Image Source: The White House

It is a major setback for families in the U.S. if an alien beneficiary is not allowed entry into the United States because of a criminal past that renders them ‘inadmissible’.

U.S. petitioners, who are U.S. citizens and lawful permanent residents or green card holders, can also cause family-based petitions to be disapproved because of their own  criminal past.  Being a U.S. citizen or a green card holder is not a free pass to bring a wife, fiancée/e or child into the U.S. The law explicitly defines criminal convictions that come within the realm of disqualifications.

If the petitioner has criminal convictions which are violent or sexually deviant in character, the  petition will be subjected to a different level of scrutiny. 

A criminal past is crucial for a family-based petition, such as a petition for a spouse, fiancée/e, child, parent and an orphan (inter-country adoption).  Obviously, the need to protect individuals from possible harm is a universal precaution.

Immigration consequences range from being denied  the application/petition or actually rejected by the alien-beneficiary (fiancée/e visa)  to being unable to avail of “waivers” ordinarily granted to U.S. petitioners without a criminal history (in the case of fiancée/e visa).

Of utmost significance is the Adam Walsh Act (AWA) which was enacted on July 27, 2006 to protect minors (18 years and under) from sexual exploitation and violent crimes (such as kidnapping) and to keep them safe from abuse and pornography.

AWA has a section entitled “Immigration Law Reforms to Prevent Sex Offenders from Abusing Children”.  The reality of child trafficking need not be over-emphasized. Child abuse occurring in a household, though not easily detected, is common.

U.S. immigration seeks to safeguard the community from this societal ill.  Hence, the reform seeks “to prohibit a U.S. citizen or lawful permanent resident who has been convicted of any ‘specified offense against a minor’ from filing a family-based visa petition for any beneficiary unless the Secretary of Homeland Security determines, in his/her sole and unreviewable discretion, that the petitioner poses no risk to the beneficiary.”

“Offenses against a minor include: Kidnapping and false imprisonment (unless committed by a parent or guardian); solicitation to engage in sexual conduct or practice prostitution; video voyeurism, possession, production and distribution of child pornography; criminal sexual conduct with a minor, including use of the internet to facilitate the criminal conduct or an attempt to commit thereof and, lastly, any conduct that by its nature is a sex offense against a minor.

Although AWA specifically pertains to offenses against minors, immigration rules do not delineate and cover all family-based beneficiaries, be it a parent, spouse, fiancée/e, or child.  The petitioner will be placed under scrutiny and will be required to do fingerprinting and submit all documents pertaining to the offense/s, acts that only aliens (non U.S. citizens) desiring to reside in the U.S. are required to go through.

These petitioners are subjected to a higher degree of proof, i.e., they have to prove beyond reasonable doubt that they will not pose a danger to the beneficiary.   “Proof beyond reasonable doubt” is the highest degree of proof (factual evidence)  required and used mostly in criminal cases.

Moreover, the power rests solely with the Secretary of Homeland Security to decide whether to grant the petition or not.  The decision cannot be reviewed.  There are standard recommended documentation that can be presented by the petitioner to prove that he/she no longer or will not pose any danger to the beneficiary. 

This is another immigration dilemma.  At first glance, the reform seeks to prevent the occurrence of such egregious conduct against our children.  But at the same time, it also seeks to prevent the same petitioner’s family members from being united, contrary to immigration’s basic tenet  to uphold family unity. How do you adjudicate such cases?