Cite as 26 I&N Dec. 314 (BIA 2014) Interim Decision #3802
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Matter of Eunice Villaluna JACKSON, Respondent
Matter of Geruen Hewlett Andreu Villaluna ERANDIO,
Respondent
Decided May 20, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Section 402(a)(2) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
No. 109-248, 120 Stat. 587, 622, which bars the approval of a family-based visa petition
filed by a petitioner who has been convicted of a “specified offense against a minor” and
has not shown that he poses “no risk” to the beneficiary, does not have an impermissible
retroactive effect when applied to convictions that occurred before its enactment.
FOR RESPONDENT: Stephen W. Manning, Esquire, Portland, Oregon
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah C. Schreck, Assistant
Chief Counsel
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER
and MANN, Board Members.
MANN, Board Member:
In a decision dated January 10, 2012, an Immigration Judge terminated
the removal proceedings against the respondents. 1
The Department of
Homeland Security (“DHS”) has appealed from that decision. The appeal
will be sustained, the proceedings will be reinstated, and the record will be
remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent entered the United States on May 9, 2007, as a K-1
nonimmigrant fiancée of a United States citizen. The respondent’s husband,
Mr. Jackson, had filed a Petition for Alien Fiancé(e) (Form I-129F) on
behalf of the respondent, which was approved by the United States
1 The respondents are a mother and child, who are natives and citizens of the
Philippines. All references in this decision to “the respondent” pertain to the mother,
who is the lead respondent, unless otherwise specified.Cite as 26 I&N Dec. 314 (BIA 2014) Interim Decision #3802
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Citizenship and Immigration Services (“USCIS”) on October 5, 2006. The
respondent and Mr. Jackson married on June 13, 2007. Based on this
marriage, the respondents filed applications for adjustment of status on
July 15, 2007, to be accorded immigrant status as the immediate relative
spouse and stepchild of a United States citizen.
On May 22, 2009, the USCIS Field Office Director (“Director”) sent
the respondents a request for evidence and notice of intent to deny
the applications for adjustment based on Mr. Jackson’s May 17, 1979,
conviction for sexual abuse in the first degree in violation of section
163.425 of the Oregon Revised Statutes. Because the offense was
committed against a child under the age of 12, it appeared to be a “specified
offense against a minor,” which would bar Mr. Jackson from having
a family-based petition approved pursuant to the Adam Walsh Child
Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587
(“Adam Walsh Act”).
The notice of intent to deny advised the respondent that she could
present evidence to establish either that Mr. Jackson had not been convicted
of the offense or that the offense did not constitute a “specified offense
against a minor” within the meaning of section 402(a)(2) of the Adam
Walsh Act, 120 Stat. at 622. Towards that end, the respondent was advised
to submit certified copies of the record of conviction, including police
reports, charging documents, transcripts, and probation documents, and any
news accounts concerning the conviction.
The notice of intent to deny further advised that if Mr. Jackson
was convicted of a “specified offense against a minor,” the respondent
must establish that he poses “no risk” to the safety and well-being of the
respondents. To establish that he poses no such risk, the respondent
could submit certified records indicating Mr. Jackson’s successful
completion of counseling or rehabilitation programs; certified evaluations
by psychiatrists, psychologists, or clinical social workers that attest to
the degree of his rehabilitation or behavior modification; and evidence
demonstrating his good and exemplary service to the community or in the
uniformed services following the conviction.
In a decision dated October 22, 2010, the Director found that
Mr. Jackson had been convicted of a “specified offense against a minor.”
Further, the Director acknowledged the evidence submitted to show that
Mr. Jackson poses no risk to the respondents but determined that it did not
meet the required burden of proof. The Director therefore concluded that
Mr. Jackson was ineligible to have the visa petition approved on October 5,
2006. Consequently, the nonimmigrant K visas with which the respondents
entered the United States were not valid. Because the respondents wereCite as 26 I&N Dec. 314 (BIA 2014) Interim Decision #3802
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inadmissible as aliens who did not possess valid visas, their applications for
adjustment of status were denied.
Following the denial of their adjustment applications, the respondents
were placed in removal proceedings and were charged under
section 237(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(1)(A) (2006), on the ground that they were inadmissible at the
time of entry because their nonimmigrant visas were invalid. In removal
proceedings before the Immigration Judge, the respondents moved to
terminate, arguing that the Adam Walsh Act should not be applied to
Mr. Jackson’s 1979 conviction. The Immigration Judge concluded that
applying the Adam Walsh Act to a conviction that occurred prior to its
enactment was an impermissible retroactive application of the statute and
granted the respondents’ motion to terminate the proceedings.
II. ADAM WALSH ACT
The Adam Walsh Act was enacted on July 27, 2006. Its stated purpose
is “[t]o protect children from sexual exploitation and violent crime, to
prevent child abuse and child pornography, to promote Internet safety, and
to honor the memory of Adam Walsh and other child crime victims.”
Adam Walsh Act, 120 Stat. at 587.
The issue raised in this appeal involves title IV, “Immigration Law
Reforms to Prevent Sex Offenders from Abusing Children.” Specifically,
section 402(a)(2) of the Adam Walsh Act, 120 Stat. at 622, amended
section 204(a)(1) of the Act, 8 U.S.C. § 1154(a)(1) (2006), by adding
a provision barring a United States citizen who has been convicted of
a “specified offense against a minor” from having a family-based visa
petition approved unless the Secretary of Homeland Security determines
that the citizen poses “no risk” to the alien beneficiary. Section
204(a)(1)(A)(viii)(I) of the Act.2
Section 402(b) of the Adam Walsh Act,
120 Stat. at 623, amended section 101(a)(15)(K) of the Act, 8 U.S.C.
§ 1101(a)(15)(K) (2006), to preclude the fiancé(e) of a citizen described in
section 204(a)(1)(A)(viii)(I) of the Act and any minor child of the alien
from acquiring K nonimmigrant status.
2
Section 204(a)(1)(B)(i) of the Act contains a similar prohibition relating to lawful
permanent resident petitioners.Cite as 26 I&N Dec. 314 (BIA 2014) Interim Decision #3802
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III. ISSUE
The issue on appeal is whether the Adam Walsh Act can be applied
to convictions occurring prior to the date of its enactment to bar
a United States citizen from having a family-based visa petition approved.
IV. ANALYSIS
The respondent does not contest that Mr. Jackson was convicted of
a “specified offense against a minor” but notes that he was convicted of the
crime in 1979, before the enactment of the Adam Walsh Act on July 27,
2006. She contends that the Adam Walsh Act should only be applied
prospectively to convictions occurring after the enactment date and that
applying the law to his 1979 conviction impermissibly attaches a new
disability to the conviction. The DHS argues that the Adam Walsh Act is
applicable to this case because the fiancée visa petition filed on behalf of
the respondent was pending at the time the Adam Walsh Act was enacted.
Title IV of the Adam Walsh Act has no explicit effective date.
Consequently, we find that it was effective on the date of its enactment.
See Johnson v. United States, 529 U.S. 694, 702 (2000) (stating that where
a statute has no explicit effective date, it takes effect on the date of its
enactment absent a clear indication by Congress to the contrary); see also
Matter of Soriano, 21 I&N Dec. 516, 519 (BIA 1996) (noting that the lack
of an effective date for legislation indicates that the law should be effective
on the date of passage).
Legislation is generally presumed to have prospective application unless
Congress has unambiguously instructed that it be applied retroactively.
See Vartelas v. Holder, 132 S. Ct. 1479, 1486−89 (2012); INS v. St. Cyr,
533 U.S. 289, 315−17 (2001); Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U.S. 939, 946 (1997); Landgraf v. USI Film Products, 511
U.S. 244, 265, 270−73, 280 (1994). In the absence of a contrary indication,
a statute will generally not be construed to have retroactive application.
See, e.g., Landgraf v. USI Film Products, 511 U.S. at 280.
We recognize that Congress did not expressly indicate in the Adam
Walsh Act that either the statute in its entirety or the provisions pertinent
here should be applied to offenses or convictions occurring prior to its
enactment. However, in Vartelas v. Holder, 132 S. Ct. at 1489−90 & n.7,
the Supreme Court recognized that where a statute addresses dangers that
arise after its enactment, it does not operate “retroactively.” The Court
cited as examples laws that prohibit persons convicted of a sex crime
against a victim under 16 years of age from working in jobs involving
frequent contact with minors and laws that prohibit convicted felons orCite as 26 I&N Dec. 314 (BIA 2014) Interim Decision #3802
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persons who have been committed to a mental institution from purchasing
firearms. Id.; see also, e.g., 18 U.S.C. § 922(g)(1), (4) (2012); Cal. Penal
Code Ann. § 290.95(c) (West Supp. 2014). According to the Court,
“[T]hese statutes do not operate retroactively. Rather, they address dangers
that arise postenactment . . . .” Vartelas v. Holder, 132 S. Ct. at 1489 n.7;
see also, e.g., District of Columbia v. Heller, 554 U.S. 570, 626 (2008);
United States v. Pfeifer, 371 F.3d 430, 436 (8th Cir. 2004); United States
v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001); United States v. Mitchell,
209 F.3d 319, 322−23 (4th Cir. 2000); United States v. Brady, 26 F.3d 282,
290−91 (2d Cir. 1994) (upholding a conviction under 18 U.S.C. § 922(g),
even where the predicate felony conviction occurred decades before
enactment of the statute).
The provisions of title IV of the Adam Walsh Act are similar to those
statutes in that they address dangers that arise after the statute was enacted.
“The critical purpose of section 402 of the Adam Walsh Act is to ensure
that an intended alien beneficiary is not placed at risk of harm from the
person seeking to facilitate the alien’s immigration to the United States.”
Memorandum from Michael Aytes, Assoc. Dir., Domestic Operations, to
USCIS officials, at 5 (Feb. 8, 2007), available at http://www.uscis.gov/sites
/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwals
hact020807.pdf. A petitioner who has been convicted of a “specified
offense against a minor” poses a present danger as a potential sexual
predator. Because the Adam Walsh Act addresses the potential for future
harm posed by such sexual predators to the beneficiaries of family-based
visa petitions, we find that the application of its provisions to convictions
that occurred before its enactment does not have an impermissible
retroactive effect.
In this case, the United States citizen petitioner was found to have been
ineligible to have his family-based visa petition approved because of his
May 17, 1979, conviction. Consequently, the respondents’ nonimmigrant
visas were not valid, and they were inadmissible to the United States at the
time of entry. We therefore conclude that the Immigration Judge erred in
terminating the removal proceedings. Accordingly, the DHS’s appeal will
be sustained, and the record will be remanded for further proceedings.
ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings against the respondents are reinstated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and for
the entry of a new decision.