THE Adam Walsh Child Protection and Safety Act of 2006 was enacted with the avowed purpose to protect and keep children safe from sex offenders; prevent child abuse and pornography; promote internet safety; and honor the memory of Adam Walsh and other child crime victims.
The Adam Walsh Act amended Section 204(a)(1)(i) of the Immigration and Nationality Act – the statute governing the petitioning procedure for immediate relatives – to prohibit U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition on behalf of any beneficiary, unless the Secretary of Homeland Security (Secretary) determines, in his sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.
Specified Offense Against a Minor. The term “specified offense against a minor” means an offense against a minor (defined as an individual who is under 18 years old) that involves any of the following: (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 section 1801 of Title 18, 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; or (I) Any conduct that by its nature is a sex offense against a minor.
Conviction for any of these nine (9) crimes will be a disqualifying conviction to bar any U.S. citizen or permanent resident from filing a petition for his/her parent, spouse, children, stepchildren, and siblings. The bar also applies to petitions for a fiance/ee (K1) and derivative children (K2). The petitioner has the burden to prove whether or not a prior conviction is a “specified offense against a minor.”
“No Risk” Exception. If a family petitioner is deemed to have a disqualifying conviction – “specified offense against a minor”, we turn to the Aytes Memorandum of February 8, 2007 (Aytes Memo) to determine whether the petitioner falls under the “no risk” exception – meaning, whether a petitioner poses a risk to the beneficiary. The Aytes Memo stresses that USCIS may not approve a family-based petition if the petitioner has a conviction for a specified offense against a minor unless USCIS first determines that the petitioner poses no risk to the safety or well-being of the beneficiary (and any derivative beneficiary) for whom a petition was filed. “The critical purpose of section 402 of the Adam Walsh Act is to ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States.”
The Aytes Memo listed the following factors that should be considered in the “no risk” analysis: (1) The nature and severity of the petitioner’s specified offense(s) against a minor, including all facts and circumstances underlying the offense(s); (2) The petitioner’s criminal history; (3) The nature, severity, and mitigating circumstances of any arrest(s), conviction(s), or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary; (4) The relationship of the petitioner to the principal beneficiary and any derivative beneficiary; (5) The age and, if relevant, the gender of the beneficiary; (6) Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and (7) The degree of 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 incidence of violent, criminal, or abusive behavior and the submission of the petition.
In cases where none of the intended beneficiaries are children, the Aytes Memo directs the close examination of the petitioner’s specified offense and other past criminal acts (ex: spousal abuse or domestic violence) to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary. However, USCIS uses the “beyond a reasonable doubt” standard in the “no risk’ analysis, and in a 2014 decision, the Board of Immigration Appeals ruled that it lacked the authority to review the propriety and USCIS’ use of that standard in adjudicating petitions under the Adam Walsh Act.
* * *
Atty. Aurora Vega-Buzon is a partner in Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; [email protected]
