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Matter of Iris INTROCASO, Beneficiary of a visa petition
filed by Russell Leopold Introcaso, Petitioner
Decided May 20, 2014
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In a visa petition case involving the Adam Walsh Child Protection and Safety Act of
2006, Pub. L. No. 109-248, 120 Stat. 587, the petitioner bears the burden of proving
that he has not been convicted of a “specified offense against a minor.”
(2) In assessing whether a petitioner has been convicted of a “specified offense against a
minor,” adjudicators may apply the “circumstance-specific” approach, which permits
an inquiry into the facts and conduct underlying the conviction to determine if it is for
a disqualifying offense.
FOR PETITIONER: Harlan York, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Marc R. Generazio,
Associate Counsel
BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER
and MANN, Board Members.
GUENDELSBERGER, Board Member:
In a decision dated January 3, 2011, the Service Center Director
(“Director”) denied the Petition for Alien Relative (Form I-130) filed by the
United States citizen petitioner on behalf of the beneficiary as his spouse.
The Director concluded that the petitioner is ineligible to have a visa
petition approved under the Adam Walsh Child Protection and Safety
Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act”). The
petitioner has appealed from that decision. The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The petitioner and the beneficiary were married on August 15, 2008.
On January 25, 2009, the petitioner filed a visa petition to accord his wife
immediate relative status under section 201(b)(2)(A)(i) of the Immigration
and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006). The United States
Citizenship and Immigration Services (“USCIS”) sent a notice of intent to
deny the visa petition to the petitioner on May 6, 2009, notifying him of hisCite as 26 I&N Dec. 304 (BIA 2014) Interim Decision #3801
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apparent ineligibility to petition for his wife. The petitioner’s ineligibility
is based on his conviction for a “specified offense against a minor,” as that
term is defined in the Adam Walsh Act. Specifically, on March 22, 1993,
the petitioner was convicted of endangering the welfare of children in
violation of section 2C:24-4a of the New Jersey Statutes Annotated. He
was also convicted of criminal sexual contact in New Jersey on March 23,
2009.
The USCIS requested that the petitioner submit certified copies
of police reports, charging documents, trial transcripts, judgments,
presentence investigation reports, sentencing documents, probation
documents, and any news accounts concerning the convictions. He was
also asked to submit evidence concerning any other criminal, violent, or
abusive behavior, incidents, arrests, and convictions.
The USCIS also indicated that if the petitioner was determined to have
been convicted of a “specified offense against a minor,” he must then
establish that he poses “no risk” to the safety and well-being of the
beneficiary of the visa petition. To prove that he poses “no risk” to the
beneficiary, the petitioner could submit certified records reflecting his
successful completion of counseling or rehabilitation programs; certified
evaluations by psychiatrists, clinical 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.
The petitioner responded with evidence establishing that the victim of
his 2009 crime was not a minor. Thus, that offense was not a “specified
offense against a minor.” The petitioner also submitted the record of
conviction and sentencing documents for his 1993 conviction and argued
that it was not for a “specified offense against a minor.”
After considering the evidence, the Director concluded that the
petitioner did not demonstrate that the 1993 conviction for endangering the
welfare of children fell outside the definition of a “specified offense against
a minor” under the Adam Walsh Act. The Director also concluded that the
petitioner did not establish that he poses “no risk” to the beneficiary. The
petitioner challenges these determinations on appeal.
II. ADAM WALSH ACT
The stated purpose of the Adam Walsh Act 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 issues raised in this appeal involve title IV, “Immigration Law ReformsCite as 26 I&N Dec. 304 (BIA 2014) Interim Decision #3801
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to Prevent Sex Offenders from Abusing Children.”1
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, in the Secretary’s sole and
unreviewable discretion, determines that the citizen poses “no risk” to the
alien beneficiary. Section 204(a)(1)(A)(viii)(I) of the Act.2
Title I of the Adam Walsh Act, the “Sex Offender Registration
and Notification Act” (“SORNA”), defines a “specified offense against
a minor” to mean “an offense against a minor that involves any of the
following”:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false
imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18, United States Code.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to
facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
Adam Walsh Act § 111(7), 120 Stat. at 592 (codified as amended at
42 U.S.C. § 16911(7) (2006)) (emphases added). A “minor” is defined as
“an individual who has not attained the age of 18 years.” 42 U.S.C.
§ 16911(14). The offenses included in the definition of a “specified offense
against a minor” are a subset of those defined in 42 U.S.C. § 16911(5)(A)
as a “sex offense.”3 Under § 16911(5)(C), an offense involving consensual
1 Because title IV of the Adam Walsh Act does not include a specific effective date, the
date of its enactment, July 27, 2006, is the effective date. See 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).
2
Section 204(a)(1)(B)(i) of the Act contains a similar prohibition relating to lawful
permanent resident petitioners.
3 A “sex offense” is defined in 42 U.S.C. § 16911(5)(A) as follows:
(i) a criminal offense that has an element involving a sexual act or sexual contact
with another;
(ii) a criminal offense that is a specified offense against a minor;
(continued . . .)Cite as 26 I&N Dec. 304 (BIA 2014) Interim Decision #3801
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sexual conduct is not a “sex offense” if the victim was at least 13 years old
and the offender was not more than 4 years older than the victim.
III. ANALYSIS
A. Burden of Proof
The petitioner has the burden of establishing eligibility to file a visa
petition. See 8 C.F.R. § 103.2(b)(1) (2013) (providing that “[a]n applicant
or petitioner must establish that he or she is eligible for the requested
benefit at the time of filing the benefit request”); see also Matter of
Brantigan, 11 I&N Dec. 493, 495 (BIA 1966). The Adam Walsh Act does
not shift that burden to the Government. Just as the petitioner must
establish that he is a United States citizen or lawful permanent resident and
has the requisite familial relationship with the beneficiary, the petitioner
must also prove that he has not been convicted of a “specified offense
against a minor” or that, despite such a conviction, there is “no risk” to any
primary or derivative beneficiary.
In order for the Director to determine whether the petitioner has
established that his offense is not a “specified offense against a minor,” the
petitioner must submit the necessary conviction documents or establish that
they are unavailable or cannot reasonably be obtained. Cf. Matter of
Almanza, 24 I&N Dec. 771, 775 (BIA 2009) (placing the burden of proof
on an applicant for relief from removal to prove that he does not have
a disqualifying conviction).
B. Determining Whether a Crime is a
“Specified Offense Against a Minor”
The petitioner argues that the categorical approach, which is applied
in sentencing cases and removal proceedings, should be applied in
determining whether a conviction is for a “specified offense against
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(iii) a Federal offense (including an offense prosecuted under section 1152 or
1153 of title 18) under section 1591, or chapter 109A, 110 (other than section 2257,
2257A, or 2258), or 117, of title 18;
(iv) a military offense specified by the Secretary of Defense under section
115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i)
through (iv).
(Emphasis added.)Cite as 26 I&N Dec. 304 (BIA 2014) Interim Decision #3801
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a minor.” The categorical approach focuses on the elements of the offense
in assessing whether a crime falls within the parameters of a generic
sentencing offense or a ground for removal. See Taylor v. United States,
495 U.S. 575, 602 (1990); see also Begay v. United States, 553 U.S. 137,
141 (2008); Shepard v. United States, 544 U.S. 13, 20−26 (2005). Under
the categorical approach, the elements of the statute of conviction must be
the same as, or narrower than, those of the generic offense in order to find
a categorical match. Taylor, 495 U.S. at 599. To find that a State statute
“creates a crime outside the generic definition of a listed crime” in
a Federal statute, there must be “a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls
outside the generic definition of a crime.” Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007).
The USCIS argues that the purpose, structure, and language of the
Adam Walsh Act permit an inquiry into the facts and conduct underlying
the conviction in determining whether a crime fits within the ambit of
a “specified offense against a minor.” In support of its argument, the
USCIS relies on Nijhawan v. Holder, 557 U.S. 29 (2009), and on two
circuit court decisions that applied provisions of the Adam Walsh Act to
find that a crime was a “sex offense” in the context of requiring registration
as a sex offender in the sentencing phase of a criminal proceeding.
United States v. Dodge, 597 F.3d 1347, 1354−56 (11th Cir. 2010);
United States v. Mi Kyung Byun, 539 F.3d 982, 988−90 (9th Cir. 2008).
In Nijhawan, the Supreme Court addressed section 101(a)(43)(M)(i) of
the Act, 8 U.S.C. § 1101(a)(43)(M)(i) (2006), which defines the term
“aggravated felony” to include an offense that “involves fraud or deceit in
which the loss to the victim or victims exceeds $10,000.” The Court held
that while the categorical approach applied to determine whether the
offense of conviction matched the elements of generic fraud, the “loss to
the victim” requirement was to be analyzed under a “circumstance-specific”
approach, which permits consideration of the facts and circumstances
underlying the conviction. See Nijhawan v. Holder, 557 U.S. at 34−36.
Because few, if any, Federal or State statutes include loss as an element of
a fraud offense, the Court reasoned that Congress must have intended that
a circumstance-specific inquiry could be applied to determine whether the
loss was over $10,000. Id. at 39. Under this approach, courts may look at
the documents in the record of conviction and, if they are inconclusive, to
other reliable documents or evidence. 4
The Court found that a party
4 The record of conviction includes the charging document (indictment, complaint, or
information), jury instructions, written plea agreement, transcript of plea colloquy,
judgment of conviction, jury verdict, a comparable judicial record, and any explicit
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stipulation and restitution order in a sentencing document could be
consulted in determining the amount of loss. Id. at 41−43.
While the categorical approach provides a useful starting point for
assessing whether an offense is a “specified offense against a minor” under
the Adam Walsh Act, as discussed below, certain provisions of the Adam
Walsh Act contain circumstance-specific language that invites inquiry into
the underlying facts or conduct of a conviction to determine whether it is
for a disqualifying offense. An initial question is whether the age of the
victim is a circumstance-specific requirement, rather than a required
element of the offense.
In Nijhawan, 557 U.S. at 37, the Court included “sexual abuse of a
minor” as an example of an aggravated felony offense for which the
categorical approach is appropriate, citing cases holding that the age of the
victim had to be an element of a crime for it to be a “sexual abuse of a
minor” offense. See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147,
1152 (9th Cir. 2008) (en banc); Singh v. Ashcroft, 383 F.3d 144, 164 (3d
Cir. 2004). The Court also noted, however, other aggravated felony
offenses whose language “almost certainly does not refer to generic crimes
but refers to specific circumstances.” Nijhawan, 557 U.S. at 37; see also
Bianco v. Holder, 624 F.3d 265, 270−73 (5th Cir. 2010) (relying on
Nijhawan to find that in determining removability on the basis of a crime of
domestic violence, the Board could properly look outside the record of
conviction to identify the victim as a spouse, even though the statute of
conviction did not include as an element the domestic relationship of the
victim to the defendant).
We find that the language and structure of the Adam Walsh Act invite
a circumstance-specific inquiry into both the age of the victim and the
conduct underlying the offense. In reaching our conclusion, we find it
significant that the first five of the listed offenses in the definition of
a “specified offense against a minor”―kidnapping, false imprisonment,
solicitation to engage in sexual conduct, use in a sexual performance, and
solicitation to practice prostitution―are not generally limited to offenses
against minors. 42 U.S.C. § 16911(7)(A)−(E). In the case of a kidnapping
conviction, for example, the question whether the offense was “against
a minor” under the Adam Walsh Act must necessarily be determined by
reference to the record of conviction or, if the conviction record is
inconclusive, by reference to reliable evidence outside the record. The last
two crimes in the definition―“criminal sexual conduct involving a minor”
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factual finding by the trial judge to which the defendant assented. See Shepard
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and “conduct that by its nature is a sex offense against a minor”―also
indicate that the underlying conduct, as well as the minority of the victim,
should be determined through a “circumstance-specific” inquiry, rather
than by applying the categorical approach. 42 U.S.C. § 16911(7)(H)−(I)
(emphases added).
Addressing whether importation of an alien for purposes of prostitution
was a “specified offense against a minor,” the United States Court of
Appeals for the Ninth Circuit emphasized that the statute’s inclusion of the
word “conduct” suggested that “for the category of ‘specified offense[s]
against a minor,’ it is the underlying ‘conduct,’ not the elements of the
crime of conviction, that matter.” United States v. Mi Kyung Byun, 539
F.3d at 992 (alteration in original). The court also noted that the first
definition of a “sex offense” refers to “a criminal offense that has an
element involving a sexual act or sexual contact with another,”
§ 16911(5)(A)(i) (emphasis added), but that a “specified offense against a
minor” under § 16911(5)(A)(ii) contains no reference to an “element” of a
crime. Id. at 991−92.
Relying on the legislative history, purpose, and structure of the Adam
Walsh Act, the court found that the “specified offense against a minor”
definition necessarily invites an inquiry into the facts underlying the
conviction to ascertain the age of the victim. Id. at 992−94. The court
therefore rejected arguments that a strict categorical approach should be
applied to preclude examination of the underlying facts. We agree with the
Ninth Circuit that Congress intended that such facts could be considered in
determining whether a conviction for a generic sexual offense involved
a “minor” within the meaning of the Adam Walsh Act. Although Byun was
decided prior to Nijhawan, we find its reasoning to be consistent with the
circumstance-specific approach described by the Supreme Court.
The Eleventh Circuit relied on the Ninth Circuit’s reasoning in deciding
whether a Federal conviction for transferring obscene matter over the
internet required registration as a sex offender under the SORNA.
United States v. Dodge, 597 F.3d at 1353−56. Emphasizing the “general
terms” and “broad[]” scope of the offenses described in 42 U.S.C.
§§ 16911(7)(H) and (I), the court concluded that the “SORNA permits
examination of the defendant’s underlying conduct—and not just the
elements of the conviction statute—in determining what constitutes a
‘specified offense against a minor.’” Id. at 1354−55. The court therefore
considered the plea colloquy and determined that the conduct underlying
the conviction showed that the offense fit within the definition of a
“specified offense against a minor” in §§ 16911(7)(H) and (I). Id. at 1355.Cite as 26 I&N Dec. 304 (BIA 2014) Interim Decision #3801
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C. Application to the Petitioner
We now turn to the petitioner’s record of conviction to review whether
he has been convicted of a “specified offense against a minor.” We begin
by examining the terms of the statute of conviction to identify the elements
of the offense and the part of the “specified offense against a minor”
definition under which the petitioner’s crime may fit. The petitioner was
convicted in 1993 of endangering the welfare of children under section
2C:24-4(a) of the New Jersey Statutes Annotated, which, at the time the
offenses were committed in 1990, provided in relevant part:
Any person having a legal duty for the care of a child or who has assumed
responsibility for the care of a child, who engages in sexual conduct which would
impair or debauch the morals of the child, or who causes the child harm that would
make the child an abused or neglected child . . . is guilty of a crime of the third
degree. Any other person who engages in conduct or who causes harm as
described in this subsection to a child under the age of 16 is guilty of a crime of the
fourth degree.
The first sentence of this statute is divisible into two distinct sets of
offenses: (1) sexual conduct that would impair or debauch the morals of
a child and (2) harm amounting to abuse or neglect. The record of
conviction indicates that the petitioner was convicted under two counts of
an indictment charging him with “engag[ing] in sexual conduct which
would impair or debauch the morals of a child under the age of 16” in
violation of section 2C:24-4(a). It therefore establishes that the petitioner
was convicted under the “sexual conduct” portion of the statute. See
Johnson v. United States, 559 U.S. 133, 144 (2010) (stating that where
a statute is divisible, the record of conviction may be consulted “to
determine which statutory phrase was the basis for the conviction”).
We next consider whether the offense was “against a minor” and
whether it is one of the “specified offenses” listed in 42 U.S.C. § 16911(7).
There is no dispute that the offense in this case involved a minor because
the portion of the New Jersey statute under which the petitioner was
convicted includes an element requiring that the victim be a child.
However, under the Adam Walsh Act, an offense involving consensual
sexual conduct is not a “sex offense” if the victim was at least 13 years old
and the offender was not more than 4 years older than the victim.
42 U.S.C. § 16911(5)(C). Because offenses included in the definition of
a “specified offense against a minor” are a subset of those included in the
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The record in this case establishes the requisite age difference. Count
13 of the indictment specifies the birth date of the victim and states that she
was under 16 at the time of the offense. The petitioner’s birth date is
indicated in a presentence investigation report. These documents show that
the petitioner was more than 4 years older than the victim, and the
petitioner has produced no evidence to the contrary.
Having determined that the petitioner’s offense involved a minor, we
next address whether it fits within one of the nine categories listed in the
definition of a “specified offense against a minor.” We find that the
offense―engaging in sexual conduct which would impair or debauch the
morals of a child under the age of 16―falls within the catchall provision of
§ 16911(7)(I), which refers to “[a]ny conduct that by its nature is a sex
offense against a minor.” See United States v. Dodge, 597 F.3d at 1355
(“[W]e reject the argument that the phrase ‘against a minor’ requires
contact with or opposition by the minor. . . . In our view, the word
‘against’ in the phrase ‘against a minor’ simply means the conduct as
applied to the age of the victim (i.e., ‘against a minor’ as opposed to
‘against an adult’).”).
We also find that the offense clearly fits under § 16911(7)(H), which
includes “[c]riminal sexual conduct involving a minor.” The petitioner
argues that his offense, as charged, does not require sexual contact or
a sexual act with the child. However, the reference to “criminal sexual
conduct” in § 16911(7)(H) covers not just offenses involving sexual contact
or sexual coercion but any sexual “conduct” involving a minor. In this
regard, “sexual conduct which would impair or debauch the morals of [a]
child” is necessarily sexual conduct involving a minor. See Stubbs v. Att’y
Gen. of U.S., 452 F.3d 251, 255−56 (3d Cir. 2006) (finding that
“engag[ing] in sexual conduct which would impair or debauch the morals
of a child under the age of 16” under New Jersey law did not require sexual
contact with the child and covered a broader range of conduct than the
aggravated felony “sexual abuse of a minor” provision in section
101(a)(43)(A) of the Act).
The petitioner has not provided an example of a conviction under the
“sexual conduct” portion of section 2C:24-4(a) that is outside the scope of
the “specified offense against a minor” definition at either § 16911(7)(H) or
(I). See Gonzales v. Duenas-Alvarez, 549 U.S. at 193 (stating that to find
that a State statute creates a crime outside the generic definition of a listed
crime in a Federal statute requires a “realistic probability, not a theoretical
possibility,” that the statute was so applied in the case in question or
in other cases). Therefore, the petitioner has not met his burden of
demonstrating that he has not been convicted of a “specified offense against
a minor.”Cite as 26 I&N Dec. 304 (BIA 2014) Interim Decision #3801
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D. “No Risk” Determination
As we concluded in Matter of Aceijas-Quiroz, 26 I&N Dec. 294 (BIA
2014), we do not have jurisdiction to review the Director’s “no risk”
determination, which has been delegated to the “sole and unreviewable
discretion” of the Secretary of Homeland Security.
IV. CONCLUSION
Having found that the petitioner was convicted of a “specified offense
against a minor” and that we lack jurisdiction to review issues involving the
Director’s “no risk” determination under the Adam Walsh Act, we will
dismiss the petitioner’s appeal.
ORDER: The appeal is dismissed.