ADAM WALSH WAIVER: When a Petitioner’s Criminal History Matters

 By Attorneys Eric R. Welsh & Nancy E. Miller

Usually, criminal history in an immigrant application isfocused on the immigrant applicant and not the petitioner.  The applicant might be inadmissible on account of a conviction for a theft offense, violent crime, or a drug-related crime (among others), but such grounds of inadmissibility do not apply to the petitioner.  Subject to one very important exception, a U.S. citizen or LPR petitioner is not barred from petitioning a spouse or fiancé because of the existence of a prior criminal record.  The exception is a prior conviction for a “specified offense against a minor.”  

The Adam Walsh Child Protection and Safety Act of 2006 amended the Immigration and Nationality Act by adding a bar that prohibits a U.S. citizen or lawful permanent resident from petitioning a spouse or fiancé if the petitioner has been convicted of a “specified offense against a minor,” unless the petitioner can demonstrate to the Department of Homeland Security that he or she poses “no risk” to the beneficiary spouse or fiancé.  A “specified offense against a minor” is broadly defined as an offense against a person under the age of 18 that involves kidnapping, criminal sexual conduct (including consensual sexual contact with a person under age 18, if convicted of an offense related to that contact), and any other conduct “that by its nature is a sex offense against a minor.”  The date of the conviction does not matter.  In Matter of Jackson and Erandio, the Board of Immigration Appeals (BIA) held that the Adam Walsh Act bar applies even if the conviction occurred many years before the Adam Walsh Act became law.  
U.S. Citizenship & Immigration Services (USCIS) makes the initial decision whether to approve or deny a petition.  When filing the petition, the petitioner must provide identifying information, including name, birth date, social security number, and proof of citizenship.  USCIS may use this information to search for a criminal history.  If USCIS discovers that the petitioner has any conviction that might possibly be for a “specified offense against a minor,” the burden shifts to the petitioner to prove that he or she was not convicted of such an offense(for example, that the offense was not “against a minor” because the victim was over 18 years old).
Recently, in Matter of Introcaso, the BIA held that it is the petitioner’s burden (not that of USCIS) to prove that the offense was not a “specified offense against a minor,” and that USCIS can use a circumstance-specific approach that allows inquiry into the underlying facts of the conduct beyond the statute of conviction.  For example, USCIS can demand that the petitioner produce copies of police reports, charging documents, trial transcripts, investigative reports, sentencing and probation documents, and even any news accounts of the arrest or conviction.  If the petitioner cannot or does not produce these documents, USCIS can deny the petition.  
If the petitioner was convicted of a specified offense against a minor (or, if the petitioner is not able to demonstrate otherwise), the petition will only be approved if the petitioner poses “no risk” to the beneficiary spouse.  USCIS has indicated that it will only approve such a petition upon proof “beyond any reasonable doubt” that the petitionerposes no risk to the alien spouse.  The “no risk” determination is entirely within the discretion of USCIS. In Matter of Aceijas-Quiroz, the BIA ruled that it lacked jurisdiction to review a challenge to a “no risk” determination, including the standard of proof employed by USCIS.  
Demonstrating “no risk” can be extremely difficult.  The petitioner typically must produce certified records demonstrating successful completion of counseling or rehabilitation programs; certified evaluations by psychiatrists, clinical psychologists, or clinical social workers attesting to the degree of rehabilitation or behavior modification; and other evidence of good character and exemplary service in the community.  Because of the high burden of proof (“beyond any reasonable doubt”) and the lack of review by the BIA, it is crucially important for the petitioner to present comprehensive and thorough arguments and documentation to demonstrate that he or she poses “no risk.”  
Recent BIA cases have made clear that: (1) the Adam Walsh Act bar applies regardless of how long ago the conviction occurred; (2) the petitioner bears the burden of proving that a prior conviction is not for a “specified offense against a minor;” (3) USCIS can look at virtually any document related to the arrest and conviction to determine if the bar applies; and, (4) USCIS can demand proof of “no risk” beyond any reasonable doubt, and the BIA will not review USCIS’s determination.  The Adam Walsh Act poses difficult evidentiary burdens, but with effective representation, petitions subject to the bar may still be approved.