Adam Walsh Child Protection and Safety Act of 2006

TITLE IV—Immigration law reforms to prevent sex offenders from abusing children

Sec. 402. Barring family-based petitions

Congress passed the Adam Walsh Child Protection and Safety Act of 2006 (AWA) and President Bush signed the AWA into law on July 27, 2006. The declared purpose of the AWA was “to protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.”

The 2006 AWA made revisions to the Immigration and Nationality Act (INA) that rendered certain U.S. citizens with a “specified offense against a minor” ineligible to file family-based visa petitions for family members, unless the secretary of the U.S. Department of Homeland Security (DHS) finds, in his or her “sole and unreviewable discretion,” and that the petitioner presents “no risk” to the proposed beneficiary. Section 111(7) of the AWA defines the specified offenses.

USCIS Malicious AWA Policy Has Destroyed at least 4000 Families Since 2011

By the agency’s own statistics, the number of denied AWA family petitions will surpass 4000 by 2017. This is a staggering number of families decimated by USCIS for no apparent reason. Each of these cases highlights the stories of immigrant families who struggle for years to cope with the heartbreaking effects of our country’s broken immigration system. USCIS’s malicious AWA policy serves no rational purpose and undermines the goals of family unity.

For years after its enactment, the USCIS has either outright denied or intentionally stalled thousands of family petitions that it determined to fall within its own AWA policy. By 2011, after several years of long delays, the USCIS denied virtually all AWA applications held at the agency for review since 2008. The agency reports that it receives 400-600 AWA application per year and boosts that it has denied 99% of all AWA family petitions received:

  • In July 2013, USCIS reported receiving about 400 AWA cases in 2012, approving just two cases.
  • In May of 2014, the agency reported that 601 cases were reviewed the prior year, with “fewer than 10” approved. The agency reports it reviewed approximately 2,500 cases since 2008.
  • In July 2016 the agency reported reviewing approximately 340 cases the prior year, with approximately 1,300 cases pending review.  The agency declined to give statistics regarding approval rates.

Senator Patrick Leahy’s “Crystal Ball”

On July 20, 2006 at the 2nd Session of 109th Congress, Senator Patrick Leahy of Vermont voiced concerns about the AWA revision to immigration law, that it “casts a wide net and in many cases will harshly, unnecessarily penalize people seeking entry to the United States who should be afforded the chance to keep their families intact.”

On the 109th congressional record, Senator Leahy further stated that “In a case of a citizen who is on the path to rehabilitation or whose crime was relatively minor; denial of a family member’s support would serve no rational purpose and would undermine the goals of family unity. I hope the Secretary will actively use this waiver authority to limit the broad reach of this provision to those cases where a citizen or legal resident genuinely poses a threat to a family member seeking entry.”

Senator Leahy’s envisioned concerns were well founded. Ten years since the AWA’s passage, the U.S. Citizenship and Immigration Services (USCIS) has adopted and aggressively implemented a profoundly different interpretation of the AWA immigration provisions than described during the 109th Congress. Senator Leahy’s forewarning of abuse of the AWA provision has been fully realized with USCIS’s denial of virtually all of the family petitions determined to fall within the AWA category by the agency.

The AWA Amendment to the INA Represents a Departure – the first of its kind, unprecedented and nearly impossible evidentiary standards

Following the AWA’s enactment, USCIS expansively interpreted the scope of the “specified offense” definition while simultaneously imposing a virtually impossible-to-meet burden on petitioners to establish that they pose no risk to the family members for whom they seek to petition.

The agency published its definition of the 2006 AWA waiver authority in its 2008 standard operating procedures (SOP). The SOP specified that approval of an AWA waiver should be “rare.”

The USCIS SOP states that a petitioner convicted of a specified offense against a minor is burdened to clearly demonstrate “beyond any reasonable doubt” that he or she poses no risk to the beneficiary – a virtually impossible standard causing nearly all cases to be denied. The “beyond a reasonable doubt” standard imposed by the USCIS was not authorized by the AWA statute.

AWA cases are the only use of this heightened evidentiary standard for family visa approval within USCIS. For other visa petition proceedings at USCIS, the applicable standard is ordinarily “preponderance of the evidence” or the “clear and convincing” standard used in other family petitions.

Potential harm to a family member is not required to be identified by a USCIS examiner. The SOP does not require the USCIS to identify a nexus between the criminal act of the petitioner and any potential harm to a foreign beneficiary.

The USCIS SOP requires the USCIS examiner to “automatically presume that risk exists in any case where the intended beneficiary is a child, irrespective of the nature and severity” of the disqualifying crime.”

Many AWA denials involve cases where there are no children involved, clearly an expansion of the declared purpose of the AWA by the 109th Congress “to protect children.”

Abuse of the Authority Granted by Congress in 2006; Complete Lack of Objectivity by USCIS for AWA cases

The current USCIS operating procedures openly state a strong bias against approval, shows the complete lack of objectivity and abuse of the authority granted to the agency under AWA in 2006.

USCIS’s position that most petitions should be barred, with no waiver granted, is in direct conflict with the U.S. government’s highly touted policy of “Keeping Families Together”

The USCIS AWA policy is suspected to have numerous violations of the US Constitution and various State Constitutions but has never had a proper judicial review by any court as the agency maintains that it has “sole and unreviewable discretion” of its decisions for AWA family petitions.

The Startling Power Invoked by DHS; the agency may deport a noncitizen for a crime committed by someone else

AWA family petitions are the only petitions in the agency to scrutinize exclusively the character of the United States citizen petitioner instead examining the fitness of the intending immigrant.

As a consequence of the current USCIS policy for AWA cases, the immigrant beneficiary is held responsible for a crime committed by someone else. DHS deports them and permanently banishes them from their family for nothing that they did but for a crime committed by their United States citizen petitioner – and often for crime committed a long time ago for which punishment and rehabilitation are complete.

The INA specifically defines “conviction,” only “with respect to an alien.” The agency’s decision to focus on only a petitioner’s criminal history, rather than the foreign national’s record sets these AWA cases apart from all other family petitions processed by USCIS.

USCIS AWA Policy Harms the Most Vulnerable Members of Society Instead of Protecting Them

The USCIS policy to separate virtually 100% of these families, actually harms the very same class of “most vulnerable members of society” that the agency claims to protect with its polices by keeping families separated for extended periods of time lasting for years while forcing them through an extensive legal and emotional ordeals.

Immigrant women and children affected by these denials are often poor by US standards. Their loved ones are forced to use precious family resources for extensive legal costs and duplicate living expenses of supporting residences abroad and at home for years while trying to overcome this unfair and abusive process by USCIS.

For many spouses, especially women, the banishment and forced separation from their spouse means a lifetime of despair where divorce, meaningful income and opportunity are not possible. Their religious beliefs and practices are comprised without the sanctity of the marriage and solidarity of their family no longer intact.

No one should ever have to live with the constant crippling fear of losing a spouse or child to deportation and having their families ripped apart when they have never broken any law and by no fault of their own.

The lasting consequence of the USCIS AWA denial for these couples will be an inability to live together anywhere.

USCIS Focuses on Punishment of the US Citizen Petitioner Rather Than Protection of Children from Criminal Acts and Abuse

For AWA cases only, the agency scrutinizes exclusively the character of the United States citizen petitioner instead examining the fitness of the intending immigrant as done for all other visas processed by the agency.

The fact that USCIS does not bar rapists, murderers or any other criminal category from immigrating foreign family members suggests the AWA statute is more of a punishment targeting only certain US citizens rather than a safeguard of protecting foreigners or children from possible crimes, abuses or exploitation.

The fact that a US citizen with an AWA qualifying conviction may marry any other US citizen shows that this USCIS policy does nothing towards the actual purpose of protecting children from crimes, abuses or exploitation for which AWA was enacted for.

In Its Current State, the USCIS AWA Process Is Unfair and Resembles a “Kangaroo Court” that Blatantly Disregards Recognized Standards of Immigration Law and Justice

When family petitions are denied, it normally should be appealed to the Board of Immigration Appeals (BIA). However, to date the BIA has maintained that it has no jurisdiction to review the denial decision by the USCIS due to “Sole and unreviewable discretion” of the nearly 100% of AWA denials it has issued.

The BIA also asserts it does not have jurisdiction to review constitutional concerns raised by petitioners in their appeals. The BIA is organized within US Department of Justice.

Currently, there is no court available under statute to review a decision of the USCIS unless there is a court ordered deportation. As many foreign beneficiaries are outside the U.S, they will not be subject to removal proceedings so they never have an opportunity for any consideration.

A removal order will not address the constitutional problems associated with a USCIS denial and subsequent BIA refusal to conduct a review before removal proceedings.

As a result, these 4000 families decimated by USCIS are left helpless without any meaningful opportunity to obtain administrative review of USCIS AWA denials. There are no safeguards or statues to ensure USCIS exercises its discretion objectively and fairly.

Summary

US Department of Homeland Security and the US Department of Justice has allowed USCIS to develop a policy that enables the agency to categorically deny virtually 100% of family petitions for AWA cases, impose completely different and a more restrictive review standard than for all other visas processed by the agency, and then create an end-around appeal system to effectively eliminate any higher level legal review of these denied petitions; all designed for the express purpose of punishing a targeted group of U.S. citizens with a certain category of criminal convictions.

This offensive policy by USCIS runs counter to immigration laws, policies and practices. It punishes foreigners for someone else’s criminal conviction. The agency intentionally delays these petitions for years and creates an impossible legal process for the families to overcome. Instead of working to unify these families, USCIS does everything it can to break these families apart and to banish the family members to different countries. The typical consequence for many couples is the inability to live together anywhere.

The most repugnant fact is that USCIS has made it their goal to do this to virtually 100% of the U.S. citizens with an AWA immigration case. The ruining of peoples’ lives, breaking up families and banishing family members far away from each other is all done by design of the agency’s standard operating procedures and legal processes established expressly for these particular cases.

These are not collateral consequences that arise from one’s criminal conviction, these are well-planned, organized, deliberate actions taken by the U.S. government against its own citizen and innocent foreign citizens who have never done anything except fall in love, commit in marriage and start a family.

In 2003 Smith v. Doe, the question before the US Supreme Court was: If the intention (of sex registration) was to impose a punishment or “civil proceedings”. If the intention was to punish, that ends the inquiry. If the intention was to enact a regulatory scheme that is civil and non-punitive, the Court must examine whether the scheme is so punitive as to negate the State’s intention to deem it civil.

It is hard to find a clearer example, than the USCIS handling of AWA family petitions, of how the public sex offender registry laws have evolved to become punishment since 2003 Smith v. Doe decision.

This is somehow connected to the protection of children? When is enough going to be enough?

FightAWA.org

Download PDF version of this document at https://fightawa.org/wp-content/uploads/2016/11/FightAWA-paper.pdf

19 Comments:

  1. Pingback: About Us – Welcome to FightAWA

  2. Pingback: Adam Walsh Act – Alabama Women Against Registry

  3. so I am curious and I am not sure I understand everything.. Is there an active appeal against this regime or is this just an information site? If there is an active appeal and you are looking for legitimate cases to point to I am willing to share my family’s case which you may find to be a very good case to use. email if so but please only if there is a legitimate program , I do not need any more get rich quick or pay us for lies programs.. I have seen enough of the scam programs being operated.

  4. Levi, We are real people with a situation probably similar to yours. We are here to share experiences and knowledge so that we can formulate a unified action against the federal government for this terrible policy. There is an active lawsuit against the International Megan’s Law that affects many of us here. And there are individual challenges to the USCIS AWA policy in several federal courts.
    We seek to expand the knowledge of this policy to the media and get a challenge to the civil rights violations to federal court. There is no one asking your money here. We need to come together, share knowledge and challenge this policy as a group representing all of the families out there hurt by this.

    • My husband’s I-130 is AWA case too, USCIS denied us and BIA rejected our appeal. We filed a petition for review with ninth circuit appeal court, Ninth circuit transferred our petition for review to AZ district court in July 2015, we wrote several replies to district court but still waiting and don’t know what the district court will say, Please if anyone can help? What the strategy for us to come together?

  5. Mavis,

    I’m so sorry to hear of the heartbreak and difficulties you are experiencing. Please take a look at our “Legal Advice” area and write to Immigration attorney Allan Lolly. He would be most able to answer your questions. My thoughts and prayers are with you. Cases like yours are exactly why we created this page, and are why we continue to fight.

    Darrin

  6. I could probably write a book on the many problems with both the unconstitutionality of the law itself and secondly, the manner in which it is being applied. The results of the USCIS actions can only be described as punishment and while many in the population may root for unending punishment of offenders against children, how many of them are willing to accept punishment for crimes of their spouse? Yet this is the result of enforcing separation of a married couple and often, deportation of an innocent individual.

    What if said spouse obtains a green card in a different manner… say a work visa or through one of the lotteries.. can USCIS step in and take their visa away because they are returning to live with their married partner? They wouldn’t bat an eye at the situation. Therefore, the conclusion is that USCIS does not care about the safety of the spouse. This is evident as mentioned above in that other violent crimes do not invalidate a sponsor. In my case, the victim was of legal age in the state, but as she was under 18, the federal statute overruled and enforced the provision. My wife and I have been married 10 years and she is now 65 years old. What risk is involved? The nature of my infraction would be laughed at by authorities if she were to accuse me of the same action. So what “risk” is there? Domestic abuse? Threat of “risk” by the USCIS is both unfounded and essentially convicting all of us for crimes for which there has been no due process or evidence presented.

    This site is needed and we need to start compiling a list of those willing to join together to fight this as a unified group. I applaud those who are moving forward with individual cases, but feel that we will only prevail if the courts understand that those cases are not unusual.

  7. How much would it cost to hire lawyers and change the law? I haven’t married my fiance because of AWA, and my case involved a penal code thats not even a crime in 48 states. I’m willing to invest and use my network and worth to make change. I worked hard to protect our country and community, its time to prevail. Any good lawyers want to PM me?

    • Hi have you already hired a lawyer? My husband is a low risk but still afraid of being denied for my petition because its so to expensive hired a lawyer

  8. is there an immigration attorney in the Kansas City Missouri or Kansas City Kansas area who has experience with the AWA appeals?

    • Hi Daniel,
      We recommend that you contact an immigration attorney who is an expert with AWA cases as these cases are highly specialized and unique. Attorney Matthew L. Hoppock in Overland Park KS has represented an AWA case listed on our website. Two national attorneys who could likely assist you in a knowledgeable way, are Alan Lolly or Nick Misiti, both are located outside your area but will use local counsel as needed for court filings.
      Hope this helps,
      Robert

  9. I am happy to have found this site.
    I really don’t understand how AWA was ever passed. I see it as racist.
    No restriction for me to marry any american woman with any number of children, but if the woman is not American then I can’t sponsor her and marry her.

    The spin is that if I had done it a few years ago, I would be golden.
    My conviction was in 1986. So to me this is a new additional punishment.

    Wrong, and unfair.
    -Frank

    • Frank,
      I’m glad you found the site, too! When I first ready your comment about the law being racist, I kind of rolled my eyes because words like “racist” are over-used these days. But you are, in fact, absolutely correct! It is racist against the foreign spouses who, by the way, have committed no crime at all. And you are correct in that you can marry any American woman (or man) without issue. In effect, USCIS is telling all registrants that we can only marry a US citizen… a requirement that no other class of citizen must meet.

      As it is for you, so it is for me. My conviction was in 2003 and the AWA didn’t come along until 2 years later. It is absolutely a punishment! Sadly though, it punishes not only you and I (and people similarly situated) but also punished the foreign spouse/citizen for, again, having done nothing wrong.

      Wrong and unfair, indeed. There is a new movement in social media called “timesup” to stop harrassment, hate, prejudice and abuse. We need to lay claim to our part of that movement as well. As US citizens, we need to proudly (and loudly) proclaim that “Times Up!”… these are human rights violations again not only US citizens, but citizens around the world. It destroys families, breaks hearts and violates both constitutional and UN proclamations of equality.

      Welcome to FightAWA.org

      Darrin

      • Thank you Darrin, appreciate your comments. I support not racist, as foreigners and Americans can be any race, but maybe Bigoted.. regardless does not even make any sense with the way it is written and implemented. I still can’t figure out how anything like this got passed.

        Timesup… hmm.. I will definatelly keep that on my radar. The only problem is that most people want us just thrown in prison for the rest of our lives, not even doing research to understand or know the truth.
        The fight continues 🙂
        -Frank

        • And therein lies the challenge… to educate people (including the Supreme Court Justices), that phrases like “frightening and high” recidivism rates are not just an error, but they are wholly inaccurate. Laws established on error cannot continue! You ask how something like this got passed? There you go… erroneous beliefs judged as truth.

  10. So I guess I’m not understanding this as well as I should. If a number of issues in this law is unconstitutional, how did it pass? If a number of these issues in this law are unconstitutional why have they not been tested in court before it passed? And again if a number of these issues in this law are unconstitutional, why are the founders of this bill not being held accountable and why is there not a class action lawsuit brought forth for the number of individuals and families that have been affected. I understand how this is affecting individuals and Families but I do not see where there is an actual movement or lawsuit to join. I have contacted the attorneys of Alan Lolly and have been told to get ready for a long and drawn-out procedure along with the expense of everything involved. It was also mentioned that I could appeal the decision if I was denied a waiver yet I am reading that the decision is not able to be appealed. Before I start this procedure I would like to be more educated about trying to turn the success rate around to a more favorable aspect. Otherwise I feel I will be simply throwing money at a problem that has already been determined as deniable. I also am not sure why, the statutes of this law, is not being argued as unconstitutional in order to produce a favorable outcome. I anticipate your response and thank you for this blog

    • Dale,

      Thanks for writing… I would first like to say that few people I know understand the AWA better than Alan Lolly. I could not comment really on anything and make more sense than he can. I do know that there is an appeal process for the AWA waiver. However, I think it’s the decision on the waiver that cannot be appealed, not on the decision for the fiance visa itself. Again, he could provide better clarity. As I understand it, we apply for the visa, get denied, file an appeal, seek the waiver, and hope for the best. If that is denied, we cannot appeal that decision… to my understanding.

      As far as the why and how this became law, it’s the same basically with SORNA and the IML… these laws pass for a number of the same reasons. First, no one really cares what rights we lose when we become registrants, and the legislators get to use us to show they are “tough on crime”. (Sadly, they are actually using our children for their own promotion instead.) They like to lump us all together, and “damn due process, they’re all guilty!” But probably more legally significant is that the courts say that since these laws “are not punitive”, then other constitutional requirements (like ex post facto) do not apply. In short, if it isn’t punishment then they can do whatever they want. I would definitely argue that these laws constitute punishment, and I’m confident that not one judge would disagree if he were to be held subject to these same laws.

      As to there not being a movement or lawsuit to join, that is probably the case… kind of. There is a movement, albeit a little splintered at times. This is one of the goals of this website; to help bring people together to focus on the problem and create action… not just talk or complaining. The problem is that most registrants do not have the funds to attack the blatant constitutional violations associated with this law. We seem to be gaining some traction in various court rulings, but the change is slow. Additionally, many registrants are so preoccupied with just getting by in a world that despises them that many seem to have little energy for anything else.

      So much of life for registrants is up to chance… will you succeed in your appeal? Will you be allowed to travel to this country or that? Will someone find out where you work and get you fired? Will you suddenly be forced to leave your home? The answer to all of these question is “maybe”. Sadly, there are few guarantees. The only guarantee I can offer is if we do not fight, if we do nothing, nothing will happen and nothing will change. Guaranteed.

      Welcome to FightAWA.org
      Darrin

  11. Thank you Darrin for your comments and your Insight. I caught wind of possible legal litigation coming up in 3 months do you have any information on this and what it involves? Also because the waiver is flat out refused apparently since 2010, the Lolly group or any other attorneys for that matter have had very little success in appealing to the court system to relook at the merits involved when seeking a waiver. Little success meaning that they have had some, but that is the only way from my understanding, that relief for a loved one to enter the country is obtained. I also found in Reading the laws of sorna that they keep saying ” if and offender is required to register”. Now I wonder if a person is off the registry does this help the situation at all. I know there have been a lot of people affected that have been off the registry for a while and as a fact have been retroactively affected by the sorna requirements, but just in reading there are so many inconsistencies, that it seems like no one read this bill before it was enacted.

    • I have no info on the upcoming litigation, though you might check with NARSOL. As you mentioned, there is a limited amount of success but no one can say with any certainty which cases will or will not be approved. Many times, the case itself, depending on how compelling it is, is the determining factor from what I understand. If you are not on the registry any longer, one would assume that would play in your favor, but again there’s no way to know for sure. It all seems ridiculous, doesn’t it? Although it may seem that no one read the law before enacting it, I’m quite sure that even fewer read the IML. It was passed unexpectedly, late at night, with no opportunity for public discussion. Again, legislator often do not care about the constitutionality when it comes to registrants. Even while they are making laws to be punitive, they argue that they are not to protect their image.

Leave a Reply

Your email address will not be published. Required fields are marked *