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Archive for April, 2010

Sex Offenses Common Among Troubled Vets

April 24, 2010 Comments off

sltrib.com(Utah): Sex offenses common among troubled vets.

In multiple federal studies conducted over the past decade of inmates in U.S. prisons, Veterans were found to be more than twice as likely to be serving time for a sex offense as non-veteran inmates.

Former Marine Mark Peterson is serving time in the Utah State Prison at Draper for the sexual abuse of a teenage girl. He staunchly denies that his service was in any way related to his crime. Convicted in 2001, Peterson was released last year — only to return after his parole officer found he was viewing pornography, he said.
(Viewing any type of pornography while on parole/probation results in arrest as a “parole/ probation violation”. The pornography does not have to be illegal for this to happen.)

Some therapy may be available, but Lynn Jorgensen, who helps incarcerated veterans re-enter society, said he is limited in what he can do for sex offenders. For instance, Jorgensen said, he has helped many parolees find transitional housing at veterans homes in Salt Lake City — but those homes won’t take vets who have been convicted of sex crimes.

Sex Offender Sentenced to Life for Failing to Register Loses Appeal

April 24, 2010 Comments off

dailybreeze.com(California) :Sex offender sentenced to life for failing to register loses appeal.

A man sentenced by a Torrance judge to life in prison for failing to register as a sex offender lost an appeal of his sentence Friday.

Wynford Eugene Murray sexually abused two young girls in New York more than a decade ago and failed to register as a sex offender when he moved to California.

Last April, Torrance Superior Court Judge Mark Arnold sentenced Murray to the “third strike” term of 25 years to life in prison after a nonjury trial in which he was convicted of failing to register as a sex offender.

Murray claimed Arnold abused his discretion in denying his request to vacate at least one of his prior “strikes” from the New York case, but a three-justice panel from the 2nd District Court of Appeal turned down his appeal.

Murray, a transient who had lived first in Canoga Park and then Redondo Beach, contended that he did not know until after his arrest that California law required him to register as a sex offender, the justices noted in their eight-page ruling.

Make no mistake: This man was sentenced to life in prison NOT because of any sex crime , but because he failed to register his address with authorities when he moved to California. Does that punishment fit that crime? Of course not. It is insanity.

AL: Legislature Passes Limit on Housing Sex Offenders

April 24, 2010 Comments off

blog.al.com: Alabama Legislature passes limit on housing sex offenders.

The Alabama Legislature has given approval to a bill that would limit the number of registered sex offenders living together in Jefferson County.

The bill, sponsored in the Senate by Sen. Priscilla Dunn, D-Bessemer, and in the House by Rep. Oliver Robinson, D-Birmingham, now goes to Gov. Bob Riley for his review.

The measure would bar landlords from housing more than one registered sex offender under one roof and would require offenders who live in an apartment complex to reside at least 100 yards from each other.

City officials in the western Jefferson County town of Mulga asked Dunn to sponsor the bill because a boarding house there has had as many as four offenders living there. State law prohibits offenders from living within 2,000 feet of a school or day care. Mulga has no schools or day care facilities.

Rosie Parker, who owns the boarding house, said she has only one registered offender at her home now, her brother. “I was trying to help them out,” Parker said.

Her brother, Samuel Washington, said it was disappointing to learn that the bill had been approved. Washington, 53, who was convicted in Texas of aggravated sexual assault, said he didn’t think the bill was fair because “everybody deserves a second chance at life.

“I can understand how they feel, but I’m human, too,” he said. “It creates a problem for those who are trying to resume a life.”

The bill would affect 122 convicted sex offenders and 23 addresses in Jefferson County that would not be in compliance if it becomes law, including apartments, hotels, a ministry and at least two boarding houses, according to the Jefferson County Sheriff’s Office.

David Gespass, a Birmingham lawyer who is a cooperating attorney with the American Civil Liberties Union, said he believes the legislation has the potential to create a cycle because the inability to provide a residence could cause many sex offenders to fail to register, which brings additional convictions and jail time.

The bill does contain some exceptions. A landlord would not be in violation if the registered sex offender is a spouse or child, or the owner of the property. The landlord would also not be in violation if a registered sex offender does not provide written notice of his prior convictions.

Dunn said there was no opposition to the bill. It would become effective three months after it becomes law.
A state law that passed in 2007 doesn’t allow landlords in Birmingham to house more than one registered sex offender under the same roof.

Visa Petitions Under the Adam Walsh Act

April 23, 2010 Comments off

While this topic is slightly removed from our primary focus, we often hear from readers asking about Visa Petitions and how they are affected by the Adam Walsh Act laws. To be honest, I am unfamiliar with how the immigration visa process works but will try to post some useful links and information below. If any reader would like to submit a clear and concise brief on how the Adam Walsh Act affects Family-Based Visa Petitions, it can be sent to constitutionalfights@yahoo.com.

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This memorandum provides guidance for the initial implementation of the recently enacted Immigration Law Reforms to Prevent Sex Offenders from Abusing Children (Title IV of the Adam Walsh Child Protection and Safety Act of 2006).

On July 27, 2006, President Bush signed into law H.R. 4772, the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”), an Act 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.

Section 402 of the Adam Walsh Act amends section 204 of the Immigration and Nationality Act (INA) to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition (including the Form I-130 and the Petition to Classify Orphan, Form I-600A or I-600) on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. Section 402 of the Adam Walsh Act also amends section 101(a)(15) of the INA to remove spouses or fiancés of U.S. citizens convicted of these offenses from eligibility for “K” nonimmigrant status (Form I-129F).

The operative definition of “specified offense against a minor” is contained in section 111(7) of the Adam Walsh Act:

“The term `specified offense against a minor’ means an offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18, United States Code.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.”

A minor is defined as an individual who has not attained the age of 18 years.

The Adam Walsh Act is effective on the date of enactment. It applies to all petitions pending on or after that date. Headquarters is currently reviewing this recently enacted legislation and will provide detailed guidance for implementation. In the interim, the following procedures are implemented effective this date:

If the petitioner’s IBIS check reveals a hit for any sexual or kidnapping offense that is, or potentially may be a “specified offense against a minor” as defined above, the following actions will be taken:
1. A Request for Evidence will be issued for all police arrest records and court disposition documents.
2. The petitioner will be scheduled for fingerprinting in accordance with Center or Field Office procedures. These fingerprints will be processed without fee.
Adjudication of these cases will be suspended pending further guidance, however these petitions may be denied on grounds not related to the above.
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Resources:
2006 USCIS Memorandum (PDF)
Family Based Immigration Forum
VisaJourney Forum
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From an immigration attorney commercial site:
Prohibitions Under the Walsh Act

A petitioner who has been convicted of a specified offense against a minor is not simply prohibited from filing on behalf of a minor child. The petitioner is prohibited from filing on behalf of “any” family-based beneficiary under sections 204(a)(1)(A)(i) and 204(a)(1)(B)(i) of the Act or in accordance with section 101(a)(15)(K) of the Act. “Any beneficiary” includes a spouse, a fiancé(e), a parent, an unmarried child, an unmarried son or daughter over 21 years of age, an orphan, a married son or daughter, a brother or sister, and any derivative beneficiary permitted to apply for an immigrant visa on the basis of his or her relationship to the principal beneficiary of a family-based petition

Section 401 of the Adam Walsh Act amends section 237(a)(2)(A) of the INA by adding a new subparagraph (v). Under new section 237(a)(2)(A)(v), an alien who is convicted under new 18 USC 2250, for failing to register as a sex offender, is subject to removal as a deportable alien.

Approved Family Based Petitions May Be Revoked Under Adam Walsh Act:
If, at any time prior to adjustment of status or consular processing, USCIS becomes aware that the petitioner has a conviction for a specified offense against a minor, it will revoke the approved family-based immigrant visa petition or reopen and reconsider the I-129F.

Further, the approved immigrant visa petitions may be reopened for “good and sufficient cause” under Section 205 of the Act. Revocation of the approval is allowed under 8 CFR 205.2 if the petitioner has been convicted of a specified offense against a minor and USCIS finds that the petitioner poses risk to the beneficiary. Therefore, USCIS conducts additional IBIS checks on the petitioner of the family-based immigrant petition at the time the beneficiary adjusts status. Pursuant to 8 CFR 103.5(a)(5)(ii) USCIS may reopen and reconsider the decision on I-129F if the petitioner has been convicted of a specified offense against a minor and USCIS determines that the petitioner poses any risk to the beneficiary.

What is a “Specified Offense Against a Minor”?

The phrase “specified offense against a minor” in the Adam Walsh Act is defined broadly to take into account that these offenses may be named differently in a wide variety of Federal, State and foreign criminal statutes. The statutory list is not composed of specific statutory violations.

As defined in the relevant criminal statute, for a conviction to be deemed a specified offense against a minor, the essential elements of the crime for which the petitioner was convicted must be substantially similar to an offense defined as such in the Adam Walsh Act. USCIS will issue a Request for Evidence (RFE) for all police arrest records and court disposition documents and schedule the petitioner for fingerprints if the petitioner’s IBIS check reveals a hit for any offense that is or may be a “specified offense against a minor” as defined above.

If there is an IBIS hit or other indication that a lawful permanent resident petitioner may have a conviction for a specified offense against a minor as defined in the Adam Walsh Act, the USCIS will suspend the case adjudication. If the offense meets the definition of an egregious public safety threat, USCIS will refer the case to U.S. Immigration and Customs Enforcement (ICE) for initiation of removal proceedings against petitioner.

If the petition has been approved or is being processed and there is an IBIS hit, USCIS will issue a RFE or Notice of Intent to Revoke (NOIR) and request all police arrest records and court disposition documents. If the petitioner was previously identified as posing risk, USCIS will obtain petitioner’s current rap sheet.

If the petitioner fails to respond to the RFE or NOIR, the petition is denied or revoked accordingly. If the fingerprint results and the evidence submitted in response to an RFE or NOIR indicate that the petitioner was not convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will process the petition in accordance with 8 CFR 204.

If, after review of the fingerprint results and the evidence submitted in response to the RFE or NOIR USCIS is not sure whether the petitioner’s conviction is a specified offense against a minor, or the criminal case against the petitioner is still pending and its disposition is unknown, USCIS will send petitioner’s file for supervisory review and opinion. In some cases, ICE may decide to initiate removal proceedings against any lawful permanent resident who is deportable under section 237(a)(2)(A)(v) of the INA (conviction for having failed to register as a sex offender).

If, after review of the fingerprint results the evidence submitted in response to the RFE or NOIR, USCIS finds that the petitioner has been convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will determine whether the petitioner poses a risk to the beneficiary.

Procedures for Determining whether Petitioner “Poses No Risk” to Beneficiary:

The main purpose of section 402 of the Adam Walsh Act is to ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States. USCIS, therefore, may not approve a family-based petition (I-130 or I-129F) if the petitioner has a conviction for a specified offense against a minor unless USCIS first determines that the petitioner poses no risk to the beneficiary on whose behalf a petition was filed. Under section 402 of the Adam Walsh Act, only the Secretary has this discretion and the “sole and unreviewable” authority to decide whether a petitioner poses any risk to the intended beneficiary. The phrase “poses no risk to the beneficiary” means that the petitioner must pose no risk to the safety or well-being of the principal or derivative beneficiaries.

Evidence of Rehabilitation:

We recommend submission of sufficient evidence of rehabilitation if the petitioner is implicated by the Adam Walsh Act. Petitioner must demonstrate by clear evidence and beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary. The initially filed petition or response to an RFE or NOIR must include whatever evidence and legal argument the petitioner wants USCIS to consider in making its risk determination. Examples of such evidence include, but are not limited to:

*Certified records indicating successful completion of counseling or rehabilitation programs;
* Certified evaluations conducted by licensed professionals, such as psychiatrists, clinical psychologists, or clinical social workers, which attest to the degree of a petitioner’s rehabilitation or behavior modification;
* Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services;
* Certified copies of police reports and court records relating to the offense (the court records must include the original indictment or other charging document, any superseding charging document, any pre-sentencing report, and the conviction judgment); and
* News accounts and trial transcripts describing the nature and circumstances surrounding the petitioner’s specified offense(s) against a minor and any other criminal, violent, or abusive behavior incidents, arrests, and convictions.

The determination of whether a petitioner’s evidence is credible, and the weight and probative value to be given that evidence, shall be within the sole and unreviewable discretion of USCIS.

Factors USCIS Considers in Adjudication Process:

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. Here is the non-exclusive list of the factors:

1. The nature and severity of the petitioner’s specified offense against a minor, including all facts and circumstances underlying the offense;
2. The petitioner’s criminal history;
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;
4. The relationship of the petitioner to the principal beneficiary and any derivative beneficiary;
5. The age and, if relevant, the gender of the beneficiary;
6. Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and
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 USCIS automatically presumes that risk exists in any case where the intended beneficiary is a child, irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another.

During the application process our client has clear understanding that the burden is upon him/her to rebut and overcome the presumption of risk by providing credible and persuasive evidence of rehabilitation and any other relevant evidence that proves, beyond any reasonable doubt, that he or she poses no risk to the intended child beneficiary.

In cases where none of the intended beneficiaries are children, USCIS closely examines the petitioner’s specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary. It considers past acts of spousal abuse or other acts of violence. The fact that a petitioner’s past criminal acts may have been perpetrated only against children or that the petitioner and beneficiary will not be residing either in the same household or within close proximity to one another may not, in and of themselves, are sufficient to convince USCIS that the petitioner poses no risk to the adult beneficiary.

In case of an adult beneficiary, our client is advised that the burden is upon the petitioner to prove, beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary. Therefore, it is important to prepare and present documents in the light most favorable to the petitioner that the petitioner poses no risk to the beneficiary. If no such evidence is presented, USCIS will deny the application.

If the USCIS adjudicating officer is uncertain as to whether the petitioner poses no risk to the beneficiary, or if the adjudicator is finding it difficult to articulate the factual basis for the denial, the office will consult with his/her supervisor and/or USCIS counsel. USCIS cannot approve the petition subject to Adam Walsh Act without guidance from the USCIS’ headquarters.

Denials under Adam Walsh Act:

The denial or revocation of orphan and fiancé cases may be appealed to the Administrative Appeals Office (“AAO”). Section 402 of the Adam Walsh Act does not affect the AAO’s jurisdiction in orphan and fiancé/fiancée cases.

This information is general in nature and is not specific legal advice.

US Supreme Court Denies Kentucky AG Petition

April 23, 2010 Comments off

On October 1, 2009, The Supreme Court of Kentucky ruled that a law limiting where registered sex offenders can live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented. The law prohibits sex offenders from living within 1,000 feet of playgrounds, daycare centers and schools, and changed how the distance is measured.

The court, in a decision dated Oct. 1, said the law is punitive in nature and violates the ex post facto clause in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes.

Kentucky Attorney General Jack Conway
tried to resist this ruling and continued to enforce the law retroactively (and illegally) while he petitioned the United States Supreme Court for further review. His petition was denied by SCOTUS on March 8, 2010.

Case Nos. 2006-SC-000347-CL
Kentucky Attorney General’s Office (502)-696-5342
1024 Capitol Center Drive
Frankfort, KY 40601
jason.moore@ag.ky.gov

NJ Lawmaker Pleads Guilty in Child Porn Case

April 23, 2010 Comments off

usatoday.com: N.J. lawmaker pleads guilty in child porn case.

More hypocrites…

Trenton, N.J. (AP) — A New Jersey lawmaker who championed legislation fighting child pornography pleaded guilty Monday to distributing nude images of underage girls.

Neil Cohen, 59, acknowledged viewing and printing images meant for sexual gratification from a computer in his former legislative office. He left at least one image at a receptionist’s desk, leading to the investigation and charges.

Cohen pleaded guilty to endangering the welfare of a child by distributing child pornography and could be sent to state prison for five years when he is sentenced on July 12.

Under terms of a plea agreement, Cohen will have to register as a sex offender under Megan’s law and be subject to lifetime supervision by the Parole Board when he is released from prison. He agreed never to seek public office again and to pay at least $1,800 in fines. His use of social networking websites also will be restricted. Cohen, an attorney who now lives in Paramus, likely will be disbarred.

Cohen and his lawyers left court without commenting. Prosecutors also declined to comment. Looking gaunt and sporting a full beard, Cohen answered the judge’s questions succinctly in a low, barely audible voice.

“That’s correct, sir,” Cohen said when asked if he intended to plead guilty. Cohen acknowledged being on medications but told the judge the drugs did not impair his judgment.

In exchange for the guilty plea, other charges against the former assemblyman were dropped. Cohen faced up to 30 years in prison if convicted of official misconduct and child pornography charges.

Cohen was accused of using state computers in his Union County legislative office to view, print and duplicate images of underage girls. The staff member who discovered the photos told the two lawmakers who shared the office with Cohen, Sen. Ray Lesniak and Assemblyman Joe Cryan. They reported Cohen to state authorities in July 2008.

Police Officer Sentenced as Sex Offender

April 23, 2010 Comments off

panhandleparade.com: Police Officer Sentenced as Sex Offender.

Walton County, FL. – A former Alabama and Florida law enforcement officer initially arrested several years ago during a “Dateline NBC: To Catch a Predator” sting has been sentenced. Walton County Circuit Judge Kelvin Wells sentenced Todd Monroe Spikes to ten-year’ sex offender probation.

Last month, the 44-year-old pled “no contest” to the charges of lewd and lascivious exhibition with the victim less than 16, and using the computer to seduce and solicit a child. Spikes was one of 21 men who police said had sexually explicit online chats with decoys posing as children. He had several online chats with a police decoy who was posing as a 13-year-old girl. He drove five hours to meet with her at a home in Flagler Beach, just outside of Daytona Beach, Florida. Cameras followed Spikes as he drove around the decoy’s house. He was stopped several blocks away where authorities found several loaded weapons in his SUV. His vehicle also contained rope and a boat anchor.

The charges were eventually transferred to Walton County, because the investigation revealed that he used the computer in Walton County to solicit the acts. At the time of his arrest, Spikes was working as an officer for the Florala Police Department. Prior to that, he had spent time with the Samson, Alabama Police Department, the Geneva, Alabama Police Department, the DeFuniak Springs Police Department, and the Walton County Sheriff’s Office.

Following his sentencing, Spikes came to the Walton County Sheriff’s Office to register as a sex offender.

If this man was not a police officer, his sentence would be much greater than a ten-year probation period.

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