How to know if it is an Adam Walsh case?

[TheOptimist 22]

One other thing about that law...

In (INA §101(a)(48): It refers to the ALIEN (non citizen) in the beginning.

There is no mention of the citizen..

I wonder if they are so stringent with citizens as you could be CONVICTED of rape and the worst that would happen is that they would require that you provide details and disclose that to the beneficiary.

If an alien is convicted of rape it is a big time game changer.

Perhaps I have made myself more confused.

I will have to speak to my attorney again.

Best

[JudyKCski 12]

Hi Vanessa,

I do agree with you however that I had better begin preparing the appropriate information to send over.

Could very well be that they will ask for that. Had I known that these matters would be so complicated, I would have simply disclosed it to begin with.

We are making the presumption that they will DEFINITLEY do something about that.

But I do want to thank you for your post. You have given me more food for thought. Even if I HATE your answer!

Better to be armed with the truth and be prepared than get run over while pretending the train isn't coming.

Best

Just as a FYI I can understand from your point of view etc. Myself, I also said "no" and added amending piece of paper explaining "why" I answered "no" . On this ammending paper told the date of the event, where it happened. Think it was harrassment 2nd degree. That I was left on my own recongnizance, appeared in court and where, pled guilty and paid the fine.

I am very happy that I did this ... I did not go into details as to what happened in my explaination just also sent a little message at the bottom that I work with developmentally disabled and have undergone my background check and continue to work where I do.

My fiance (then friend) of course knew of the entire event after it happened and when he was asked in his interview at the embassy if he knew I had slapped my ex-husbands face, he told them he was entirely aware of it that after so many years of being controlled by my ex-husband I snapped and slapped his face.

So, all I can say is ALWAYS tell the truth and make sure your significant other also knows your history and be aware that even if you do not go to jail or appear in court that those records ARE THERE no matter how big or little.

Edited August 20, 2011 by JudyKCski

[VanessaTony 3,567]

Hi Vanessa,

I do agree with you however that I had better begin preparing the appropriate information to send over.

Could very well be that they will ask for that. Had I known that these matters would be so complicated, I would have simply disclosed it to begin with.

We are making the presumption that they will DEFINITLEY do something about that.

But I do want to thank you for your post. You have given me more food for thought. Even if I HATE your answer!

Better to be armed with the truth and be prepared than get run over while pretending the train isn't coming.

Best

Being the immigrant I sometimes get confused between what forms I completed, and which the USC does. The immigrant will fill in this form: http://www.uscis.gov/files/form/i-485.pdf which asks about arrests... so that's my bad sorry :$ Being the USC they will ask about court records but they also run FBI checks on both of you so they'll know whatever they need to know about you.

They will also ask your fiance if she know about it so make sure she knows what happened. All the details such as dismissed, and fake ID and whatever so if asked she doesn't look surprised (I know of at least one couple denied because she didn't know)

[Gosia & Tito 199]

Hi Vanessa,

I do agree with you however that I had better begin preparing the appropriate information to send over.

Could very well be that they will ask for that. Had I known that these matters would be so complicated, I would have simply disclosed it to begin with.

We are making the presumption that they will DEFINITLEY do something about that.

But I do want to thank you for your post. You have given me more food for thought. Even if I HATE your answer!

Better to be armed with the truth and be prepared than get run over while pretending the train isn't coming.

Best

I am not a lawyer, but it seems to me that you are good to go; and while you do not need to disclose arrests, you might want to have all related paperwork handy. It does seem that your fiancee knows about this and this is good, it could be one of the quesoitns the CO asks during the interview. No one can tell what the CO would do or ask, but your job is to be ready for every contingency; also, i am of the opinion that by the time the interview happens, it has been decided already and the interview itself is just a last check. Last but not least, if the CO/Embassy wanted to make a fuss about this, it would be in case your fiancee is bringing a minor daughter (as it seems the situation you had was related to a minor); if that is not the case here, then more reason to think that there shouldn't be a problem.

Good luck!

[TheOptimist 22]

Hey Judy,

Excellent point..

I will have a chat with my attorney on Monday to see what thoughts they may have on this and I am inclined to agree that what you are saying is correct.

Unfortunately, this is not just a slap in the face on paper (although the prosecutor and judge acted that way, I actually remember that the judge smiled at me and said something to the effect of "does that work for you?" after telling me that he would be accepting me into the PTI program.)

Vanessa,

I understand completely where you were coming from and I do not take offense to anyone who is offering their assistance by way of putting info out there that could be helpful (no matter how much it may suck to see it)..

In any case, there is something much more interesting to me about the way this law is applied to US citizens (if it is really applied at all). The language of the INA statute that i referenced earlier is what everyone seems to use to define conviction for immigration purposes. The thing that I don't quite understand is how that applies to me (a US Citizen) when the language clearly states and references adjudication guidelines as it pertains to ALIENS..

I am not an alien. I am a US citizen.

And where the rights of non citizens cannot be argued, I believe that an argument can be made for my mine.

Remember that we are talking about the definition of conviction as it pertains to ME, the language referenced in (INA §101(a)(48)specifically references Aliens (if you read that language carefully). No where does it say how an American citizen is to be adjudicated according to immigration law. Furthermore, while non-citizens and even permanent residents can be handled differently in state and immigration matters, it appears to me that there are differences in the rights of the two. I believe that an American citizen has his day in court, and when that ruling is determined, he/she lives with that whatever the outcome. That means that the prosecutor, judge, plaintiff/victim, etc.. have to play by the same rules. I believe that this also means that the immigration should have to honor the dismissal in an American court for a citizen who has not been convicted.

Perhaps I am just not reading the right stuff, and someone who knows better can point me in the right direction, but I will not quit and will fight until the man at the top tells me I have no more room to move (and even then I will try a different approach). I love her THAT much.

One person mentioned that perhaps the language of that statute applies to me because I am seeking an immigration benefit(and this is an interesting point). However, it is not I who seeks the benefit (although I benefit enormously), it is the non citizen for whom the benefit is being sought. I can understand the limiting the rights of a citizen upon conviction of the standard nature (good people need to be protected), but to cast such a wide net on the definition of conviction for US Citizens who pay taxes and who have not broken the law almost strikes me as unconstitutional.

I understand one distinction however. That if it is the beneficiary that has the criminal conviction, that I do NOT have the right to say YOU HAVE TO LET HER IN. That is clear and it makes sense.

In my mind, as a citizen, this definition of guilt as it pertains to (INA §101(a)(48)does not apply to me. To think that a man who has been convicted outright of a violent rape against a person who was beaten and abused has more right to marry than I do (who has NOT been convicted and has never been violent) to me is incredulous.

Pre-Trial intervention is only for those who have been considered NON VIOLENT offenders. There is NO WAY they would have let me into that program if they felt that I would be a danger to anyone. I would have been charged, made to plead guilty, made to go to some type of counseling/rehab and would have had to register as a sex offender (none of which applies to my situation).

I realize that I am venting a bit, and it is not my intention to ruffle any feathers or beat my chest with some notion that I need to be right. I just think that I am raising some very important questions and I am having a difficult time finding clear answers. My humble wish is to engage in an intelligent discussion regarding what actual laws apply in matters like these.

I am (and will continue)speaking with attorneys, but this seems to be a good place where many people have had experiences that I could possibly leverage.

Is there an instance where a pre-trial intervention case for a US citizen has been deemed as the reason for denial for a petition? If there is, I have not found it yet.

Every single instance that I have seen relates directly to the non-citizen being the one who has been denied in situations where PTI exist.

So if I have to I will beg

Please someone show me where I am thinking wrong, and steer me right.

Best

[TheOptimist 22]

just some food for thought..

This is a stature on how convictions are conducted where the alien has become a naturalized citizen:(This speaks more to the issue of deportation, but it seems to ring true to my sentiment, that citizens do not have the same penalty or consideration of what a conviction is as non-citizens)

9 FAM 40.21(a) N3.4-5 Conviction While U.S. Citizen

(CT:VISA-1394; 01-21-2010)

a. In view of the elimination of the JRAD, the finding of the Supreme Court in Costello v. INS, 376 U.S. 120, is now in question. The Supreme Court held that a conviction of a naturalized citizen did not invoke deportation

U.S. Department of State Foreign Affairs Manual Volume 9 - Visas

9 FAM 40.21(a) Notes Page 13 of 28

under INA 241(a)(2)(A)(i) since the possibility of a judicial recommendation under INA 241(b) was not available for a citizen of the United States. Consequently, an alien who was convicted while a U.S. citizen was not inadmissible to receive a visa under INA 212(a)(2)(A)(i) based solely upon such a conviction.

[TheOptimist 22]

Hi all,

This is an excerpt of a policy memorandum issued to provide supplemental guidance to field officers to determine whether a case preliminarily is subject to AWA.

Implementation

The Adjudicator’s Field Manual (AFM) is revised as follows:

1. Chapter 21.2 of the AFM is revised by adding a new section "F:3:F" to read:

F: Centralization of AWA-applicable Visa Petitions (Forms I-130 and I-129F) at the Vermont Service Center. As of March 22, 2011, service center adjudication of all relative visa petitions subject to the Adam Walsh Act (AWA) is centralized at the VSC. Using the procedures set forth in this section, all other service centers will transfer Forms I-130 or I-129F in their possession to the VSC upon determining preliminarily that AWA applies.

(i) Sources of Information. An officer adjudicating a Form I-130 or Form I-129F may identify derogatory information on or criminality through any of the following sources:

•Front-end search

•Back-end referral from an adjudicator based on a hit in TECS or IBIS Manifest, or

•Non-IBIS referral from an adjudicator based on criminal documents in the file or other documents indicating criminality.

(ii) Sufficiency of Information. The following derogatory information is sufficient to determine preliminarily that AWA applies:

•An NCIC sexual offender registry hit, unless it can be conclusively demonstrated that the victim of any offense giving rise to the registration was an adult or that the charge was dismissed, withdrawn, or the prosecution entered “no prosecution [nolle prosequi].”

•A TECS hit revealing anything sexual in nature, unless it can be conclusively demonstrated that the victim was an adult or that the investigation has been closed (with no resulting arrest), dismissed, recorded as “no prosecution,” or withdrawn;

•A review of NN16 / NN11 indicates any sexual offense, unless it can be conclusively demonstrated that the victim was an adult, the petitioner was found not guilty, or that the charge was dismissed, recorded as “no prosecution,” or withdrawn;

•A check of any system reveals derogatory information involving kidnapping or false imprisonment (unless the offense was committed by parent or guardian); or

•A check of any system reveals derogatory information involving kidnapping or false imprisonment (unless the offense was committed by parent or guardian).

I am doing some more research with regards to whether USCIS determines a different standard for the definition of conviction for citizens.

Hope this helps...

[A and T 82]

My history was exactly the same as yours, and Mine is an Adam Walsh Case

[TheOptimist 22]

Hi Adam,

Appreciate your reply.

Have you spoken to an attorney?

I recommend you read this blog and report your case to the author.

http://www.ailaslipopinionblog.com/2011/02/02/call-for-experiences-with-the-adam-walsh-act/

I would appreciate very much you providing me with the details of your situation.

There are some definite disconnects regarding the application of some of these laws for immigration purposes. Some would argue that it is outright unconstitutional to classify a citizen's non-conviction in conventional terms that afford us all other basic liberties a conviction in immigration matters that remove certain liberties from us. Also not to allow for due process to apply as mandated in the 14th amendment of our constitution.

One of our most fundamental rights as citizens of the United States of America is the right to marry the person of our choice. Courts in this country have determined that the right to marry is, in some cases, more fundamental than the right to vote.

The right to marry cannot be denied:

on the basis of an individual’s race;

to those who have shown themselves to be delinquent on child welfare payments; or

to inmates.

Many other determinations have been made with regards to marriage and considered unconstitutional in many matters.

The 14th Amendment to the U.S. Constitution extends “equal protection of the laws” to ALL citizens. Convicted felons can be married. Why cant I?

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (Equal protection under the law, due process of law and liberty being the items of interest here).

The idea here is that as a Citizen who is recognized by every other legal standard of not being convicted, how is it possible that adjudication can be rendered on me based on a different standard of guilt than is afforded me by current law?

If the argument is that I am trying to marry a foreign national, and there are no compelling arguments pertaining to my fiance (she checks out 100%), then would it not be considered cruel and unusual, and a denial of a civil liberty to be denied access to this basic principle that is held in such high regard by our current law establishment?

I am no attorney, but I will make sure I get a good one to handle this.

I am also compelled again to state that I do NOT think that AWA is a bad law; and support its legislative intent. My argument and concern is that in this situation, as a citizen, I am not afforded equal protection under the law as it is required by my constitution.

I would be grateful to know your thoughts and understand your thinking and approach on this matter.

Honestly I am laughing to myself on how many may be seeing this like such a mountain to climb. You may be right, but I am driven by the need to be with my fiance. And that I will not be denied without a fight.

Best

The Optimist

[pushbrk 12,569]

You MUST disclose the arrest. The lawyer is wrong about that. If asked if you were arrested then you must admit it. You will also most DEFINITELY need court (and arrest) records so you may as well get started on that.

Also, it's important that you know that "dismissed without prejudice" isn't a good thing. It's not bad, but it means that though the case is dismissed, they have the ability to re-open the case. it could just mean they didn't have enough evidence to convict you right now, but are leaving that door just in case. USCIS has been known to use the "without prejudice" as a sign you are NOT innocent. Just an FYI. Nothing stopping you from filing the petition, but be aware you might have a question or two to answer either at the interview, or come AOS time.

I'm afraid it is you who is wrong. Petitions do not ask about arrests. They ask about convictions. The bold above is correct but the keyword is IF.

[Dan and Judy 614]

I'm afraid it is you who is wrong. Petitions do not ask about arrests. They ask about convictions. The bold above is correct but the keyword is IF.

I agree with this

I agree that you must disclose it "IF" they ask but they are not asking about arrests on the original application. Just convictions

Edited August 21, 2011 by Dan and Judy

[Dan and Judy 614]

Thanks for the Post.

It also goes on to state:

Moreover, I understand that this petition, including any criminal conviction information that I am required to provide with this petition, as well as any related criminal background information pertaining to me that U.S. Citizenship and Immigration Services may discover independently in adjudicating this petition will be disclosed to the beneficiary of this petition.

There is nothing there that asks if you are arrested. Furthermore, it specifies that you are required to provide details of any criminal background RELATED to a conviction.

The way I read the above sentence is-------- They are going to tell your fiance what they know about your convictions if you have any. And in addition to that if they find your arrest when doing an investigation they

will disclose that arrest to your fiance. Anything they find that is related to the above mentioned crimes that they find will be disclosed to your fiance. It is not saying they will deny you for it. Only that they will tell

your fiance.

I would say stop worrying about what counts as convictions for Aliens. You are just going to blow your head up.

Also don't get worked up about your rights as a US citizen, My understanding is they can deny you if they don't like the color of your underware.

and there is nothing to be done about it. I don't think they even have to tell you why you are denied

I'd say prepare yourself and your fiance to answer any questions they might ask along these lines and if and when you are asked,

answer truthfully

[Tim/Mav 305]

I'm afraid it is you who is wrong. Petitions do not ask about arrests. They ask about convictions. The bold above is correct but the keyword is IF.

So, Pushbrk, you don't think this will come up. Statuatory Rape is Rape. 15 years old. Convicted or not this is a big RFE and the OP admits Probation/Therapy. IF the key word is "IF" Then what IF it was your daughter or grandchild? Would you feel the same way?

[Tim/Mav 305]

So, Pushbrk, you don't think this will come up. Statuatory Rape is Rape. 15 years old. Convicted or not this is a big RFE and the OP admits Probation/Therapy. IF the key word is "IF" Then what IF it was your daughter or grandchild? Would you feel the same way?

I maybe banned again for saying what I think. The Adam Walsh Act was inacted to protect children. Has any other parent lost a child like I have. (Yes, 15 years old) Most Adam Walsh questions are from Newbees and a denial of the past. Yet, 90% of members try and help with information and the other 10% hold that thought. Some that think there case is related to the act are honest and wish advice while others avoid what is real and what is not. (There is no Loop-Holes in USCIS). I see Honest questions and I see deceiving questions looking for an answer or another imbalance of the truth. Some of you like me, some of you don't. The Adam Walsh Act was made for the Children.

[pushbrk 12,569]

So, Pushbrk, you don't think this will come up. Statuatory Rape is Rape. 15 years old. Convicted or not this is a big RFE and the OP admits Probation/Therapy. IF the key word is "IF" Then what IF it was your daughter or grandchild? Would you feel the same way?

Your response is to a post where I wrote, "I'm afraid it is you who is wrong. Petitions do not ask about arrests. They ask about convictions. The bold above is correct but the keyword is IF." I didn't say anything about whether "this will come up". I said the petition, doesn't ask about arrests. It asks about convictions. The petitioner answered the criminal background questions correctly. I was correcting Vanessa, an immigrant, who was confused about which forms the petitioner submits as opposed to the immigrant. Immigrants answer questions about arrests. Petitioners answer questions about convictions.