BIA Holds That, Under The Adam Walsh Act And INA §204(a)(1)(viii)(I), A Petitioner Is “Convicted” Of An Offense Where A Formal Judgment Of Guilt Is Entered By A Court Or, If Adjudication Of Guilt Was Withheld, Where A Plea, Finding, Or Admission Established His Or Her Guilt And A Judge Ordered Some Form Of Punishment, Penalty, Or Restraint On Petitioner’s Liberty

On January 12, 2017, the Board of Immigration Appeals (BIA or Board) decided the appeal of an I-130 immigrant visa petition denied by the Service Center Director (Director) on the basis that the petitioner is barred from having the case approved by the Adam Walsh Act, noted upholding the Director’s decision and dismissing the appeal. Petitioner had been convicted of California Penal Code §243.4(a), sexual battery by restraint, and the Director found the conviction to be for a “specified offense against a minor” under the Adam Walsh Act, noted that petitioner had not established he poses no risk to the beneficiary (his spouse) and denied the petition. Submitting proof that his conviction had been expunged under California Penal Code §1203.4, petitioner argued he had not been “convicted” but the Director held the post-conviction relief did not overcome the conviction because it was obtained per a rehabilitative statute, rather than as the result of a procedural or substantive defect in the proceedings. Petitioner also argued on appeal that the definition of “conviction” found at INA §101(a)(48)(A) did not apply to U.S. citizens like himself; the BIA requested supplemental briefing on this issue.

Initially, in its analysis, the Board held that the definition of “conviction” found at INA §101(a)(48)(A) applies to lawful permanent residents and U.S. citizens and would therefore be adopted for purposes of INA §204(a)(1)(A)(iii)(I), which states that a U.S. citizen petitioner convicted of a specified offense against a minor may only have a visa petition approved if DHS determines he or she presents “no risk” to the beneficiary. Thus, stated the BIA, a petitioner has been “convicted” where “either a formal judgment of guilt has been entered by a court or, if adjudication of guilt has been withheld, where (1) a plea, finding, or admission of facts established the petitioner’s guilt and (2) a judge ordered some form of punishment, penalty, or restraint on his or her liberty.”

The Board went on to find that the §1203.4 expungement, while releasing the petitioner from the penalties and disabilities of the offense, was actually quite limited and therefore had no effect on his conviction for either Adam Walsh Act or INA §204(a)(1)(A)(iii)(I) purposes. The opinion also rejected petitioner’s argument that his crime did not constitute a specified offense against a minor, finding the BIA’s own precedent – Matter of Inrocaso, 26 I&N Dec. 304 (BIA 2014) – allowed DHS to inquire into the facts and circumstances of the violation to ascertain both the victim’s age and petitioner’s underlying conduct. As such, the Director’s determination that petitioner had not met his burden of establishing he was not convicted of a specified offense against a minor was affirmed and the appeal dismissed. Matter of Calcano De Millan, 26 I&N Dec. 904 (BIA 2017).

Learn more about Philip Levin & Associates.