Criminal Law, Deportation, Immigration To The USA, USCIS

Delivering Solutions For Your Future

Immigration in America, USA flag

How to Overcome Denial under the Adam Walsh Act

May 28, 2014

How to overcome Adam Walsh denial

Author: New York Immigration lawyer Alena Shautsova

Adam Walsh Act enacted on July 27, 2006 [PL 109-248, Title IV] prohibits United States citizens and Lawful permanent residents who have been convicted of certain sexual offenses against a minor from petitioning family members, unless in the “unreviewable discretion” of the Secretary of DHS, the USC or LPR poses no risk to the beneficiary. The same provision applies when a USC would like to petition his/her fiance.

Examples of offenses include: offenses involving the use of minors in prostitution; offenses against minors involving sexual contact; offenses involving the use of a minor in a sexual performance; and offenses involving the production or distribution of child pornography. The Immigration laws very broadly define “Sexual abuse of a minor.” Please note  sexual abuse of a minor is also an aggravated felony under the Immigration laws.  Examples of aggravated felonies under NYPL are: use of a child in a sexual performance in violation of 263.05; sexual misconduct under 130.20).

Examples of crimes that are not aggravated felonies: knowingly engaging in sexual intercourse or oral sexual conduct with person under 18; parents consenting to child’s sexual performance.

A felony conviction is not necessary, as a misdemeanor sexual abuse conviction is sufficient for finding of an aggravated felony under the Immigration law (for example: NYPL 130.60(2) conviction is an aggravated felony).

If after family petition was filed, USCIS found that Adam Walsh Act is applicable, the only way for the petitioner is to demonstrate to the satisfaction of the USCIS that he/she does not posses threat to the beneficiary or that he/she was not convicted of the qualified crime. The burden lies on the petitioner to show that the crime is not the one covered by the Adam Walsh Act. It means that almost in every case a very detailed and difficult analysis of the conviction is necessary. See Matter of INTROCASO, 26 I&N Dec. 304 (BIA 2014).  It is important to know that under the recent BIA decision, Adam Walsh Act has retroactive effect: it applies for convictions that took place before the statute’s enactment as well as to those occurred after its enactment .

To demonstrate that the petitioner posses no risk to the beneficiary, the petitioner must present a very strong record of rehabilitation: probation report; reports by a treating doctor; evidence of community service… Under the recent BIA decision, Matter of ACEIJAS-QUIROZ, 26 I&N Dec. 294 (BIA 2014), the BIA lacks jurisdiction to review the “no risk” finding. It means that the application has to be impeccable.

A petitioner who has criminal convictions should consult with an Immigration lawyer prior to starting “immigration case” for his/her relatives. A mistake and lack of knowledge may cause deportation/removal of the family members and their permanent inadmissibility. If  you have questions regarding Adam Walsh Act, please call New York Immigration attorney Alena Shautsova at 917-885-2261.