U.S. Citizenship Non-Precedent Decision of the and Immigration Administrative Appeals Office Services

MATTER OF E-G-0- DATE: MAY 10,2017

APPEAL OF VERMONT SERVICE CENTER DECISION

PETITION: FORM I-918, PETITION FOR UNONIMMIGRANT STATUS

The Petitioner seeks "U-1" nonimmigrapt classification as a victim of qualifying criminal activity. See Immigration and Nationality Act (the Act) sections 101(a)(15)(U) and 214(p), 8 U.S.C. §§ 1101(a)(15)(U) and 1184(p). The U-1 classification affords nonimmigrant status to victims of certain crimes who assist authorities investigating or prosecuting the criminal activity.

The Director of the Vermont Service Center denied the Petitioner's Form I-918, Petition for U Nonimmigrant Status (U petition). The Director concluded that the Petitioner did not establish he was a victim of qualifying criminal activity, and therefore, that he also did not meet the remaining eligibility criteria for classification as a U nonimmigrant.

The matter is now before us on appeal. On appeal, the Petitioner submits a brief and additional evidence, including copies of documents previously submitted.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 101(a)(15)(U)(i) of the Act provides U nonimmigrant classification to victims of qualifying crimes who suffer substantial physical or mental abuse as a result of the crime. It also provides that these victims must possess information regarding the qualifying crime and be helpful to law enforcement officials in the investigation or prosecution of the crime.

A petitioner must file with the U petition a Form I-918 Supplement B, U Nonimmigrant Status Certification (Supplement B) from a law enforcement official, certifying the petitioner's helpfulness in the investigation or prosecution of qualifying criminal activity. 1 Section 214(p)(l) of the Act; 8 C.F.R. § 214.14(c)(2)(i).

1 The Supplement B also provides factual information concerning the criminal activity, such as the specific violation of the law that was investigated or prosecuted. Matter of E-G-0-

To qualify as a victim for U-1 classification, the offense must involve one or more of the 28 types of crimes listed at section 101(a)(15)(U)(iii) of the Act, or involve "any similar activity" in violation of Federal, State, or local criminal law. The term "any similar activity" means criminal offenses in which the nature and elements of the offenses are substantially similar to the statutory list of criminal activities. 8 C.F.R. § 214.14(a)(9).

A petitioner bears the to demonstrate eligibility by a preponderance of the evidence. 8 C.F.R. § 214.14(c)(4); Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010). Although a petitioner may submit any evidence for us to consider along with the Supplement B, we determine, in our sole discretion, the credibility of and the weight to give all of the evidence. Section 214(p)( 4) of the Act; 8 C.F.R. § 214.14(c)(4).

II. ANALYSIS ·

Through this appeal, the Petitioner, who was a victim of a , acknowledges that robbery is not a qualifying crime under section 101(a)(15)(U)(iii) of the Act. He asserts, however, that the nature and elements of robbery are substantially similar to felonious , which is a qualifying crime. The Petitioner has not met his burden in establishing the substantial similarity between the two crimes, and therefore, has not established that he was the victim of qualifying criminal activity.

A. Robbery Under Section 29.02 ofthe Texas Penal Code Is Not Qualifying Criminal Activity

The relevant evidence indicates that the only crime perpetrated against the Petitioner was robbery under section 29.02 of the Texas Penal Code.2 The Supplement B submitted as initial evidence generally referenced the investigation or prosecution of robbery without a specific citation to the applicable statutory provision. A related police incident report referred to "robbery-car jacking" as the offense involved and the Petitioner as a victim of robbery under section 29.02 ofthe Texas Penal Code. Related charging and conviction documents listed the offense as robbery and stated, in part, the perpetrator "was finally convicted of the felony offense of robbery-bodily injury." Because robbery is not specifically listed as qualifying criminal activity, as indicated previously, the Petitioner must establish that its nature and elements are substantially similar to felonious assault.

2 Of particular note, the record contains two Supplements B: the first submitted as initial evidence with the U petition; and the second submitted with the Petitioner's response to the Director's request for evidence (RFE). The Petitioner indicated on the Table of Contents submitted with his RFE response the second Supplement 8 was a "[ c]opy of [p]reviously [s]ubmitted ... [S]upplement 8[.]" In her denial, the Director noted significant discrepancies between the Supplements B and stated "only the ... Supplement 8 that was submitted at the time [the Petitioner] filed [the U] petition will be considered." Although not addressed in the Director's denial, the record demonstrates that the Supplement 8 submitted with the Petitioner's RFE response is a partial copy and does not include the certifying official's certification. On appeal, the Petitioner generally states the "Supplement B provided in the original filing is the certification that merits consideration[,]" but does not specifically address the significant discrepancies or provide an explanation why he indicated that the Supplement 8 submitted with his RFE response was a copy of the Supplement 8 submitted as initial evidence.

2 Matter ofE-G-0-

The inquiry is not fact-based, but rather, entails comparing the nature and elements of the statutes in question. 8 C.F.R. § 214.14(a)(9).

1. Robbery and Aggravated Assault in Texas

The Petitioner asserts on appeal that robbery under section 29.02 of the Texas Penal Code is substantially similar to aggravated assault under section 22.02, as both offenses include bodily injury and are defined as felonies in the second degree. He also references the particular injuries he sustained, consisting of "a bloody lip and bruises and scratches to his body," and indicates he continues to receive counseling services.

At the time of the criminal activity against the Petitioner, the Texas Penal Code stated:

§ 22.02. Aggravated Assault

(a) A person commits an offense if ... the person:

(1) causes serious bodily injury to another, ... or

(2) uses or exhibits a deadly weapon during the commission of the assault.

(b) An offense under this section is a felony of the second degree ....

§ 29.02. Robbery

(a) A person commits an offense if, in the course of committing ... he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

(b) An offense under this section is a felony of the second degree.

Tex. Penal Code Ann. §§ 22.02, 29.02 (West 2008).

Although both offenses were a felony of the second degree in Texas, they differed significantly concerning the requisite type of harm an individual experienced; robbery only generally required bodily injury whereas an aggravated assault required serious bodily injury. Accordingly, the nature

3 Matter of E-G-0- and elements of a robbery offense under section 29.02 of the Texas Penal Code are not substantially similar to a felonious assault offense.

2. Robbery and the Model Penal Code

The Petitioner further asserts on appeal that robbery under section 29.02 of the Texas Penal Code is substantially similar to a felonious assault as generally defined in section 211.2 of the Model Penal Code. This particular provision of the Model Penal Code referenced by the Petitioner concerns reckless. endangerment, a misdemeanor, and not a felonious assault offense, which is defined at section 211.1(2). Compare Model Penal Code § 211.2 (stating, in part, "[a] person commits a misdemeanor if he recklessly engages in conduct which places or may place another in danger of death or serious bodily injury[]"), with Model Penal Code § 211.1(2) (stating, in part, "[a] person is guilty of aggravated assault if he: (a) to cause serious bodily injury ... or causes such injury ... or (b) attempts to cause or ... causes bodily injury to another with a deadly weapon."). Like the felonious assault provisions in Texas, the Model Penal Code also requires, as an essential element, serious bodily injury or the use of a deadly weapon; neither of which is required for a robbery offense under section 29.02 of the Texas P~nal Code as previously discussed?

As the Petitioner has not established that the particular robbery provision in Texas under which he was victimized is substantially similar to the qualifying crime of felonious assault, he has not demonstrated that he was a victim of qualifying criminal activity, as required under section 101(a)(15)(U)(i) of the Act.

B. The Remaining Eligibility Criteria for U-1 Classification

U-1 classification has four separate and distinct statutory eligibility criteria, each of which is dependent upon a showing that the Petitioner is a victim of qualifying criminal activity. As the Petitioner has not established that he was the victim of qualifying criminal activity, he necessarily cannot satisfy any ofthese criteria at section 101(a)(15)(U)(i) of the Act. Accordingly, we will not further address the remaining eligibility criteria. 1..

3 The Petitioner includes with the documents submitted on appeal our non-precedent decision in which we previously concluded that robbery under section 29.02 of the Texas Penal Code was substantially similar to an aggravated assault under section 211.1 (2) of the Model Penal Code. As we did not publish this decision as a precedent, it does not bind U.S. Citizenship and Immigration Services officers in future adjudications. See 8 C.F.R. § 103.3(c). In addition, non-precedent decisions apply existing law and policy to the specific facts of the individual case, and may be distinguishable based on the evidence in the record of proceedings, the issues considered, and applicable law and policy. The Petitioner does not provide any discussion or analysis concerning his particular circumstances as they relate to the non-precedent decision. Moreover, although we concluded in that decision the nature and elements of a robbery offense under section.29.02 of the Texas Penal Code were substantially similar to a felonious assault under the Act, as here, we likely would not make a similar conclusion for the reasons explained above.

4 Matter ofE-G-0-

III. CONCLUSION

The Petitioner was a victim of robbery in Texas. Accordingly, he has not demonstrated that he was a victim of felonious assault or any other qualifying crime. In the alternative, he has not established that the nature and elements of the crime committed against him are substantially similar to felonious assault or any other qualifying crime. The Petitioner therefore cannot satisfy the eligibility criteria at subsections 101 (a)(l5)(U)(i)(I)-(IV) ofthe Act, and the U petition must remain denied.

ORDER: The appeal is dismissed.

Cite as Matter ofE-G-0-, ID# 239497 (AAO May 10, 2017)

5