MATTER OF H-M-A-A-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN.l7.2018

APPLICATION: FORM I-485. APPLICATION TO REGISTER PERMANENT RESIDENCE OR ADJUST STATUS

The Applicant. a native and citizen of Mexico, seeks to become a lawful permanent resident based on his derivative "U" nonimmigrant status as the child of the victim of the qualifYing criminal activity. See Immigration and Nationality Act (the Act) section 245(m). 8 U.S.C. § 1255(m). The U classification affords nonimmigrant status to crime victims, who assist authorities investigating or prosecuting the criminal activity, and their qualifying family members. The U nonimmigrant may later apply for lawful permanent residency.

The Director of the Vermont Service Center denied the Form I-485, Application to Register Permanent Residence or Adjust Status (U adjustment application), concluding that the Applicant did not merit adjustment of status as a matter of discretion. because the favorable equities in his case did not outweigh the adverse factors, which included a recent criminal history and lack of rehabilitation.

On appeal, the Applicant submits a brief and additional evidence, asserting that the record on appeal demonstrates that the favorable equities, including his remorse and rehabilitation. overcome the adverse factors such that he warrants a favorable exercise of discretion.

Upon de novo review, we will dismiss the appeal.

I. LAW

U.S. Citizenship and Immigration Services (USCIS) may adjust the status of aU nonimmigrant to that of a lawful permanent resident if USCIS determines that the U nonimmigrant's continued presence in the United States is justified on humanitarian grounds, to ensure family unity. or is otherwise in the public interest. Section 245(m) of the Act. The U adjustment applicant bears the burden of showing that discretion should be exercised in his or her favor. 8 C.F.R. § 245.24(d)(ll ).

When exercising its discretion. USCIS may consider all relevant factors. both favorable and adverse. Id Generally, favorable factors such as family unity. length of residence in the United States, employment, community standing, and good moral character may be sufficient to merit a favorable exercise of administrative discretion. 7 USCIS Policy Manual A.9(B)(2). www.uscis.gov/policymanual. Where adverse factors are present. the applicant should submit

Matter of H-M-A-A-

evidence of mitigating eqmt1es. 8 C.F.R. ~ 245.24(d)(ll ); see Adjustment of Status to Lawful Permanent Resident for Aliens in Tor U Nonimmigrant Status, 73 Fed. Reg. 75540, 75549 (Dec. 12, 2008) (explaining that "where adverse factors are present, it will be necessary for the applicant to offset these factors by showing sufficient mitigating factors''). Depending on the nature of any adverse factors, the applicant may be required to demonstrate clearly that the denial of adjustment of status would result in exceptional and extremely unusual hardship, but such a showing might still be insufficient ifthe adverse factors are particularly grave. 8 C.F.R. ~ 245.24(d)(ll).

II. ANALYSIS

The Applicant, a 23-year-old citizen of Mexico, claims to have entered the United States without inspection, admission, or parole in September 2000 when he was approximately six years old. In October 2012, the Director granted the Applicant derivative U-3 nonimmigrant classification as the child of the principal U-1 nonimmigrant. The record indicates that the Applicant was subsequently arrested and convicted on multiple occasions after he was granted U nonimmigrant status. He filed the instant U adjustment application in February 2016.

A. Favorable Factors

The record shows that the Applicant has continuously resided in the United States since the age of four. He resides with his U.S. citizen fiancee, B-N-. 1 and their daughter born earlier this year. In addition, he has a lawful permanent resident mother and sister and four minor U.S. citizen siblings. The record below and on appeal contains photographs of the Applicant's family and the birth certificates of his daughter and U.S. citizen siblings. as well as documents showing the permanent residence status of his mother and remaining sister. The Applicant also submitted earnings statements in the record evidencing his employment history.

In addressing the equities in his case. the Applicant, in his written statements below and on appeal, asserted that he has very strong ties to the United States and is a valuable member of the community. He asserted that he has a history of lawful employment in the United States and volunteers at his church at a local domestic violence agency. The Applicant also stated that his family and he would suffer great hardship if he had to leave the United States. He stated that all of his family are in the United States and that they are all very close. The Applicant indicated that he is now a father to his newborn daughter with 8-N-. as well as B-N-'s two minor children from a prior relationship. who are both under six years of age. He stated that he is the sole provider for his fiancee and all three children, and that the father of B-N-'s older children is absent from their lives. He indicated that he believes that it is important that children have two parents and familial support. The Applicant stated that he is a very involved parent, providing all three children with emotional. physical. and financial support, and that it would be devastating to lose them. The Applicant asserted that his mother and siblings would also suffer hardship if he had to return to Mexico. He stated that they are each other's support system after living through domestic violence inflicted by his father during his

1 Initials used to protect individual's identity.

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childhood and that separation would be traumatic for the family. He stated that he resided with mother and siblings all his lite until he moved in with his fiancee, B-N-, and he continues to see them almost every day. The Applicant indicated that he is the oldest of six children and regularly helps his mom, who is a single parent. The Applicant indicated that one of his younger brothers has been diagnosed with Attention-Deficit/Hyperactivity Disorder, and because his mother primarily speaks Spanish, he helped her with her communications with the school, attended parent-teacher conferences with her, and worked with her, the teachers, and her brother to help his brother achieve better results in school. The Applicant stated that having grown up without a strong role model in his father, he is working hard to provide one for his children and his siblings.

The Applicant stated that he would suffer great hardship if he had to return to Mexico. He indicated that he has no memories of life in Mexico and has not returned there since coming to the United States. He asserted that he knows no one in Mexico and would have nowhere to go there. In addition to the emotional hardship of being separated from his family, the Applicant indicated that he fears he would not be able to support himself and would be homeless.

The record below also included supporting letters from the Applicant's lawful permanent resident sister, G-A-, and friend, E-R-. G-A- stated that she has been fortunate to have the Applicant as an older brother and that they had a difticult childhood moving from home to home in a single parent household. She recalled that she went through a depression and became suicidaL and the Applicant helped her through that period and made her believe she can do better in life. G-A- stated that with his support, she is now studying law at the and hopes to be a district attorney one day. She stated that the Applicant is a sweet. kindhearted person who will is always helping others and putting a smile on people's faces. The Applicant's friend and neighbor, E-R-, stated that the Applicant is always respectful and helpful to her, other neighbors, and his own family. She indicated that she suffers from cerebral palsy and the Applicant often helps her move and lift items. She recalled that he also helped her ex-boyfriend, who was in a wheel chair, with his exercises and would go with him places when she was unable to accompany him.

On appeal, the Applicant proffers additional supporting letters from his mother, fiancee, and other family and friends. The Applicant's mother, M-A-, who provides two letters on appeaL indicated that the Applicant is a loving, caring son, brother, father, and grandson. She stated that the Applicant has resided with her his whole life until he moved in August 2016 with his own family . She stated that he has been a huge help to her all his life and briefly discussed the rough childhood he had because of his father. She recalled that as a single mother, she relied on the Applicant to teed his younger siblings. pick them up from school, and take care of them while she worked to provide for them financially. M-A- stated that the Applicant is a new father and is working hard to be the best father he can be. She stated that she is happy to call the Applicant her son, and that he is a beautiful, helpful, and kind person. M-A- asserted that the Applicant is always trying to help and do his best for others. The Applicant's fiancee, B-N-, stated that the Applicant is an amazing father to all three of her children, and recalled that he treated her eldest two children from a previous relationship as his own children from the outset of their relationship. B-N- stated that he is a responsible, caring family and that he shares the responsibility of taking care of her children with

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her. She recalled that she was previously in an abusive relationship with the father of her elder two children and was in a depressed state. 8-N- credited the Applicant with helping her move forward in her life. 8-N-'s sister and two friends also submitted letters discussing the Applicant's responsible, helpful, and compassionate nature, his devotion to his family, and good moral character. A second letter from E-R- reiterates her statements in her earlier letter, and adds that she would not be here but for the Applicant's assistance. Specifically, she recollected an incident where he helped her to calm her former boyfriend when he got angry and violent towards her. She stated that she would be devastated without the Applicant. Another friend, A-8-, briefly asserted the Applicant's good character, noting his helpfulness to her with her kids, as well as to his mother and younger siblings. Lastly, the Applicant submits a recommendation letter from his high school tutor who described the Applicant as a hard worker and a great family man with a great personality.

B. Adverse and Mitigating Factors

The adverse factors in the Applicant's case include his criminal history after being granted U nonimmigrant status and insufficient evidence of remorse and rehabilitation. The record. including law enforcement records, reflects the following criminal history tor the Applicant:

1. 2011 juvenile arrest for marijuana possession. The record does not contain any arrest records, or charging documents, and cetiitied disposition of the arrest charge.

2. 2012 arrest tor disturbing the peace (fighting, loud and unreasonable noise, or use of offensive words) and tor being under the influence of a controlled substance, methamphetamine. In 2014, the latter charge was dismissed after the Applicant was convicted of disturbing the peace following a no contest plea. He was sentenced to probation/conditional sentence of three years. The record does not contain evidence that the Applicant's probation was successfully completed and terminated. The court docket in the record also shows that prior to the 2014 hearing date, a bench warrant had been issued for him.

3. 2014 arrest on charges of eluding a pursuing police officer and two counts of contributing to the delinquency of a minor. In 20 15, the Applicant was convicted of the former charge and sentenced to suspended term of 180 days of jail (114 days credited), five years of probation to end in 2020, and 100 community service hours, amongst other conditions. A second court docket sheet tor a 2015 hearing shows what appears to be an amended sentence of 180 days (less 68 days for time served) and 150 hours of voluntary work. A third docket sheet for a 2015 hearing showed that the Applicant violated his probation (arising from a new arrest in 2015), which was subsequently restored and moditied. The record does not contain a complete record ofthe court' s moditied sentence and of the Applicant's probation status.

4. 2015 arrest annoying/molesting a minor and for probation violation. The record show that in lieu of a prosecution on the former charge, a petition to revoke the

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Applicant's probation was filed in his previous case for eluding a pursuing police officer on the basis that he had committed the offense of annoying/molesting a minor.

The Applicant previously addressed his 20 ll juvenile arrese for marijuana in his 20 II application for a waiver of inadmissibility in his proceedings for U immigrant classification. However, he did not disclose this arrest or its tinal disposition on this application or accompanying written statements, although the adjustment application requires information regarding all criminal arrests and the Director's request for evidence (RFE) below specifically requested the same. In his 20 I 1 statement in support of his waiver application, the Applicant admitted that he was arrested for marijuana possession and that he participated in a community service with the youth court. He indicated that he went to the courthouse and police station to confirm that he did not have an outstanding fine or additional community service hours to complete. The Applicant did not state whether he was convicted of the charge. His statements in these proceedings, including on appeal, do not address his past and current use of marijuana and other drugs.

The record shows that the Applicant's second arrest in 2012 occurred within days of being granted U nonimmigrant status. The Applicant again did not initially disclose this arrest and conviction on his application or his accompanying statement. He subsequently admitted that he had been arrested for being under the influence of ecstasy in response to the Director's RFE specifically requesting infom1ation and records on this arrest. He stated that he was 18 years old at the time and took the pill that a friend had given, although the underlying police report indicates that he received the pill in lieu of a $20 debt owed to him. He asserted that it was the one and only time he took ecstasy and that it had made him paranoid and scared. The Applicant stated that it was a bad decision on his part and expressed remorse for his actions. He stated that he pled no contest3 and was fined and sentenced to three years of probation and community service, which he paid in full. The Applicant did not explain and the record does not show why the court docket sheet submitted in his criminal case shows that a bench warrant was issued in his case. He also did not state. or provide evidence, that he completed his three-year probation sentence. In his supplemental statement on appeal, the Applicant clarifies that he did accept the ecstasy pill as repayment of debt, but did not intentionally withhold that information. He asserts thaJ instead, he was focusing on the mistake he made in taking the drug and using it.

The Applicant's statements below also discussed his 2014 arrest after he attempted to evade a police officer who had approached the Applicant and three individuals in their vehicle. In his initial statement, the Applicant briefly recalled that he got scared and drove away when he saw a police officer approaching. He stated that he only drove "for a couple blocks" before stopping, because he realized that what he was doing was not right. However, the underlying police report

2 Although an act of juvenile delinquency is not a criminal conviction on which to base removal or bar relief from removal, a juvenile offense may be considered in reviewing an application for a discretionary benefit, such as adjustment of status. Wallace v. Gonzales, 463 F.3d 135, 138-39 (2d Cir. 2006); see 8 C.F.R. § 245 .24(d)( II). :; The Applicant stated that he was convicted of being under the influence of a controlled substance. However, cou11 and law enforcement records show that charge was dismissed after he pled no contest to disturbing the peace.

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indicates that the Applicant led the police otlicer on a 9.2-mile vehicle pursuit through two towns. driving over the speed limit without stopping at red traffic lights and stop signs and causing other vehicles to stop in order to avoid collision. Contrary to the Applicant's assertions. the report indicated that he stopped only after he hit a dead end and drove onto a grassy area. Rather than turning himself in at that point, the Applicant then got out of the car and ran off on foot, jumping multiple fences in his escape attempt. The report indicated that the police otlicer gave chase unsuccessfully, but another police unit eventually apprehended the Applicant. In his second statement, the Applicant stated that he drove away from the police officer because he was scared and not thinking, but admitted that he ran away again on foot after he lost control of his car on the grass. He stated that he hid behind a house but came out and turned himself in when he realized what he was doing. Consistent with the police report, the Applicant stated that he immediately apologized to the officer. The Applicant did not address his previous inconsistent statements minimizing the severity of his criminal conduct. The police report also indicated that two of the other passengers, who had remained with the vehicle, were minors and admitted that they had been going to a specific location to smoke marijuana when the police officer approached their vehicle. The Applicant was charged with two counts of contributing to the delinquency of a minor, but he asserted that the minors were friends of the fourth passenger and that he did not know they were under 18. The record shows that those charges were dropped after the Applicant pled no contest to eluding a pursuing police officer. The Applicant did not address his friends' statements that he and the others were intending to use marijuana before the arrest.

Shortly afterwards and while still on probation for this conviction. the Applicant indicated that he was arrested and charged with annoying/molesting a child under 18 in 2015 and consequently, for a probation violation based on that charge. The Applicant stated that his ex­girlfriend's new boyfriend falsely accused him of harassing his fifteen-year-old. He stated that when the police arrived at his home and accused him of kissing the girl and leaving marks on her neck, he panicked because he was on probation. He stated that he admitted to the charges in his panic, even though it was not true. The Applicant stated that he believes that the girl's mother wrote a letter to the prosecutor explaining that the charges were not true. The Applicant did not provide a copy of the letter from the alleged victim's mother. He stated that he attempted to obtain the police report. but the police would not release it as the matter involved a minor. The Applicant did not obtain a letter from the court or other evidence showing that the police report would not be released. The Applicant asserted that no charges were filed against him because the police determined that the molestation allegations were false, but that because he had been arrested, his probation was revoked and he had to serve 60 days in county jail. However. law enforcement records do not show that the charges were dismissed as false. Rather, they specifically show that the probation violation was prosecuted in lieu of the molestation charge, and that the petition to revoke his probation. which the court granted, was based on the prosecution's assertion that he committed the molestation oflense against a child. The Applicant has submitted no evidence that the prosecution, the police, or the court specifically found that the molestation charges against his were false and dismissed on that b

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4 Although the Director's decision shows the molestation charge as "Dismissed ··· False Report,'. the record shows no

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In his supplemental statement on appeal, the Applicant admits for the first time that he did in fact kiss and leave marks on the 15-year-old victim's neck, but he asserts that be did not know· at the time that the girl was underage. He does not explain why he previously stated that it was not true that he kissed her as alleged. AdditionaHy, the underlying police declaration for a warrantless arrest specitically stated that the Applicant admitted that he knew that the victim was 15 years old. contrary to his assertions on appeal. He contends, however, that the arresting police otlicers refused to believe him when he stated that he thought the girl was 23 years old, as shown on her social media page, and that they threatened to arrest him if be kept lying. He states that he thought he ·'might as well tell them what they wanted to hear" after officers handcuffed him and threatened him that it would be worse if he was not fully honest. He indicates that he therefore told the officers that he knew the girl was 15 years old. The Applicant asserts that after a lot of discussion between the attorneys, family and friends, and him, the charge against him was dropped because he believed they learned that he did not know the victim was underage. The Applicant again states that molestation charge was dropped after the girl's family wrote a letter explaining that he was not guilty of the charge. He does not provide a copy of the letter or other evidence reflecting that the molestation charge was dismissed on this basis.

In addressing his remorse and rehabilitation. the Applicant asserted below that he was scared and frustrated that he had to serve 60 days in jail for the probation violation for something he did not do. He stated that his time in jail was horrible and he never wants to go back. He stated that he deeply regrets his past arrests and will not get in trouble again, because he has learned from his mistakes. The Applicant indicated that he was working to be a good member of the community, volunteering and helping his family, and he stated that he is complying with the terms of his probation, which is scheduled to end in 2020. Although he submitted a letter from where he volunteers, as stated, he did not clarify whether his volunteer service there was part of the volunteer work sentence imposed by the court in his 2015 conviction. On appeal, the Applicant also does not indicate whether he had continued in his volunteer \:vork, although he did state that he was unable to attend his church as frequently as in the past now that he was a father of three children.

On appeal, the Applicant again states that his imprisonment gave him time to reflect on his mistakes and changed his life. He indicates that he recognized the need to be a better son, brother, and member of society. The Applicant states that following his release. he felt bad about letting his family down and has since focused on improving his life. He indicates that he apologized to his family and showed them that he would not repeat his mistakes, and asserts that they have forgiven him and have supported him since.

The Applicant also submits on appeal a copy of letter he wrote to his sister. 0-A-, while still incarcerated and after learning that she had gotten into a tight and was not going to graduate. The letter shows the Applicant warning his sister to not end up in jail as he was at the time and encouraging her to achieve her goals. The remaining evidence on appeal includes the statements of

evidence that the charge was dismissed on that basis. Rather, as stated. the record shows that the probation violation charge was prosecuted in lieu of the molestation charge.

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his family and friends. The Applicant"s neighbor. E-R-, asserted that the Applicant has learned from his mistake and should be allowed to remain with his family, but she did not specifically identify what those mistakes were. Neither E-R- nor the Applicant's sister addressed the Applicanrs criminal historv. The letter from the volunteer coordinator tor confirmed that the Applicant had. completed 20 hours of volunteer service from through 2015,5 and described him as a reliable and hard worker. The letter did not clarify whether the volunteer hours were tor the 150 hours of volunteer work imposed by the court as part of the sentence for the Applicant's 2015 criminal conviction for eluding a pursuing police officer. None of the supporting statements addressed the Applicant's criminal history or addressed his past or current use of marijuana and other drugs, implicated by his tirst three arrests, all of which involved drugs.

C. Favorable Exercise of Discretion Not Warranted on Humanitarian Grounds, tor Family Unity. or Otherwise in the Public Interest

The Applicant bears the burden of establishing that he merits a favorable exercise of discretion. 8 C.F.R. § 245.24(d)(ll). Upon de novo review, the Applicant has not made such a showing. The favorable equities in the Applicant's case include: his t::un:ily members in the United States. including his U.S. citizen minor daughter, fiancee, and minor siblings, and his lawful permanent resident mother and sister; the hardships to the Applicant and his family should he return to Mexico; his history as a child victim of domestic violence; his long-term residence in the United States; his employment history; evidence of his volunteerism: and the supporting letters from family and friends.

Although these favorable factors are relevant to family unity and humanitarian concerns in balancing the equities in this case, they are outweighed by the adverse factors, including: the Applicant's three arrests while in U nonimmigrant status resulting in two convictions: a previous juvenile arrest for marijuana tor which there is no disposition in the record; unexplained evidence of a bench warrant history relating to the Applicant's 2012 arrest for disturbing the peace and being under the influence of a controlled substance; lack of probative testimony from the Applicant addressing his past use of marijuana, ecstasy, or other drugs. as implicated by three of his arrests; and insufficient evidence of remorse and rehabilitation, including lack of evidence demonstrating that the Applicant successfully completed probation and other court-ordered conditions for his 2014 conviction tor disturbing the peace and his ongoing probation for his 2015 conviction for eluding a pursuing police officer.

On appeal, the Applicant acknowledges that his statements below lacked sufficient detail regarding his arrests, but contends that his supplemental statement and supporting statements from his family and friends, as well as the remaining evidence in the record, establish that the favorable equities in his case outweigh the adverse factors of his three arrests. He asserts that he is a survivor of domestic violence by his father, and notes his long-term residence in the United States where he has spent his

5 The letter appears to have mistakenly dated December 2014. which would pre-date the period the Applicant volunteered.

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whole life. He further asserts that he is the father of a U.S. citizen child who has also accepted responsibility for his U.S. citizen fiancee ' s two children. He contends that it is in the public interest to allow him to remain in the United States to support his daughter and other family members, which would not be possible if he has to return to Mexico. Additionally, he maintains that it is in the public interest to promote and support successful rehabilitation, and that in his case, he has shown his rehabilitation.

We recognize the evidence of the favorable equities in the Applicant's case referenced above. However, as discussed, they are insufficient to overcome the adverse factors in his case, including his criminal history and the insufficient evidence of his remorse and rehabilitation in the record. The Applicant acknowledges his convictions tor disturbing the peace and eluding a pursuing police officer, but notes that they were over two years ago and that the most serious charge against him tor annoying/molesting a child was dismissed. However, the Applicant admitted in these proceedings that he engaged in conduct of a sexual nature with a 15-year-old girl when he was 20 years old. Although he stated that he believed her to be 23 years old, the underlying probable cause for warrantless arrest indicates that the Applicant admitted he knew her minor age at the time. And although the Applicant asserts that the arresting otlicers forced the admission tram him and that the charge was ultimately dismissed because the police recognized the charge as false. he has not provided any court or law enforcement records showing that charge was dismissed as a false report as he maintains. To the contrary, the record shows that the prosecution charged him with a probation violation in lieu of the charge of annoying/molesting a child, and on the basis that he still committed the underlying offense. The Applicant also has not provided the police report, or alternatively, a notice tfom the court stating that the records are unavailable to him as he asserted, although he was the defendant in the proceedings.

Even discounting his 2015 arrest, the record shows that the Applicant was arrested within days of being granted U nonimmigrant classification in 2012 for disturbing the peace and being under the influence of a controlled substance. The Applicant did not disclose this arrest to USCIS when he filed the application, until after the Director requested information about the arrest. His court disposition for this arrest also reflects that a bench warrant had been issued and terminated in this case, something that the Applicant has not addressed. One month after the final disposition of this arrest, the Applicant was again arrested in 2014 after engaging in behavior that endangered others while attempting to elude a police officer in a vehicle. The record shows that the Applicant initially minimized the severity of the actions, indicating that he "drove tor a couple blocks'' before stopping, when in fact he engaged in a vehicle pursuit tor over nine miles and continued in his escape attempt even after his vehicle was forced to stop. The Applicant was sentenced to probation in both of these cases, but has not submitted evidence showing that his probation was successfully completed and terminated. At present, the record indicates that the Applicant' s most recent probation tor this conviction is not scheduled to end until 2020. The Applicant has also not addressed at all his 20 II juvenile arrest for marijuana possession and the record does not contain any final disposition of that charge. In addition, the record shows that three of his arrests involved the Applicant's use or possible use of marijuana or ecstasy. The Applicant has not sufficiently addressed his drug use.

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As discussed, the record demonstrates the many equities in the Applicant's case. including the financial, physical, and emotional hardships to the Applicant and his family. However, the Applicant's multiple arrests and convictions, after he was granted U status and awaiting the opportunity to pursue adjustment of status before the U.S. government, outweigh the favorable equities in his case, particularly as he has not demonstrated his remorse and rehabilitation. Based on the foregoing, the Applicant has not established that his continued presence in the United States would be in the public interest.

IlL CONCLUSION

Upon a balancing of the equities, the Applicant has not established that his continued presence in the United States is justified on humanitarian grounds. to ensure family unity. or is otherwise in the public interest such that a favorable exercise of discretion is wan·anted to grant him adjustment of status.

ORDER: The appeal is dismissed.

Cite as }vfaller of H-lvf-A-A-. lD# 791324 ( AAO Jan. 17, 20 18.) . . .

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