• Introduction: Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017)
  • Factual and Procedural History and Relevant Statutes: 27 I&N Dec. at 67-68
  • Arguments of Petitioner and Government and Board’s Analysis: 27 I&N Dec. 68-71
  • Board’s Conclusion: 27 I&N Dec. at 71
• Conclusion

Introduction: Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017)

On July 21, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017) [PDF version]. The decision dealt with the Adam Walsh Act, which restricts the ability individuals who have been convicted of certain specified offenses against a minor from filing immigrant visa petitions or K-visa petitions on behalf of family members. In its decision, the Board held that an offense may be a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Act even if the offense involved a police officer posing as a minor rather than an actual minor.

Before reading this article, please see our full article on the Adam Walsh Act and immigration law [see article]. In addition, please see our full article on the Matter of Calcano de Millan, 26 I&N Dec. 904 (BIA 2017) [PDF version] [see article], another published BIA decision from earlier in 2017 dealing with the provisions of the Adam Walsh Act.

Factual and Procedural History and Relevant Statutes: 27 I&N Dec. at 67-68

The case stems from the decision of a United States Citizenship and Immigration Services (USCIS) Acting Service Center Director (“Director”) denying a Form I-130, Petition for Alien Relative, filed by a U.S. citizen petitioner on behalf of his alien beneficiary spouse. In explaining the decision denying the petition, reached on April 3, 2013, the Director found that the petitioner was barred from having his petition approved under the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act”). The petitioner appealed from the decision. For the foregoing reasons, the Board dismissed the petitioner’s appeal.

On February 6, 2007, the U.S. citizen petitioner was convicted, having pleaded guilty, of computer-aided solicitation of a minor in violation of section 14:81.3 of the Louisiana Statutes. The following is the portion of the statute of conviction excerpted by the Board in its decision:

Computer-aided solicitation of a minor is committed when a person eighteen years or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of eighteen or a person reasonably believed to have not yet attained the age of eighteen, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence … , or with the intent to engage or participate in sexual conduct in the presence of a person who has not yet attained the age of eighteen, or a person reasonably believed to have not yet attained the age of eighteen.”

In short, section 14:81.3 of the Louisiana Statutes criminalizes soliciting a minor to engage in sexual acts or to watch sexual acts through use of electronic textual communication. A careful reading of the statute reveals that it places equal emphasis on situations when the person solicited is actually a minor and situations when the person solicited is someone whom the offender should have “reasonably believed” is a minor. As we will discuss, the petitioner’s conduct involved soliciting an undercover police officer who had posed as a minor and who the petitioner had reasonably believed to be a minor. This would be the key point of the petitioner’s ultimately failed appeal to the BIA.

Section 204(a)(1) of the Immigration and Nationality Act (INA), amended by section 402(a)(2) of the Adam Walsh Act, precludes a U.S. citizen who has been convicted of a “specified offense against a minor” from having a family-based immigrant visa petition approved. This bar may be waived under section 204(a)(1)(A)(viii)(I) of the INA if the Secretary of Homeland Security determines, in his or her sole and unreviewable discretion, that the citizen petitioner poses no risk to the alien beneficiary.

In order to proceed with the analysis, we must define the term “specified offense against a minor.” We discuss the definition in detail in the relevant section of our full article on the Adam Walsh Act [see section]. The following is the list of specified offenses against minors found in section 111(7) (codified at 42 U.S.C. 16911(7)) of the Adam Walsh Act:

A. An offense (unless committed by a parent or guardian) involving kidnapping.
B. An offense (unless committed by a parent or guardian) involving false imprisonment.
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], United States Code.
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. (Emphasis added by the Board for relevancy to the instant case.)
I. Any conduct that by its nature is a sex offense against a minor.

For purpose of the instant case, the relevant provision was section 111(7)(H).

The petitioner had pled guilty to charges in Louisiana. As an initial matter, in appealing the denial of his petition, the petitioner argued that his record of the Louisiana conviction did not identify the statute under which he pled guilty. However, citing to the Matter of Introcaso, 26 I&N Dec. 304, 307 (BIA 2014) [PDF version], the Board rejected this argument because the petitioner has the burden of proving that he was not convicted of a specified offense against a minor. The reason that the burden is borne by the petitioner is that the petitioner always has the burden of establishing eligibility to file an immigrant visa petition. For more detail on this issue, please see our full article on the Matter of Brantigan, 11 I&N Dec. 493, 495 (BIA 1966) [PDF version] [see article], an important precedent decision on the burden of proof in immigrant visa proceedings that was cited to by the Board in the Matter of Introcaso.

Arguments of Petitioner and Government and Board’s Analysis: 27 I&N Dec. 68-71

The petitioner also argued that his conviction was not a “specified offense against a minor” under the Adam Walsh Act because there was no actual minor involved in his commission of the offense. The Board explained that this argument was based on the fact that the record of conviction indicated that the petitioner had used the Internet to communicate with an individual whom he had reasonably believed to be a 14-year old girl. However, that individual was in fact an undercover police officer who had posed as a 14-year-old girl. Based on this record, the petitioner argued that, because his offense did not involve a minor, his petition should not be barred under the Adam Walsh Act. Indeed, in Matter of Introcaso, 26 I&N Dec. at 309, the Board had held that the Adam Walsh Act permits a circumstance-specific inquiry into the conduct underlying a petitioner’s offense.

However, the USCIS took a different position than did by the petitioner. It argued that the Adam Walsh Act does not require that an actual minor have been victimized. Instead, the USCIS argued that the Adam Walsh Act is concerned with the intent of the perpetrator, and that a perpetrator who interacts with an undercover police officer posing as a minor has the same intent as a perpetrator interacting with an actual minor. The key to this argument was the USCIS’s focus on the intent of the Adam Walsh Act to protect petition beneficiaries.

The USCIS further argued that the definition in 42 U.S.C. 16911(7)(H) specifically covered the petitioner’s conduct, which entailed the attempt to solicit a minor. To this effect, the USCIS cited several cases that have applied the Adam Walsh Act to crimes that did not involve actual minors, including the published decision of the United States District Court for the Eastern District of Missouri in United States v. Rizzuti, 611 F.Supp. 2d 967, 969-70 (E.D. Mo. 2009) [PDF version].

In United States v. Dodge, 597 F.3d 1347, 1350-51, 1355-56 (11th Cir. 2010) [PDF version], the United States Court of Appeals for the Eleventh Circuit interpreted the same provision similarly, holding that the phrase “against a minor” does not require “contact with or opposition by the minor.” Instead, the Eleventh Circuit held that the relevant consideration was whether the defendant believed that he was communicating with a minor, not whether he was actually communicating with a minor. That case dealt with a criminal conviction for the transmission of obscene material to a minor (he had actually transmitted the obscene material to an undercover police officer posing as a minor). Although the Board noted that a different provision of the Adam Walsh Act was at issue in Dodge, the Board found the Eleventh Circuit’s reasoning persuasive, and the language of the provision it was analyzing to be “strikingly similar” to that at issue in the instant case.

Interestingly, courts have interpreted other provisions of the Adam Walsh Act differently. The Board acknowledged that the United States District Court for the Western District of Washington in United States v. Kahn, 524 F.Supp 2d 1278, 1281-84 (W.D. Wash. 2007) [PDF version], held that pretrial release conditions under the Adam Walsh Act do not apply “to the offense of interstate travel with the intent to engage in illicit sexual conduct with another person when that person, though thought to be a minor, is actually an adult posing as a fictitious minor.” In that case, the District Court held that the phrase “minor victim” only includes an actual minor victim harmed by the completed commission ofthat particular crime.

However, regarding 42 U.S.C. 16911(7)(H), the Board placed the emphasis on the fact that the definition not only covers the use of the Internet to facilitate criminal conduct with a minor, but also the attempt to do so. The focus on the attempt, the Board reasoned, “undermines the plain language approach in Kahn.”

The Board also addressed the purpose of the Adam Walsh Act. It noted that Congress’s stated purpose in passing the Adam Walsh Act was “to protect the public from … offenders against children.” See Adam Walsh Act, sec. 102, 120 Stat. at 590. From this, the Board reasoned that the District Court in Kahn had erred. Because the purpose of the Adam Walsh Act was to protect children, it stood to reason that the Act’s provision covered attempts to commit specified offenses against a minor even where there is no actual minor victim of a completed crime. To illustrate the point, the Board noted that the approach in Kahn would allow an individual who attempted to solicit a minor to have an immigrant visa petition approved merely because the person who he or she thought was a minor was not in fact a minor. Conversely, an individual who engaged in the same conduct where the individual was in fact a minor would be barred. The Board stated that the reading in Kahn “exempts a category of offenders whose conduct establishes that they have the same intent and pose the same risk to children as those whose targeted victim was actually a minor.”

Finally, the Board noted that Congress did not use the phrase “actual minor” anywhere in 42 U.S.C. 16911(7). The Board found this significant because Congress had included the phrase “actual minor” in a statute intended to protect children that was enacted just three years prior to the enactment of the Adam Walsh Act (see Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, sec. 502(c), (d), 503(1)(a), 505, 117 Stat. 650, 679-80, 683). The Board also noted that in other provisions of the Adam Walsh Act, Congress used “actual” to modify “human being.” For these reasons, the Board agreed with the USCIS that the decision by Congress not to include the word “actual” in 42 U.S.C. 16911(7) was significant. The Board cited to Keene Corp. v. United States, 508 U.S. 200, 208 (1993) [PDF version], wherein the Supreme Court of the United States held that “[W]here Congress includes particular language in one section of a statute but omits it in another … , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

Board’s Conclusion: 27 I&N Dec. at 71

For the foregoing reasons, the Board held that the petitioner’s offense was a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Act (42 U.S.C. 16911(7)) even though it involved an undercover officer posing as a minor in lieu of an actual minor. For those reason, the Board held that the conviction barred the petitioner from having the immigrant visa petition filed on behalf of his alien spouse approved unless he could establish that he posed “no risk” to the petition beneficiary in accord with section 204(a)(1)(A)(viii)(I) of the INA. The Board dismissed the petitioner’s appeal, but it noted that he could file a new petition on behalf of his wife with evidence supporting his eligibility to confer benefits on his spouse.

Conclusion

The Matter of Izaguirre represents a significant decision regarding the scope of the Adam Walsh Act for immigrant visa petitioners. The Board made clear that the commission of a “specified offense against a minor” applies when the conduct at issue evinces the intent of the petitioner to commit an offense against a minor. Accordingly, for purpose of section 111(7) of the Adam Walsh Act, it does not matter whether a petitioner actually committed the specified offense against a specific minor or whether he or she instead intended to commit the specified offense against a minor as evinced by evidence that he or she had reasonably believed his target to be a minor. For this reason, if the petitioner’s solicitation of a minor or other offense stemmed from conduct involving an undercover police officer or other law enforcement agent rather than an actual minor, he or she is still subject to the Adam Walsh Act’s bar to approval of a family-based immigrant visa petition.

In general, family-based immigrant visa petitioners should always consult with an experienced immigration attorney. An attorney will be able to assess the case in full and determine whether the Adam Walsh Act or other issues may impair the petition, and whether there are plausible ways to address any such issues.