U.S. Citizenship and Immigration Services

MATTER OF H-L-L-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: OCT. 24. 2017

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

The Applicant seeks to become a lawful permanent resident based on her U nonimmigrant status. See Immigration and Nationality Act (the Act) section 245(m). 8 U.S.C. ~ 1255(m). The U classification affords nonimmigrant status to victims of qualifying crimes, 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 Applicant's U adjustment application as a matter of discretion because her criminal record and past drug addiction outweighed the positive factors in her case.

The matter is now before us on appeal. On appeal, the Applicant submits a brief and additional evidence. The Applicant claims that she warrants a favorable exercise of discretion and her adjustment of status should be granted.

Upon de novo review, we will dismiss the appeal.

I. LAW

A U nonimmigrant may adjust status to that of a lawful permanent resident at the discretion or U.S. Citizenship and Immigration Services (USCIS) if the Applicant'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. When exercising its discretion. USCIS may consider all relevant factors, both favorable and adverse, but the U nonimmigrant ultimately bears the burden or showing that discretion should be exercised in his or her favor. 8 C.F.R. ~ 245.24(d)( 11 ).

Where an applicant meets all other eligibility criteria. but adverse factors are present. USC IS must weigh all of the positive and negative factors to determine whether a favorable exercise of discretion is warranted. 7 USCIS Policy Manual A.9(8)(1 )-(2). www.uscis.gov/policymanual (accessed September 7, 2017). Generally, favorable factors such as family unity. length of residence in the United States, employment, community standing, and good moral character may be sutlicicnt to merit a favorable exercise of administrative discretion. !d. Although an applicant is not required to

.

Matter of H-L-L-

demonstrate that he or she is admissible, USCIS may consider all factors when making its discretionary decision. 8 C.F.R. § 245.24(d)(11 ). The applicant should offset adverse factors by submitting evidence to establish mitigating equities. !d.: see Adjustment of Status to Lawful Permanent Residence for Aliens in T or U Nonimmigrant Status, 73 Fed. Reg. 75540. 75549 (December 12, 2008) (explaining that ··where adverse factors are present. it will be necessary for the applicant to offset these factors by showing sut1icient 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 insutlicient if the adverse factors are particularly grave. !d.

II. ANALYSIS

The Applicant filed the instant U adjustment application in December 2015. after her admission to the United States as a U nonimmigrant in May 2012. Upon a full review of the record. as supplemented on appeal, the Applicant has not overcome the Director's grounds for denial.

The Director found that the Applicant's liberty had been significantly restricted due to juvenile delinquency since her admission to the United States as a U nonimmigrant and that her arrests as a juvenile were for serious charges such as auto theft, carrying a gun without a license, gang activity. and battery. She stated that the Applicanfs juvenile arrests were significant negative factors to be considered in whether the Applicant warranted a favorable exercise of discretion. The Director noted that the Applicant had been unable to provide police reports, court dispositions. or orders for any of her arrests besides a 2015 marijuana arrest and 2014 criminal recklessness. resisting arrest and auto theft charges. She also noted that the Applicant's Form I-693, Report of Medical Examination and Vaccination, diagnosed her with the Class A medical condition of a current physical or mental disorder with associated harmful behavior (drug abuse or addiction). The Director acknowledged the Applicant's residence in the United States since the age of her family in the United States, her 2014 rape, her attendance of therapy and completion of a general Educational Development (GED) program while in juvenile detention. her apology for previous behavior, and her statement that she was influenced by individuals with whom she no longer has contact due to moving to a different state. However, the Director found these favorable factors to be outweighed by the Applicant's pattern of criminal behavior which illustrated a disregard for the health and safety of herself and others. and a disregard for the laws of the United States.

On appeal, the Applicant asserts that the Director erred in considering charges that were originally filed against her, but later dismissed or rejected by the prosecution. Although we do not give substantial weight to arrests absent convictions or other corroborating evidence of the allegations. we may consider them in our exercise of discretion. See Matter olTeixeira, 21 I&N Dec. 316. 321 (BIA 1996) (citing to Matter olGrijalva, 19 I&N Dec. 713 (BIA 1988) and Malter olThomas. 21 I&N Dec. 20 (BIA 1995)) (finding that we may look to police records and arrests in making a determination as to whether discretion should be exercised): Malter ojArreRuin. 21 I&N Dec. 38, 42 (BIA 1995) (declining to give substantial weight to an arrest absent a conviction or other corroborating evidence, but not prohibiting consideration of arrest reports). Additionally. even

2

.

Matter of H-L-L-

though the Applicant's juvenile arrests could not result in convictions for immigration purposes, they are factors to be considered in our exercise of discretion. See Wallace \'. Gonzales. 463 F3d 135. 139 (2d Cir. 2006) (citing to Matter o_j"Mendez-Moralez. 21 I&N Dec. 296.301 (BIA 1996) (stating that factors relevant to grant of discretionary relief include. inter alia. '·the existence of a criminal record and, if so, its nature, recency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident of this country'") (emphasis added); Matter (~l Arai, 13 I&N Dec. 494, 496 (BIA 1970) (adverse factors may require a showing of outstanding equities to merit a favorable exercise of discretion to grant adjustment of status); see also Matter ofDevison, 22 I&N Dec. 1362, 1372 (BIA 2000) (finding that adjudication of youthful offender status corresponding to the Federal Juvenile Delinquency Act does not constitute a conviction under section 101(a)(48)(A) ofthe Act); 7 USCIS Policy Manual A.9. supra at (8)(2).

Alternatively, the Applicant contends that her U adjustment application should be granted as a matter of discretion. However, the Applicant's multiple juvenile arrests, violent criminal history. drug abuse or addiction, willful concealment of unfavorable factors, insufficient evidence of rehabilitation. and insufficient evidence of positive factors do not ret1ect that a positive exercise of discretion is warranted.

A. Favorable and Mitigating Factors

The evidence in the record ref1ects that the Applicant entered the United States without inspection in 2004 and has resided in the United States since she was years old. She resides in the United States with her mother, who became a lawful permanent resident in 2014, and U.S. citizen step­siblings. At the time she filed the appeal. the Applicant was months pregnant. In her declaration below, the Applicant expressed that she needed to remain in the United States because she was in a deep depression from things that happened to her in her life and she would not be able to obtain the help she has received from counselors and her family in the United States if she were to live in Guatemala or elsewhere. She stated that she wanted to go to college and join the military. The Applicant's declaration on appeal states that. because she passed the GED exam on the first examination. she is eligible for one year of free college tuition, but needs proof of lawful permanent residency or a work permit to receive those funds. She asserts that she wants to provide a good life for her child and that all of her family, including her mother. lawful permanent resident brother. and her four U.S. citizen step-siblings, are in the United States. She notes that she does not have a relationship with anyone in Guatemala and does not wish to return because she was sexually assaulted by two of her cousins there and is scared because they reside in Guatemala. The Applicant's mother submits a declaration on appeal stating that her daughter and grandchild would have no one to care for them in Guatemala and that. due to her status as a lawful permanent resident, she would be unable to return to Guatemala for extended periods of time to care for the Applicant.

With regard to her juvenile arrests, in her declaration below, the Applicant stated that when she moved with her mother to Indiana at the age of she felt like she had depression and felt all alone. blaming her mother for how she felt. She admits that she started to hang out with the wrong people and did a lot of bad things when she was and years old. She expressed remorse for her actions

3

.

Matter of H-L-L-

and stated that she was scared and did not want to be a snitch with regard to her friends, even fearing that they would hurt her if she did not go along with them. The Applicant claims that she was lucky to have been sent to instead of jaiL which helped her greatly, and taught her not to allow others to influence her actions, and how to deal with her emotions. She described how. in

2014, she was raped at gun point, 1 which instigated her and her family's move to Texas for safety reasons. She noted that she had a hard time after the rape, but that it has gotten better and she is trying to be a better person. The Applicant claimed that as of 2015, she had not been arrested since moving to Texas and her relationship with her family has improved.

In her declaration on appeal, the Applicant expresses remorse for her actions as a juvenile, stating that she has been drug free for nine to ten months and that she is aware that she must remain drug free if she is to reach her goal of attending college. She claims that she does not want to do drugs and will not get in trouble anymore, noting that she needs to do that and work on a career to provide a good life for her child.

In a statement on appeal, the Applicant's mother indicates that the Applicant has changed for the better since her placement at She states that before the placement, the Applicant had such aggression, but is now a responsible and caring individual who wants to work, help at home, and is closer to her family. She notes that the Applicant does not like to leave the house alone and is scared since her 2014 rape. The Applicant's mother also believes that her own 2008 rape and previous abusive relationship severely atlected the Applicant.

A 2014 pre-disposition report stated that the Applicant would benefit from a full medical evaluation to ensure prescription of the correct medication to address her anxiety and depression. which could have been the root of past behavioral issues. Civil Surgeon Medical Examination reports indicate that, in 2015, the Applicant suffered from depression with no harmful behavior and was eventually diagnosed with bipolar disorder with no harmful behavior in 2016.

A letter from the Applicant's therapist submitted on appeal states that from February to August 2016, she received weekly individual and family therapy at and has participated in weekly drug education. drug process, resiliency, self-injury, anger management, trauma (psychoeducation). trauma (process), mindfulness, psychotherapy, and grief therapy groups. The therapist reports that the Applicant has expressed and feels deep remorse for her delinquent actions and is now aware of the root causes of those actions and her drug abuse. She speaks of the Applicant's past sexual and physical abuse, rape, and of witnessing physical abuse of others, explaining that the Applicant is now aware that her need to find a place to belong resulted in her finding solace with a group of individuals who were not a positive influence. The therapist indicates that the Applicant is now aware that her drug abuse was a maladaptive coping strategy for the trauma she has experienced. The therapist notes that the Applicant would be in a potentially harmful and re-traumatizing position if she were in the presence of the family members who abused her, the Applicant requires on-going

1 On appeal, the Applicant submits medical and police records establishing that she was kidnapped and raped in 2014.

4

.

Matter r?f H-L-L-

therapy in the United States, and the Applicant and her mother would be re-traumatized if the Applicant were not permitted to remain in the United States.

On appeal, the Applicant submits evidence that she earned her Certificate of High School Equivalency and completed the drug court program in 2016 and 2016, respectively. She also submits evidence that her performance during probation resulted in its early termination in 2016.

B. Adverse Factors

The adverse factors in this case are the Applicant's multiple juvenile arrests, violent criminal history, drug abuse or addiction, and willful concealment of facts material to her U adjustment application. Between 2012 and 2015, the Applicant was arrested for a number ofjuvenile violations after her admission to the United States as aU nonimmigrant in May 2012:

• In 2012, the Applicant was arrested for battery resulting in bodily injury. criminal recklessness, and intimidation.

• In 2013, the Applicant was arrested for battery resulting in bodily injury. • Later in 2013, the Applicant was arrested for criminal mischief. • In 2013, the Applicant was arrested for robbery. • In 2013, the Applicant was arrested for carrying a handgun without a license.

criminal recklessness, and false information. • In 2014, the Applicant was arrested for conversion. • In 2014, the Applicant was arrested for criminal recklessness, resisting arrest and

auto theft. • In • In

2014, the Applicant was arrested for battery resulting in bodily injury. 2015, the Applicant was arrested for possession ofmarijuana.

The Director found that the Applicant had been arrested on nine occasions and was subject to juvenile detention for a total of 104 days for six of those otTenses. The Director also noted that the Applicant had recently been arrested for and determined to be delinquent for possession of marijuana. On appeal, the Applicant submits copies of police reports corresponding to her arrests and criminal histories.

1. Battery

With regard to the Applicant's 2012 arrest, the corresponding police report reflects that the Petitioner committed an aggravated assault with a knife, resulting in injury, on her mother and aunt. In 2013, the Applicant was adjudicated delinquent and charges of battery resulting in bodily injury, criminal recklessness, and intimidation were dismissed upon completion of a conditional plea agreement, including 18 days and 20 hours in custody.

.

Matter of H-L-L-

The Applicant was arrested for battery resulting in bodily injury on her mother in 2013. In 2013, the Applicant was granted diversion for charges of battery resulting in bodily injury

and the case was closed in 2013 due to a failed diversion as the Applicant was arrested for criminal mischief and robbery at that time.

The Applicant was again arrested for battery, for striking her sister with a remote control, in 2014. However, the charges against her were dismissed because her sister chose not to aid in her prosecution.

2. Criminal Mischief and Robbery

The Applicant was arrested for criminal mischief and robbery only two days after the above­referenced 2013 battery occurred. The corresponding police report for the charge of criminal mischief states that the Applicant threw articles of clothing outside the house and poured bleach over them, and then proceeded to gouge and slash a bedroom door with a knife in her mother's residence. The police report for the robbery charge reflects that the Applicant was involved in a home invasion of a non-family member in which a vehicle had been stolen. Upon completion of probation, including eight days and 12 hours in custody, the charge of criminal mischief against the Applicant was dismissed in 2013. The charge of criminal mischief was found to be true and the charge of robbery was reduced to theft, which was also found to be true. In 2013, the Applicant completed formal probation, drug testing, counseling with substance abuse evaluation and treatment electronic monitoring, a restitution work program and parent monitored curfew for these charges.

In 2014, the Applicant was arrested for criminal mischief. along with resisting arrest and auto theft. The police report indicates that the Applicant was driving a vehicle involved in previous robberies and led police officers in a vehicle pursuit at a high rate of speed, after which she t1ed on foot. Due to the Applicant's departure from the jurisdiction of the court, in 2014, the charges of criminal recklessness and resisting arrest against the Applicant were dismissed upon completion of probation, including 45 days and nine hours in custody and the charge of auto theft was dismissed.

3. Theft and Conversion

The Applicant's Indiana "criminal list history" ret1ects that she was charged with robbery resulting in bodily injury and criminal gang activity in 2013. The charge of robbery was reduced to theft and the criminal gang activity charge was dismissed. In 2013, the charge of theft against the Applicant was dismissed upon completion of probation, including 24 days in custody.

The Applicant made an admission agreement for a 2014 charge of conversion and the case was dismissed with prejudice in 2014.

.

Matter (?f H-L-L-

4. Other Charges

The Applicant's 2013 charges for carrying a handgun without a license. criminal recklessness and false information were rejected by the prosecutor. as it appears from the police report that the individual in possession of the handgun was another individual. However. the police report indicates that the Applicant had been detained in a vehicle containing spent shell-casings and fleeing an area in which gunshots had been heard, was aware that the individual who fired the gun intended to do so into the air in a known residential area, gave false information regarding her identity to police officers, and treated the incident as a joke in the presence of the arresting officers.

5. Violations of Probation or Release

The Applicant's Indiana "criminal list history'' indicates that she failed to meet or violated conditions of release or probation on five occasions between 2013 and 2014.

6. Drug-related Arrest

In 2016, the Applicant plea stipulated to possession of less than 2 ounces of marijuana in violation of 481.121(8)(1) of the Texas Health and Safety Code. As a result she was found delinquent, and placed on 12 months of probation and placement at HCYV.

7. Drug Abuse or Addiction

A 2016 civil surgeon medical examination report diagnosed the Applicant with Class A substance abuse or addiction, noting that, at the time. she was currently under juvenile probation for possession of marijuana.

8. Willful Concealment of Unfavorable Factors

In completing her U adjustment application in 2015, the Applicant only admitted to seven juvenile arrests in Indiana when asked whether she had '·EVER ... been arrested, cited. charged. indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance. excluding traffic violations.'' Below and on appeal, the Applicant does not provide an explanation as to why she did not list her Texas juvenile arrest for possession of marijuana or her 2014 Indiana charge of battery on the U adjustment application. The Applicant, therefore. willfully misrepresented unfavorable factors, material facts relevant to her U adjustment application. Further. she did not reveal her Texas juvenile arrest in her declaration submitted in support of the U adjustment application.

C. Weighing ofthe Factors as an Exercise of Discretion

After review of all the evidence in the record of proceeding. even if not discussed in this decision. we conclude that the Applicant has not shown that she merits a favorable exercise of discretion.

.

Matter of H-L-L-

When determining whether to exercise discretion, courts will consider various factors including: residence and family ties in the United States: hardship upon removal; employment: property and business ties; the nature, underlying circumstances, recency, and seriousness of any criminal record: evidence of rehabilitation: and any other evidence attesting to an individual's character. See 7 USCIS Policy Manual A(9), supra, at (B)(2); see also Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996); Matter o{ Edwards·, 20 I&N Dec. 191, 195 (BIA 1990): Mafler o{ Marin. 16 I&N Dec. 581. 584 (BIA 1978).

On appeal, the Applicant contends that her long residence in the United States, her family here. her remorse and rehabilitation, her young age at the time of her criminal behavior. the trauma she endured, and the poor country conditions in Guatemala are positive factors that the Director did not fully consider.

The Applicant's lengthy residence in the United States. family unity. youth at the time she committed her offenses, remorse, and victimization are favorable factors. However. the adverse factors in this case include the Applicant's multiple juvenile arrests, violent criminal history. her drug abuse or addiction, willful concealment of unfavorable factors, and insufficient evidence of her rehabilitation.

Although the Applicant claimed in her declaration below that her juvenile arrests occurred at the ages of or the record reflects that the Applicant continued to have juvenile arrests through the age of Before the Director, the Applicant claimed that she was remorseful of her juvenile actions, had not been in trouble since leaving Indiana. and would never get in trouble again. The Applicant stated that she had attended therapy and made positive changes in her life. However. the Applicant had been arrested for a new charge of possession of marijuana in Texas less than two months prior to tiling her U adjustment application and concealed such information in her declaration and on the U adjustment application.

While the Applicant claims on appeal that she has spent six months in an intensive residential program and has committed herself to change and overcoming the root of her self-destructive behavior, her Indiana "criminal list history" indicates that she has previously attended court ordered therapy and drug counseling on several occasions prior to moving to Texas. The Applicant does not explain how her most recent therapy is any different from the therapy she received in Indiana. nor does she address why her criminal history reflects a charge of possession of marijuana after she had completed therapy in Indiana that she had previously described as the best thing that ever happened to her and the instigation for her to become a better person that helped her deal with her emotions in a difTerent way.

The Applicant claims as positive factors the completion of her probation and a six month placement at However, these do not represent compelling positive factors for the Applicant as they were required to meet the terms set forth by the court for her juvenile delinquency.

.

Matter qfH-L-L-

Although the Applicant need not establish her admissibility to the United States, whether she has committed acts that would render her inadmissible under section 212(a) of the Act, 8 U.S.C. § 1182(a), are a negative factor to be considered in exercising discretion. 8 C.F.R. § 245.24(d)(ll ). The Applicant is inadmissible under section 212(a)(l )(A)(iv) of the Act for being a drug abuser or addict as designated by a civil surgeon. The Applicanfs level of disregard for the laws of the United States is illustrated by her actions regarding concealment of her Texas juvenile arrest and one Indiana juvenile arrest on her U adjustment application, which constitute willful misrepresentation of material facts relevant to her eligibility for immigration benefits. See section 212(a)(2)(6)(C)(i) of the Act (individuals are inadmissible to the United States for making a willful misrepresentation of a material fact in an attempt to obtain immigration benefits). The Applicant does not address the concealment of her arrests on her U adjustment application on appeal. The Applicant signed the U adjustment application declaring that the contents were true and correct under penalty of perjury.

The Applicant's juvenile delinquencies include the commission of aggravated assault with a knife. destruction of property with a knife, and battery resulting in bodily injury. These violent crimes are particularly grave and serious negative factors in the Applicanfs case. The gravity of the Applicant's actions is illustrated by the fact that, if they had resulted in convictions,2 would constitute serious violent crimes that warrant a clear demonstration that the denial of adjustment of status would result in exceptional and extremely unusual hardship. See 8 C.F.R. § 245.24(d)(11 ). The Preamble to the U adjustment of status rule cites to Matter ofJean. 23 I. & N. Dec. 373 (A. G. 2002). a.fl'd Jean v. Gonzales. 452 F.3d 392 (5th Cir. 2006), regarding the requirement of "exceptional and extremely unusual hardship'' when an applicant's adverse factors are particularly grave. 73 Fed. Reg. 77540, 75549 (Dec. 12, 2008). The exceptional and extremely unusual hardship standard in cancellation of removal cases is identical to the standard put forth by the Attorney General in Matter of.Jean. !d. In Matter olMonreal-Aguinaga, 23 I&N Dec. 56. 62 (BIA 2001), the Board of Immigration Appeals (Board) determined that exceptional and extremely unusual hardship "must be ·substantially' beyond the ordinary hardship that would be expected when a close family member leaves this country.'' The Board stated that in assessing exceptional and extremely unusual hardship, the hardship factors used in determining extreme hardship should be considered and all hardship factors should be considered in the aggregate. /d. at 63-64. While the Applicant contends that she meets the standard of exceptional and extremely unusual hardship. as set forth below, the Applicant's removal from the United States and resulting hardship to her mother are normal hardship factors that are not substantially beyond the ordinary hardship generally expected when a close family member leaves the country.

Even though the Applicant has been victimized in the United States and resided in the United States for more than years, since her admission as a U nonimmigrant she has had repeated contact with law enforcement. Even if the Applicanfs juvenile arrests did not result in convictions. her admission to the United States is not in the public interest because the charges against her and the

2 As noted above, the Applicant's criminal history occurred while she was a juvenile and. therefore. did not result in convictions for immigration purposes.

9

Matter of H-L-L-

underlying circumstances of those charges show that she has a history of disregarding the health and safety of others, as well as the laws of the United States. The Applicant has generally expressed remorse regarding her juvenile arrests, but she has not addressed the circumstances or rehabilitation specific to each of the charges leveled against her. The Applicant claims to have stopped using drugs and now recognizes that she used drugs as a coping mechanism for past trauma and psychological issues. but does not explain how her most recent therapy is any different fi·om the court ordered therapy she previously received. The Applicant contends that her mother. who has already been victimized and cooperated fully with U.S. law enforcement, would be re-traumatized by separation from her. But the Applicant did not submit supporting evidence to establish the role. if any. she played in her mother's recovery from and involvement in the investigation and prosecution of the qualifying criminal activity.

We have considered the Applicant and her baby's welfare. as Guatemala country reports show that it does not have a health care system under which the Applicant and her baby would receive care comparable to what they would receive in the United States. Nor would Guatemala provide comparable psychological care for the Applicant who may require continuing assistance regarding her sobriety and bipolar disorder. However. when viewed in their totality. based upon our discretion, the adverse factors in the present case outweigh the favorable and mitigating factors.

III. CONCLUSION

As the adverse factors outweigh the positive equities, the Applicant has not established that her 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 would be warranted to adjust her status to lawful permanent residency.

ORDER: The appeal is dismissed.

Cite as Maller (~lH-L-L-, 10# 347691 (AAO Oct. 24, 2017)

10