The Adam Walsh Child Protection and Safety Act was signed into law in 2006 with very good intentions. However, in the realm of immigration, part of the Adam Walsh Act prohibits some United States citizens and lawful permanent residents from filing visa petitions for their family members if they have been convicted of a crime specified in the Act. This has created serious obstacles, mostly for American citizens, who wish to file immigration documents for their spouse or child.
The Adam Walsh Act prohibits U.S. citizens and lawful residents from petitioning family members if they have a conviction of a “specified offense” against a minor, as specified by the Act. The law does not permit USCIS to approve those petitions unless USCIS finds that they “pose no risk” to their family member.
Despite the overall good intentions of the Act, the language of the act is quite strict, and USCIS’s implementation of the Act is even more restrictive. The Act allows USCIS to determine whether the U.S. citizen or lawful permanent resident “petitioner” poses no risk, and gives USCIS full and unreviewable discretion to do so. Unreviewable discretion means that the authority cannot be questioned or reviewed by a court. USCIS has determined that a petitioner must demonstrate that they pose no risk “beyond a reasonable doubt.”
The “beyond a reasonable doubt” standard is quite troubling. This is a very high standard in the law that is typically reserved for government prosecutors in a criminal setting, like what we see in television courtroom dramas such as Law & Order. A government prosecutor has a wealth of resources to fight their cases and they are fighting a criminal case to punish someone who has committed a crime.
Unlike criminal proceedings, immigration is a civil proceeding. Examples of other civil proceedings would be divorces, personal injury lawsuits, bankruptcy, or evictions. Rather than using the high “beyond a reasonable doubt” standard, civil proceedings more commonly utilize a “preponderance of the evidence” standard. The United States Supreme Court, in its 1970 case, In re Winship, stated that a preponderance of the evidence simply means that a given fact is more likely than not true. The Winship standard left room for doubt, arguably up to 49% doubt. For this reason, civil cases are meant to be easier to win. However, when liberty interests, such as prison time, are implicated, criminal cases are meant to be much more difficult to prove, and the government rightly has the resources to do so. Again, immigration proceedings are civil, not criminal proceedings.
The Adam Walsh Act has created barriers for a U.S. citizen or resident to file a visa petition for their spouse, if that citizen or resident has been convicted of a “specified crime” under the Adam Walsh Act. This creates serious implications for a married couple to live together in the same country. Opponents of the act argue that it impermissibly interferes with the constitutionally protected right to marry and right to procreate.
Over the summer, the Board of Immigration Appeals set out three precedent ruling cases which impact the Adam Walsh Act and its implication on citizens and residents seeking to be reunited with their family members. The rulings were disappointing to opponents of the Adam Walsh Act and continued to apply very restrictive standards for these cases.
In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the BIA determined that, despite its traditional role of acting as a safeguard on proper USCIS adjudication of visa petitions, and contrary to its role as established by the Code of Federal Regulations as the overseer and appellate body for USCIS decisions, the Board of Immigration Appeals has no jurisdiction to review a decision of USCIS denying a visa petition by a United States citizen or lawful permanent resident. What this means is that once USCIS makes its determination, that decision cannot be reviewed or appealed by any court. The decision also permits USCIS to hold the “no risk” waiver standard to the “beyond a reasonable doubt” standard. This is a topic that is very ripe for litigation in the federal courts, and is actively being litigated across the country.
In Matter of Introcaso, 26 I&N Dec. 204 (BIA 2014), the Board determined that it doesn’t merely have to look at a person’s conviction to determine whether they have been convicted of a “specified crime” in the Adam Walsh Act. The Board determined that USCIS may see a conviction which does not implicate the Adam Walsh Act, and look at the underlying facts before the conviction, to determine whether the facts or conduct during the citizen’s criminal proceeding to determine whether or not it might be a “specified crime.” Then, more astoundingly, USCIS can put the U.S. citizen petitioner and the defense and make them prove that it is not a “specified offense” in the Adam Walsh Act. Because of this, facts or conduct that never come before a judge or jury could keep two spouses from being together under the Act.
In Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA 2014), the Board determined that USCIS could apply the Adam Walsh Act to people whose crimes were committed before the Adam Walsh Act was enacted in 2006. The Petitioner in Jackson and Erandio pleaded guilty to a “specified offense” in 2000, six years before the Act was enacted. USCIS revoked the previously-approved visa petitions for Mr. Jackson’s wife and step-child, and determined that his conviction years earlier disallowed his family to live in the United States together. The Board of Immigration Appeals also determined that this conviction, now approximately 14 years old, could be held against his wife and stepchild. The constitutional doctrine of ex post facto, where a law cannot be applied retroactively, applies only to criminal cases and not to civil cases, like immigration.
There is a lot of litigation surrounding the Adam Walsh Act and the Board’s 2014 decisions. It is important to seek legal counsel if you believe the Adam Walsh Act might apply in your case. The cases need to be fought hard with sound evidence and law to overcome USCIS’s incredibly burdensome standards. The cases also need to be well-documented to anticipate any possible claims against the government if the case is denied.