27 I. & N. Dec. 67
BIA2017Background
- Petitioner (U.S. citizen) filed Form I-130 for his spouse; USCIS denied the petition under the Adam Walsh Act because petitioner had a 2007 Louisiana conviction for computer-aided solicitation of a minor (La. Stat. § 14:81.3).
- Conviction arose from online communications with a person petitioner believed to be a 14‑year‑old, who was actually an undercover police officer.
- Adam Walsh Act § 111(7) (42 U.S.C. § 16911(7)) defines “specified offense against a minor,” including solicitation to engage in sexual conduct and use of the Internet to facilitate or attempt such conduct.
- Director concluded the conviction was a “specified offense against a minor,” which bars approval of the family‑based petition unless USCIS (in its sole, unreviewable discretion) determines the petitioner poses “no risk.”
- Petitioner conceded the statutory provision he violated but argued the offense did not involve a minor because the supposed minor was an undercover officer; USCIS argued intent to target a minor suffices.
- BIA agreed with USCIS, holding that offenses involving an undercover officer posing as a minor fall within § 16911(7); appeal dismissed. Petitioner may file a new petition with additional evidence on risk.
Issues
| Issue | Petitioner’s Argument | DHS/USCIS Argument | Held |
|---|---|---|---|
| Whether a conviction involving an undercover officer posing as a minor qualifies as a “specified offense against a minor” under the Adam Walsh Act | The offense did not involve an actual minor, so § 16911(7) should not apply | A defendant’s belief and intent to target a minor bring the offense within § 16911(7), even if the victim was an undercover officer | Held: offense qualifies as a specified offense against a minor despite undercover officer victim |
| Who bears burden to prove eligibility to file a visa petition | Petitioner suggested burden shift or challenge to burden allocation | USCIS: petitioner has burden to prove eligibility per Matter of Introcaso | Held: petitioner bears burden to prove he is not convicted of a specified offense against a minor |
| Whether the BIA/board can review USCIS “no risk” determination | Petitioner challenged Director’s no‑risk assessment and sought review | USCIS asserted the no‑risk determination is committed to USCIS’s sole, unreviewable discretion | Held: BIA lacks jurisdiction to review USCIS’s no‑risk determination |
| Admission of new evidence first offered on appeal | Petitioner submitted additional evidence on appeal to rebut the denial | DHS opposed consideration because petitioner had notice and opportunity to submit earlier | Held: Court will not accept new evidence first offered on appeal; petitioner may file a new petition with that evidence |
Key Cases Cited
- United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (interpreting Adam Walsh Act language to cover conduct where defendant believed victim was a minor)
- United States v. Helder, 452 F.3d 751 (8th Cir. 2006) (holding an actual minor victim is not required for Internet‑facilitated attempt to entice a minor)
- United States v. Kahn, 524 F. Supp. 2d 1278 (W.D. Wash. 2007) (district court held similar provisions did not apply where victim was an undercover adult)
- United States v. Rizzuti, 611 F. Supp. 2d 967 (E.D. Mo. 2009) (concluding the Adam Walsh Act requires only that the defendant believe the victim was a minor)