The Effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law

This is an article I wrote for the newsletter for the Dallas Chapter of the Federal Bar Association on the effect of the Adam Walsh Child Protection and Safety Act of 2006 on Immigrants and Immigration Law:

On July 27, 2006, President Bush signed into law the “Adam Walsh Child Protection and Safety Act of 2006.” (PL 109-248 [HR 4472], 120 Stat 587)(Hereinafter, “The Act”). The Act’s purpose is to “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.” See Preface, PL 109-248.

The Act seeks to establish a comprehensive national system for the registration of certain criminal offenders. See Sec. 102 of the Act, codified at 42 U.S.C § 16901. Specifically, “sex offenders” are required to register with the appropriate local or state government registry. See Sec. 113 of the Act, codified at42 U.S.C § 16913.

A “sex offender” is defined as “an individual who was convicted of a sex offense.” See Sec. 111(1) of the Act, codified at 42 U.S.C § 16911. The term “sex offense” includes any offense (or conspiracy to commit that offense) that “has an element involving a sexual act or sexual contact with another,” any offense “that by its nature is a sexual offense against a minor” and many federal crimes, including those prohibiting sex abuse (Chapter 109A of Title 18, USC), sexual exploitation of children (Chapter 110 of Title 18, USC) and transportation for illegal sexual activity (Chapter 117 of Title 16, USC). See Sec. 111(5)(a) of the Act, codified at 42 U.S.C. § 16911.

The Act provides for strict reporting requirements upon such conviction and for the Justice Department to create a national registry of sex offenders. See Sec. 113(b) of the Act, codified at 42 U.S.C § 16913; Sec. 119 of the Act, codified at 42 U.S.C § 16919. Under the Act, a failure to register is itself a federal crime punishable by fine or imprisonment not more than ten years, or both. See Sec. 141 of the Act, codified at 18 U.S.C § 2250(a)(3).
The Act specifically targets immigrants in a number of ways. First, the Act does not limit its registration requirement to those who committed crimes within the United States. Thus, persons who were convicted of such offenses outside the United States presumably must register. However, the Act provides:
(B) FOREIGN CONVICTIONS.--A foreign conviction is not a sex offense for the purposes of this title if it was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 112.

Section 112(b) of the Act provides that the Attorney General shall issue guidelines and regulations to interpret and implement this title. See 42 U.S.C § 16912. However, these regulations have not been issued, so the definition of “sufficient safeguards” has yet to be determined.

Second, the Act provides:

The Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, shall establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register under this title. The Secretary of State and the Secretary of Homeland Security shall provide such information and carry out such functions as the Attorney General may direct in the operation of the system.

See Section 128 of the Act, codified at 42 U.S.C § 16928. Again, the Act provides no further details as to how this information is to be gathered or obtained.

Third, Section 401 of the Act amends Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A) by inserting a new clause: "(v) . . . Any alien who is convicted under section 2250 (failure to register as a sex offender} of title 18, United States Code, is deportable."

Fourth, Section 402 of the Act amends Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)) to bar U.S. citizens and Legal Permanent Residents (LPRs) convicted of any “specified offense against a minor” from having family based immigration petitions approved, “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 . . . is filed.” Unfortunately, Congress does not provide instruction as to how the Secretary is to make this determination.
Fifth, Section 402 of the Act further amends Section 101(a)(15)(K) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) to flatly prohibit a U.S. citizen convicted of any “specified offense against a minor” from sponsoring an alien for admission to the United States under a fiancé (K) Visa.
In sum, the Act broadens and toughens the penalties and consequences for sex offenders. Immigrant sex offenders (and the spouses and fiancés of U.S. citizen or LPR offenders) are not spared, and are specifically targeted for increased scrutiny and sanctions, without the benefit of clear guidelines or interpretive regulations.

Forensic Interview Problems in Sex Assault Cases

In child sex abuse cases, emotions run extremely high. In a recent trial I defended in Collin County, Texas, a 4 year old child made an "outcry" to her mother the night of alleged offense, but the next day, in a forensic interview, denied she was ever abused. Two days later, at the insistence of the mother, the child was reinterviewed and, after careful prompting and leading questions, accused my client of sex abuse.

The danger of such evidence is that the child's testimony then (and later) could be forever colored or "implanted" by improper interviewing techniques. The New Jersey Supreme Court in State v. Michaels, 642 A.2d 1372 (N.J. 1994) acknowledged this problem. In Michaels, a daycare worker was convicted of sex abuse based in large part on very leading and inappropriate questioning by the examiner of very young children:

In Michaels, the New Jersey court recognized that "the use of highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events." Id. at 1379. The court stated that the concern with the reliability of statements resulting from suggestive or coercive interview techniques 1 implicates "principles of due process." Id. at 1380. The court placed the initial burden to trigger a pretrial taint hearing on the defendant, who must make a showing of "some evidence" that the victim's statements were the product of suggestive or coercive interview techniques. Once the defendant establishes sufficient evidence of unreliability of statements at the pretrial hearing, the burden shifts to the state to prove reliability of proffered statements and testimony by clear and convincing evidence. Id. at 1383.

Johnson v. State, 2004 Tex. App. LEXIS 10133 (Tex.App.-Waco 2004). In the case we tried, we argued that even though the Michaels' test has not been adopted in Texas, there was enough evidence to require a "taint" hearing. The judge, to his credit, indicated that while he did not think the transcripts showed that there was enough improper questioning to suppress the testimony of the child, agreed to let us make a record.

The following day, we called our own forensic psychologist who indicated that, based on the foregoing, "some evidence" did exist that the statements were the product of suggestive or coercive interview techniques. The judge unexpectedly held that we had met our burden under Michaels, and required the State to call their examiner to prove the reliability of the proffered statements. At that point, we was able to cross the examiner and had, in this case, something to talk about. Following this, the State offered a plea to a deferred adjudication to a much reduced sentence (without sex offender registation), which the client accepted.