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)
