The Adam Walsh Act prevents a U.S. citizen or permanent resident green card holder from immigrating his foreign family members to the U.S. if petitioner has been convicted of a specified sexual offense against any minor child. This limitation also applies to Fiancee Visa petitions by U.S. citizens.
Litigating The Adam Walsh Act in Federal Court
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Learn why you should seek advice early in the process from an attorney with advanced experience and why the odds are stacked against these types of cases, in this complex, evolving, area of law.
AWA Litigation in US Federal Court Is Evolving
Generally, a US citizen or permanent resident green card holder must file a petition to immigrate foreign family members to the US. Such family members include spouses and children. However, the AWA prevents a family member from immigrating if that U.S. citizen or permanent resident petitioner has been convicted of a specified sexual offense against any minor child under 18. The AWA limitation also applies to fiancee petitions by US citizens.
Under the AWA, the United States Citizenship and Immigration Services (USCIS) must first determine that the US citizen or green card holder poses no risk of harm to the foreign family member before the petition to immigrate may proceed. Foreign family members cannot immigrate to the U.S. based on the family relationship if an application for a “no risk” determination pursuant to AWA is denied. Since 2011, the USCIS has denied the vast majority of applications to waive the AWA bar. Many petitioners who fall under AWA provisions are stuck.
According to the USCIS, a successful AWA waiver application requires that the U.S. citizen or resident petitioner show beyond a reasonable doubt he poses no risk of harm to the foreign family member. Often, a US citizen believes he has enough evidence to satisfy the USCIS because it seems obvious he is not a threat to his foreign fiancee or spouse. However, the USCIS has set a high bar, to the point that nearly all cases are denied. In its current state, the process seems unfair and unbalanced.
Call to discuss a best strategy in your case. We have experience and a good position to litigate AWA denials. Managing Attorney of this law firm is excellent in complex cases.
The Waiver Denial
When the USCIS denies the waiver, there are many U.S. constitutional due process concerns worth examining.
- The “beyond a reasonable doubt” standard imposed by the USCIS is not authorized by the AWA statute;
- There seems to be no palpable nexus between the criminal offense and risk of harm to a foreign family member so that the AWA lacks a rational basis. AWA crimes include situations where a mens rea (mental state) is benign, such as in certain cases of statutory rape (mutual sex play). States have varying definitions regarding statutory rape. The BIA and the courts disagree on the definition of “sexual abuse”. If the supposed pernicious conduct of the US citizen or resident is not identified under the AWA, what trait of the petitioner poses a danger to a family member?
- The USCIS fails to identify a nexus between the criminal act and any potential harm to a foreign beneficiary. The definition of “sexual abuse” applied by the USCIS is vague, so the potential harm to a family member is unidentified.
- USCIS officers lack the expertise or training to make appropriate findings;
- There are no published regulations or official standards for review;
- Operating procedures openly display a strong bias against approval, thereby curtailing objectivity;
- There are no apparent safeguards to ensure USCIS officers exercise discretion objectively;
- The need for rehabilitation is presumed by the USCIS, but not clearly identified, so what it takes to satisfy the “no risk” determination is vague;
- There is ex post facto punishment for convictions that predate the AWA; and
- The fact that rapists and murderers are not prevented from immigrating foreign family members suggests the AWA statute is more of a punishment targeting certain US citizens than a safeguard protecting foreigners.
Harsh treatment of AWA cases by the USCIS is incidental to its “sole and unreviewable discretion” to approve or deny AWA bar waivers. Social stigma tied to those who have criminal convictions involving sex acts with minor children seems to be a contributing factor in the decision making process.
When an AWA waiver is denied, it normally should be appealed to the Board of Immigration Appeals (BIA). In two companion cases, the BIA indicates it has no jurisdiction to review the denial by the USCIS due to the sole and unreviewable discretion of the USCIS. The BIA also asserts it does not have jurisdiction to review constitutional concerns.
There Are Two Ways to Appeal BIA Decisions
1. U.S. District Court
A recent case out of the Western District of Missouri (Bremer) asserts that it lacks jurisdiction to, “review all of Plaintiffs’ claims pursuant to the judicial review scheme established in 8 U.S.C. §1252(a)(2), which bars judicial review of the Secretary of Homeland Security’s discretionary decisions and actions by declaring “no court shall have jurisdiction to review (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security” 8 U.S.C. § 1252(a)(2)(B)(ii).
The statute further states that § 1252(a)(2)(B)(ii) should not “be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals” Id. at § 1252(a)(2)(D).” The District Court essentially kicks the matter over to the Circuit Courts of Appeals.
2. U.S. Circuit Courts of Appeals
The Eighth Circuit has held it lacks jurisdiction to review the denial of a petition because it “does not involve an order of [deportation] removal.” The Ninth Circuit has cited Ikenokwalu-White and said “[w]e agree with the Eighth Circuit… Thus, where there is no final order of removal, this court lacks jurisdiction even where a constitutional claim or question of law is raised.”
Many legal practitioners will conclude there is no court available under statute to review a decision of the USCIS unless and until there is a court ordered removal (deportation). However, a removal order does not address the constitutional problems associated with a USCIS denial and BIA refusal to review that precede removal proceedings.
Often, foreign beneficiaries are outside the U.S. and so will never be subject to removal proceedings. For those foreigners in the U.S. who are out of status, Immigration and Customs Enforcement (ICE) might choose not to place the foreigner in removal proceedings for various reasons, which means the foreigner simply accrues unlawful presence in the U.S. without a remedy and the citizen or resident petitioner never gets his day in court. Where constitutional claims are at stake, the courts must have jurisdiction.
The current thinking is to file either in:
- District Court and argue against Bremer, or
- both the District Court and also the Circuit Court of Appeals to try and force the courts to determine where constitutional due process claims can be heard.
Ultimately, either the AWA statute or the USCIS application of that statute should fail.
Your Case Must Be Properly Planned and Well-Prepared From the Start
If your arguments are not correct or you have not followed proper procedure, you cannot appeal or litigate in court. You cannot appeal when you make mistakes. You also cannot take advantage of others’ successes because your case has deficiencies. You need a good immigration plan up front. It may be that you are not subject to the AWA or that there are other ways to bring your foreign family member to the U.S. and sidestep the AWA bar.
We have successfully obtained waivers. Call to discuss a best strategy in your case.
- Adam Walsh Act Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 12 Stat. 587 (AWA)
- Section 402(1), as amended, of the Immigration and Nationality Act
- INA 101(a)(15)(K), as amended
- Ninth Circuit v. Board of Immigration Appeals: Defining “Sexual Abuse of a Minor” after Estrada-Espinoza v. Mukasey, Washington Law Review Vol. 84:523 (2009). AWA section 204(a)(1)(A)(viii)(I)
- Matter of Introcaso, 26 I&N Dec. 304, 306 (BIA 2014); Matter of Aceijas-Quiroz, 26 I&N Dec. 294, 295-96 (BIA 2014)
- Matter of Fuentes-Campos, 21 I&N Dec. 905, 912 (BIA 1997)
- Bremer vs. Johnson, Case 4:13-cv-01226-ODS (Fed. Dist. Western Dist. Dec. 2014)
- Ikenokwalu-White v. Gonzales, 495 F.3d 919, 924 (8th Cir. 2007)
- Alcala v. Holder, 563 F.3d 1009, 1016 (9th Cir. 2009)