MATTER OF 0-L-C-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JULY 6, 2016

PETITION: FORM 1-360, 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 is a citizen of Colombia, who last entered the United States with a B-2 nonimmigrant visa. The Petitioner subsequently married her second spouse A-G-, 1 a U.S. citizen and filed the instant VAWA petition. The Director, Vermont Service Center, denied the petition. The Director concluded that the Petitioner had not established that she is a person of good moral character, as required by section 204(a)(l)(A)(iii)(II)(bb) ofthe Act.

The matter is now before us on appeal. On appeal, the Petitioner submits a brief and additional evidence. The Petitioner claims that she has established that she is a person of good moral character.

Upon de novo review, we will dismiss the appeal.

I. APPLICABLE LAW

Section 204(a)(l )(A)(iii)(I) of the Act provides that an alien who is the spouse of a United States citizen may self-petition for immigrant classification if the alien demonstrates that he or she entered into the marriage with the United States citizen spouse in good faith and that during the marriage, the alien or a child of the alien was battered or subjected to extreme cruelty perpetrated by the alien's spouse. In addition, the alien must show that he or she is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i) of the Act, resided with the abusive spouse, and is a person of good moral character. Section 204(a)(l)(A)(iii)(II) of the Act, 8 U.S.C. § 1154(a)(l)(A)(iii)(II).

Section 204(a)(l)(J) ofthe Act further states, in pertinent part:

1 Name withheld to protect the individual's identity.

Matter of 0-L-C-

In acting on petitions filed under clause (iii) or (iv) of subparagraph (A) . . . or in making determinations under subparagraphs (C) and (D), the [Secretary of Homeland Security] shall consider any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the [Secretary of Homeland Security].

The eligibility requirements are further explicated in the regulation at 8 C.F.R. § 204.2(c)(l), which states, in pertinent part:

(vii) Good moral character. A self-petitioner will be found to lack good moral character if he or she is a person described in section 10l(f) of the Act. Extenuating circumstances may be taken into account if the person has not been convicted of an offense or offenses but admits to the commission of an act or acts that could show a lack of good moral character under section 1 01 (f) of the Act. . . . A self-petitioner will also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she willfully failed or refused to support dependents; or committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack of good moral character. A self-petitioner's claim of good moral character will be evaluated on a case-by-case basis, taking into account the provisions of section 101 (f) of the Act and the standards of the average citizen in the community.

The evidentiary guidelines for a self-petition under section 204(a)(l)(A)(iii) of the Act are further explicated in the regulation at 8 C.F.R. § 204.2(c)(2), which states, in pertinent part:

(v) Good moral character. Primary evidence of the self-petitioner's good moral character is the self-petitioner's affidavit. The affidavit should be accompanied by a local police clearance or a state-issued criminal background check from each locality or state in the United States in which the self-petitioner has resided for six or more months during the 3-year period immediately preceding the filing of the self-petition. Self-petitioners who lived outside the United States during this time should submit a police clearance, criminal background check, or similar report issued by the appropriate authority in each foreign country in which he or she resided for six or more months during the 3-year period immediately preceding the filing of the self-petition. If police clearances, criminal background checks, or similar reports are not available for some or all locations, the self­petitioner may include an explanation and submit other evidence with his or her affidavit. The Service will 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.

The burden of proof is on a petitioner to demonstrate eligibility by a preponderance of the evidence. See Matter ofChawathe, 25 I&N Dec. 369 (AAO 2010). A petitioner may submit any evidence for us to consider; however, we determine, in our sole discretion, the credibility of and the weight to give that evidence. See section 204(a)(l)(J) ofthe Act; 8 C.F.R. § 204.2(c)(2)(i).

2

(b)(6)

Matter of 0-L-C-

II. ANALYSIS

Primary evidence of a petitioner's good moral character is his or her affidavit, accompanied by local police clearances or state-issued criminal background checks from each of the petitioner's residences during the three years before the petition was filed. 8 C.P.R. §204.2(c)(2)(v).

The record provides the following account of the Petitioner's criminal history in Florida:

• On 2000, the Petitioner was arrested for Marijuana Possession in violation of Fla. Stat. section 893.13; Resisting Arrest in violation of Fla. Stat. section 843.02; and for Possession of Narcotics Implement in violation of Fla. Stat. section 893.14 7. These charges were dismissed without prosecution.

• On 2002, the Petitioner was arrested for Possession of Cannabis in violation of Fla. Stat. section 893.13; Resisting an Officer without. violence to (Obstruct Justice) in violation of Fla. Stat. section 843.02; and Aggravated Battery in violation of Fla. Stat. section 785.045. These charges were dismissed without prosecution.

• On 2002, the Petitioner was arrested for Possession of Marijuana in violation of Fla. Stat. section 893.13 ( 6) (b). The Petitioner was convicted of this charge and assessed a fine and costs.

• On 2002, the Petitioner was arrested for Domestic Violence Assault and Battery in violation of Fla. Stat. section 785.045. These charges were dismissed without prosecution.

• On 2003, the Petitioner was arrested for Possession of Marijuana in violation of Fla. Stat. section 893.13; Resisting an Officer, in violation of Fla. Stat. section 843.02; and Domestic Violence in violation of Fla. Stat. section 785.045. The disposition of these charges was Pre-trial Diversion.

• On 2005, the Petitioner was arrested for Driving Under the Influence (DUI) in violation ofFla. Stat. section 316.193; Damage/personal injury, and No valid Driver's license in violation of Fla. Stat. section 322.03. The Petitioner was convicted of the DUI offense and fined $1,044.25. The No Valid Driver's License charge was dismissed.

• On 2011, the Petitioner was arrested for Tampering with or Destroying Evidence in violation of Fla. Stat. section 918.13; Disorderly Intoxication in violation of Fla. Stat. section 856.01; and Resisting an Officer without Violence in violation of Fla. Stat. section 843.02. Charges 1 and 2 were dropped or abandoned. For the charge of Resisting an Officer Without Violence, the matter was resolved without adjudication and the Petitioner was assessed a fine and costs.

3

(b)(6)

Matter of 0-L-C-

• On 2012, the Petitioner was arrested for Resisting an Officer. The disposition of this charge remains unknown.

Section 101(t)(3) of the Act prescribes, in pertinent part, that no person shall be found to have good moral character if he or she is a member of one or more of the classes of persons, whether inadmissible or not, described in subparagraphs (A) of section 212(a)(2), which states, in pertinent part: "(i) any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of- a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime .... "

The Petitioner initially addressed her moral character in a brief submitted below. The Petitioner asserted that she is a person of good moral character and that the extreme cruelty and abuse that she suffered at the hands of her husband caused her to engage in criminal behavior. She explained that she has never been convicted of an aggravated felony or serious crimes and that the 2000 charges were for violating county ordinances, and that they were dismissed. The Petitioner further explained that the 2002, charges were dismissed without prosecution and her

2002, conviction for possession of Marijuana was for less than 20 grams and she was ultimately convicted of violating a county ordinance. Additionally, the Petitioner asserted that her conviction for DUI is not a crime involving moral turpitude (CIMT).

To support her claim of good moral character, the Petitioner submitted a letter from her pastor, of. The Petitioner also submitted copies of arrest and

booking records from the Police Department, disposition printouts relative to her arrests, the BIA Interim Decision Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999), and a psychological evaluation from

In his letter, stated that the Petitioner worships at his church and that her daughter was baptized there. The Pastor did not discuss his knowledge of the Petitioner's convictions and subsequent rehabilitation. Therefore, his statement carries little evidentiary weight to establish the Petitioner's good moral character. Similarly, the psychological report discussed the Petitioner's treatment at the facility, but it made no mention of the Petitioner's criminal behavior or rehabilitation.

In a personal statement submitted with her previously filed VA W A petition, the Petitioner explained the circumstances surrounding several of her arrests. The Petitioner recalled that she was arrested in

2000, after calling the police to report a theft in her hotel room. While there, the police found her small bag of marijuana and arrested her. She recounted that on 2002, the police were called to her home in response to an altercation between her and A-G-. When the police found marijuana at the home, she was arrested. The Petitioner recalled that on 2002, she found a substance impaired A-G- in bed with another woman and during a subsequent altercation, she destroyed some of the property in the room. A-G- called the police and she was arrested. The Petitioner recalled that in 2005, she became upset that her son, who resides with his father in Colombia, would not return to live in Florida. She drove while intoxicated and was arrested. In her statement, the Petitioner acknowledged her error in driving while intoxicated. · She stated that

4

Matter of 0-L-C-

subsequent to this incident, she volunteered at a local school for six months and. successfully completed the court ordered DUI classes.

The Petitioner in this case has been convicted of Driving Under the Influence (DUI) in violation of Fla. Stat. section 316.193. In Matter of Lopez-Meza, the Board of Immigration Appeals (BIA) noted that a conviction for a simple driving while under the influence (DUI) offense is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge, and therefore is not a crime involving moral turpitude. See Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). It held, however, that a conviction for aggravated DUI under section 28-697(A)(l) or section 28-1383(A)(l) of the Arizona Revised Statutes qualifies as a crime involving moral turpitude as it requires a showing that the offender was knowingly driving with a suspended, canceled, revoked, or refused license. 22 I&N at 1195. The BIA found that "a person who drives while under the influence, knowing that he or she is absolutely prohibited from driving, commits a crime so base and so contrary to the currently accepted duties that persons owe to one another and to society in general that it involves moral turpitude." Id at 1196. .

On appeal, the Petitioner asserts that her DUI conviction does not amount to a CIMT because her conduct did not involve the intention to cause harm. The statute for which the Petitioner was convicted, Fla. Stat. section 316.193, does not require a culpable mental state for a conviction of simple driving while under the influence (DUI). See Fla. Stat. § 316.193 (West 2005). Therefore,

· the Petitioner was not convicted of a CIMT pmsuant to Matter of Lopez-Meza.

The record reflects that the Petitioner was also convicted of the misdemeanor offense of Resisting Officer, in violation of Fla. Stat. section 843.02. At the time of her conviction, the statute stated that:

Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1 ), (2), (3), (6), (7), (8), or (9); member of the Florida Commission on Offender Review or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided ins. 775.082 or s. 775.083.

See Fla. Stat.§ 843.02 (West 2003).

The Eleventh Circuit court of Appeals in Manuel Cano v. US. Attorney General, has held that Resisting an officer with violence in violation of Fla. Stat. 843.02 is a CIMT because the statute requires an act ofintentional violence. See Manuel Cano vs. Attorney General, No. 11-15918 (11th Cir. 2013). However, Fla. stat. section 843.02 states that the crime of Resisting an Officer Without Violence involves non-violent conduct and is not considered a crime involving moral turpitude. Consequently, the Petitioner's convictions under Fla. stat. section 316.193 and Fla. Stat. section 843.02 are not crimes involving moral turpitude that automatically bar a finding of the Petitioner's good moral character under sections 10l(f)(3) and 212(a)(2)(A)(i)(I) of the Act.

5

Matter of 0-L-C-

The record nonetheless shows, and the Director correctly determined, that the Petitioner lacks good moral character under the last paragraph of section 101(f) of the Act and the regulation at 8 C.F.R. section 204.2(c)(l)(vii). Section 101(f) of the Act states, in pertinent part, that "[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." The regulation at 8 C.F.R. section 204.2(c)(l)(vii) further prescribes that:

A self-petitioner will also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she willfully failed or refused to support dependents; or committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack of good moral character. A self-petitioner's claim of good moral character will be evaluated on a case-by-case basis, taking into account the provisions of section 101(f) ofthe Act and the standards ofthe average citizen in the community ....

The Petitioner has been arrested for multiple offenses since her entry into the United States and convicted of possession of marijuana, DUI, and Resisting an Officer. In addition, as of the date of the Director's decision, the Petitioner had not paid the fines associated with her 2011 conviction for resisting arrest and her account was referred to a collection agency. The record does not show that the Petitioner has satisfied this debt nor does the Petitioner submit on appeal, a detailed personal statement providing sufficient explanations this or any of her other arrests and convictions.

On appeal, the Petitioner asserts that the abuse that she suffered at the hands of her husband caused her to engage in criminal behavior. The Petitioner asserts that she is now active in her church and has changed the way she lives. However, the Petitioner does not establish a causal connection between her conviction for driving while intoxicated and the abuse. Nor, does she establish that her other convictions were related to the abuse or any other extenuating circumstances. Likewise, the record does not support the Petitioner's assertion that she has now demonstrated her rehabilitation. The letter of support from the Petitioner's pastor and the psychological evaluation do not discuss the Petitioner's convictions and rehabilitation. The letters of support from the Petitioner's friends submitted below are brief and do not discuss their knowledge of her convictions and rehabilitation. The Petitioner's declaration submitted below repeats her earlier statements and does not add substantive information regarding her convictions or otherwise demonstrate her rehabilitation. While the Petitioner stated that she regrets all of her bad decisions, she did not specifically take responsibility for any of her actions. Without an acknowledgment and adequate explanation of all her convictions, the Petitioner's statements in the record standing alone do not carry sufficient evidentiary weight to establish the Petitioner's good moral character. Accordingly, the Petitioner has not demonstrated her good moral character as required by section 204(a)(l)(A)(iii)(II)(bb) ofthe Act. She is consequently ineligible for immigrant classification under section 204(a)(l)(A)(iii) ofthe Act.

6

Matter of 0-L-C-

III. CONCLUSION

In visa petition proceedings, it is the Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. section 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner has not met that burden.

ORDER: The appeal is dismissed.

Cite as Matter ofO-L-C-, ID# 16954 (AAO July 6, 2016)

7