U.S. Citizenship and Immigration Services

MATTER OF C-M-M-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 26. 2017

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

The Petitioner was the victim of aggravated assault who seeks U-1 nonimmigrant 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 atlords 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 Form I -918, Petition for U nonimmigrant Status (U petition), concluding that the Petitioner was inadmissible for being present in the United States without admission, inspection, or parole, and for not having a valid passport. The Director denied the Petitioner's Form I-192, Application for Advance Permission to Enter as Nonimmigrant (waiver application), finding that he did not merit a positive exercise of discretion.

The matter is now before us on appeal. The Petitioner contends that he is not inadmissible for entering the United States without inspection, admission, or parole. and asserts that he should be permitted to remain in the United States with his U.S. citizen children.

Upon de novo review we will dismiss the appeal.

I. LAW

Section 212(d)(14) of the Act requires U.S. Citizenship and Immigration Services (USCIS) to determine whether any grounds of inadmissibility exist when adjudicating a U petition and provides USCIS with the authority to waive certain grounds of inadmissibility as a matter of discretion. A petitioner bears the burden of establishing that he or she is admissible to the United States or that any grounds of inadmissibility have been waived. See 8 C.F.R. § 214.1 (a)(3 )(i).

For individuals seeking U nonimmigrant status who are inadmissible to the United States, the regulations require the filing of a waiver application in conjunction with the U petition in order to waive any ground of inadmissibility. 8 C.F.R. §§ 212.17, 214.14(c)(2)(iv). There is no appeal of a decision to deny a waiver. 8 C.F.R. § 212.17(b )(3 ). Although the regulations do not provide for appellate review of the Director's discretionary denial of a waiver application. we may consider whether the Director's underlying determination of inadmissibility was correct.

Matter ofC-M-M-

The burden of proof is on a petitioner to demonstrate eligibility by a preponderance of the evidence. 8 C.F.R. § 214.14(c)(4); Matler (~(Chawathe. 25 I&N Dec. 369, 375-6 (AAO 2010). AU petitioner may submit any evidence for us to consider in our de novo review; however, we determine. in our sole discretion, the credibility of and the weight to give that evidence. See section 214(p )( 4) of the Act; 8 C.F.R. § 214.14(c)(4).

II. ANALYSIS

At the time of the Director's decision, her determination that the Petitioner was inadmissible under section 212(a)(7)(B)(i)(II) (no valid passport) ofthe Act, 8 U.S.C. § 1182(a)(7)(B)(i)(Il), was proper. We find, however, that the Director erred in finding the Petitioner inadmissible under section 212(a)(6)(A)(i) (present without inspection) of the Act. We also tind that the Petitioner is inadmissible under additional sections of the Act.

A. No Valid Passport

At the time of the Director's decision, and currently, the Petitioner is inadmissible under section 212(a)(7)(B)(i)(l) of the Act, as he does not hold a valid passport. The Petitioner has not submitted evidence to the contrary.

B. Presence in the United States Without Inspection. Admission, or Parole

At the time the Director rendered her decision regarding the Petitioner's inadmissibility. the Petitioner was present in the United States, but he was not inadmissible under section 212(a)(6)(A)(i) of the Act for being present in the United States without admission. inspection. or parole. The record reflects that, at the time of the Director's decision. the Petitioner's last entry into the United States was as a lawful permanent resident in May 1977. 1 Additionally, since the Director's decision was issued, the Petitioner has departed the United States.

Accordingly, the Petitioner is not inadmissible under section 212(a)(6)(A)(i) of the Act for being present in the United States without admission, inspection, or parole.

B. The Petitioner's Departure from the United States under an Order of Removal

While the Petitioner was not inadmissible under section 212(a)(9)(B)(i)(II) at the time of the Director's decision, he currently is inadmissible under this section of the Act. The Petitioner accrued more than one year of unlawful presence in the United States between the time his removal

1 Since his admission to the United States as a lawful permanent resident and prior to the Director's decision, the Applicant had been placed into immigration proceedings and ordered removed as an aggravated felon. thereby terminating his lawful permanent resident status.

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order became final in 20142 and his departure from the United States in 2017. and is seeking admission to the United States as aU nonimmigrant within 10 years of his 2017 departure.

We note that, though the Petitioner departed the United States in 2017 under an order of removal and after accruing more than one year of unlawful presence, it does not appear that he is currently inadmissible under section 212(a)(9)(C) of the Act because he has not reentered the United States without advance permission since his 2017 departure.

However, the Petitioner is currently inadmissible under section 212(a)(9)(A)(ii)(II) of the Act. for seeking admission as an aggravated felon after having departed the United States under an order of removal.

C. The Petitioner's Crime Involving Moral Turpitude Convictions

Although the Director did not find the Petitioner to be inadmissible due to his convictions, we find that he is inadmissible under section 212(a)(2)(A)(i)(I) of the Act for having been convicted of a crime involving moral turpitude (CIMT). The Board of Immigration Appeals (the Board) stated in Matter ofPerez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992):

[M]oral turpitude is a nebulous concept. which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one· s fellow man or society in general. ...

In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

1. Theft by Shoplifting

In 2009, the Petitioner pled nolo contendere to misdemeanor theft by shoplifting under section 16-8-14(a)(l) ofthe Georgia Code and was sentenced to 12 months in jail, which was to be served as probation, plus a fine and attendance of a 30-day values clarification program. A clarifying order was issued stating that there was no confinement entered in the sentence. The Petitioner's nolo contendere plea represents a conviction for immigration purposes. See section 101 (a)( 48)(A) of the Act, 8 U.S.C. § 1101(a)(48)(A) (where adjudication of guilt has been withheld. a conviction for immigration purposes exists when an individual enters a plea of nolo contendere, and a judge has ordered some form of punishment, penalty, or restraint on the alien's liberty).

2 The Petitioner withdrew his appeal of the immigration judge's order of removal as an aggravated felon in 2014. at which time the order of removal became final.

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At the time of the Petitioner's conviction, the Georgia Code punished shoplifting when a person, alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereo( in whole or in part, conceals or takes possession of the goods or merchandise of any store or retail establishment. Ga. Code Ann. § 16-8-14(a)(l) (West 2009). While the Board has determined that offenses like joy riding are not morally turpitudinous because they do not involve the intent to deprive the owner ofthe property permanently, an offense qualifies as a categorical crime involving moral turpitude if it "embodies a mainstream, contemporary understanding of theft, which requires an intent to deprive the owner of his property either permanently or under circumstances where the owner's property rights are substantially eroded.'' Matter (?{Clement Obeya. 26 I&N Dec. 856, 859 (BIA 2016) (citing Matter C?fDiaz-Lizarraga, 26 I&N Dec. 847, 852-53 (BIA 2016)). Here, the statutory requirements for a conviction under section 16-8-14(a)(l) ofthe Georgia Code specifies an intent to appropriate merchandise for the individual's own use without paying, or to deprive the owner of possession or the value thereof. Both elements of the offense reflect an intent to substantially erode the owner's property rights. The offense is therefore a CIMT.

2. Theft by Conversion

In 2012, the Petitioner pled guilty to felony theft by conversion under section 16-8-4 of the Georgia Code and was sentenced to four years in jail to be served as probation with the first 12 months on work release, plus a fine and restitution in the amount of $2.800.

Under the Georgia Code a person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another including. but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. The Georgia Court of Appeals has held that fraudulent intent in theft by conversion is what makes it differ from a breach of contract. Terrell v. State, 621 S.E.2d 515, 515 (Ga. Ct. App 2005) (citing Tukes v. State, 550 S.E.2d 678, 680 (Ga. Ct. App. 2001)). The Board has held that where fraud is clearly an ingredient of a crime, it involves moral turpitude, even if the usual phraseology concerning fraud is not included in the statute. Jordan v. DeGeorge, 341 U.S. 223,229 (1951); Matter (~{Flores. 17 I&N Dec. 225,225 (BIA 1980). Since theft by conversion involves a fraudulent intent, the Petitioner's conviction is a CIMT.

3. Aggravated Assault

In 2006, the Petitioner pled guilty to aggravated assault under section 16-5-21 of the Georgia Code and was sentenced to seven years, the first 12 months to be served in work release with the remaining six years on probation, plus a fine, restitution, and a no contact order with the victim.

The general rule that a simple assault or battery that only requires offensive touching or threatened offensive touching of another committed with general intent that does not result in serious bodily harm is not considered to involve moral turpitude, does not apply where a statute ''involves some

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aggravatingfactor that indicates the perpetrator's moral depravity." Matter olAhortalejo-Guzman, 25 I&N Dec. 465, 465 (BIA 2011) (emphasis added). In assessing whether an individual convicted under such a statute has committed a crime involving moral turpitude, we weigh the level of danger posed by the perpetrator's conduct along with his or her degree of mental culpability in committing that conduct. See Matter of Danesh, 19 I&N Dec. 669. 673 (BIA 1988). The Board has concluded that assault offenses that require a state of mind falling between specific intent and criminal negligence - for instance, general intent and recklessness - are morally turpitudinous if they "necessarily involve aggravating factors that significantly increase their culpability" relative to simple assault. Matter ofSanudo, 23 l&N Dec. 968, 971 (BIA 2006). One aggravating factor is the use of a deadly or dangerous weapon or instrument: conduct that magnifies the danger posed by the perpetrator and demonstrates his or her heightened propensity for violence and indiflerence to human life. Matter ol Medina, 15 I&N Dec. 61 L 612-14 (BIA 1976). qffd sub nom.: Matter (~l 0-. 3 I&N Dec. 193, 196-198 (BIA 1948).

Aggravated assault under section 16-5-21 may be committed when an individual assaults: ( 1) with intent to murder, or, to rape, or to rob; (2) with a deadly weapon or with any object. device. or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; (3) with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation: or ( 4) a person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons. Besides the specific intent to murder, rape. or rob, the Georgia Court of Appeals has held that aggravated assault is a general intent crime. Frayall v. State. 576 S.E.2d 654, 656-57 (Ga. Ct. App. 2003). Aggravated assault with the intent to murder, rape, or rob is a CIMT because all three specific intent crimes are CIMTs. See Matter ol Solon, 24 l&N Dec. 239, 241 (BIA 2007) (citing Matter (~l Torres- Varela, 23 I&N Dec. 78, 84 (BIA 2001 ), and noting that rape is an offense recognized as involving acts of baseness and depravity): Matter of' Sanchez-Linn. 20 I&N Dec. 362, 366 (BIA 1991) (voluntary manslaughter and attempted murder are extremely serious crimes involving moral turpitude); Matter of Martin. 18 I&N Dec. 226, 227 (BIA 1982) (robbery is universally recognized as a crime involving moral turpitude.). Aggravated assault with a deadly weapon or any object, device, or instrument that is likely to or actually results in either serious bodily injury or strangulation is also a CIMT because the conduct magnifies the danger posed by the perpetrator and demonstrates his indifference to human life. Similarly. discharging a firearm towards a person or persons reflects a grave indifference to human life. Accordingly, aggravated assault under section 16-5-21 of the Georgia Code is categorically a CIMT. and the Petitioner's conviction for same is his third CIMT conviction.

The Act provides a petty offense exception to the CIMT ground of inadmissibility if a petitioner is convicted of only one CIMT for which the maximum penalty possible did not exceed one year in jail and the petitioner was sentenced to less than six months in jail. Section 212(a)(2)(A)(ii)(ll) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II). In the instant case, the Petitioner is not eligible for the petty offense exception because he has been convicted of more than one CIMT.

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Accordingly, the Petitioner has been convicted of a CJMT and IS inadmissible under section 212(a)(2)(A)(i)(I) ofthe Act.

The Petitioner's remaining assertions on appeal relate only to factors that the Director would consider when determining whether to exercise her discretion favorably and approve the waiver application. The Petitioner is inadmissible to the United States and therefore requires an approved waiver application. As the Petitioner remains inadmissible, and we have no jurisdiction to consider the Director's decision on the waiver application, we must dismiss the appeal.

III. CONCLUSION

While the record does not demonstrate that the Petitioner was inadmissible for being present in the United States without inspection, admission, or parole, a full review of the record supports the Director's determination that the Petitioner is inadmissible under section 212(a)(7)(B)(i)(l) for being a nonimmigrant without a valid passport. Evidence in the record also indicates that the Petitioner is inadmissible under section 212(a)(9)(A)(ii)(II) of the Act for seeking admission as an aggravated felon after having departed the United States under an order of removal, section 212(a)(9)(B)(i)(ll) of the Act for seeking admission within 10 years after over 1 year of illegal presence, and section 212(a)(2)(A)(i)(l) of the Act for having been convicted of multiple crimes involving moral turpitude. The Petitioner does not contest his inadmissibility and his assertions on appeal relate only to whether a favorable exercise of discretion is warranted to approve the waiver application. As the Petitioner remains inadmissible, and we have no jurisdiction over the waiver application, we must dismiss the appeal.

ORDER: The appeal is dismissed.

Cite as Matter ofC-M-M-, ID# 00550890 (AAO Sept. 26, 2017)