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U.S. Citizenship and Immigration Services

MATTER OF A-I-P-S-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAR. 9, 2017

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

The Applicant seeks to become a lawful permanent resident based on his "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 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 Applicant is a citizen of Mexico and entered the United States without inspection, admission, or parole at the age of The record shows that the Applicant suffers from mental illness and that he was a victim of severe domestic violence. The Director of the Vermont Service Center approved the Form I-918 Supplement A, Petition for Qualifying Member of U-1 Recipient that the Applicant's mother filed on his behalf. The Applicant subsequently tiled the Form 1-485, Application to Register Permanent Residence or Adjust Status (U adjustment application).

The Director denied the U adjustment application, concluding that the Applicant had not submitted a complete response to her Request for Evidence, and that his juvenile offenses for vehicle theft, ·multiple probation violations, and an arrest for obstructing a peace officer were significant negative factors and outweighed the positive equities. The Director determined that the Applicant's continued presence in the United States was not justified on humanitarian grounds, to ensure family unity, or was otherwise in the public interest.

On appeal, the Applicant submits juvenile records, school and medical records, and letters of support, and claims that the additional evidence establishes that a favorable exercise of discretion is warranted. We have reviewed all of the evidence in the record of proceedings.

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Upon de novo review, we will dismiss the appeal.

I. LAW

Section 245(m) of the Act makes adjustment of status of an individual admitted into the United States under section 10l(a)(15)(U) a discretionary benefit. The benefit may be granted it~ "in the opinion of the Secretary of Homeland Security, the alien's continued presence in the United States is

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justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest." The Applicant bears the burden of showing that discretion should be exercised in his favor. 8 C.F.R. § 245.24(d)(ll). U.S. Citizenship and Immigration Services (USCIS) may consider all factors when making its discretionary decision on the application. !d. Generally, favorable factors such as family ties, hardship, and length of residence in the United States may be sufficient to merit a favorable exercise of administrative discretion. However, where adverse factors are present, the applicant may submit information regarding any mitigating factors they would like users to consider when determining whether a favorable exercise of discretion is appropriate. ld. Depending on the nature of an applicant's 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. I d.

II. ANALYSIS

On appeal, the Applicant does not overcome the concerns of the Director. We will dismiss the appeal for the following reasons.

A. Adverse Factors

The Applicant has admitted to three felony offenses, three misdemeanor offenses, and multiple probation violations in the California juvenile courts. All of the juvenile offenses occurred after the Applicant was granted U-3 nonimmigrant status. In Miguel Devison-Charles, 22 I&N Dec. 1362 (BIA 2000), the Board of Immigration Appeals (BIA) stated, "[w]e have consistently held that juvenile delinquency proceedings are not criminal proceedings, that acts of juvenile delinquency are not crimes, and that findings of juvenile delinquency are not convictions for immigration purposes." Devison-Charles at i365; see also }vfatter of De La Nues, 18 I&N Dec. 140 (BIA 1981); Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981). Nevertheless, while acts ofjuvenile delinquency are not criminal convictions, juvenile offenses may be considered in reviewing an application for a discretionary benefit, such as adjustment of status. Wallace v. Gonzales, 463 F.3d 135 (2d Cir. 2006); see 8 C.F.R. § 245.24(d)(11).

The Applicant admitted to violating Cal. Vehicle Code section 10851, vehicle theft, a felony, and subsequently admitted to violating a second count of vehicle thett under Cal. Penal Code section 496, a felony, when he was years old. The arresting officer' s report indicated that, although the Applicant was not the driver of the vehicle, he knew the car was stolen, tled the scene on foot, and was uncooperative during his arrest. The juvenile court declared the Applicant to be a ward of the court, placed him on probation, and ordered him to pay restitution and perform 20 hours of community service.

After numerous violations of probation, the Applicant was committed to the custodial care of the probation department. His case managers subsequently referred him to two successive psychiatric treatment facilities, where the medical staff gave the Applicant a primary diagnosis of Psychotic Disorder NOS and a secondary diagnosis of cannabis dependence, alcohol dependence, and cocaine abuse. In addition, the medical staff was "unable to rule out a diagnosis of Schizophrenia, Paranoid

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Type, and Cocaine-Induced Psychotic Disorder." The 2014 probation report describes the Applicant's probation violations included verbal and physical abuse of the medical staft~ sexual assault, throwing items, banging his head against the wall, and his claim to have used cigarettes, alcohol, cocaine, heroin, ETOTH, balloons, and cough syrup daily since he was years old.

The Applicant admitted to violating Ca. Vehicle Code section 12500(a), driving without a license, a misdemeanor, Cal. Penal Code section 242, battery, a misdemeanor, and Cal. Penal Code section 243.9(a), battery by gassing, a felony.' The juvenile court continued the Applicant as a ward of the court, and ordered him to comply with terms and conditions of probation and to participate in intensive care services, substance abuse counseling, and high school supervision. The Applicant admitted to violating the terms of probation in that he did not consistently take drug tests, meet with his probation officer, attend school, and participate in substance abuse counseling, as required. The court ordered 22 days' detention, 8 hours of community service, and continued the terms and conditions of probation.

The Applicant later admitted to again violating the provisions of Ca. Vehicle Code section 12500(a), driving without a license, a misdemeanor. The court dismissed the charges brought under Cal. Vehicle Code section 2800.1, flight from a pursuing police officer while driving, a misdemeanor, and Cal. Penal Code section 148(a)(1), false representations to a police officer.2 The juvenile court ordered that the Applicant be confined to secure custody for a maximum period of 3 Yz years.

The most recent probation officer's report in the record dated in 2016 indicates that the Applicant does not attend many of his counseling sessions, meetings with his probation officer, and school classes, and that the Applicant has made little progress. The probation officer states that the Applicant is at "imminent risk" of being removed from the care of his mother, and further that:

[T]he [Applicant] has had 14 dispositional hearings in less than 3 years. He has displayed a pattern of delinquent behavior as evidenced by numerous vehicle code violations, multiple acts of aggression and violence and habitual noncompliance with his court ordered terms and conditions .. . .

The probation officer also reports that the Applicant sent an unwanted, sexually explicit photograph to a female on social media, which incident is under investigation, and that the Applicant scores a "high risk" of recidivist behavior.

1 The probation officer's report states that, with respect to the battery charge, the Applicant hit a fellow juvenile on the head multiple times. The battery with gassing charge followed the Applicant's throwing a cup of his urine at a detention officer. 2

The arresting officer' s report indicates that the Applicant used all lanes of traffic to evade officers, almost causing multiple collisions, and that he reached speeds of 70 miles per hour in the slow lane before stopping on the shoulder. On appeal, the Applicant ' s mother states that before this incident, she and the Applicant had a fight, and that he was very upset.

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B. Favorable and Mitigating Factors

The Applicant submitted below letters of support and a certificate of completion for successful completion of six weekend workshops. R-B-, an attorney who successfully advocated for the Applicant's recent placement in special education services for the first time, stated that the Applicant was not violent and deserved a second chance to reverse the negative effects of past trauma and unmet mental health needs. Letters from A-R-S- and J-M-C-, the Applicant's jobs counselor and case manager, respectively, at the stated that the Applicant was respectful, a hard worker, and would be an asset to the United States.

On appeal, the Applicant submits letters from his mother, C-S-,3 his mother's boyfriend, H-A-, a friend, and his juvenile attorney, a certificate of completion for the 1 , receipts for payment of restitution, and school records showing that the Applicant has an Individualized Education Program (IEP). C-S- requests that we consider her statement in lieu of a statement from the Applicant. She states that the Applicant witnessed his father's physical violence toward her, and throughout his childhood, he repeatedly tried to protect her from the violence and was himself a victim of the violence. She states that the Applicant understands that his actions from the past have affected his current circumstances, and that he is remorseful, as indicated by his payment of partial restitution for the vehicle theft. She states that he has lived in the United States since he was years old, and that she has no idea what would happen to him alone in Mexico.

L-G-, who states that her office represented the Applicant in juvenile court, observes that the Applicant has made significant improvements in the past year, attends weekly therapy, and a therapeutic high school that offers mental l:tealth and job placement support. She states that violations of probation are common in juvenile cases, particularly for those who, like the Applicant, have mental challenges. H-A- states that he has lived with the Applicant for 3 years and that the Applicant does not currently use drugs. H-A- describes the Applicant as studious, a hard worker, and responsible. J-M-, a friend of the Applicant's mother, states that the Applicant is making an effort to successfully complete the terms of his juvenile probation.

The Applicant's IEP states that the Applicant is pleasant, respectful and kind, and "makes an effort to do what is expected." The report describes instances of emotional instability and hallucinations that the Applicant has little control over and cannot let go of. The IEP outlines an accommodation plan for the Applicant with the goal of a high school diploma by December 2016. The record reflects that the Applicant currently participates in 1 high school, and that he has exhibited improved behavior and attendance since his referral to The record further shows that the Applicant currently receives the county's most intensive services, and that he has· been referred to for individual clinical case management, psychiatric medication management, peer advocate support, weekly psychoeducation groups, and monthly suppoti groups for the Applicant's family. The record

3 Initials are used in this decision to protect the individuals' privacy.

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additionally establishes that the Applicant has submitted negative urinalysis test results over the last 6 months.

C. Weighing the Factors as an Exercise of Discretion

The adverse factors include the Applicant's adjudications ofjuvenile delinquency for two counts of felony theft of a vehicle, felony battery with gassing, a misdemeanor battery offense, two misdemeanor offenses for driving without a license, and numerous violations of probation. The Applicant is a ward of the juvenile court, and is still serving probation. Full restitution for the vehicle theft has not been paid. The probation officer's 2016 repot1 shows that the Applicant has a high risk for recidivism, and has made little progress despite receiving the maximum care offered for juveniles. The Applicant's lack of rehabilitation is a significant negative factor.

The Applicant's documented mental illness, past trauma, and access to continued medical care in California is viewed as a positive humanitarian factor. We also view favorably the Applicant's 6 months of negative drug tests, lack of a criminal history as an adult, and his residence in the United States since he was years old. Other favorable and mitigating factors include the Applicant's payment of partial restitution, the support of his mother and her boyfriend, his mother's and sister' s status as lawful permanent residents in the United States, his successful completion of and weekend workshops, improved behavior since his referral to efforts to comply with medication management, school rules, and the terms of probation, and the support of his attorneys, other professionals, and a family friend.

III. CONCLUSION

When viewed in their totality, the adverse factors in the present case outweigh the favorable and mitigating factors. Further, while the record establishes the Applicant's mental illness, it does not show that the denial of his adjustment of status would result in exceptional and extremely unusual hardship. Accordingly, the Applicant has not demonstrated that his adjustment of status is warranted for humanitarian reasons, for family unity, or is otherwise in the public interest.

ORDER: The appeal is dismissed.

Cite as Matter of A-1-P-S-, ID# 150919 (AAO Mar. 9, 20 17)

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