Adam Walsh Act question

[SRNCR 6]

Hi all, sorry this is a long read and please note that I have reached out to a lawyer but I can't really afford one right now as I'm not working and awaiting my EAD so just wanted to see if anyone had any experiences with something like ours. I am adjusting my status and only realized about the Adam Walsh Act provisions pretty late into our process which is why I didn't get a lawyer before. Here is my question:

 

According to Sec. 204. [8 U.S.C. 1154]: 

 

(a) (1) (A) (i) Except as provided in clause (viii), any citizen of the United States claiming that an alien is entitled to classification by reason of a relationship described in paragraph (1), (3), or (4) of section  203(a) or to an immediate relative status under section  201(b)(2)(A)(i) may file a petition with the Attorney General for such classification. 

 

(viii) (I) Clause (i) shall not apply to a citizen of the United States who has been convicted of a specified offense against a minor, unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed. 

 

(II) For purposes of subclause (I), the term “specified offense against a minor” is defined as in section 111 of the Adam Walsh Child Protection and Safety Act of 2006. 

 

The section applies to the spouse of a US Citizen under section 201(b)(2)(A)(i). 

 

Per section 111 of the Adam Walsh Child Protection and Safety Act of 2006, a "sex offense” means: 

 

“(A) Generally.--Except as limited by subparagraph (B) or (C), the term ``sex offense'' means-- 

(ii) a criminal offense that is a specified offense against a minor;" 

 

Subparagraph (c) states:

 

“(C) Offenses involving consensual sexual conduct.-- An offense involving consensual sexual conduct is not a sex offense for the purposes of this title if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim." (emphasis added)

 

The section then goes on to expand the definition of a specified offence against a minor at (7).  My husband is likely to fit into one of the last 2 categories under (7).

 

My husband was charged with “Exposing Genitals - Child as Actor/Close Age of Actor and Child” which is a class A Misdemeanor. At the time, my husband was 18 and the person involved was 14. The initial charges were “2nd Degree Sexual Assault of Child” and “Child Enticement- Sexual Conduct”, however, the DA dropped the charges to the Misdemeanor because the person involved went to Court and testified that my husband was extremely intoxicated at a party and that she had initiated all sexual contact making it consensual.  

 

As you can see below, in order to have fit the criteria to be charged with the Misdemeanor, my husband had to be no more than 4 years older than the child, as well as not be more than 19 years old at the time of the offense. The statute states: 

 

“Whoever, for purposes of sexual arousal or sexual gratification, causes a child to expose genitals, pubic area, or intimate parts or exposes genitals, pubic area, or intimate parts to a child is guilty of the following: 

 

(a) Except as provided in par. (b), a Class I felony. 

(b) A Class A misdemeanor if any of the following applies: 

1. The actor is a child when the violation occurs. 

2. At the time of the violation, the actor had not attained the age of 19 years and was not more than 4 years older than the child.” 

 

From this the case seems open and shut- I.e. it does not fit under the Adam Walsh Act definition because they were “not more than 4 years” apart in age. HOWEVER, his birthday is late 1991 and her birthday is early 1996, meaning technically they are 4 years and 4 months apart in age.  

 

It is clear that the Court and the DA agreed or interpreted that my husband was not more than 4 years older than the child, as otherwise he wouldn't have been able to accept that deal and plead guilty to it. I’m wondering if they are likely to apply a strict application of the “4 years” and whether they've done this before? I feel that it would be an error of law to make a finding adverse to that which was found in the actual case.  

 

My i-130 was lodged in August 2018 and i-485 was lodged in November 2018. My case for i-130 went the to Potomac Service Center and my i-485 is with the NBC in Missouri. To date, our file has not been transferred to the Vermont Service Center. I don't know if that's good, bad or indifferent though. Your help is appreciated.  

Edited February 10, 2019 by SRNCR
links included

[Jeanne Adil 1,651]

he is the USC?

and this made it thru the 130 process and was disclosed on the application?

the AOS is about the immigrant

[SRNCR 6]

1 minute ago, adil-rafa said:

he is the USC?

and this made it thru the 130 process and was disclosed on the application?

the AOS is about the immigrant

He is the USC, I am the beneficiary/ applicant for the AOS. 

 

The i-130 has not yet been adjudicated and it doesn't require disclosure of the USC's criminal history. I was originally called for biometrics on December 5 but USCIS was closed for mourning and then I had to reschedule another time in December as I got scheduled at the wrong office so I went for biometrics on 18 January. In all that time they have also not scheduled him for biometrics. 

[geowrian 22,335]

What visa are you adjusting from? This is posted in the K-1 -> IMBRA forum. This issue is not part of IMBRA, and if you are doing AOS from a K-1 then the I-129F would have disclosed the crime already and presumably you would already know if it fell under AWA or not. And no I-130 would be needed.

If you are doing AOS from another visa type, I can move the thread for you.

 

Anytime there is even a hint of AWA being involved, it's time to lawyer up IMO. At the very least, get a free consultation to see if it is likely to fall under AWA, and the likelihood of being able to challenge a positive finding in case USCIS says it does.

Actually fighting for a waiver under AWA is a much, much steeper challenge. Over 99% of the waivers are denied, and it can go on for years.

Edited February 10, 2019 by geowrian

[SRNCR 6]

2 minutes ago, geowrian said:

What visa are you adjusting from? This is posted in the K-1 -> IMBRA forum. This issue is not part of IMBRA, and if you are doing AOS from a K-1 then the I-129F would have disclosed the crime already and presumably you would already know if it fell under AWA or not. And no I-130 would be needed.

If you are doing AOS from another visa type, I can move the thread for you.

 

Anytime there is even a hint of AWA being involved, it's time to lawyer up IMO. At the very least, get a free consultation to see if it is likely to fall under AWA, and the likelihood of being able to challenge a positive finding in case USCIS says it does.

Actually fighting for a waiver under AWA is a much, much steeper challenge. Over 99% of the waivers are denied, and it can go on for years.

sorry I just posted it in this thread because I had previously seen someone else's move here. I was initially doing CR1 but then things changed the last time I visited so I came on the VWP. I am doing AOS.

 

Yes I've seen the likelihood of them being denied if USCIS decides it is an AWA issue. I'm just wondering if they would have said or done something about that by now and/ or if anyone has had a situation like this with the closeness in age.

[Lemonslice 4,553]

Would your husband be allowed to move to your country? If so, please do some research and work on an alternative way to live together.  If there's no AWA then you'll be ok, otherwise you'll be ready to bring him to you...

[SRNCR 6]

Just now, Lemonslice said:

Would your husband be allowed to move to your country? If so, please do some research and work on an alternative way to live together.  If there's no AWA then you'll be ok, otherwise you'll be ready to bring him to you...

Not at this stage, Australia has a strict character requirement for immigrants and he would not meet it at this stage. It is nearly 10 years since the offence and I think he would be able to have it expunged from his record later this year. What is USCIS's position on expunging? 

[Boiler 43,429]

Expunging make no difference to Immigration issues.

[Lemonslice 4,553]

5 minutes ago, SRNCR said:

Not at this stage, Australia has a strict character requirement for immigrants and he would not meet it at this stage. It is nearly 10 years since the offence and I think he would be able to have it expunged from his record later this year. What is USCIS's position on expunging? 

No expunging for USCIS...

[SRNCR 6]

okay, thank you both. Hopefully USCIS does not apply a strict interpretation of the legislation though honestly I imagine it would be reviewable since his actual offense carried a requirement of being not more than 4 years older than the person. 

[geowrian 22,335]

* Moved from K-1 -> IMBRA to AOS from Work, Student, and Tourist Visas forum *

Edited February 10, 2019 by geowrian

[JFH 12,189]

Which state was this? I’m surprised that a 14-year-old was deemed to have consented when, in most states, she cannot legally consent at that age, no matter what she says. Where we live, even if a 14-year-old strips off all her clothes and climbs on top of you, she is not consenting because she cannot. 

Edited February 10, 2019 by JFH

[Jeanne Adil 1,651]

If he has to register under any of the adam walsh act , parts not possible to expunge

and i would worry that he did not disclose to you sooner

[SRNCR 6]

2 minutes ago, JFH said:

Which state was this? I’m surprised that a 14-year-old was deemed to have consented when, in most states, she cannot legally consent at that age, no matter what she says. Where we live, even if a 14-year-old strips off all her clothes and climbs on top of you, she is not consenting because she cannot. 

He was charged in Wisconsin. They can still consent when they are underage, which is why most states have the difference between rape and other charges. 

 

4 minutes ago, adil-rafa said:

If he has to register under any of the adam walsh act , parts not possible to expunge

and i would worry that he did not disclose to you sooner

He does not have to register under the Adam Walsh Act. He was never assigned an offender level. He does have to keep his details updated with the police but is not listed on any public register. 

 

He told me as soon as we met and the full details, I just didn't know about the AWA and it's effects on immigration

[Hypnos 6,576]

It could be an issue. 

 

If he, as the petitioner, receives a biometrics appointment letter from USCIS then you will know the problem has hit their radar. They will name check him as part of the I-130 adjudication process. 

 

I would expect it to be more likely then not that that will happen, and at that point you will need a lawyer. And when you're able to do so you should look into a consultation with a reputable immigration attorney that is well-versed in the AWA asap, even before they biometrics him, to try and head off the issue and discuss your options. 

Edited February 10, 2019 by Hypnos