Adam Walsh Act – A Legal Guide
In structuring our immigration system, Congress has conferred upon United States citizens and lawful permanent residents the right to petition for their family members. Family-sponsored immigration is responsible for a majority of visas issued each year; in recent years more than 65% of immigrant admissions are of family members of U.S. citizens and LPRs. It is no overstatement to say that family unification is a central principle underlying our immigration system.
The definitions of the eligible familial relationships are codified at different parts of the INA while section 204(a) creates the procedural mechanism for the family-based selection system to work. Section 204(a)(1)(A)(i) of the INA provides that “any citizen of the United States” may initiate the classification of INA-defined family members by filing a petition with the government. Similarly, § 204(a)(1)(B)(i)(I) provides that “any alien lawfully admitted for permanent residence” may initiate a petition for classification of a preference relative.
Title IV of the Adam Walsh Child Protection and Safety Act of 2006, “Immigration Law Reforms to Prevent Sex Offenders from Abusing Children,” modified the scope of § 204. Section 402(a) of the AWA added a subclause “(viii)” to INA § 204(a)(1), which makes the procedural filing mechanism inapplicable to a United States citizen convicted of a “specified offense against a minor.” Section 402(a) also made a similar change to INA § 204(a)(1)(B)(i)(I) by creating – in what was apparently a scrivener’s error – a second clause (I) that applies the same prohibition for LPRs. The prohibition shall not apply, however, in those cases where the citizen or LPR “poses no risk to the alien with respect to whom a petition…is filed.” This determination is made at the “sole and unreviewable discretion” of the Secretary of the Department of Homeland Security. Fairly read, the AWA amendments subject § 204(a)’s broad and important principle that “any citizen” may seek unification with his or her family to an exception (the “conviction” clause) which is itself subject to an exception (the “no risk” clause).
What does this mean for a citizen who wants to petition for his spouse, child, parent or sibling? In a series of cases, the Board of Immigration Appeals asked for additional briefing. ILG, in collaboration with others, submitted a brief on behalf of the American Immigration Lawyers Association setting forth the most persuasive interpretation of the law and its impact on citizens and noncitizens.