

  

Under the 2011 Memo, where an adjudicator determines that a family-based immigrant visa petition warrants review as an Adam Walsh Act case, the case files will be centralized at the Vermont Service Center.

  

The 2011 Memo provided guidance for making an initial determination that a petition warrants review as an Adam Walsh Act Case (paraphrased):

  

1. The adjudicator must run front-end criminality searches and, if a hit results, make a preliminary determination of whether the Adam Walsh Act applies;
  2. If no Adam Walsh Act criminality information is found as a result of the front-end search, the adjudicator must run all petitioner aliases through the IBIS Manifest to determine preliminary Adam Walsh Act applicability before taking steps to adjudicate the relevant petition (such as issuing a RFE); and
  3. The adjudicator must run any new aliases of the petitioner discovered during adjudication.

  

Important Board of Immigration Appeals Precedent Decisions

  

The Board of Immigration Appeals (BIA) has issued several important decisions regarding the applicability of the Adam Walsh Act to immigrant visa petitions. These decisions have generally supported the broad application of the Adam Walsh Act. The following decisions were all published on and after May 20, 2014, meaning that they post-date the most recent USCIS guidance on the issue. In this section, we will review the decisions in brief. Please see the links to related articles for more information.

  

1. BIA Lacks Jurisdiction to Review a “No Risk” Determination by USCIS

  

On May 20, 2014, the Board issued a published decision in the Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014) [PDF version]. In this case, the Board held that it lacks jurisdiction to review a “no risk” determination by the USCIS. This means that where a petitioner is found to have been convicted of a “specified offense against a minor,” and where the USCIS determines that the petitioner failed to establish that he or she poses no risk to the intended petition beneficiary, the Board may not examine the USCIS’s no risk determination. As we will see, however, the Board may review whether a conviction itself was for a “specified offense against a minor.” This decision applies to cases in which the fact that the conviction does qualify as a “specified offense against a minor” is established.

  

One key point of this decision was that, under statute, the authority to make a “no risk” determination is solely vested in the Secretary of Homeland Security. The USCIS is part of the Department of Homeland Security (DHS), and thus exists under the Secretary. Conversely, the BIA is part of the Department of Justice (DOJ), an entirely separate Federal agency. See 26 I&N Dec. at 299. Note that an initial appeal may be made to the AAO, which is part of the DHS.

  

2. Adjudicators May Apply “Circumstance-Specific Approach” to Determine if Conviction Was for “Specified Offense Against a Minor”

  

Also on May 20, 2014, the Board issued a published decision in the Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014) [PDF version]. Matter of Introcaso clarified two key points regarding Adam Walsh Act cases.

  

First, the Board held that the petitioner bears the burden of proving that he or she has not been convicted of a “specified offense against a minor.” Because the issue arises in the context of an immigrant visa petition, the burden never shifts from the petitioner to the government. The result is that, in a questionable case, the petitioner for an immigrant visa must prove that his conviction is not one defined under 42 U.S.C. 16911. Please see our article on the Matter of Brantigan, 11 I&N Dec. 493 (BIA 1966) [PDF version] [see article] for a discussion on the burden of proof in immigrant visa proceedings in general (note that it was relied upon in Matter of Introcaso). This holding was consistent with the 2007 Aytes Memo’s position.

  

Second, and perhaps most important, the Board held that adjudicators may apply what is called the “circumstance-specific approach” in determining whether a petitioner was convicted of a “specified offense against a minor.” The issue raised was whether adjudicators must be limited to looking at the language of the statute of conviction [see article for examples], or whether adjudicators may look beyond the statute of conviction in certain areas to determine the circumstances of the offense. The Board opted for the second approach, stating that it found “that the language and structure of the Adam Walsh Act invite a circumstance-specific inquiry into both the age of the victim and the conduct underlying the offense.” 26 I&N Dec. at 309. The Board took the position that offenses listed in 42 U.S.C. 16911(7)(A)-(E) “are not generally limited to offenses against minors. Id. Accordingly, the categorical approach would, for example, preclude the consideration of a kidnapping offense as a predicate offense for Adam Walsh Act purposes if the age of the victim is not specified in the statutory language. The Board stated that the question of whether an offense was against a minor under the Adam Walsh Act must, in most cases, “necessarily be determined by reference to the record of conviction or, if the conviction record is inconclusive, by reference to reliable evidence outside the record.” Id.

 

3. Adam Walsh Act Not Impermissibly Retroactive

 

The Board released a third Adam Walsh Act decision on May 20, 2014, in the Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014) [PDF version].

 

The question before the Board was whether convictions that occurred prior to the effective date of the Adam Walsh Act on July 27, 2006, could bar the approval of an immigrant visa petition under the Adam Walsh Act. Recall that the USCIS took the position that the relevant date is not when the conviction in question occurred, but rather when the decision was rendered on the petition.

 

The Board agreed with the USCIS’s interpretation. Although the Board noted that Congress did not explicitly provide that the Adam Walsh Act applied to convictions entered before its effective date, it determined, citing to the Supreme Court decision in Vartelas v. Holder, 132 S.Ct. at 1489-90 & n.7 [PDF version], “that where a statute addresses dangers that arise after its enactment, it does not operate ‘retroactively.’” 26 I&N Dec. at 317. The Board found that the Adam Walsh Act addresses dangers arising after its enactment, that is, danger to petition beneficiaries. The Board held that “[b]ecause the Adam Walsh Act addresses the potential for future harm posed by [] sexual predators to the beneficiaries of family-based visa petitions … , its provisions to convictions that occurred before its enactment does not have an impermissible retroactive effect.” 26 I&N Dec. at 318.

 

To show the scope of this ruling, the case concerned a petitioner whose K visa petition was denied on the basis of a 1979 conviction.

4. Broad Understanding of “Conviction” Under Adam Walsh Act

On January 12, 2017, the Board addressed what constitutes a “conviction” under the Adam Walsh Act in the Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017) [PDF version].

The Board held that the following circumstances may constitute a “conviction” for Adam Walsh Act purposes:

1. “Where a formal judgment of guilt has been entered by a court; or
2. 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.”

Please see our full article on Matter of Calcano de Millan to learn more about the facts and procedural history and the Board’s reasoning in this important decision [see article].

5. Offense May Constitute “Specified Offense Against a Minor” Even If It Involved an Undercover Police Officer Posing as a Minor

The most recent published Adam Walsh Act decision was decided on July 21, 2017, in the Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017) [PDF version]. Here, the Board held that a conviction for soliciting a person whom the perpetrator believed to be a minor, but was in fact an undercover police officer, is a conviction for purposes of the Adam Walsh Act. The key take away is that the focus is on the intent of the perpetrator rather than there being an actual minor victim.

We wrote a full article on this case, so please refer to that for detailed information on the facts and procedural history of the case and the Board’s analysis [see article].

Courts Split on Jurisdiction to Bring Certain Challenges Against Implementation

On March 8, 2017, the United States Court of Appeals for the Fourth Circuit issued a published decision in Roland v. United States Citizenship and Immigration Services, 850 F.3d 625 (4th Cir. 2017) [PDF version]. The case concerned claims filed by a petitioner and his wife where the petition was denied after the USCIS determined that the petitioner, who had been convicted of a “specified offense against a child,” had not established that he posed no risk to the intended beneficiary. In this decision, the Fourth Circuit held that District Courts lack subject-matter jurisdiction to review claims that the USCIS had improperly applied the Adam Walsh Act in finding that the petitioner had not sustained his “no risk” burden of proof. The Fourth Circuit also held that the “no risk” determination is not reviewable. In so doing, it upheld a decision of the United States District Court for the Western District of North Carolina in Chan v. U.S. Citizenship and Immigration Services, 141 F.Supp.3d 461 (W.D.N.C. 2015) [PDF version], where the court found that it lacked subject matter jurisdiction to review the issue..

However, the United States District Court for the Eastern District of New York reached a different result in Makransky v. Johnson, 176 F.Supp.3d 217 (E.D.N.Y. 2016) [PDF version]. In a case presenting similar issues, the court in Makransky disagreed with the court in Chan and several other district courts, in finding that it did have subject matter jurisdiction over claims brought against the implementation of the Adam Walsh Act. Rather, the court in Makransky concurred with a decision of the United States District Court for the Eastern District of Pennsylvania in Bakran v. Johnson, 2015 WL 3631746 [PDF version], in finding that the jurisdiction stripping provisions of the INA do not bar review of administrative action (note that the Makransky and Bakran courts did not find that a specific “no risk” determination is reviewable). Accordingly, the court permitted general collateral challenges to USCIS policies alleged to be unconstitutional. However, the result for the plaintiff was no better in Makransky than in Chan, as the court ultimately rejected all of the constitutional claims against the retroactive application of the Adam Walsh Act, claims under the Due Process Clause of the Fifth Amendment, claims under the Eighth Amendment, and claims that the 2007 Aytes Memo was unreasonable and violated the Administrative Procedures Act (APA).

While “no risk” determinations are clearly not reviewable, certain District Courts may be amenable to certain challenges to the implementation of the Adam Walsh Act outside of the Fourth Circuit. All matters relating to immigration appeals should be referred to an experienced immigration attorney.

Conclusion

Where a petitioner is found to have been convicted of a “specified offense against a minor,” he or she will face long odds of having an immigrant visa petition approved. Although it is most difficult where an intended petition beneficiary is a child, we have highlighted many denials where no child intended beneficiary was involved.

When filing an immigrant visa petition, a petitioner should always consult first with an experienced immigration attorney. Where Adam Walsh Act concerns may apply, an attorney may first determine if it can be argued that the conviction in question was not a predicate offense for Adam Walsh Act purposes. In the event that it is, an attorney may determine whether the petitioner has a plausible path forward for establishing that he or she poses “no risk” to the intended beneficiary or beneficiaries.