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

. MATTER OF P-L-C- DATE: JUNE 7, 2018

APPEAL OF NEBRASKA SERVICE CENTER DECISION

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

The Petitioner seeks U-1 nonimmigrant classification as a victim of qualifying criminal acttvlty under the Immigration and Nationality Act (the Act) sections 101(a)(15)(U) and 214(p), 8 U.S.C. §§ 1101(a)(l5)(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 Nebraska Service Center denied the Form 1-918, Petition for U Nonimmigrant Status (U petition), concluding that the record did not establish that the Petitioner was the victim of a qualifying crime. On appeal, the Petitioner submits a brief and supplemental evidence and asserts that he is eligible for U-1 nonimmigrant classification. Upon de novo review, we will dismiss the appeal.

I. LAW

Section I 01 (a)( 15)(U)(i) of the Act provides U-1 nonimmigrant classification to vtc!lms of qualifying crimes who suffer substantial physical or mental abuse as a result of the offense. These victims must also possess information regarding the qualifying crime and be helpful to law enforcement officials in their investigation or prosecution of the crime. !d. A U petition must be filed with a Form I-918 Supplement B, U Nonimmigrant Status Certification (Supplement B), from a law enforcement official certifying a petitioner's helpfulness in the investigation or prosecution of qualifying criminal activity.' Section 214(p)(l) of the Act; 8 C.F.R. § 214.14(c)(2)(i).

To quality as a victim for U-1 classification, the otlense must involve one or more of the 28 types of crimes listed at section 101 (a)(15)(U)(iii) of the Act or "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 burden of proof to demonstrate eligibility by a preponderance of the evidence. 8 C.F.R. § 214.14(c)(4); Matter o(Chawathe, 25 l&N Dec. 369,375 (AAO 2010). U.S. Citizenship

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

Matter of P-L-C- and Immigration Services (USCIS) will consider any credible evidence relevant to a U petition, but users retains sole discretion to determine the evidentiary value of the submitted evidence, including the Supplement B. Section 214(p)(4) ofthe Act; 8 C.F.R. § 214.14(c)(4).

II. ANALYSIS

A. Criminal Activity of Which the Petitioner Was the Victim

The certifying official indicated on the Supplement B that the Petitioner was the victim of felonious assault, robbery, related crimes, and attempt to commit any of the named crimes. She cited to the Minnesota Statutes Annotated (Minn. Stat. Ann.) section 609.223 (assault in the third degree), Minn. Stat. Ann. section 609.24 (simple robbery), and Minn. Stat. Ann. section 609.245 (aggravated robbery) as the criminal activity being investigated or prosecuted.2 The certifying official described the criminal activity as assault and robbery, and the Petitioner's injuries as a bruised eye and "stress disorder, fear and other negative consequences ..." The certifying official stated further that "[w]hile committing the crimes, the suspect hit [the Petitioner] and bruised his eye."

The record also includes the Police Department case report with supplements (case report) which reflected that the police investigated the offense of simple robbery and charged the perpetrator with aggravated robbery. The cas~ report explained that the perpetrator pushed the Petitioner as he was riding past on his bicycle, and then punched the Petitioner in the eye, causing a bruised· eye. The police case report did not describe any other bodily injuries suffered by the Petitioner. Minnesota's felonious assault statute, under Minn. Stat. Ann. section 609.223, subdiv. 1, requires an assault and the infliction of substantial bodily harm. Minn. Stat. Ann. § 609.223 (West 2009). Substantial bodily harm is defined as "bodily injury which involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or which causes a fracture of any bodily member." Minn. Stat. Ann. § 609.02, subdiv. 7a (West 2009). A black eye does not support a finding of substantial bodily harm. State v. Whaley, 389 N.W.2d 919,926 (Minn. App. 1986).

Neither the Supplement B nor the case report described the Petitioner's injuries as substantial bodily harm. The Director correctly concluded that the Petitioner's bruised eye constituted bodily harm and not substantial bodily harm as defined at Minn. Stat. Ann. sections 609.02, subdiv. 7 and 7a, respectively, and accordingly that the record did not show that third degree assault was detected, investigated, or prosecuted.

On appeal, the Petitioner asserts that the record shows that the injury to the Petitioner's eye caused a temporary but substantial loss or impairment of the function of his eye, a bodily member. Although we do not minimize the seriousness of the criminal incident, the record does not show that the Petitioner suffered bodily injury other than a bruised eye, which does . not constitute substantial

2 The tenn "investigation or prosecution," as used in section 10 l(a)( 15)(U)(i) of the Act, also includes the "detection" of a qualifying crime or criminal activity. 8 C.F.R. § 214.14(a)(5).

2 Mauer of P-L-C- bodily harm. State v. Whaley, 389 N.W.2d at 926. Considering the circumstances of this case as described in the case report, the police detected or investigated simple assault, simple robbery, aggravated robbery, or attempt to commit the crimes as criminal activity against the Petitioner3

B. Simple Assault, Robbery, and Aggravated Robbery are not Qualifying Criminal Activities

The Director determined that the criminal activities detected, investigated, or prosecuted, simple assault, robbery and aggravated robbery, did not involve any of the criminal offenses listed at section 101(a)(15)(U)(iii) of the Act, and that the Petitioner did not establish that the nature and elements of any of these offenses were substantially similar to any of the 28 types of crimes listed as qualifying criminal activities. On appeal, the Petitioner reasserts that he was a victim of criminal activity substantially similar to the qualifying crime of felonious assault. The inquiry entails comparing the nature and elements of the statutes in question. 8 C.F.R. § 214.14(a)(9).

The Petitioner renews his argument before the Director that both the simple and aggravated robbery statutes are substantially similar to felonious assault because the robbery statutes implicitly involve instilling fear in their victims, and assault requires the intent to cause fear in the victim. Minnesota defines assault as "(a]n act done with intent to cause fear in another of immediate bodily harm or death" or "(t]he intentional infliction of or attempt to inflict bodily harm4 upon another." Minn. Stat. Ann. § 609.02, subdiv. 1(1) (West 2009). However, in order for an assault to be classified as a felony, aggravating factors must be present. See, e.g., .Minn. Stat. Ann. §§ 6.09.221, subdiv. I (punishing, as a felony in the first degree, anyone who "assaults another and inflicts great bodily harm"), 609.222, subdiv. I (punishing, as a felony in the second degree, anyone who "assaults another with a dangerous weapon"), 609.223, subdiv. I (punishing, as a felony in the third degree, anyone who "assaults another and inflicts substantial bodily harm").

The definition of simple robbery provides that an individual commits simple robbery who "takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person's resistance." Minn. Stat. Ann. § 609.24 (West 2009). The statute does not require elements substantially similar to felonious assault such as the infliction of great bodily harm,5 substantial bodily harm, or use of a dangerous weapon.

The aggravated robbery statute in Minnesota provides:

Subdivision I. First degree. Whoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to

3 A criminal attempt requires an act which is a substantial step toward, and more than preparation for, the commission of the underlying crime. Minn. Stat. Ann.§ 609.17, subdiv. I (West 2009). 'Bodily harm is defined as "physical pain or injury, illness, or any impainnent of physical condition." Minn. Stat. Ann. § 609.02, subdiv. 7 (West 2009). 5 Great bodily harm means "bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a pennanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily hann." Minn. Stat. Ann. § 609.02, subdiv. 8 (West 2009).

3 Maller of P-L-C-

reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree ... Subdiv. 2. Second degree. Whoever, while committing a robbery, implies, by word or act, possession of a dangerous weapon, is guilty of aggravated robbery in the second degree ...

Minn. Stat. Ann. §§ 609.245, subdiv. I and 2 (West 2009).

While aggravated robbery under subdivision one requires either that the perpetrator be armed with a dangerous weapon or that the victim believe that the perpetrator is armed with a dangerous weapon, or the infliction of bodily harm, the felonious assault statute requires the actual use of a dangerous weapon, or the infliction of either great bodily harm or substantial bodily harm. Further, the implied possession of a dangerous weapon in subdivision two of the aggravated robbery statute is not substantially similar to any of the elements of the felonious assault statutes described above. Additionally, the robbery statutes require a taking as an essential element of the crime, which is not an element of felonious assault.

The Petitioner asserts that under the facts of this case, a third degree assault could be viewed as a lesser-included offense of aggravated robbery, citing to State v Bobo, 414 N.W. 2d 490,494 (Minn. Ct. App. 1987) (second degree assault is a lesser-included offense of aggravated felony. The Minnesota appeals court subsequently analyzed all of the elements of aggravated robbery and second degree assault, and declined to follow Bobo. See State v Brown, 597 N.W. 2d 299, 304 (Minn. Ct. App. 1999) (second degree assault is not a lesser included offense of aggravated robbery, as it is possible to commit the greater offense without also committing the lesser ot!ense). The Petitioner has therefore not established that the criminal activities of which he was a victim, simple assault, robbery, and aggravated robbery, are substantially similar to the qualifYing crime of felonious assault.

C. The Remaining Criteria tor 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. Section I 01 (a)(IS)(U)(i)(l)-(JV) of the Act. In light of the finding that the Petitioner was not the victim of a qualifYing crime or criminal activity substantially similar to a qualifying crime, we will not further address his remaining arguments as to whether he suffered substantial physical or mental abuse as a result of the incident or otherwise satisfied the remaining eligibility requirements.

III. CONCLUSION

The Petitioner has not demonstrated that he was a victim of qualifying criminal activity and therefore cannot satisfy the remaining eligibility criteria for U nonimmigrant status.

4 Mauer of P-L-C-

ORDER: The appeal is dismissed.

Cite as Matter ofP-L-C-, 10# 1114627 (AAO June 7, 2018)

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