The Adam Walsh Act and the Petitioner's Burden to Prove "No Risk of Harm" - March 2016
The Adam Walsh Act (“AWA”) was enacted “To protect children from sexual exploitation and violent crime, 防止虐待儿童及儿童色情制品, 促进互联网安全, 并纪念亚当·沃尔什和其他儿童犯罪受害者.”
The AWA包含了对美国的重大限制.S. citizen or lawful permanent resident’s ability to petition for his or her spouse or fiancé(e) if he or she has been convicted of any specified offense against a minor. Title IV of the AWA is titled “移民 Law Reforms to Prevent Sex Offenders from Abusing Children,” yet its far reaching effect often goes beyond protecting children - prohibiting the approval of family-based petitions when the Petitioner has been 对未成年人犯下特定罪行而被定罪的 unless “the Secretary of Homeland Security, in the Secretary’s sole and unreviewable discretion determines that the citizen poses NO RISK to the alien with respect to whom a petition is filed.”
Even 尽管AWA本身直到2006年才颁布, United States Citizen and 移民 Services (USCIS) and the Board of 移民 Appeals (BIA) have held that the AWA is retroactive in its application such that convictions from prior to the AWA’s enactment still serve the basis for the prohibition. The Act also does not distinguish among the severity of the individual cases. A misdemeanor charge from decades prior that resulted only in probation carries the same prohibition in the immigration context as a recent felony conviction with a prison term. 这在老年病例中尤其成问题, as the petitioner is required to submit full court records of the prior proceedings. 在这个时代, 许多法院正在转换文件, 如果纸质文件存在的话, 进入电子记录. The original court files have often been destroyed and it is nearly impossible to recreate the record. This is generally less of a problem in felony cases but in many misdemeanor cases, courts simply do not retain the supporting documentation and evidence for the underlying conviction.
所有的家庭 petitions that are subject to the AWA are processed at the Vermont Service Center for the USCIS. Applicable petitions covered/barred by the AWA included I-129F Fiancé(e) Petitions and I-130 Petition for Immediate Relative (spouse, etc). These petitions are forwarded to a special unit empowered with the ability to review the cases and approve them only in the rare instance that the Petitioner was not, in fact, 对未成年人犯下特定罪行而被定罪的, or in cases where the Secretary determines that the Petitioner poses no risk of harm against the intended beneficiaries. The Petitioner bears the burden of establishing “No Risk of Harm” beyond any reasonable doubt.
It should 他强调，本法不适用于有意移民的人. The Act applies to the Petitioner and even applies in cases where there are no children involved in the immigration petition, 如申请人和受益人均无未成年子女, 没有领养孩子的计划吗, 或者没有能力生孩子. 在这些情况下, the application of the AWA goes far beyond its purpose of protecting children and serves to bar approval of a family-based petition even when the Beneficiary is fully informed of the Petitioner’s past conviction.
While it is possible for a Petitioner to establish beyond any reasonable doubt that he or she poses “no risk of harm,“这个标准很难达到. 在最近的决定中 关于劳资问题(2月2日. 4, 2016), the Administrative Appeals Office (AAO) of USCIS sustained an appeal by the Petitioner and found that the Petitioner had proved that he posed no risk to the Beneficiary. However, this case may prove little solace for Petitioners with AWA convictions. Not only was this case extremely favorable on the facts with a Petitioner and Beneficiary in a long-term relationship with no minor children and beyond childbearing years, 以及近20年前的轻罪定罪, 这是一个极其漫长的过程, 近3个.5 years from the initial filing of the I-129F Petition to the AAO’s decision sustaining the appeal. Any case involving or even potentially involving the Adam Walsh Act will be extremely complex and fact-intensive. 在某些情况下, the Petitioner may be able to establish that the underlying conviction is not, in fact, a conviction under the Adam Walsh Act or may have such strong facts as to support a determination that the Petitioner meets the “no risk of harm” burden. One thing that all of these cases have in common is that they are extremely complex and fact-intensive, and receiving expert assistance is critical to maximizing the Petitioner’s chances of a successful outcome.
Anne C. Lahren is 彭德律师事务所的律师 & Coward who focuses her practice on immigration, civil litigation, and family law. 联系她的电话是(757)490-6293或 alahren@repjcclothing.com.