Month: June 2014

Deportations from the United States usually arise in cases of non-U.S. citizens committing crimes or violations of immigration law. However, in certain instances, deportation may arise in cases involving U.S. citizen petitioners.

John, a U. S. citizen, petitioned Jenna as her 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 a K1 visa for Jenna and a K2 visa for her minor child.

Upon the arrival of Jenna in the United States, she immediately married John in a simple civil wedding ceremony. After the marriage, an application for immigrant visa or adjustment of status was filed with the U.S. Citizenship and Immigration Service so that Jenna and her minor child 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 their immigrant visas, an unexpected immigration problem arose that shattered the couple’s problems and threatened their family’s future. Instead of green cards, Jenna received a Notice to Appear for a hearing on their deportation case.

Unbeknownst to Jenna, John had a prior criminal conviction in 1979. John was sentenced to prison for committing a sexual offense against a minor and this offense rendered 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. Jenna appealed the removal case with the Board of Immigration Appeals but just the same the appeal was dismissed. What will now happen to Jenna and John? Will they be separated forever just because of the legal barrier imposed by the Adam Walsh Act?

The Adam Walsh Child Protection Act

The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act), Pub.L.109-248 was enacted by the U.S. Congress 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 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 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.

Retroactive Effect of AWA

The Adam Walsh Act was enacted in 2006 and John committed the crime against a minor in 1979. This means it has been 27 years since John was convicted of the offense when he met Jenna. He had served his sentence and is remorseful about his past conduct. No other crimes have been committed and John is fully rehabilitated. Jenna argued that since the crime was committed before enactment of the law that prohibited 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 it 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 Sates. 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 still may 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 U.S. Citizenship and Immigration Services will not accept anything less than “proof beyond reasonable doubt” and the Board of Immigration Appeals stated that it has no jurisdiction to review the legal standard being used by the U.S. Citizenship and Immigration Services in these matters.

The effect of the Adam Walsh Act on Jenna and her daughter is that they may very well be removed from the United States and deported as a result of John’s conviction. While this may be seen as antithetical to the policy of family reunification, we need to understand that it is also an important public interest to protect the foreign national and the minor children from possible harm that could be posed by a convicted sexual predator.

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 tancinco.weareph.com/old)

For almost two years, families separated from their adult children were given hope of reunification. A Court of Appeals decision in the Osorio v. Mayorkas case, ruled that aged-out children (those who turned 21years old while their parents’ petitions were pending) may automatically be converted and be immediately granted visas.

On June 9, 2014, the U.S. Supreme Court in the case of Scialabba v. Cuellar de Osorio reversed the decision and ruled that the aged-out children should fall into the queue and may not avail of the benefits of automatic conversion and priority date retention. This came as a shock to many Filipino children hoping to be reunited sooner with their families in the United States. What is this new Supreme Court decision and how devastating is its impact on families?

Joseph is the eldest of four siblings. His father, Tony was petitioned under the third preference category, a petition by U.S. citizens on behalf of adult children. The petitioner is Gregoria on behalf of Tony. Joseph was the derivative child and was only 8 years old when the petition was filed.

It took twenty years before Tony’s petition became current. By the time the visa was available, Joseph was already 28 years old. His siblings who were not born at the time the petition was filed were all below the age of 21 years old.

Tony’s wife passed away in the process. Joseph is very close to his siblings, having helped his single parent father with his younger siblings’ upbringing. So when the visa became available, Tony and his four children below 21 years were able to immigrate to the United States. Only Joseph was left behind because he was no longer a minor at the time the visas became available. Joseph’s separation from his family was very painful for him. He fell into a depression and became very ill. Upon Tony’s arrival in the United States as a green card holder, he immediately filed a petition for Joseph as the adult child of a lawful permanent resident. Under this category, Joseph has to wait for more than 10 years. But Tony heard about the Child Status Protection Act and the benefits provided for aged-out children. Information reached him that with the Osorio Case ruling in the Ninth Circuit Court of Appeals, Tony’s petition from his mother Gregoria may be automatically converted to that of Joseph’s petition and that the priority date may be retained. While waiting for the USCIS guideline to implement the ruling in the Osorio case, the USCIS instead filed an appeal to the U.S. Supreme Court. To Tony’s disappointment, the Supreme Court ruling declined to apply “automatic conversion” and mandated that aged-out children must have their own petition and fall to the back of the visa line. This means 10 more years of waiting for Joseph.

The case of Joseph is similar to the case that was elevated to the U.S. Supreme Court relating to a Filipino national by the name of Norma Uy. The latter is seeking application of the age-out protections of the CSPA for her daughter Ruth who was a derivative beneficiary of the petition filed by Norma’s brother on her behalf. It took more than two decades for Norma’s priority date to become current at which time Ruth was already 23 years.

First Come First Served

The method for petitioning families in the United States is based on the numerical system. It is a “first come first served basis” of issuing visas in the order of priority dates, i.e. dates when their U.S. citizen or green card petitioners filed petitions for them. This policy makes backlogs inevitable if we consider the numerical limitations typical under these circumstances where there are more petitions than available visas.

For intending Filipino immigrants, the backlog is not just extensive, it is unconscionable. Visa wait periods may take more than 20 years for petitions filed by U.S. citizen siblings; they may take anywhere from 15 to 20 years for petitions filed by US citizens for their adult children depending on whether or not the adult children are married. Since the wait time for visas to become available is ridiculously long, nature will take its course. Petitioners may die in the process and when they do, their petitions die with them, save only in very exceptional circumstances where humanitarian revalidation is applicable. Children will naturally grow older and if they are past 21 by the time the visas are available, they are no longer eligible to migrate with their parents. Family separation becomes an all too common reality when children age out.

Child Status Protection Act (CSPA)

To prevent family separation, the ages of the children who fall in line with their parents are provided an opportunity to use the age of the child at the time of the initial filing of the petition. This rule applies to minor children of U.S. citizens. But this rule is not extended to the derivative children of the principal applicant. Petitions by U.S. citizens for their siblings; and, for their adult married children takes 2 decades before the visas become available. Naturally, derivative minor children waiting with their parents grow older and eventually reach majority age. Unlike marriage, which is a change in circumstance due to choice, growing old is function of nature. This fact simply was lost when the U.S. Supreme Court arrived at its decision that CSPA may not apply to these derivative beneficiary children. Unfortunately, these children would have to wait in line all over again. Justice Kagan reasoned that the aged-out child “should not receive credit for his parent’s wait when he has become old enough to live independently.”

The Supreme Court ruling is a huge setback for immigrant families who have been waiting to be reunited with their aged-out children left behind in the Philippines. But since the final arbiter has spoken, the only chance for a family reunification and change in policy is through congressional enactment. In the meantime, children like Joseph simply have to be in line for just that many more years before they can be reunited with the family they love.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 02 721 1963 or visit her website at tancinco.weareph.com/old)