By Sarah Bronstein
U nonimmigrant status is available to individuals who have been the victims of certain criminal activity in the United States. In order to meet the eligibility requirements, the crime must fall under the definition set forth in INA § 101(a)(15)(U)(iii). The INA definition lists 28 qualifying crimes and the attempt, conspiracy or solicitation to commit any of those crimes, and any “similar activity.” Advocates have long argued that these listed offenses should be viewed as categories of offenses rather than specific required offenses. It is important to remember that each state has its own way of labeling and defining criminal offenses. In addition, practitioners have advocated that the “any similar activity” language should be viewed broadly.
On January 22, 2015, the Administrative Appeals Office (AAO) issued a decision interpreting qualifying criminal activity for U nonimmigrant status. While not a precedent decision, this decision from the AAO gives an indication of its thinking on the issue of qualifying criminal activity. In this case, the AAO reviewed the USCIS decision to deny the U nonimmigrant petition of a person who had been the victim of robbery under Texas Penal Code section 29.02. In its denial of the I-918 petition for U nonimmigrant status, USCIS found that while the petitioner had established that he had suffered substantial mental abuse as a result of criminal activity, robbery under Texas law is not similar to felonious assault or any other qualifying crime. On appeal, the petitioner asserted that he was the victim of robbery by assault, which is substantially similar to the qualifying crime listed in the statute as felonious assault.
In analyzing this case, the AAO looked at whether robbery under the Texas Penal Code is similar to the qualifying crime of felonious assault. The AAO did not take the approach of looking at whether robbery falls under the “category” of felonious assault. The regulations define 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 CFR § 214.14(a)(9). The AAO emphasizes that in order to determine whether the Texas robbery statute is substantially similar to felonious assault, one must look at the language in the statutes involved, rather than the actual facts of the case.
In order to conduct this analysis, the AAO compares the definition of robbery under Texas law with the definition of felonious assault. Because there is no one definition of felonious assault across the 50 states, and many states call such an offense by a different name, the AAO looks to the definition of aggravated assault in the Model Penal Code. The Model Penal Code was developed in an effort to encourage states to adopt more uniform criminal laws. While it is not binding on any one jurisdiction, it serves as a guide to generally accepted definitions of offenses.
The AAO decision examines the language in the Texas Penal Code and the Model Penal Code. Texas Penal Code § 29.02 states that a person commits robbery when “if, in the course of committing theft…and with intent to obtain or maintain control of the property, he: 1) intentionally, knowingly, or recklessly causes bodily injury to another; or 2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” Model Penal Code § 211.1(2) states that “a person is guilty of aggravated assault if he: (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempt to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.” The AAO concludes that because the Texas statute involves causing bodily injury while committing theft and the Model Penal Code aggravated assault statute also involves causing bodily injury, these statutes are substantially similar. The AAO therefore finds that the crime of which the petitioner was a victim was a qualifying crime for purposes of U nonimmigrant status eligibility.
The AAO remanded this case to USCIS for adjudication of the petitioner’s request for a waiver of certain grounds of inadmissibility. USCIS denied the petitioner’s waiver solely because it denied the U nonimmigrant status petition without reaching the merits of the waiver request.
While some advocates have stressed that practitioners should argue that the criminal activity involved in a particular case fits into one of the enumerated categories of crimes in the INA, this decision shows that the “any similar activity” language in the statute should not be discounted. In a case such as this where the crime involved does not clearly fall within one of the listed crimes, advocates may want to make both arguments.