(b)(6)

DATE:

lNRE:

PETITION:

JUL2 3 tD15

PETITIONER:

FILE#: PETITION RECEIPT#:

U.S. Department of Homeland Security U.S. Citizenship and Immigration Service Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090

Petition for U Nonimmigrant Classification as a Victim of a Qualifying Crime Pursuant to Section 101(a)(15)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(U)

ON BEHALF OF PETITIONER:

Enclosed is the non-precedent decision of the Administrative Appeals Office (AAO) for your case.

If you believe we incorrectly decided your case, you may file a motion requesting us to reconsider our decision and/or reopen the proceeding. The requirements for motions are located at 8 C.F.R. § 103.5. Motions must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 days of the date of this decision. The Form l-290B web page (www.uscis.gov/i-290b) contains the latest information on fee, filing location , and other requirements. Please do not mail any motions directly to the AAO.

Thank you,

(J!,on Rosenberg Chief, Administrative Appeals Office

www.uscis.gov

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DISCUSSION: The Director, Vermont Service Center (the director), denied the petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The petitioner seeks nonimmigrant classification under section 101(a)(15)(U) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(U), as an alien victim of certain qualifying criminal activity.

The director denied the petition because the petitioner did not establish that he was the victim of qualifying criminal activity, suffered resultant substantial physical or mental abuse, possesses information concerning the qualifying criminal activity, and has been helpful to authorities investigating or prosecuting qualifying criminal activity. On appeal, the petitioner submits a brief and additional evidence.

Applicable Law

Section 101(a)(15)(U) of the Act provides, in pertinent part, for U nonimmigrant classification to:

(i) subject to section 214(p ), an alien who files a petition for status under this subparagraph, if the Secretary of Homeland Security determines that --

(I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii);

(II) the alien ... possesses information concerning criminal activity described in clause (iii);

(III) the alien ... has been helpful, is being helpful, or is likely to be helpful to a Federal , State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity described in clause (iii); and

(IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessionsof the United States;

Felonious assault is listed as qualifying criminal activity in clause (iii) of section 101(a)(15)(U) of the Act.

According to the regulation at 8 C.P.R. § 214.14(a)(9), the term "any similar activity" as used in section 10l(a)(l5)(U)(iii) of the Act "refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal

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activities." (Emphasis added). The regulation at 8 C.F.R. § 214.14(a)(14) states that the term victim of qualifying criminal activity "generally means an alien who has suffered direct and proximate harm as a result of the commission of qualifying criminal activity."

The eligibility requirements for U nonimmigrant classification are further explicated m the regulation at 8 C.F.R. § 214.14, which states, in pertinent part:

(b) Eligibility. An alien is eligible for U-1 nonimmigrant status if he or she demonstrates all of the following ... :

(1) The alien has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. Whether abuse is substantial is based on a number of factors, including but not limited to: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level[.]

* * * In addition, the regulation at 8 C.F.R. § 214.14( c)( 4) prescribes the evidentiary standards and burden of proof in these proceedings:

The burden shall be on the petitioner to demonstrate eligibility for U-1 nonimmigrant status. The petitioner may submit any credible evidence relating to his or her Form 1-918 for consideration by [U.S. Citizenship and Immigration Services (USCIS)]. USCIS shall conduct a de novo review of all evidence submitted in connection with Form 1-918 and may investigate any aspect of the petition. Evidence previously submitted for this or other immigration benefit or relief may be used by USCIS in evaluating the eligibility of a petitioner for U-1 nonimmigrant status. However, USCIS will not be bound by its previous factual determinations. USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence, including Form 1-918, Supplement B, "U Nonimmigrant Status Certification."

Facts and Procedural History

The petitioner is a native and citizen of El Salvador who claims to have entered the United States in April 2007 without inspection, admission, or parole. 1 The petitioner filed the instant Petition

1 In his statement submitted in response to the director ' s Request for Evidence (RFE), the petitioner corrected the date of his entry listed on the petition from May 1, 2005 to April 2007.

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for U Nonimmigrant Status (Form 1-918 U petition) with an accompanying U Nonimmigrant Status Certification (Form 1-918 Supplement B) on August 7, 2012. On September 24, 2013, the director issued an RFE of, among other things, the requisite qualifying criminal activity, and requested that the petitioner submit a new Form I-918 Supplement B, and a Form 1-192 waiver application to request a waiver of his grounds of inadmissibility. The petitioner responded by filing a personal statement, a Form I-192, a new Form 1-918 Supplement B, and additional evidence, which the director found insufficient to establish the petitioner's eligibility. The director denied the Form I-918 U petition and the petitioner timely appealed.

On appeal, the petitioner asserts that he was a victim of felonious criminal threats which is substantially similar to the qualifying crime of felonious assault.

Claimed Criminal Activity

In his declaration, the petitioner recounted that a bleeding man jumped into his garden, and that he and two others restrained the individual, who was later identified as The petitioner stated that Mr. told them he was a gang boss from the neighborhood and threatened to come back and kill the petitioner and his entire family. 2 When the police arrived, they arrested Mr. for stealing a car and for threatening the petitioner and his family. The record indicates that the petitioner appeared to testify in the criminal proceedings against Mr.

and that Mr. was convicted of a felony under California Penal Code (C.P.C.) § 422, criminal threats. 3

The valid Form I-918 Supplement B submitted into the record was signed by Police Detective Supervisor (certifying official), California Police Department . on December 11, 2013.4 The certifying official listed the criminal activity of which the petitioner was a victim at Part 3.1 as felonious assault. The certifying official's indication at Part 3.1 that the petitioner was the victim of a felonious assault is without support in the record. The only crime certified at Part 3.3 of the Form I-918 Supplement B was C.P.C. § 422 criminal threats and the incident report noted that criminal threats was the criminal activity that was investigated or prosecuted. There is no evidence that the certifying agency investigated an attempted or actual felonious assault against the petitioner, and the certifying

2 The police report indicated that the offense was gang-related. A second person was also arrested, and charged with manufacturing a dirk or dagger. As there is no indication that the

petitioner was the victim of any crime committed by Mr. we will not consider the actions of Mr. in our analysis of the petitioner 's eligibility . 3 CAL. PENAL CODE § 422 (West 2011), Criminal Threats, is a "wobbler" statute, under which a criminal defendant may be charged and convicted of either a misdemeanor punishable by imprisonment in a county jail for not more than one year, or a felony punishable by imprisonment in a state prison. Under CAL. PENAL CODE§ 17 (West 2011), a felony is a crime that is punishable by imprisonment in the state prison. In this case, as the court ordered to be sentenced to the state prison for 16 months, the conviction was a felony. 4 As the validity period of the first Form 918 Supplement B submitted by the petitioner was expired when filed, we will consider only the second Form 918 Supplement B, identified in the accompanying text.

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official does not explain why at Part 3.3 he provided a citation for criminal threats, not felonious assault under California law, if a felonious assault against the petitioner was actually investigated or prosecuted.5 At Part 3.5, which asks for a description of the criminal activity being investigated or prosecuted, the certifying official indicated that the petitioner "detained GTA suspect who then threatened to kill him."6 We recognize that qualifying criminal activity may occur during the commission of a nonqualifying crime; however, the certifying official must provide evidence that the qualifying criminal activity was investigated or prosecuted. Here, the evidence of record does not demonstrate that the crime of felony assault was investigated or prosecuted. At Part 3.6, the certifying official indicated that the petitioner had no known or documented injuries.

Analysis

We conduct appellate review on a de novo basis. Based on the evidence in the record, we find no error in the director's decision to deny the petitioner's Form I-918 U petition.

Criminal Threat Under California Law is Not Qualifying Criminal Activity

The Form I-918 Supplement B, the incident report from the and court records indicate that the offense of criminal threats was investigated and prosecuted. Criminal threats is not specifically listed as a qualifying crime at section 101(a)(15)(U)(iii) of the Act. The C.P.C. § 422.0 defines the offense of criminal threats, in part, as follows:

Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

CAL. PENAL CODE § 422.0 (West 2011). The petitioner asserts that the offense of criminal threats is substantially similar to felonious assault, which is a qualifying crime under section 101(a)(15)(U) of the Act.7 Although the statute encompasses "any similar activity" to the

5 We determine, in our sole discretion, the evidentiary value of a Form 1-918 Supplement B. See 8 C.F.R. § 214.14(c)(4). 6 The police report indicated that the police set up a perimeter for "suspected GT A," which likely refers to grand theft auto in the context of this case. 7 The petitioner requests alternately that we use the definition of felonious assault found at C.P.C. §§ 240 and 245, TEX. CRIM. CODE ANN. § 22.01(a)(2)(2011), and/or CAL. PENAL CODE. §

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enumerated crimes, the regulation defines "any similar activity" as "criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities." 8 C.F.R. § 214.14(a)(9). Thus, the nature and elements of the criminal threats offense must be substantially similar to one of the qualifying criminal activities in the statutorily enumerated list. Jd. The inquiry, therefore, is not fact-based, but rather entails comparing the nature and elements of the statutes in question.

Felonious assault is defined under the C.P.C. § 245(a),8 which provides:

* * * Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

CAL. PENAL CODE § 245(a)(4)(West 2011). In order to prove the elements of felonious assault, each of the following elements must be established: (1) the defendant committed an act that by its nature would directly and probably result in the application of force to a person; (2) the force used was likely to produce great bodily injury; (3) the act was willful; (4) the defendant was aware of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to someone; and (5) the defendant had the ability to apply force likely to produce great bodily injury. See Judicial Council of California, California Jury Instructions (LEXIS 2015), Vol. 1, Chapter 875.

To prove that the defendant is guilty of the offense of criminal threats, the following elements must be established: (1) the defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury; (2) the defendant made the threat; (3) the defendant intended the statement to be understood as a threat; (4) the threat was so clear, immediate, unconditional, and specific that it communicated a serious intention and the immediate prospect that the threat would be carried out; and (5) the threat caused the victim to be in sustained fear for his own safety or for the safety of his immediate family. See Judicial Council of California, California Jury Instructions (LEXIS 2015), Vol. 1, Chapter 1300.

186.22(d)(2011). The statute at TEX. CRIM. CODE ANN. § 22.01(a)(2)(2011), includes a threat of imminent injury in the definition of assault, while the C.P.C. treats those crimes separately. The statute at C.P.C. § 186.22(d) provides a sentence enhancement to simple assault when the crime is committed by a gang member. While Texas law may be instructive, it is not relevant to or binding in this proceeding. In addition, as Mr. was not prosecuted under C.P.C. § 186.22(d), we will not consider the definition of assault found in that statute. We will thus use the C.P.C. definition of felonious assault to determine whether the offense of criminal threats is a qualifying criminal activity. 8 As the criminal defendant did not have a weapon when he made the threat against the petitioner, we will consider the elements of felonious assault at CAL. PENAL CODE § 245(a)(4)(West 2011), which do not require a weapon as an element of the crime.

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The nature and the elements of the statute under which the claimed qualifying criminal activity was investigated and prosecuted, particularly: the communication of an immediate threat to cause great bodily injury; and causing the victim to have sustained fear, are not substantially similar to the nature and the elements of the crime of felonious assault, which requires an act likely to cause serious bodily injury or the infliction of such injury. Neither a threat to do bodily harm nor a victim's fear is an element of felonious assault. The offense of criminal threats is a specific and narrow class of communication, and the expression of an intention to inflict serious evil upon another person. People v. Wilson, 112 Cal. Rptr. 3d 542 (App. 5, Dist. 2010). To constitute a violation of the statute proscribing criminal threats, there is no requirement that a specific crime or Penal Code violation be threatened. People v. Maciel, 6 Cal. Rptr. 3d 628 (App. 2 Dist. 2003).

On appeal, the petitioner asserts that USCIS should accept the certifying official's statement that the petitioner was the victim of qualifying criminal activity under Part 3.1 of the Form I-918 Supplement B. We consider all parts of the Form I-918 Supplement B, along with the police report and other documents related to the criminal investigation and proceedings when determining whether the petitioner was the victim ofqualifying criminal activity. As discussed, C.P.C. § 422 criminal threats is the only crime certified at Part 3.3 of the Form I-918 Supplement B, the incident report noted that criminal threats was the criminal activity that was investigated or prosecuted, the record contains no evidence that the certifying agency investigated felonious assault against the petitioner, and the certifying official does not explain why he provided a citation at Part 3.3 for criminal threats, not felonious assault under California law, if a felonious assault against the petitioner was actually investigated or prosecuted.

The petitioner also asserts that criminal threats in the context of the instant proceedings is substantially similar to felonious assault in that Mr. the gang boss of the territory that includes the petitioner's neighborhood, had the ability to immediately carry out the threat of serious harm, and that criminal activity under both statutes inspires fear. We recognize that an element of the criminal threats statute is the ability to immediately carry out the threat. Nevertheless, the threat of an action in the future, required to establish criminal threats, is different from an act that is likely to cause harm in the present, as required to establish assault. Further, while the criminal threats statute has sustained fear as an element of the crime; the felonious assault statute does not. The petitioner also argues that when a gang member assaults a person in California, the law provides for a sentence enhancement rendering the assault a felony. See, CAL. PENAL CODE§ 186.22(d)(West 2011). The petitioner does not, however, provide an analysis showing how the criminal threats statute is substantially similar to simple assault carried out on behalf of a criminal gang under C.P.C. § 186.22(d). Accordingly, the record does not establish that the petitioner is the victim of qualifying criminal activity, as required by section 101(a)(15)(U)(i)(I) of the Act.

Substantial Physical or Mental Abuse

As the petitioner has not established that he was the victim of qualifying criminal activity, he has also not established that he suffered substantial physical or mental abuse as a result of having

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been a victim of qualifying criminal activity, as required by section 101(a)(15)(U)(i)(I) of the Act. According! y, we shall not further address this issue.

Possession of Information Concerning Qualifying Criminal Activity

As the petitioner has not established that he was the victim of a qualifying crime or criminal activity, he has also not established that he possesses information concerning such a crime or activity, as required by subsection 101(a)(15)(U)(i)(II) of the Act.

Helpfulness to Authorities Investigating or Prosecuting the Qualifying Criminal Activity

As the petitioner has not established that he was the victim of a qualifying crime or criminal activity, he has also not established that he has been, is being or is likely to be helpful to a federal, state, or local law enforcement official, prosecutor, federal or state judge, or other federal, state or local authorities investigating or prosecuting qualifying criminal activity, as required by subsection 101(a)(15)(U)(i)(III) of the Act.

Conclusion

The petitioner has not demonstrated that he was a victim of qualifying criminal activity, as required by subsections 101(a)(15)(U)(i) and (iii) of the Act. Accordingly, he has not demonstrated that he meets the remaining eligibility requirements for U nonimmigrant status. See subsections 101(a)(15)(U)(i)(I)-(IV) of the Act (requiring qualifying criminal activity for all prongs of eligibility). In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met.

ORDER: The appeal is dismissed. The petition remains denied.