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Matter of Iris Introcaso

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.