Sex Offender Risk Assessment for Family Based Immigration Petition
Adam Walsh Child Protection and Safety Act of 2006
Sections 402(a)(b) of the Adam Walsh Act
Sections 101(a)(15)(K), 204(a)(1)(a), and 204(a)(1)(B)(i)
The forensic psychologist may aid in conducting a sex offender risk assessment in these cases in order to assist the USCIS in determining risk of harm to the beneficiary.
On July 27, 2006, President Bush signed into law H.R. 4772, the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”), an Act to protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.
Determining “Poses No Risk” to Beneficiary
The critical purpose of section 402 of the Adam Walsh Act 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 States. USCIS, therefore, may not approve a family-based petition (I- 130 or I-129F) if the petitioner has a conviction for a specified offense against a minor unless USCIS first determines that the petitioner poses no risk to the beneficiary with respect to whom a petition was filed.
Adjudicative Review of Evidence To avoid denial of a petition or the revocation of a prior approval, a petitioner who has been convicted of a specified offense against a minor must submit evidence of rehabilitation and any other relevant evidence that clearly demonstrates, beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary(ies). The initially filed petition or response to an RFE or NOIR must include whatever evidence and legal argument the petitioner wants USCIS to consider in making its risk determination.
Examples of such evidence include, but are not limited to:
- Certified records indicating successful completion of counseling or rehabilitation programs;
- Certified evaluations conducted by licensed professionals, such as psychiatrists, clinical psychologists, or clinical social workers, which attest to the degree of a petitioner’s rehabilitation or behavior modification;
- Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services;
- Certified copies of police reports and court records relating to the offense and any pre-sentencing report, and the conviction judgment;
- News accounts and trial transcripts describing the nature and circumstances surrounding the petitioner’s specified offense(s) against a minor and any other criminal, violent, or abusive behavior incidents, arrests, and convictions.
Decision In determining whether a petitioner poses any risk to his or her intended beneficiary, the adjudicator must consider all known factors that are relevant to determining whether the petitioner poses any risk to the safety and well-being of the beneficiary. Factors that should be considered include, but are not limited to, the following:
- The nature and severity of the petitioner’s specified offense(s) against a minor, including all facts and circumstances underlying the offense(s);
- The petitioner’s criminal history;
- The nature, severity, and mitigating circumstances of any arrest(s), conviction(s), or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary;
- The relationship of the petitioner to the principal beneficiary and any derivative beneficiary; • The age and, if relevant, the gender of the beneficiary;
- Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and
- The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition.
Given the critical purpose of section 402 of the Adam Walsh Act, the adjudicator must automatically presume that risk exists in any case where the intended beneficiary is a child.
In cases where none of the intended beneficiaries are children, the adjudicator must closely examine the petitioner’s specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary. For example, past acts of spousal abuse or other acts of violence must certainly be considered.
The burden is upon the petitioner to prove, beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary.
Forensic Psychological Evaluations for Extreme Hardship
The Importance of Psychological Evaluation in Immigration Proceedings
Psychological evaluation reports can play an important role in establishing and verifying anticipated hardship. Most U.S. citizen spouses will experience anxiety and depression, or both, at the thought of their partner leaving the country for an extended period of time. The challenge is to show how this reaction is different or more severe than that experienced by others. The strongest forensic reports and applications indicate a thorough examination of the qualifying relative(s) and collateral interviews of other relevant family parties. A history of psychological problems and/or treatment connected to the applicant’s absence would aggravate a pre-existing condition is relevant information to investigate. The psychological evaluation must be detailed and comprehensively address the specific legal hardship factors to the psychological and neuropsychological functioning of the qualified relative(s). Further assessment into special circumstances such as battered spouse syndrome affecting the petitioner is also critical to examine as certain petitioners are at risk to being deported to dangerous environmental circumstances.
The extreme hardship standard is mandated by and set forth in INA § 212(a)(9)(B)(v). All applicants seeking to waive the three- or ten-year bar due to triggering unlawful presence must establish extreme hardship to a U.S. citizen or legal permanent resident (LPR) spouse or parent. This family member is known as a “qualifying relative.” A precondition to filing the waiver is the existence of a particular family relationship; once that is established, the next step is showing that the qualifying relative will suffer extreme hardship if the applicant is not permitted admission to the United States. Establishing extreme hardship has been a requirement for many different immigration benefits and forms of relief. The extreme hardship legal process may necessitate a forensic psychological evaluation of the qualifying relative or the petitioner.
Extreme Hardship Factors
Various sections of the immigration statute impose the same extreme hardship requirement and case law from other contexts such as suspension of deportation decisions and other sections of the immigration statute inform what the term means in a waiver of inadmissibility hardship claim.
Extreme Hardship Factors:
- Applicant’s age both at the time of entry and at the time of relief
- Length of residence in the United States
- Family ties in the United States and abroad
- Health-related issues
- Financial situation, including business or occupation
- Possibility of other means of immigrating
- Applicant’s immigration history
- Applicant’s position in the community, and
- Economic and political conditions in the applicant’s home country.
Additional relevant hardship factors include:
- Ability to raise children if family members are not available to help
- Quality of life factors in the home country
- Educational opportunities for children who do not speak, read, write language
- Separation from family members, especially in single parent situations
- Separation from family members when qualifying relative was ill or elderly
- Significant health conditions when medical care was unavailable
- Violence, damage from civil war and disasters in home country
- Psychological impact including depression, trauma
- Political persecution
- Contributions to the community
- Acculturation and integration into U.S. society, and
- Severe personal consequences and non-economic hardship flowing from economic ones.