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Why have I not received a notification that my passport has been revoked?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, “The 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).”
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 [email protected]