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Adam Walsh Act Victory!

Sep 1, 2010 | Announcements, Uncategorized

Recently, our firm enjoyed a great victory for a client, a United States citizen, whose visa petition for the benefit of his wife had been denied by the U.S. Citizenship and Immigration Service (“USCIS”) pursuant to the Adam Walsh Act Child Protection and Safety Act of 2006 (“AWA”).

Click Here to read the redacted version of the decision issued by the Board of Immigration Appeals.  To preserve confidentiality, all identifying information has been redacted from the decision.

As a background, on July 27, 2006, President George W. Bush signed into law the AWA, which amended §§101(a), 204(a)(1)(A) and 204(a)(1)(B)(I) of the Immigration and Nationality Act (“INA”) to prohibit United States citizen or permanent resident petitioners convicted of a “specified offense against a minor” from filing a relative petition for any beneficiary, unless the Secretary of the Department of Homeland Security (“DHS”) determines in his or her “sole and unreviewable discretion” that there is no risk of harm to the beneficiary or derivative beneficiary.

Our client had been convicted of sexual abuse in the first degree in the State of New York.  After he served his time, he met and fell in love with a woman from another country, whom he later married.  He then sought to petition for her by filing a visa petition, so that she could apply to become a lawful permanent resident of the United States.  He filed his visa petition ten days before the AWA was enacted.  Thus, at the time he filed his visa petition, AWA did not exist to prevent him from petitioning for his wife.

Initially, the USCIS approved our client’s visa petition for his wife.  However, it later revoked the approval, claiming that he did not demonstrate that he posed no risk to his wife, as the AWA required him to show.  In its decision the USCIS mentioned the correct standard of proof our client was required to meet — “preponderance of the evidence” standard — but then denied the visa petition on the basis that he failed to demonstrate “beyond a reasonable doubt” that he posed no risk to his wife.  Our client, through his former lawyer, unsuccessfully appealed the denial.

He then came to our office and we explored the possibility of filing a case in a federal court, challenging the constitutionality of the “sole and unrewiewable” authority the AWA grants the Attorney General in deciding whether a U.S. citizen convicted of a specified offense against a minor poses a threat to his beneficiary spouse.  Before going to federal court, however, we decided to give the USCIS one more opportunity to corrects its mistake, so we filed a motion to reopen the denial of the visa petition.  We challenged the USCIS’ arbitrary decision in denying the visa petition, since it was unclear under which standard it actually analyzed the case.

After our detailed legal analysis of the case, an opposition by the Department of Homeland Security, and our reply to the opposition, the Board of Immigration Appeals agreed with us and sent the case back to the USCIS to clarify its position on which standard it used in our client’s case!  Of course, on a remand, it is entirely possible that after it clarifies which standard of proof it used, the USCIS will still proceed to deny the visa petition on the basis that our client did not demonstrate that he posed no risk to his spouse.

The point is, our client and his family were ready to give up when they realized how difficult it would be to win such a case, especially when the ultimate decision would be “unreviewable” by an appellate body.  However, winning this motion to reopen opens a new door for our client and he may prevail on his visa petition or can eventually take his case to federal court.  Needless to say, our client and his family were very happy!

As we always tell our clients, “you never know what will happen unless you try!”

Ruchi Thaker