Handout at the NARSOL Convention: Houston, TX 10/8/21
What Likely Makes a Successful AWA no risk Submission?
Title IV of the Adam Walsh Act Statute
U.S. citizens and lawful permanent residents (green card holders) are barred from filing a petition to immigrate a foreign family member if that petitioner was convicted of a specified offense against a minor under age 18, UNLESS:
the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion, determines that such person poses no risk to the intended beneficiary.
The Secretary presumably delegated these duties to the United States Citizenship and Immigration Service (“USCIS”), the agency responsible for adjudicating requests for immigration benefits.
Foreign family members include fiances; spouses; children under 21, sons and daughters 21 or over; parents; and siblings of the petitioner.
There in an exclusion from the AWA for mutual sex play where the participant is at least 13 years old and the offender is not more than 4 years older than the participant.
Certain findings of juvenile delinquency are treated as criminal convictions for purposes of the AWA where the petitioner was at least 14 years old at the time of the offense and the victim was either:
- under age 12; or
- between ages 12 and 15 years old and the sexual act included force or threat of force upon the victim.
A “specified offense” which would trigger an AWA no risk determination, is one against a minor under age 18, and includes any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping;
(B) An offense (unless committed by a parent or guardian) involving false imprisonment;
(C) Solicitation to engage in sexual conduct;
(D) Use in a sexual [live] performance;
(E) Solicitation to practice prostitution;
(F) Video voyeurism as described in section 1801 of title 18, United States Code;
(G) Possession, production or distribution of child pornography;
(H) Criminal sexual conduct involving a minor or the use of the internet to facilitate or attempt such conduct; or
(I) Any conduct that by its nature is a sex offense against a minor.
Some of these offenses involve a prurient, or sexual interest; but, many do not. None require violence, except for those certain juvenile delinquencies. The common thread is that the victim or intended victim is under 18.
USCIS Interpretation of Statute
USCIS considers there to be a two-step process:
- Is there an AWA conviction that is a specified offense?
- If so, does the petitioner pose any risk to the safety and wellbeing of the foreign family member?
Under this methodology, the foreign family members can be, and normally are, adults. The purpose of the statute–to protect and honor children–is distinct from the way in which the statute is applied.
USCIS interprets the AWA statute to mean that the petitioner has the burden of proving “no risk” in order to claim the benefit sought: participation in the US immigration process.
In order to prove no risk, the petitioner normally files an immigrant petition. At a point, USCIS will learn that the petitioner is likely subject to the AWA and issues a Request for Evidence in combination with a Notice of Intent to Deny. The notice allows 87 days to file a response proving no risk.
Three BIA Companion Cases Concerning Review of AWA Matters (2014)
In 2014, the Board of Immigration Appeals issued three companion opinions involving AWA cases:
- Matter of Aceijas-Quiroz, 26 I&N Dec. 314 (BIA 2014): BIA held that it lacked jurisdiction to review a “no risk” determination by the USCIS, including the appropriate standard of proof to be applied.
Rationale: “[T]he application of the appropriate standard of proof is part and parcel of the ultimate discretion delegated to DHS.”
- Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014): BIA held that
- a visa petitioner bears the burden of proving that he has not been convicted of a “specified offense against a minor;” and;
- adjudicators may apply the “circumstance-specific” approach when evaluating whether a petitioner has been convicted of a “specified offense against a minor,” which permits an inquiry into the facts and conduct underlying the conviction to determine if it is for a disqualifying offense.
Rationale: The provisions of the Adam Walsh Act suggest a circumstance-specific inquiry into the age of the victim and the conduct underlying the offense.
- Matter of Jackson, 26 I&N Dec. 314 (BIA 2014): BIA held that the Adam Walsh Act does not have an impermissible retroactive effect when applied to convictions that occurred before its enactment.
Rationale: The purpose of the Adam Walsh Act was to address the potential for future harm posed by sexual offenders.
Taken as a whole, the BIA asserts that it should not be involved in reviewing USCIS determinations. Thereafter, nearly all AWA submissions have been denied; a single AWA approval from USCIS is noteworthy.
Changes in USCIS Process
The vast majority of all AWA no risk determinations have been denied since 2014, with approvals in only some cases. Typically, the denial will recite the evidence without comment in order to show that the USCIS officer considered the evidence. Then the denial notice concludes that the petition is denied after having considered “all known and relevant evidence.”
USCIS denials normally do not draw a connection between the evidence submitted and the reasons for denial. Instead, the denial conclusion is issued in a perfunctory manner.
Not all cases are denied. From 2006 to 2009, there were a significant number of AWA cases approved by USCIS. USCIS stalled on adjudications beginning about 2009 and through to 2011. Thereafter, the vast majority of AWA submissions were denied. Some attorneys filed appeals with the BIA under the Justice Department, others filed with the USCIS Administrative Appeals Office, while still others filed suit in federal court. US attorneys representing the government would often negotiate settlement in federal court, resulting in approval of those cases.
However, once the BIA declined to review USCIS determinations, government attorneys curtailed settlements and approvals by USCIS became even more rare. USCIS Standard Operating Procedures expressly state that any AWA approvals should be rare.
Even given these difficulties, not all AWA no risk determinations are denied.
USCIS Approvals at ASL Law Firm After 2014
- Mike: Conviction in 1992 for possession of child pornography. I-130 marriage visa petition approved in April 2016.
- Brian: Crime was in 2005 for voyeurism. Set up a camera in the bathroom a stepchild would use. No prurient interest. Conviction for registration violation in 2013. USCIS K1 fiance petition approved December 19, 2018.
- Tom: Crime was in 1991 for mutual sex with a minor who was 13 when Tom was 20. Incident occurred one time. I-130 marriage visa petition approved on March 27, 2019.
- Michal: Conviction was in 1992 for sexually touching his stepsister when he was 28 and stepsister was 13. I-130 marriage visa approved on April 30, 2019. Two child beneficiaries also received petition approval on April 30, 2019 based on a no risk determination.
- Andy: “Conviction” for child pornography. Criminal diversion granted. Argued that AWA does not apply due to definition diversion as compared to immigration definition of “conviction.” USCIS Director agreed and approved the I-130 marriage visa petition in May 2018. There have been a number of cases where we’ve successfully argued that the AWA does not apply.
- Andrew: Conviction in 1992 for molesting his two stepsisters over a number of years. Adjustment of status approval in June 2019. Attorney Allan attended the AOS interview.
- Ron: Conviction in 2012 for posession of child pornography. AOS was approved, then revoked due to AWA. NOID submitted and AOS interview rescheduled and approved. Attorney Allan attended the AOS interview. USCIS headquarters questioned the approval. The local USCIS district office reaffirmed and the green card was issued in 2020.
- Sean: Convicted in 2004 for mutual sexual intercourse with a 16 year old when Sean was 23. K1 fiance visa approved in January 2020. Consulate returned the case to USCIS, questioning the approval. The Vermont Service Center reaffirmed and returned the case to the consulate for visa issuance.
- Michael: Crime was in 2002 for having mutual sex with a 15 year old when Michael as 25. Marriage visa petition approved in November 2020.
- Charles: Crime was in 1999 for vaginally penetrating a stepdaughter, age 10. Adjustment of status approved in February 2021.
- Frank: Crime was in 2006 for conversing with an undercover officer who he thought was a 13 year old girl. K1 fiance petition approved in April 2021.
- If available, all applicable criminal records, including police report, indictment, finding of guilt or plea of guilt, court judgment, presentencing report, sentence, and completion of probation or parole. It also should include a copy of proof of any registry compliance or violations.
- Psychological treatment records, if available.
- Psychological evaluation pertinent to the immigration no risk determination; and
- Affidavits from the petitioner and foreign beneficiary.
What Likely Makes a Poor AWA Submission?
- Not submitting psychological evaluation regarding risk to the foreign family member.
- A failure to discuss in detail each criminal arrest or conviction.
- Not clarifying what you were guilty or not guilty of doing or thinking at the time of the offense.
- Focusing on your current love story alone.
- Asserting that you are “no risk” to the foreign family member.
- Presenting a composition that is open to skepticism.
- Bending the reader’s ear in asserting that all the evidence points to no risk.
- Assuming that the deliberation over the no risk determination is an easy task for a USCIS adjudicator.
What Likely Makes a Compelling AWA Submission?
All information and documentation presented to USCIS should be:
- as complete as possible. Any documentation that cannot be obtained in support of relevant issues is problematic.
- comprehensive. To the extent aspects of the submission leave natural questions unanswered, the submission will likely be denied.
- transparent to the reader, the USCIS officer. Statements that seem murky not only lose the reader, but they leave questions unanswered at a minimum and also can come off as evasive or dismissive. USCIS believes that it determines what issues are relevant and need explanation.
- well organized for the reader. A goal is to keep the reader’s attention. A lack of organization loses the reader.
- honest and fair minded.
Criminal Offense: The petitioner should discuss in detail the AWA criminal offense. Summarize the details of the criminal proceedings and results. What was the state of mind at the time the offense occurred? What was the sentence? Are there any probation or parole violations? Explain them. Do you accept the conviction? Why or why not?
Treatment: How long was treatment and how was it conducted? What topics were covered in treatment? What did you learn in treatment? How does what you learned in treatment apply to your relationship with the foreign beneficiary? Has treatment ended? Why or why not?
Relationship: Most marriages end in divorce. Why is this marriage worth saving? What makes this relationship work?
When did you first learn of the AWA offense? What did you learn? Why not run away at that point? What goes on behind closed doors? What is the basis for your belief that your US family member is no threat to you? Are you in it for the green card?
What does “no risk” mean? What is the risk level in this case, and why? Is further treatment warranted, and why? Explain how you arrive at your conclusions. What is your degree of certainty in your findings and why? What features of the case are relevant and not relevant to your determination? Help guide USCIS officers to understand your conclusions.
Email rec’d. from psychologist on October 1, 2021:
Call for Assistance
Consider a licensed, professional immigration legal representative before proceeding. Immigration law is large and diverse, covering many types of immigration. Government agencies have become increasingly adversarial. Don’t take risks. It helps to have our team on your side to prevent unnecessary delays, anticipate problems, and effectively navigate your matter toward successful completion. At Allan S. Lolly & Assoc. P.C., we provide a free initial consultation for those interested in possibly working with us on case processing, and we’re happy to answer your questions.