The Adam Walsh Act and Sponsoring Immigrant Relatives

     Under the 2006 Adam Walsh Act (AWA), certain U.S. citizens and legal permanent residents who have been convicted of a “specified offense against a minor” are preventing from sponsoring family members for immigration purposes. This means a fiance, spouse, child, sibling, niece/nephew or parent will not be allowed to obtain a green card or immigrate to the United States to be with his or her family member if that family member has a qualifying conviction. Often times, it creates a catch-22 problem for immigrants: they are otherwise eligible for a green card through their relatives, but the relatives are ineligible to sponsor/petition for them. The law seeks to protect children and family members from offending convicts, but many times only punishes innocent family members.

AWA Convictions Are Broad

     The law is incredibly broad. First, the term “specified offense against a minor” includes not just sexual convictions against minors, but includes certain non-sexual convictions, such as kidnapping and false imprisonment. This means any conviction for an attempt, conspiracy or solicitation to commit the above is also a conviction under the AWA. Second, while the term ‘minor’ applies to any male or female victim under the age of eighteen, in certain circumstances, a conviction under the AWA includes juvenile convictions where both the victim and defendant are under eighteen. Last, it is retroactive, and applies to conduct/convictions before 2006.  This also means USCIS may revoke approved petitions if there is good cause.

    Under the AWA, the list of convictions that USCIS will consider as an AWA offense include, but are not limited to:

(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 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.

Every state and country implements different laws relating to minors, so the above list is not exclusive. The use of the internet and digital convictions only complicate the matter further. It is important to carefully review a record of conviction to confirm a conviction specifically excludes minor victims.

No Risk Exception

     There is no waiver or appeal available. Rather, there is an exception called a ‘no risk’ exception. Per a 2007 USCIS memo entitled the Aytes Memo, a USCIS officer may make a discretionary, non-reviewable determination that the U.S. citizen or legal permanent resident petitioner does not pose a risk to the immigrating relative, based on his or her AWA conviction. Factors include not just the nature and severity of the conviction (and the facts supporting the conviction), but also:

• 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. 

     In order to prove an exception, a petitioner will need an incredible amount of evidence, including copies of the entire criminal record, therapy and medical records, compliance with registries and probation/parole, evidence of rehabilitation and good community ties, affidavits and much more. The standard of granting a ‘no risk’ exception is ‘beyond a reasonable doubt’ and again, left completely up to the interviewing USCIS officer. 

     If you believe you have a conviction for a “specified offense against a minor” and wish to sponsor immigrant family members, it is important to review your options beforehand. Contact me today to schedule a consultation.