26 I. & N. Dec. 304
BIA2014Background
- Petitioner Russell Introcaso, a U.S. citizen, filed an I-130 for his spouse; USCIS denied the petition under the Adam Walsh Act because of petitioner’s prior convictions.
- Relevant convictions: 1993 New Jersey conviction for endangering the welfare of children (N.J. Stat. § 2C:24-4(a), sexual-conduct prong) and a 2009 New Jersey conviction for criminal sexual contact (victim in 2009 offense was an adult).
- USCIS requested certified conviction records and other evidence and warned that, if petitioner was convicted of a “specified offense against a minor,” he must show the Secretary’s discretionary finding of “no risk” to the beneficiary.
- Petitioner argued the 1993 conviction was not a “specified offense against a minor”; he produced the record of conviction and sentencing documents.
- The Director found the 1993 conviction fell within the Adam Walsh Act’s definition of a “specified offense against a minor” and that the petitioner did not meet the “no risk” showing; petitioner appealed to the BIA.
- The BIA reviewed statutory language and record of conviction, concluded the offense fit within the Act’s catchall and criminal-sexual-conduct provisions, and dismissed the appeal; BIA ruled it lacked jurisdiction to review the Secretary’s discretionary “no risk” determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears burden to prove petitioner is not convicted of a “specified offense against a minor”? | Introcaso: burden should follow usual immigration practice (petitioner must show eligibility). | USCIS: petitioner must prove non-disqualifying status or unavailability of records. | Held: petitioner bears the burden to prove he is eligible and to submit conviction records or show they cannot be obtained. |
| Whether categorical or circumstance-specific approach governs determination of a “specified offense against a minor” | Introcaso: categorical approach should apply (look only to statutory elements). | USCIS: Adam Walsh Act’s language permits circumstance-specific inquiry into underlying conduct and victim’s age. | Held: circumstance-specific approach is permitted for Adam Walsh Act inquiries; categorical approach is a starting point but statute invites examination of underlying facts. |
| Whether Introcaso’s 1993 conviction qualifies as a “specified offense against a minor” | Introcaso: New Jersey statute’s “sexual conduct” prong does not necessarily require sexual contact and should not categorically be a listed offense. | USCIS: record of conviction shows sexual-conduct offense against a minor and age gap exceeds 4 years; fits within §16911(7)(H) and (I). | Held: conviction falls within “criminal sexual conduct involving a minor” and the catchall “conduct that by its nature is a sex offense against a minor”; petitioner failed to rebut. |
| Reviewability of the Secretary’s “no risk” discretionary finding | Introcaso: implicit request to review denial based on no-risk determination. | DHS: “no risk” determination is in Secretary’s sole and unreviewable discretion under the Act. | Held: BIA lacks jurisdiction to review the Secretary’s discretionary “no risk” determination. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical-approach framework for comparing statutory elements)
- Nijhawan v. Holder, 557 U.S. 29 (circumstance-specific inquiry appropriate for certain statutory requirements)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (realistic-probability test for state statute covering broader conduct)
- Shepard v. United States, 544 U.S. 13 (documents in record of conviction that may be consulted)
- Begay v. United States, 553 U.S. 137 (categorical approach in defining generic offenses)
- United States v. Mi Kyung Byun, 539 F.3d 982 (9th Cir.) (Adam Walsh/SORNA context: underlying conduct may be examined to determine whether offense was against a minor)
- United States v. Dodge, 597 F.3d 1347 (11th Cir.) (examined plea colloquy/record to find offense fit SORNA specified-offense definition)
- Johnson v. United States, 559 U.S. 133 (divisible statute analysis; using record to identify which statutory phrase supported conviction)
- Stubbs v. Att’y Gen. of U.S., 452 F.3d 251 (3d Cir.) (New Jersey §2C:24-4(a) sexual-conduct prong covers non-contact sexual conduct affecting minors)