Immigration Benefits: Circumstances under Which Petitioners' Sex
Offenses May Be Disclosed to Beneficiaries (14-JUN-06,
GAO-06-735).
In fiscal year 2005, U.S. citizens and lawful permanent residents
filed about 730,000 petitions with the U.S. Citizenship and
Immigration Services (USCIS) to sponsor noncitizen family
members, including spouses, fiances, and children, to immigrate
to the United States. Those doing the sponsoring are called
petitioners; those benefiting from the sponsoring are called
beneficiaries. If USCIS approves the petition, overseas
beneficiaries must also file a visa application with the
Department of State to enter the United States. In January 2002,
USCIS started to conduct background security checks on all
petitioners in addition to the beneficiaries. These background
checks revealed that some of the petitioners had convictions for
criminal sex offenses; further, some of those criminal sex
offenders were filing family-based petitions for children (those
under the age of 21). This report addresses the number of
convicted sex offenders who filed family-based petitions in
fiscal year 2005 based upon a computer match of USCIS data with
individuals in the Federal Bureau of Investigation's National Sex
Offender Registry and discusses USCIS's and the Department of
State's framework for disclosing a sponsor's criminal sexual
background to the beneficiary. DHS, the Department of State, and
the Department of Justice reviewed a draft of this report. Only
technical comments were provided and have been incorporated into
this report.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-06-735
ACCNO: A55539
TITLE: Immigration Benefits: Circumstances under Which
Petitioners' Sex Offenses May Be Disclosed to Beneficiaries
DATE: 06/14/2006
SUBJECT: Beneficiaries
Criminal background checks
Criminals
Immigrants
Immigration
Sex crimes
Visas
Resident aliens
Information disclosure
DOJ National Sex Offender Registry
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GAO-06-735
* USCIS and the Department of State May Disclose a Petitioner'
* New Statute Requires Disclosure of Petitioner's Criminal Bac
* USCIS and Department of State Efforts to Issue Disclosure Gu
* Order by Mail or Phone
Report to the Subcommittee on Immigration, Border Security, and Claims,
Committee on the Judiciary, House of Representatives
United States Government Accountability Office
GAO
June 2006
IMMIGRATION BENEFITS
Circumstances under Which Petitioners' Sex Offenses May Be Disclosed to
Beneficiaries
GAO-06-735
Contents
Letter 1
Results in Brief 3
Background 4
Hundreds of Convicted Sex Offenders Have Petitioned for Spouses,
Fiance(e)s, and other Relatives, including Children 7
Agencies Have a Framework for Disclosing Petitioners' Criminal Sexual
History to Noncitizen Beneficiaries 12
Concluding Observations 17
Agency Comments and Our Evaluation 17
Appendix I Scope and Methodology 19
Appendix II GAO Contact and Staff Aknowledgments 21
Table
Table 1: Conviction Descriptions of 411 Sex Offenses Committed by the 398
Sex Offenders 10
Figures
Figure 1: Primary Beneficiaries Petitioned For by Convicted Sex Offenders
in Fiscal Year 2005 8
Figure 2: Status of Petitions Filed by Convicted Sex Offenders 9
Abbreviations
DHS Department of Homeland Security FBI Federal Bureau of Investigation
FDU Fraud Detection Unit IMBRA International Marriage Broker Regulation
Act IBIS Interagency Border Inspection System INA Immigration and
Nationality Act INS Immigration and Naturalization Service NCIC National
Crime Information Center NSOR National Sex Offender Registry USCIS U.S.
Citizenship and Immigration Services
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
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separately.
United States Government Accountability Office
Washington, DC 20548
June 14, 2006
The Honorable John N. Hostettler Chairman The Honorable Sheila Jackson Lee
Ranking Minority Member Subcommittee on Immigration, Border Security, and
Claims Committee on the Judiciary House of Representatives
A U.S. citizen or lawful permanent resident, called the sponsor or
petitioner, can file a petition with the U.S. Citizenship and Immigration
Services (USCIS), within the Department of Homeland Security (DHS), to
have noncitizen relatives, such as spouses or children, immigrate to the
United States. In addition, U.S. citizens, but not lawful permanent
residents, can petition for noncitizen fiance(e)s and their children. If
USCIS approves the petition, the noncitizen relative or fiance(e), called
the beneficiary, can then apply to enter or remain in the United States.
If the beneficiary is overseas, the Department of State is responsible for
determining whether to issue a visa. If the beneficiary is already in the
United States in a nonimmigrant status, such as a visitor or student, he
or she would apply to USCIS to change his/her status to that of lawful
permanent resident. In fiscal year 2005, approximately 730,000
family-based petitions were filed with USCIS.1 Among those filing
family-based petitions were convicted sex offenders. The Immigration and
Nationality Act does not prohibit convicted sex offenders from petitioning
to bring their fiance(e)s, spouses, or children into the United States,
and their petitions may be approved despite their criminal sexual history.
USCIS does not have general authority to deny a petition based solely on
the fact that a petitioner may be a convicted sex offender. In cases where
there is no other basis for denying a petition, USCIS or the State
Department may be faced with the issue of whether, and under what
circumstances, they can disclose the petitioner's criminal sexual history
to a beneficiary consistent with any applicable privacy restrictions.
1For the purposes of this report, we are considering petitions for family
members and fiance(e)s as family-based petitions.
Prior to September 11, 2001, the Immigration and Naturalization Service
(INS), USCIS's predecessor, conducted background security checks on all
beneficiaries applying to immigrate to the United States. In January 2002,
INS instituted mandatory background checks on all beneficiaries and
petitioners for all immigration benefits, including U.S. citizen
petitioners. USCIS continues to conduct these checks. While these
background checks were primarily instituted for national security and
public safety reasons, such as identifying terrorists or terrorist
threats, the checks revealed that some petitioners had criminal
convictions, including convictions for criminal sex offenses. Some of
these petitioners had petitioned for minor children, which the Immigration
and Nationality Act generally defines as an unmarried child under 21 years
old.2
You asked us to determine the number of convicted sex offenders who filed
family-based petitions, and in particular petitions for children. You also
expressed interest in understanding the circumstances surrounding possible
disclosure of a petitioner's criminal sex offender history to the
noncitizen beneficiary. This report addresses the following:
o the number of convicted sex offenders who filed family-based
petitions in fiscal year 2005, and
o USCIS's and Department of State's framework for disclosing a
sponsor's criminal sexual background to the noncitizen
beneficiary.
To determine how many convicted sex offenders filed family-based petitions
in fiscal year 2005, we conducted a computer match using data from USCIS's
family-based petitions filed in fiscal year 2005 with data on individuals
listed in the Federal Bureau of Investigation's (FBI) National Crime
Information Center's (NCIC) National Sex Offender Registry (NSOR). The
NSOR is a national database that compiles data furnished by the states
from their sex offender registries. As of December 2005, the NSOR
contained data on approximately 413,000 sex offenders. The FBI is required
by federal law to maintain this registry to track the whereabouts and
movement of convicted sex offenders who have been (1) convicted of a
criminal offense against a victim who is a minor, (2) convicted of a
sexually violent offense, or (3) who are "sexually violent predators."3 We
matched several data elements that were the same in both data sets, such
as name, date of birth, or Social Security number, to provide a high level
of assurance that the petitioner in the USCIS database was the same person
as the sex offender in the NSOR. We determined that the data we used from
the USCIS database and the NSOR were sufficiently reliable for the
purposes of this report. Appendix I contains a more detailed description
of the scope and methodology of our computer match, including the data-
matching criteria we used to decide whether the petitioner in the USCIS
database was a match with the sex offender in the NSOR.
28 U.S.C. S: 1101(b)(1).
3The requirement to establish the registry appears at 42 U.S.C. S:
14072(b). Detailed statutory definitions for the registry's three offense
categories appear at 42 U.S.C. S: 14071(a)(3).
To determine USCIS's and the Department of State's framework for
disclosing a sponsor's criminal sexual background to the noncitizen
beneficiary, we reviewed relevant laws, including the International
Marriage Broker Regulation Act (IMBRA) of 2005, the Immigration and
Nationality Act, and the Privacy Act of 1974, as well as relevant
regulations and policy guidelines. We also interviewed USCIS and
Department of State officials and obtained each agency's written position
regarding the scope of its authority to disclose a petitioner's criminal
sex offender history to a beneficiary. We conducted our work from August
2005 through June 2006 in accordance with generally accepted government
auditing standards.
Results in Brief
At least 398 convicted sex offenders filed petitions for spouses,
fiance(e)s, children (those under the age of 21), and other relatives in
fiscal year 2005. They filed a total of 420 of the approximately 730,000
family-based petitions filed in fiscal year 2005. While most of the
beneficiaries were spouses and fiance(e)s, we determined that at least 60
were unmarried children under 21. Fourteen of the 398 sex offender
petitioners were classified in the FBI's NSOR as sexually violent
predators, defined in federal law as offenders who have been convicted of
a sexually violent offense and are likely to engage in predatory sexually
violent offenses again. At least 3 of the 14 sexual predators had filed
petitions for children.
According to USCIS and Department of State officials, an exception to the
Privacy Act of 1974 gives them authority to disclose a petitioner's
criminal sexual history if there are "compelling circumstances affecting
the health and safety" of the beneficiary. For certain noncitizen
beneficiaries, disclosure of the petitioner's criminal background
information is mandatory based on new authority granted to USCIS and the
Department of State. IMBRA requires disclosure of a U.S. citizen's
criminal background information, including sex crimes, to certain
prospective immigrants, essentially noncitizen fiance(e)s, but some
spouses and children as well. Mandatory disclosure is not required for
beneficiaries not covered by IMBRA, though they may receive information
about a petitioner's criminal background on a discretionary basis under
the Privacy Act exception. We estimate that IMBRA's mandatory disclosure
requirement will cover about 20 percent of family-based beneficiaries
based on fiscal year 2005 data. On May 3, 2006, USCIS issued interim
guidance to its adjudicators4 on when it may be appropriate to disclose
information related to a petitioner's criminal background information
under the "compelling circumstances" exception to the Privacy Act. This
guidance also stated that USCIS will issue separate guidance related to
disclosure requirements under IMBRA. The Department of State said that it
is preparing to issue guidance related to its discretionary disclosure
authority under the Privacy Act and plans to issue separate disclosure
guidance with respect to disclosure requirements under IMBRA.
We provided a draft of this report to DHS, the Department of State, and
the Attorney General for review. Only technical comments were provided,
which we incorporated into our report as appropriate.
Background
The Immigration and Nationality Act (INA), as amended, is the primary body
of law governing immigration and visa operations. Among other things, the
INA defines the powers given to the Secretaries of State and Homeland
Security5 and the consular and immigration officers who serve under them,
delineates categories of and qualifications for immigrant and nonimmigrant
visas, and provides a broad framework of operations through which foreign
citizens are allowed to enter and immigrate to the United States. USCIS is
generally responsible for administering the citizenship and immigration
services of the United States. Most foreign nationals living abroad who
wish to immigrate to the United States must obtain a visa through the
Department of State's Bureau of Consular Affairs.
U.S. citizens and lawful permanent residents, that is, petitioners, can
request or petition USCIS to allow certain relatives to immigrate to the
United States. As the first step in a two step process, petitioners must
file a family-based petition with USCIS. U.S. citizens and lawful
permanent residents may file a Form I-130 for an alien relative, such as a
wife or child, to immigrate to the United States. U.S. citizens (but not
lawful permanent residents) may also petition to bring a noncitizen
fiance(e) to the United States by filing a Form I-129F with USCIS.6 The
I-129F or I-130 petitions may also list "derivative beneficiaries," such
as the beneficiary's unmarried child under 21 years old, who are eligible
to immigrate with the primary beneficiary. The purpose of these petitions
is to establish the petitioner's relationship to the family member or
fiance(e) who wishes to immigrate to the United States. USCIS adjudicators
are to review petitions and make determinations, in accordance with
immigration law, on whether to approve or deny petitions. If a petition is
approved, the second step in the process is to determine whether the
noncitizen is admissible under immigration law to enter or remain in the
United States. If the noncitizen is overseas, USCIS will send the approved
petition to the State Department and a State Department consular officer
will determine whether to issue a visa to the noncitizen. If the
noncitizen is already in the United States in a nonimmigrant status, such
as a visitor or student, when the petition is approved, a USCIS
adjudicator will determine whether to allow the noncitizen to change, or
"adjust," his/her status to that of a lawful permanent resident.
4Adjudicators determine eligibility for various types of immigration
benefits, including permission for relatives to immigrate and permission
to become U.S. citizens.
5The INA is deemed to refer to the Secretary of Homeland Security in
describing those immigration functions, such as those performed by USCIS,
which were transferred to the Secretary from the Attorney General under
the Homeland Security Act of 2002. 6 U.S.C. S: 557.
As part of its review, USCIS conducts background security checks on
petitioners as well as noncitizen beneficiaries. These background checks
were instituted for national security purposes such as identifying
terrorists or terrorist threats, and for public safety reasons, such as
identifying human rights violators or aggravated felons. According to
USCIS officials, background security checks were conducted on all
beneficiaries prior to September 11. As of January 2002, however,
background security checks were required to be conducted on all
petitioners, including U.S. citizens, as well as beneficiaries.
USCIS adjudicators conduct background security checks using the
Interagency Border Inspection System (IBIS), which is a multi-agency
computer system of lookouts for terrorists, drug traffickers, and other
such criminal types. IBIS contains numerous database files and interfaces
with sources such as the FBI's National Crime Information Center.7 The
NCIC contains various data, including data on violent gangs and
terrorists, immigration violators, and the National Sex Offender Registry.
During a background check, if an IBIS query returns a "hit" where the name
and date of birth information entered returns a positive response from one
or more of the databases, and it appears the petitioner may have a
criminal background, USCIS adjudicators are to forward this information to
a Fraud Detection and National Security (FDNS) officer within USCIS. FDNS
officers are to conduct further system searches for verification of the
criminal hits. After researching and summarizing the criminal data on the
petitioner, FDNS officers are to notate their findings in a resolution
memorandum and send the memo back to the adjudicator responsible for the
file. Assuming the petitioner cannot be referred to law enforcement or, in
the case of a lawful permanent resident, deported, the adjudicator then
continues the review and accepts or denies the petition based on whether
there appears to be a valid relationship between the petitioner and the
beneficiary.
6Because lawful permanent residents may not bring fiance(e)s into the
United States, they must file an I-130 petition for immigration of a
spouse after the marriage.
The FBI NCIC NSOR is a compilation of state registration information about
sex offenders. The NSOR is statutorily mandated by the Pam Lychner Sexual
Offender Tracking and Identification Act of 1996.8 The act directs the
Attorney General to establish a national database at the FBI to track the
whereabouts and movement of (1) each person who has been convicted of a
"criminal offense against a victim who is a minor," (2) each person who
has been convicted of a "sexually violent offense," and (3) each person
who is determined to be a "sexually violent predator." As implemented, the
NSOR is a nationwide system that links states' sex offender registration
and notification programs. Each of the 50 states and the District of
Columbia has created a sex offender registry based on the above three
conviction categories and has established an interface with the FBI's
national system in order to transmit state registry information to the
national registry. State registries contain information on sex offenders
who are required to register and that reside, work, or attend school
within the state.
7The NCIC is a national database of documented criminal justice
information and consists of 18 data files. The seven property files
contain records for articles, boats, guns, license plates, securities,
vehicles, and vehicle and boat parts. The 11 person files are the
Convicted Sexual Offender Registry, Foreign Fugitive, Identity Theft,
Immigration Violator, Missing Person, Protection Order, Supervised
Release, Unidentified Person, U.S. Secret Service Protective, Violent Gang
and Terrorist Organization, and Wanted Person Files. The Interstate
Identification Index, which contains automated criminal history record
information, is also accessible through the same network as the NCIC.
8Pub. L. No. 104-236, 110 Stat. 3093 (1996).
Hundreds of Convicted Sex Offenders Have Petitioned for Spouses, Fiance(e)s, and
other Relatives, including Children
At least 398 convicted sex offenders filed petitions for spouses,
fiance(e)s, children, and other relatives in fiscal year 2005 based upon
matching several data elements from USCIS's database with data from FBI's
National Sex Offender Registry. There may be additional convicted sex
offenders who filed family-based petitions. For example, we could not
determine with a high degree of confidence whether 53 petitioners that had
the same name and date of birth as a person in the NSOR were the same
individuals because there were no additional data items, such as Social
Security number or address, that we could match. Therefore, we did not
include these additional 53 petitioners in our count because it is
possible that two people could have the same name and date of birth.
The 398 sex offenders filed a total of 420 petitions. Figure 1 shows the
type of beneficiaries for which petitions were filed by convicted sex
offenders. USCIS data indicate that 371 (88 percent) of the beneficiaries
were spouses and fiance(e)s, 33 (8 percent) were unmarried children under
21 years old, and 16 (4 percent) were classified as other relatives. We do
not know, however, what percentage of unmarried children under 21 years
old were minors under the federal criminal code, which defines a minor as
under 18 years old for purposes of certain child sexual offenses.9 In
addition, certain relatives of the primary beneficiary, such as unmarried
children, under 21 years old, of the noncitizen spouse or fiance(e),
called derivative beneficiaries, may also immigrate with the beneficiary.
However, USCIS's data system only includes information on the primary
beneficiary, not on any derivative beneficiaries. Therefore, our data
underestimate the actual number of beneficiaries. For example, in addition
to the 33 unmarried children under 21 years of age that were the primary
beneficiaries of sex offenders, the State Department provided us data from
its visa processing system indicating that there were at least an
additional 27 children who were derivative beneficiaries associated with
fiance(e) petitions. Both USCIS and State Department data together total
at least 60 unmarried children under 21 years of age.
918 U.S.C. S: 2256(1).
Figure 1: Primary Beneficiaries Petitioned For by Convicted Sex Offenders
in Fiscal Year 2005
Note: Total does not equal 100 percent because of rounding. As of December
2005, the majority, or about 62 percent, of the petitions filed in fiscal
year 2005 for noncitizen relatives-spouses, children, and other
relatives-by petitioners with criminal sex offender backgrounds were still
pending a decision; about 37 percent had been approved, and 1 percent had
been denied. Most, or approximately 75 percent of, petitions filed by
criminal sex offenders for fiance(e)s had been approved (see fig. 2).
Figure 2: Status of Petitions Filed by Convicted Sex Offenders
As shown in table 1, some of the sex offenders have been convicted of
multiple sex crimes. The 398 sex offenders were convicted of at least 411
sex offenses, including sexual assault, rape, and child molestation,
according to conviction data contained in the NSOR. At least 45 of the
convictions were for sex offenses against children.10 It is possible that
more than 45 convictions involved sex offenses against children, but this
number could not be determined based on the conviction description in the
registry. For example, the conviction description for 217 of the 411
convictions, or 53 percent, is "sex offense." In addition, 14 petitioners
were classified as sexual predators. Consistent with statute,11 the NSOR
classifies "sexual predator" as an offender who has been convicted of a
sexually violent offense and suffers from a mental abnormality or
personality disorder that makes the person likely to engage in predatory
sexually violent offenses again. These 14 sexual predators filed a total
of 17 petitions. As of December 2005, 9 of the 17 petitions filed were
approved and 8 were pending. Three of the 14 petitioners who were
classified as sexual predators filed for unmarried children under 21 years
old.
10The 45 convictions include sex offender---child fondling (35), statutory
rape (7), sex assault---sodomy boy (1), incest with minor (1), and
exploitation minor-photograph (1).
11 42 U.S.C. S: 14071(a)(3)(C).
Table 1: Conviction Descriptions of 411 Sex Offenses Committed by the 398
Sex Offenders
Conviction description Total
Sex offense 217
Sex assault 119
Sex offense-child fondling 35
Rape-strong arm 9
Sexual Assault-carnal abuse 9
Statutory rape-no force 7
Crimes against persons 4
Indecent exposure 3
Kidnapping 2
Obscene material possession 2
Sovereignty (restrict movement) 1
Sex assault-sodomy boy 1
Incest with minor 1
Exploitation minor-photograph 1
Total 411
Source: GAO analysis of USCIS and FBI data.
Note: Thirteen sex offenders had more than one conviction in the NSOR.
Convicted sex offenders are not prohibited by the INA from petitioning to
bring their spouses, fiance(e)s, or children into the United States.
According to USCIS and the Department of State, neither agency has general
authority to deny a petition or visa based solely on the fact that a
petitioner may be a convicted sex offender. In a December 2005 letter to
GAO, USCIS's Acting Chief Counsel stated that USCIS may not reject or deny
family-based petitions on the grounds that the petitioner has a criminal
background, lacks good moral character, or other possible negative
factors.12 The review and ultimately the approval of such petitions
centers on whether the facts stated in the petition are true and whether
there exists the requisite relationship between the petitioner and the
beneficiary. It is possible that a petitioner's criminal history may be
relevant to the question of whether the petitioner has established the
requisite relationship. For example, a petitioner's conviction for fraud,
bigamy, or alien smuggling would be relevant in determining whether a bona
fide relationship exists between the petitioner and a noncitizen spouse
beneficiary.
According to officials in the Department of State's Bureau of Consular
Affairs, the Department of State cannot deny a visa to a noncitizen based
solely on the fact that the petitioner is a convicted sex offender or has
other criminal convictions. The review and ultimately the approval of a
visa centers on whether the noncitizen is admissible under immigration law
to enter the United States and on whether there exists the prerequisite
relationship between the petitioner and the beneficiary. Therefore,
consular officers have no legal basis to deny a visa to a noncitizen based
solely on the fact that the petitioner has a criminal sexual background.
In cases where there is no basis for denying a petition or visa, both the
State Department and USCIS may be faced with the issue of whether, and
under what circumstances, they can disclose the petitioner's criminal
sexual history to a beneficiary consistent with any applicable privacy
restrictions.
12While USCIS may not deny a petition based solely on the petitioner's
criminal history, USCIS officials stated that they may commence removal
proceedings if the petitioner is a lawful permanent resident who has been
convicted of a sex offense that renders him or her removable from the
United States. Section 237(a)(2) of the Immigration and Nationality Act
contains a list of criminal offenses (such as moral turpitude) that could
cause a person to lose his or her lawful permanent resident status. 8
U.S.C. S: 1227(a)(2). However, deportation is not an option for U.S.
citizens with criminal backgrounds.
Agencies Have a Framework for Disclosing Petitioners' Criminal Sexual History to
Noncitizen Beneficiaries
According to both USCIS and Department of State officials, the compelling
circumstances exception to the Privacy Act of 1974 provides authority to
disclose a petitioner's criminal sexual history to a noncitizen
beneficiary on a case-by-case basis. For certain noncitizen beneficiaries,
disclosure of the petitioner's criminal background information is
mandatory based on new authority granted to USCIS and the Department of
State. The recently enacted International Marriage Broker Regulation Act
(IMBRA) of 200513 requires disclosure of a U.S. citizen's criminal
background information, including sex crimes, to certain prospective
immigrants, essentially noncitizen fiance(e)s, but some spouses and
children as well. USCIS must furnish this criminal background information
to the Department of State for purposes of making IMBRA disclosures. On
May 3, 2006, USCIS officials issued interim guidance to its adjudicators
on making disclosures under the compelling circumstances exception to the
Privacy Act and stated that USCIS would soon issue additional guidance
with respect to IMBRA disclosures. The Department of State informed us
that it is preparing to issue disclosure guidance to consular officers
that will cover discretionary Privacy Act disclosures and that it is
finalizing separate disclosure guidance with respect to the mandatory
disclosures required under IMBRA, but this guidance cannot be issued until
USCIS finalizes its IMBRA related procedures.
USCIS and the Department of State May Disclose a Petitioner's Criminal Sexual
History to a Noncitizen Beneficiary Based on Their Interpretation of a Privacy
Act Exception
The Privacy Act of 1974 states that, "no agency shall disclose any record
which is contained in a system of records by any means of communication to
any person, or to another agency, except pursuant to a written request by,
or with the prior written consent of, the individual to whom the record
pertains."14 While information from the covered systems is generally not
to be disclosed, there are 12 exceptions. One of these exceptions
authorizes an agency to make a disclosure "to a person pursuant to a
showing of compelling circumstances affecting the health or safety of an
individual if upon such disclosure notification is transmitted to the last
known address of such individual." Both USCIS and the Department of State
have interpreted the compelling circumstances exception in the Privacy Act
as authority to permit the disclosure of a petitioner's criminal sexual
history information.
13IMBRA was enacted on January 5, 2006, as part of the Violence Against
Women and Department of Justice Reauthorization Act of 2005, Pub. L. No.
109-162, 119 Stat. 2960 (2006). The statute's IMBRA provisions are set
forth in sections 831 through 834, and IMBRA citations in this report will
identify the appropriate section.
145 U.S.C. S: 552a(b).
In a December 2005 letter to GAO, USCIS's Acting Chief Counsel stated that
if USCIS learns that a petitioner has a substantiated history of sexual
assault or child molestation, then USCIS has the discretion in compelling
circumstances to disclose that information to the beneficiary. On May 3,
2006, USCIS issued Privacy Act interim guidance advising adjudicators of
when it may be appropriate to disclose a petitioner's criminal history
involving violence or sex offenses to potential visa beneficiaries under
the compelling circumstances exception. Generally, disclosure is limited
to those portions of the petitioner's criminal history involving violence
or sex offenses that are directly relevant to the "health and safety" of
the potential beneficiary. As an example, the guidance provides that
normally, "a conviction as a sexual predator should be considered a
compelling circumstance affecting the health and safety of a child who
would reside with the sexual predator." The guidance further states that
any concerns about safety that adjudicators have that are outside the
scope of the guidance should be brought to the attention of their
supervisor.
According to Department of State officials, protecting the health or
safety of a minor child would constitute compelling circumstances to
disclose a petitioner's criminal sex offender background, though the
exception might also apply in cases that did not involve a minor child. In
a letter to GAO, the Chief, Advisory Opinions Branch, of the Department of
State's Visa Office wrote, "the clear possibility of abuse that an
immigrant child would face while living in the same household as a
convicted sex offender provides a strong basis for applying the health and
safety exception in these cases." The Department of State asserts that its
position is "consistent with overall U.S. policy balancing the need to
inform the public of the potential threat to a community posed by a child
sex offender with the privacy interests of the offender." According to the
Department, consular officials are to consult with the department's visa
policy and legal staff prior to disclosure of a criminal record or other
negative factors.
New Statute Requires Disclosure of Petitioner's Criminal Background Information
to Some Noncitizen Beneficiaries
For certain noncitizen beneficiaries, disclosure of the petitioner's
criminal background information is now mandatory based on new authority
granted to USCIS and the Department of State. The recently enacted
International Marriage Broker Regulation Act of 2005 requires disclosure
of a U.S. citizen's criminal background information, including sex crimes,
to certain prospective immigrants, essentially noncitizen fiance(e)s, but
also some spouses and children (i.e., unmarried children under 21 years
old who are derivatives of the primary beneficiary).
IMBRA mandates disclosure of a U.S. citizen's criminal history, including
sex crimes, to certain prospective immigrants known as K nonimmigrant visa
applicants,15 who are essentially noncitizen fiance(e)s, but also some
spouses and children. Obtaining a K visa allows the fiance(e), spouse, or
child to enter the United States as a nonimmigrant and then apply for
immigrant (i.e., lawful permanent resident) status while in this country.
Under section 832 of IMBRA, USCIS must revise its I-129F petition to
require petitioners to disclose criminal background information for
numerous specified crimes, including domestic violence, sexual assault,
child abuse and neglect, and incest.16 Any criminal background information
USCIS possesses with respect to the petitioner must accompany any approved
petition that is forwarded to the Department of State.17 IMBRA goes on to
provide: "The Secretary of State, in turn, shall share any such criminal
background information that is in government records or databases with the
K nonimmigrant visa applicant who is the beneficiary of the petition. The
visa applicant shall be informed that such criminal background information
is based on available records and may not be complete."18 To effectuate
IMBRA's mandatory disclosure requirement, the Department of State must
mail the visa applicant a copy of the petition, including any criminal
background information, as well as a government-developed domestic
violence information pamphlet.19 Supplementing the disclosure by mail,
IMBRA also requires Department of State consular officers to "provide for
the disclosure of such criminal background information to the visa
applicant at the consular interview in the primary language of the visa
applicant."20
15K nonimmigrant visa applicants are so called because they are defined by
subparagraph (K) of section 101(a)(15) of the Immigration and Nationality
Act (INA). In particular, a K nonimmigrant is one of the following: (1) a
fiance(e) of a U.S. citizen seeking to marry within 90 days of entering
the United States; (2) the spouse of a U.S. citizen seeking to enter the
United States as a nonimmigrant while awaiting the approval of an
immigrant (i.e., lawful permanent resident) visa; or (3) the minor child
(i.e., unmarried child under 21 years old) of the aforementioned fiance(e)
or spouse, who will be accompanying them to the United States. 8 U.S.C. S:
1101(a)(15)(K), (b)(1).
16USCIS's revised I-129F petition is currently in draft form. As required
by statute, the specified crimes that petitioners must report on their
I-129F forms are domestic violence, sexual assault, child abuse and
neglect, dating violence, elder abuse, stalking, homicide, murder,
manslaughter, rape, abusive sexual contact, sexual exploitation, incest,
torture, trafficking, peonage, holding hostage, involuntary servitude,
slave trade, kidnapping, abduction, unlawful criminal restraint, false
imprisonment, or at least three convictions for crimes relating to a
controlled substance or alcohol not arising from a single act.
17IMBRA does not permit USCIS to conduct any new or additional criminal
background check that is not otherwise conducted in the course of
adjudicating petitions. IMBRA, section 833(a)(5)(A)(iii). On the basis of
this restriction, USCIS officials said that petition background checks
will be limited to IBIS.
18IMBRA, section 833(a)(5)(A)(iii).
IMBRA's mandatory disclosure requirement only extends to fiance(e)s,
spouses, and their minor children (i.e., unmarried children under 21 years
old), who are sponsored by U.S. citizens and enter the United States on a
K nonimmigrant visa issued by the Department of State. IMBRA's mandatory
disclosure requirement does not cover (1) the spouses and minor children
of lawful permanent residents, who do not have the option of entering the
United States using a K visa; (2) the spouses and minor children of U.S.
citizens who enter the United States on an immigrant visa; or (3) any
noncitizen already in the United States applying directly to USCIS for
immigrant status.21 According to the data we reviewed, most noncitizens
entering under family-based petitions will not be covered by IMBRA's
mandatory disclosure requirement. In fiscal year 2005, about 80 percent of
all family-based petitions filed were for other than K visas.
USCIS and Department of State Efforts to Issue Disclosure Guidance
USCIS issued interim guidance related to Privacy Act disclosures on May 3,
2006. The guidance advises adjudicators of when "compelling circumstances"
may exist to disclose a petitioner's criminal history involving violence
or sex offenses: for example, protecting the health and safety of a child
beneficiary who would reside with a sexual predator would normally
constitute a compelling circumstance to make a disclosure. The guidance
states that disclosure should be limited only to those portions of the
petitioner's criminal history that are directly relevant to the health and
safety of the potential beneficiary. The guidance also contains Privacy
Act procedures that adjudicators must follow when they make a disclosure,
such as providing written notice of the disclosure to the petitioner and
annotating the USCIS file to maintain a record of the disclosure and the
justification for it. When the beneficiary is within USCIS's jurisdiction,
the guidance informs adjudicators to make disclosures during in-person
interviews with the beneficiary. When the beneficiary is abroad, the
guidance requires the adjudicator to provide to the State Department any
adverse information that might affect the health or safety of a
beneficiary to enable the State Department to make a decision regarding
disclosure.
19 IMBRA, section 833(a)(5)(A). IMBRA charges the Secretary of Homeland
Security with developing the domestic violence information pamphlet, in
consultation with the Attorney General, the Secretary of State, and
nongovernmental organizations with expertise on the legal rights of
immigrant victims of battery, extreme cruelty, sexual assault, and other
crimes. The pamphlet must describe the legal rights and resources for
immigrant victims of domestic violence and must be translated by the State
Department into the languages having the greatest concentration of K
nonimmigrant visa applicants. IMBRA, section 833(a)(1), (4). IMBRA
required the pamphlet to be available for distribution in the required
translations by May 5, 2006 (120 days after IMBRA's January 5 enactment).
IMBRA, section 833(a)(6). However, at the time of this report, the
pamphlet was still in draft form.
20IMBRA, section 833(a)(5)(A)(iii).
21The legislative history does not explain why Congress limited IMBRA's
mandatory disclosure requirement to K nonimmigrants. See H.R. Rep. No.
109-233, at 117, 121 (2005).
USCIS's interim guidance related to Privacy Act disclosure states that
USCIS will issue separate guidance addressing the special procedures
adjudicators must follow with respect to I-129F petitions. As previously
discussed, to meet IMBRA requirements, USCIS must revise its I-129F
petition to require petitioners to disclose criminal background
information for numerous specified crimes, including sex offenses. Any
criminal background information USCIS possesses with respect to the
petitioner must accompany any approved petition that is forwarded to the
State Department to enable the State Department to effectuate IMBRA's
mandatory disclosure requirement. IMBRA mandated that USCIS revise its
I-129F petition by March 6, 2006 (60 days after IMBRA's January 5
enactment).22 USCIS has not yet revised the petition. USCIS officials told
us that they have been reviewing and consolidating suggested revisions to
the I-129F, including IMBRA-related changes, and expect publication of the
new Form I-129F in the Federal Register in mid-June 2006.
Department of State officials told us that they had drafted guidance for
consular officers that addresses the disclosure of a petitioner's criminal
sexual offender background under the compelling circumstances exception to
the Privacy Act. According to the Department of State, the draft guidance
was essentially ready for issuance when IMBRA, which mandates disclosure
of a petitioner's criminal history to certain beneficiaries, was enacted.
As a result, it decided to revise its draft guidance to take the new
statutory requirements into account. The officials said that they are
preparing to issue disclosure guidance to consular officers that will
cover discretionary Privacy Act disclosures not covered under IMBRA and
are finalizing separate guidance with regard to the mandatory disclosures
required under IMBRA. However, according to State Department officials,
the IMBRA-related guidance cannot be issued until USCIS finalizes its
IMBRA procedures, including revising the I-129F petition.
22IMBRA, section 832(a)(3).
Concluding Observations
Convicted sex offenders can sponsor noncitizen relatives, such as spouses,
fiance(e)s, and children, for entry into the United States. Not all
beneficiaries may know that their petitioner has a criminal sex offender
history that may put the beneficiary at risk. Recently enacted legislation
has mitigated this risk for certain beneficiaries by requiring the State
Department, in cooperation with USCIS, to disclose the petitioner's
criminal background information, including sex crimes. Both agencies said
that they plan to issue guidance on the new mandatory disclosure
requirement. For beneficiaries who are not covered by the mandatory
disclosure requirement, both USCIS and the State Department interpret a
Privacy Act exception as giving them discretion to disclose a petitioner's
criminal sexual history based on "compelling circumstances affecting the
health or safety" of the beneficiary. Until recently, neither agency had
issued guidance on this authority, but USCIS has now issued interim
guidance to its adjudicators addressing compelling circumstance
disclosures, and the State Department is preparing to issue its guidance
to consular officers regarding discretionary Privacy Act disclosures not
covered by IMBRA. On the basis of the agencies' Privacy Act guidance,
beneficiaries who are not statutorily protected by the mandatory
disclosure requirement may nevertheless be informed of their petitioners'
criminal sexual history and the possible risk to their safety.
Agency Comments
We requested comments on a draft of this report from the Secretaries of
Homeland Security and State and the Attorney General. None of these
officials provided formal comments. However, representatives from each of
these departments provided technical comments which we incorporated into
this report, as appropriate.
We are sending copies of this report to the Secretaries of Homeland
Security and State, the Attorney General, and interested congressional
committees. We will also make copies available to others upon request. In
addition, the report will be available at no charge on GAO's Web site at
http://www.gao.gov.
If you or your staff have any questions concerning this report, please
contact me at (202) 512-8777 or [email protected]. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on the
last page of this report. Key contributors to this report are listed in
appendix II.
Paul L. Jones Director, Homeland Security and Justice Issues
Appendix I: Scope and Methodology
To identify the number of convicted sex offenders who filed family-based
petitions, we conducted a computer match of U.S. Citizenship and
Immigration Services (USCIS) family-based petitioner data with data on
individuals contained in the Federal Bureau of Investigation's (FBI)
National Crime Information Center (NCIC) Convicted Sexual Offender
Registry File, known as the National Sex Offender Registry. The USCIS
petitioner data file contained records on 667,023 individuals who filed
petitions for noncitizen relatives, such as a spouse or child, and 66,658
individuals who filed petitions for noncitizen fiance(e)s in fiscal year
2005. The FBI's NCIC National Sex Offender Registry contained data on the
412,773 convicted sex offenders as of December 2005.
The USCIS and FBI data files contained seven common data elements: (1)
name (2) date of birth, (3) Social Security number, (4) street address,
(5) city, (6) state, and (7) ZIP code that we could attempt to match in
order to determine which petitioners were registered sex offenders. The
name and date of birth were always present in both datasets, but in some
cases the other data elements in either the USCIS or FBI dataset were
either missing or not entered correctly. In order to increase the
possibility of a valid match, we first applied acceptable data-cleaning
steps. For example, we eliminated certain extraneous characters from the
names and addresses, such as dashes, periods and hyphens and other
nonessential characters that would otherwise impede our matching. In
addition, we corrected for certain obvious typographical errors, such as
typing a zero instead of the letter O.
We conducted our match in two steps. In the first step, we matched cases
on name and Social Security number since the Social Security number is
considered a unique identifier. For our purposes, if the name and Social
Security number were the same in both cases, we considered it a match. In
the second step, after eliminating those we matched based on name and
Social Security number, we matched the remaining records on name and date
of birth. It is possible for two people to have the same name and date of
birth. Therefore, to be deemed a match for our purposes, the name, date of
birth, and several data elements needed to match to provide a high level
of assurance that the petitioner and the registered sex offender were the
same person. For example, if the name, date of birth and street address,
city, and ZIP code were the same, we considered it a match. We also
analyzed the USCIS data set to determine the number of petitioners that
may have filed more than one petition to arrive at the number of unique
sex offenders.
To determine the reliability of the USCIS data, we observed how petitioner
data are entered into the USCIS data system, interviewed relevant USCIS
officials and staff, reviewed pertinent documents, and performed
electronic testing for obvious errors in accuracy and completeness. To
determine the reliability of the FBI's Convicted Sexual Offender Registry
File, we interviewed FBI officials and system programmers knowledgeable
about the data, reviewed pertinent information regarding the FBI's sex
offender registry, and performed electronic testing for obvious errors in
accuracy and completeness. We determined that the data were sufficiently
reliable for the purposes of this report.
We conducted our work from August 2005 through June 2006 in accordance
with generally accepted government auditing standards.
Appendix II: GAO Contact and Staff Acknowledgments
GAO Contact
Paul L. Jones, (202) 512-8777
Staff Acknowledgments
In addition to the above, Michael Dino, Assistant Director, Carla Brown,
Christine Davis, Katherine Davis, Darryl Dutton, Lemuel Jackson, and James
Ungvarsky were key contributors to this report.
(440444)
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www.gao.gov/cgi-bin/getrpt? GAO-06-735 .
To view the full product, including the scope
and methodology, click on the link above.
For more information, contact Paul Jones at (202) 512-8777 or
[email protected].
Highlights of GAO-06-735 , a report to the Subcommittee on Immigration,
Border Security, and Claims, Committee on the Judiciary, House of
Representatives
June 2006
IMMIGRATION BENEFITS
Circumstances under Which Petitioners' Sex Offenses May Be Disclosed to
Beneficiaries
In fiscal year 2005, U.S. citizens and lawful permanent residents filed
about 730,000 petitions with the U.S. Citizenship and Immigration Services
(USCIS) to sponsor noncitizen family members, including spouses,
fiance(e)s, and children, to immigrate to the United States. Those doing
the sponsoring are called petitioners; those benefiting from the
sponsoring are called beneficiaries. If USCIS approves the petition,
overseas beneficiaries must also file a visa application with the
Department of State to enter the United States. In January 2002, USCIS
started to conduct background security checks on all petitioners in
addition to the beneficiaries. These background checks revealed that some
of the petitioners had convictions for criminal sex offenses; further,
some of those criminal sex offenders were filing family-based petitions
for children (those under the age of 21). This report addresses the number
of convicted sex offenders who filed family-based petitions in fiscal year
2005 based upon a computer match of USCIS data with individuals in the
Federal Bureau of Investigation's National Sex Offender Registry and
discusses USCIS's and the Department of State's framework for disclosing a
sponsor's criminal sexual background to the beneficiary. DHS, the
Department of State, and the Department of Justice reviewed a draft of
this report. Only technical comments were provided and have been
incorporated into this report.
At least 398 convicted sex offenders filed a total of 420 petitions in
fiscal year 2005 for spouses, fiance(e)s, children, and other relatives.
Immigration law does not prohibit convicted sex offenders from petitioning
to bring their spouses, fiance(e)s, or children into the United States and
generally USCIS cannot deny a petition based solely on the fact that the
petitioner is a convicted sex offender. The sex offenders were convicted
of at least 411 sex-related crimes, including sexual assault and rape,
according to data in the Federal Bureau of Investigation's National Sex
Offender Registry. At least 45 convictions involved crimes against
children. While most beneficiaries were spouses and fiance(e)s, criminal
sex offenders petitioned for at least 60 children.
According to USCIS and Department of State officials, an exception to the
Privacy Act of 1974 gives them authority to disclose a petitioner's
criminal sex offender history if there are "compelling circumstances
affecting the health and safety" of the beneficiary. For certain
noncitizen beneficiaries, disclosure of the petitioner's criminal
background information is now mandatory based on new authority granted to
USCIS and the Department of State. The International Marriage Broker
Regulation Act of 2005 (IMBRA) requires disclosure of a U.S. citizen's
criminal background information, including sex crimes, to certain
prospective immigrants, essentially noncitizen fiance(e)s, but some
spouses and minor children as well. Mandatory disclosure is not required
for beneficiaries not covered by IMBRA, though these beneficiaries may
receive information about a petitioner's criminal background on a
discretionary basis under the Privacy Act exception. GAO estimates that
IMBRA's mandatory disclosure requirement will cover about 20 percent of
family-based beneficiaries based on fiscal year 2005 data. On May 3, 2006,
USCIS issued interim guidance to its adjudicators on when it may be
appropriate to disclose information related to a petitioner's criminal
history under the "compelling circumstances" exception to the Privacy Act.
USCIS plans to issue separate guidance related to disclosure requirements
under IMBRA. Department of State officials said that they are preparing to
issue Privacy Act disclosure guidance and are finalizing separate IMBRA
disclosure guidance.
Petitioners' Sex Offense Convictions
*** End of document. ***