The proposed State Department policy would add to the irrational burdens that registrants face.
Under a proposed State Department policy, U.S. passport applicants would have to affirm that they are “not required to register” as sex offenders. If they are “required to register,” they would have to submit a “supplementary explanatory statement under oath.”
The State Department says that change, which it announced in a Federal Register notice seeking public comment last month, is “in accordance with” the International Megan’s Law (IML), which requires “unique passport identifiers” for “covered sex offenders.” Although that 2016 law is ostensibly aimed at preventing “child sex tourism,” it applies to many people who have never engaged in such conduct or shown any propensity to do so. The proposed passport affirmation sweeps even more broadly, and it is apt to have a chilling effect on international travel by Americans who are required to register as sex offenders—a category that includes nearly 800,000 people, many of whom have never committed crimes anything like those targeted by the IML.
The State Department notice, which also describes revisions to comply with President Donald Trump’s executive order regarding “sex” vs. “gender identity,” says the registration query would be included in the “Acts or Conditions” section of the passport application. The current version of that affirmation says: “I have not been convicted of a federal or state drug offense or convicted of a ‘sex tourism’ crimes statute, and I am not the subject of an outstanding federal, state, or local warrant of arrest for a felony; a criminal court order forbidding my departure from the United States; or a subpoena received from the United States in a matter involving federal prosecution for, or grand jury investigation of, a felony.”
The revision would add a clause saying the applicant “is not required to register as a sex offender.” That presents a couple of puzzles.
This article fails to mention the group of people that don’t know if they are covered under IML and the treat they face when answering the question. Several of my attorneys asked the federal DOJ if I’m covered. The government’s response was “we won’t tell you”. They said they will only put the resources into analyzing an individual’s status if they are attempting to prosecute them. A few U.S. circuits interpret the term “covered” differently than other circuits. Most circuits have not yet ruled how to interpret the term. In the 9th circuit (the West coast) some people are considered “covered”. However, in the 5th, 7th, ad 11th circuits, those same people are not covered and are completely free from federal SORNA and IML (by court mandate). It all depends on the categorical approach method used to decipher SORNA. I suspect thousands of people fall into this bifurcated classification but only a handful know about it, let alone understand it. The bottom line… it’s another trap to prosecute uninformed people. The government says they won’t tell you if you’re subject to IML but they’ll prosecute you if you check the wrong box on the passport application.
The question on the application is cut and dry. I believe the article is over speculating on the federal SORNA law which hasn’t been enforced in over two year. If were not required to register in any state, we really don’t have to figure out if we’re “covered” as some have been doing to premptivetively get ahead of their travel plans to assure their passport doesn’t get revoked. But will this new policy require that everyone gets the identifier? Did the state department actually state that? I don’t think so. We might have to answer the question, but they’ll probably look further into our background to determine if the offense was related to a minor. Because I don’t see them issuing passports with an identifier that says the bearer commited a sex offense against a minor, when the offense was clearly commited against an adult. That would be blatant lying. It’s bad enough that they twist the meaning of no contact cyber crimes, that involved no real child, to be an offense against a minor. But it will be extremely difficult to twist the meaning for a crime involving an adult. So this will be interesting.
“The proposed State Department requirement extends even further than the IML. It covers all registrants, regardless of whether their offenses involved physical contact or had anything to do with children.”
Correct me if I’m wrong, but that’s the way the law is now. I believe travelers have mentioned having to still get the stamp for pornography offenses, or “talk to a cop” setups. I think the drawing line is if the offense is child related–real or unreal. If you raped an adult, you’re not a “covered” person who gets the stamp.
The whole point of the question is similar to the crypto assets question on your federal tax return… so that you can be charged with “lying to the government” at some future date.
This is just a “gotcha” oversimplification checkbox that covers the departments State Department’s azz while keeping the PFR from playing dumb as an excuse.
I’d say it is time to get the passport before this is implemented (should it be approved and passed) so one can travel for ten years at least before having to do the app again if they chose to. What are they doing to do…revoke it if a PFR did not answer the question prior to this implementation so the Feds can track all PFRs? That would not surprise me given what the high court has allowed for ex post facto application of things in the name of gov’t interest or safety or whatever they feel is warranted to use for permission. They make an exception to everything they want because they can and people are afraid to challenge them, especially Congress who needs to reign them in.
I am still not seeing justification for this move other than because the Feds want and feel they need to. This move right here tells me any appeal to DOGE for dismissal of SORNA would fall short of the goal those here in the forum and those associated with the forum (as well as sibling forums) want. In their minds, this is money well spent regardless of the waste it truly is. Of course, can you imagine the time and money related to validating all passport apps of those who have answered the questions to ensure they lawfully answered it correctly?
Without more research, how does this NOT violate Equal Protection when they are picking on set of people who may be convicted of a sex offense or those who have had other legal movements done (adjudication withheld, etc) to show they are not technically convicted and required to register? Should those with drug related offense convictions also be queried specifically on the app, as an example? At the same time, this is the same tone of the prior similar administration when the AG set up the latest rules for comment and approval just prior to leaving office by the subsequent administration.
Here’s some food for thought:
As a result of the recent Supreme Court decision which overturned/modified the use of the Chevron standard, the courts now serve as the final arbiter regarding the validity of a federal agency’s imposition of new requirements, regulations and/or re-interpretations of existing federal statutes.
When a court is asked to consider the validity of such changes, they may consider:
(1) The reasonableness of the new requirements/re-interpretation, in light of the statutory text and context.
(2) Is the statute, as written, clear and unambiguous? Here, the court may utilize the “plain meaning doctrine” as it applies to the existing statute, without deference to the agency’s new/re-interpretation.
(3) The court may look to, and determine the congressional intent of the statute. What was the expressed intent of the Congress?
(4) Is the agency’s new interpretation or new requirements “consistent” with their past rulings, decisions, etc.?
(5) Has the public had an opportunity to participate through “public comment”?
(6) Courts may consider the agency’s expertise in the relevant area, especially if the interpretation involves technical or specialized knowledge. Has the State Dept. relied upon an agency “expert” when coming up with these new changes? If so, what peer-reviewed scientfic studies did the expert rely upon?
I am hopeful a challenge will soon be raised to the State Dept.’s new requirements. I am also hopeful that a court-ordered hearing be held so we that we may vigorously argue these issues.
It’s been on their website since last year that you need to self identify when applying for a passport.
https://travel.state.gov/content/travel/en/passports/legal-matters/passports-and-international-megans-law.html
If you have a federal Tier 1 Possession of CP conviction,and you have been on your State Registry for more than 15 years without any issues, are you still a “covered individual” when the federal regulations stipulate that pursuant to Page 7995 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 16915a. Duration of registration requirement:
The full registration period is—
(1) 15 years, if tier I;
(2) 25 years, if tier II; and
(3) life, if tier III.
I’m still pretty angry that you have to self-identify at all. It should be on the government to let you know if you are a “covered” person. I don’t know if I’m covered; if I self-identify when I’m not actually covered, I’m needlessly and ignorantly depriving myself of my rights *by my own hand*.
This tells me that the registry is so out of control in the amount of people on it that it is simply easier to identify those NOT on it.
This is concerning. For someone who has an offense that isn’t against a minor but still has to register, I assume this would be detrimental to traveling. Has anyone had experience traveling while being registered for an offense against an adult?