SEX OFFENDER RISK ASSESSMENT FOR FAMILY BASED IMMMIGRATION PETITION
ADAM WALSH CHILD PROTECTION AND SAFETY ACT OF 2006 PUB. L109-248
Sections 402(a)(b) of the Adam Walsh Act
Sections 101(a)(15)(K), 204(a)(1)(a), and 204(a)(1)(B)(i)
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. Section 402 of the Adam Walsh Act amends section 204 of the Immigration and Nationality Act (INA) to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition (including the Form I-130 and the Petition to Classify Orphan, Form I-600A or I-600) on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary.
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. Under section 402 of the Adam Walsh Act, this determination is entrusted to the discretion of the Secretary, who has the “sole and unreviewable” authority to decide whether a petitioner poses any risk to the intended beneficiary. USCIS interprets the “poses no risk to the beneficiary” provision to mean that the petitioner must pose no risk to the safety or well-being of the beneficiary, which includes the principal beneficiary and any alien derivative beneficiary. Accordingly, USCIS must determine, prior to the adjudication of the petition itself, whether or not the petitioner poses any risk to the beneficiary.
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.
The determination of whether a petitioner’s evidence is credible, and the weight and probative value to be given that evidence, shall be within the sole and unreviewable discretion of USCIS.
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.