Immigration Benefits
Circumstances under Which Petitioners' Sex Offenses May Be Disclosed to Beneficiaries Gao ID: GAO-06-735 June 14, 2006In 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.
At least 398 convicted sex offenders filed a total of 420 petitions in fiscal year 2005 for spouses, fiances, children, and other relatives. Immigration law does not prohibit convicted sex offenders from petitioning to bring their spouses, fiances, 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 fiances, 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 fiances, 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.
GAO-06-735, Immigration Benefits: Circumstances under Which Petitioners' Sex Offenses May Be Disclosed to Beneficiaries
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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:
Immigration Benefits:
GAO-06-735:
GAO Highlights:
Highlights of GAO-06-735, a report to the Subcommittee on Immigration,
Border Security, and Claims, Committee on the Judiciary, House of
Representatives.
Why GAO Did This Study:
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, fiancé(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.
What GAO Found:
At least 398 convicted sex offenders filed a total of 420 petitions in
fiscal year 2005 for spouses, fiancé(e)s, children, and other
relatives. Immigration law does not prohibit convicted sex offenders
from petitioning to bring their spouses, fiancé(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 fiancé(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 fiancé(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.
Figure: Petitioners‘ Sex Offense Convictions:
[See PDF for Image]
[End of Figure]
[Hyperlink, http://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 jonespl@gao.gov.
[End of Section]
Contents:
Letter:
Results in Brief:
Background:
Hundreds of Convicted Sex Offenders Have Petitioned for Spouses,
Fiancé(e)s, and other Relatives, including Children:
Agencies Have a Framework for Disclosing Petitioners' Criminal Sexual
History to Noncitizen Beneficiaries:
Concluding Observations:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: GAO Contact and Staff Aknowledgments:
Table:
Table 1: Conviction Descriptions of 411 Sex Offenses Committed by the
398 Sex Offenders:
Figures:
Figure 1: Primary Beneficiaries Petitioned For by Convicted Sex
Offenders in Fiscal Year 2005:
Figure 2: Status of Petitions Filed by Convicted Sex Offenders:
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:
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
fiancé(e)s and their children. If USCIS approves the petition, the
noncitizen relative or fiancé(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.[Footnote 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 fiancé(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.
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.[Footnote 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:
* the number of convicted sex offenders who filed family-based
petitions in fiscal year 2005, and:
* 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."[Footnote 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.
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,
fiancé(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 fiancé(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 fiancé(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 adjudicators[Footnote 4] 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 Security[Footnote 5] 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 fiancé(e) to the United States by filing a Form I-129F with
USCIS.[Footnote 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 fiancé(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.
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.[Footnote 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.
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.[Footnote 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.
Hundreds of Convicted Sex Offenders Have Petitioned for Spouses,
Fiancé(e)s, and other Relatives, including Children:
At least 398 convicted sex offenders filed petitions for spouses,
fiancé(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 fiancé(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.[Footnote 9] In addition, certain
relatives of the primary beneficiary, such as unmarried children, under
21 years old, of the noncitizen spouse or fiancé(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 fiancé(e) petitions. Both USCIS and State
Department data together total at least 60 unmarried children under 21
years of age.
Figure 1: Primary Beneficiaries Petitioned For by Convicted Sex
Offenders in Fiscal Year 2005:
[See PDF for image]
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 fiancé(e)s
had been approved (see fig. 2).
[End of figure]
Figure 2: Status of Petitions Filed by Convicted Sex Offenders:
[See PDF for image]
[End of figure]
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.[Footnote 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,[Footnote 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.
Table 1: Conviction Descriptions of 411 Sex Offenses Committed by the
398 Sex Offenders:
Conviction description: Sex offense;
Total: 217.
Conviction description: Sex assault;
Total: 119.
Conviction description: Sex offense-child fondling;
Total: 35.
Conviction description: Rape-strong arm;
Total: 9.
Conviction description: Sexual Assault-carnal abuse;
Total: 9.
Conviction description: Statutory rape-no force;
Total: 7.
Conviction description: Crimes against persons;
Total: 4.
Conviction description: Indecent exposure;
Total: 3.
Conviction description: Kidnapping;
Total: 2.
Conviction description: Obscene material possession;
Total: 2.
Conviction description: Sovereignty (restrict movement);
Total: 1.
Conviction description: Sex assault-sodomy boy;
Total: 1.
Conviction description: Incest with minor;
Total: 1.
Conviction description: Exploitation minor-photograph;
Total: 1.
Conviction description: Total;
Total: 411.
Source: GAO analysis of USCIS and FBI data.
Note: Thirteen sex offenders had more than one conviction in the NSOR.
[End of table]
Convicted sex offenders are not prohibited by the INA from petitioning
to bring their spouses, fiancé(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.[Footnote 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.
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 2005[Footnote 13] requires disclosure
of a U.S. citizen's criminal background information, including sex
crimes, to certain prospective immigrants, essentially noncitizen
fiancé(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."[Footnote 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.
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 fiancé(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,[Footnote 15] who are essentially
noncitizen fiancé(e)s, but also some spouses and children. Obtaining a
K visa allows the fiancé(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.[Footnote 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.[Footnote 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."[Footnote 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.[Footnote 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."[Footnote 20]
IMBRA's mandatory disclosure requirement only extends to fiancé(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.[Footnote 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.
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).[Footnote 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.
Concluding Observations:
Convicted sex offenders can sponsor noncitizen relatives, such as
spouses, fiancé(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 [Hyperlink, http://www.gao.gov].
If you or your staff have any questions concerning this report, please
contact me at (202) 512-8777 or Jonespl@gao.gov. 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.
Signed by:
Paul L. Jones:
Director, Homeland Security and Justice Issues:
[End of section]
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 fiancé(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.
[End of section]
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.
FOOTNOTES
[1] For the purposes of this report, we are considering petitions for
family members and fiancé(e)s as family-based petitions.
[2] 8 U.S.C. § 1101(b)(1).
[3] The requirement to establish the registry appears at 42 U.S.C. §
14072(b). Detailed statutory definitions for the registry's three
offense categories appear at 42 U.S.C. § 14071(a)(3).
[4] Adjudicators determine eligibility for various types of immigration
benefits, including permission for relatives to immigrate and
permission to become U.S. citizens.
[5] The 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. § 557.
[6] Because lawful permanent residents may not bring fiancé(e)s into
the United States, they must file an I-130 petition for immigration of
a spouse after the marriage.
[7] The 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.
[8] Pub. L. No. 104-236, 110 Stat. 3093 (1996).
[9] 18 U.S.C. § 2256(1).
[10] The 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. § 14071(a)(3)(C).
[12] While 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. § 1227(a)(2). However,
deportation is not an option for U.S. citizens with criminal
backgrounds.
[13] IMBRA 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.
[14] 5 U.S.C. § 552a(b).
[15] K 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 fiancé(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 fiancé(e) or spouse, who will be accompanying
them to the United States. 8 U.S.C. § 1101(a)(15)(K), (b)(1).
[16] USCIS'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.
[17] IMBRA 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.
[18] IMBRA, section 833(a)(5)(A)(iii).
[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.
[20] IMBRA, section 833(a)(5)(A)(iii).
[21] The 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).
[22] IMBRA, section 832(a)(3).
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