U.S. Citizenship Non-Precedent Decision of the and Immigration Administrative Appeals Office Services MATTER OF A-A- DATE: NOV. 20, 2019 APPEAL OF VERMONT SERVICE CENTER DECISION PETITION: FORM I-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT The Petitioner seeks immigrant classification as an abused spouse of a U.S. citizen under the Violence Against Women Act (VAWA) provisions, codified at section 204(a)(l)(A)(iii) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1154(a)(l)(A)(iii). The Director of the Vermont Service Center (the Director) denied the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (VAWA petition), concluding that the Petitioner did not establish that she was a person of good moral character. On appeal, the Petitioner submits a basis statement and a brief reasserting her eligibility for immigrant classification under the VAWA provisions. Upon de novo review of the entire record, we will dismiss the appeal. I. LAW A petitioner who is the spouse of a U.S. citizen may self-petition for immigrant classification if the petitioner demonstrates, among other requirements, that the petitioner is a person of good moral character. Section 204(a)(l)(A)(iii)(II)(bb) of the Act; 8 C.F.R. § 204.2(c)(l)(vii). Primary evidence of a petitioner's good moral character is their affidavit, which should be accompanied by local police clearances or state-issued criminal background checks from each of the petitioner's residences during the three years before the petition was filed. 8 C.F.R. § 204.2(c)(2)(v). U.S. Citizenship and Immigration Services (USCIS) shall consider any credible evidence relevant to the VAWA petition; however, the definition of what evidence is credible and the weight to give such evidence lies within USCIS' sole discretion. Section 204(a)(l)(J) of the Act; 8 C.F.R. § 204.2(c)(2)(i). The burden of proof is on a petitioner to demonstrate their eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369,375 (AAO 2010). II. ANALYSIS A. The Petitioner is Barred from Establishing Her Good Moral Character. The Petitioner is ineligible for VAWA classification because the preponderance of the evidence does not establish that she is a person of good moral character. Section 101 ( f) of the Act, which defines "good moral character," states, in relevant part, that "[n]o person shall be regarded as, or found to be, Matter ofA-A- a person of good moral character who, during the period for which good moral character is required to be established, is or was ... a member of one or more of the classes of persons ... described in paragraph (2)(D) [concerning prostitution] ... of section 212( a) of this Act. .. if the offense described therein, for which such person was convicted or of which [they] admit[] the commission, was committed during such period[.]" USCIS generally focuses on the three-year period immediately preceding the filing of the VAWA petition as the time during which a VAWA petitioner must establish their good moral character. See 8 C.F.R. § 204.2(c)(l)(vii) (requiring that a petitioner submit police clearances or state-issued background checks from each of the petitioner's residences during the three years before having filed the VAWA petition). Section 212(a)(2)(D) of the Act, as referenced in section lOl(f) of the Act, specifically declares inadmissible, among other classes of people, individuals who have "engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status[.]" Here, the Petitioner filed her VAWA petition in March 2017. The record establishes that the Petitioner was charged in 2015 with various criminal offenses. InO20l5, the Petitioner was twice charged for violating section 796.07 of West's Florida Statutes Annotated, a misdemeanor of the second degree which provides that it is illegal"[ f]or a person 18 years of age or older to offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation." 1 Thereafter, inl 12015, she was stopped for driving with an expired license in violation of section 322.065 of West's Florida Statutes Annotated. Despite that offense being an infraction, the Petitioner was arrested on that date pursuant to warrants for her arrest after she failed to appear for a scheduled court hearing concerning the prostitution offenses in violation of section 843.15 of West's Florida Statutes Annotated. Although the Petitioner claims that an arrest, alone, is insufficient to establish a conviction, and she adds that police reports are not conclusive evidence that she committed the crime of which she was accused, the record shows that the Petitioner and the prosecutor signed a Stipulation for Deferred Prosecution Re: Notice to Appear/Un[form Traffic Citation/Information (stipulation) in I 12015. The stipulation appears to be a template form with blank spaces to enter specific details. Specifically, the stipulation references, in handwritten text, the case number for the prostitution offenses; lists the offenses, in handwritten text, as "Offer Commit Prost x 2[;]" and explains that the prosecutor would agree to "abandon prosecution of this case" if the Petitioner, among ot~irements, "Plea[ded] No Contest to Any Infractions When Case Resolves[.]" In L__J 2016, the prosecutor issued a Nolle Prosequi for Deferred Prosecution/PTI/Diversion (nolle prosequi) explaining that "although there was probable cause for the charge(s), the State enters a nolle prosequi in the above listed matter for the following reason(s): ... successful completion of diversion program in lieu of judicial disposition." The final requirement on the stipulation indicates that the Petitioner would have needed to plead no contest, or nolo contendere, to the prostitution offenses as a condition for the prosecutor's nolle prosequi. The Petitioner has not submitted evidence of the final court disposition to show otherwise. Therefore, the preponderance of the evidence establishes that the Petitioner pleaded nolo contendere to the prostitution offenses. A conviction occurs where there is "a formal judgment of guilt of the alien entered by a court" or, "if adjudication of guilt has been withheld, where ... a judge or jury has found the alien guilty, or the 1 The Petitioner's criminal offenses were classified as misdemeanors of the second degree as "a first violation" and were punishable "by a definite term of imprisonment not exceeding 60 days." Fla. Stat. Ann.§ 775.082 (West 2017). 2 Matter ofA-A- alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and ... the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed." Section 10l(a)(48)(A) of the Act. As we find that the Petitioner pleaded nolo contendere to the prostitution charges, we find that the Petitioner has satisfied the first prong of the inquiry concerning whether the court withheld an adjudication of guilt. The remaining requirement is that the judge have "ordered some form of punishment, penalty, or restraint on the alien's liberty[.]" See id. In addition to requiring a plea of nolo contendere, the Petitioner was required to pay the $50 cost of prosecution and complete a "Pipe Course[.]"2 We find that those conditions to the stipulation amount to a penalty such that the record establishes, by a preponderance of the evidence, that the Petitioner was convicted under section 101(a)(48)(A) of the Act. On appeal, the Petitioner contends that the Director erred by not allowing her the opportunity to seek a waiver under section 204( a )(1 )( C) of the Act. 3 Under that section, an act or conviction that is waivable with respect to a determination of a VAWA self-petitioner's admissibility or deportability under the Act will not bar a finding of good moral character, notwithstanding section l0l(f) of the Act, if the act or conviction was connected to the battery or extreme cruelty upon which the VAWA petition is based. Section 204(a)(l)(C) of the Act. While inadmissibility due to a prostitution conviction may be waived for VAWA self-petitioners under section 212(h) of the Act, the Director in this case did consider the Petitioner's eligibility for a waiver and found that the Petitioner had not established a connection between her convictions and battery or extreme cruelty by her U.S. citizen spouse, K-A-B-, to warrant granting her a waiver. 4 See Director's Decision at 5 ("A waiver is available and the record has been reviewed to determine if you are eligible for a waiver under Section 204(a)(l)(C) of the Act ... "). We also find that the Petitioner's evidence does not establish a connection between her convictions and the battery or extreme cruelty upon which she bases her VAWA petition to warrant a waiver. The Petitioner's counsel argues that, although the Petitioner has not claimed a connection, a full review of the record "tend[ s] to lead to the presumption that the prostitution was, in fact, related to the suffered abuse." However, the burden of proof is on the petitioner to demonstrate her eligibility by a preponderance of the evidence; and counsel does not provide any legal authority for his assertion that a presumption applies. See Matter of Chawathe, 25 I&N Dec. 369 at 375. Furthermore, assertions of counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533,534 n.2 (BIA 1988) (citing 2 The record does not establish the meaning of "Pipe Course[.]" The form otherwise lists typed charges as DUS NVDL VIOL.