Florida Immigration Lawyer Blog
The BIA recently released three separate decisions relating to the Adam Walsh Act. The Adam Walsh Act prevents certain United States citizens from petitioning to obtain a green card for their family members. Specifically, Section 402(a)(2) of the Act bars a United States citizen who has been convicted of certain acts against minors from having family based petitions approve unless it is determined that the US citizen petitioner poses no risk to the beneficiary.
In Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA 2014), the BIA determined that the standard of proof to be applied to these cases is within the discretion of the Department of Homeland Security (DHS), which delegated the authority to USCIS. USCIS has applied a beyond a reasonable doubt standard of proof, which is an extremely high standard. The BIA determined that it has no jurisdiction to review the standard used by USCIS. Furthermore, the BIA held that it had no jurisdiction to review whether the Petitioner proved beyond a reasonable doubt that he or she posed no risk to the beneficiary.
In Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the BIA held that the categorical approach does not apply to a determination of the age of the victim and the conduct underlying the offense. This means that USCIS can look past the statute of conviction and determine whether the underlying facts establish that the victim was a minor and whether the offense was a “specified offense against a minor.”
In Matter of Jackson, 26 I&N Dec. 314 (BIA 2014), the BIA held the Adam Walsh Act can be used to bar Petitioners from filing a family based petition on behalf of a family member even if the conviction occurred prior to the passage of the Adam Walsh Act in 2006.
All three decisions are a major blow to aspiring immigrants who have a potential passage of immigration to the United States through a United States citizen family member with an Adam Walsh conviction. A qualifying conviction can preclude the approval of a petition even if the conviction is extremely old and the factual basis for the conviction is not aggravated. The burden of proof is on the United States petitioner and the burden is extremely high. The denial of the petition based on the USCIS determination that the petitioner has not met his burden of proving that he or she does not pose a risk to the beneficiary is not reviewable by appeal.