Short title

This Act may be cited as the

Foreign Anti-Sex Offender Protection Act of 2006

Findings

The Congress finds the following: (1)Immigration law allows citizens and aliens lawfully admitted for permanent residence to bring foreign family members to the United States on the basis of immediate relative status or a preference classification. (2)Immediate relative status and preference classifications are obtained by filing petitions with the Secretary of Homeland Security. (3)For national security purposes, the Secretary of Homeland Security conducts background checks on the beneficiaries of such petitions and, since September 11, 2001, on the petitioners as well. (4)The Government Accountability Office (GAO) has determined that, in fiscal year 2005, at least 398 of the petitioners who filed family-based visa petitions were on the National Sex Offender Registry maintained by the Federal Bureau of Investigations. (5)GAO was only able to ascertain the nature of the sex offense for 194 of the 398 petitioners. (6)GAO was able to ascertain, however, that 119 of the convictions were for sex assault, 35 for child fondling, 9 for strong arm rape, 9 for carnal abuse combined with a sexual assault, 7 were for statutory rape, 4 for crimes against persons, 3 for indecent exposure, 2 for kidnapping, 2 for obscene material possession, 1 for exploitation of a minor with photographs, 1 for incest with a minor, 1 for sodomizing a boy, and 1 for restricting movement. (7)At least 14 of the 398 petitioners were classified as sexual predators, which means a determination had been made that they are likely to commit additional sex offenses. (8)At least 45 of the petitioners were convicted of sex offenses against children. (9)The Immigration and Nationality Act does not provide the Secretary of Homeland Security with authorization to deny family-based petitions on the basis of a petitioner’s conviction for a sex offense, even when the conviction record indicates that a spouse or a child beneficiary may be in grave danger.

Discretionary authority to deny family-sponsored classification petition by petitioner listed on national sex offender registry

Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:

(l)

Authority to deny family-based petition by petitioner listed on national sex offender registry

(1)

In general

The Secretary Homeland Security may, in the discretion of the Secretary, deny a petition under subsection (a) for classification of a spouse or child if— (A)the Secretary has confirmed that the petitioner is on the national sex offender registry maintained by the Federal Bureau of Investigation for a conviction that individually (disregarding any aggregation due to any other conviction) resulted in incarceration for more than 1 year; (B)the petitioner has been given at least 90 days to establish that the petitioner is not the person named on the registry or that the conviction did not result in incarceration for more than 1 year and has failed to establish such fact; and (C)the Secretary finds that granting the petition would put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. (2)

Determining danger

In making the determination under paragraph (1)(C), the Secretary shall use the following principles: (A)

Nature of the relationship

In evaluating a petitioner who has filed a petition for a spouse, consideration should be given to indications of how well the petitioner and the spouse know each other. Petitions filed on the basis of marriages between men and women who have had little direct, personal contact with each other should be viewed with suspicion. In cases where the petitioner and the spouse have had little direct, personal contact with each other, evidence should be submitted to establish that they have gotten to know each other in some other way. (B)

Nature of the sex offense

Consideration should be given to when each offense occurred for which the petitioner was incarcerated for more than a year, how serious it was, the sentence that was imposed, how long the petitioner was incarcerated, the age of the petitioner when it was committed, and the characteristics of the victim. (C)

Rehabilitation

Evidence of rehabilitation should be evaluated with respect to whether it diminishes the risk of sexual abuse to the primary or derivative spouse or child beneficiaries. (D)

Previous visa petitions

The records for any previous petitions shall be examined to determine whether they provide or might lead to evidence that is pertinent to determining whether granting the petition would put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. (3)

Rebuttal

If the Secretary intends to deny a petition under paragraph (1), the Secretary shall provide the petitioner with a notice that states the reasons for the intended denial and provides the petitioner with at least 90 days to submit rebuttal evidence. Rebuttal should focus primarily on the factors that led the Secretary to believe that granting the petition would put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. (4)

Post-denial remedies

(A)

Appeal

All final denials under paragraph (1) may be appealed to the Board of Immigration Appeals. (B)

New petition

The petitioner may file a new petition whenever the petitioner has additional evidence that the petitioner believes might be sufficient to warrant granting the new petition. (5)

Disclosure by the Secretary of Homeland Security to beneficiaries

In all cases in which it has been confirmed that the name of a petitioner under subsection (a) is listed on the national sex offender registry maintained by the Federal Bureau of Investigation, and regardless of whether the Secretary may exercise discretion under paragraph (1), the Secretary shall give the petitioner at least 90 days to establish that the petitioner is not the person named on the registry. If the petitioner fails to establish that the petitioner is not the person named on the registry within the time allotted, the Secretary shall provide the beneficiaries with a written copy of the information on the registry that is available to the public before making a decision on the petition. The beneficiary shall be informed that the registry information is based on available records and may not be complete. (6)

Disclosure to Department of State

In all cases in which it has been confirmed that the name of a petitioner under subsection (a) is listed on the national sex offender registry maintained by the Federal Bureau of Investigation, and regardless of whether the Secretary may exercise discretion under paragraph (1), the Secretary shall provide the Secretary of State with— (A)a separate document with information about the record on the national sex offender registry that is available to the public; (B)any additional information it has that raises concern that a primary or derivative spouse or child beneficiary may be subject to sexual abuse, including information from the registry that is not available to the public; and (C)information about any previous petitions under subsection (a) filed by the petitioner. (7)

Disclosure by consular officer to beneficiaries

When a petition under subsection (a) is granted, if the petition is filed by a petitioner who has failed to make the demonstration of mis-identification described in paragraph (5), the consular officer shall conduct an interview with the primary or derivative spouse or child beneficiary of the petition before issuing a visa to the beneficiary. At least part of the interview must be held without the presence of the petitioner. During the private part of the interview, the beneficiary will be given a written copy of the information about the petitioner from the registry that is available to the public. This document must be written in the beneficiary’s primary language. The consular officer is required to advise the beneficiary that approval of the visa petition does not mean that there are no reasons to be concerned about his or her safety. (8)

Additional responsibilities of consular officer

The consular officer may return files to the Secretary of Homeland Security for further consideration in cases where the consular officer is concerned that granting the visa might put a primary or derivative spouse or child beneficiary in grave danger of being sexually abused. When returning a file under the previous sentence, the consular officer may add any additional information or observations the officer has that might have a bearing on whether the visa should be granted, including the results of any field examination that has been conducted.

Removal of conditional permanent resident status

(a)

Identify and provide assistance for spouses and children who are subject to sexual abuse or related types of harm

Section 216(d)(3) of the Immigration and Nationality Act (8 U.S.C. 1186a(d)(3)) is amended— (1)by inserting before The interview the following:

(A)

In general

Subject to subparagraph (B), the interview

; and

(2)by adding at the end the following:

(B)

Petitioner listed on national sex offender registry

In all cases where the Secretary of Homeland Security has confirmed that a petitioning spouse is listed on the national sex offender registry maintained by the Federal Bureau of Investigation, an interview with the alien spouse, and any alien sons or daughters, shall be required prior to removal of the conditional status, and at least part of the interview shall be held without the presence of the petitioning spouse. During the private portion of the interview, questions will be asked to determine whether an investigation should be conducted regarding the welfare of the alien spouse, or any alien son or daughter. If it is determined that any alien spouse, son, or daughter is being abused or harmed by the petitioning spouse, the victim shall be offered whatever assistance is appropriate, including information on ways to remain in the United State that do not depend on continuing the qualifying marriage.

(b)

Hardship waiver in cases where the alien spouse or child is subject to sexual abuse

Section 216(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1186a(c)(4)) is amended— (1)in subparagraph (B), by striking or at the end (2)in subparagraph (C), by striking the period at the end and inserting , or; and (3)by inserting after subparagraph (C) the following:

(D)the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse, or a son or daughter of the spouse, was sexually abused and the alien was not at fault in failing to meet the requirements of paragraph (1).

Special task force to identify people named on the national sex offender registry who have filed family-based classification petitions

(a)

In general

The Secretary of Homeland Security shall establish a task force, to be known as the Task Force to Rescue Immigrant Victims of American Sex Offenders. The task force shall consist of officials from Federal, State, and local law enforcement agencies with experience in domestic violence, sex crimes, immigration law, trafficking in humans, organized crime, or any other area of experience which may be useful in completing the duties described in subsection (b). (b)

Duties

The duties of the task force shall be the following: (1)Working back in time from the date of the establishment of the task force, identifying individuals on the Federal Bureau of Investigation’s sex offender registry who have filed family-based petitions under section 204(a) of the Immigration and Nationality Act. When a confirmed match has been made with the sex offender registry, the task force should ascertain whether the petitioner filed previous petitions. (2)Maintaining the information about the petitioners in a comprehensive database. (3)Prioritizing the information according to the likelihood that primary or derivative spouse or child beneficiaries are in danger of sexual abuse. (4)Developing a system for investigating the cases in which beneficiaries may be at risk and providing them with information on how to seek assistance if they are abused. (5)Except for information on the registry that is available to the public, protecting the information produced by its investigations in accordance with the privacy rights of everyone involved in the investigation. (6)Taking whatever other actions as are reasonable and appropriate when investigations lead to information about sexual abuse or other criminal activities, including notifying State and local police departments, government offices, public organizations that provide assistance to victims of sexual abuse, and religious organizations. (c)

Report to Congress

Not later than 270 days after the date of the enactment of this Act, the Secretary shall submit to the Congress a report on the findings and recommendations of the task force. The report shall include the following: (1)An analysis of the information obtained in searching visa petition and national sex offender registry records. (2)The results of any investigations conducted by the task force. (3)Recommendations on administrative and legislative actions that would assist in identifying and protecting immigrant victims of sexual abuse or related harm.

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act. Amounts appropriated under this section shall remain available until expended.

Regulations

Regulations implementing this Act shall be promulgated in final form not later than 180 days after the date of the enactment of this Act.