Can Sexual Offenders be Forgiven?

Time will tell...

People make mistakes. Some mistakes can be easily forgiven. Some mistakes, less so.

Recently, the press has been reporting on a seemingly endless parade of sexual misfeasance by powerful men. From media personalities to politicians, men in authoritative positions have been exposed (pun intended) to have engaged in behaviour ranging from cringe-worthy harassment to outright unlawful sexual abuse, if not rape. Notwithstanding statements from the Oval Office, among the most serious allegations to arise in the maelstrom of accusations has been those of sexual abuse of minors by Alabama Senate candidate Roy Moore. If he weren't running for Senate, but was instead applying for a visa to visit the United States, how would Roy Moore fare?

Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act states that individuals who art convicted or admit to having committed a "crime involving moral turpitude," are inadmissible to the United States. Generally, sex crimes would be considered crimes involving moral turpitude (CIMT).

Of course, a conviction is a conviction, but admissions and allegations are something else. 9 FAM 302.3-2(B)(4) discusses when an admission to an offence may be considered sufficient to trigger a finding of inadmissibility. In practice, procedural safeguards meant to ensure that any such admission be knowing, explicit, unequivocal and unqualified mean that it is highly unlikely an admission to a CIMT would be the basis for an inadmissibility finding. Similarly, per 9 FAM 9 FAM 302.3-2(B)(3)f, mere allegations of an offence could not be the basis for a finding of inadmissibility. That said, the existence of such allegations could be grounds for visa refusal under INA 221(g) pending final judicial outcome for cases where charges have been filed, or under INA 214(b) simply as a matter of doubting intent to depart the United States.

Where there is a conviction, the next question is whether the visa applicant may be eligible for a waiver of inadmissibility under INA 212(d)(3). This is where the SORNA chart may come in handy.

The Sexual Offender Registration and Notification Act describes reporting requirements for certain individuals convicted of a sexual offence. SORNA offers Federal guidelines. States may have their own. Obviously, foreign convictions would adhere to the law of the jurisdiction under which an individual was prosecuted; however, for purpose of understanding whether (and when) a non-US citizen may be able to visit the US, a look at the SORNA guidelines is essential. As with other inadmissibilities, CIMTs may be waived by Customs and Border Protection based on the Hranka factors:

    • There is a low risk of harm in admitting the applicant;
    • The seriousness of the acts that caused the inadmissibility; and
    • The importance of the applicant’s reason for seeking entry.

Matter of Hranka, 16 I&N Dec. 491(BIA 1978)

Practically, an individual outside the United States cannot apply directly to CBP for a Hranka waiver; s/he must first apply for a visitor visa and hope that the Consular Officer will apply for the waiver on his/her behalf. Consular Officers employ a slightly different three-part test to determine whether to recommend a waiver to CBP:

    • The recency and seriousness of the activity or condition causing the alien's inadmissibility;
    • The reasons for the proposed travel to the United States;
    • The positive or negative effect, if any, of the planned travel on U.S. public interests

9 FAM 302.3-2(D)(2)

The first prong of the FAM test correlates with the first and second prongs of the Hranka factors--and that's where an analogy to SORNA is helpful for sex offenders.

Let's say, for example, a UK national is convicted of downloading sexual images of underaged girls. This is a CIMT. Under UK law, he might have been sentenced to a community order or as much as 9 years custody. Upon release, he would likely be subject to a Sex Offender Notice requirement of seven or more years. If he was actually sentenced to 6 months imprisonment and released after 3, and fully satisfied a seven year reporting requirement, under UK law, his debt to society may be fully paid, but the question of whether he still presents a risk to the United States is the primary concern for waiver purposes--and the Consular Officer is looking at the recency and seriousness of the offence.

SORNA provides a yardstick for looking at recency and seriousness. It describes three tiers of reporting requirements: Tier I - 15 years (10 with a "clean record"); Tier II - 25 years; and Tier III - lifetime. The more serious the offences, the higher the tier.

Now, the individual may be married with children, holding a responsible professional position--all of which is certainly notable for risk assessment purposes--but the Consular Officer is looking at the calendar.