John, an American citizen, met Rita at a Filipino party. What started out as an innocent acquaintance turned serious as the night wore on. They started dating, fell in love and got married. John decided to petition Rita, whose tourist visa expired years ago in order for her to be able to obtain a green card. The petition was filed and it seemed like Rita's application for adjustment of status (from tourist visa to green card) would be approved.
Except that there was one problem. A few years ago, John was convicted of sex abuse involving a minor. He served his time and except for that one conviction, he never had any problem with the law. He did not think that the case would come back to haunt him now. Because of this prior conviction, he is barred from petitioning his wife with only one very difficult exception.
On July 27, 2006, President George W. Bush signed the Adam Walsh Child Protection and Safety Act which seeks to protect children from sexual exploitation and violent crime, prevent child abuse and child pornography, promote internet safety, and honor the memory of Adam Walsh and other child crime victims. Adam Walsh was the name of a child abducted at a mall and whose body was found weeks later. Among other provisions, this law has a very significant effect especially in immigration since it prohibits a US citizen or a lawful permanent resident who has been convicted of "any specified offense against a minor" from filing a family-based visa petition for any beneficiary unless the Secretary of Homeland Security determines in his or her sole unreviewable discretion that the petitioner poses no risk to the beneficiary.
Take a careful look at how the provision is worded. Take note of the phrase, "sole unreviewable discretion" which means that should DHS determine that John poses a risk to Rita, no court has the jurisdiction to review and reverse such determination. This power by the DHS Secretary was upheld in the case of Matter of Aceijas-Quiros, 26 I&N Dec 294 (BIA 2014).
What if John asserts that his conviction happened decades before the law was enacted? It does not matter. The case of Matter of Jackson and Erandio, 26 I & N Dec. 314 (BIA 2014) states that USCIS could apply the Adam Walsh Act even to those convictions that happened before its enactment.
In addition, USCIS sets a very high standard in ensuring that the petitioner satisfies the "no risk to the beneficiary" requirement. The bar is even higher and more challenging than that of an ordinary "extreme hardship" waiver.
So the lesson here is that in filing family-based petitions, one must make sure that not only the beneficiary qualifies but equally important as well is that the petitioner also does not have some prior convictions.
For any questions, comments and observations, please contact Atty. Marco Tomakin at mtomakin@gmail.com