The Adam Walsh Act and the Petitioner's Burden to Prove "No Risk of Harm" - March 2016
The Adam Walsh Act (“AWA”) was enacted “To protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.”
The AWA contains significant restrictions on a U.S. citizen or lawful permanent resident’s ability to petition for his or her spouse or fiancé(e) if he or she has been convicted of any specified offense against a minor. Title IV of the AWA is titled “Immigration Law Reforms to Prevent Sex Offenders from Abusing Children,” yet its far reaching effect often goes beyond protecting children - prohibiting the approval of family-based petitions when the Petitioner has been convicted of a specified offense against a minor unless “the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion determines that the citizen poses NO RISK to the alien with respect to whom a petition is filed.”
Even though the AWA itself was not enacted until 2006, United States Citizen and Immigration Services (USCIS) and the Board of Immigration Appeals (BIA) have held that the AWA is retroactive in its application such that convictions from prior to the AWA’s enactment still serve the basis for the prohibition. The Act also does not distinguish among the severity of the individual cases. A misdemeanor charge from decades prior that resulted only in probation carries the same prohibition in the immigration context as a recent felony conviction with a prison term. This can be particularly problematic with older cases, as the petitioner is required to submit full court records of the prior proceedings. In this day and age, many courts are converting files, if the paper files even exist, into electronic records. The original court files have often been destroyed and it is nearly impossible to recreate the record. This is generally less of a problem in felony cases but in many misdemeanor cases, courts simply do not retain the supporting documentation and evidence for the underlying conviction.
All family-based petitions that are subject to the AWA are processed at the Vermont Service Center for the USCIS. Applicable petitions covered/barred by the AWA included I-129F Fiancé(e) Petitions and I-130 Petition for Immediate Relative (spouse, etc). These petitions are forwarded to a special unit empowered with the ability to review the cases and approve them only in the rare instance that the Petitioner was not, in fact, convicted of a specified offense against a minor, or in cases where the Secretary determines that the Petitioner poses no risk of harm against the intended beneficiaries. The Petitioner bears the burden of establishing “No Risk of Harm” beyond any reasonable doubt.
It should be emphasized that this Act does not apply to the intending immigrant. The Act applies to the Petitioner and even applies in cases where there are no children involved in the immigration petition, such as where neither the Petitioner nor Beneficiary have minor children, have no plans to adopt any children, or are not capable of having children. In these cases, the application of the AWA goes far beyond its purpose of protecting children and serves to bar approval of a family-based petition even when the Beneficiary is fully informed of the Petitioner’s past conviction.
While it is possible for a Petitioner to establish beyond any reasonable doubt that he or she poses “no risk of harm,” the standard is extremely difficult to meet. In the recent decision In the Matter of P-L-W (Feb. 4, 2016), the Administrative Appeals Office (AAO) of USCIS sustained an appeal by the Petitioner and found that the Petitioner had proved that he posed no risk to the Beneficiary. However, this case may prove little solace for Petitioners with AWA convictions. Not only was this case extremely favorable on the facts with a Petitioner and Beneficiary in a long-term relationship with no minor children and beyond childbearing years, and an underlying misdemeanor conviction from nearly 20 years prior, this was an extremely long process, taking nearly 3.5 years from the initial filing of the I-129F Petition to the AAO’s decision sustaining the appeal. Any case involving or even potentially involving the Adam Walsh Act will be extremely complex and fact-intensive. In some cases, the Petitioner may be able to establish that the underlying conviction is not, in fact, a conviction under the Adam Walsh Act or may have such strong facts as to support a determination that the Petitioner meets the “no risk of harm” burden. One thing that all of these cases have in common is that they are extremely complex and fact-intensive, and receiving expert assistance is critical to maximizing the Petitioner’s chances of a successful outcome.
Anne C. Lahren is an attorney at Pender & Coward who focuses her practice on immigration, civil litigation, and family law. She can be reached at (757) 490-6293 or alahren@yimeiwedding.com.