(b)(6)

MATTER OF A-R-M-

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 1, 2017

MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION

APPLICATION: FORM I-601, APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

The Applicant, a native and citizen of Jamaica, seeks a waiver of inadmissibility for a crime involving moral turpitude. See Immigration and Nationality Act (the Act) section 212(h), 8 U .S.C. § 1182(h). A foreign national seeking to be admitted to the United States as an immigrant or to adjust status to lawful permanent residence must be admissible or receive a waiver of inadmissibility. U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver if refusal of admission would result in extreme hardship to a qualifying relatiye or qualifying relatives.

The Director, Nebraska Service Center, denied the application, concluding that the Applicant was not statutorily eligible for a waiver of inadmissibility under section 212(h) of the Act because he had been convicted of an aggravated felony conviction following his admission to the United States as a lawful permanent resident. On appeal, we determined that the Applicant had been convicted of a crime ofviolence, constituting an aggravated felony under section 101(a)(43)(F) ofthe Act, 8 U.S.C. § 1101(a)(43)(F), after having been admitted as a lawful permanent resident. Accordingly, we concluded that he was ineligible for a section 212(h) waiver.

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The matter is now before us on a motion to reconsider. On motion, the Applicant submits a brief, asserting that he was not convicted of an aggravated felony, and therefore, is not statutorily ineligible for section 212(h) waiver. He further maintains that he is otherwise eligible for the waiver because the record establishes that: (1) his qualifying relatives would suffer extreme hardship if he were denied the waiver; and (2) he merits the waiver in a favorable exercise of discretion.

Upon review, we will deny the motion to reconsider.

I. LAW

The Applicant is seeking to adjust status to that of a lawful permanent resident, and has been found inadmissible for having been convicted of a crime involving moral turpitude under section 212(a)(2)(A)(i)(l) of the Act. Specifically, in 1992, the Applicant was convicted of extortion in violation of section 750.213 of the Michigan Compiled Laws.

Matter of A-R-M-

Individuals found inadmissible under section 212(a)(2)(A) of the Act may seek a waiver of , inadmissibility under section 212(h) of the Act. Section· 212(h) of the Act provides for a discretionary waiver where the activities occurred more than 15 years before the date of the application if admission to the United States would not be contrary to the national welfare, safety, or security of the United States, and the foreign national has been rehabilitated (Section 212(h)(l)(A)); 1 or if denial of admission would result in extreme hardship to a United States citizen or lawful permanent resident spouse, parent, son, or daughter (Section 212(h)(1)(B)). A waiver under section 212(h) of the Act is not available "in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony."

Decades of case law have contributed to the meaning of extreme hardship. The definition of extreme hardship "is not ... fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case." Matter of Cervantes-Gonzalez. 22 I&N Dec; 560, 565 (BIA 1999) (citation omitted). Extreme hardship exists "only in cases of great actual and prospective injury." Matter of Ngai, 19 I&N Dec. 245, 246-47 (BIA 1984). An applicant must demonstrate that claimed hardship is realistic and foreseeable. !d.; see also Matter of' Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968) (finding that the respondent had not demonstrated extreme hardship where there was "no showing of either present hardship or any hardship ... in the foreseeable future to the respondent's parents 'by reason of their alleged physical defects"). The

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common consequences of removal or refusal of admission, which include "economic detriment ... [,] loss of current employment, the inability to maintain one's standard of living or to pursue a chosen profession, separation from a family member, [and] cultural readjustment," are insufficient alone to constitute extreme hardship. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996) (citations omitted); but see Matter of Kao and Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which the qualifying relatives would relocate). Nevertheless, all "[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994) (citations omitted). Hardship to the Applicant or others can be considered only insofar as it results in hardship to a qualifying relative. Matter of Gonzalez Recinas, 23 I&N Dec. 467, 4 71 (BIA 2002).

II. ANALYSIS

The Applicant does not contest the finding of inadmissibility for a crime invol~ing moral turpitude, a determination supported by the record. The issues presented on motion are whether the Applicant's conviction is an aggravated felony statutorily barring him from establishing eligibility for a section 212(h) waiver, and if not, whether he has established the requisite extreme hardship to his qualifying relatives and shown that he merits the waiver in a favorable exercise of discretion.

1 As the Applicant's waiver application under section 212(h) is denied on discretion here, we need not specifically consider the Applicant's eligibility under section 212(h)( I )(A) of the Act.

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(b)(6)Matter of A-R-M-

The Applicant was admitted to the United States as a lawful permanent resident in December 1972 when he was a minor. He was arrested in . 1991 and was charged with kidnapping and extortion, as well conspiracy to those offenses, and convicted of extortion in 1992, for which he was sentenced to 6 to 20 years imprisonment. The Applicant was initially released from criminal custody in 1996, but was rearrested for a violation of his parole. The Applicant's extortion conviction rendered him inadmissible for a crime involving moral turpitude. Consequently, he was placed into removal proceedings in 2006 when he sought admission to the United States as a returning lawful permanent resident. An Immigration Judge ordered his removal in 2009·. In 2011 the Board of Immigration Appeals dismissed his appeal and denied a subsequent motion. The Applicant was removed from the United States in 2011 to Jamaica, where he currently resides. He now seeks admission to the United States as a lawful permanent resident based on a new approved visa petition by his U.S. citizen spouse and requires a section 212(h) waiver of inadmissibility for a crime involving moral turpitude. 1

Upon de novo review, we conclude that the Applicant ' s conviction for extortion is not an aggravated felony, and therefore, does not statutorily bar him from establishing eligibility for a section 212(h) waiver. Nevertheless, the record does not demonstrate that the Applicant merits the waiver under section 212(h) under a favorable exercise of discretion.

A. Aggravated Felony

The Applicant was convicted of extortion under section 750.213 of the Michigan Compiled Laws after having been lawfully admitted to the United States as a lawful permanent resident in 1972. Pursuant to section 212(h) of the Act, he is not statutorily eligible for a waiver of inadmissibility under that provision if his 1992 conviction for extortion constitutes an aggravated felony. In our prior decision, we withdrew the Director's determination that the Applicant's conviction was an aggravated felony under section 10l(a)(43)(G) of the Act, relating to theft offenses for which the term of imprisonment is at least 1 year, and under section 101(a)(43)(H) of the Act, relating to offenses described in sections 875, 876, 877, or 1202 of title 18 of the United States Code (relating to the demand for or receipt of ransom). However, we concluded that the extortion under section 750.213 was an aggravated felony pursuant to section 101(a)(43)(F) of the Act, as "a crime of violence (as defined in section 16 of title 18, United States Code) for which the term of imprisonment is at least 1 year." We now withdraw our determination and conclude that the Applicant's conviction is not a crime of violence.

A crime of violence for purposes of an aggravated felony determination under the Act is defined as an offense that has as an element, "the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 16(a).2 This definition is identical in pertinent part to that of the

2 Subsection (b) of 18 U.S .C. § 16 defines crime of violence as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit), the jurisdiction under which this matter arises, has held that section 16(b) of title 18 of the United States Code is void for vagueness. Shuti v. Lynch,

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Matter of A-R-M-

term "violent felony" under the American Career Criminal Act (ACCA) at 18 U.S.C. § 924(e)(2)(B)(i). In making a determination as to whether an offense constituted a "violent felony" for sentencing purposes under the ACCA, the U.S. Supreme Court determined that the offense must require, as an element of the offense, "physical force" that is "violent" or "force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2011). The Board of Immigration Appeals (Board) subsequently adopted the U.S. Supreme Court's definition of "physical force" to the definition of a crime of violence under 18 U.S.C. § 16( a). Matter o,(.Guzman-Polanco. 26 I&N Dec. 713, 715-16 (BIA 2016); Matter a,( Velasquez, 25 I&N Dec. 278, 282-83 (BIA 2010). The Sixth Circuit later also applied the Johnson Court's definition of "physical force" in the context of a "crime of violence" under 18 U.S.C. § 924(c)(3), which provides a definition identical to that under 18 U.S.C. § 16(a). United States v. Rajidi, 829 F.3d 437, 445 (6th Cir. 2016)? Accordingly, we conclude that the Applicant's conviction for extortion in Michigan constitutes an aggravated felony only if it requires physical, violent force as an element of the offense.

Extortion under section 750.213 of the Michigan Compiled Laws, at the time of the Applicant's 1991 arrest, provided in pertinent part;

Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another o.f any crime or offense. or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, w~fe or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the perso'n so threatened to do or refrain from doing any act against his will, shall be guilty o(a felony, punishable by imprisonment in the state prison not more than 20 years or by a fine of not more than 10,000 dollars.

(Emphasis added). A crime of extortion under section 750.2B of the Michigan Compiled Laws is completed when, in addition to the other elements of the offense, a defendant maliciously threatens to accuse another of any crime or offense, or threatens injury to the person or property or mother, father, spouse, or child of another. See People v. Harris, 845 N.W.2d 477, 483 (Mich. 2014) (setting for the elements of extortion under section 750.213). In our prior decision on appeal, we concluded that the Michigan statute here was divisible because this element of the offense included both conduct constituting a crime of violence, "maliciously threaten any injury" to a person or property, and conduct that would not, "maliciously threaten to accuse another of any crime or offense." Accordingly, we determined that the Michigan extortion statute was divisible, and applying the modified categorical approach, we examined the record of conviction to conclude that the Applicant had been convicted of maliciously threatening to injury another. 4 We therefore determined that the

828 F.3d 440, 446-51 (6th Cir. 2016). We therefore do not consider whether the Applicant's conviction is a crime of violence under 18 U.S.C. § 16(b). 3 See Matter of Guzman-Polanco, 26 I&N Dec. 806, 807 (BIA 2016) (clarifYing its earlier decision in same proceeding but noting that, given the split in the circuits on the issue, controlling circuit court law should apply). 4 The Sixth Circuit generally applies the categorical approach and focuses on the statutory definition of the offense in determining whether an offense constitutes a crime of violence. Rajidi, 829 F.3d at 444; United States v. Covington, 738

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Matter of A-R-M-

Applicant's conviction for extortion was a cnme of violence under the modified categorical approach.

However, as noted, the Board has specifically held that in making a crime of violence determination, the definition of the term at 8 U.S.C. § 16(a) requires that the offense have, as an element, "the use, attempted use, or threatened use of physical force," which is defined as violent force or "force capable of causing physical pain or injury to another person." See Matter a_[ Guzman-Polanco. 26 I&N Dec. at 715-16; Matter of Velasquez, 25 I&N Dec. at 282-83. Although we previously concluded that extortion constituted a crime of violence where an individual committed the offense of extortion by maliciously threatening injury to another, our examination did not specifically consider whether "physical force" was a required component of this element. Our review here demonstrates that a conviction under section 750.213 does not require physical, violent force capable of causing physical pain force, even where the offense is committed through a malicious threat of injury. See Guzman­Polanco, 26 I&N Dec. at 717 (finding that physical injury is not sufficient to establish the use of physical force required under 18 U.S.C. § 16(a)). Further, case law indicates that the Michigan statute does not require that the threatened injury be a physical injury. See, e.g.. Nali v. Phillips, 681 F.3d 837, 848 (2012) (finding that the malicious threat was damage to the victim's reputation). Accordingly, we conclude that the element of an extortion offense under section 750.213 requiring that a defendant "maliciously threaten any injury" includes conduct that falls outside the definition of a crime of violence under 18 U.S.C. § 16(a). Consequently, the full range of conduct punishable under this element of section 750.213 does not fall within the definition of crime of violence, so that the statute is not divisible and does not warrant a modified categorical inquiry. The Applicant's conviction for extortion is therefore categorically not a crime of violence and does not statutorily bar him from establishing eligibility for a section 212(h) waiver. Nonetheless, the Applicant's waiver application must be denied, as the record does not otherwise establish his eligibility for a waiver under section 212(h) ofthe Act.

B. Waiver

Although the Applicant's conviction does not render him statutorily ineligible for a section 212(h) waiver, he must still demonstrate that denial of the waiver application would result in extreme hardship to his U.S. citizen spouse and son and that he merits a waiver in the exercise of discretion. 5

The record does not establish that he merits the waiver in an exercise of discretion.

F.3d 759 (6th Cir. 20 14). Under this approach, an offense qualifies as a crime of violence if and only if the full range of conduct covered by the criminal statute falls within the meaning of that term. See Taylor v. United States, 495 U.S. 575, 600 (1990). However, where the statute is divisible because it "sets out one or more elements of the offense in the alternative" such that it could be violated in a way that would constitute a crime of violence and in a way that it would not, the Sixth Circuit applies the modified categorical approach. See id. The modified categorical approach allows courts to look beyond the statutory language to examine a limited set of documents to determine whether the conviction necessarily depended on the commission of a crime of violence. See id. 5 The Applicant also asserts extreme hardship to his lawful permanent resident mother. In addition, the record indicates that the Applicant also has two adult U.S. daughters who are also qualifYing relatives. Given our determination of extreme hardship for his spouse and minor son, we need not reach the issue of hardship to his other qualifYing relatives,

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(b)(6)

Matter of A-R-M-

1. Extreme Hardship

In support of his hardship claim to his qualit)ring relatives, the Applicant has submitted a personal statement; personal statements from his U.S. citizen spouse, his lawful permanent resident mother, and his spouse's cousin; a letter from his spouse's and his son's therapist; financial records; flight records of the Applicant ' s spouse's travel to Jamaica; a 2009 literacy program letter for the Applicant; and a copy of his daughter' s college degree. In addition, the Applicant submitted a police clearance record from Jamaica. The record also includes the record of the Applicant's removal proceedings before the Immigration Court. We have considered all the evidence.

The Applicant asserted in his statement below that his spouse has had to raise his son as a single parent since his removal from the United States and is on the verge of a breakdown. He stated that his spouse is working full time to support their son, as well as her daughter from a prior marriage, in addition to assisting him with his monthly living expenses. The Applicant asserted that his spouse is also providing some financial assistance to his two adult daughters from his prior relations~ip and is helping care for his own mother in the United States, who is ill and is requiring more and more assistance. He recounted the difficulties his spouse is facing with their teenage son, who has an anger management issues, and noted that his spouse has been receiving therapy and is taking anti­depressant medication as a result of the hardships she has faced ~jnce his removal. Further aggravating these problems, the Applicant claimed that his spouse's mother, with whom she had a close relationship, passed away after the Applicant was removed to Jamaica. The Applicant's spouse, in her statement, confirmed their son 's changed and aggressive behavior and the adverse impact of separation on him due to his father ' s removal from the United States. She stated that the couple's son receives counseling, and the record includes a corroborating letter from

, LMSW, ACSW, indicating that he provides counseling to both the Applicant' s spouse and son. The Applicant's spouse stated that she finds herself crying over anything, has gained weight, and is taking anti-depressants since the Applicant's removal. She recalled that she was only able to get through her mother's funeral because of her close friends and family, but had really needed her spouse's support during that period. She asserted that the Applicant is her soulmate and that though she and her son have been able to visit him in Jamaica in the past, she cannot afford to take their son there often. She stated that she is unwilling to uproot her son from a good school and his life in the United States to relocate to Jamaica. The Applicant ' s spouse stated that in addition to caring for her son, she is the primary income earner in her family and sends money to the Applicant to help him with his expenses as well. She claimed that she is close to retirement and cannot transfer her employment to Jamaica. Considering the totality of the evidence, we find that the Applicant has demonstrated the requisite extreme hardship to his qualifying relative spouse and son.

2. Discretion

We now consider whether the Applicant merits a waiver of inadmissibility as a matter of discretion. The burden is on the Applicant to establish that a waiver of inadmissibility is warranted in the

particularly as the record does not corroborate hardship to the Applicant' s mother and daughters.

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(b)(6)Matter of A-R-M-

exercise of discretion. Matter of Mendez-Moralez, 21 I&N Dec. 296, 299 (BIA 1996). We must balance the adverse factors evidencing the Applicant's undesirability as a lawful permanent resident with the social and humane considerations presented to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. I d. at 300 (citations omitted). The adverse factors include the nature and underlying circumstances of the inadmissibility ground(s) at issue, the presence of additional significant violations of immigration laws, the existence of a criminal record, and if so, its nature, recency and seriousness, and the presence of other evidence indicative of bad character or undesirability. I d. at 301. The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where residency began at a young age), evidence of hardship to the foreign national and his or her family, service in the U.S. Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to good character. !d.

On motion, the Applicant asserts that a balancing of the favorable and adverse factors demonstrate that he merits a favorable exercise of discretion on his waiver application. He asserts that his conviction occurred more than 24 years ago and that he' has attempted to get his life back on track to inspire his children. He maintains that his return to the United States would alleviate the financial and emotional burden on his family resulting from their forced separation from him.

Although the Applicant's conviction for extortion occurred more than 20 years ago and the record does not disclose any subsequent arrests or convictions, we do not find that the favorable considerations in this case, including the Applicant' s significant family ties and the hardship they would experience, outweigh the serious negative factor of his conviction for extortion. Although the Applicant asserted in the proceedings below that he is remorseful for his "bad decision that led to the criminal activity" and conviction, his statement minimizes his criminal acts by attributing his conduct to his use of drugs and his youth and by asserting that he had only sought to pay off a debt of a couple hundred dollars by "picking up a packet for a friend." The underlying criminal records show, however, that the "packet" he picked up contained $200,000 in ransom money in exchange for an individual that his acquaintances had kidnapped and assaulted. Additionally, although the Applicant asserts that he was only years old at the time of his arrest, the record shows that he was in fact almost 30 years old at the time. Moreover, as reflected in the underlying court and parole records and the Applicant's testimony in his removal proceedings, the Applicant also acknowledged that his use of illegal drugs, including cocaine, heroin, and marijuana, played a role in his criminal acts. However, although his statement refers to his past use of illegal drugs, he does not address whether he has rehabilitated and he does not provide any corroborating documentation of rehabilitation, including evidence that he successfully completed · drug treatment programs. This is significant as our review discloses that during his removal proceedings in 2009, he falsely testified that he had not used any illicit narcotics in 13 years, when in fact , according to his spouse ' s testimony, he did not stop using marijuana until December 2008, after he had already been in removal proceedings for weB over a year.

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(b)(6)

Matter of A-R-M-

The Applicant, who has resided in Jamaica since 2011, also asserted in his statement that he has been "employed continuously" since his conviction and is now a responsible, mature role model. However, his assertion is inconsistent with his continued use of marijuana for well over a decade after his release from incarceration and with his 2009 immigration court testimony in which he admitted to not having been employed since 2003. Moreover, the Applicant has not submitted any documentary evidence of his employment in the United States or in Jamaica since 2003. Apart from a letter from the indicating that the Applicant had no record of convictions in Jamaica, the Applicant has not addressed in any probative detail, or proffered documentary evidence about, his life and activities in Jamaica during the 5 years since his removal from the United States. The record also includes statements from the Applicant's spouse and mother. The Applicant's spouse asserted that the Applicant works in Jamaica, but that his jobs are not comparable to the ones he had in the United States. She stated that she has to send him approximately $400 per month to help him cover his living expenses. The Applicant's mother claimed that her son became a humble man after his release from incarceration and has remained a faithful, hardworking, and responsible role model. She stated that the Applicant supported her physically, emotionally, and economically. However, the record indicates that both the Applicant's spouse and mother have resided in the United States separately from the Applicant since his removal, and aside from general assertions about his character and life, neither address in any probative detail the Applicant's past drug use, rehabilitation, employment, and his life in theUnited States and in Jamaica during the years after his conviction.

The favorable factors in the Applicant's case include the hardship to his U.S. citizen spouse, children, and mother and his long-term presence in the United States. The unfavorable factors in the Applicant's case are his conviction for extortion; his use of illicit drugs; the lack of evidence of his remorse and rehabilitation for his criminal conduct and illicit drug use; his misrepresentation before the Immigration Court regarding his drug use; and the lack of evidence of his employment history and activities in the years since his conviction. Although we recognize. that denial of waiver application will result in hardship to the Applicant's spouse, children, and mother, a balancing the adverse and favorable factors in this matter does not demonstrate that the Applicant merits a section 212(h) waiver in a favorable exercise of discretion.

III. CONCLUSION

The Applicant has the burden of proving eligibility for a waiver of inadmissibility. See section 291 of the Act, 8 U.S.t. § 1361. The Applicant has not met that burden. The Applicant has not established that he warrants a favorable exercise of discretion to grant his waiver application.

ORDER: The motion to reconsider is denied.

Cite as Matter of A-R-M-, ID# 89524 (AAO Feb. 1, 2017)

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