ACEIJAS-QUIROZ

Cite as 26 I&N Dec. 294 (BIA 2014) Interim Decision #3800

Matter of Tatiana ACEIJAS-QUIROZ, Beneficiary of a

visa petition filed by Aubrey Edward Haverly, Petitioner

Decided May 20, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

In adjudicating cases involving the Adam Walsh Child Protection and Safety Act of

2006, Pub. L. No. 109-248, 120 Stat. 587, the Board of Immigration Appeals lacks

jurisdiction to review a “no risk” determination by the United States Citizenship and

Immigration Services, including the appropriate standard of proof to be applied.

FOR PETITIONER: Dan R. Larsson, Esquire, Bend, Oregon

FOR THE DEPARTMENT OF HOMELAND SECURITY: Margaret A. Rosenast,

Associate Counsel

AMICUS CURIAE: American Immigration Lawyers Association1

BEFORE: Board Panel: ADKINS-BLANCH, Vice Chairman; GUENDELSBERGER,

Board Member. Dissenting Opinion: MANN, Board Member.

GUENDELSBERGER, Board Member:

In a decision dated July 23, 2010, the Field Office Director (“Director”)

denied the Petition for Alien Relative (Form I-130) filed by the United

States citizen petitioner on behalf of the beneficiary as his spouse. The

Director concluded that the petitioner is ineligible to have a visa petition

approved under the Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. No. 109-248, 120 Stat. 587 (“Adam Walsh Act”). The petitioner

has appealed from that decision.2 The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The petitioner filed a visa petition on February 24, 2008, to accord his

wife immediate relative status under section 201(b)(2)(A)(i) of the

1

Steven W. Manning, Esquire; Ira J. Kurzban, Esquire; Edward F. Ramos, Esquire

2

During the pendency of the appeal, we requested supplemental briefing to address

issues relating to the Adam Walsh Act. We acknowledge and appreciate the briefs

submitted by the parties and amicus curiae.

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Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006). On

March 16, 2009, the United States Citizenship and Immigration Services

(“USCIS”) sent the petitioner a request for evidence and notice of intent to

deny the petition. The notice informed the petitioner of his apparent

ineligibility to petition for his wife based on a conviction for a “specified

offense against a minor,” as that term is defined in the Adam Walsh Act.

Specifically, on December 6, 2004, the petitioner was convicted in Oregon

of sexual abuse in the third degree, sexual abuse in the second degree, and

contributing to the sexual delinquency of a minor in violation of sections

163.415, 163.425, and 163.435 of the Oregon Revised Statutes. The

petitioner was informed that he could overcome his apparent ineligibility

with evidence demonstrating that his convictions were not for a “specified

offense against a minor” or, in the alternative, that he poses “no risk” to the

beneficiary.

On June 9, 2009, the petitioner replied with additional documents and

arguments. After considering those submissions, the Director denied the

visa petition, concluding that the petitioner’s offenses qualified as

“specified offense[s] against a minor” under the Adam Walsh Act and that

the petitioner had failed to show “beyond any reasonable doubt” that he

poses no risk to the safety and well-being of the beneficiary to overcome

his statutory ineligibility.

II. ADAM WALSH ACT

The stated purpose of the Adam Walsh Act is “[t]o protect children

from sexual exploitation and violent crime, to prevent child abuse and child

pornography, to promote Internet safety, and to honor the memory of Adam

Walsh and other child crime victims.” Adam Walsh Act, 120 Stat. at 587.

The issues raised in this appeal involve title IV, “Immigration Law Reforms

to Prevent Sex Offenders from Abusing Children.”3 Specifically, section

402(a)(2) of the Adam Walsh Act, 120 Stat. at 622, amended section

204(a)(1) of the Act, 8 U.S.C. § 1154(a)(1) (2006), by adding a provision

barring a United States citizen who has been convicted of a “specified

offense against a minor” from having a family-based visa petition approved

unless the Secretary of Homeland Security, in the Secretary’s “sole and

3

Because title IV of the Adam Walsh Act does not include a specific effective date, the

date of its enactment, July 27, 2006, is the effective date. See Matter of Soriano, 21 I&N

Dec. 516, 519 (BIA 1996) (noting that the lack of an effective date for legislation

indicates that the law should be effective on the date of passage).

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unreviewable discretion,” determines that the citizen poses “no risk” to the

alien beneficiary. Section 204(a)(1)(A)(viii)(I) of the Act.4

III. ISSUES

The petitioner does not challenge the determination that he has been

convicted of a “specified offense against a minor,” as defined by section

111(7) of the Adam Walsh Act, 120 Stat. at 592 (codified as amended at

42 U.S.C. § 16911(7) (2006)). The approval of his visa petition is therefore

barred by section 204(a)(1)(A)(viii)(I) of the Act unless he can establish

that he poses “no risk” to the safety and well-being of the beneficiary.

The parties disagree regarding the appropriate standard of proof to be

applied to this “no risk” determination. The petitioner argues that the

preponderance of the evidence standard should be applied and that the

Director erred in requiring proof “beyond a reasonable doubt” that he poses

no risk to the beneficiary. The parties also disagree on the threshold issue

of the Board’s jurisdiction to address the appropriate standard of proof to be

applied by the Director in making this determination. As discussed below,

we conclude that Congress has entrusted the “no risk” determination

entirely to the Department of Homeland Security (“DHS”), including the

standard of proof to be applied.

IV. ANALYSIS

The petitioner contends that the “beyond a reasonable doubt” standard is

typically reserved for criminal prosecutions where the Government must

meet a heavy burden in order to protect liberty interests of individuals

charged with criminal conduct. Noting that the long-established standard

of proof in civil cases and visa petition proceedings is proof by a

preponderance of the evidence, the petitioner points out that no statutory or

regulatory provision explicitly empowers the USCIS to raise the standard of

proof in Adam Walsh Act cases to require the petitioner to prove beyond a

reasonable doubt that there is no risk to the beneficiary.5 He suggests that

4

Section 204(a)(1)(B)(i) of the Act contains a similar prohibition relating to lawful

permanent resident petitioners.

5

In a 2007 policy memorandum, the Associate Director of Domestic Operations for the

USCIS directed that a “beyond a reasonable doubt” standard should be applied in making

the “no risk” determination in individual cases, explaining the following:

To avoid denial of a petition or the revocation of a prior approval, a petitioner

who has been convicted of a specified offense against a minor must submit

(continued . . .)

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the practical effect of applying this heightened standard is that petitioners

will be precluded from demonstrating “no risk” in nearly all cases. He also

argues that in his case, the Director disregarded the positive factors,

misstated the record, and did not meaningfully weigh his evidence or

properly analyze whether he poses a risk to his wife.

The parties agree that the Board has jurisdiction in Adam Walsh Act

cases to review determinations regarding general eligibility requirements,

including whether the required relationship has been established and

whether an offense qualifies as a “specified offense against a minor.” They

disagree, however, as to whether Congress’ placement of the “no risk”

determination in the DHS’s “sole and unreviewable discretion” precludes

us from reviewing such questions as the appropriate standard of proof to be

applied.

As a threshold matter then, we must determine the extent of our

jurisdiction over these issues. The Board has limited jurisdiction to review

certain decisions of officers of the DHS under the authority delegated by

the Attorney General. 8 C.F.R. § 1003.1(b)(5) (2013). We review de novo

all questions arising in appeals from decisions of USCIS officers. 8 C.F.R.

§ 1003.1(d)(3)(iii). However, pursuant to the Adam Walsh Act, Congress

has placed “sole and unreviewable discretion” of the “no risk”

determination with the Secretary of the DHS, who, in turn, has delegated

this authority to the USCIS. Section 204(a)(1)(A)(viii)(I) of the Act.

See generally 8 C.F.R. § 2.1 (2013). As discussed below, we conclude that

we lack jurisdiction to review the USCIS’s determination regarding the

appropriate standard of proof to be applied in the “no risk” determination.

It follows that we have no authority to review the application of this

standard by the Director in this case.

In considering our jurisdiction, we begin with the language of the Adam

Walsh Act. As with all cases involving statutory construction, we assume

that the legislative purpose is expressed by the ordinary meaning of the

words Congress chose to use. Matter of A-A-, 20 I&N Dec. 492, 495 (BIA

1992) (citing INS v. Cardozo-Fonseca, 480 U.S. 421, 431 (1987); INS

v. Phinpathya, 464 U.S. 183, 189 (1984)). When the language of the

controlling statute is plain, there is no issue of interpretation because we

_______________________________

evidence of rehabilitation and other relevant evidence that clearly demonstrates,

beyond any reasonable doubt, that he or she poses no risk to the safety and

well-being of his or her intended beneficiary(ies).

Memorandum from Michael Aytes, Assoc. Dir., Domestic Operations, to USCIS officials,

at 5 (Feb. 8, 2007) (emphasis added), available at http://www.uscis.gov/sites/default/files

/USCIS/Laws/Memoranda/Static_Files_Memoranda/adamwalshact020807.pdf.

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“must give effect to the unambiguously expressed intent of Congress.”

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843

(1984).

The provision relevant to the Board’s jurisdiction in this case is section

204(a)(1)(A)(viii)(I) of the Act, which states the following:

Clause (i) [specifying a citizen’s eligibility to file for a visa petition on behalf of

a spouse or child] shall not apply to a citizen of the United States who has been

convicted of a specified offense against a minor, unless the Secretary of Homeland

Security, in the Secretary’s sole and unreviewable discretion, determines that the

citizen poses no risk to the alien with respect to whom a petition described in clause

(i) is filed.

(Emphasis added.)

In its brief, amicus asserts that Congress’ assignment of “sole and

unreviewable discretion” was intended to shield the “no risk” determination

from judicial review, while leaving in place the Board’s authority to review

de novo all issues in family-based visa petition appeals, including the “no

risk” determination. We disagree. First, when Congress has acted to limit

judicial review under the Act, it has expressly referred to court jurisdiction,

stating that “no court shall have jurisdiction to review” certain

determinations, orders, decisions, judgments, or actions. See, e.g., sections

242(a)(2)(A)−(C) of the Act, 8 U.S.C. §§ 1252(a)(2)(A)−(C) (2012)

(emphasis added) (relating to specified determinations regarding the

removal of arriving aliens and claims of fear of persecution, denials of

discretionary relief, and specified removal orders against criminal aliens).

The relevant provision of the Adam Walsh Act does not mention court

review, but it assigns the “no risk” determination solely to the Secretary of

the DHS, to the exclusion of other executive agencies.

Additionally, when Congress has used the “sole and unreviewable

discretion” language in other situations, it has done so in order to vest

ultimate responsibility for the determination in one Federal agency in

situations where there might otherwise be overlapping or shared agency

responsibility. For example, in section 212(d)(3)(B) of the Act, 8 U.S.C.

§ 1182(d)(3)(B) (2012), Congress provides for the Secretary of State or the

Secretary of Homeland Security to have “sole unreviewable discretion” to

waive the application of the terrorism ground of inadmissibility “after

consultation with the Attorney General” and the other Secretary. Similarly,

section 235(b)(1)(A)(iii) of the Act, 8 U.S.C. § 1225(b)(1)(A)(iii) (2012),

which pertains to the designation of additional classes of aliens subject to

expedited removal, places “sole and unreviewable discretion” in the

Attorney General. Thus, Congress has used the “sole and unreviewable

discretion” language in other immigration provisions to specify the

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Government agency responsible for making a final and unreviewable

determination vis-à-vis other governmental agencies that might otherwise

have such responsibility. We therefore reject the suggestion that the “sole

and unreviewable discretion” language was intended only to limit judicial

review.

The petitioner argues that even if Congress’ assignment of the “no risk”

determination to the DHS is construed as precluding the Board from

reviewing the discretionary aspects of that determination, it nevertheless

leaves jurisdiction with the Board to review legal issues underlying the

exercise of discretion. We find that the term “sole and unreviewable

discretion” plainly reflects Congress’ intent that the DHS should have the

sole authority to establish a framework for USCIS adjudicators to use in

making the “no risk” discretionary determination in individual cases.

Establishment of such a framework is essential to the uniform application

of the law to the individual determinations of risk that will be made by

USCIS officials. The application of the appropriate standard of proof is

part and parcel of the ultimate exercise of discretion delegated to the DHS.

There is no precedent for the Board to review any part of a discretionary

determination by the USCIS in visa petition proceedings, so this is not a

departure from current standards. For this reason, we find that the standard

of proof necessarily falls within the scope of the DHS’s sole responsibility

for the “no risk” determination.

Since its creation in 2003, the DHS has existed separate and apart from

the Department of Justice.6 Although the DHS and Department of Justice

continue to have shared responsibility in immigration-related matters,

Congress has delineated authority and responsibility between the agencies,

with certain functions now accorded to the DHS as a separate and distinct

agency from the Department of Justice. Compare section 103(a)(1) of the

Act, 8 U.S.C. § 1103(a)(1) (2012) (powers and duties of the Secretary of

Homeland Security), with section 103(g)(1) of the Act (authorities and

functions of the Attorney General). Congress created the DHS to better

integrate Federal, State, and local government efforts to ensure national

security. See generally 6 U.S.C. §§ 111(b)(1), 112(c) (2012).

In passing the Adam Walsh Act, Congress indicated the high

importance it placed on protecting children from sexual exploitation and

violent crime. A Senate sponsor of the Adam Walsh Act described it as

“the most comprehensive child crimes and protection bill in our Nation’s

6

On November 25, 2002, the Homeland Security Act of 2002, Pub. L. No. 107-296,

116 Stat. 2135, created the Department of Homeland Security as a distinct agency

separate from the Department of Justice.

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history.” 152 Cong. Rec. S8012-02 (daily ed. July 20, 2006) (statement of

Sen. Orrin Hatch), cited in United States v. Tom, 565 F.3d 497, 499 (8th Cir.

2009). In this context, we interpret Congress’ allocation of responsibility

for the “no risk” determination to the DHS as an allocation of sole authority,

unreviewable by the Board or other executive branch agencies, to construct

the legal framework within which such discretionary determinations are to

be made, including the appropriate standard of proof.

The petitioner and amicus rely on Federal court cases that draw a

distinction between discretionary determinations and purely legal issues

when applying jurisdictional limits on review of agency decisions.

See, e.g., Al Ramahi v. Holder, 725 F.3d 1133, 1138 n.2 (9th Cir. 2013)

(collecting cases). However, this distinction is based on statutory language

that explicitly preserves court review of legal issues when judicial review

authority has otherwise been eliminated. See section 242(a)(2)(D) of the

Act (mandating that specified provisions eliminating judicial review shall

not be “construed as precluding review of constitutional claims or questions

of law raised upon a petition for review”).

There is no comparable provision in the Adam Walsh Act that reserves

purely legal issues underlying the DHS’s “no risk” determination for

review by the Board. Had Congress intended to make such a distinction in

the Adam Walsh Act, it could have specified that the “no risk”

determination was delegated to the DHS only in regard to the discretionary

aspects of that determination. Were such a distinction intended, however,

there would be many other legal challenges to “no risk” determinations,

including whether the Director considered all the evidence, the legal

analysis was sufficient, and the evidence ultimately met the requisite

burden of proof. Such a bifurcated approach to Board review of the “no

risk” determination would conflict with Congress’ plain language

delegating this determination to the DHS’s “sole and unreviewable

discretion.”

We do not have review authority comparable to that exercised by the

courts under the Administrative Procedure Act, ch. 324, § 10(e), 60 Stat.

237, 243−44 (1946) (codified as amended at 5 U.S.C. § 706 (2012)).

Unlike Article III courts, we acquire our jurisdiction solely through

8 C.F.R. § 1003.1(b), and its scope may be limited by a legislative

enactment of Congress. The Adam Walsh Act reserves to the DHS the

agency discretion to establish the parameters for adjudicating the “no risk”

determination. We find that this delegation of agency authority precludes

our review of both the legal and discretionary aspects of the “no risk”

determination. We will therefore dismiss the petitioner’s appeal.

We conclude by noting that the petitioner and amicus have raised

significant issues concerning the application of a “beyond a reasonable

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doubt” standard of proof to the Adam Walsh Act “no risk” determination.

Ordinarily, in visa petition proceedings, the petitioner is required to

demonstrate eligibility for the benefit sought under a “preponderance of the

evidence” standard. See Matter of Pazandeh, 19 I&N Dec. 884, 887 (BIA

1989); Matter of Soo Hoo, 11 I&N Dec. 151, 152 (BIA 1965); see also

Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010) (stating that the

preponderance of evidence standard applies except where a different

standard is specified by law). Moreover, a heightened standard of review

is generally applied by legislation, see, e.g., section 240(c)(2)(A) of the

Act, 8 U.S.C. § 1229a(c)(2)(A) (2012) (providing that an applicant for

admission must prove that he or she is “clearly and beyond doubt” entitled

to be admitted), or by regulation promulgated after public notice and

comment, see, e.g., 8 C.F.R. § 1212. 7(d) (2013) (providing that a violent

offender may be granted a section 212(h)(2) waiver of inadmissibility by

“clearly demonstrat[ing]” that denial would result in the elevated level of

“exceptional and extremely unusual” hardship).

If we had jurisdiction to determine the standard of proof for the “no

risk” determination, we would find it appropriate to consider such matters

as the evidentiary difficulties involved and the individual and governmental

interests at stake. However, as discussed above, we lack jurisdiction to

resolve this issue under our limited review authority.

To the extent that the petitioner has raised arguments challenging the

constitutionality of the Adam Walsh Act provision at issue in this case,

we may not, as a general matter, entertain constitutional challenges to

provisions of the immigration laws. See Bagues-Valles v. INS, 779 F.2d

483, 484 (9th Cir. 1985); Matter of Fuentes-Campos, 21 I&N Dec. 905,

912 (BIA 1997).

Accordingly, the petitioner’s appeal will be dismissed.

ORDER: The appeal is dismissed.

DISSENTING OPINION: Ana M. Mann, Board Member

I respectfully dissent.

I would hold that the Board retains jurisdiction to review the legal

standard applied by the Secretary of Homeland Security to the “no risk”

determination. The term “sole and unreviewable discretion” reflects

Congress’ intent that the Field Office Director (“Director”) should have the

sole authority to review the petitioner’s evidence and to make a binding

discretionary determination that the petitioner poses “no risk” to the

beneficiary. However, the proper evidentiary standard to be applied is

purely a question of law that is within our expertise to decide. It is also a

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matter that is within our statutory authority to address in interpreting the

Immigration and Nationality Act and its accompanying regulations.

The Federal regulations explicitly provide that “[t]he Board may review

all questions arising in appeals from decisions issued by Service officers

de novo.” 8 C.F.R. § 1003.1(d)(3)(iii) (2013). In cases involving the

Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No.

109-248, 120 Stat. 587 (“Adam Walsh Act”), the appropriate standard of

proof to apply is a pure question of law, which is within the scope of our

review. Therefore, although Congress gave the Secretary unfettered

discretion to make “no risk” determinations free from review, absent

contrary legislative intent I would find that Congress did not divest us of

our understood authority to review de novo “all [other] questions,”

including, but not limited to, pure questions of law. Id. Under section

103(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1103(a)(1)

(2012), a determination by the Board “with respect to all questions of law

shall be controlling.” See Matter of Ruiz-Massieu, 22 I&N Dec. 833,

842−46 (BIA 1999) (finding that the Attorney General may not review a

determination by the Secretary of State on a question of foreign policy, but

that the Secretary must set forth a facially reasonable basis for a

determination).

The United States Citizenship and Immigration Services (“USCIS”) has

employed the standard of “beyond a reasonable doubt,” which is neither

authorized under the Adam Walsh Act nor the Immigration and Nationality

Act. The USCIS has not implemented regulations interpreting the Adam

Walsh Act. Rather, it simply states that based on the nature of the offenses

to which the Adam Walsh Act relates and the potential risk of harm to the

intended beneficiaries, it will interpret the “no risk” language of the statute

to require a higher level of evidence than that required in general visa

petition cases like marriage fraud cases. While I agree with the importance

of the interests at stake in these cases, the Secretary’s use of this standard of

proof goes beyond the express terms of the Immigration and Nationality

Act and the Adam Walsh Act.

In section 402(a) of the Adam Walsh Act, 120 Stat. at 622−23,

Congress imposed a heavy burden on petitioners to prove that they have not

been convicted of a “specified offense against a minor” and, if they fail to

meet that burden, to prove that they would pose no risk to the beneficiary in

order to merit a favorable exercise of the Secretary’s discretion. These

statutory hurdles are substantial for a petitioner to surmount. Thus, the

legitimate aims of the Adam Walsh Act would not necessarily be furthered

by imposing the kind of burden of proof usually reserved for the

Government to meet in criminal matters.

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The USCIS argues that “the ‘preponderance of the evidence’ standard is

not inviolable within visa petitions adjudications.” For example, the

USCIS points out that in marriage fraud cases, a petitioner must establish

by “clear and convincing evidence” that the beneficiary did not engage in a

prior marriage fraud. In addition, in the context of the nondisclosure of a

relative on a previous visa petition, a petitioner must submit “clear and

convincing” evidence that the relationship is bona fide in light of the prior

failure to disclose it to the Government. See Matter of Ma, 20 I&N Dec.

394, 398 (BIA 1991).

These examples involve allegations of fraud that can only be rebutted

with “clear and convincing” evidence that the relationship is bona fide.

See, e.g., Matter of Patel, 19 I&N Dec. 774, 782−83 (BIA 1988). In

marriage fraud cases, the standard of “clear and convincing” evidence is

actually explicit in the statute at section 204(a)(2)(A)(ii) of the Act,

8 U.S.C. § 1154(a)(2)(A)(ii) (2012), whereas here, the Secretary’s choice of

standard of proof lacks any statutory basis. Moreover, aside from these two

examples, the USCIS has cited no case where the “beyond a reasonable

doubt” standard has been used.1

Based on the lack of explicit statutory or regulatory authority for the

heightened standard, I would find that “beyond a reasonable doubt” is not

an appropriate standard to apply in these cases. I further believe that we

can review whether the Director fully considered and evaluated all of the

evidence and clearly set forth the basis for denial of the visa petition. See

Memorandum from Michael Aytes, Assoc. Dir., Domestic Operations,

to USCIS officials, at 7 (Feb. 8, 2007) (stating that the adjudicator

must clearly articulate the factual basis for the determination), available

at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_

Files_Memoranda/adamwalshact020807.pdf; see also Whetstone v. INS,

561 F.2d 1303, 1306 (9th Cir. 1977).

1

The Adam Walsh Act provides for the civil commitment of “sexually dangerous

person[s]” under 18 U.S.C. § 4248 (2012). Under § 4248(d), the Government has the

burden of proving that the respondent is sexually dangerous by “clear and convincing

evidence.” See United States v. Perez, No. 5:11-HC-2015-BR, 2012 WL 5493614, at

*3 (E.D.N.C. Nov. 13, 2012). This is a lesser standard than that which the USCIS applies

to Adam Walsh Act visa petitions, even though the restriction of a person’s liberty is

at stake under § 4248. Id.; see also United States v. Hunt, 643 F. Supp. 2d 161, 179

(D. Mass. 2009) (“The clear and convincing evidence standard is an ‘intermediate

standard,’ lying somewhere ‘between preponderance of the evidence and proof beyond

a reasonable doubt.’” (quoting Addington v. Texas, 441 U.S. 418, 425 (1979))).

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