By Sarah Bronstein
The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”) includes three immigration provisions that impose restrictions on the ability of U.S. citizens and lawful permanent residents to petition for family members if the U.S. citizen or LPR petitioner has certain criminal convictions. Three recent decisions by the Board of Immigration Appeals address various aspects of Section 402(a) of the Adam Walsh Act, which amended INA §§ 204(a)(1)(A)(i) and 204(a)(1)(B)(i). That section of the law precludes a U.S. citizen or LPR from filing a family-based petition if he or she has been convicted of a “specified offense against a minor” unless the Secretary of Homeland Security determines that the petitioner does not pose a risk to the beneficiary. These three decisions were all issued on May 20, 2014 and signal an expansive interpretation of this provision.
BIA Lacks Jurisdiction to Review DHS’ “No Risk” Determinations
If the petitioner has been convicted of a specified offense against a minor, the petition will be denied unless USCIS determines that he or she does not pose a risk to both the principal and derivative beneficiaries. Section 111 of the Adam Walsh Act defines a “specified offense against a minor” as any of the following offenses committed against a person under the age of 18:
(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 of the minor in a sexual performance;
(E) solicitation to practice prostitution;
(F) video voyeurism as described in 18 USC § 1801;
(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; and
(I) any conduct that by its nature is a sex offense against a minor.
On February 8, 2007, Michael Aytes, Associate Director for Domestic Operations at USCIS, issued an interoffice memorandum 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.” In that memo, Mr. Aytes set forth “beyond a reasonable doubt” as the standard the petitioner must meet to demonstrate that he or she does not pose a risk to the beneficiary. In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the petitioner argued that the “beyond a reasonable doubt” standard was not established in either the statue or the regulations and that USCIS did not have the authority to raise the standard of proof to the level usually reserved for criminal proceedings.
The Board found, however, that it did not have jurisdiction to review matters such as USCIS’ assessment of whether the petitioner posed a risk to the beneficiaries. The Board held that the language in the statute indicates that Congress intended DHS to have the sole authority to establish a framework for USCIS adjudicators to make “no risk” determinations. The statute states that the bar to petitioning a family member shall not apply if the Secretary of Homeland Security, “in the Secretary’s sole and unreviewable discretion,” determines that the petitioner does not pose a risk to the beneficiary. The Board further elaborated that this framework includes the standard of proof to be used. Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014).
The Petitioner Bears the Burden to Show He or She is Not Ineligible Under the Adam Walsh Act
In Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the Board reviewed the issue of how determinations should be made as to whether a crime is a “specified offense against a minor” and who bears the burden in such cases. The BIA reasoned that the petitioner has the burden of establishing that he or she is eligible to file a visa petition for a family member. The BIA stated that demonstrating eligibility includes a showing that the petitioner is not ineligible under the Adam Walsh Act. Therefore, the BIA held that the burden must remain with the petitioner to demonstrate that he or she is not ineligible under the Adam Walsh Act.
Circumstance-Specific Approach to Analyzing Adam Walsh Crimes Is Permissible
The second issue the Board addressed in Introcaso was how to determine whether a particular offense is a “specified offense against a minor.” The petitioner argued that the determination should be made by using the categorical approach – an approach often used in analyzing the immigration consequences of criminal convictions. According to the categorical approach, the analysis should focus on the elements of the offense at issue, not the facts underlying the charge. USCIS argued that the Adam Walsh Act permits an investigation into the facts surrounding the charge to make this determination.
The Board concluded that the language and structure of the Adam Walsh Act necessitate a “circumstance-specific” inquiry into the age of the victim and the conduct that gave rise to the offense. In reaching this conclusion, the BIA analogized Adam Walsh cases to those at issue in the Supreme Court’s decision in Nijhawan v. Holder, 557 U.S. 29 (2009). In Nijhawan, the Court looked at the definition of an aggravated felony, which includes an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000.” The Court concluded that “the loss to victim” requirement should be analyzed using a circumstance-specific inquiry allowing the fact finder to review the record of conviction. If the record of conviction, which includes the charging document, plea agreement and judgment of conviction, is not conclusive, the fact finder may review other reliable documents or evidence. Matter of Introcaso, 26 I&N Dec. at 308 (citing Nijhawan v. Holder, 557 U.S. at 34–36).
The BIA cited the first five listed offenses in the definition of a “specified offense against a minor” which are kidnapping, false imprisonment, solicitation to engage in sexual conduct, use in a sexual performance, and solicitation to practice prostitution to demonstrate the need to engage in a circumstance-specific inquiry. The Board reasoned that because these offenses are not limited to offenses against minors, the age of the victim can only be determined through the record of conviction or other reliable evidence. Id. at 309. The Board further reasoned that the last two crimes in the definition of “specific offense against a minor” – criminal sexual conduct involving a minor and conduct that by its nature is a sex offense against a minor – also necessitate a circumstance-specific inquiry into the conduct at issue in the case. The Board found that the use of the word “conduct” in these two crimes suggested that it was the facts underlying the case that are relevant to the determination rather than the elements of the offense in the particular criminal statute involved. Id. at 310 (citing United States v. Mi Kyung Byun, 539 F.3d at 992 (9th Cir. 2008)).
Applying the Adam Walsh Act to Pre-Enactment Convictions Does Not Have Impermissible Retroactive Effect
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 may be applied to a conviction that occurred before the law was enacted without it having an impermissible retroactive effect. In writing the statute, Congress did not address whether the provisions of the Adam Walsh Act were to be applied retroactively. The Board cited the Supreme Court in Vartelas v. Holder for the proposition that where a statute addresses dangers that arise after its enactment, it does not operate “retroactively.” Matter of Jackson and Ernadio, 26 I&N Dec. at 317 (citing Vartelas v. Holder, 123 S.Ct. at 1489–90 & n. 7). In Vartelas, the Court listed statutes that prohibit people convicted of a sex crime against a victim under age 16 from working in jobs with frequent contact with minors as examples of laws that address dangers that arise after enactment and therefore do not operate “retroactively.” The Board found that the immigration provisions of the Adam Walsh Act operate in the same way in that they address the potential for future harm on the part of people convicted of a specific offense against a minor. The BIA concluded that because the Adam Walsh Act addresses dangers that arise after enactment, applying the statute to convictions that occurred before enactment does not have an impermissible retroactive effect.
In all of these cases, the outcome is that the family members of these U.S. citizens or lawful permanent residents will not be able to immigrate to or obtain status in the United States.
These cases highlight the importance of conducting careful screening, not only of the beneficiaries in family-based cases, but also of the petitioners.