MATTER OF M-D-C-C-Z-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: APRIL 28, 2017

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. See Immigration and Nationality Act (the Act) section 204(a)(l)(A)(iii), 8 U.S.C. § 1154(a)(1)(A)(iii). Under the Violence Against Women Act (VAWA), an abused spouse may self-petition as an immediate relative rather than remain with or rely upon an abuser to secure immigration benefits.

The Director of the Vermont Service Center denied the Form I-360, Petition for Amerasian, Widow( er), or Special Immigrant (VA W A petition), concluding that the record did not establish, as required, that the Petitioner is a person of good moral character because of criminal charges against her in Mexico.

On appeal, the Petitioner submits additional evidence she asserts is sufficient to establish her good moral character.

Upon de novo review, we will dismiss the appeal.

I. LAW

Section 204(a)(l )(A)(iii)(I) of the Act provides that an abused spouse may self-petition for immigrant classification if that individual demonstrates that he or she entered into marriage with a U.S. citizen spouse in good faith and that during the marriage, the petitioner or his or her child was battered or subjected to extreme cruelty perpetrated by the petitioner's spouse. A petitioner must also show that he or she is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i) of the Act, 8 U.S.C. § 1151 (b )(2)(A)(i), resided with the abusive spouse, and is a person of good moral character. Section 204(a)(1)(A)(iii)(II) of the Act.

A petitioner lacks good moral character "if he or she is a person described in section 1 01 (f) of the Act," which lists, in pertinent part, individuals who have been convicted of certain offenses, including crimes involving moral turpitude as described at section 212(a)(2)(A)(i)(I) of the Act. Section 101(f)(3) of the Act; 8 C.F.R. § 204.2(c)(1)(vii). However, "[t]he fact that any person is not within any of the foregoing classes shall not preclude a finding that for other reasons such person is or was not of good moral character." Section 101(f) of the Act. A petitioner may also be found to

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Matter of M-D-C-C-Z-

lack good moral character if, among other reasons, he or she "committed unlawful acts that adversely reflect upon his or her moral character ... although the acts do not require an automatic finding of lack of good moral character." 8 C.F.R. § 204.2(c)(l)(vii). We consider claims of good moral character "on a case-by-case basis, taking into account ... the standards of the average citizen in the community." Id

Primary evidence of good moral character is the petitioner's affidavit, which should be accompanied by" police clearances or criminal background checks. 8 C.F.R. § 204.2(c)(2)(v). We may also "consider other credible evidence of good moral character, such as affidavits from responsible persons who can knowledgeably attest to the self-petitioner's good moral character." Id

II. ANALYSIS

At issue on appeal is whether the Petitioner is a person of good moral character. The Director noted that a criminal court in Mexico found the Petitioner probably responsible for aggravated homicide of her former spouse, E-E-, 1 and issued an order of imprisonment against her. The Director noted that, according to U.S. Citizenship and Immigration Services records, the J>etitioner informed U.S. immigration officials that she left Mexico to avoid further investigation regarding her former spouse's death. Because of the Petitioner's statements, the criminal court's findings against her, and the fact that the order of imprisonment against the Petitioner was still pending, the Director concluded that the Petitioner could not establish her good moral character.

On appeal, the Petitioner asserts that she was not convicted of the homicide of her former spouse, but that the Mexican criminal court only determined her "probable responsibility." She submits new evidence which shows that the case against her was dismissed. She contends that this new evidence establishes that she was acquitted of the charges against her and is no longer wanted for imprisonment in Mexico. She further states that she works and pays taxes, and that her friends and family attest to her good moral character.

The Director correctly determined that the Petitioner did not establish that she is a person of good moral character. The record indicates that the Petitioner was initially charged with her former spouse's homicide in Mexico in but was released for lack of evidence. In 1999, proceedings against her resumed based on the prosecl}tor's appeal of her release, and a criminal court in Mexico determined her "probable responsibility in the commission of the crime of aggravated homicide" (emphasis omitted) against her former spouse. The court summarized the evidence against the Petitioner, which included testimony from several witnesses. One witness, who was a co-defendant in the case and admitted to having murdered E-E-, stated that the Petitioner hired him and another man to kill E-E- in exchange for $5,000 each. The co-defendant stated that he and his accomplice entered the home the Petitioner and E-E- shared and stabbed E-E- several times with a kitchen knife and a screwdriver, and that after killing E-E- they observed the Petitioner standing in the room, watching the event. The co-defendant indicated that he and his accomplice received several

1 We use initials in this decision to protect the identity of this individual.

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Matter of M-D-C-C-Z-

payments of money and a vehicle following the killing, and that the Petitioner was always present at the locations where he received the money.

Another witness, a woman who worked in the Petitioner's home as a housekeeper, stated that she heard the Petitioner making threats toward E-E- and that, on the morning E-E- was killed, the Petitioner called her to tell her not to come to work. The housekeeper further stated that the Petitioner called her again that night to tell her that she had a "surprise" for her, and that when she arrived at work the following day, the Petitioner told her that the surprise was that E-E- had been killed. Additionally, the housekeeper indicated that the Petitioner asked her to clean blood stains off the carpet, and that she saw the Petitioner speaking with a man who threatened to reveal who killed E-E- if the Petitioner did not pay him. According to the housekeeper, she later witnessed the Petitioner laughing that "everything had turned out well." Based on this evidence, as well as testimony from the Petitioner and the autopsy report, the criminal court issued an order of imprisonment against the Petitioner for her "probable responsibility" for the crime.

In her brief on appeal, the Petitioner claims that the Mexican court documents do not establish that she was convicted for immigration purposes under section 101(a)(48)(A) of the Act because the court did not explicitly find her guilty, but only "probably responsible." She also submits an order from the criminal court in Mexico stating that in 2016, the case against her was dismissed. Although the Petitioner claims that the 2016 court order acquits her of the charges of homicide, the order specifies that the case is dismissed due to the passage of time since the incidents occurred and that the effect of the dismissal order is an acquittal.2 It does not state that she was never found guilty of the offense or that the original findings of the Mexican criminal court were rescinded or invalid. The evidence is insufficient to establish whether the judgment was vacated, or dismissed or the charges acquitted, based on the merits or a procedural defect in the underlying proceedings, such that the Petitioner was not convicted for immigration purposes. See Matter of Marroquin-Garcia, 23 I&N Dec. 705, 713 (A. G. 2005) (specifying that criminal judgments reversed for reasons unrelated to the merits or the procedural validity of the underlying order remain convictions under section 101(a)(48)(A) ofthe Act).

Even if the Mexican court proceedings do not constitute a conviction for immigration purposes, the Petitioner has not submitted a personal affidavit, which is primary evidence of good moral character pursuant to the regulation at 8 C.F.R. § 204.2(c)(2)(v). She has not explained the circumstances that led to her arrest or the criminal case against her for the homicide of E-E-, nor has she discussed her reasons for leaving Mexico while the case was pending. The record contains a Form 1-213, Record of Deportable/Inadmissible Alien, from 1999 which states that the Petitioner informed

2 The English translation of the documents the Petitioner provides states that the court "issue[ d] a decree of acquittal of the criminal case, with the effects of an acquittal sentence, once the acquittal decree has been executed." However, this translation uses the word "acquittal" for two separate words or phrases in the original Spanish document: "sobreseimiento" and "sentencia absolutoria." The Petitioner submits an article explaining the Mexican criminal justice system, which states at page 20 that the phrase "sentencia absolutoria" in Spanish means "acquittal" in English, but the word "sobreseimiento" means "dismissal" or "stay." Based on the article the Petitioner submits, the Mexican court document she provides appears to be a dismissal with the effect of an acquittal.

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Matter of M-P-C-C-Z-

immigration officials at the time of her arrest that she "was possibly wanted in ... Mexico for the alleged murder of her husband" and left Mexico soon after she was questioned about the crime "in order to avoid the investigating officials." Although the Director addressed this issue in denying the VA W A petition, the Petitioner does not provide a statement or other evidence on appeal to explain or refute her assertions in 1999. The Petitioner also does not address or dispute any of the findings of the Mexican criminal court, which were based on detailed witness testimony alleging she hired two people to murderE-E- and watched his killing, nor does she assert that she did not commit the cnme.

The Petitioner submits documentation showing that she works and pays 'taxes, a letter from her apartment property manager stating that she pays rent on time, and supportive letters from her daughter and a friend. However, these documents do not overcome the evidence that the Petitioner was found to have committed unlawful acts in connection with the homicide of her former spouse, and failed to submit a personal affidavit attesting to her good moral character despite the criminal proceedings against her. The Petitioner engaged in conduct that falls below the average citizen in the community and committed unlawful acts which adversely ret1ect upon her moral character pursuant to the final paragraph of section 101(±) of the Act and the regulation at 8 C.F.R. § 204.2(c)(l)(vii). Therefore, the Petitioner has not demonstrated her good moral character as section 204(a)(1)(A)(iii)(II)(bb) ofthe Act requires.

ORDER: The appeal is dismissed.

Cite as Matter of M-D-C-C-Z-, ID# 00239501 (AAO April28, 2017)

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