Background

• Respondents (mother and child from the Philippines) entered as K-1 nonimmigrants after a U.S. citizen (Jackson) filed an I-129F; they later married and applied to adjust status.
• USCIS notified respondents that Jackson had a 1979 conviction for first-degree sexual abuse of a child under 12, which appeared to be a “specified offense against a minor” under the Adam Walsh Act (AWA).
• USCIS denied the family-based petition under AWA §402(a)(2) because Jackson’s conviction rendered him ineligible unless DHS found he posed “no risk”; DHS found the submitted rehabilitation evidence insufficient and determined the K visas were invalid.
• Respondents were placed in removal proceedings as inadmissible for lacking valid visas; they moved to terminate arguing AWA could not be applied to pre-enactment convictions (retroactivity argument).
• The Immigration Judge granted termination, finding retroactive application impermissible; DHS appealed to the BIA.
• The BIA reversed, holding AWA §402 addresses postenactment dangers (future risk) and thus its application to pre-enactment convictions does not impermissibly operate retroactively; removal proceedings reinstated and remanded.

Issues

Key Cases Cited

• Johnson v. United States, 529 U.S. 694 (statute without explicit effective date is effective on enactment date)
• INS v. St. Cyr, 533 U.S. 289 (retroactivity presumptions in immigration law)
• Vartelas v. Holder, 132 S. Ct. 1479 (statutes addressing post-enactment dangers do not operate retroactively)
• Landgraf v. USI Film Prods., 511 U.S. 244 (presumption against retroactivity)
• District of Columbia v. Heller, 554 U.S. 570 (post-enactment regulatory prohibitions address future dangers)
• United States v. Pfeifer, 371 F.3d 430 (applying prohibitions despite older predicate convictions)