DEC o··4 2013 - USCIS - Application for U Nonimmigrant...February 10, 2012. On January 30, 2013, the director denied the Form 1 .. 918 U petition noting the petitioner's ineligibility - [PDF Document] (2024)

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Date: Office: VERMONT SERVICE CENTER

u.s. Depliri;D:lent of J:19meland Security U.S. Citizenship and Immigration Services Office of Administrative Appeals 20 Massa~:husetts A.ve., N.W., MS 2090 Washington, DC 20529-2090

U.S. Citizenship and Immigration Services

FILE:

DEC o··4 2013

INRE:

PETITION:

Petitioner:

Petition for U Nonimmigrant Classification as a Victim of a Qualifying Crime Pursuant to Section lOl(a)(lS)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(q)(U).

ON BEHALF OF PETITIONER:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case . .I

· This is a non., precedent decision. The AAO does not announce new constructions of law not establish a,gency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts L·r consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forins for the latest information on fee; filing location, ,and other requirements.

See also 8 C.F.R. § I 03.5. Do not file a motion directly with the AAO.

www.uscis.gov

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DISCUSSION: The Director, Vermont Service Center (the director), denied the nonimmigrant visa petition and the matter is now before the Administrative Appeals Office (AAO} on appeal_. The appeal will be dismissed.

The petitioner seeks nonimmigrant classification under· section 1 01 (a)( 15)(U) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1101(a)(15)(U), as an alien victim of certain qualifying criminal activity.

The director 4enied the petitio!). beca11se the petitioner is currcmtly a lawful pennanent resident of the United States and, therefore, ineligible to be a nonimmigrant The director also noted that the petitioner is inadmissible to the United States pursuant to sections 212(a)(2)(A)(i)(I) (commission of a. crime of moral turpitude) and 212(a)(6)(A)(i) (present without being admitted) of the Act On a.ppeal, COllnSel submits a copy of a hearing notice regarding the petitioner's removal proceedings.

Applicable Law

Section 101(a)(l5)(U) of the Act, provides for U nonimmigrant classification to alien victims of certain criminal activity who assist govemrnent officials in iiJ.vestigating or prosecuting such criminal activity, as well as the victims' qualifying family members. Section 101(a.)(15) of the Act, defines the term "immigrant" as ''every alien except an alien who is within one of the following classes of nonimmigrant aliens." Section 10l(a)(l5)(U) of the Act is one such nonimmigrant .classification that is not included in the definition of"immigrant" at section 101(a)(15) of the Act.

Section 212(a) of the Act, 8 U.S.C. § 1182(a), sets forth the grounds ofinadmissibility to the Uniteq States, and states, in pertinent part:

(6} Illegal entrants and immigration violators.-

(A) Aliens present without pertrtission or parole.-

(i) In general.-An J alien present in the United States without being admitted or paroled, or who arrives in the United Stl:ltes at any time or place other thaD a.s designated by the Attorney General, is inadmissible.

* * * Section 212(a)(2) of the Act pertains to criminJl and related grounds ofinadmissibility and states, in pertinent part:

(A) Conviction of certain crimes.

(i) In general. Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

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(I) a crime involving moral turpitude (other than a purely political-offense) or an attempt or conspiracy to commit such a crime ...

* * * is inadmissible.

All nonimmigrants must establish their admi::;:;ihility to the United States or show that any grounds of in~dmissibility have been waived. 8 C.F.R § 214.l(a)(3)(i). For aliens seeking U nonin:unigrant status who are inadmissible to the United States, the regulations at 8 C.ER §§ 212.17, 214.14(c)(2)(iv) require the filing of an Application for Advance Permission to Enter as a Noniiilliligrant (Form I-192) in conjunction with a Form I-918 U petition in order to waive any ground of inadmissibility.

Facts and Procedural History

The petitioner is a native and citizen of Mexico, who was granted lawful permanent resident (LPR) st~tus on May 11, 2005. Removal proceedings were initiated against the petitioner on January 10, 2011, due to her criminal conviction in the State of Oregon for the offense of criminal mistreatment in the first degree. The record shows the petitioner was convicted upon her guilty plea to knowingly causing physical injury to her six-yea,r old daughter. The petitioner's next removal hea,ring is scheduled for December 3, 2015, in the Tacoma, Washington, lininigration CoUrt.

- i - -The petit_ioner filed the Forml-918 U petition on January 6, 2012 and subsequently filed a Fortn I-192, Application for Advance Permission to Enter as Nonimmigrant (Form I-192 waiver) on February 10, 2012. On January 30, 2013, the director denied the Form 1 .. 918 U petition noting the petitioner's ineligibility f,or nonilflfiligrant classification becailse of her LPR status. Specifically, the director, citing Matter of A, 6 I&N Dec. 651 (BIA 1995), stated th~t a11 alien may not be both an iminigrant and a. nonimmigrant at the smne time. The director also noted that the definition of "immigrant" at section 1 01 (a)( 15) of the Act does not include an alieJJ, described a,t section 101(a)(l5)(U) oftbe Act.

On appeal, counsel states on the Form I-290B, Notice of Appeal or Motion, that the petitioner is in removal proceedings and submits a copy ofth~ petitioner's Notice to Appear ~d a hearing notice.

Analysis

Upon review of the record, we concur with the director's deciSion to deny the petition. The petitioner is a lawful permanent resident and is ineligible for U nonimmigrant classification. As noted by the director in his decision, section 10l(a)(15) of the Act defines the term "irrunigraJJ,t" as "every alien except an alien who is within one of the following classes of nonimmigrant aliens." Section 101 ( a)(15)(U) of the Act is one such nonimmigrant classification that is not included in the definition of''immigrant" ~t section 101(a)(l5) of the Act.

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1'h¢ record cont~ns no evidence that the petitioner has lost her l~wful permanent resident status. Although she was placed in removal proceedings due to her criminal conviction, those proceedings ~e <mgoi:11g. L~wful p¢IT11a.fltmt resident st~tt1s termin11tes upon entry of a final administrative order ofremoval. 8 C.P.R.§ 1.1(p), 100l.1(p). See also Etuk v. Slattery, 936 F.2d 1433, 1447 (2d Cir. 1991 ){citing Matter ofGunaydin, 18 I&N 'Dec. 326 (BIA 1982)). Lawful permanent residency does not end upon commission of acts which may render the resident inadmissible or rernov~ible, bqt t.tpon entry of a final administrative order of removability based oil Such acts. Matter of Gunaydin, 18 l&N Dec. at 328. Here; the proceedings against the petitioner are ongoing and she has not received a final adm,irustrative order of removal. Lawful permanent residency may· also be lost through abandonment, rescission, or relinquishment. · See id at 327 n; 1. However, none of those circ*mstances exist in this case. Consequently, the petitioner remains a lawful perrn®ent resident.

The statute and regulations also do not petmit a lawful perma:rierit resident to adjust status to that of a U nonimmigrant. !he Act allows ~ alien to change from one nonimmigrant classification to another and permits lawful permanent residents to adjust to A, E and G nonimmigrant classification, but the Act contains no provision for the adjustment of a lawful permanent resident to U nonirruiJ.igr~t sn:ttt:Js. See sectiS>ns 247, 248 <:>fthe Act, 8 U.S,C §§ 1257, 1258,

·' FUrthermore, counsel fails to address the director's determination that the petitioner is inadmissible to the United SU:ttes under sections 212(a)(2)(A)(i)(I) and 212(~)(6)(A)(i) of the Act. the record shows that the. petitioner is inadmissible to the United States oil each of the grounds cited to by the director. The petitioner does not deny that she last entered the United· States without being inspected, admitted or paroled by an immigration officer. Therefore, she is inadmissible under section 212(a)(6)(A)(i) of the Act.

On M~y 28, 2010, the petitioner plead guilty to criminal mistreatment in the first degree in violation 1

· · of Oregon Revised Statutes (ORS) section 163.205 in the , Oregon Circuit Court. · the petitioner was sentencedto 36 months of probation. O:R.S 163.205 provides, in pertinel).t part:

( 1) A person commits the crime of criminal mistreatlllent in the first degree if:

* * * (b) The person, in violation of a legal duty to provide care for a: dependent person or elderly person, or having assumed the permanent or temporary care, custody or responsibility for the supervision of a dependent person or elderly person, intentionally or knowingly:

(A) Causes physical injury or injuries to the. dependent person or elderly person ....

Ot .. Rev. StaLAnn. § 163.205 {West 2010).

ORS section 163.205 is, ill plain langl.lage, Oregon's prohibition against child and elderly abuse. The Bo~d of Immigration Appeals (BIA) and the Ninth Circuit Court of Appeals, in whose

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jurisdiction this case arises, have found child abuse to constitute a ·crime involving moral (urpimde where harm is inflected on a person with whom the petpettatot has a familial relationship. ·See Matter ofTra.n, 21 I&N Dec. 291, 294 (BIA 1996) (''[i]ntliction of bodily hMID upon a· person with whom one has . . . a familial relationship is an act of depravity which is .conttaty to accepted moral $tanqards . . . When such an. act is committed willfully, lt is an offense that involves moral turpitude.") (citations omitted); Guerrero de Nodahl v. Immigration & Naturalization SetV., 407 F.2d 1405,.1406.,07 (9th Cir. 1969) (inflicting injury upon a child is so offensive to American ethics that moral turpitude is involved if it is done purposely or willingly).

Although ORS section 163.205 includes willfulness as an element, beca11se the .statute is divisible, tartder the modified categorical approach we must look to the record of conviction to determine whether the respondent was convicted of a crime involving moral turpitude. See Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 :(1990) (enunciating ihe categori.cal and modified categoricaJ approaches), see also Tokatly v. Ashcroft, 3:71 F.3d 613, 620-24 (9th Cir. 2004) ·(applying the categorical and modified categorical methodology and defining what documents may be considered ooder the modified categorical approach). In this case, the conviction record shows that the petitioner plead guilty to knowingly causing physic~ injirry to her daughter, a minor dependent. Furthermore, throu~h her plea petition, where she admitted to "knowingly .caus[ing] physic~} injqry to [her] minor daughter," the petitioner has admitted committing acts which constitute the essential elements of a ~rime involving roorlil :turpit1lde. S?e Mcztter off(-, 7 l. & N. Dec. 594 (BIA 1957). As such, the. petitioner has been convicted· of, and has admitted colllfilitting acts which constitute the essential elements of, a crime involving moral turpitude, and she is therefore inadmissible under section 21.2(a)(2)(A)(i)(I) of the Act. ·

. - - . . . . . . . \

The record shows that the petitioner is inadroissible and her Form I -192 waiver application was denied. The petitioner's inadmissibility renders her ineligible for U nonimmigrant classification. 8G.F.R§§212.17,214.l4(c)(2)(iv). . .

Conclusion

The petitioner remains a .lawful permanent resident. She is also inadmissible to the United States and her Form 1-192 waiver application was denied. Consequently, she is in~ligible for U noniroroigrant status. The petitioner has failed to overcome these grounds for denial on appeaL

the app~al will be dismissed for the above stated reasons, with each consid~red as an independe.nt and alternate basis for the decision. In visa petition proceedings, it i~ the petitioner's burden· to establish eligibility for the immigration benefit sought Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here,''that bu.rden has not been met.

ORDER: The appeal is dismissed.