It has now been 4 ½ years since the Adam Walsh Child Protection and Safety Act (AWA) took effect. Designed to “protect the public from sex offenders and offenders against children,” the AWA made several revisions to the INA, making U.S. citizens and lawful permanent residents with certain criminal convictions disqualified from filing visa petitions for their family members or fiancées. A person found to have a conviction for a “specified offense against a minor” is excluded from eligibility to file a family-based petition on behalf of any beneficiary, unless the Secretary of DHS finds, in his or her “sole and unreviewable discretion,” that the petitioner presents “no risk” to the proposed beneficiary.

For the first several years after its implementation, visa petitions found to potentially fall within the ambit of the AWA were backlogged at USCIS, as the agency developed uniform procedures for processing the applications. In September, 2008, however, the Service issued a Standard Operating Procedure module for the adjudication of AWA petitions, leading to an increase in the pace of adjudications.

As more and more AWA decisions are issued, the Amicus Committee is interested in tapping into the collective experiences of AILA members around the country with AWA adjudications. We feel there are several, unresolved issues regarding the scope, standards and reviewability of the AWA, and the Committee hopes to be involved with—or at least aware of—any pending or contemplated legal challenges to the law.

Among the issues that we feel need additional clarification are the following:

▪   Whether the categorization of a particular conviction as a “specified offense against a minor” is done using the categorical approach, or is made with an inquiry into the specific facts of the offense? In general, the categorical approach has been adopted by courts when analyzing statutory construction in the context of immigration law. However, at least one circuit court has already rejected that approach, at least for that portion of the AWA dealing with the creation of a national sex offender registry system. In U.S. v. Dodge, the Eleventh Circuit allowed an examination of the facts of a defendant’s underlying conduct in determining what constitutes a “specified offense against a minor.” 597 F.3d 1347 (11th Cir. 2010), petition for cert. denied (U.S., Oct. 12, 2010 No. 09-11207). The Amicus Committee would be interested in any AWA decisions showing what approach is currently being taken by USCIS in AWA adjudications.

▪   Whether the definition of “conviction” found at INA § 101(a)(48)(A)—which, by its own terms, is applicable only “with respect to an alien”—is being applied by USCIS to USC petitioners. There is a strong argument that a diversionary disposition of a criminal charge, resulting in something other than a judgment of conviction, should prevent the triggering of an AWA petition bar for a USC petitioner. The Committee, therefore, would be interested in hearing about any cases in which the Service did apply (or rejected) the expanded definition of “conviction” to deferred adjudications for USC petitioners.

▪   In interpreting the statutory mandate that a discretionary exception to an AWA bar be available to a petitioner who poses “no risk” to the alien beneficiary, the Service has adopted, as a matter of policy, the highest possible burden of proof—beyond a reasonable doubt. Does the use of this heightened burden go beyond the express terms of the statute? And is it a permissible use of the agency’s discretion? Last year, the AAO reaffirmed the long understood principle that a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I & N Dec. 369 (AAO 2010), citing Matter of Martinez, 21 I & N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings). The only exception to this default standard would be those instances where a different standard was specified by law (for example, the heightened standard for proving the bona fides of a marriage entered into during proceedings). The AWA contains no language heightening the standard of proof. Therefore, it can be argued that the AWA should properly be read to require that a petitioner who has been convicted of a specified offense against a minor submit evidence that demonstrates, by a preponderance of the evidence, that he or she poses no risk to the safety and well being of the beneficiary. Have any practitioners raised similar arguments with the agency? What have been the responses?

▪   Which party—USCIS or the petitioner—bears the burden of proving that a conviction is, or is not, a specified offense against a minor? If the burden falls on the petitioner, as someone applying for a benefit, what happens in those situations where conviction records are no longer available, or are ambiguous?

▪   Where a petitioner is found to have been convicted of a “specified offense against a minor,” and the intended beneficiary is a minor, USCIS has adopted a rebuttable presumption of risk. Does the agency’s policy decision go beyond the reach of the statute?

▪   Under the terms of the AWA, the determination of whether or not the petitioner poses a risk to the beneficiary is made by the Secretary of DHS in his or her “sole and unreviewable discretion.” As a result, the BIA cases to date addressing the “no risk” prong of the AWA have been dismissed on jurisdictional grounds. A typical BIA denial reads as follows:

Since the Director has concluded that the petitioner failed to prove beyond a reasonable doubt that he does not pose a risk to the safety or well-being of the beneficiary, and that determination is unreviewable by this Board, the petitioner is not eligible to file a visa petition on behalf of the beneficiary pursuant to sections 204(a)(l)(A)(i) and 204(a)(l)(B)(i) of the Act.

But what about those situations where a petitioner raises the legal question of whether the Secretary applied the correct standard in making the risk assessment? Would that challenge be reviewable at the Board? The Committee feels that such a review would still be possible. Much like the jurisdiction-stripping provisions of the INA with regard to judicial review of discretionary determinations, there should still be room within the terms of the statute to allow for purely legal arguments. What has been the experience of practitioners to date with BIA jurisdiction over AWA claims?

▪   Are there Constitutional concerns raised by the limitations created by Congress on the ability of a USC or LPR to petition for a family member? On the one hand, the existing case law on this topic can be discouraging, with the Supreme Court repeatedly upholding Congress’s broad plenary powers to regulate immigration and citizenship issues. See, e.g., Knauff v. Shaughnessy, 338 U.S. 537 (1950); Shaughnessy v. Mezei, 345 U.S. 206 (1953); Kleindienst v. Mandel, 408 U.S. 753 (1972); and Fiallo v. Bell, 430 U.S. 787 (1977), all recognizing extremely broad Congressional plenary powers to exclude or expel immigrants. On the other hand, it may still be possible to craft a Constitutional argument by distinguishing this line of cases as focusing on the status of the immigrant, and not on the status of the petitioner. What have been the experiences of any practitioners raising Constitutional issues regarding an AWA petition denial?

▪   Finally, USCIS takes the position that the AWA applies to all petitions filed or pending on the date of enactment. But are any retroactivity concerns raised by situations where the conviction for a “specified offense against a minor” took place before the effective date of the AWA? Couldn’t it be argued that Congress’s creation of a bar to filing certain family petitions due to past conduct attached a “new disability” to that conduct, and is therefore impermissibly retroactive? What have been the experiences with any practitioners raising these concerns before the agency?

This list of issues is hardly exhaustive. As more AWA cases are filed with the Service, and challenged administratively and judicially, the exact boundaries of the new law will become increasingly clear.

For example, just recently, the Amicus Committee was notified of a pending AWA BIA appeal in which the Board requested supplemental briefing on several of the topics mentioned above. The Committee agreed to prepare its own amicus brief, and was in the process of drafting that document, when the Service suddenly moved the Board—after the case had been pending for over a year—for a remand, so that the agency could issue a new decision. It would appear that USCIS is maneuvering strategically to avoid further analysis of some of its policy decisions, or avoiding the issuance of a precedential decision from the Board.

Nevertheless, the Board’s unusual request for additional briefing certainly suggests that it has taken a keen interest in exploring the exact parameters of the AWA, and we can probably expect important AWA cases coming from the Board in the near future. You can help AILA in defining those boundaries by passing along your own experiences with the AWA, and suggesting other areas ripe for litigation.

We here at Immigration Slip Opinion have been keeping on eye on the BIA. We’ve posted about some recent significant BIA decisions. In this post, we concentrate on issues presently before the BIA that could be resolved by precedent decisions. It’s the Ghost of Immigration Past and the Ghost of Immigration Future.

The BIA has been very busy of late.In addition to an increase in precedent decisions (7 already in 2010; 34 in 2009), it is hearing oral arguments in more cases now than in the past. Recently, it also requested supplemental briefing on specific issues in a number of cases, providing insight into some of its concerns.In one case, it even sought participation of amicus curiae – a request that AILA fulfilled.Here is a summary of what’s brewing at the BIA:

“Aging out” issues: K-2 and CSPA

There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21.In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent.After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday.In numerous cases, children enter with only a few days to spare before turning 21.Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable.The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment.A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong.We have asked the BIA to schedule oral argument on this issue and to decide these cases together.

On a related “aging-out” issue, the BIA asked the parties in a CSPA case to submit supplemental briefs on the meaning of the requirement that a child have “sought to acquire” LPR status within one year of visa availability.Both DHS and DOS interpret this requirement narrowly as being limited to filing an application for an immigrant visa or adjustment of status.As explained in an amicus brief that the Immigration Council filed with the BIA, this interpretation conflicts with at least two unpublished BIA decisions, both of which concluded – quite sensibly – that because Congress did not use the word “filed” it could not have meant to limit this phrase to the act of “filing.”

Asylum-related concerns

In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases.Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief demonstrates that this standard does apply to withholding cases.At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard.Unfortunately, AILA is not alone as amicus.The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief.

Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici.There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases.At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits.For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.

Matter of Shanu and the meaning of “admission”

In a case that ultimately was dismissed on other grounds, the BIA requested briefing and set oral argument on whether Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), remains viable since it now has been rejected by four courts of appeals.Another case raising Shanu remains pending before the BIA, however, and the Board recently indicated to the Immigration Counsel, amicus in the case, that it would ask for additional briefing and set oral argument in that case instead.Shanu holds that the term “admission” in INA § 237(a)(2)(A)(i)(I) includes “adjustment of status,” a conclusion the courts have rejected as inconsistent with the statutory definition of this term.Section 237(a)(2)(A)(i) provides that a person who is convicted of a crime involving moral turpitude committed within five years after the date of “admission” is removable.As a result, under Shanu, the date of a person’s adjustment may trigger the five year inadmissibility period even if the person previously had a lawful admission consistent with the statutory definition.In its amicus brief, the Immigration Council argues that the statute unambiguously provides that the date of adjustment is not the date of “admission” for purposes of this statute.

Watch for future postings on developments in these and other cases at the Board.

– guest blogging by Mary Kenney, Senior Attorney, American Immigration Council.

The Tenth Circuit recently held that K-2 visa holders do not “age-out” for purposes of adjustment of status. The case is Colmenares Carpio v. Holder, No. 08-9536 (10th Cir. Jan 12, 2010). This case was decided on a Petition for Review of the BIA decision finding Mr. Colmenares Carpio ineligible for adjustment of status.

The petitioner entered the United States in K-2 status 6 months before turning 21. His mother married the US citizen within the required 90 days, and the petitioner and his mother applied for adjustment of status before he turned 21. USCIS took two and a half years to decide his application for adjustment of status. USCIS denied the application based on Petitioner’s age on the date of adjudication of the application. An Immigration Judge found that Petitioner was not eligible to adjust status because he was over the age of 21, and the BIA affirmed with a one paragraph unpublished decision.

The Government argued that the BIA should be given deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) since the statutory scheme is ambiguous. The Court rejected that argument on a so-called Chevron “step zero” analysis. This “step zero” was created by United States v. Mead Corp., 533 U.S. 218 (2001), which held that the agency interpretation to be given deference to must be an agency rule or decision that carries the force of law, such as notice and comments rules or binding precedential decisions. The Tenth Circuit held that the BIA decision is not to be given deference under Chevron since it was not a binding precedential decision but merely a routine adjudication issued by a single Board member, and did not rely on previous BIA precedent. The Court went on to find that the BIA and IJ decisions were not even warranted the lesser deferential standard set forth in Skidmore v. Swift & Co., 323 U.S. 134 (1944) as they were unpersuasive.

The Court went on to do an analysis of statutory construction and found that there is no age limitation on adjustment of status of K-2 visa holders. It also relied on Choin v. Mukasey, 537 F.3d 1116 (9th Cir. 2008) and Verovkin v. Still, No. 07-3987, 2007 WL 4557782 (N.D. Cal. Dec. 21. 2007). It is important to note here that the Verovkin decision decided the issue narrowly on the facts in that it found that the applicant was eligible since the marriage and the application for adjustment of status were both concluded before turning 21. The only thing that was left was the USCIS adjudication. The Verovkin decision declined to address other scenarios such as when the marriage or the filing of the application occur after turning 21 as was the case in Jiang v. Still, 307 Fed. Appx. 74; 2009 U.S. App. LEXIS 446 (9th Cir. 2009) (unpublished).

The Tenth Circuit took a bigger step in finding that the age of the K-2 visa holder matters only in regards to when the K-2 “seeks to enter the United States”. This takes the Verovkin decision a step further, and leaves open a door for applicants who may have “aged out” before the qualifying marriage and the application for adjustment of status took place. Interestingly, the Tenth Circuit did not address the Jiang holding.

This exact issue is now before the BIA on several cases. AIC recently filed an amicus brief with the Board that addresses all the K-2 age out issues at length. Hopefully this Tenth Circuit decision will have an impact on the BIA decision on this issue that could come out any day.