MATTER OF P-D-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: JULY 26, 2016

MOTION ON ADMINISTRATIVE APPEALS OFFICE 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. See Immigration and Nationality Act (the Act) section 204(a)(l)(A)(iii), 8 U.S.C. § 1154(a)(l)(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 Petitioner filed the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant (VA WA petition) based on his relationship with his third spouse, T-R-. 1 The Director denied the VA W A petition. She concluded that section 204( c) of the Act barred approval of the VA W A petition because substantial and probative evidence showed that he had previously entered into marriage with his second spouse, K-C-, for the sole purpose of evading the immigration law, and that the Petitioner lacked good moral character. The Petitioner filed a timely appeal.

On appeal, we determined that the record lacked substantial and probative evidence that the Petitioner entered into marriage with K-C- for the purpose of evading U.S. immigration laws, and withdrew the Director's determination that section 204(c) of the Act barred approval of the VAWA petition. We dismissed the appeal, concluding that the Petitioner had not established that he was a person of good moral character.

The matter is now before us on a motion to reopen and a motion to reconsider. On motion, the Petitioner submits a brief and additional evidence. The Petitioner claims that the record shows that he is a person of good moral character.

Upon review, we will deny the motions.

I. APPLICABLE LAW

A motion to reopen must state the new facts to be provided and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must: (1) state the reasons for

1 We use initials throughout this decision to protect the identities of the individuals.

(b)(6)

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reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy; and (2) establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).

II. ANALYSIS

Considering the evidence of record as supplemented on motion, the Petitioner has not overcome our decision that he was not a person of good moral character. We incorporate our previous decision here by reference.

A. Relevant Criminal and Domestic Relations History

On 2013, the Applicant was charged with assault on a family member in violation of section 18.2-57.2 of the Virginia Code, a misdemeanor. . On 2013, the Virginia Juvenile/Domestic Relations Court issued a protective order against the Applicant prohibiting him from contact with T-R-, except in relation to his visitation of P-, their minor child, until 2013. On 2013, the Virginia, deferred adjudication of the assault charge for two years, pursuant to plea agreement. The court subsequently dismissed the charge upon the Petitioner's successful completion of probation, a domestic violence/batterers intervention program, and other court ordered conditions.2

B. Good Moral Character

On appeal, we reviewed the Petitioner's assertion that the protective order and assault conviction resulted solely from his ex-spouse's desire to gain an advantage in a custody dispute involving their minor child. We indicated that the Petitioner had not expressed remorse for his unlawful actions, or submitted copies of the conviction documents, such as arrest reports, charging documents, and other evidence to corroborate his account of the incident. We stated the record contained a discrepancy for the date of the assault, and we could not determine whether there was more than one incident. We concluded that the totality of the evidence demonstrated conduct falling below the average citizen in the community, and reflected negatively on his moral character, and thus that he lacked good moral character under the final paragraph of section 101(t) of the Act and the regulation at 8 C.F.R. § 204.2(c)(1)(vii).

On motion, the Petitioner states that the discrepancy in the dates was a typographical error on his part, and attaches a copy of the warrant of arrest for the crime listing the incident date on 2013. In his statement, the Petitioner describes the incident leading to his arrest and conviction, and takes responsibility for his actions.

2 The Petitioner does not contest our determination on appeal that he remains convicted of the charge for immigration purposes.

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(b)(6)

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On that particular day I have lost it because of [P-], because I was struck by [T-R-] and because of the custody case where I was afraid to lose my son. I am really sorry about that and I wish I could go back in time to change my grabbing and pushing ....

I am really sorry that I grabbed [T-R-] in the fit of passion and caused physical pain to her forearm and frightened her.

We acknowledge the Petitioner~ s expression of remorse and accountability for his criminal behavior, and accept his explanation for the discrepancy in the date of the incident. We also recognize the supplemental statement of clarifying that she was aware of the Petitioner's conviction, and of "what [T-R-] is capable of." The Petitioner also submits an affidavit from describing the Petitioner's good qualities as a father and attesting to his good moral character. We view favorably his successful completion of probation, his financial and emotional support for his son, and his claimed support of his U.S. citizen mother.

The Petitioner asserts that the conviction was connected to his having been battered or subjected to extreme cruelty. In order for a conviction to be sufficiently connected to the battery or extreme cruelty, and thus that the conviction would not bar a finding of good moral character, the Petitioner would need to establish that T-R-'s battery or extreme cruelty compelled or coerced the Petitioner to commit the assault. See Memorandum from William R. Yates, Associate Director for Operations, USCIS, HQPRD 70/8.1/8.2, Determinations of Good Moral Character in VAWA-Based Se?f Petitions, (January 19, 2003), http://www.uscis.gov/laws/policy-memoranda. The record does not sufficiently describe the circumstances surrounding the assault to establish that T-R-'s battery or extreme cruelty compelled or coerced him to commit the assault. /d. The Petitioner states that the domestic relations court that issued the protective order indicated that the Petitioner and T-R- needed to "stay away from each other for a while until things cool down" between them. 3 The record does not contain a transcript of the domestic relations court's ruling or other objective documentation of the reasons for the court's nine-month injunction that the Petitioner have no contact with T-R­except to arrange visitation with P-. Nor does the record contain the transcript of the criminal court proceedings, in which, according to the Petitioner, the court found that he used "excessive force" and ordered him to take ten weeks of anger management classes. The record does not establish that his conviction was connected to T-R-'s battery or extreme cruelty.

The Petitioner has not overcome our determination on appeal that his conviction for assaulting his ex-spouse reflects adversely upon his moral character pursuant to the final paragraph of section 101(f) of the Act and the regulation at 8 C.P.R. § 204.2(c)(l)(vii). The Petitioner has therefore not demonstrated his good moral character as required by section 204(a)(1)(A)(iii)(II)(bb) of the Act.

3 The Petitioner states that the court also ordered an extra day of visitation in favor of the Petitioner.

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Matter of P-D-S-

III. CONCLUSION

The Petitioner has not established that he is a person of good moral character. He is consequently ineligible for immigrant classification under section 204(a)(1)(A)(iii) ofthe Act.

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter of P-D-S-, ID# 17352 (AAO July 26, 2016)

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