Category: Sexual Assault

Litigating Petitions that might be Barred under the Adam Walsh Act

The Adam Walsh Act Child Protection and Safety Act aims to protect minors from sexual exploitation. Section 402  of the Act meets that goal by preventing a United States citizen or a lawful permanent resident from petitioning for an immigration visa if he has been convicted of a sex crime relating to a minor. The Act applies to petitions filed on or after July 27, 2006, when it was passed by Congress. There is an exception under the law if the sexual assault was consensual and with an adult.
The law gives DHS the discretion to waive the criminal bar under the Act, if the petitioner proves, beyond a reasonable doubt, that he poses no risk to the beneficiary.
There are several problems with the Act. To be clear, I do not condone sexual assault on anyone. However, I have represented many US citizens who have truly reformed. They, themselves, had nothing to do with their past, and were subjected to abuse at a young age. They have reformed and they are leading better lives when they come see me. The law precludes these citizens from applying for their spouses, a right that they should have. The law also limits the petitioner’s right to challenge the Service’s discretion and elevates the burden of proof to beyond a reasonable doubt, the level of proof required in criminal cases. AILA has recently filed an amicus brief  in a challenge to the law. I look forward to the decision on the case.