Exception to the Harsh Consequences of the Adam Walsh Act's Bar to Immigration

There is a very interesting legal argument to be made concerning the standard of review USCIS imposes on a petitioner seeking a discretionary grant to the Adam Walsh Act ("AWA") prohibition for an immigration benefit.

In interpreting the statutory mandate that a discretionary exception to an AWA bar be available to a petitioner who poses “no risk” to the alien beneficiary, the Service has adopted, as a matter of policy, the highest possible burden of proof—beyond a reasonable doubt. Does the use of this heightened burden go beyond the express terms of the statute? And is it a permissible use of the agency’s discretion?

Last year, the AAO reaffirmed the long understood principle that a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of the evidence that he or she is eligible for the benefit sought. Matter of Chawathe, 25 I & N Dec. 369 (AAO 2010), citing Matter of Martinez, 21 I & N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings).

The only exception to this default standard would be those instances where a different standard was specified by law (for example, the heightened standard for proving the bona fides of a marriage entered into during proceedings).

The AWA contains no language heightening the standard of proof. Therefore, it can be argued that the AWA should properly be read to require that a petitioner who has been convicted of a specified offense against a minor submit evidence that demonstrates, by a preponderance of the evidence, that he or she poses no risk to the safety and well being of the beneficiary.

Arizona Style Law Already on the Books for Interrogations by Immigration Officers

I was looking at the rules governing a Motion to Suppress Evidence in an immigration court, such as a non-voluntary statement, and the rules governing the Fourth Amendment and the Exclusionary Rule as they pertain to the immigration proceedings, and much to my surprise, the courts, even the Ninth Circuit, has already given broad powers to immigration officers to interrogate anyone suspected of being an alien.

It is only a small step to giving the same powers to a state law enforcement officer. Interesting con law issue, but much closer than I would have suspected initially.

"Any immigration officer has the power, without warrant, to interrogate any alien or person believed to be an alien as to his or her right to be or remain in the United States." INA § 287(a)(1); 8 C.F.R. § 1287.5; Cervantes v. United States, 263 F.2d 800 (9th Cir. 1959); Matter of Pang, 11 I&N Dec. 213 (BIA 1965).

"There is no requirement that the officer must have probable cause for such an inquiry." Matter of Perez-Lopez, 14 I&N Dec. 79 (BIA 1972).

Sixth Circuit Invalidates the BIA's Post Departure Bar Rule

One of our cases currently pending at the Ninth Circuit raises the same issue, does the Board of Immigration Appeals lose jurisdiction to decide a Motion once the alien leaves the U.S.? The BIA has consistently held, yes, and the government has used this quirk in the regulations to quickly remove someone before the BIA rules on a pending motion.

For instance, our client was taken into ICE custody, we filed a motion to reopen along with an emergency motion for stay. The BIA denies the stay motion, never rules on the motion to reopen, and ICE puts our client on a plane back to his home country. The only recourse left to us was to file a petition for review with the circuit court. DOJ moved to dismiss the petition on the basis of no final order, as the motion to reopen was still pending, and the 9th Circuit issued an OSC. Our response was to invoke the BIA's "Post-Departure Bar Rule" as violating our client's procedural due process rights. Now the Sixth Circuit has agreed with our analysis of the BIA's rule.


"Pruidze’s petition for review raises one question: Does the Board of Immigration Appeals lack jurisdiction to consider an alien’s motion to reopen once the alien is no longer in the United States? The answer is no." Pruidze v. Holder, Feb. 3, 2011.