Deportations from the United States usually arise in cases of non-US citizens committing crimes or violations of immigration law. However, in certain instances, deportation may also arise when it is discovered that the petitioning fiancé or spouse had been convicted of a sexual offense against a minor.
John, a US citizen, petitioned Jenna as his fiancé in 2007. Jenna is a single parent who has a minor child from a prior relationship. The fiancé visa petition filed by John on behalf of Jenna was approved. The consular officer issued proper visas for Jenna and her minor child.
Upon arrival in the United States, Jenna immediately married John in a simple civil wedding ceremony. After the marriage, an application for adjustment of status was filed with the US Citizenship and Immigration Service (USCIS) so that Jenna and her daughter could become green card holders.
John and Jenna have a genuine relationship. They are a happy couple. They live together as husband and wife, and have plans to have a child of their own. While applying for the change of immigrant visas, an unexpected problem arose that shattered the couple’s family dreams. Instead of a green card, Jenna received a Notice to Appear for a deportation hearing.
Unbeknownst to Jenna, John had a criminal conviction in 1979 and was sentenced to a prison term for committing a sexual offense against a minor. This offense made him incapable under the Adam Walsh Act of filing a petition on behalf of a foreign national. The prior visa of Jenna was rendered invalid, and the application for adjustment of status was denied. Jenna and her minor child are now being ordered to leave the United States.
The Adam Walsh Act
Jenna filed an appeal for the removal case in the Board of Immigration. It was denied. What will happen to Jenna and John? Will they be separated forever because of the legal barrier imposed by the Adam Walsh Act?
The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) was enacted by the US Congress to protect children from sexual exploitation and violent crimes, prevent child abuse and child pornography, promote Internet safety, and honor the memory of Adam Walsh and other child crime victims.
The law prohibits US citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based visa petition on behalf of any beneficiary. The prohibition covers those convicted of kidnapping, false imprisonment, solicitation to engage in sexual conduct, use of a minor in a sexual performance, prostitution, criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct, and any other sex offense against a minor.
This prohibition applies unless it can be shown that the petitioner poses no risk to the safety or wellbeing of the beneficiary, including any derivative beneficiary. Beneficiaries include the spouse, fiancé, parent, unmarried child, unmarried son or daughter over 21 years of age, orphan, adopted child, married son or daughter, brother or sister.
Retroactive effect
John committed the crime against a minor in 1979, before the Adam Walsh Act was enacted. It had been 27 years since John was convicted of the offense when he met Jenna. He had served his sentence and was remorseful about his past conduct. He has committed no other crime since then. Jenna argued that since the crime was committed before the enactment of the law that prohibited the filing of family petitions by sexual offenders, his petition should not be considered affected by the prohibition.
The immigration court and the Board of Immigration Appeals agreed that the Adam Walsh Act does not contain a provision on its exact effectivity date. Nevertheless, it is applied retroactively because of the danger the offender may pose on the person being petitioned. It examined the law’s purpose, which is to “ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States. A petitioner who has been convicted of a “specified offense against a minor” poses a present danger as a potential sexual predator. Hence, John is still prohibited from filing a petition on behalf of Jenna.
No-risk exemption
John may still prove that he no longer poses a risk to the safety of his spouse and stepdaughter. This is the only exception available. However, any attempt to show that a petitioner has been rehabilitated and no longer poses a risk is measured by the highest standard available under the law, which is “proof beyond reasonable doubt.”
The effect of the Adam Walsh Act on Jenna and her daughter is that they may very well be removed from the United States as a result of John’s previous conviction. While this may be seen as antithetical to the policy of family reunification, we need to understand that it is also in the public interest to protect foreign nationals and minor children from the possible harm that could be posed by a convicted sexual offender.
It is not impossible to meet the high standard required by the USCIS and make a clear showing of rehabilitation from convictions involving crimes of sexual predation. It augurs well, however, that the standard is high, difficult and exacting, if we want to truly protect our children.
***
Atty. Lourdes Tancinco may be reached at law@tancinco.com or a 721 1963 or visit her website at www.tancinco.com