Criminal Defense of Immigrants

 

(D)  Expanded Sex Offender Registration Definition of Conviction.  In July, 2006, Congress passed the Adam Walsh Child Protection and Safety Act of 2006, which created a new conviction-based ground of deportation for those convicted “under” 18 U.S.C. § 2250 of the new federal offense of failure to register as a sex offender,[88] and created a bar to granting family visa petitions filed by a person with a conviction of a listed sex offense against a minor, unless the Attorney General decides the person poses no risk to a minor.[89]

 

                This legislation elsewhere defines “conviction” of an offense to include a person who has been adjudicated delinquent as a juvenile for that offense under certain limited circumstances.[90]   This expanded definition of “conviction,” however, does not apply to either of these new Adam Walsh Act immigration consequences.  See § § 12.8(D)(1), infra (family-visa bar); 12.8(D)(2) (new ground of deportation).  It does, however, apply to subject those adjudicated delinquent of listed sex offenses to the federal requirement to register as a sex offender, and to subject those who do not register as required to juvenile or criminal penalties for violating the registration statute.  See § 12.8(D)(3), infra.

 

                (1) Family-Visa Petition Bar.  The family visa bar, contained in § 402, does not incorporate the expanded definition of “conviction” that includes certain juvenile adjudications, for two reasons.  First, § 111, which contains in § 111(8) the expanded definition of conviction, does not state that it applies to the two immigration provisions of the Act.  Both of the new immigration provisions are contained in Title IV, rather than Title I, of the Act.  Section 111(8), which is contained in Title I of the Adam Walsh Act, specifically provides that “In this title the following definitions apply . . . .”[91]  Because the immigration provisions are not “[i]n this title,” the definitions contained in § 111 do not apply to them. 

 

                Second, the family visa bar does incorporate one of the other definitions contained in Title I, § 111 of the Act.  It provides that for purposes of the family visa bar, “the term ‘specified offense against a minor’ is defined as stated in section 111 of the Adam Walsh Child Protection and Safety Act of 2006.”[92]  This particular term, however, is defined in § 111(7) of the Act, not in § 111(8) which contains the expanded definition of conviction.  Because Congress specifically incorporated one of the other definitions in § 111, but not the expanded definition of conviction, it did not intend that expanded definition of conviction to apply to the family visa petition bar.  The maxim of statutory interpretation, “expressio unius est exclusio alterius,” means that where a statute lists the items to which it applies, “all omissions should be understood as exclusions.”[93]  The family visa bar, therefore, does not incorporate the expanded definition of “conviction.”  Therefore, neither § 111 nor § 402 incorporates the expanded definition of conviction, contained in § 111(8), into the provisions of the family-visa bar.  Juvenile adjudications of “specified offenses against a minor” are therefore not considered “convictions,” and persons with such juvenile adjudications on their records are therefore not barred by the Adam Walsh Act from filing family visa petitions.

 

                (2) New Ground of Deportation for Federal Conviction of Failure to Register as a Sex Offender.  The new ground of deportation for those convicted “under” 18 U.S.C. § 2250 of the new federal offense of failure to register as a sex offender does not incorporate the expanded definition of “conviction” that includes certain juvenile adjudications.  The definitions section of the Adam Walsh Act, which contains the expanded definition of “conviction,” does not state that its definitions apply to the new ground of deportation; it provides “In this title the following definitions apply . . . .” [94]  The definitions contained in § 111 therefore do not apply to the two immigration provisions of the Act, which are contained in Title IV, rather than Title I, of the Adam Walsh Act.  Moreover, the family-visa petition bar in Title IV of the Act does incorporate a specific definition from Title I of the Act, but it is not the expanded definition of conviction.  This shows that Congress knew how to incorporate definitions from Title I, § 111 into Title IV if it wished, since it in fact did so.  This also shows Congress recognized that it was necessary specifically to incorporate Title I definitions into Title IV if it wanted them to apply there, since the Title I definitions are otherwise expressly limited to Title I.  If there were any reasonable doubt, which there is not, the rule of lenity dictates interpreting the deportation statute in favor of the noncitizen.  See § 16.38, infra.  Therefore, neither § 111 nor § 401 incorporates the expanded definition of conviction, contained in § 111(8), into the provisions of the new ground of deportation.  Juvenile adjudications of violating 18 U.S.C. § 2250, therefore, do not trigger deportation under this new ground of deportation.  

 

                (3)  Criminal Penalties for Juveniles Adjudicated for Federal Failure to

Register Offense.  The expanded definition of conviction applicable in Title I applies only to Title I.[95]  This means that if a juvenile is adjudicated delinquent on the basis of a listed sex offense, s/he is required to register as a sex offender under Title I under certain limited circumstances.  The expanded definition of conviction provides that a juvenile adjudication is considered a conviction for the purpose of requiring registration as a sex offender “only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense.”[96]  The severity requirement can only mean the severity of the sentence.  Any other meaning of this term would be unconstitutionally vague.[97]   If the legislation means “comparable to or more severe than” the listed offense in some other sense, what sense is that?  How is the comparison to be made?  What standards are to be used?  The statute is silent on these questions.  The only listed offense, a violation of 18 U.S.C. § 2241, is extremely severe: each of the three subdivisions of that statute defining an offense is punishable by an indeterminate life sentence.  Thus, to be comparable in severity to those offenses, the offense of which the juvenile was adjudicated must have been punishable by a life sentence if committed by an adult.  Very few offenses will meet this requirement.

 

                The federal failure to register offense is not listed as an offense for which a juvenile can be transferred from federal juvenile proceedings to federal adult criminal proceedings.  See § 12.13, infra.  Therefore, the juvenile who commits this offense would be adjudicated delinquent in federal juvenile proceedings.  This adjudication would not constitute a conviction for deportation purposes, however, because the expanded definition of conviction that includes juvenile adjudications does not apply to this new ground of deportation, see § 12.8(D)(2), supra, so the general rule would apply that juvenile adjudications of this new offense do not constitute convictions for purposes of deportation.  See § 12.21, infra.

[88] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 401 (July 27, 2006).

[89] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 401 (July 27, 2006).

[90] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111(8) (July 27, 2006) (“The term `convicted’ or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense.”).

[91] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111 (July 27, 2006) (emphasis supplied).

[92] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 402 (July 27, 2006), inserting new INA § 204(a)(1)(A)(viii), 8 U.S.C. § 1154(a)(1)(A)(viii)(II) (“For purposes of subclause (I)[the family-visa bar], the term ‘specified offense against a minor’ is defined as in section 111 of the Adam Walsh Child Protection and Safety Act of 2006.”).

[93] N. Singer, Statutes and Statutory Construction § 47:23, p. 307 (6th ed. 2002).

[94] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111 (July 27, 2006) (emphasis supplied).

[95] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111 (July 27, 2006)  (In this title, the following definitions apply . . . .”).

[96] Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, § 111(8) (July 27, 2006).

[97] See Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703 (1951); United States v. Batchelder, 442 U.S. 114, 123 (1979) (“[V]ague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.”) (dictum); Schall v. Martin, 467 U.S. 253, 278-79 n.30 (1984) (dictum) (apparently upholding definition of a “dangerous special offender” under 18 U.S.C § 3575 against vagueness challenge).