In Matter of Jackson, the Board held that barring U.S. citizens and permanent residents from petitioning for family members if they have been convicted of specified offenses against minors is not an impermissibly retroactive change to the law when applied to petitioners with convictions that pre-date the enactment of the bar. This is the third of a trio of decisions on May 20, 2014, concerning the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act").
In this case, a woman and her child were admitted to the U.S. on K nonimmigrant visas based on a fiancee petition by a U.S. citizen. They applied to adjust to permanent resident status after the woman married the petitioner. USCIS denied the application and put them both in removal proceedings, alleging the visas were invalid because the petitioner was not eligible to petition for them under the Adam Walsh Act. The Adam Walsh Act went into effect on July 27, 2006, while the fiancee petition was pending. It prohibits citizens and permanent residents from petitioning for family members if they have been convicted of a specified offense against a minor, unless the petitioner can prove there is no risk to the beneficiary of the petition. In this case, the petitioner had a conviction for a specified offense from 1979 and USCIS did not find "no risk."
The Board held that applying the Adam Walsh Act to a conviction that pre-dated its enactment was not impermissibly retroactive because the prohibition on immigrant petitions "addresses dangers that arise after its enactment." In other words, the Adam Walsh Act is meant to protect this woman and child from future harm at the hands of the petitioner by deporting them--even though the petitioner's conviction is 35 years old.
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In Matter of Iris Introcaso, the Board held that a petitioner has the burden of proving that he is not ineligible to petition for a relative due to a conviction for a specified offense against a minor under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"). It further held "the language and structure of the Adam Walsh Act invite a circumstance-specific inquiry into both the age of the victim and the conduct underlying the offense." In other words, the inquiry purportedly is not limited to the categorical approach.
The Board justified examining facts outside of the elements of conviction to determine the victim's age because the list of disqualifying convictions includes offenses that are not specific to minors (kidnapping, false imprisonment, solicitation to engage in sexual conduct, etc.). It is hard to argue with that, so I won't.
The rationale for examining non-elements to determine the nature of the conduct underlying the offense, however, is far more dubious. The Board notes that the list of specified offenses against a minor include "criminal sexual conduct involving a minor..." and "any conduct that by its nature is a sex offense against a minor." The Board suggests that this focus on the conduct permits an examination of the alleged facts of the offense, rather than the offense of conviction. In doing so, it disregards the requirement that the petitioner be "convicted of" a specified offense. How can a petitioner be convicted of conduct that is not an element of the conviction? This is precisely the issue addressed in the Supreme Court's decision in Descamps, but the Board did not even attempt to distinguish Descamps and instead focuses myopically on the Supreme Court's earlier decision in Nijhawan.
Arguably, though, Board's assertion that an adjudicator can engage in a circumstance-specific inquiry into the conduct underlying the offense is dicta. It is dicta because the Board did not examine facts or circumstances of the offense in this case to determine whether it was a disqualifying offense. It did not need to. The offense was endangering the welfare of children under section 2C:24-4(a) of the New Jersey Statutes Annotated. The Board held that offense is divisible and that the portion the petitioner was convicted of--engages in sexual conduct which would impair or debauch the morals of the child--is a specified offense under the Adam Walsh Act. It reached that conclusion based on the statutory language and petitioner's inability to provide an example that would be outside the scope of the Adam Walsh Act. In other words, it applied the categorical approach--not the circumstance-specific approach.
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In Matter of Tatiana Aceijas-Quiroz, USCIS denied the U.S. citizen petitioner's immigrant petition for his wife. This the first of three Board of Immigration Appeals decisions issued on May 20, 2014, that concern the immigration consequences of convictions for U.S. citizens. Under the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), certain convictions will disqualify a citizen from petitioning for an immigrant family member.
USCIS found, and the petitioner did not dispute, that his prior convictions for sexual abuse and for contributing to the sexual delinquency of a minor were "specified offenses against a minor" under the Adam Walsh Act. He therefore was ineligible to petition for his wife unless he could demonstrate that despite those convictions he posed "no risk" to her. USCIS denied the petition because it was not satisfied that he posed no risk to her. In doing so, it required him to show "beyond a reasonable doubt" that he posed no risk. This standard, which typically does not apply in civil immigration proceedings, does not appear in the statute or regulations. It was imposed by USCIS memo.
The petitioner appealed to the Board, arguing that the heightened beyond a reasonable doubt standard of proof should not apply. The Board, however, determined that it did not have jurisdiction to review the question because it found the Adam Walsh Act gave USCIS sole authority to determine whether a petitioner posed no risk to a beneficiary and that includes sole authority to determine the standard of proof for that issue.
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