A deep(er) dive into IML
After we posted the story of one of our members who attempted to fly to the Caribbean only to be met with US Marshals at the airport who confiscated his passport, we received a lot of questions from people across the US, who are required to register.
Why have I not received a notification that my passport has been revoked? Should I travel? Am I going to get the branded passport even if my registration period ended and I’m no longer on the registry? Can I just get it over with and order a new passport with the brand in it? Is anything being done to challenge this?
The honest answer to most of the questions posed was “we don’t know”. The International Megan’s Law is a confusing piece of legislation, the definition of who is and who is not covered under certain sections is inconsistent. We received no (zero) response to the letters we sent to DHS, the passport office or any of the agencies we reached out to. And collecting anecdotal information from those who have traveled, those who have had their passports revoked (and ordered new ones), etc., has yielded even more confusion.
To try and make sense of some of this mess and offer our members something more than “we don’t know”, I did a deeper dive into IML this weekend.
First, IML is still relatively new, it was only signed into law a couple years ago, so there’s not a lot of information or judicial interpretation and even those who should know, are not fully apprised yet.Try asking your local Sheriff’s office a question about IML and gauge their response!
As it relates to people required to register as sex offenders, there are three important components that concern us:
(1) NOTICE OF TRAVEL – now you are required to report international travel 21 days in advance, (2) GREEN NOTICES – after you provide the Sheriff with notice of your intent to travel, they send that notice to the FDLE (note: this post is submitted on FAC – you can substitute your state’s law enforcement agency), they forward it to the US Marshals, they route it to their “Angel Watch” center, which sends a notification called a “green notice” to Interpol or directly to the immigration agency of the receiving country notifying them of your travel, and (3) BRANDED PASSPORTS – if you are “covered” by the law, your current passport will be revoked and you will have to order (and pay for) a new one that has the language, āThe bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).ā
Surprisingly, not each of these three concerns might apply to everyone. Different sections of IML have different definitions of who it applies to. In some cases it is “offense based” – if you committed the offense, it applies to you. In other sections, it is “status based” – if you are registered as a sex offender, it applies to you.
The definitions section of IML contains the following definition, “Covered sex offender.–Except as otherwise provided, the term “covered sex offender” means an individual who is a sex offender by reason of having been convicted of a sex offense against a minor.” That would seem “offense based”.
However, under Section 5 (the “Green Notice” Section) it says, “In this section, the term “sex offender” means– (1) a sex offender under SORNA; or (2) a person required to register under the sex offender registration program of any jurisdiction or included in the National Sex Offender Registry. That would seem “status based”. So, according to (our) interpretation of IML, you are covered by the law if you have ever been convicted (including withhold of adjudication) of a qualifying offense, but under Section 5, if you are no longer required to register, they won’t send out green notices on you.
Section 6 of IML (the “Notice of Travel” section – “Requirement That Sex Offenders Provide International Travel Related Information To Sex Offender Registries”) says, “Whoever–(1) is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. 16901 et seq.)… As such, the notice provision appears to only apply to those who are required to register under SORNA (federal requirement and not merely another jurisdiction).
Finally, Section 8 of IML covers the “UNIQUE PASSPORT IDENTIFIERS FOR COVERED SEX OFFENDERS.” While the title suggests the identifiers apply to “covered sex offenders” as defined in the definition section of IML (and would be “offense based”), Section 8 has it’s own definition of “covered sex offender”, which is: “(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;” In other words, the “branded passport” would apply to registrants currently required to register under the sex offender registration program of any jurisdiction who have a conviction against a minor.
Why the multiple definitions? Who knows?!?!? Confusing? Certainly!!! But that’s what the law says.
Now the anecdotal part… There appears to be no rhyme or reason to the revocation/replacement process, though it does seem as though people who have recently reported international travel are the ones getting the notification. It’s as if the government is prioritizing people who have a greater likelihood of traveling as those they should revoke (for replacement) first.
Also, once you receive notification – your current passport becomes toilet paper. There’s no grace period. It’s instantly useless. It doesn’t matter (nor does the government care) if you have travel plans pending. You no longer have a valid passport and you can’t travel anywhere outside the country until you get it replaced with a branded one.
Which begs the question… if you know that you qualify under Section 8 for the “unique identifier” and want to be proactive about getting a branded passport (so you are not stuck with a suddenly revoked passport as you are about to travel), can you? It would seem the answer is NO.
Members have reached out to passport services without response. Members have had passports naturally expire since the implementation of IML and they have been renewed, in some cases, without the brand (where the brand would definitely be required). There is also no “special application” for a sex offender passport, nor is there anyplace to designate on the application that you are covered. It’s all just wait and see and hope you don’t get screwed by timing.
Finally – is anything being done to challenge IML? This is a question that should be tackled on the national level. At FAC, we’re super-focused on Florida requirements and those are keeping our hands full. IML impacts registrants in every state, so while FAC is completely on board with supporting a challenge, it’s not something we have the resources to take on ourselves.
We are in touch with the Alliance for Constitutional Sex Offense Laws and Janice Bellucci, who has tried a couple challenges (one was premature, other was dismissed), and would certainly not be shy about jumping back in the ring for a third. It might just be a matter of allowing the new law to “mature” a bit so the full extent of the harms can be appreciated before going back into court.
At the same time, Registrant Travel Action Group,is working a different approach. Paul Rigney’s organization is meeting with consulates and liaising with authorities from countries that are currently banning people required to register, in order to educate them. From their perspectives, they receive an urgent message from the US that this “Dangerous” person is coming – so they block them. With greater insight into how irrationally and irresponsibly these notifications are going out, RTAG is making headway in the direction of garnering flexibility from the receiving countries.
After diving deeper into IML, we have a little more insight into who is impacted and how it’s being implemented, but there are still way too many unknowns for anyone to travel anywhere outside the US without the comfort and certainty that they won’t be turned away when they land or not allowed to board the plane because their passport had been unknowingly revoked.
As for our member who wasn’t allowed to travel to the Caribbean because he arrived at the airport to three US Marshals waiting to collect his passport… after completing another application, paying another fee and paying an additional cost for expedited service so he wouldn’t have to interrupt his plans for too long, he did finally get his replacement passport with it’s shiny new branding!
If anyone has further insight, share your comments below. Please don’t ask additional questions as we don’t have answers to anything that was not covered above. You can direct your questions to the USMS National Sex Offender Targeting Center at 202-616-1600 or by email to DHS/ICE Angel Watch Center (AWC) at DHSintermeganslaw@ice.dhs.gov.
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Hereās a potentially significant and helpful segment from a SCOTUS holding interpreting SORNA, from the Nichols case.
Might this holding snippet (below) resolve the issue of whether registrants who move out of states that fail to remove them from the registry, and are not required to register in their new State, nonetheless continue to be āRegistrantsā in for SORNA/IML purposes?
We have had questions here on this from people who have left Florida long ago, for example, and are not presently required to register in their new jurisdiction -and whether on the basis of Florida continuing to list them they might nonetheless be considered to still be āregistrantsā under SORNA. This holding snippet would appear to resolve that in favor of not falling under the category of āregistrantā for the purpose of federal IML and the Notice of Travel provision.
āThe Government resists [this] straightforward reading of the statutory text, arguing instead that once an offender registers in a jurisdiction, āthat jurisdiction necessarily remains āinvolved pursuant to subsection (a),ā because the offender continues to appear on its registry as a current resident.ā Brief for United States 24. But Ā§16913(a) lists only three possibilities for an āinvolvedā jurisdiction: āwhere the offender resides, where the offender is an employee, and where the offender is a student.ā Notably absent is āwhere the offender appears on a registry.ā We decline the Governmentās invitation to add an extra clause to the text of Ā§16913(a). As we long ago remarked in another context, ā[w]hat the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial function.ā Iselin v. United States, 270 U. S. 245, 251 (1926) . Just so here.ā
Question about 21-day notice of intended international travel req.
Did I understand correctly that this requirement applies only if youāre currently required under āfederalā SORNA to register?
I have a ā96 Florida offense against a minor that is tier 1 under federal Tiering. I was charged when I was in Florida on vacation, and when I returned to my state after sentencing I never had to register because the offense is not a covered offense in my home state.
Under federal guidelines, my registration requirement ended in 2010 since my probation ended in 2000 and with a clean record my registration time period ended after 10 Years post end of probation.
Since I satisfied my registration time under āfederalā SORNA, would this mean that I donāt have to give the 21-day Notice?
From FRAC – ā Section 6 of IML (the āNotice of Travelā section ā āRequirement That Sex Offenders Provide International Travel Related Information To Sex Offender Registriesā) says, āWhoeverā(1) is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. 16901 et seq.)ā¦ As such, the notice provision appears to only apply to those who are required to register under SORNA (federal requirement and not merely another jurisdiction).
It applies if you are in Florida and your offense was Federal OR State.
There is BOTH a Federal and a State requirement to give 21 days notice – Under Florida’s requirement, you would have to give notice, but if you no longer live in Florida, you would have to check the requirements of the state in which you live to see what they require.
Florida has no tiers and registration requirements don’t end. They are lifetime.
In my particular case, Iām not required to register in my home state – and therefore Iām under no obligation in my home state to give any notice of intent to travel internationally here. My specific question then is whether in my case where Iām no longer even subject to federal registration because Iām past my tier-specific āfederalā SORNA registration requirement, Iām under any FEDERAL obligation to give notice of travel since the IML says that particular provision of giving notice of travel applies to individuals required under SORNA to register.
My understanding is that the federal requirement to register ends when the tier specific term has elapsed, even if Florida lists me without my having any connection whatsoever to that state.
From FRAC ā ā Section 6 of IML (the āNotice of Travelā section ā āRequirement That Sex Offenders Provide International Travel Related Information To Sex Offender Registriesā) says, āWhoeverā(1) is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. 16901 et seq.)ā¦ As such, the notice provision appears to only apply to those who are required to register under SORNA (federal requirement and not merely another jurisdiction).
I donāt live or study or work or have anything to do with Florida… but as we know they list everyone forever once charged there.
Thank you.
It would seem from a textual reading of SORNA that the 21-day notice requirement in particular doesnāt apply if youāre no longer federally required to register under Federal SORNA (due to the expiration of your term per your tier) and you donāt have a separate State obligation to notify the state of intended intl travel (e.g., bc the state is not SORNA compliant or because youāre not required to register with your state of residence).
In my case with Florida, Iām ālistedā for life per their policy, and accordingly Iāll probably have a branded passport and green notices sent out because SORNA applies these two requirements on the basis of either a conviction EVER or the fact of being listed on a registry (see below SORNA text snippets).
My federal obligation to register (which is recognized as a separate duty from a state duty to register) ended 10 years after my sentencing on my federal Tier 1 offense ā in 2008. But because my stateās Supreme Court held that under the state constitution citizens of the state have greater privacy rights than under the federal constitution the state would not participate in the federal SORNA, even when under federal law a person was required to register. The state opinion noted that as long as the person was in Maryland this federal obligation would not be enforced where there wasnāt a state duty to register. Amazing thing, really.
But perhaps a more accurate way to look at my being listed in florida that they havenāt āremovedā me from the registry after initially listing me as SORNA requires ā not that Iām an actual registrant there since I donāt have any connection to that state.
Federal SORNA, however, makes it explicit in the guidelines, that SORNA itself doesnāt require states to continue to list anyone no longer having a connection to the state, and certainly not to update registration information once the registrant leaves. This is a dubious Florida practice. Florida itself doesnāt require updating the registry details once someone leaves the state. I can only surmise that their policy is revenge, because it certainly is not required by federal SORNA nor does it serve any public safety purpose within Florida.
In my home state, the offense was never considered a covered sex crime and thus Iām not on the registry here.
Therefore if I were to approach my local registry shop to report my intl travel, I donāt know how they would react..
Iād appreciate a clarification on this -is it your understanding that after one completes the SORNA term of federal registration per oneās tier, this ānotice of international travelā would only be an issue/apply if thereās a state requirement to do so where one Lives and registers? Thank you.
FAC is not a law firm. We are neither licensed nor qualified to provide legal guidance. If you require clarification on any of the provisions of the International Megan’s Law, please consult with an attorney. Whatever lay information available through this forum should not relied upon in taking or not taking any action and if you are considering reporting or not reporting certain activity, at the risk of a felony conviction, it is certainly worthwhile getting a definitive answer you can rely on.
So we really donāt know, once someoneās off their state registry (and all state registries), whether there remains a Federal requirement for them to give notice of international travel. It all depends, and that is the question that may require an attorney, correct?
My specific question Was whether this specific FEDERAL Notice of travel requirement provision applies just to individuals required by FEDERAL SORNA to register. As we know, SORNA obligations apply separately from any State obligations. Once oneās SORNA term of registration expires due to the passage of time per oneās tier, then SORNA might no longer apply -not this particular Notice of Travel provision.
If one is not required at the State level to register, then presumably at that point thereād be no need to give notice of travel at the State level. But in theory if your registration term ends before the federal minimum standard for your tier level, youād still owe the Feds this notice.
as written, it would certainly seem to not apply at the federal level if your federal registration term has elapsed per your tier.
As FAC stated above – Section 6 of IML (the āNotice of Travelā section ā āRequirement That Sex Offenders Provide International Travel Related Information To Sex Offender Registriesā) says, āWhoeverā(1) is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. 16901 et seq.)ā¦ As such, the notice provision appears to only apply to those who are required to register under SORNA (federal requirement and not merely another jurisdiction).
That provision requires a person to determine legally whether they āwouldā be required to register in a SORNA-compliant state.
Not a big deal in Florida (which is SORNA-compliant), but confusing for former registrants in the 32 non-SORNA compliant states. Do THOSE people each have to hire their own lawyer to determine whether they, individually, are required to provide Federal notification?
This must be an FAQ.
Iād wholeheartedly agree with you Jacob. Unfortunately the SMART.GOV FAQs page is singularly unhelpful, and I havenāt seen anywhere online where this particular issue is addressed.
I also agree that the threshold issue in determining if this IML provision applies to individuals with sex crimes convictions is whether theyāre presently required by SORNA to register. If the answer is no, then Iād think this notice of travel requirement would not apply at the federal level, at least according to a plain language reading of this provision in the IML.
If I were to notify my residence state of Maryland of my travel plans, where my offense is not a covered offense, Iām afraid they might tell me to file the notice through Florida, which after all is where Iām listed because they never remove once listed. Iād be afraid that Florida would then update my listing with my current Maryland address..
In which case Iāll really have to decide if Iām willing to chance skipping this Notice step on the grounds that my Tier 1 term of federal registration has elapsed and this particular SORNA provision doesnāt apply to me as SORNA reads (the penalty provision for noncompliance is based on being required by SORNA to register).
According to the comments in this thread, my problem is unusual. My SOAR officer has never asked me for a detailed itinerary, only for the name of the initial destination country. For the last two years, this has been a country in Europe. After I land, I travel to other countries, also in Europe.
Now I have learned on this site that we are supposed to supply a detailed itinerary. According to the SMART.gov website (https://smart.gov/international_travel.htm) the required information is as follows:
Destination(s):
ā¢ Dates/places of departure, arrival and return (if applicable), including the name of the city/town that is the point of departure from each country
ā¢ Means of travel (air, train, ship)
ā¢ Itinerary details (when available), including the name of the airport/train station/port, the flight/train/ship number, the time of departure, the time of arrival and information about any intermediate stops
So it looks like whatās OK with the local SOAR unit might be a violation with the US Marshalls. My question is: can I get in trouble for landing in my SOAR-approved destination country and then flying to other ones that are not listed, because my SOAR cops have not requested it?
And hereās another fear: Is it possible that the destination country might notify the US when I land? If so, would I then be in trouble, even though the local cops cleared my āitinerary,ā just because that city/country was not listed?
Here’s a question about the IML, when the interpol sends out notices to foreign destinations about a traveler being identified a registrant and having criminal conviction involving children, is there a US Interpol and International Interpol?, if so is the US interpol the one sending out the notices and does it seem that the US government is acting unilaterally with the angel watch operation?
Interpol is separate from the Angel Watch Center of the Department of Homeland Security (which is on the US end)
Can someone help explain Amendment 11 in regards to the 3rd part which involves repealing the Savings Clause. The Savings Clause prohibits retroactively applying the amendment of a criminal statute to sentencing for a crime committed before the change, and clarify that repealing a criminal statute would not necessarily affect the prosecution of that crime committed previously. I have read quite a bit on this & am still confused due to the wording.
I have been told that, where sentencing guidelines have been reduced by the legislature, Amendment 11 allows those changes to apply retroactively.