If an 18 year-old senior in high school is convicted of having sexual contact with his 15 year old sophomore girlfriend, should he forever be considered a sexual predator that is a danger to all of those around him? What does it mean if he later falls in love with and marries someone who is not a U.S. citizen?
As
a general principle, a U.S. citizen can file visa petitions for his non-citizen
family members fitting categories recognized by immigration law. However, Congress enacted the Adam Walsh Act
in 2006 which barred U.S. citizens who have been convicted of a “specified
offense against a minor” from having a family-based visa petition approved
unless the agency rules that the citizen poses “no risk” to the alien
beneficiary. Specified offenses against
minors are defined in the Adam Walsh Act as offenses which involve:
(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;
(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; or
(I)
Any conduct that by its nature is a sex offense against a minor.
On
May 20, 2014, the Board of Immigration Appeals (BIA) issued three precedent
decisions related to the Adam Walsh Act, Matter
of Aceijas-Quiroz, 26
I&N Dec. 294 (BIA 2014); Matter of
Introcaso, 26 I&N Dec. 304 (BIA 2014); and Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014).
The
three decisions’ most important holdings are that (1) the BIA has no
jurisdiction to review the initial agency determination about whether the
citizen poses “no risk” to the citizen and no jurisdiction to review whether
the agency standard of a “beyond a reasonable doubt” is appropriate; (2) the
petitioner has the burden of proving he has not been convicted of a specified
offense and standard categorical approach will not be adhered to in analyzing
convictions; and (3) that the Adam Walsh Act applies retroactively to
convictions from before the July 27, 2006, effective date.
While
the purpose of the Adam Walsh Act is laudable, the agency’s application of it
has often meant that people with convictions from long ago who have been found
by licensed professionals to pose no more of a risk than the general population
cannot apply for their loved ones to obtain immigration status. It has also meant that those who do have
convictions triggering the Adam Walsh Act are forced to try to prove beyond a
reasonable doubt that they pose “no risk” to beneficiaries. If this sounds like and impossible standard
to prove, that’s because it often is.
The BIA precedent decisions could embolden the agency to be deny more of
these petitions in the knowledge that there will be little oversight over such
decisions.
Adam
Walsh Act-impacted immigration cases can, however, be fought in federal courts,
which are not bound by these BIA decisions.
If you have an immigration issue that could potentially be impacted by
the Adam Walsh Act, it is crucial to make a well-documented and well-argued
record before the agency to have the best chance of success, both at the agency
and in federal court if necessary. In
many situations, involving a skilled attorney at the earliest stages of the
process could make the difference between having a winnable case and facing a
denial. If you would like to consult
with an experienced attorney on an Adam Walsh Act issue, contact our office to
schedule an appointment.
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