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  • Article: Adam Walsh Act Cases: Family-Based Immigrant Petitions by Mark Silver

    ADAM WALSH ACT CASES: FAMILY-BASED IMMIGRANT PETITIONS

    by


    Introduction
    This article will focus on the criterion and evaluation of family-based immigrant petitions in the context of Adam Walsh Act cases.

    Legal Background
    Legal Enactment
    On July 27, 2006, President George W. Bush signed into law H.R. 4772, the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. No. 109-248, codified in large part of 42 USC S16911 et seq). The Adam Walsh Act (AWA) is meant to protect children from sexual exploitation in violent crimes, prevent child abuse and child pornography, and to promote Internet safety. The AWA became effective on the date of its enactment (July 27, 2006) and is applicable to all petitioners pending on or after that day.

    However, the AWA §402 also mended §204(a)(1)(A) and (B) of the Immigration and Nationality Act (INA) and effectively prohibits U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing any family-based immigrant petition on behalf of any beneficiary, unless the Secretary of Homeland Security determines, in his or her sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary. Additionally, AWA §402 also amended §101(a)(15) of the INA 9Pub L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC SS 1101 et seq) to remove spouses and fiancés of U.S. citizens convicted of these offenses from eligibility to be petitioners for K nonimmigrant status. The term “specified offense against a minor” means an offense against a minor that involves any of the following:

    (A) Kidnapping
    (B) False imprisonment
    (C) Solicitation to engage in sexual conduct
    (D) Using a minor in a sexual performance
    (E) Solicitation to practice prostitution
    (F) Video voyeurism (watching the child on a web-cam)
    (G) Possession, production, or distribution of child pornography
    (H) Criminal sexual conduct involving a minor, or the use of the internet to facilitate such conduct
    (I) Any conduct that is by its nature a sex offense against a minor.

    International Marriage Broker Regulation Act
    In a related matter, the President also signed into law the Violence Against Women and Department of Justice Re-Authorization Act of 2005 (VAWA 2005). Included within VAWA 2005 is the International Marriage Broker Regulation Act (IMBRA), which provides that a U.S. Citizen who files a fiancée visa (K-1) or alien spouse (K-3) petition must submit information on any criminal convictions for any of the following crimes:

    (A) Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking.
    (B) Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage (slavery), holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of the these crimes.
    (C) Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act.

    Under IMBRA, if the petitioner was convicted of any of these crimes, he will need to submit certified copies of all court and police records showing the charges and the disposition for every conviction. The Embassy will also disclose this information to the beneficiary during the consular interview. IMBRA also limits the number of fiancée petitions a citizen can file or have approved. If the petitioner has filed two or more K-1 fiancée petitions at any time in the past, or previously had a K-1 visa petition approved within two years before filing the current petition, the petitioner must request a waiver of the limitation on the number of fiancée petitions. IMBRA differs from the AWA in that while the latter primarily focuses on convictions for specified crimes against children IMBRA pertains to specified convictions against any person, which demonstrate that the petitioner may have a history of violence or drug or alcohol abuse. It is the intention of the DHS through the AWA and IMBRA to ensure that a citizen with a dangerous and / or violent criminal past does not petition for and / or does bring to the United States a fiancée and / or other family member who will then live at risk with a dangerous person.

    Why Consider a Forensic Evaluation and Mitigation
    A forensic psychosocial evaluation with mitigation must be considered for any immigration petition with a crime, fraud, or CIMT (crime involving moral turpitude) and especially when it is considered serious or deviant. This is especially true in those cases in which criminal mitigation is the essential part of the case and other aspects of the petition, such as proving extreme hardships, may actually be secondary. This is an absolutely essential resource for lawyers because it helps to explain the client’s behaviors, thoughts, and feelings in the context of the crime, fraud, or CIMT and it redirects lawyers and adjudicators away from a strict black letter legal analysis to one informed by the human element – and justice. Criminal mitigation serves to humanize the client through a sympathetic narrative and induce empathy for the adjudicator by documenting the client’s life history and contextualizing the client’s conduct. The adjudicator will sympathetically identify with and even feel empathy for humanistic background issues and this may incline the adjudicator toward compassion or mercy, or at least a more informed understanding about the relevant issues. In fact, criminal mitigation based on a forensic psychosocial evaluation is the core of an AWA petition.

    Risk Factors
    Introduction
    USCIS considers all known factors that are relevant to determining whether the petitioner poses any risk to the safety and well-being of the beneficiary.

    Biases by the Adjudicator
    It is crucial to consider underlying assumptions, biases, and prejudices that the adjudicator may harbor against the client. This is an extremely important consideration pertaining to all forensic evaluation cases, and particularly relevant to Adam Walsh Act cases where the adjudicator may be quite prejudicial from the outset because of preconceived notions about the client himself and/or the nature of the criminal matter. That is, it is crucial to disabuse the adjudicator of biases and prejudices, and eliminate non-existent patterns that the adjudicator may assume are true (or self-evident) in the assessment of the case, especially given the client's criminal history. As such, this section will cover not only a list of the major relevant determining factors, but also the inherent biases that the adjudicator may hold and how to tackle them proactively.

    Factors
    1. The nature and severity of the petitioner’s specified offense against a minor, including all facts and circumstances underlying the offense.

    This factor considers an empirical understanding about exactly what occurred and the severity of the criminal behavior, rather than a black and white legal definition. Here, the inherent bias of the adjudicator is that a sexually based offense against a minor must have been inherently horrible and repugnant in every way and that a full narrative about the legal conduct will bear this out. This is the first and most serious hurdle to overcome, and it is only through a full narrative about the incident that the adjudicator will gain a better understanding about what happened. Obviously, it may well be that the incident was quite severe and that the circumstances were quite terrible, and in these cases it is all the more reason to provide clarity and explanation so that the adjudicator does not fill in the blanks on his own making assumptions about the incident. In summary, providing a full narrative and contextualizing the matter can be quite useful in dispelling nightmare scenarios in the mind of the adjudicator.

    Case Example. This case example will be utilized throughout the remainder of the factors noted below. The client was arrested several years before the evaluation after responding to an on-line Internet chat request to who he believed was from a 14-year-old girl. The client exchanged sexualized comments in this chat room exchange. In fact, the client was responding to the prompts from an undercover FBI agent in a sting operation. The client had no previous or subsequent arrests and had no direct or indirect contact with any minor female at any time contrary to what he believed and / or intended. The petitioner was a 34-year-old male who had a son and daughter residing with their biological mother from a previous marriage in the same community about a 10-minute drive from the petitioner’s residence. The petitioner’s wife, the beneficiary, had been living in the United States for several years under a valid work visa as a registered nurse. The beneficiary had three adult children all of whom planned to remain in her country of origin.

    2. The petitioner’s criminal history.

    The inherent bias of the adjudicator here is that the client must have arrests for other criminal conduct, even if outside of the area of sexual misconduct. Additionally, there is another bias that even if the petitioner has no other arrests it is because the petitioner has simply been careful to avoid being caught in any illegal or immoral conduct, rather than because no other criminal conduct exists. Clearly, clients who have no other history of criminal arrests or sexual misconduct will be in a better position for Adam Walsh Act petitions, yet those clients who have arrests for unrelated conduct but also mitigate as fully as possible these matters to allay the concerns of the adjudicator. Clients may become quite frustrated that they will need to review all arrests, however the adjudicator will consider the application given the totality of the petitioner's criminal history and conduct, rather than evaluate the case from the parochial vantage of the sexually-base offense alone, which triggered the need for the petition.

    Referring back to the above case example, the fact that the client has no criminal history whatsoever prior to the arrest should serve as an important starting point and the absence of subsequent criminal arrests should be taken as an indication that the criminal conduct itself was an aberrant, misguided decision undertaken in a singular moment of misjudgment.

    3. The nature, severity, and mitigating circumstances of any arrests, convictions, or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary.

    This criterion considers any and all mitigating circumstances. That is, any and all explanation that may partially or fully excuse the reason for the criminal offense. The inherit bias here is that while there may be some mitigating circumstances any and all negative behavior must also be factored in as aggravating considerations in weighing the totality of the information. These cases become particularly difficult when in fact the client has a history of violence, alcohol abuse, illegal drug use, and especially when any of these behaviors may have exacerbated the criminal offense. In fact, alcohol and drugs are often considered a red flag with sexually-based offenses and it is recommended that if at all possible rehabilitation for alcohol and/or drugs should be demonstrated separate and apart from the criminal offense. This is also important because some adjudicators may correctly or incorrectly assume that the criminal offense was precipitated by alcohol and/or drugs use, such that alcohol and/or drug rehabilitation may greatly allay the fears of the adjudicator.

    4. The relationship of the petitioner to the principal beneficiary and any derivative beneficiary.

    The cases that I have consulted on have all concerned American men who were petitioning for their wives to become lawful permanent residents of the United States. The inherent bias here is that the beneficiary and derivatives cannot protect themselves in any meaningful fashion, especially when the individual is a minor female and as new immigrants the beneficiary may find herself in an unfamiliar culture with the added disadvantage of poor English language skills. Overall, the adjudicator is concerned about how well the petitioner and beneficiary knows one another and the scope and quality of the relationship. In the case example cited above the principal beneficiary was in fact a well-educated nurse employed in surgical wards for several of the top hospitals in the Northeast. She was an individual who could advocate for herself in a clear and coherent fashion, and she was quite willing to speak forthrightly about her relationship with her husband and whether or not she felt any sense of danger and how she perceived his past criminal conduct.

    The relationship of the petitioner to the beneficiary is also very important because it can stand in stark contrast to the criminal offense. In the above example, the sexually-based offense was targeted to a digital response from what the client believed was a 14-year-old girl. From a risk perspective, even if one were to believe that the petitioner harbored a long-standing attempt to sexually interact with a minor female, the beneficiary in this case is a well-educated adult and far different from the intended target. As such, there is no reason to believe that the beneficiary necessarily has any cause of concern or that the beneficiary would necessarily be a target of harm by the petitioner.

    5. The age and, if relevant, the gender of the beneficiary.

    The inherit bias, of course, is that young girls are always targets of predators and that predators can never be truly rehabilitated. There is a natural bias by adjudicators to err on the side of caution for minor female beneficiaries especially if it was a minor female who was the victim in the crime. Age is also a major consideration, especially if the beneficiary child is quite young and less capable of independent decision-making and self-advocacy. Continuing with the above example, the application would be much more challenging if the petitioner was petitioning for a minor child of the same age and description with whom he believed he was communicating in the chat room. Again, there is an inherent bias that a beneficiary minor simply would not have the wherewithal to physically and/or emotionally protect herself from a predator and this remains a valid point of consideration. In several cases that I have consulted with neither the petitioner nor the beneficiary had any children and it seemed extremely unlikely that the couple would have any children together given their ages. As such, under such circumstances there is no true concern that a minor beneficiary could be affected.

    6. Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another.

    Here, the inherent bias concerns the belief that accessibility leads to heightened danger for any potential victim. In the cases that I have reviewed, the client was petitioning for his wife to become a lawful permanent resident and in several of these cases she was already living in the United States. In the case example cited above, the petitioner and beneficiary were living together as husband and wife for several years without any incident whatsoever, and in fact enjoyed a wide range of normal activities together in a healthy and safe manner. The fact that the beneficiary was living in the petitioner's home for so many years in and of itself reflects a great deal about her sense of safety and comfort—physically and psychologically—with the petitioner.

    In this regard, it is important to look at household makeup to determine who resides in the home and/or will be visiting the home. At times, children may be residing in the home only on weekends and the children's primary residence may be elsewhere. Because of the concern of household makeup it is also important to consider if a derivative beneficiary will simply be out of the picture altogether because of geography. In the case example cited above, the beneficiary had three adult children but for personal reasons all of them planned to remain in the mother's country of origin. These children had graduated college, they had begun professional careers, two had married, and none had a desire to relocate to the United States.

    7. The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition.

    The inherent bias here is that rehabilitation is not truly possible for the sexually-based offender and that only a wide swath of well documented rehabilitation, therapy, and counseling will (perhaps) alleviate risk to the beneficiary. Thus, the bias is that the passage of time does nothing to alleviate sexually deviant impulsive or obsessional thoughts, feelings, and / or compulsive behaviors.

    The application should include any and all therapeutic interventions at any point, which may in any way reduce the risk posed to the beneficiary. This information cannot be anecdotal, but rather concrete documentation—preferably certified—from mental health professionals with proper credentials and/or programs must be submitted as evidence preferably with ongoing documentation.

    The passage of time criterion can be quite helpful or quite harmful. It can be quite helpful if the crime occurred over a decade ago and consistent good behavior is evident. It can be quite harmful if in the passage of time other crimes have been committed or there is a dearth of documentation. If documentation is not available and the criminal conduct was serious, I have recommended to immigration attorneys to refer the client as soon as possible for ongoing mental health care of various kinds so that documentation can be made available by healthcare professionals to accurately reflect the absence of problems. I am not suggesting that the client should be made to visit multiple mental health care experts for no reason other than to create needless documentation, but rather such individuals must necessarily submit valid documentation and if none was previously available then the client should utilize the opportunity to do so at the earliest possible moment. In reality, many individuals benefit from rehabilitation early on and most tend to experience a diminishing return of the therapeutic effects resulting in fewer contacts with healthcare, or mental healthcare, professionals as time progresses and as the individual perceives the benefits of the progress of healing.

    Summary
    The seven criteria provided above are central criteria in any criminal mitigation case regardless of circumstance, the alleged crime, or the individual’s psychosocial history. That is, an AWA analysis necessarily requires and triggers criminal mitigation as a starting point and it should remain the central focus for the immigration lawyer in examining the case. As such, the case should be approached as one would approach any criminal matter that requires mitigation with a complete psychosocial background history informed by a clinical analysis.

    Strategies in Contending with the No Risk Standard

    Introduction
    AWA cases are considered particularly difficult because of the “no risk” standard, which is seemingly impossible to garner from any expert given the highly difficult task of predicting an individual’s future behavior regardless of apparent rehabilitation. Nonetheless, there are several important strategies that can be employed to mitigate this crucial matter.

    Two Experts
    I have often recommended to immigration lawyers who call for a consultation that two evaluations should be provided in an AWA case. The first evaluation consists of a detailed psychosocial history with clinical considerations, specifically with regard to the home environment and persons who could be affected by this case. That is, the first evaluation would primarily consist of a criminal mitigation report. The second evaluation is a risk assessment based on a well-researched test so that an empirical picture can also be captured for the adjudicator. These two evaluations should complement and balance one another. I have worked with forensic psychological experts in this way, as this method has served to greatly elucidate the case in a manner that is favorable to the client and, more importantly, intuitively helpful to the adjudicator.

    Ten R’s of Mitigation
    It is also extremely important to carefully consider the petitioner’s crime(s) and understand them with regard to the 10 R’s of mitigation outlined in Chapter 5, including:

    • Reality - providing a facing a full narrative of the
    • Rhea- mens rhea / intent / volition
    • Recency- when did the crime occur
    • Repetition - examine client's overall record
    • Rung - what level of seriousness is involved
    • Restorative - has the client righted the wrong
    • Rehabilitation - client has, can, or will change
    • Remorse / Regret - does the client understand and accept his actions
    • Roles - evidence of positive contributions to the community
    • Recommendations - what can be fixed and who can be helped

    This analysis is important because the petitioner’s criminal behavior (and the victim involved) may stand in stark contrast to his current home environment with the beneficiary. The client’s perspective on his behavior, remorse, regret, the client’s rehabilitation, and his overall life experiences in the intervening years can demonstrate good moral character in and of itself. It is important to show that the client has accepted full responsibility for his wrongdoing and the ways in which he has redirected his focus towards praiseworthy behaviors on a personal level, on behalf of his family, through consistent employment, education, and in the community.

    Home Studies
    When the primary beneficiary does not appear to be at primary risk for any reason, but there is concern for secondary individuals, such as current or future children of the beneficiary or the petitioner's children, then it is crucial to gain an understanding of the overall health and well-being of the children through direct clinical interviews and a home study. A home study is undertaken by social workers to determine that the home is safe for children who presently reside in the home, reside in the home part-time, and even for children who may reside in the home in the future. Home studies have traditionally been undertaken in cases of foster care, adoption, and where neglect or abuse of minor children is suspected. Home studies can serve to alleviate the adjudicator’s concerns that the home environment is in fact a safe and healthy place.

    Personal Statements
    Personal statements from the petitioner, beneficiary, and close family members and community contacts are also crucial as character reference letters.

    Outline Non-Psychopathology
    In AWA cases there is an implicit bias on the part of the adjudicator that the petitioner has (or hides) mental health issues if not outright psychopathology due to his criminal behavioral. For this reason, it can be quite helpful to include a lengthy section on the petitioner’s mental health history and the presence and/or absence of psychopathology to explicate issues such as impulsivity, psychopathy, personality disorders, erratic moods, unstable behaviors, psychosis, addictive conduct, and drug use. If the petitioner benefits from ongoing psychotherapy and/or psychopharmacology a brief summary of the therapy should be included as part of the packet.

    Strategic Thinking
    It is crucial to explain that the client’s criminal behavior may only reflect an aberrant decision, misguided behavior, error in judgment, or an act of foolish conduct undertaken at a younger age. It is also helpful to show that the client had no true animus towards society or a particular individual, but rather that in an unthinking moment he acted in a manner that he has come to deeply regret. It is crucial to stress that the client is not evil, or bad, but rather acted in a moment of poor judgment and that the act must be viewed as isolated and does not reflect his general decision-making or his life as a whole. Finally, the client may have also suffered from a diminished capacity due to an overwhelming life stressor that precipitated the criminal behavior or cumulative life stressors over many years that may even have caused the individual to suffer clinical depression, anxiety, and other psychiatric issues.

    Embarrassment
    Some clients may be terribly embarrassed, humiliated, or ashamed by conduct in previous years and may find dredging up painful memories exceedingly difficult. Nonetheless, this is crucial for a full understanding about the criminal offense and to help mitigate it as best as possible. The client may fear that examining his arrest(s) will scare off his spouse or fiancé and there have been cases where because the crime occurred many years earlier the beneficiary was only vaguely aware about the circumstances of the criminal incident. Overall, family members may be completely unaware of the client’s arrest(s) and discussing it in detail can be embarrassing and even shocking.

    Financial Burden
    The client should be aware of the costs up front, which may be substantial. This may include traveling costs and multiple visits to the evaluator’s office or the client’s home. Some of these clients may use the excuse of cost rather than dredge up painful memories of embarrassing conduct from years before. This too should be explored with a forensic expert.

    Direct Interviews
    Direct interviews are especially crucial because in many cases the family members may be unaware of the client’s criminal history or the crime(s) may have occurred many years before the client married. It is clear that the USCIS deems face-to-face interviews with greater seriousness in their decision-making process and that the client’s personal narrative is mandatory. Nothing replaces a face-to-face clinical interview for the clinical expert. Often, two or even three interviews are required for a full understanding of the individual's psychosocial background. Although it may be a physical, financial, and even emotional challenge to gather everyone, nonetheless it should be considered for every case.

    Professional Expression
    The professional expression of the mitigation expert can replace the self-expression of the client, particularly if the client is poorly educated or simply does not have the psychological know-how to advocate on his own behalf. Moreover, clients with poor language skills, difficulty with communication, or who fear authority also greatly benefit from someone who could reflect their needs on their behalf in this context, especially when it is necessary to mitigate criminal conduct and sexually based offenses.

    Conclusion
    This article covered the legal background to the AWA Act, major factors utilized by adjudicator in examining these cases, and strategies to overcome obstacles working with the petitioner and his family members in the mitigation process.


    About The Author

    Mark Silver is a New York Licensed Clinical Social Worker who has a combined Specialist Bachelor of Arts degree in History and Political Science from the University of Toronto and a Master of Arts degree in Political Science from the University of Western Ontario. He also has completedd a Master of Social Work at the University of Toronto, a post-graduate Certificate Program in Family Therapy at Smith College and a Doctor of Psychology at the Southern California University for Professional Studies. In addition, he holds a Juris Doctor fromt he City University of New York, Queens College and is admitted to practice law in New York. For the past decade, Mark has worked as a consultant for law firms throughout the United States, conducting psychosocial evaluations and writing formal reports in forensic and mitigation immigration and criminal cases.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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