The State Department has modified the Final Rule it published on September 2, 2016, regarding implementation of the International Megan’s Law (IML). The modification corrects the erroneous statement in the Rule regarding whose passports will bear a “unique identifier”.
The modification clarifies that “unique identifiers” will be added only to the passports of individuals convicted of a sex offense that involved a minor and who are currently required to register as a sex offender.
The State Department’s modification occurred as the result of a petition filed by the Alliance for Constitutional Sex Offense Laws (ACSOL) on September 12, 2016. The petition also challenged the State Department’s decision to deny passport cards to the same group of individuals, however, the State Department did not change its position on that topic. According to a letter from the State Department dated October 14, 2016, the agency’s decision not to issue passport cards to some registrants is based upon the “physical and technological limitations of passport cards”.
“The IML does not authorize the State Department to refuse to issue passport cards to any registrant,” stated ACSOL President Janice Bellucci. “Therefore, the agency’s Final Rule is in violation of the law.”
The Final Rule issued by the State Department did not address the “unique identifier” to be added to some registrants’ passports, however, the agency did address that topic in its October 14 letter. According to the letter, “the passport book of a covered sex offender will be endorsed with a short written statement”. The letter did not include the language of such a statement or the location it will be placed.
Letter from State Dept. October 2016
Well, this directly affects me, as my “victim” was in her teens. So does this mean my passport I received in 2013 is rendered invalid? Looks like my dream to expatriate, or at the very least visit another country for once in my life, will remain just that, a dream. I understand most of the Schengen countries still let us in, but I imagine the number of countries that would let people in with a scary branding on their passports will dwindle to the point that we are effectively stuck here.
For those of us with minor victims, it’s looking more and more like the prospect of leaving the US is becoming an escape mission, bringing to mind the stories of North Korean refugees who risked imprisonment, or even death, to escape in search of freedom abroad. And to think that people still blithely believe the USA remains the beacon of freedom, the land of the free.
I no longer have any allegiance to or faith in my country, a country I once so proudly supported. We have no representation here, yet we are still required to pay annual service and taxes in support of this police state (and make no mistake about it, the US absolutely has become a de facto police state, and I don’t think I need to preach to the choir here by elaborating).
I have come to despise much of my country’s government. That statement alone might put me on a terror watch list. I don’t f*ing care anymore. The way things are going, it is not like I can travel outside the country much longer. That is where this is all going.
In fact, some people have been banished from countries already because of the actions of our government. There is no justification in labelling someone potential child sex tourist when a person has never been charged or convicted of such a crime. I myself have never been charged with such as crime, but it is now impossible for me to travel to some countries because of IML.
Our government has overstepped it’s boundaries and must be opposed. Every American should be terrified at what our government is doing to sex offenders. Unfortunately, people don’t seem to see it yet. By the time they see it, it may already be too late for them.
My offense was internet based with no physical victim. What am i classified as????? I’m a tier 1 in new jersey. Janice can you help me sort this out? just wanna know where i stand thanks in advance. im sure a few people are in the same boat as myself. i cant be the only one. the crime the said was importuning if that helps and it was in ohio
Janice – Would appreciate your opinion on this – verbiage states crime against a minor and has to register.
My crime was against a minor but was dismissed and expunged via 1203.4 over 10 years ago. But since I reside. In California still have to register. Do you know if my passport will be adversely affected by this decisions as well as will I need to notify 21 days in advance prior to any international travel? Appreciate any insight that you might be able to provide.
To Tired of This
Oh the children, in some countries it’s not illegal to have sex with so called minors. Wow, it will never end, a nation of hypocrisy and magic laws. So, in one state where you have to register for an offense involving a minor your passport will have a identifier, but if you live in a state where the same offense doesn’t require you to register or register any longer u won’t have one. Is this what’s called equal protection, lol. Wow, like you said, no respect left for this 50 country experiment.
This gives me a (tentative) sigh of relief. My offense was against a minor, but because I currently live abroad, I’m not required to register.
“According to a letter from the State Department dated October 14, 2016, the agency’s decision not to issue passport cards to some registrants is based upon the “physical and technological limitations of passport cards”.”
Sorry Charlie…. YOUR document, YOUR law, YOUR problem. Make it happen. Nothing in this law references your possible inability to modify your own documents. It specifically says “‘‘(3) the term ‘passport’ means a passport book or passport card” – Sec. 8 (a).
Have never seen one but I am guessing the passport card is a government issued, laminated document – on which the government can print whatever they choose. Text, images, symbols. If there is not enough room, drop something else. Reduce the font size. Re-arrange the layout.
Again. YOUR document, YOUR law, YOUR problem. Make it happen. Can’t do? Give Rep. Chris Smith, NJ, a call. HR 515 does NOT authorize you to deny a US Citizen an official identification document.
Maybe with all these millions of dollars there is a line item for one copy of Adobe Creative Suite….
Ironically I imagine the identifier statement reading, “Child Sex Predator.” If that is the case, I can’t imagine how they are going to justify that they are not compelling speech.
First impression is that the State Department is reluctant to implement this law: “The Department is obligated to implement U. S. Law as passed by the Congress and signed by the President which includes the IML.” Obligated doesn’t indicate much enthusiasm, and it sounds like they are trying to get out of it with as little effort as possible.
The “unique identifier” now is described as a “short written statement” “endorsed” in the passport book. Reading the tea leaves, I’m guessing that this will be printed in the Visa pages at the back, probably the first page, in the case of newly issued passports. My experience with customs in friendly (Schengen) countries is that they don’t look at other visa stamps in my passport (which has many) and find a blank page to stamp. The may even overlook the “identifier” statement.
As to the Passport Card, it’s a good thing that the identifier will not be added to it. If you have one (even expired), you can use it for hotel check-ins, rental cars, etc. as an ID with no sex offender recognition.
I applied last week for a new passport book and card by mail $140, and if I get it, it will be valid for 10 years (my check has already been cleared by my bank). I’m guessing that State will be focusing on newly issued passports and will not be getting around to revoking passports already issued.
As to the “good cause” exemption for not having “comment” on the rule, that’s obviously challengeable. In one commentary, it says “Generally speaking, the notice requirement of § 553 is satisfied when the agency ‘affords interested persons a reasonable and meaningful opportunity to participate in the rulemaking process. Once adequate notice is provided, the agency must provide interested persons with a meaningful opportunity to comment on the proposed rule through the submission of written ‘data, views, or arguments.’ The comment period may result in a vast rulemaking record as persons are permitted to submit nearly any piece of information for consideration by the agency. While there
is no minimum period of time for which the agency is required to accept comments, in reviewing an agency rulemaking, courts have focused on whether the agency provided an adequate opportunity to comment-of which the length of the comment period represents only one factor.”
Another source says the “good cause” exemption can be justified to allow agencies to dispense with notice and comment if those procedures are “impracticable, unnecessary, or contrary to the public interest.”
None of those conditions has been fulfilled. Imagine the witnesses who could have been called to testify that this rule is illegal and unconstitutional.
Commentaries on 553 good cause exemptions –
http://www.wise-intern.org/orientation/documents/crsrulemakingcb.pdf
http://archive.law.fsu.edu/library/admin/acus/305832.html
Also urgent, what’s happening with filing another lawsuit, perhaps in a more friendly district, to challenge the Angel Watch and advance notifications under SORNA. The is a separate issue from the “identifier” but perhaps more troubling.
The IML violates the”Bills of Attainder” clause of the Constitution.
In United States v. Brown, a statue was challenged for violation of this clause. The court ruled…”it can[not] automatically be inferred that ALL members share their evil purposes or participate in their illegal conduct”. What is was talking about was the statute that banned the whole group of people whom belonged to the Communist party. The statute basically said all communist (RSO’s) will engage in illegal activities. ..
The statute also in effect sets up an irrebuttable presumption that the RSO’s who have a minor victim engage in sex tourism and child sex trafficking….
Please research the Bills of Attainder clause.
This whole IML need to be challenged not modified.
While this clarification is good news for many– a couple issues come to mind
1) even if one is not covered by this new identifier are they still going to send those absurd and notifications?
2) There are many of us who will still be covered by this law and we have never had nor will have anything to do with international sex trafficking–does this mean this organization is ending it’s fight? and placing it on a back burner??? because Angel Watch notifications are wrong and individual assessment should be made before making a mark in anyone’s passport!
Thank you for what you have done–it would have been a lot worst, as your letter demonstrates had you not acted.
Just for clarification, if I apply for a passport right NOW, will it have the identifier on it? If not, even though I have no foreseeable plans to travel, I think I’m going to get one. Thanks!
I think someone else asked this but what does this mean for the notifications ? Are they still going out on ALL registrants ?
From the language seems like no but who will be the guinea pig and try this out ?
I have a question, can the green notices that are being sent to foreign countries of any registrants traveling abroad and have been in compliance and have not committed any new crime be challenged?
I did some digging into the citings from the State Department letter which is linked above:
If I am correct, 22 U.S.C. 212b(c)(1) refers you to 42 U.S.C. 16935f, and then to 42 U.S. Code § 16911, which, sadly, actually broadens the definition of covered sex offender:
(7) EXPANSION OF DEFINITION OF “SPECIFIED OFFENSE AGAINST A MINOR” TO INCLUDE ALL OFFENSES BY CHILD PREDATORS The term “specified offense against a minor” means an offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18 (/uscode/text/18/1801).
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
all legal minds —
look what i found —
don’t know if it can help
what happens when the same statute has criminal
and
civil applications? May
Congress sidestep these requirements by giving crimin
al statutes a civil app
lication? The answer
is no. The courts must give dual-application st
atutes just one interpretation, and the criminal
application controls. Statutes are not “chamele
on[s]” that mean one th
ing in one setting and
something else in another.
Id.
at 730. Because a single law should have a single meaning, the
“lowest common denominator”—including all rules a
pplicable to the interpretation of criminal
laws—governs all of its applications.
Clark v. Martinez
, 543 U.S. 371, 380 (2005). That
explains why
United States v. Thompson/Center Arms Co.
applied the rule of lenity to a civil tax
case that turned on language that had civil a
nd criminal applications. 504 U.S. 505, 517–18 &
n.10 (plurality opinion);
id.
at 519 (Scalia, J., concurring in the judgment). Time, time, and time
again, the Court has confirmed th
at the one-interpretation rule means that the criminal-law
construction of the statute (with
the rule of lenity) prevails ove
r the civil-law construction of it
(without the rule of lenity). When a single statut
e has twin applications, the search for the least
common denominator leads
to the least liberty-inf
ringing interpretation.
See, e.g.
,
Maracich v.
Spears
, 133 S. Ct. 2191, 2209 (2013);
Kasten v. Saint-Gobain Performance Plastics Corp.
,
No. 15-3101
Esquivel-Quintana v. Lynch
Page 13
563 U.S. 1, 16 (2011);
Clark
, 543 U.S. at 380;
Leocal v. Ashcroft
, 543 U.S. 1, 11 n.8 (2004);
Scheidler v. Nat’l Org. for Women
, 537 U.S. 393, 408–09 (2003).
To NY Level 1
A machine-readable passport (MRP) is a machine-readable travel document (MRTD) with the data on the identity page encoded in optical character recognition format at the bottom of the page. The following information must be provided in the zone: name, passport number, nationality, date of birth, sex, and passport expiration date. These MRTD make it easy for automated systems to scan a travel document. If a country decides to check all visitors against a criminal database (anyone with an outstanding arrest warrant from Interpol, or in the UK for example, the US sex offender registry), reading the information automatically with a computer will be much faster and less prone to error than if the immigration agent needs to type the information in by hand. So, when the agent scans your passport you hold your breath.
Here are detailed instructions on how to read the data encoded on your passport:
http://www.highprogrammer.com/alan/numbers/mrp.html
Sent my passport off for expedited renewal less than two weeks ago. Just came in the mail today. No markers anywhere!