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One Situation In Which Your Spouse or Family Member’s Criminal History Can Prevent Your Immigration to the United States

It is common for an individual who is applying for a green card to immigrate to the United States to run into difficulties caused by past criminal convictions. For example, a conviction for a crime involving moral turpitude or certain drug-related offenses can render an applicant inadmissible to the United States. Typically, this only applies to criminal convictions for the applicant herself. However, there is one situation in which the criminal conviction of an applicant’s spouse or family member—unrelated to the applicant or to any immigration-related issue—can cause the applicant to not qualify for a green card.

The Adam Walsh Child Protection and Safety Act (“Adam Walsh Act”) is a federal statute signed into law in 2006 with the intention of protecting children from sexual exploitation and violent crime, preventing child abuse, and promoting internet safety. As it relates to U.S. immigration law, the Adam Walsh Act provides that a U.S. citizen who has been convicted of a specified offense against a minor is unable to file an immigrant petition for his spouse or family member unless USCIS determines, in its sole and unreviewable discretion, that the U.S. citizen poses no risk to his spouse or family member.

This is an unusual situation because the green card applicant is negatively affected not by her own actions, but by the entirely unrelated actions of her spouse or family member.

The statute explains that the determination of whether the U.S. citizen poses “no risk” to his spouse or family member is in the “sole and unreviewable discretion” of the United States Citizenship and Immigration Services (USCIS), and that is entirely accurate. It has been made essentially impossible to appeal a “no risk” determination.

The Board of Immigration Appeals (BIA) has long held that it does not have jurisdiction to review a “no risk” determination made by USCIS. See, e.g., Matter of Aceijas-Quiroz, 26 I&N Dec. 294, 297 (BIA 2014). The federal courts also do not have subject matter jurisdiction to review a “no risk” determination. See, e.g., Bakran v. Sec’y, U.S. Dep’t of Homeland Sec., 894 F.3d 557, 563 (3d Cir. 2018).

USCIS’s Administrative Appeals Office (AAO) used to have jurisdiction to review a “no risk” determination on appeal, but USCIS has removed that option. In 2015, USCIS issued a policy memorandum stating: “DHS maintains sole jurisdiction over Adam Walsh Act risk determinations in family-based immigrant visa petition proceedings. As such, certification of an initial decision containing a risk determination under the Adam Walsh Act must be directed to the AAO, not the BIA.” USCIS’s website includes a list of topics over which the AAO has jurisdiction. That list used to include “no risk” determinations, but it no longer does. The AAO has not issued a decision on an Adam Walsh Act case since May 26, 2017.

The only recourse that a green card applicant currently has to challenge a negative “no risk” determination under the Adam Walsh Act is to file a Motion to Reconsider (if the decision was based on an incorrect application of law or policy) or a Motion to Reopen (if there are new facts and evidence that demonstrate eligibility at the time the initial petition was filed).

This is a difficult and fact-intensive issue that must be well-documented and properly argued at the earliest stage. If you plan to apply for a green card or petition for a spouse or family member, and there are potential Adam Walsh Act implications, it is important that you seek the counsel of a Board-Certified Immigration Attorney, such as you can find at David Swaim & Associates, P.C.

Alexander Farquhar
Senior Associate Attorney – Dallas, Texas
David Swaim and Associates, P.C.