The BIA's Adam Walsh Act Trilogy: Because We Can

The BIA's Adam Walsh Act Trilogy: Because We Can

"In a deportation nation, there are never enough people to deport. Four million people deported since the Department of Homeland Security (DHS) was organized, yet the DHS still craves even more human beings to feed the machine. Not content with deporting people for their own status violations, traffic violations, or crimes, last week the DHS got the Board of Immigration Appeals (BIA) to ratify the startling power that the DHS may deport a noncitizen for a crime committed by someone else.

Because it is easy to think that we exaggerate, let us say that again: In three decisions issued on May 20, 2014, the BIA teed up for removal three women, Ms. J-, Ms. A-, and Ms. I- and a young boy, E-, not because of something they did; rather, the DHS wants to deport them because of a crime committed by their respective United States citizen spouses and parent a long, long time ago. In its perception of the deportation nation, the BIA condones deportation merely because we can.

The Adam Walsh Child Protection and Safety Act of 2006 (AWA) amended INA § 204(a)(1), the statute governing the petitioning procedure for immediate relatives, to bar a United States citizen or lawful permanent resident convicted of a “specified offense against a minor” from petitioning for his or her family members to immigrate to the United States. The AWA also makes the prohibition for citizen-initiated petitions applicable to fiancée (K-1) petitions. The prohibition shall not apply, however, in those cases where there would be “no risk” posed by the citizen to his or her family member. Fairly read, the family-immigration rules, as amended by the AWA, indicate that the broad and important principle that “any citizen” make seek unification with his or her family is subject to an exception (the “conviction” clause) which is itself subject to an exception (the “no risk” clause).

The term “specified offense” is defined as any one of nine enumerated offenses committed against a minor. A conviction for any one of the nine “specified offense[s]” triggers the AWA’s “conviction” clause. In turn, the “no risk” clause creates an exception for U.S. citizens with a “specified conviction” – if the Secretary of Homeland Security, in her “sole and unreviewable discretion” finds that the citizen poses “no risk” to the beneficiary family member.

The AWA amendments to the INA as interpreted by the BIA represent a departure – the first of its kind that we are aware of – from other provisions governing the admission of noncitizens. Unlike the visa preference categories which define the noncitizens entitled to admission in terms of their skills, experience, or familial relationships, or the grounds of admissibility which examine fitness of the intending immigrant, the prohibition on citizen-initiated petitions at INA § 204(a)(1)(i) scrutinize exclusively the character of the United States citizen petitioner. Unlike the inadmissibility grounds and deportability grounds that define the fitness of the noncitizen to enter or remain in the United States based on his or her own conduct, the AWA amendments as interpreted by the BIA, authorize the DHS to deport a noncitizen for someone else’s conduct.

Following the AWA’s enactment, USCIS has expansively interpreted both the scope of the “specified offense” definition, while also simultaneously imposing a virtually impossible-to-meet burden on petitions to establish that they pose no risk to the family members for whom they seek to petition. These interpretations were outlined in a guidance memorandum, and as far as we know, no efforts have been made to create regulations implementing any aspect of the AWA amendments.

Thus, for years after its enactment, the USCIS either denied outright or stalled thousands of visa petitions found to potentially fall within the ambit of the AWA. Among the questions posed by the AWA’s immigration provisions are these:

  • Whether the classification of a particular conviction as a “specified offense against a minor” was to be done using a “categorical” analysis, in which only the elements of the state crime were analyzed, rather than the actual conduct of the United States citizen petitioner;
  • Whether the USCIS was correct in interpreting the “no risk” element of the AWA to mean that petitioners must provide evidence showing “beyond a reasonable doubt” that they weren’t a threat to their own relatives, or whether the ordinary “preponderance of the evidence” standard should be used;
  • Whether it was the government’s job to prove the existence of a disqualifying petition, or if that job fell to the petitioner;
  • Whether a petitioner could appeal certain legal aspects of a “no-risk” determination, or whether the BIA lacked jurisdiction even over these non-discretionary issues; and
  • Whether the AWA would apply to an individual whose disqualifying offense happened before the new law took effect.

On May 20, 2014, in the trilogy of decisions that are Matter of Aceijas-QuirozMatter of Introcaso,Matter of Jackson and Erandio, the Board answered some of these questions and refused to address others on jurisdictional grounds. Each decision represents a particular pronouncement of law regarding the AWA. As a single piece of work, the story is far more disturbing.

In Aceijas-Quiroz the BIA held that it lacked the authority to review any challenges brought against the legal standard used by USCIS—“beyond a reasonable doubt”—when conducting a “no risk” analysis. Despite this holding, the Board expressed some skepticism about the propriety of that standard, but left the issue to be resolved in another setting, such as a U.S. district court. For the time being, the Board’s decision means that the only AWA-related issue that the Board will review on appeal is whether an individual was convicted of a “specified offense.”

In Introcaso, the BIA explained that a visa petitioner bore the burden of proving whether or not an offense was a “specified offense against a minor.” It held that DHS examiners were not bound by the categorical approach in determining whether any particular offense of which the United States citizen was convicted was for a “specified offense against a minor”. The BIA says that the DHS could look into facts and conduct, whether proven or not during the citizen’s criminal proceeding, to determine if it was a disqualifying offense—even where the elements of the criminal statute at issue would not have supported a finding of ineligibility. Convicted conduct is not the point, per the BIA.

In Jackson and Erandio the BIA held that the AWA applied to all convictions made by any United States citizen at any time – even those that occurred, as they did in Jackson and Erandio, twenty-five years before the AWA’s enactment. Take, for example, a U.S. citizen who pled guilty to a disqualifying crime in 2000, six years before the AWA took effect. That person could not have known at the time of the criminal proceedings that his guilty plea would later prevent him from petitioning for his foreign-born spouse or stepchildren to come to the U.S. Nevertheless, the BIA held that the AWA was allowed to reach backwards in time, to penalize actions that took place before the law was passed.

The impact of these three decisions will undeniably be devastating for those families caught up in the immigration related provisions of the AWA. It now becomes far more likely that their visa petitions will be denied, without any meaningful opportunity to obtain administrative review of such denials.

As construed by the dystopian trilogy, the immigration provisions of the AWA have a moral. It is a moral that says that in a deportation nation, we shall deport you to rescue you, we shall save you from sexual predation by sending you to a nation where protection against sexual violence is non-existent; and we shall protect your personal dignity by refusing to so much as recognize your decision to marry, made of your own free will. “We are the immigration unit of the U.S. government and we are here to help,” and even if helping means setting unprecedented and nearly impossible evidentiary standards to the only exception to the draconian statute, we, the members of the highest immigration tribunal in the United States, cannot correct the government’s draconian and unreasonable application of the statute. On the legal issues the BIA did reach, it departed from the Supreme Court’s recent pronouncements of the importance of the categorical approach, and held that even decades’ old convictions could trigger this draconian statute. In short, while you might be a perfectly fine person, that is why the Board authorizes the deportation. Because if they didn’t, no one else would.

Of the legal errors in the decisions, we will say more later. If you have a case involving the Adam Walsh Act’s immigration provisions, please email"

Stephen Manning is an attorney with Immigrant Law Group PC in Portland, Oregon and a member of the AILA Amicus Committee. Mark Barr is an attorney with Lichter Immigration in Denver, Colorado and a member of the AILA Amicus Committee. Edward Ramos is an attorney with Kurzban, Kurzban, Weinger, Tetzeli and Pratt PA in Miami, Florida and frequently collaborates with the AILA Amicus Committee. Debbie Smith is a clinical professor of law at the University of Idaho and a member of the AILA Amicus Committee.

Stephen Manning, Mark Barr, Edward Ramos, and Debbie Smith, May 29, 2014.