Adam Walsh Act question

[Genesisfan 10]

Good advice to seek an immigration lawyer to get clarification & legal guidance in your case, it is up to the USCIS consulars sole discretion for approval. Each case is based on its own merits and every case is not the same...Pray to Jesus to soften immigration consular heart for approval. I hope I have given some relief from your anxiety 

[Hypnos 6,579]

AWA-related immigration cases can be extremely complicated, expensive, and time-consuming. If USCIS decide to invoke the AWA here then you could be looking at several years of protracted legal hassles before they definitively decide one way or the other. One thing that trips up a lot of people is that USCIS must decide that the petitioner poses "no threat" to their alien relative. Not "low threat" or "minimal thread", zero threat. This is often a bar that most people cannot meet, and one of the reasons why almost all AWA-related appeals are rejected.

Edited February 10, 2019 by Hypnos

[SRNCR 6]

1 hour ago, Hypnos said:

AWA-related immigration cases can be extremely complicated, expensive, and time-consuming. If USCIS decide to invoke the AWA here then you could be looking at several years of protracted legal hassles before they definitively decide one way or the other. One thing that trips up a lot of people is that USCIS must decide that the petitioner poses "no threat" to their alien relative. Not "low threat" or "minimal thread", zero threat. This is often a bar that most people cannot meet, and one of the reasons why almost all AWA-related appeals are rejected.

yeah it would be much more preferable if it didn't get to that but time will tell. I tend to feel like it won't get to that but want to be prepared in case.

[Redheadguy03 505]

3 hours ago, JFH said:

It’s nice that you are so supportive of him and believe that he’s making improvements in his life but I can assure that matters not one jot to USCIS. My husband’s crime was 20 years before we met. It was still a concern. Your husband has been crime-free at best 4 years and he has multiple offenses. My husband has been crime-free for over 20 years. Unfortunately, in the eyes of USCIS, once a criminal, always a criminal. 

 

They base their thoughts on actual cases. Unfortunately there have been some foreign wives that were brought into the country by men with criminal records who have then suffered abuse or been murdered. Obviously this doesn’t happen every time. But it has happened enough for USCIS to put procedures in place to deal with the perceived risk. 

Your husband got approved though correct? Were you the one who tried to go to the UK originally? Or am I thinking of someone else? 

[Ontarkie 14,831]

There's been one other member here who tried to AOS with AWA. They denied her AOS, this is not a something to do on your own you will need a lawyer if he falls into the AWA and I think he will. 

[SRNCR 6]

12 minutes ago, Ontarkie said:

There's been one other member here who tried to AOS with AWA. They denied her AOS, this is not a something to do on your own you will need a lawyer if he falls into the AWA and I think he will. 

Just out of curiosity what makes you say that? I realize there is an extra four months than the four years, but his charge also required him to be no more than 4 years older than her and that was applied. It will really largely depend on the interpretation of the law. I'll become concerned with proving the 'no risk' issue if that becomes an issue. 

[Ontarkie 14,831]

28 minutes ago, SRNCR said:

Just out of curiosity what makes you say that? I realize there is an extra four months than the four years, but his charge also required him to be no more than 4 years older than her and that was applied. It will really largely depend on the interpretation of the law. I'll become concerned with proving the 'no risk' issue if that becomes an issue. 

First I'm no lawyer so this is just my opinion. 

The amount of time from conviction, the class of opportunist, and the fact he was indeed more than 4 yrs older than the girl and his other run ins with the law.

USCIS looks at the whole picture and that is something we don't have access to. 

Than other threads on here over the years. I'm normally an optimist but in these situations I more of a skeptic. That is why you need a good lawyer one that knows the ins and outs of AWA and has been successful. Not just a lawyer who knows a bit about it, but one who has done this more than once and has been successful. 

[geowrian 22,338]

USCIS will look at the entire set of circumstances. They are not strictly bound by the letter of the law of the crime committed butt he circumstances surrounding it.

For instance, a DUI alone isn't a CIMT. But a DUI with another passenger int he car, or with invalid/missing registration or a license might be considered a CIMT even if there were no other charges.

What is covered under AWA is guided by certain principles and guidelines, not a preset list of criminal offenses. USCIS gets to make that call. Their decision can be challenged in court (up to at least the BIA), but hopefully that's not a path you have to take. Just be aware that just because of how he was actually sentenced or even the precise charge used does not exclude USCIS from deciding that it does fall under the AWA.

 

7 hours ago, SRNCR said:

I would agree with you BUT they would be considering something that MIGHT happen in the future and not the facts. It would be irrelevant and definitely an error of the exercise of discretion then.

Many immigration decisions are regularly a judgement call based on what they think might / is likely to happen.

Edited February 11, 2019 by geowrian

[SRNCR 6]

1 hour ago, geowrian said:

USCIS will look at the entire set of circumstances. They are not strictly bound by the letter of the law of the crime committed butt he circumstances surrounding it.

For instance, a DUI alone isn't a CIMT. But a DUI with another passenger int he car, or with invalid/missing registration or a license might be considered a CIMT even if there were no other charges.

What is covered under AWA is guided by certain principles and guidelines, not a preset list of criminal offenses. USCIS gets to make that call. Their decision can be challenged in court (up to at least the BIA), but hopefully that's not a path you have to take. Just be aware that just because of how he was actually sentenced or even the precise charge used does not exclude USCIS from deciding that it does fall under the AWA.

 

Many immigration decisions are regularly a judgement call based on what they think might / is likely to happen.

Sorry I definitely have to disagree with you on that one. They are bound by the letter of the law in that there are a list of specified offenses against a minor and then preclusions of offences that definitely dont fit that criteria. Our case will hinge solely on whether there is a strict interpretation of the four year rule or not. If there is then the case will be considered as a whole because they have discretion. If not, there wouldn't be any room for them to still go ahead and apply the AWA when the law specifically states a case with those circumstances doesn't fit. Hopefully the lawyers get back to me tomorrow re a consultation anyway so we'll see how it goes. 

[Lemonslice 5,140]

18 minutes ago, SRNCR said:

Sorry I definitely have to disagree with you on that one. They are bound by the letter of the law in that there are a list of specified offenses against a minor and then preclusions of offences that definitely dont fit that criteria. Our case will hinge solely on whether there is a strict interpretation of the four year rule or not. If there is then the case will be considered as a whole because they have discretion. If not, there wouldn't be any room for them to still go ahead and apply the AWA when the law specifically states a case with those circumstances doesn't fit. Hopefully the lawyers get back to me tomorrow re a consultation anyway so we'll see how it goes. 

Let's say you're right, how many years are you ready to wait for them to agree with you?  (I don't know if it falls or not under AWA, but what I know is if they think it does, you're in for a long and expensive journey...)

[geowrian 22,338]

39 minutes ago, SRNCR said:

Sorry I definitely have to disagree with you on that one. They are bound by the letter of the law in that there are a list of specified offenses against a minor and then preclusions of offences that definitely dont fit that criteria. Our case will hinge solely on whether there is a strict interpretation of the four year rule or not. If there is then the case will be considered as a whole because they have discretion. If not, there wouldn't be any room for them to still go ahead and apply the AWA when the law specifically states a case with those circumstances doesn't fit. Hopefully the lawyers get back to me tomorrow re a consultation anyway so we'll see how it goes. 

The point was that their discretion is within the letter of the law.

"Generally", as noted in the paragraphs you quoted regarding the definition of a sex offense, does not mean always. The specific circumstances involved can be considered.

The Court & DA's decision that the 4 year provision did not apply does not mean USCIS will determine the same since there is more than a 4 year gap. USCIS is not bound by their interpretation.

 

Additionally, that quote only applies to subsection I. The offenses may or may not fall under subsections C or H as well, in which it applies to anybody under age 18 regardless of age difference ("age-neutral" offenses).

Subsection H seems unlikely IMO, but I don't know the details of the circumstances nor how they will be interpreted.

Subsection C ("solicitation to engage in sexual conduct") sounds like it could be applied based on the initial charges (2nd Degree Sexual Assault of a Child + Child Enticement - Sexual Conduct). The fact that he was not actually charged with that does not preclude USCIS from determining that the offense actually falls under the AWA provisions noted (the ILRC noted this as well re: pleading to lesser offenses).

Edited February 11, 2019 by geowrian

[Villanelle 4,122]

2 hours ago, SRNCR said:

Sorry I definitely have to disagree with you on that one. They are bound by the letter of the law in that there are a list of specified offenses against a minor and then preclusions of offences that definitely dont fit that criteria. Our case will hinge solely on whether there is a strict interpretation of the four year rule or not. If there is then the case will be considered as a whole because they have discretion. If not, there wouldn't be any room for them to still go ahead and apply the AWA when the law specifically states a case with those circumstances doesn't fit. Hopefully the lawyers get back to me tomorrow re a consultation anyway so we'll see how it goes. 

Unfortunately Geowrain is 100% correct. Look up Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014)- The BIA agreed with the USCIS that the provisions of the Adam Walsh Act suggest a circumstance specific inquiry into the age of the victim and the conduct underlying the offense. The BIA also found that the petitioner, who engaged in sexual conduct which would “impair or debauch the morals of a victim under the age of 16 when he was more than 4 years older,” had committed a “specified offense against a minor.”  The 'charges' listed in the act are based on federal laws and states can have different laws- so USCIS makes its own determination on how the charge (state level) fits into the federal list. Its also up to you (the petitioner) to prove its not AWA and not the other way around. 

[Jeanne Adil 1,651]

agree with all that say "get a lawyer"  but make sure he/she is knowledgeable about the Adam Walsh act and immigration

 

some people i have seen get advise and because they do not like what the lawyer says ,  they go to a few more till one agrees to maybe do something that really can't be done

 

[SRNCR 6]

9 hours ago, geowrian said:

The point was that their discretion is within the letter of the law.

"Generally", as noted in the paragraphs you quoted regarding the definition of a sex offense, does not mean always. The specific circumstances involved can be considered.

The Court & DA's decision that the 4 year provision did not apply does not mean USCIS will determine the same since there is more than a 4 year gap. USCIS is not bound by their interpretation.

 

Additionally, that quote only applies to subsection I. The offenses may or may not fall under subsections C or H as well, in which it applies to anybody under age 18 regardless of age difference ("age-neutral" offenses).

Subsection H seems unlikely IMO, but I don't know the details of the circumstances nor how they will be interpreted.

Subsection C ("solicitation to engage in sexual conduct") sounds like it could be applied based on the initial charges (2nd Degree Sexual Assault of a Child + Child Enticement - Sexual Conduct). The fact that he was not actually charged with that does not preclude USCIS from determining that the offense actually falls under the AWA provisions noted (the ILRC noted this as well re: pleading to lesser offenses).

When it refers to 'B' and 'C' it refers to a separate subsection not the specified offences. Those separate subsections note circumstances where consensual sex with a minor is not an offense under the Act and notes how foreign convictions are treated. That's why they do not have discretion and are bound by the letter of the law. Also the original charges cannot be used because he was not 'convicted' of those crimes which is required. Please be sooo careful when giving out information like this. If I wasnt a lawyer myself you'd have me worried 😬.

 

7 hours ago, Damara said:

Unfortunately Geowrain is 100% correct. Look up Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014)- The BIA agreed with the USCIS that the provisions of the Adam Walsh Act suggest a circumstance specific inquiry into the age of the victim and the conduct underlying the offense. The BIA also found that the petitioner, who engaged in sexual conduct which would “impair or debauch the morals of a victim under the age of 16 when he was more than 4 years older,” had committed a “specified offense against a minor.”  The 'charges' listed in the act are based on federal laws and states can have different laws- so USCIS makes its own determination on how the charge (state level) fits into the federal list. Its also up to you (the petitioner) to prove its not AWA and not the other way around. 

In that matter there was no argument that he wasnt more than 4 years older than her so or that it fit under the AWA and that's why they had discretion on the matter. 

[SRNCR 6]

Guys unless you literally are either a lawyer and can give advice or have personally experienced this do you mind if we dont guess anymore on it until I talk to the lawyers? I do appreciate your help though!