BIA Holds That A Conviction May Be For A “Specified Offense Against A Minor” Under The Adam Walsh Act, Even If It Involved An Undercover Police Officer Posing As A Minor Rather Than An Actual Minor.

On July 21, 2017, the Board of Immigration Appeals (BIA or Board), in ruling on the appeal of a denial of a spousal I-130 visa petition, held that a conviction for computer-aided solicitation of a minor per section 14:81.3 of the Louisiana Statutes constitutes a “specified offense against a minor” as set forth by the Adam Walsh Act, which prohibits a U.S. citizen convicted of such a crime from obtaining an approved family-based visa petition, unless the government (DHS) determines the citizen “poses no risk” to the beneficiary.

The respondent initially argued that the conviction record fails to identify the statute under which he pled guilty.  However, citing to Matter of Introcaso, 26 I&N Dec. 304 (BIA 2014), the BIA noted it is the petitioner’s burden to prove that he or she has not been convicted of a “specified offense against a minor.”  Additionally, respondent’s brief conceded his guilty plea to section 14:81.3 so the record “sufficiently establishes that the petitioner was convicted of computer-aided solicitation of a minor under Louisiana law.”

Respondent next argued that his conviction was not for a “specified offense against a minor” because no minor was involved; he had been communicating with an undercover police officer who he believed was a 14 year-old girl.  Because, per Matter of Introcaso, the Adam Walsh Act permits a circumstance-specific inquiry into a petitioner’s conduct, the Board agreed with DHS’ conclusion that “an actual minor need not be victimized” for the perpetrator to fall under the Adam Walsh Act’s reach – a respondent who interacts with someone he believes is a minor, but who is in reality a police officer, has the same intent as one who actually communicates with such minor.  To exclude the defendant who errs, held by the BIA, would be contrary to the intent of the statute.

Similarly, the Board found it instructive that the Eleventh Circuit, in United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010), rejected the argument that the phrase “against a minor” requires contact with a minor as the statutory language “imposes no such requirement.”  Moreover, stated the BIA, to protect the public from those who would harm children, Congress targeted those who commit a specified crime with that intent whether or not the victim was, in fact, a child.  By excluding offenses involving undercover officers, the law would exempt a category of offenders who have the same intent and pose the same risk as those whose victim was actually a minor; this, noted the Board, was the very intent and risk that Congress had in mind when it enacted this section of the Adam Walsh Act.

The decision thus held that the petitioner’s offense is a “specified offense against a minor” within the meaning of the Adam Walsh Act, even though it involved an undercover officer posing as a minor.  As such, respondent’s conviction bars him from obtaining an approved spousal I-130 visa petition here.  The appeal was therefore dismissed.  Matter of Izaguirre, 27 I&N Dec. 67 (BIA 2017).