One of the many priorities of the US Immigration and Customs Enforcement (ICE) is to deport most criminal aliens who are convicted of aggravated felonies. This happens even if the alien is already rehabilitated. The same consequence also results when US citizen or green card holder petitioners have prior criminal convictions. These are the criminal petitioners who are prevented from petitioning family members.
Rosalie was 16 years old when she migrated with her mother, Aida, to the United States. Her stepfather, David, filed a fiancé petition for Aida. Rosalie was included in the petition as a stepchild.
Upon arrival in the US, Aida married David. Thereafter, a petition for green card was filed for Aida and Rosalie. All three were living in only one household. One time, David attempted to take advantage of Rosalie by sexually molesting her. Rosalie ran away from their home and lived with her classmate’s family. When Aida found out about this, she also left David after reporting the incident to the authorities. Aida eventually decided to return to the Philippines but Rosalie refuses to return with her. Rosalie holds deep resentment towards her mother for bringing David to their lives. Rosalie stayed in the US in unauthorized status since the petition filed by David was withdrawn. It was later discovered that David was a convicted sexual offender even before he met Aida. This case happened before legislation was passed to protect beneficiaries from sexual offenders.
The Adam Walsh Child Protection Act
During the Bush Administration, the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act), Pub.L.109-248 was enacted to protect children from sexual exploitation and violent crimes, prevent child abuse and child pornography, promote internet safety, and, to 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 in 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.
The only exception from this prohibition is if it can be proven that the petitioner poses no risk to the safety or well-being of the beneficiary, which includes the principal beneficiary and any alien derivative beneficiary. Beneficiary includes 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.
Filing the Petition
Petitioners who have prior convictions in the enumerated sexual offenses are prevented from filing petitions for their relatives. When a petition for fiancé visa or immigrant visa is filed by a US citizen or a lawful permanent resident, the US Citizenship and Immigration Services will run a background check on the petitioner. Usually, it is the noncitizen relative who will undergo security check before an immigrant visa is filed. With the Adam Walsh Act, both parties (i.e., the US citizen petitioner as well as the alien beneficiary) must have no prior conviction.
Avoiding Abuses
These days, the use of internet to meet future partners is very common. With the existence of non-traditional ways of communicating and courting, relationships are developed between parties who live in different countries through cyberspace. There are indeed couples who are happy living together as husband and wife after having met through the internet. But unfortunately, there are also those who become victims of sexual assaults or spousal abuses.
When a US citizen petitioner and the fiancé have a huge age gap, this is usually a circumstance that raises a red flag to the consular officer. A suspicion that the marriage may not be a good faith marriage is not unusual. In the past, when there were no background checks for petitioners, there were many cases of petitioned fiancés and spouses who were subjected to abuse similar to the case of Aida and Rosalie.
With this restrictive requirement of proving the “no risk” to the petitioned relative, sometimes the petitioner’s past misconduct becomes an obstacle to petitioning. I have encountered that case of a US citizen who had a prior “prostitution” conviction who was given a difficult time obtaining visas for his spouse and child. He was even embarrassed to reveal to his spouse that he had a prior conviction for prostitution as he could not explain the delay in the approval of his family’s immigrant visa petition. According to this person, he was entrapped by police officers to engage in solicitation but was nevertheless convicted.
Whatever prohibitions are put in place to protect the children, it must be understood that the rule is not absolute. Once the petitioner is able to prove that he poses “no risk” to the safety of the petitioned child or relative, a petition may still be approved. The person being petitioned should exercise diligence and caution before agreeing to join their future spouses or partners in the US especially if they are migrating with their minor children. The law is there to protect future immigrants but they have to exercise vigilance in choosing their future partners. Their choices do not only affect them, it also affects their children.
(Tancinco may be reached at law@tancinco.com or at 887 7177)
