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Federal District Court Dismisses IML Challenge

A federal district court dismissed the recent IML challenge yesterday when it granted the government’s Motion to Dismiss a legal challenge to the International Megan’s Law (IML). That challenge, filed in January 2018, was based upon alleged violations by the State Department of the Administrative Procedure Act (APA). A link to the court’s decision follows below.

Due to the court’s decision, the State Department is expected to expand its revocation of existing passports in order to add a “unique identifier” stating that the individual has been convicted of a sex offense involving a minor. The State Department is also expected to add a “unique identifier” to newly issued passports.

“We disagree strongly with the court’s decision in this case and we will seriously consider filing an appeal of that decision,” stated ACSOL Executive Director Janice Bellucci. “The State Department’s failure to request and consider comments from the public, including individuals required to register, could result in harm, including physical harm, to registrants who travel overseas as well as to those with whom they travel.”

According to the courts’ decision, the contested regulations issued by the State Department are “interpretive rules” and therefore exempt from the notice and comment requirements of the APA. That is because the agency’s regulations — which include denial of passport cards — merely clarified “minor ambiguities” in the language of the IML.

In its decision, the court included a brief discussion of the notification provisions of the IML which allow the U.S. government to notify other governments that an individual convicted of a sex offense involving a minor will soon travel to that country. In its discussion, the court emphasized that such notices could be sent with regard to anyone who has suffered such a conviction regardless of whether they are currently required to register.

“In a prior challenge to the IML, the federal government testified that although they have the authority to send notices about a person who is not currently required to register, they have chosen not to exercise that authority,” stated Bellucci. “Unfortunately, there are already known situations where the government has sent notices to other countries about such persons.”

Order – MTD granted – July 2018

Join the discussion

  1. jd

    Is anyone surprised by this ruling?

  2. LostandDevastated

    Things seem to just keep getting worse and worse as opposed to better.

    • PK

      I’ve said it before, and I’ll say it again, there is no winning, no getting ahead, and there should not be any misguided hope with regards to leading a normal life for any RSO living in the United States.

      • LostandDevastated

        @PK I suppose you’re right, there’s really not much point in trying anymore, especially as someone with a new conviction.

        • PK

          Newly convicted RSO’s can forget it. I would suggest parts of Europe and South America.

    • WTF?

      Don’t ever expect better and you won’t be disappointed.

  3. PK

    That sucks. I really hope that you do file an appeal on this Janice.

  4. Richard

    Does anyone know if we send in a passport right now for early renewal if we’ll be issued one with the new stamp? Or, are we supposed to wait for a notice of revocation. I’m working to get a visa for a trip overseas, and it doesn’t make sense to have them put the visa into a passport that’s about to be revoked. I thought it might be better just to get the new stamped passport now.

    If we can get the stamped passport now, is there anything special other than sending in a renewal that is necessary?

    I’d much rather have a passport without the marking, but that’s looking less and less likely, especially anytime before the visa is issued for my trip.

    • PK

      @Richard, which country are you planning on traveling to?

      • Worried in Wisconsin

        Actually, I’d rather not say till things are in order. I’ve traveled there before under a tourist visa, but for a longer stay I needed to apply for a visa which will be put into my passport.

        My question wasn’t about the visa – it was whether anyone knows if the new, marked passports are being issued, and if so is there any special procedure to get one?

        I don’t want to go through month of effort to get a visa only to have it put into a passport that gets revoked.

        • AJ

          @Worried in Wisconsin:
          What if, for some strange reason, your current passport gets mutilated, thus requiring your getting a replacement? You could then go to one of the Passport Centers/Agencies (https://travel.state.gov/content/travel/en/passports/requirements/where-to-apply/passport-agencies.html), with planned travel dates in hand, and have them issue you a new one. This would seem to be your best chance of getting a book that will be valid for your travel. You’ll never be completely sure your book is valid until you’re allowed into wherever you’re going.

  5. Alec

    I had something cruel and pithy ready to post on this, but I choose instead to simply say:

    As long as you do not even register on your foe’s radar as an enemy, they will always defeat you.

  6. Sunny

    This case was brought on a technicality that the government didn’t take the time to get feedback before proceeding. Will there be a case to directly challenge the unconstitutional aspects of the passport marker, such as freedom of movement, especially given the fact that passports are required for some domestic travel?

    If you’re no longer required to register, how would the government know you were traveling? Non-registrants have no duty to report travel plans in advance as they are not subject to the IML or any federal registry laws (because the federal registry laws are all dependent on state registration).

    I have a current passport and I notified the SMART office and local sheriff of my intent to travel internationally months ago. I also went to the Caribbean last year with prior notification, which included visiting four separate nations. I have never received a revocation notification but if I do, I will fight it, including filing my own suit pro se if necessary.

    • Chris F

      I also would like to know if there will be a more direct challenge to IML that is not just a delay tactic, but outright challenge.

      It is clearly a violation of Equal Protection, since it applies differently to different people simply because of the state they live in, or lived in (if you are stuck forever due to Florida or NY).

      It violates Substantive Due Process because it is keyed off of a judicial conviction but in no way tailored to the individual or circumstances and instead applies an arbitrary length.

      It violates separation of powers because it is the judiciaries job to punish, rehabilitate, and protect the public.

      It violates freedom of speech because it is a form of compelled speech.

      It violates freedom of travel and enough other rights that it should have strict scrutiny applied.

      It interferes with the right to earn a living in the occupation of one’s choice if that job requires travel.

      The list can frankly go on and on.

      As AJ pointed out in another post: “A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change”. I assume this holds true if the facts were never true in the first place. That makes it a clear arbitrary and oppressive government action.

      • Harry

        I am with you Chris, not only to go for the IML directly but go for the registry directly. The governments has stuck their neck out their so far and it should be obvious to prove to the court that registry and ALL its sub-laws are based on lies and the registry is used by the government special interest as hit list with NO safety benefits.

  7. AO

    “Operation Angel Watch compares passenger information received from carriers pursuant to
    19 C.F.R. Section 122.75a (via electronic departure manifest) with NSOR data to identify
    registered sex offenders whose offenses involved child victims, and it provides notifications to
    destination countries when it determines, based on an assessment of various factors, that there is
    a likelihood that an individual intends to engage in child sex tourism.”

    What are these “various factors” when this is very much black and white? And what is this “likelihood”? Are you serious stating that the primary reason why an RC would travel internationally is for sex tourism? These people deserve an new ring in hell build just for them for such outright lies.

    • JohnDoeUtah

      Sounds to me you should be able to challenge such determination, due process.

  8. R M

    I’m sick to my stomach reading this in the ORDER:

    For purposes of IML Section 4, the term “sex offender” means either a “covered sex offender” (defined as “an individual who is a sex offender by reason of having been convicted of a sex offense against a minor,”
    see IML § 3(3), 42U.S.C. § 16935a(3)), or “an individual required to register under the sex offender registration program of any jurisdiction or included in the [NSOR], on the basis of an offense against a minor” (as defined in IML § 4(f), 42 U.S.C. § 16935b(f)).

    I though the notifications were sent for people convicted of a crime against a child AND had to register. The above statement from the ORDER says OR.

    • AJ

      @R M:
      I though the notifications were sent for people convicted of a crime against a child AND had to register. The above statement from the ORDER says OR.
      —–
      Rely on the black-and-white of the law, not on some dicta from a judge. IIRC, the law says AND.

      • R M

        Thanks to all who replied. I have read the actual statute regarding this and know it says AND (have to be both a crime against a child and still have to register) but it’s very sickening to see a judge state otherwise.

        • TS

          @R M

          The Judge is correct in the order as it is quoted on both PDF pgs 6 & 12 where Section 4 is quoted. Read the explanation below in this thread, with the actual links to the law, I provided from Sections 4 (Angel Watch), 5 (USMS Notifications), and 8 (Passport marking). Sections 4 & 5 are “OR” statements where Section 8 is an “AND” statement.

        • mm

          what age range does the IML law consider a child victim.I planned to travel to europe when i retire hoping I can safely enter,charge was in 2001 in fl.

        • AJ

          @mm:
          what age range does the IML law consider a child victim.I planned to travel to europe when i retire hoping I can safely enter,charge was in 2001 in fl.
          —–
          Under 18.

    • CR

      Sometimes the language of statutes can be hard to parse, but I think the “or” phrase is intended to add anyone who is required to register based on an offense against a minor, even if they weren’t convicted. Such as someone with a deferred adjudication that is required to register.

    • TS

      @R M, et al

      Here is the link to the webpage of the applicable IML content (https://www.congress.gov/114/plaws/publ119/PLAW-114publ119.htm or https://www.congress.gov/bill/114th-congress/house-bill/515/text)

      ******

      Search on the word “definition”

      You will see (or should) four hits on it: Table of Contents, Sec 3, Sec 4(f), and Sec 5(h)

      Sec 3 gives the overall set of definitions. Sec 4(f) and Sec 5(h) show how the term “sex offender are applied WRT their sections, e.g. Sec 4 is Angel Watch Center and Sec 5 is notification by USMS.

      Sec 4(f) Definition.–In this section, the term “sex offender” means–
      (1) a covered sex offender; or
      (2) an individual required to register under the sex offender registration program of any jurisdiction or included in the National Sex Offender Registry, on the basis of an offense against a minor.

      ****

      Search on “define” and come to Sec 8

      SEC. 8. UNIQUE PASSPORT IDENTIFIERS FOR COVERED SEX OFFENDERS

      (c) Defined Terms.–In this section–
      “(1) the term `covered sex offender’ means an individual who–
      ‘`(A) is a sex offender, as defined in section 4(f) of the International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders;

      AND

      “(B) is currently required to register under the sex offender registration program of any jurisdiction;

      (PL 114-119 Section 8 is an Amended Section (supersedes) to PL 110-457 Section 240 )

      *****

      In Conclusion, covered sex offenders are “OR” for Sec 4 and Sec 5. The ID is “AND” for Sec 8.

      Hope this helps…

  9. Janice Bellucci

    @Sunny – The U.S. government reviews flight manifests for all international flights that begin in the U.S. They compare the names of the people on the flight manifests to the names on their list of registrants, which includes anyone ever convicted of a sex offense.

    • AO

      @Janice – Any idea how being convicted for this purpose MIGHT apply to people who have been granted an expungement or setting aside of the conviction like CA 1203.4? I know when it comes to RC’s literally nothing is as it should be, but I’m just curious about this. Thanks.

    • jay cee

      @ janice does that include individuals that are deregistered????

  10. AJ

    [T]he agency’s regulations. . .merely clarified “minor ambiguities[.]”
    —–
    Chevron Deference rears its ugly head once again. I reeeallly hope it gets kicked to the curb in the near future.

  11. WTF?

    I am so happy you “disagree strongly”.

  12. WTF?

    The registry is lifetime, no matter your conviction date, offense, or state and federal guidelines. “They” can do whatever they want and no one can stop them. These residency victories are temporary until they figure a way around them. Notice that is the only thing that ever gets fought. Eaay to make no ordinances to bypass that. You can be do your time, but will never be allowed to move forward. Tiers are a fake, because they can be changed without any reason. If you are young, single and strong, get off probation and start looking for a new life elswhere. It truly is your only chance.

    • PK

      @WTF
      “You can be do your time, but will never be allowed to move forward.”

      What if you did not time, and you only had probation? WTF then?

  13. Facts should matter

    Now I know what it feels like to be standing on the deck of a sinking ship bailing water with a bucket that has holes in it.

    That judge was just protecting their job, credibility and reputation, NOT children with this ruling.

    “Angel watch center” sounds so mawkish and putrid. They’re not protecting the legacy of Megan Kanka by defending these laws = they’re protecting the security theater cottage industry and all those ever-expanding machinations it entails.

  14. WTF?

    So according to the article, I can have my charges reduced, live a perfect life, finally be removed from registry after 10yrs and still be considered a danger to all I come in contact with, thereby justifying public and international notice of the very offense that they say I am no longer required to register for. Why try? Really, besides the bullshit of ” living a good life is the best revenge” and ” don’t let it define you”. There really is no chance of getting past this.

  15. Tim Moore

    Take a deep breath… It’s a long haul.
    Janice and crew are pursuing other options,
    and so should we all.

    • Bob Mir

      We have to fight for our families,for right to see our relatives (we all immigrants),let’s make a draft letter and start sending letters to our representatives,go to meetings,use media,Do the same what immigration movement doing now,We have to go to Washington,DC,we don’t have to wait 6 month for one decision,we all have to use different avenues.

      • PK

        Yea let’s do that. Rally the troops right?

        Just like the 2 people including Paul who traveled to DC 2 years ago, when they were contemplating the IML Law. Or perhaps the 50 people who called their representatives to voice their opposition to IML.

        The millions of illegal immigrants that are currently within the U.S. provide more votes to the Democrats, than the couple hundred RSO’s who are complaining about the IML Law. That’s why we are hearing so much about it. Conversely, there has barely been even any mention about IML in the news, and how it affects we the people, who are indeed immigrants after all.

        I have, oh about 25 years of experience, when it comes to DC and how the swamp thinks.

        The Representatives and Lawmakers will do NOTHINGGGG.

  16. CR

    @Richard or Worried in Wisconsin:

    I’m sure you just want answers, like a lot of us do, and so this is probably not going to help much.

    If you read the reports on this forum in all the IML-related threads from people to whom IML applies and who have traveled overseas on an unmarked passport, the most common result is that they get a letter from the State department a week or so after their return stating that their passport has been revoked and they have to send it back in to State. So that is what you should expect if you travel abroad.

    If you don’t want the visa to be recorded in a passport that will be revoked, then you might consider a brief international trip now, to get the revocation over with.

    You may have difficulty getting a new marked passport. See the saga from Major Henderson for an example. Apparently, the forms for applying for a new passport don’t have a way to indicate that your current passport has been revoked. The options are to renew an expired passport or to replace a lost one, or for a first-time application. None of those are applicable, and by reports, the people who are in charge of passports in the State department don’t know about IML or don’t understand the process of getting a replacement for a revoked passport.

    Nobody really has all the answers right now, and the government is functioning like the government often does, like one hand doesn’t know what the other is doing.

    Maybe things will become more predictable now that the IML lawsuit has been dismissed. Or maybe not. Don’t wait around for relief. It could take many years, and it may never come.

    • Worried in Wisconsin

      That’s why I’m considering just sending in my passport now for an early renewal. That way I can check off the box labeled ‘renewal’ when I send in my current one. If this ends up with me getting a marked passport now, I’d avoid the whole revocation thing. The visa application was made with the other country aware of my background. Assuming the process is completed a visa is issued like it appears it will be, having a marked passport shouldn’t affect my ability to get into the country.

      My question is if they are issuing the marked passports at all, and if so is there any special process to get one or will they automatically issue one when I send in for renewal?

      • R M

        @Worried: Re: “My question is if they are issuing the marked passports at all…” In yesterdays conference call with ACSOL, a caller called in and stated he had a marked passport. Janice said that was the 1st one she’d heard of. You can listen to the call here:

        http://all4consolaws.org/2018/07/acsol-phone-meeting-alert-for-july-14/

        • PK

          That’s absurd. There have been several reports of people receiving marked passports in this very blog.

        • PK

          Janice provided an excellent explanation of IML and it’s secondary implications.

        • David

          @ PK: The previous discussions may have referred to passport revocation letters, not the actual new “uniquely identified” passports.

        • E

          @David. Yes they have. JM of WI noted over a month ago that he traveled to Europe with a friend whose passport had the unique identifier. I met the caller on the ACSOL call at the ACSOL conference and he showed me the identifier in his passport. I took a picture and sent to Janice. It’s on the back page printed with plain text as we assumed.

  17. Will Allen

    Remember that these are not just some abstract laws. They are created and supported by anti-American, harassing terrorists. Identify those people and make them pay. They are criminal war combatants in war, treat them like that.

    • Tim Lawver

      Will,

      IM L
      USING TAX DOLLARS to protect foreign nationals on THEIR soil.
      Government is not formed for that antithetical purpose. Unfortunately, the democrats seem to be making that a trend in their platform. The press never actually phrase Chris Smith’s IML for this misuse of US TAX dollars.

      • Tim Moore

        Good ammunition, Tim. Why are we trying to protect children in other countries and then from sex only? Surely we should protect all children from the cluster bombs we sell, and at least keep children in Detroit and other cities from having their brains shrunk by lead in the water. Is there a registry for child polluters? Seems to me this country is in decline on several levels and we have found a way to brand ourselves as a moral force, to convince ourselves we are something we are not.

        • David

          Perhaps more accurately, we “…brand ourselves a moral farce”.

  18. Tim Lawver

    How much did the U.S. GOVERNMENT care for foreign children ?

    Nagasaki, Hiroshima,

    Preposterous!

  19. The Static-99R Is A Scam

    Judge John Walter seems to be on a roll. Here, Walters forcing the LA Times to remove information from an article. If this “judge” seems so intent in violating even the First Amendment right, then maybe this judge didn’t know what he was doing in the first place when he dismissed the IML challenge.

    http://www.latimes.com/local/lanow/la-me-ln-legal-dispute-20180714-story.html

  20. NY won't let go

    Again I have to be terrified that my passport is to be revoked when I don’t even live in the US. And have nothing in the US all because the state I moved from refuses to remove. Me from their damned list.

    So I would have to get deported back to the US and then what? Be homeless and never see my wife again?

    What a crock of shit

    • PK

      Didn’t you already get the Visa in your new Country?

      I’m not clear as to why they would deport you. In any event, either don’t travel and stay right where you are, or go to the Embassy where you’re at and request a new marked passport.

      • NY won't let go

        Yes I already have a visa, but if the passport gets revoked while I’m here it’s automatic deportation regardless if my visa is still valid.

        Either way I’m still scared to get that letter in the mail. If I do have to surrender my passport chances are I wouldn’t be able to transfer my visa as they require the old passport as well to verify.

        Another part of the visa application here is to submit a copy of all pages of the passport so if that happy little marker is in the back there’s a high chance I would be on the next flight to the US in shackles.

        Anyway it might just be my pessimistic mind playing with me but this just makes me paranoid. I’ve already had to restart my life over several times because of this registry I don’t know if I can handle losing everything again.

        • SCOTUS SAVE US NOW

          You could try sueing NY in federal court using an attorney who can file for you. The case that keeps you on was a state court. I’m not sure the 2nd circuit would find they are over reaching or not by keeping you when you clearly are to far to be a danger to anyone

        • NY won't let go

          @SCOTUS I have thought about this. I had one lawyer try to assist me in writing a petition to the registry for my removal as it follows the circumstances from a prior RC named Roe that had gotten removed because the original offense happened in another state. But they completely ignored it.

          To sue I would need a better source of income as my monthly salary here is less than most people make in a week. Trying to save more than USD25 per month is a bit hard as that is usually what I save put to buy my groceries for the month.

        • NY Level1

          why do you insist that once your’e sentence and period of being on the NYS SOR is complete that NYS will not remove you? What Level are you?

        • PK

          @NY Level 1

          “why do you insist that once your’e sentence and period of being on the NYS SOR is complete that NYS will not remove you? What Level are you?”

          That’s not what his complaint is about. Secondly, I did not see anything written anywhere at all in his post regarding his sentence.

          The issue that he is talking about has to do with the fact that he “NY Wont Let Go” no longer lives in the State of NY, works in the State of NY, or pays taxes in the State of NY.

          I have the similar issue, whereby I haven’t even set foot in NY in 18 years. However, because my Misdemeanor Offense was committed in NY, they insist to keep me on their List forever.
          Because the purpose of Sex Offender Registry is to provide notices to NY State Citizens, that I had a previous Misdemeanor Sex Offense, and that I could somehow perhaps commit a subsequent Sex Offense in the State of NY.

          Again I haven’t lived in, worked in, payed taxes in or even set foot in NY in 18 years.

          Moreover, neither “NY Wont Let Go” or myself even live in the United States!

        • NY won't let go

          @NY Level 1 my offense and original reg requirements didn’t originate in NY. I had moved there to work for a couple years and got placed as a level 2 which has no end date as its lifetime registration which unlike most states doesn’t end after you no longer live in the state out country which a big part of that being upheld was Doe v O’Donnell.

          As PK said, neither of us even live in the country but we still have to check in periodically with NY or face a felony charge for failure to register in a state neither of us live, work, or pay taxes in.

          As for what you had said about my insisting they wouldn’t take me off, this is because they have refused to take me off. My sentence was done over 8 years ago when I finished probation.

          And when trying to petition to be a level one in NY when I moved there bringing in dozens of character statements and witnesses they threatened to raise my tier to 3.
          Because they had never had someone fight being a level 2 and the prosecutor on hand didn’t know how to handle the situation, they brought in the head prosecutor for the state to treat my friends and family like whores, and liars.

          They left one of my longest friends, who is happily married to a person of quite high standing, crying after insinuating that there was more between us than just going to church together and calling her more than a few nasty words in that courtroom.

          I have no respect for the NY court system when it comes to this matter. It’s like a retrial 10 years after the matter for things that happened at the date of the offense and everything you’ve done and tried to better yourself in didn’t matter.

          Apparently having only one thing on my record made me more dangerous because being crime free doesn’t make sense when you’re trying to make a lifetime criminal from a teenager.

        • PK

          @NY Wont Let Go
          “And when trying to petition to be a level one in NY when I moved there bringing in dozens of character statements and witnesses they threatened to raise my tier to 3.”

          That is a scary thought. Which county did you file your Petition?

          I have considered filing a Petition as well for a Level Reduction. The Attorney I was talking to over the course of years has indicated that he has had success with Level Reductions.

  21. Ali

    so anyone here got the identifier or know how often do we have to renew passport with this new identifier?

    • AJ

      @Ali:
      so anyone here . . .know how often do we have to renew passport with this new identifier?
      —–
      10 years, just like every other personal passport.

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