Is Application of ‘Adam Walsh Act’ to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?
Is Application of ‘Adam Walsh Act’ to Crime Committed Before Law Took Effect Unconstitutionally Retroactive?
Under U.S., Ohio Constitutions’ Bans Against Ex Post Facto Laws
State of Ohio v. George D. Williams, Case no. 2009-0088
12th District Court of Appeals (Warren County)
ISSUE: Does retroactive imposition of sex-offender registration requirements enacted in 2007 as part of the Ohio Adam Walsh Act (AWA) on offenders whose crimes were committed before the effective date of the AWA violate the ex post facto and due process clauses of the U.S. Constitution, and/or the provision of the Ohio Constitution prohibiting retroactive laws?
BACKGROUND: In a June 2010 decision, State v. Bodyke, the Supreme Court of Ohio voided as unconstitutional two sections of the Ohio Adam Walsh Act (AWA) that authorized the state attorney general to reclassify sex offenders who had previously been classified by judges under an earlier version of the law, “Megan’s Law.” The Court held that the challenged provisions violated the separation-of-powers doctrine of the Ohio Constitution. The defendants in Bodyke also argued that application of the AWA to crimes that were committed before the July 1, 2007 effective date of that legislation violated the constitutional prohibition against “ex post facto” laws (laws that retroactively increase the punishment for a crime after the crime has been committed). However, because the Court’s ruling on the separation of powers issue voided the Bodyke defendants’ reclassifications under the AWA and reinstated their Megan’s Law registration status, the justices declined to review the appellants’ ex post facto arguments. In this case, a defendant not affected by the Bodyke decision challenges on ex post facto grounds a trial court order that applied the AWA classification scheme in sentencing him for a crime he committed before July 1, 2007.
When the General Assembly adopted the AWA, it specified that, regardless of when a defendant’s crime was committed, state courts sentencing sex offenders on or after July 1, 2007 must apply the new AWA sex offender classification scheme and include in the defendant’s sentence registration and community notification requirements set forth in the AWA that are more severe than similar provisions in the previous, Megan’s Law, version of the statute.
George Williams of Warren County was convicted in December 2007 of engaging in sexual conduct with a 14-year-old girl. The conduct on which his conviction was based took place in May 2007. Prior to his sentencing hearing, Williams entered a motion asking the trial court to sentence him under the Megan’s Law sex offender classification scheme that was in effect on the date of his offense, rather than under the AWA classification scheme. The trial court overruled Williams’ motion. He was sentenced to three years of community control and classified as a Tier II offender under the AWA, requiring him to register with the sheriff in his county of residence every 180 days for the next 25 years. If he had been sentenced under the Megan’s law version of the statute, Williams, who had no prior sex-related convictions, would have been subject to once-a-year registration for 10 years.
Williams appealed, arguing that the retroactive application of the AWA registration requirements to his May 2007 offense violated the ex post facto, due process and double jeopardy clauses of the U.S. Constitution and the retroactivity clause of the Ohio Constitution. The 12th District Court of Appeals affirmed the trial court’s classification of Williams under the AWA as constitutional. The court of appeals cited several prior Supreme Court of Ohio decisions including State v. Cook (1998), State v. Wilson (2007), and State v. Ferguson (2008), in which this Court held that the statutory registration and community notification requirements imposed by the state on sex offenders were civil and “remedial” measures designed to protect the public rather than punitive measures intended to punish or deter offenders. Applying that same analysis to Williams’ case, the 12th District held that retroactive imposition of the AWA registration requirements as part of Williams’ sentence did not retroactively “increase the punishment” for his crime, and therefore did not violate the ex post facto clause of the U.S. Constitution or the retroactivity clause of the state constitution.
Williams sought and has been granted Supreme Court review of the 12th District’s ruling.
Attorneys for Williams point out that the Cook, Wilson and Ferguson decisions cited by the 12th District all analyzed the pre-2008 sex offender classification scheme under Megan’s Law, not the more stringent requirements imposed by the AWA. They argue that these earlier decisions relied on the fact that, before a sex offender was classified under Megan’s Law, the court was required to conduct a hearing at which the judge reviewed the facts of that specific case and the defendant’s personal and social history to determine how likely that individual was to reoffend — and then impose whatever level of registration and/or community notification the court found necessary to protect the community. They note that the AWA has eliminated judicial review of an individual offender’s history or the circumstances of his crime for purposes of classification, and instead imposes identical registration and community notification requirements on offenders based exclusively on their offense. The appellants argue that the AWA classification system is no longer primarily a remedial scheme related to the actual danger posed by individual offenders.
Attorneys for the state point to specific language included in the AWA stating that the legislature’s intent was “to protect the safety and welfare of the people of this state,” and that the exchange or release of information required by the statute “is not punitive.” They argue that the registration and community notification requirements in the AWA are merely expansions of requirements that were already imposed under Megan’s Law, and assert that nothing in the 2007 changes to the law have changed the nature or intent of those requirements from remedial to punitive. Accordingly, they assert, the Court should follow its earlier holdings that requiring sex offenders to register with police and disclosing their presence to others who live, work or attend school nearby is not punishment, and applying those requirements retroactively does not offend the ex post facto provisions of the Ohio or U.S. constitutions.
NOTE: An amicus curiae (friend of the court) brief supporting the position of Williams has been submitted by the Cleveland Rape Crisis Center and Texas Association Against Sexual Assault. The American Civil Liberties Union also has submitted an amicus brief supporting Williams’ position. The Ohio attorney general’s office and Franklin County prosecutor’s office have entered amicus briefs supporting the position of the state. Copies of the amicus briefs and all other filings in the case can be accessed by going to the following hyperlink: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2009-0088, in the search box provided.
Michael Greer, 513.695.1325, for the state and Warren County prosecutor’s office.
Katherine A. Szudy, 614.466.5394, for George Williams.
What is the AWA and how does it affect you?
Overview and History of the Jacob Wetterling Act
Brief Summary of Adam Walsh Act Provisions
The Cost of the AWA
Is the Public Registry needed?
Findings based on the research
Stranger Danger: the Facts
Is the AWA punitive, punishment?
Court victories against the AWA
Collateral Damage of the Adam Walsh Act
Other effects of the registry and the AWA
KXAN – Austin, Texas: Sex Offender Registries
The fight continues…we have still seen no movement by the Ohio Attorney General’s office in complying with the Ohio Supreme Court ruling, of June 3, 2010, which invalidated the retroactive application of Ohio’s reclassification of ex sex offenders. The Attorney General’s continued refusal to abide by this Supreme Court decision is an illegal act. Every reader must contact the Attorney General Office of Ohio to insist that they stop enforcing this illegal law:
Ohio Attorney General Richard Cordray, 30 E. Broad St., 17th Floor, Columbus, OH 43215
Kim Kowalski: (614) 728-9692, cell: (614) 893-6018
Ted Hart: Deputy Director of Media Relations
Office of the Ohio Attorney General
PHONE 614-728-4127, cell: (614) 743-2286
EMAIL firstname.lastname@example.org (614) 728-4127
Help be a watchdog:
Wilmington- Delaware has become just the second state in the country to achieve compliance with the federal Adam Walsh Act. (after Ohio).
The U.S. Department of Justice recently determined that Delaware has substantially implemented the provisions of the sex offender registration and notification provisions of the Adam Walsh Child Protection and Safety Act of 2006. The Act aligns sex offender registry standards across the states and asks states to place the burden on convicted sex offenders.
Under current federal rules, states that fail to substantially implement these provisions by July 26 stand to lose 10 percent of their annual federal Byrne Justice Assistance Grant funding.
Florida is third state to implement the Adam Walsh Act, substantially enforce Sex Offender Registration and Notification procedures.
Governor Charlie Crist and Florida Department of Law Enforcement Commissioner Gerald Bailey today announced that Florida is the third state to implement the Adam Walsh Act. The Act provides a comprehensive set of minimum standards for sex offender registration and notification in the United States.
On May 14, the U.S. Department of Justice recognized Florida as having reached substantial implementation of the Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006. The act aligns sex offender registry standards across the states and tightens requirements for offender registration and notification. Under current federal rules, states that fail to substantially implement these provisions by July 26, 2010 stand to lose 10 percent of their annual federal Byrne Justice Assistance Grant funding. Ohio and Delaware are the only other two states to implement the act to date.
As part of the Adam Walsh Child Protection and Safety Act, Florida implemented several changes to the registry requirements including:
* increased the number of times per year that sexual offenders and predators must register in person with their local sheriff’s office;
* Required all registered sexual offenders and predators to register any e-mail or instant message address they may use prior to using it;
* Required juvenile sexual offenders to register if adjudicated of certain crimes committed after July 1, 2007;
* Increased the minimum length of registration for sexual offenders while removing the ability for sexual predators to petition the court for removal from registration requirements; and
* Increased sexual offender/predator notification to the public, including e-mail notifications made available to citizens. To date, more than two million notifications have been sent out.
The registry currently houses data on more than 54,000 registered sex offenders and predators.
stateline.org: Adam Walsh Act changes are a win for states.
The U.S. Justice Department has proposed major regulatory changes to the Adam Walsh Act, a 2006 federal law requiring all states to crack down on sex offenders by July or risk losing hundreds of millions of dollars in federal grant money.
The proposed changes, which were posted in the Federal Register on Friday (May 14) and face a two-month public comment period, address some of the most controversial provisions of the law, which many states have criticized as cost-prohibitive and overly strict.
As Stateline has reported, however, many states disagree with key provisions of the law that they see as too strict, including a stipulation that some juvenile sex offenders as young as 14 be placed on public registries. In Delaware, as the Wilmington News-Journal recently reported, some offenders as young as 9 are listed on the public sex offender Web site. Youth advocates and others have said that posting images and personal information of juveniles can lead to harassment, and that juveniles should not be grouped with more serious, adult criminals. The changes proposed Friday give states the discretion to decide if they want to include juveniles on their registries.
Under another proposed change, sex offenders whose crimes pre-dated the Adam Walsh Act, and who have exited the justice system, would not be forced to abide by its registration requirements. While courts have found the provision constitutional — holding that registration is not a new criminal penalty but a civil, regulatory requirement instead — states have argued that it is overly burdensome to track down and register sex offenders who already have served their time and re-joined the population. The Justice Department recognized that concern, giving states “greater latitude” not to register certain offenders. (This does not mean that states will remove retro-activity from their laws, but only that the AWA requirements will allow them to do so if they choose. States like Ohio, which already require past offenders to register would have to change their laws if they choose to remove past offenders from the registries….unlikely in this political climate)
“It may not be possible for jurisdictions to identify and register all sex offenders who fall within the (Adam Walsh Act) registration categories, particularly where they have left the justice system and merged into the general population long ago,” the new rules say.
Only one state — Ohio — has complied with the Adam Walsh Act so far. Several others have asked for a one-year extension to meet the law’s demands. U.S. Attorney General Eric Holder already has granted all states a one-year extension, underscoring the difficulty states have had in complying with the law.
While there is broad political agreement on the overall goals of the Adam Walsh Act, the changes proposed Friday show that states’ concerns are being heard in Washington, D.C. Members of Congress also have acknowledged that they may have overreached with the legislation.
It has come to our attention, via Sexoffenderresearch and SentencingLaw&Policy, that today the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:
* Gives jurisdictions discretion to exempt juvenile offenders from public website posting
* Provides information concerning the review process for determining that jurisdictions have substantially implemented
* Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
* Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
* Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
* Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
* Requires jurisdictions to have sex offenders report international travel 21 days in advance
* Clarifies mechanism for inter-jurisdictional information sharing and tracking.
The Sex Offender Registration and Notification Act, which is title I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109–248, was enacted on July 27, 2006. SORNA (46 U.S.C. 16901 et seq.) establishes minimum national standards for sex offender registration and notification in the jurisdictions to which it applies. SORNA directs the Attorney General to issue guidelines and regulations to interpret and implement SORNA.
Since the publication of the SORNA Guidelines, issues have arisen in SORNA implementation that require that some aspects of the Guidelines be augmented or modified. Consequently, the Department of Justice is proposing these supplemental guidelines, which do the following:
(1) Allow jurisdictions, in their discretion, to exempt information concerning sex offenders required to register on the basis of juvenile delinquency adjudications from public Web site posting. (allow states to take minors off of the public Internet registry only)
(2) Require jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public Web site posting, pursuant to the KIDS Act, 42 U.S.C. 16915a. (disallow Internet public registry to post offender’s email addresses and Internet identifiers)
(3) Require jurisdictions to have sex offenders report international travel 21 days in advance of such travel and to submit information concerning such travel to the appropriate Federal agencies and databases. (to sneak in the proposed International Megan’s Law; restricts international travel and monitors such travel)
(4) Clarify the means to be utilized to ensure consistent inter-jurisdictional information sharing and tracking of sex offenders. (sharing information between states, and perhaps countries)
(5) Expand required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations. (this is a legal protection effort by the Feds to protect themselves legally. Some jurisdictions already do this)
(6) Provide additional information concerning the review process for determining that jurisdictions have substantially implemented the SORNA requirements in their programs and continue to comply with these requirements. (because only one state (Ohio) has “substantially complied”)
(7) Afford jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system but later reenter through a new (non-sex-offense) criminal conviction by providing that jurisdictions may limit such registration to cases in which the new conviction is for a felony. (allow states to avoid retro-active implementation, but does not forbid it. This seems to allow continued retro-active implementation on anyone already on the registry.)
(8) Provide, for Indian tribes that are newly recognized by the Federal government following the enactment of SORNA, authorization and time frames for such tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA.
IV. Retroactive Classes
SORNA’s requirements apply to all sex offenders, regardless of when they were convicted. See 28 CFR 72.3. However, the SORNA Guidelines state that it will be deemed sufficient for substantial implementation if jurisdictions register sex offenders with pre-SORNA or pre-SORNA implementation sex offense convictions who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent criminal conviction. See 73 FR at 38035–36, 38043, 38046–47, 38063–64. This feature of the Guidelines reflects an assumption that it may not be possible for jurisdictions to identify and register all sex offenders who fall within the SORNA registration categories, particularly where they have left the justice system and merged into the general population long ago, but that it will be feasible for jurisdictions to do so in relation to sex offenders who remain in the justice system or reenter it through a subsequent criminal conviction. See 73 FR at 38046.
Experience supports a qualification of this assumption in relation to sex offenders who have fully exited the justice system but later reenter it through a subsequent criminal conviction for a non-sex offense that is relatively minor in character. (Where the subsequent conviction is for a sex offense it independently requires registration under SORNA.) In many jurisdictions the volume of misdemeanor prosecutions is large and most such cases may need to be disposed of in a manner that leaves little time or opportunity for examining the defendant’s criminal history and ascertaining whether it contains some past sex offense conviction that would entail a present registration requirement under SORNA. In contrast, where the subsequent offense is a serious crime, ordinary practice is likely to involve closer scrutiny of the defendant’s past criminal conduct, and ascertaining whether it includes a prior conviction requiring registration under SORNA should not entail an onerous new burden on jurisdictions.
These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants. It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense. As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor.
This allowance only establishes the minimum required for substantial implementation of SORNA in this context. Jurisdictions remain free to look more broadly and to establish systems to identify and register sex offenders who reenter the justice system through misdemeanor convictions, or even those who do not reenter the system through later criminal convictions but fall within the registration categories of SORNA or the jurisdiction’s registration law.
TAKE ACTION: Submit Your Comments (read and follow instructions carefully)
DATES: Written comments must be postmarked and electronic comments must be submitted on or before July 13, 2010. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period.
ADDRESSES: Comments may be mailed to Linda M. Baldwin, Director, SMART Office, Office of Justice Programs, United States Department of Justice, 810 7th Street, NW., Washington, DC 20531.
To ensure proper handling, please reference OAG Docket No. 134 on your correspondence. You may submit comments electronically or view an electronic version of these proposed guidelines at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Linda M. Baldwin, Director, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; Office of Justice Programs, United States Department of Justice, Washington, DC, 202–305–2463.
SUPPLEMENTARY INFORMATION: Posting of Public Comments
Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by
the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase ‘‘PERSONAL IDENTIFYING INFORMATION’’ in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want
Implementing the Adam Walsh Act’s Sex Offender Registration and Notification Provisions: A Survey of the States
Sage Journals Online: Implementing the Adam Walsh Act’s Sex Offender Registration and Notification Provisions: A Survey of the States (2010) –
Download PDF report here: Registration Required to view complete document.
Andrew J. Harris, University of Massachusetts-Lowell, Andrew_harris@uml.edu
Christopher Lobanov-Rostovsky, Colorado Division of Criminal Justice
With the 2006 passage of the Adam Walsh Child Protection and Safety Act (AWA), the United States Congress established a range of requirements for sex offender registration and notification (R&N) systems operated by states, tribal jurisdictions, and U.S. territories. In the years since the law’s passage, these congressional mandates have generated concern within some covered jurisdictions and among national organizations over matters such as the perceived undermining of jurisdictional autonomy, the variance between the law and emerging “best practices,” and perceived threats to the viability of state-based sex offender management efforts. To examine these concerns, a national survey was conducted in the fall of 2008 to evaluate the consistency between AWA requirements and existing state policies and practices, and to assess state-based barriers to AWA implementation. The survey results identified several areas of inconsistency between AWA mandates and state practices, particularly those relating to inclusion of juveniles, classification methods, and retroactive application of R&N requirements. The study revealed the barriers to AWA implementation within many states to be multifaceted and complex, suggesting the potential need for a recalibration of federal policy governing registration and notification. Implications for the respective roles of federal and state governments in the shaping of sex offender policy are discussed.
The state of Michigan is not the only state struggling to comply with the changes required by the federal Adam Walsh Act to the state’s sex offender registry. The Bangor Daily News reports that Maine is having a difficult time with those requirements as well and may ask for a delay in implementation of those changes.
Legislators from that state call many of the changes required “unworkable” and “draconian” and say they have not yet found a way to comply with the law in a way that makes sense. One of the major problems there, as here, is how to treat juvenile offenders and those in so-called Romeo and Juliet relationships.
Maine officials say the federal Adam Walsh law, which sets requirements for sex offender registries — including those for juvenile offenders — is unworkable and should be changed. Members of the state’s congressional delegation are listening.
“It just does not work,” said Sen. Stan Gerzofsky, D-Brunswick, co-chairman of the Legislature’s Criminal Justice Committee. “On our committee we have spent a lot of time trying to come up with a law that works for Maine, and Adam Walsh does not.”
Gerzofsky expects the state will seek another one-year extension to comply with the law but doubts the new Legislature elected in the fall will go along with the “draconian” provisions of the law that have been rejected by the current and past legislatures. Only one state, Ohio, has complied with the federal law.
“Congress should change the law and let the states do what works for that state,” Gerzofsky said. “We have looked at what it would cost to comply with the act and what we get under the Byrne grants and I just don’t think it is worth it.” Byrne grants provide funding to state and local police for a wide array of projects from equipment purchases to paying for special enforcement details.
Attorney General Janet T. Mills agreed with Gerzofsky and said many other attorneys general across the country have expressed concern about portions of the Adam Walsh law. “All states have a great deal of difficulty imposing the very tough restrictions on juveniles that the act requires.” “That is just one of the concerns,” Mills said.
The law requires states to have lifetime registration for the most serious of offenders, such as those convicted of sexual abuse or aggravated sexual abuse; abusive sexual contact against a minor less than 13 years old; or an offense involving kidnapping of a minor.
But the laws and definitions of sex crimes vary greatly by state, and creating a registry based on the risk of a person offending would be very expensive, experts have told Maine lawmakers.
Members of the state’s congressional delegation say they are open to some changes in the law as urged by state officials, but none supports a total repeal of the law. There is agreement that serious sex offenders should be on a registry and be required to report where they live for a long period of time.
U.S. Sen. Olympia Snowe, R-Maine, said in an interview that other states are in the same position as Maine — that is, where state courts have ruled against portions of the sex offender registry laws. She said at a minimum Congress should consider giving the states more time to work through the complicated issues before facing the possibility of a reduction in federal assistance.
U.S. Rep. Michael Michaud said the fact that a large number of states are not in compliance with the law should be a clear message to Congress that it should consider making some changes.
U.S. Rep. Chellie Pingree said she was not in Congress when the law was passed. She said it is becoming increasingly clear the law needs to be changed.
The state has until July 1 to apply for another waiver from the Justice Department. Mills thinks it will be granted. But as the law stands the state will face sanctions a year from July if it does not change its sex offender registry to comply with the Adam Walsh law or if Congress does not change provisions in the law.
One….That’s how many states in the U.S. have fully complied with the Sex Offender Registration and Notification Act, part of the Adam Walsh Child Protection Safety Act of 2006. The nationwide law is aimed at creating an across-the-board method of registering and tracking sex offenders throughout the country, where, a recent study found, a total of 704,777 sex offenders reside.
So far, only Ohio has complied.
Previously, each individual state created and followed their own tracking and registration formats. All 50 states, the District of Columbia and federally recognized Native American tribes were supposed to be in “substantial implementation” of the law by July 2009.
But all jurisdictions received an extension last year, said Scott Matson, a senior policy advisor with Florida’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking. “And they have another year if they request it,” he added. That means the final deadline could be July 2011 — five years after the measure became law.
In the meantime, Coffee said Florida did submit a compliance package at the end of last year and that she hopes to hear from the SMART Office within the next few weeks.
According to the Florida Department of Law Enforcement, as of January there were 7,900 sexual predators, 45,325 sexual offenders and 93 juvenile sexual offenders in Florida.
National Center for Missing and Exploited Children President Ernie Allen said he thinks the primary issue boils down to money and there are some states weighing the cost of losing federal funds versus complying with the act.
Ohio is the only state to meet the requirements of the Adam Walsh Child Protection and Safety Act.
The Justice Department rejected the state’s first application over how juveniles appear on the list.
The implementation cost about $400,000.
Ohio relies on county sheriff’s departments rather than state police as in Pennsylvania to enforce registration of sex offenders and predators.
Mercer County, Ohio Sheriff Jeff Grey, who was part of a task force to hammer out changes, said most were good, but not all. “I don’t like that the (law) took discretion away from judges,” he said. The Walsh Act requires uniform sentences.
“In Cleveland, Anthony Sowell was in compliance. He apparently was also a serial killer,” the sheriff said.
Sowell, 50, of Cleveland, is accused of killing 11 women whose remains were found in or around his Imperial Avenue house.
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 email@example.com.
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.
2006 USCIS Memorandum (PDF)
Family Based Immigration Forum
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.