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.
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