The Nature and Severity of Specified Offenses
Over the past couple of years, immigration denial decisions regarding Adam Walsh Act (AWA) waivers coming from the USCIS have been remarkably short. USCIS adjudicating officers recite an accounting of the evidence to let the petitioner know it was reviewed and not skipped. Then, in the end, the decision typically states:
Due to the nature and severity of the offense … the petitioner has not met his [or her] burden of showing that he poses no risk to the safety and wellbeing of the beneficiary….
So, the nature and severity of the specified offense is the central question in nearly all denial decisions I’ve seen recently.1
Typically there is also a reference to what I call a plus factor: due to the nature and severity of the offense “…and breach of trust” or perhaps “…and grooming” …. So, USCIS officers tailor denial decisions just slightly by adding this additional element to the rationale. Even so, this “plus factor” should already be taken into account when determining the “nature of the offense”, nothing more. In contrast, denial decisions uniformly lack discussion on any other considerations. The dots connecting the past offense to risk of future harm is inarticulate.
USCIS Adjudications Procedures
Guidance for the adjudication of AWA matters is set out in a USCIS memorandum dated February 8, 2007, by then Acting USCIS Deputy Director Michael Aytes (the “Aytes Memo”). It states that:
Unless the adjudicator can conclude, based on the evidence, that the petitioner poses no risk to the beneficiary, the adjudicator must deny the petition and clearly articulate the factual basis for the determination. [Emphasis added.] See, Aytes Memo at p. 7.
The determination is “risk” of future harm, and the basis for such determination is never articulated in my experience.
So, it begs the question whether the natures and severity of all specified offenses are equally egregious enough to justify denial without something more. This does not appear to be the case because, if it were, there would be no need for a risk determination; the crimes themselves would justify denial without further consideration. Congress would simply have barred all petitioners participating in the U.S. immigration system for having a specified offense. Instead, congress opted not to do so. The Secretary/USCIS has a duty to determine risk, an undertaking in light of the specified offense. The task is forward looking into risk of future harm as a health and safety precautionary statute.
The USCIS agency under the Secretary remains silent in ranking which crimes are relatively more severe than others, or even whether other factors are considered. Its standard operating procedures do not compare types of crimes. If other factors are considered, the denial decisions fail to state so. Congress mandated that the Secretary (USCIS) “determine” whether a petitioner poses no risk to an immigration beneficiary spouse or other family member. When preparing cases for submission, we are left to wonder whether a particular offense might be denied simply because there was an offense.
The Sex Offender Registry List Tier System
The immigration portion of the AWA statute does not indicate which specified offenses are more severe than others. Title IV of the Adam Walsh Act relates to immigration and is part of an omnibus legislation involving sex offenses. Pairing the “specified offenses” involving minors under Title IV with the tier system for the registry of sex offenders under AWA §20911 looks something like this:
(A) An offense (unless committed by a parent or guardian) involving kidnapping; Tier III §20911(4)(B)
(B) An offense (unless committed by a parent or guardian) involving false imprisonment; No Tier
(C) Solicitation to engage in sexual conduct; Tier I §20911(2)
[unless for prostitution. See, E] Tier II §20911(3)(B)(ii)
(D) Use in a sexual [live] performance; Tier II §20911(3)(B)(i)
(E) Solicitation to practice prostitution; Tier II §20911(3)(B)(iii)
(F) Video voyeurism and described in section 1801 of title 18, United States Code; Tier I §20911(2)
(G) Possession, production or distribution of child pornography; Tier I for possession; Tier II for production,
but perhaps Tier III if child is under 13; Tier II or III for distribution
(H) Criminal sexual conduct involving minor or the use of the internet to facilitate or attempt such conduct; or Tier I §20911(2)
(I) Any conduct that by its nature is a sex offense against a minor. Tier I-III catchall
This pairing between the tier system and the specified offenses under AWA Title IV may not be entirely accurate because a young age of a victim might move an offense into a higher tier.
Ranking the Tiers
Whether Tier III is thought to be more serious than the other tiers is imprecise. Congress did not state so explicitly as far as I know. Moreover, the tier system serves a health and safety purpose and and not a punitive purpose. Given this, the tier system should not primarily focus on the seriousness of the offense; instead, it should focus on risk to the community.
The psychological community is at a loss to understand how the tier system relates to risk. Zgoba et al.2 (2015) found that Tier 3 offenders, those with the most severe commitment offenses had a 5 year recidivism rate of 4.5% and a 10-year rate of 9.1%. This contrasted with a 5-year rate of 6.4% and 13.5% for those whose offenses led to ranking as Tier 2, the less severe level. As a result, the severity of commitment offense as defined by the AWA leads to an erroneous conclusion about the relative risk posed by individuals subject to the AWA.
Another possibility is that the USCIS might characterize which crimes are more egregious than others by looking at the immigraiton rules that relate to inadmissibility to the U.S., or removal/deportation from the U.S., of foreigners who commit certain crimes. There is a large body of immigration law which ranks whether a crime is serious enough to justify negative immigration consequences for foreigners. Litigation in this area is plentiful. The Board of Immigration Appeals and various Federal Circuits around the U.S., and states, do not all agree on definitions of terms when it comes to sex offenses and minors under 18.
Gomez v. United States
For example, consider Gomez v. United States 757 F.3d 885 (9th Cir. Wash. 2014). There, the court examined whether statutory rape (mutual sex play) involving a minor over 16 is considered a crime of violence:
We recognize that thirty-five states have at least one provision criminalizing sexual intercourse with minors that includes no age difference element whatsoever. However, in seventeen of these states, such statutes always have, as an element, a victim who is under the age of fourteen. Moreover, in another seven of these states, at least some of the provisions that lack an age difference element require as an element a victim under the age of fourteen. Because only eighteen states ever criminalize sexual intercourse with older minors irrespective of an age difference, we are not persuaded that these state laws are probative of the elements of generic statutory rape, which involves sexual intercourse with minors under the age of sixteen, not just the very young. Cf. Rodriguez-Guzman, 506 F.3d at 745 (basing the generic definition of the term “minor” within the context of statutory rape on a consensus of thirty states). When viewed as a whole, the state statutory rape laws, the Model Penal Code, and federal law support our conclusion that statutory rape is ordinarily, contemporarily, and commonly understood to include as an element a four-year age difference between the victim and the defendant. [Citations omitted] Gomez at 908-909.
By comparison, neither the AWA statute nor the USCIS indicates how the nature of the offense is to be ranked. There is no discussion or rational policy stated. Under the AWA, it is a specified offense for an 18 year old to unlawfully have sex with a 17 year old minor.
Getting to Approval
There is plenty of room to dicker with the USCIS on its manner of adjudications. We work hard in this office with clients in putting our best foot forward to try and prevail upon USCIS officers to approve a case which seems ripe for approval. We explore and try to anticipate concerns of the USCIS.
Some USCIS approvals obtained out of this office in working together with our clients are for relatively serious offenses, and some denials have been for what seem to be relatively light offenses by comparison. As hard as these cases are to figure out how to present, they are not all denied. It’s just that the denials are a mystery, a simple statement that the nature and severity of the offense is the concern. This isn’t helpful to an understanding of the AWA or USCIS implementation of it so we may aid the USCIS in rendering a sound decision.
1 Our firm has approved cases out of the USCIS, so not all cases are denied.
2 Zgoba, K.M., Miner, M., Levenson, J., Knight, R., Letourneau, E., & Thornton, D. (2015). The Adam Walsh Act: An examination of sex offender risk classfication systems. Sexual Abuse, 1-19. DOI: 10.1177/1079063215569543.