Non-Precedent Decision of the Administrative Appeals Office

MATTER OF M-E-R- DATE: NOV. 7, 2018

APPEAL OF VERMONT SERVICE CENTER DECISION

PETITION: FORM 1-918, PETITION FOR U NONIMMIGRANT STATUS

The Petitioner seeks "U-1" nonimmigrant classification as a victim of qualifying criminal activity under sections 101(a)(15)(U) and 214(p) of the Immigration and Nationality Act (the Act), 8 U.S.C. §§ 1101(a)(15)(U) and l 184(p). The Director of the Vermont Service Center denied the Form 1-918, Petition for U Nonimmigrant Status (U petition). The Director concluded that the U petition was not approvable because the record established the Petitioner's inadmissibility and the Petitioner's Form 1-192, Application for Advance Permission to Enter as Nonimmigrant (waiver application), requesting a waiver of the grounds of inadmissibility, had been denied. The matter is now before us on appeal. On appeal, the Petitioner submits a brief and additional . The Petitioner claims that the Director's denial contains inaccuracies in regard to her criminal history, and that she meets the requirements for U-1 classification eligibility. Upon de nova review, we will dismiss the appeal.

I. APPLICABLE LAW

Section 212(d)(l4) of the Act requires U.S. Citizenship and Immigration Services (USCIS) to determine whether any grounds of inadmissibility exist when adjudicating a U petition and provides USCIS with the authority to waive certain grounds of inadmissibility as a matter of discretion. A petitioner bears the burden of establishing that he or she is admissible to the United States or that any grounds of inadmissibility have been waived. See 8 C.F.R. § 214.l(a)(3)(i).

For individuals seeking U nonimmigrant status who are inadmissible to the United States, the regulations at 8 C.F.R. §§ 212.17, 214.14(c)(2)(iv) require the filing of a waiver application in conjunction with the U petition in order to waive any ground of inadmissibility. The regulation at 8 C.F.R. § 212.17(b)(3) states, in pertinent part: "[t]here is no appeal of a decision to deny a waiver." Although the regulations do not provide for appellate review of the Director's discretionary denial of a waiver application, we may, however, consider whether the Director's underlying determination of inadmissibility was correct.

II. ANALYSIS

A. The Petitioner's Criminal History

The record demonstrates the following pertinent criminal history for the Petitioner: . Matter ofM-E-R-

• 1992 plea of guilty to Sale of Alcohol Without License under section 562.12 of the Florida Statutes and Contributing to Delinquency of Minor under section 827.04 of the Florida Statutes • 1995 conviction of Grand Third Degree under section 812.014 of the Florida Statutes • 2003 plea of guilty to of under Title 18 U.S.C. Section 4 • 2006 conviction of Operating While License Suspended under section 322.34 of the Florida Statutes • 2014 pleas of guilty to two counts of Driving Under Influence with Serious Bodily Injury under section 316.193(3 )( c )(2) of the Florida Statutes and Driving Without a License Causing Injury or Death under section 322.34(6)(a) of the Florida Statutes

B. The Petitioner's Immigration History

The record demonstrates the following pertinent immigration history for the Petitioner:

• 1973 Petitioner first entered the United States as a child with her parents • 1989 Petitioner adjusted to temporary residence status • March 1993 Petitioner adjusted to lawful permanent residence status • 2003 Immigration Judge ordered the Petitioner removed to Mexico • 2003 Petitioner removed from the United States • 2006 Immigration Judge's 2003 removal order reinstated against the Petitioner • 2007 Petitioner removed from the United States • 2011 Petitioner granted continued presence in the United States as a parolee until 2012 • 2018 Immigration Judge ordered the Petitioner removed

C. Grounds oflnadmissibility

In the denial of the Petitioner's waiver application, the Director concluded that because of the Petitioner's criminal and immigration history, the Petitioner was inadmissible under the following provisions of the Act:

• Section 212(a)(2)(A)(i)(I), Involving Moral Turpitude (CIMT) • Section 212(a)(2)(A)(i)(II), Controlled Substance Violator • Section 212(a)(2)(B), Two or More Offenses • Section 212(a)(2)(C), Illicit Trafficker in Controlled Substance • Section 212(a)(6)(A)(i), No Admission or Parole • Section 212(a)(7)(B)(i)(I), No Valid Passport • Section 212(a)(9)(A)(i), Admission Within Five Years of Removal

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• Section 212(a)(9)(A)(ii), Admission Within Ten Years of Removal • Section 212(a)(9)(B)(i)(Il), Admission Within Ten Years of Removal After Unlawful Presence More Than a Year • Section 212(a)(9)(C)(i)(I), Entry Without Admission After Unlawful Presence More Than a Year • Section 212(a)(9)(C)(i)(II), Entry Without Admission After Removal Order

8 u.s.c. § 1182.

After consideration of the evidence of the Petitioner's rehabilitation and her criminal history, the Director concluded that the mitigating factors did not outweigh the negative factors in the record, and it was not in the public interest to favorably exercise discretion.

On appeal, the Petitioner asserts that her denial did not properly analyze whether she meets the U-1 visa requirements, instead focusing on her inadmissibility. The Petitioner contends that she meets the U-1 visa requirements, but was prevented from seeking a waiver of her inadmissibility in Immigration Court because she was not granted a U-1 visa, a determination outside the Immigration Court's jurisdiction. However, the Petitioner did submit a waiver application which the Director denied in July 2018 based on discretion. As the Petitioner's waiver application was denied, the Director also determined that she was not eligible for a U-1 nonimmigrant visa, as she had not established her admissibility to the United States, as required. See 8 C.F.R. § 214.l(a)(3)(i). The Petitioner has not submitted statutory, case law, or policy support for her assertion that the Director should outline whether she meets the other U-1 visa requirements, even when she has been found ineligible for nonimmigrant U-1 status based upon her inadmissibility.

The Petitioner also contends that she has not been convicted of a CIMT; has not committed or attempted to commit a controlled substance violation; has not committed two or more with aggregate sentences of five years or more; and was not a knowing aider, abettor, assistor, conspirator, or colluder in the illicit trafficking of a controlled substance. In regard to the Director's additional findings of inadmissibility, the Petitioner further asserts that if she prevails on an appeal pending with the Board of Immigration Appeals (the Board), she may not be inadmissible under these grounds.

1. Inadmissibility Under Section 212(a)(2)(A)(i)(I) of the Act

In the denial of the Petitioner's waiver application, the Director generally concluded that the Petitioner was inadmissible under section 212(a)(2)(A)(i)(I) of the Act for committing an offense defined as a CIMT. However, the Director did not specify or provide any analysis of the Petitioner's criminal offenses considered in making this determination.

The Petitioner asserts on appeal that she is not inadmissible for her grand theft third degree conviction under section 812.014 of the Florida Statutes. Specifically, the Petitioner contends that Matter of M-E-R- the grand theft third degree statute, as in effect at the time of her 1995 conviction, did not require the intent to deprive an individual of property as required for a theft CIMT.

At the time of the Petitioner's grand theft third degree conviction, section 812.014 of the Florida Statutes provided, in part:

1. A person commits theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with the intent to, either temporarily or permanently; a. Deprive the other person of a right to the property or a benefit therefrom. b. Appropriate the property to his own use or to the use of any person not entitled thereto.

The Board has determined that to constitute a crime involving moral turpitude, a theft offense involves a taking or exercise of control over another's property without and with an intent to deprive the owner of his property either permanent or under circumstances where the owner's property rights are substantially eroded. Matter of Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016). As section 812.014 of the Florida Statutes reflects that it may be violated by the intent to temporarily deprive an individual of his or her property or appropriate the property to his or her own use, it is overbroad, as the minimum conduct needed for a conviction under the statute does not involve moral turpitude. The categorical approach focuses on whether moral turpitude necessarily inheres in the minimal conduct for which there is a realistic probability of prosecution under the statute. See Matter of Silva-Trevino, 26 l&N Dec. 826,831 (BIA 2016) (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-1685 (2013); Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007)). Therefore, a violation of 812.014 of the Florida Statutes is not categorically a crime involving moral turpitude.

Where a criminal statute is divisible (encompasses multiple distinct offenses not all of which are crimes involving moral turpitude), we conduct a modified categorical inquiry by reviewing the record of conviction. See Matter of Short, 20 l&N Dec. 136, 137 (BIA 1989); see also Descamps v. US., 133 S. Ct. 2276, 2285-86 (2013). A divisible statute "(1) lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of "elements," more than one combination of which could support a conviction, and (2) at least one (but not all) of those listed offenses or combinations of disjunctive elements is a "categorical match" to the relevant generic standard." Matter o_fChairez, 26 I&N Dec. 819, 822 (BIA 2016) (citing Descamps, supra, at 2283). However, disjunctive statutory language only renders a statute divisible where "each statutory alternative defines an independent "" of the offense, as opposed to a mere "brute fact" describing various means or methods by which the offense can be committed." Id. (citing US. v. Mathis, 136 S. Ct. 2243, 2248 (2016)). "Elements" are what the prosecution must prove to sustain a conviction: at trial, they are what the jury must find beyond a reasonable doubt to convict, and at a plea hearing, they are what the defendant necessarily admits when pleading guilty. Mathis, supra, at 2248. Means or methods are extraneous to the crime's legal requirements; they are circumstances or events that need neither be found by a jury nor admitted by a defendant. Id.

There are various sources for confirming whether alternatives in a statute constitute elements or

4 Matter of M-E-R- means, including the statute on its face, a court decision or other source of law in the jurisdiction, or the record of conviction itself for the sole and limited purpose of resolving the divisibility question. Id. See Mathis, supra, at 2256 (finding that the Iowa Supreme Court had previously determined that the listed premises in Iowa's law were just alternative methods and a jury did not need to agree on the location).

The Florida Supreme Court's Standard Jury Instruction section 14.1 demonstrates that a jury in a case concerning an alleged violation of section 812.014 of the Florida Statutes does not need to be unanimous regarding whether the defendant intended to either temporarily or permanently deprive an individual of or appropriate property. Rather, the state must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly and unlawfully [obtained or used] [endeavored to obtain or use] the (property alleged) of (victim). 2. [He][She] did so with intent to, either temporarily or permanently, a. deprive (victim) of [his ][her] right to the property or any benefit from it. b. appropriate the property of (victim) to [his][her] own use or to the use of any person not entitled to it.

Therefore, while the language at issue "with intent to, either temporarily or permanently," may be disjunctive, it does not render the statute divisible so as to warrant a modified categorical inquiry. And, as the violation of section 812.014 of the Florida Statutes is not categorically a crime involving moral turpitude, and the statute cannot be analyzed using the modified categorical approach, the Petitioner's conviction for this offense does not render her inadmissible under section 212(a)(2)(A)(i)(I) of the Act.

However, as indicated above, the Petitioner was also convicted of misprision of a felony under 18 U.S.C. § 4 in 2003. Specifically, the Petitioner, in the United States District Court, Eastern District of Texas, entered a plea of guilty to misprision of a felony.

At the time of the Petitioner's misprision of a felony conviction, 18 U.S.C.A. § 4 provided:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 U.S.C.A. § 4

The Eleventh Circuit Court of Appeals, within whose jurisdiction the Petitioner resides, has determined that a misprision of a felony offense is a CIMT. See Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002). In making this determination, the Court indicated that a misprision of a felony offense "require[s] both knowledge of a crime and some affirmative act of concealment or

5 Matter ofM-E-R- participation." Id. at 1216 (quoting Branzburg v. Hayes, 92 S. Ct. 2646 (1972). And, the Court found such behavior "runs contrary to accepted social duties and involves dishonest or fraudulent activity." Id. Accordingly, we concur with the Director's determination that the Petitioner has been convicted of a CIMT that renders her inadmissible under section 212(a)(2)(A)(i)(II) of the Act and we need not address whether the Petitioner's other convictions also constitute CIMTs under the Act.

2. Inadmissibility Under Section 212(a)(2)(A)(i)(II) of the Act

In the denial of the Petitioner's waiver application, the Director generally concluded that the Petitioner was inadmissible under section 212(a)(2)(A)(i)(II) of the Act for conviction of or admission to a violation of law related to a controlled substance. However, the Director did not specify or provide any analysis of the Petitioner's criminal offenses or admissions considered in making this determination.

The Petitioner asserts that the basis of the Director's section 212(a)(2)(A)(II) determination is not clear, but that the Director cannot rely upon her 2001 arrest for this finding. The Petitioner contends that there is no evidence that her 2001 arrest resulted in a conviction, and that she has made no admissions related to this arrest. It appears that the Petitioner refers to her 2001 arrest for to possess with intent to distribute crack cocaine and possession with intent to distribute cocaine within 1000 feet of a school. And, as the record reflects that this arrest resulted in the Petitioner's 2003 conviction for misprision of felony, the Petitioner has not been convicted of the drug-related violations with which she was charged. 1

In a submitted sworn statement, the Petitioner acknowledges that she was arrested after delivering cocaine to an individual who she learned to be a police officer. However, this admission to participation in a drug-related offense did not take place within the safeguards of court proceedings and, as argued by the Petitioner on appeal, there is no indication that the Matter of K- requirements were met to establish her section 212(a)(2)(A)(II) inadmissibility. See Matter of K-, 7 I&N Dec. 594, 597 (BIA 1957) (foreign national must be given an adequate definition of the crime, including essential elements, in understandable terms).

Accordingly, based upon the record currently before us, the Director's determination that the Petitioner is inadmissible under section 212( a)(2)(A)(i)(II) of the Act is not supported.

3. Inadmissibility Under Section 212(a)(2)(B) of the Act

In the denial of the Petitioner's waiver application, the Director generally concluded that the Petitioner was inadmissible under section 212(a)(2)(B) of the Act for conviction of two or more offenses for which the aggregate sentences to confinement were five years or more. However, the

1 We note that the Petitioner acknowledges that she testified for the government in relation to these charges, and the record does not contain a transcript of her court testimony. As such, though the Petitioner may have made admissions related to a drug-related violation in a court of law, the record does not contain such evidence.

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Director did not specify or provide any analysis of the Petitioner's criminal offenses considered in making this determination.

The Petitioner asserts that she has not committed two or more crimes of which the aggregate sentences were five years or more. The Petitioner contends that though she was sentenced to 48 months imprisonment for each of her three counts in her 2014 conviction (two counts of driving while intoxicated with serious bodily injury, one count of driving without a license causing injury or death), the sentences were concurrent and should not be aggregated under Matter of Fernandez, 14 l&N Dec. 24 (BIA 1972).

The record reflects that the Petitioner was sentenced to six months imprisonment for her grand theft third degree conviction and 48 months imprisonment, concurrently, for each of the three counts in her 2014 driving convictions. In accordance with Fernandez, the Petitioner has been sentenced to imprisonment for an aggregate of 54 months for these offenses. Accordingly, the record does not support the Director's related findings that the Petitioner has been convicted of offenses for which her aggregate confinement sentences were five years or more, and that she is inadmissible under section 212(a)(2)(B) of the Act.

4. Inadmissibility Under Section 212(a)(2)(C) of the Act

In the denial of the Petitioner's waiver application, the Director generally concluded that the Petitioner was inadmissible under section 212( a)(2)(C) of the Act on the basis that the Director knows or has reason to believe the Petitioner is or has been an illicit trafficker in any controlled substance, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled substance. However, the Director did not specify or provide any analysis of the Petitioner's criminal offenses considered in making this determination.

The Petitioner asserts that she is not inadmissible under section 212(a)(2)(C), as though she has been charged with conspiracy to possess with intent to distribute crack cocaine and possession with intent to distribute cocaine within 1000 feet of a school, she was only convicted of misprision of a felony. The Petitioner contends that the Director misused the "reason to believe" standard applicable in section 212(a)(2)(C) determinations, as her brothers' dealing in controlled substances in the parents' home in which she also resides is not sufficient to find inadmissibility.

A petitioner may be deemed inadmissible under section 212(a)(2)(C) of the Act even where there has been no admission and no conviction, so long as there is "reason to believe" the petitioner has engaged in the proscribed conduct relating to trafficking in a controlled substance. Matter of Casillas-Topete, 25 I&N Dec. 317, 321 (BIA 2010). The conduct relied upon to sustain the "reason to believe" ground of inadmissibility must "predate or occur contemporaneously with the alien's admission and be demonstrably known or suspected by appropriate officials ...." Id.

In order for an adjudicator to have sufficient "reason to believe" that an applicant has engaged in conduct that renders him or her inadmissible under section 212(a)(2)(C) of the Act, the conclusion .

Matter of M-E-R- must be supported by "reasonable, substantial, and probative evidence." Matter of Rico, 16 l&N Dec. 181, 185 (BIA 1977); see also Alarcon-Serrano v. INS, 220 F .3d 1116, 1119 (9th Cir. 2000). Essentially, there must be "more than a mere suspicion" that the individual has engaged in drug trafficking activities. See Garces v. US. Att'y Gen. , 611 F.3d 1337, 1346 (11th Cir. 2010) (quoting U.S. Dep't of State, 9 Foreign Affairs Manual 40.23 Notes n. 2(b)).

As stated, the Petitioner previously submitted a sworn statement stating that her brothers were running a drug operation out of her parents' home. In the statement, the Petitioner acknowledged that she was arrested for delivering cocaine for her brothers, to a man she later learned to be a police officer. After testifying for the government against her brothers, the Petitioner was offered a plea to misprision of a felony rather than the possession with intent to distribute offenses with which she was charged. However, the Petitioner's admission of delivery of a controlled substance for her brothers' drug operation constitutes "reasonable, substantial, and probative evidence" that rises to "more than a mere suspicion" that she has engaged in drug trafficking activities. Accordingly, we concur with the Director' s determination that the Petitioner is inadmissible under section 2 l 2(a)(2)(C) of the Act.

5. Additional Grounds of Inadmissibility Under the Act

The Director also found the Petitioner to be inadmissible to the United States under sections 212(a)(6)(A)(i) (present in the United States without admission or parole, or arrival at a time or place other than designated by the Attorney General), 212(a)(7)(B)(i)(I) (no valid passport), 212(a)(9)(A)(i) (arriving aliens seeking admission within five years of removal, 212(a)(9)(A)(ii) (other aliens seeking admission within ten years of removal), 212(a)(9)(B)(i)(Il) (admission within ten years of removal after unlawful presence over a year), 212(a)(9)(C)(i)(I) (entry without admission after unlawful presence over a year), and 212( a)(9)(C)(i)(Il) ( entry without admission after removal order).

As stated, the Petitioner entered the United States with her parents in 1973, adjusted to temporary residence status in 1989, and adjusted to lawful permanent residence status in 1993. An Immigration Judge ordered the Petitioner removed from the United States in 2003, and she was removed to Mexico in the same year. Subsequent to the Petitioner's removal, she entered the United States without admission or parole, and her 2003 removal order was reinstated against her in 2006. The Petitioner was again removed from the United States in 2007. The Petitioner claims that she again entered the United States without admission or parole in 2008. In 2011 until 2012, the Petitioner was granted continuous presence in the United States as a parolee. The Petitioner was then ordered removed from the United States by an Immigration Judge in 2018.

On appeal, the Petitioner does not dispute her inadmissibility under these sections of the Act. Rather, the Petitioner contends that she currently has an appeal pending with the Board, as she was prima facie eligible for section 212( c) relief at her initial immigration removal hearing. The Petitioner asserts that there is a strong probability that she would not have accumulated these

0 Matter of M-E-R- grounds of inadmissibility if the Immigration Judge had not misinformed her of her immigration prospects in 2003.

A petitioner bears the burden of establishing that he or she is admissible to the United States or that any applicable ground of inadmissibility has been waived. 8 C.F.R. § 214.l(a)(3)(i). To meet this burden, a petitioner must file a waiver application, in conjunction with the U petition, requesting waiver of any grounds of inadmissibility. 8C.F.R. §§ 212.17, 214.14(c)(2)(iv). The denial ofa waiver application is not appealable. 8 C.F.R. § 212. l 7(b)(3). Although we do not have jurisdiction to review the Director's discretionary denial, we may consider whether the Director's underlying determination of inadmissibility was correct. While we acknowledge the Petitioner's claims, we must look at the record before us in determining whether the Director's inadmissibility findings are supported. As stated, the Petitioner does not contend that these inadmissibility sections of the Act do not apply to her, and the record further supports the Director's findings.

III. CONCLUSION

Based on the foregoing, although we have withdrawn portions of the Director's inadmissibility findings, ultimately the Petitioner remains inadmissible under some of the Director's cited grounds. As the Petitioner has not established that she is admissible to the United States or that the grounds of inadmissibility have been waived, she is consequently ineligible for nonimmigrant classification under section 101(a)(15)(U)(i) of the Act, pursuant to 8 C.F.R. § 214.l(a)(3)(i).

ORDER: The appeal is dismissed.

Cite as Matter ofM-E-R-, ID# 2688054 (AAO Nov. 7, 2018)

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