The Adam Walsh Act and Immigration: What You Need to Know Now
Background of the Adam Walsh Act
On July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006, also known as AWA. Named for a child who was abducted and murdered, the AWA was intended to protect children from sexual exploitation, violent crimes, abuse, and depiction in pornography.
Impact on the INA
Section 402(a) of the Adam Walsh Act amended Immigration and Naturalization Act sections 204(a)(1)(A)(i) and 204(a)(1)(B)(i). Section 402(a) of the AWA precludes a U.S. citizen or lawful permanent resident (LPR) from filing a family-based petition if he or she has been convicted of a “specified offense against a minor.” This bar applies not only to petitions for minor beneficiaries but for spouses, fiancees, adult children, and others.
Section 402(a) of the AWA creates a unique situation--rather than focusing on the traits of the noncitizen immigrant, such as special skills or familial relationships, this provision puts the character of the citizen or LPR petitioner under scrutiny. Three decisions were issued by the Board of Immigration Appeals on May 20, 2014, which address the impact of the AWA on the INA.
Below is a brief examination of each of the decisions and what they mean for petitioners and their families:
Petitioner Has Burden of Showing He is Not Ineligible
In Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the BIA looked at the question of how it should be determined whether a crime is a “specified offense against a minor.” The Board also sought to determine who bears the burden of proving the petitioner's eligibility or ineligibility to file a family-based petition under the AWA. A petitioner generally has the burden of proving he or she is eligible to file a visa petition for a family member. Based on this premise, the BIA reasoned that demonstrating that one is eligible to petition includes a showing that an otherwise eligible petitioner is not ineligible under the AWA.
The BIA also determined that the Department of Homeland Security (DHS) was not bound by the record of conviction, and could consider facts and conduct, whether proven or not during the citizen’s criminal proceeding, to determine if an offense was a disqualifying offense. This would be true even if the elements of the criminal law in question would not have supported a finding of ineligibility. In other words, DHS is permitted to take a circumstance-specific approach to determine whether an offense could disqualify a petitioner.
BIA Has No Jurisdiction to Review "No Risk" Assessment
The legal standard a petitioner must meet to show a that he or she does not pose a risk to the petitioner is "beyond a reasonable doubt," the strict standard usually reserved for conviction in criminal proceedings. This standard was established in an interoffice memo issued in 2007 by the Associate Director for Domestic Operations at the United States Citizenship and Immigration Services (USCIS).
In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the petitioner argued that the “beyond a reasonable doubt” standard was not set forth in either the AWA or the regulations, and that USCIS did not have the authority to raise the standard of proof to this level.
Based on the statute's language, which gave the Secretary of Homeland Security "sole and unreviewable discretion," the Board held that the statute's language indicates it was the intent of Congress to grant DHS sole authority to create a framework within which USCIS could make a determination of "no risk." As such, the BIA was not authorized to review the legal standard imposed by USCIS in "no risk" determinations. However, while the BIA decided that it did not have jurisdiction to review the USCIS evaluation of whether the petitioner posed a risk to the beneficiaries, the Board indicated that the "beyond a reasonable doubt" standard and an evaluation made pursuant to this standard may be challenged in the courts.
Moreover, it's noteworthy that the Board's decision does not preclude the BIA from reviewing an appeal addressing whether an individual was convicted of a "specified offense."
AWA Can Be Applied to Pre-Enactment Convictions
The issue in Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014), was whether the immigration provisions of the Adam Walsh Act would have an impermissible retroactive effect if applied to a conviction that occurred before the AWA was enacted.
The Adam Walsh Act is silent about whether its provisions are to be applied retroactively. The BIA concluded based on previous case law that where a statute addresses dangers that arise after its enactment, the application of that law is not considered as operating “retroactively.” Matter of Jackson and Ernadio, 26 I&N Dec. at 317 (citing Vartelas v. Holder, 123 S.Ct. at 1489–90 & n. 7). For instance, a statute that prohibits people convicted of a sex crime against a child victim from working in jobs where they have frequent contact with minors is a law that addresses dangers that arise after enactment.
The BIA concluded that the immigration provisions of the Adam Walsh Act operate in the same way because they take into account potential future harm by people convicted of a "specified offense against a minor." Therefore, the BIA concluded, applying the AWA to convictions that occurred before it was enacted does not have an impermissible retroactive effect.
Through these three cases, the BIA appears to have made it even more difficult for citizens or LPRs convicted of certain crimes to file a petition on behalf of a family member. More importantly, the effect of these cases on the noncitizen family member when these issues arise during the adjustment or naturalization process could result in deportation. In effect, petitioners with past convictions and family members who may be seeking immigration benefits should have an experienced immigration attorney review their case and discuss their options. We invite you to contact the Law Offices of Van T. Doan for more information and guidance.
Categories: Immigration Law