U.S. DEPARTMENT OF HOMELAND SECURITY U.S. CITIZENSHIP & IMMIGRATION SERVICES ADMINISTRATIVE APPEALS OFFICE

U.S. DEPARTMENT OF HOMELAND SECURITY U.S. CITIZENSHIP & IMMIGRATION SERVICES ADMINISTRATIVE APPEALS OFFICE In the Matter of: Jane SMITH, Appellant / Petitioner File No. A### ### ### U Nonimmigrant Petition Proceedings Receipt No. ABC-##-###-##### BRIEF IN SUPPORT OF APPEAL FROM DENIAL OF U NONIMMIGRANT PETITION

ARGUMENT...9 I. The Director s Decision to Deny Ms. SMITH s U Nonimmigrant Petition on Admissibility Grounds is Clearly Erroneous...9 II. A. Conditional Resident Status is not a Ground of Inadmissibility...10 B. The Director Was Obligated to Consider the Merits of Ms. SMITH s Waiver Application Prior to Adjudicating Her U Nonimmigrant Petition on Admissibility Grounds...11 Ms. SMITH s Previous Grant of Conditional Resident Status Does Not Make Her Ineligible for U Nonimmigrant Status...12 A. Ms. SMITH is Prima Facie Eligible for U Nonimmigrant Status Pursuant to the Plain Language of the Immigration Laws...12 B. Congress Intended to Protect Immigrants and Nonimmigrants Alike When Creating the U Nonimmigrant Classification...15 C. In Holding That an Immigrant is Statutorily Ineligible for U Nonimmigrant Status, Matter of R-C- Fundamentally Misconstrues the Definition of Immigrant Under the Act...15 D. The Reasoning and Conclusions of Matter of R-C- Would Lead to Untenable Results Never Intended by Congress...17 CONCLUSION...18 INDEX OF EXHIBITS & EXHIBITS ii

U.S. DEPARTMENT OF HOMELAND SECURITY U.S. CITIZENSHIP & IMMIGRATION SERVICES ADMINISTRATIVE APPEALS OFFICE In the Matter of: BRIEF IN SUPPORT OF APPEAL Jane SMITH, Appellant / Petitioner File No. A### ### ### U Nonimmigrant Petition Proceedings Receipt No. ABC-##-###-##### TABLE OF AUTHORITIES DESCRIPTION PAGES U.S. SUPREME COURT Colautti v. Franklin, 439 U.S. 379, 392 (1979...11 Conn. Nat l Bank v. Germain, 503 U.S. 249 (1992...10 Lawson v. Suwannee S.S. Co., 336 U.S. 198, 201 (1949...11 Rowland v. Cal. Men s Colony, 506 U.S. 194 (1993...11 U.S. COURTS OF APPEALS Dalton v. Ashcroft, 257 F.3d 200 (2d Cir. 2001, TAB A...12 Fonseca-Sanchez v. Gonzales, 484 F.3d 439, slip op. (7th Cir. 2007, TAB A...9 Sunday v. Att y Gen., No. 15-1232, slip op. (3d Cir. Aug. 1, 2016, TAB A...7, 9 Torres-Tristan v. Holder, 656 F.3d 653, slip op. (7th Cir. 2011, TAB A...7, 9 United States v. Cisneros-Rodriguez, 813 F.3d 748, slip op. (9th Cir. 2015, TAB A... 9-10, 14 AAO & BIA Matter of A-, 6 I&N Dec. 651 (AG 1956, TAB A...6 n. 2 Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010...5 Matter of E-M-, 20 I&N Dec. 77 (Comm r 1989...5 iii

AAO & BIA Unpublished Matter of R-C-, ID# 56486 (AAO Sep. 12, 2016, TAB A...3-5, 7-8, 11-14 IMMIGRATION & NATIONALITY ACT (INA INA 101(a(15... numerous INA 212(a... 3, 6-7 INA 212(b...6 INA 212(d... 3-5, 7 INA 214(p...6 n. 2, 9 INA 247...14 ACTS OF CONGRESS Battered Immigrant Women Protection Act of 2000, Pub. L. 106 386, 114 Stat. 1518, Oct. 28, 2000, TAB A...10 CODE OF FEDERAL REGULATIONS (CFR 8 C.F.R. 212.17...7 8 C.F.R. 214.1(a...5, 8 8 C.F.R. 214.14(b... 4, 6, 9-10 8 C.F.R. 214.14(c...5, 7 FOREIGN AFFAIRS MANUAL (FAM 9 FAM 402.2 4(B(10,TAB A...14 OTHER ADMINISTRATIVE PUBLICATIONS U Nonimmigrant Status Interim Rule, 72 Fed. Reg. 53,014 (Sep. 17, 2007 (codified as amended in scattered sections of 8 C.F.R., TAB A...9 USICS, Glossary: Permanent Resident Alien (last accessed Dec. 15, 2016, TAB A...13 iv

U.S. DEPARTMENT OF HOMELAND SECURITY U.S. CITIZENSHIP & IMMIGRATION SERVICES ADMINISTRATIVE APPEALS OFFICE In the Matter of: BRIEF IN SUPPORT OF APPEAL Jane SMITH, Appellant / Petitioner File No. A### ### ### U Nonimmigrant Petition Proceedings Receipt No. ABC-##-###-##### INTRODUCTION PLEASE TAKE NOTICE that the Appellant Petitioner, Ms. Jane SMITH, through and by undersigned counsel, hereby appeals the denial of her Petition for U Nonimmigrant Status (Form I-918 and respectfully requests that the petition be remanded to the Director of the Vermont Service Center, U.S. Citizenship & Immigration Service (USICS, with instructions to reconsider the petition and associated U Nonimmigrant Waiver Application (Form I-192 for the reasons that follow. I. Immigration Background STATEMENT OF FACTS 1 Ms. SMITH, was born in Rio Verde, Brazil on August 23, 1974, and she is a citizen and national of Brazil. In 2007, Ms. SMITH arrived at JFK International Airport in New York, NY, at which time she was inspected and admitted as a visitor pursuant to her then-valid and unexpired B1/B2 visa. Ms. SMITH has not departed the United States since her admission on that date. 1 These facts are all taken directly from Ms. SMITH s U Nonimmigrant Petition and Waiver Application or relate to procedural matters and other official records maintained by the Department in Ms. SMITH s file. Upon information and belief, none of these facts are contested by the Director. As a result, and in the interest of brevity, only limited citations are provided for the facts contained herein.

On March 24, 2009, Ms. SMITH married a U.S. citizen, Robert Jones, in West New York, NJ, in accordance with New Jersey law. Soon after, Ms. SMITH s spouse filed a Petition for Alien Relative (Form I-130 on her behalf and Ms. SMITH filed a concurrent Application to Adjust Status (Form I-485 with the Department of Homeland Security (DHS or the Department. On or about January 21, 2010, the I-130 Petition and I-485 Application were approved by the Department after an interview with an Immigration Officer, and Ms. SMITH was thereby granted conditional resident status in the United States. Approximately two years later, on or about January 23, 2012, Ms. SMITH and her spouse jointly filed a Petition to Remove the Conditions on Residence (Form I-751. However, Ms. SMITH s I-751 Petition was denied by the Department on June 22, 2013, after an interview, on the basis that Ms. SMITH failed to establish that her marriage was entered into in good faith. II. Violent Assault and Rape Only a few weeks later, on July 8, 2013, Ms. SMITH was threatened with a knife, choked, physically and sexually assaulted, and raped in her own apartment by a man named Eddie O Donnell. Upon information and belief, Mr. O Donnell has a long history of targeting and attacking vulnerable women. Mr. O Donnell s RAP sheet, for example, includes various counts of kidnapping, battery, and domestic violence, including other serious felonies and misdemeanors in multiple states. During and after the attack, Mr. O Donnell threatened Ms. SMITH that he would come after her if she reported him to the police. Before leaving her apartment, Mr. O Donnell forced Ms. SMITH to provide her telephone number and he continued to threaten her repeatedly for the next 24 to 48 hours by calling and sending text messages. Despite Ms. SMITH s understandable fears related to her own safety, not to mention her immigration status in the United States, Ms. SMITH contacted the police and filed a report. Thereafter, she continued to cooperate with law enforcement officials to investigate, apprehend, charge, and convict Mr. O Donnell in relation to this heinous, violent crime. In large part due to Ms. SMITH s willingness to come forward and cooperate with law enforcement, Mr. O Donnell was convicted on several criminal counts in New York, NY, including Rape in the First Degree in violation of New York Penal Law (NYPL 130.35(1 and Predatory Sexual Assault in violation of NYPL 130.95(1(b, among other crimes. III. Removal Proceedings Approximately 2 months after Ms. SMITH was attacked, on September 6, 2013, the Department of Homeland Security (DHS or the Department initiated removal proceedings against her by filing a Notice to Appear (NTA with the New York City Immigration Court. See NTA, TAB D. In the NTA, the Department asserts that Ms. SMITH is removable from the 6

United States pursuant to INA 237(a(1(D(i (termination of conditional residence and INA 237(a(1(A (inadmissible at the time of admission. The second charge is premised on INA 212(a(6(C(i (fraud or willful misrepresentation to obtain an immigration benefit. The removal proceedings were administratively closed by the Immigration Judge on October 11, 2016 so that Ms. SMITH could continue to pursue her U Nonimmigrant Petition, as described below. IV. Petition for U Nonimmigrant Status On February 18, 2014, Ms. SMITH prepared and filed a Petition for U Nonimmigrant Status (Form I-918 with the Director of the Vermont Service Center based upon the violent sexual assault and rape she suffered several months earlier. See I-918 Receipt, TAB B. In support of her U Nonimmigrant Petition, Ms. SMITH included Form I-918 Supplement B, which was signed by an authorized official of the New York County District Attorney s Office, as well as the related Grand Jury indictment, temporary orders of protection, police report, evidence of the substantial physical and emotional harm suffered, and biographic documentation. Ms. SMITH s U Nonimmigrant Petition, with all attachments, is enclosed at TAB B. On the same date, Ms. SMITH filed a concurrent Application for Advance Permission to Enter as a Nonimmigrant (Form I-192, with the required filing fee, to request a waiver of any applicable grounds of inadmissibility pursuant to INA 212(d(14. See I-192 Receipt, TAB C. In particular, Ms. SMITH s application was intended to address her admissibility under INA 212(a(6(C(i (fraud or misrepresentation. In support of her Waiver Application, Ms. SMITH included substantial evidence that an exercise of discretion in her case would serve the public or national interest. Ms. SMITH s Waiver Application, with all attachments, is enclosed at TAB C. On March 27, 2015, the Director responded to Ms. SMITH s U Nonimmigrant Petition by issuing a Notice of Intent to Deny (NOID, alleging that Ms. SMITH is ineligible for U Nonimmigrant Status pursuant to INA 204(c. See I-918 NOID, TAB B. Ms. SMITH responded on April 24, 2015 by arguing, among other things, that INA 204(c only bars the approval of immigrant petitions filed pursuant to INA 204 and, therefore, has no bearing on her nonimmigrant petition filed pursuant to INA 214. See I-918 NOID Response, TAB B. On October 17, 2016, the Director denied Ms. SMITH s U Nonimmigrant Petition on other grounds, concluding that Ms. SMITH is inadmissible to the United States for U Nonimmigrant Status because she is still a conditional resident. See I-918 Denial, TAB B. The Director s decision does not address whether the applicable grounds are waivable under the Act. The Director subsequently denied Ms. SMITH s Waiver Application on or about November 4, 2016 on the basis that the underlying U Nonimmigrant Petition had already been denied. See I- 7

192 Denial, TAB C. Essentially, Ms. SMITH s petition could be not be granted without the waiver, but her waiver application could not be granted without the petition, so both were denied. STATEMENT OF CASE Ms. SMITH, through and by undersigned counsel, hereby appeals the denial of her U Nonimmigrant Petition on the following grounds: (1 The Director erred by concluding that Ms. SMITH s previous grant of conditional resident status renders her inadmissible to the United States; and (2 The Director erred by failing to consider the merits of Ms. SMITH s application for a waiver of grounds of inadmissibility pursuant to INA 212(d(14 prior to adjudicating her U Nonimmigrant Petition on admissibility grounds. Although the Director s decision explicitly denies Ms. SMITH s petition on admissibility grounds, there is reason to believe that the Administrative Appeals Office (AAO may reformulate the Director s decision as a question of eligibility rather than admissibility. See, e.g., Matter of R-C-. ID# 56486 (AAO Sep. 12, 2016, TAB A. However, such a reformulation would contravene the immigration laws for the following reasons: (1 As the Director correctly determined, Ms. SMITH is prima facie eligible for U Nonimmigrant Status pursuant to the plain language of the immigration laws; (2 Excluding Ms. SMITH and similarly situated victims of heinous and violent crimes from eligibility for U Nonimmigrant Status would contravene the express will and intent of Congress in creating the U Nonimmigrant classification; (3 The analysis of Matter of R-C- fundamentally misconstrues the statutory definition of immigrant under the Act; and (4 The reasoning and conclusions of Matter of R-C- would lead to untenable results that were clearly never intended by Congress. 8

Accordingly, the AAO should overturn the Director s decision and remand Ms. SMITH s U Nonimmigrant Petition to the Director with instructions to reconsider the petition and associated Waiver Application on the merits. JURISDICTION The AAO has jurisdiction over administrative appeals arising from the denial of a Petition for U Nonimmigrant Status pursuant to 8 C.F.R. 214.14(c(5(ii. LEGAL STANDARD A petitioner for U Nonimmigrant Status bears the burden of proving eligibility for such status by a preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369, 375 (AAO 2010 ( [e]xcept where a different standard is specified by law, a petitioner or applicant... must prove by a preponderance of evidence that he or she is eligible for the benefit sought (following Matter of E-M-, 20 I&N Dec. 77, 79 80 (Comm r 1989. ARGUMENT I. The Director s Decision to Deny Ms. SMITH s U Nonimmigrant Petition on Admissibility Grounds is Clearly Erroneous In the instant matter, the Director explicitly determined that Ms. SMITH had [met] all eligibility criteria except admissibility to the United States. See I-918 Denial at 2, TAB B. In reaching this conclusion, the Director expressly cited 8 C.F.R. 214.1(a(3(i, which states: Every nonimmigrant alien who applies for admission to, or an extension of stay in, the United States, must establish that he or she is admissible to the United States, or that any ground of inadmissibility has been waived under section 212(d(3 of the Act. Moreover, the Director went on to state the following: [A]lthough you have demonstrated that you meet the regulatory requirements found at 8 C.F.R. 214.14(b, you are not admissible to 9

the United States as a U nonimmigrant while you remain a lawful permanent resident. I-918 Denial at 2 (emphasis added. The language of the Director s decision leaves no doubt that Ms. SMITH s petition was denied solely on admissibility grounds. 2 However, the decision never asserts a specific ground of inadmissibility under INA 212(a. The failure to provide specific provisions for denial on its own should be sufficient ground for remand to the Director because she was required to provide written notice that... lists the specific provision or provisions of law under which the alien is inadmissible. INA 212(b(1. Moreover, as the following demonstrates, there is simply no provision of the Act that renders an alien inadmissible to the United States solely on the basis that she was previously granted conditional resident status. A. Conditional Resident Status is not a Ground of Inadmissibility Section 212(a of the Immigration and Nationality Act (INA or the Act states that any alien who is inadmissible to the United States is ineligible for a visa or admission to the United States in any status. The Act then defines nine distinct grounds of inadmissibility, which includes, among others, grounds related to public health, criminal activity, public and nationality security, and prior immigration violations. See INA 212(a(1 (9. None of these grounds, however, make an alien inadmissible to the United States solely on the basis that the alien was previously granted permanent or conditional resident status. Although the plain language of INA 212(a is quite clear on this point, it is worth noting that the Administrative Appeals Office (AAO recently confirmed, in explicit terms, that lawful permanent residency is not a ground of inadmissibility. See Matter of R-C-, ID# 56486, at n. 1 (AAO Sep. 12, 2016, TAB A. Moreover, any contrary holding would lead to absurd 2 The Director also purports to rely upon a 1955 decision by the Board of Immigration Appeals (BIA or the Board, which allegedly states that an alien may not be both an immigrant and a nonimmigrant at the same time. See Matter of A-, 6 I&N Dec. 651 (BIA 1955, TAB A. The quoted language, however, does not appear in the Board s opinion, nor does it appear in the Attorney General s decision to affirm the Board s opinion. Instead, the language appears in the rejected opinion of the Commissioner. Given that the Commissioner s opinion was rejected by the Attorney General on certification, it is unclear how the Commissioner s opinion can now be said to control the instant matter. It is also unclear how Matter of A- is relevant to the instant matter given that Ms. SMITH has never claimed a right to be an immigrant and a nonimmigrant at the same time. To the contrary, Ms. SMITH simply asserts her eligibility to become a nonimmigrant pursuant to the plain language of INA 101(a(15(U and to simultaneously seek any other immigration benefit or status for which [she] may be eligible pursuant to INA 214(p(5. 10

results, including making every permanent resident inadmissible to the United States. Congress clearly could not have intended such a result. As a result, the Director s decision is clearly erroneous as a matter of law and should be overturned. Moreover, as the following demonstrates, the Director also erred by denying Ms. SMITH s petition on admissibility grounds without first considering the merits of her application to waive any applicable grounds of inadmissibility pursuant to INA 212(d(14. B. The Director Was Obligated to Consider the Merits of Ms. SMITH s Waiver Application Prior to Adjudicating Her U Nonimmigrant Petition on Admissibility Grounds If a petitioner for U Nonimmigrant Status is inadmissible to the United States pursuant to any ground other than INA 212(a(3, 3 then he or she may apply for a waiver based on the public or national interest. INA 212(d(14; 8 C.F.R. 212.17(b(1. See Sunday v. Att y Gen., No. 15-1232, slip op. at 4 (3d Cir. Aug. 1, 2016, TAB A. To apply for such a waiver, a petitioner for U Nonimmigrant Status must file Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, and pay the appropriate filing fee in accordance with 8 C.F.R. 212.17. See 8 C.F.R. 212.17, 214.14(c(2(iv. See also Torres-Tristan v. Holder, 656 F.3d 653, 657 58, slip op. at 7 9 (7th Cir. 2011, TAB A. In the instant matter, Ms. SMITH has not committed any acts that might render her inadmissible pursuant to INA 212(a(3, nor did the Director allege that she was inadmissible under that ground. As a result, Ms. SMITH appears to be statutorily eligible for a waiver of all applicable grounds of inadmissibility that might other apply apply pursuant to INA 212(d(14. Moreover, Ms. SMITH properly applied for such a waiver concurrently with her U Nonimmigrant Petition by filing Form I-192 with the appropriate filing fee and supporting evidence. See id., slip op., at 9, TAB A. Under these circumstances, the Director was obligated to consider the merits of Ms. SMITH s application for a waiver of grounds of inadmissibility before adjudicating her U Nonimmigrant Petition on admissibility grounds. It is clear from the record, however, that no such consideration occurred. Therefore, in accordance with the foregoing and the plain language of the Act, the Director s decision to deny Ms. SMITH s U Nonimmigrant Petition on admissibility grounds is clearly erroneous and should be overturned as a matter of law. Moreover, the petition should be 3 Pursuant to INA 212(a(3, an alien who commits acts of Nazi persecution, genocide, torture, or extrajudicial killing is inadmissible to the United States. 11

remanded with instructions for the Director to reopen Ms. SMITH s Waiver Application and reconsider both the petition and application on the merits. II. Ms. SMITH s Previous Grant of Conditional Resident Status Does Not Make Her Ineligible for U Nonimmigrant Status Although the Director s decision unambiguously denies Ms. SMITH s petition on admissibility grounds pursuant to 8 C.F.R. 214.1(a(3(i, the AAO recently affirmed a similar denial by, essentially, reformulating the Director s analysis as a question of eligibility rather than admissibility. See, e.g., Matter of R-C-, ID# 56486 (AAO Sep. 12, 2016, TAB A. In so doing, Matter of R-C- appears to conclude that a conditional resident is statutorily ineligible for a grant of U Nonimmigrant Status unless the alien s conditional residence is first terminated by a final order of the immigration judge. See id. at 3. To the extent that Matter of R-C- is relevant to the instant matter, the following demonstrates that the analysis and conclusions of Matter of R-Ccontravene the immigration laws and, therefore, cannot control the instant matter. In particular, Matter of R-C- is contrary to the plain language of the U Nonimmigrant provisions of the Act and contravenes the express will and intent of Congress in creating those provisions. Furthermore, in holding that a conditional resident, as an immigrant, is barred from U nonimmigrant status by INA 101(a(15, Matter of R-C- fundamentally misconstrues the definition of immigrant under the Act and commits several errors in reasoning to reach an untenable result that was clearly never intended by Congress. A. Ms. SMITH is Prima Facie Eligible for U Nonimmigrant Status Pursuant to the Plain Language of the Immigration Laws Subject to the limitations of INA 214(p, any alien who satisfies the following four requirements is prima facie eligible for U Nonimmigrant Status under the Act: (1 The alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity; (2 The alien possesses information concerning criminal activity; (3 The alien has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official or prosecutor, to a Federal or State judge, to the Department, or to other Federal, State, or local authorities investigating or prosecuting criminal activity; and 12

(4 The relevant criminal activity violated the laws of the United States or occurred in the United States, including U.S. territories and possessions. INA 101(a(15(U. See also 8 C.F.R. 214.14(b (expounding upon the four requirements for eligibility; U Nonimmigrant Status Interim Rule, 72 Fed. Reg. 53,014, 53,016 (Sep. 17, 2007 (codified as amended in scattered sections of 8 C.F.R. (recognizing that [t]here are four statutory eligibility requirements for U nonimmigrant status under the Act, TAB A. As a predicate to eligibility, the Act only requires that the petitioner be an alien, which is defined elsewhere as any person [who] is not a citizen or national of the United States. INA 101(a(3. Notably, the Act does not restrict eligibility only to those aliens who do not hold permanent or conditional resident status. See Sunday, slip op. at 4 (3d Cir. Aug. 1, 2016 ( U visas allow noncitizen victims of certain crimes... to remain in the United States as lawful temporary residents (emphasis added, TAB A; United States v. Cisneros-Rodriguez, 813 F.3d 748, 766, slip op. at 21 (9th Cir. 2015 (Silver, J., dissenting (considering a non-citizen who is prima facie eligible for a U-visa (emphasis added, TAB A; Torres-Tristan, 656 F.3d at 656, slip op. at 5 6 (7th Cir. 2011 ( [any] non-citizen is eligible for a U Visa if the Secretary of Homeland Security determines that he has suffered "substantial physical or mental abuse" as a result of qualifying criminal activity and that he has shown he "has been helpful, is being helpful, or is likely to be helpful" to law enforcement authorities investigating or prosecuting the crime, TAB A (emphasis added; Fonseca-Sanchez v. Gonzales, 484 F.3d 439, 443, slip op. at 6 (7th Cir. 2007 ( aliens who believe they qualify for interim [U] relief may submit correspondence along with evidentiary proof that address the four criteria listed in [INA 101(a(15(U(i(I IV] (emphasis added, TAB A. In the instant matter, Ms. SMITH is an alien who, according to the Director, has demonstrated that [she] meet[s] the regulatory requirements found at 8 C.F.R. 214.14(b. I- 918 Denial, TAB B at 2 (stating elsewhere that Ms. SMITH appear[s] to meet all eligibility requirements. As a result, the Director has already determined that Ms. SMITH is prima facie eligible for U Nonimmigrant Status under the Act and that her petition would be approvable but for the Director s erroneous conclusions related to admissibility. In light of the factual determinations already made by the Director, there appears to be no question that Ms. SMITH fully satisfied her burden by proving that she meets the four statutory eligibility requirements by a preponderance of the evidence. 13

B. Congress Intended to Protect Immigrants and Nonimmigrants Alike When Creating the U Nonimmigrant Classification Congress created the U Nonimmigrant classification to protect [i]mmigrant women and children [who] are often targeted to be victims of crimes committed against them in the United States, including rape [and] sexual assault, among other crimes. Battered Immigrant Women Protection Act of 2000 (BIWPA, Pub. L. No. 106 386, 1513(a(1(A, 114 Stat. 1518, 1533, Oct. 28, 2000 (emphasis added, TAB A. By [p]roviding temporary legal status to aliens who have been severely victimized by criminal activity, Congress sought to encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens in the United States. Id. at 1513(a(2(B, (A (emphasis added. Congress further stated, in the strongest of terms, that [a]ll women and children who are victims of these crimes... must be able to report these crimes to law enforcement and participate in the investigation of the crimes committed against them. Id. at 1513(a(1(B (emphasis added. See also Cisneros-Rodriguez, slip op. at 27, TAB A ( Congress s (sic purpose in establishing the U-visa was to protect [a]ll women and children who are victims of [qualifying] crimes (emphasis in original. The plain language of these provisions demonstrates Congress intent to protect all immigrants and aliens who otherwise satisfy the statutory requirements for U Nonimmigrant Status. There is no indication that Congress intended to distinguish between an alien who was previously accorded resident status, on the one hand, from an alien who was previously granted a temporary nonimmigrant status, on the other. The frequent use of the words immigrant and alien, which have well-defined and accepted meanings under the Act, should be dispositive on this issue. See Conn. Nat l Bank v. Germain, 503 U.S. 249, 253 54 (1992 ( [we] must presume that a legislature says in a statute what it means and means in a statute what it says. Moreover, in defining the requirements for U Nonimmigrant Status, Congress used the word alien throughout the statute, which is explicitly defined by the Act as any person [who] is not a citizen or national of the United States. INA 101(a(3. Congress is clearly aware of the statutory definition of alien and, as always, that definition must control any interpretation of the immigration laws unless Congress states a contrary intention (see, e.g., Colautti v. Franklin, 439 U.S. 379, 392 (1979 or the context dictates otherwise. See, e.g., Rowland v. Cal. Men s Colony, 506 U.S. 194 (1993; Lawson v. Suwannee S.S. Co., 336 U.S. 198, 201 (1949. As such, the plain language of the statute only requires that the petitioner be an alien to obtain U Nonimmigrant Status, not that the petitioner be an alien who does not hold conditional resident status. 14

C. In Holding That an Immigrant is Statutorily Ineligible to Become a Nonimmigrant Under the Act, Matter of R-C- Fundamentally Misconstrues the Definition of Immigrant Under the Act As the above makes clear, Ms. SMITH appears to be prima facie eligible for U Nonimmigrant Status under the plain language of the Act and in accordance with the express will and intent of Congress in creating the U Nonimmigrant classification. As a result, if Ms. SMITH is ineligible for U Nonimmigrant Status, as Matter of R-C- would appear to suggest, then she must be ineligible on a basis not contemplated by Congress when it created the U Nonimmigrant classification and not considered by the Department when it promulgated the governing regulations. The fact that such an interpretation was never intended by Congress or the Department on its own should counsel against such an interpretation. Despite the plain language of the Act and clear intent of Congress, however, Matter of R- C- holds that an alien admitted for conditional residence in the United States is statutorily ineligible for U Nonimmigrant Status because the alien is an immigrant pursuant to INA 101(a(15. 4 See ID# 56486 at 3, TAB A ( [b]ecause lawful permanent residents, to include conditional residents, are defined... as immigrants, and the U nonimmigrant classification is excepted from the definition of immigrant at section 101(a(15 of the Act, it follows that a lawful permanent resident cannot be granted U nonimmigrant status. However, the Act does not provide an explicit definition for the term immigrant, but instead defines the term implicitly and solely by reference to the term nonimmigrant. INA 101(a(15 ( [t]he term immigrant means every alien except for an alien who is within one of the following classes of nonimmigrant aliens. The Act then provides several explicit definitions for the term nonimmigrant, without which the term immigrant would be utterly meaningless. See INA 101(a(15(A (V. As a result of this statutory framework, whether an alien is or is not an immigrant cannot be determined under the Act without first determining whether the alien falls within one of the nonimmigrant classes. 5 By assuming that a particular alien is an immigrant without actually applying the statutory definition provided by Congress, Matter of R-C- ignores the plain language of the statute and, in effect, assumes the very conclusion that it purports to reach through logic and reason. 4 While not dispositive, it is telling that the reasoning of Matter of R-C- relies solely on sections of the Act that predate the creation of U Nonimmigrant Status and appear, at first glance, to be irrelevant to the question of eligibility for such status. 5 It is noted that the terms immigrant and nonimmigrant in this context may cause some confusion. Ordinarily, a term that begins with the prefix non- is defined implicitly, meaning, solely by reference to another explicit term (e.g., non-citizen has no substantive meaning without reference to the term citizen. However, the Act reverses this convention by explicitly defining the term nonimmigrant and only implicitly defining the term immigrant. As a result, it is the term immigrant that has no meaning without reference to nonimmigrant instead of the other way around. 15

The flawed reasoning of Matter of R-C- is further illustrated by considering the statutory definition of immigrant as a simple if then statement: if an alien is not within one of the enumerated nonimmigrant classes, then the alien is an immigrant. INA 101(a(15. Matter of R-C- asserts, in error, that its conclusion follows logically from this definition. See ID# 56486 at 3. However, Matter of R-C- relies not upon the definition itself, but upon the definition s converse. See id. (asserting that it follows from the definition of immigrant that a lawful permanent resident [immigrant] cannot be granted U nonimmigrant status (emphasis added. This is a fatal error in the reasoning, however, because the converse of a valid statement does not follow logically from the original statement. See, e.g., Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir. 2001 (describing this type of reasoning as a logical fallacy, whereby an argument assumes, in error, that a true statement s converse must also be true. As already noted above, the definition of immigrant states that every alien is an immigrant except an alien who is within one of the enumerated nonimmigrant classes. INA 101(a(15. Therefore, every alien is, either, (1 a nonimmigrant pursuant to one of the enumerated classes or (2 an immigrant by process of elimination. There is no third category of alien under the Act. As a result, every alien who obtains a nonimmigrant status for the first time was, by definition, an immigrant up until the moment that such status was granted. This conclusion, which is unavoidable under the definition, stands in stark contrast to the position taken by Matter of R-C-, which asserts that an immigrant is barred from obtaining a nonimmigrant status by INA 101(a(15. Stated another way, if Matter of R-C- is correct and immigrants are categorically barred from obtaining a nonimmigrant status by INA 101(a(15, then no alien could ever be granted a nonimmigrant status. Accord USCIS, Glossary: Permanent Resident Alien (last accessed Dec. 15, 2016 (acknowledging, for example, that an alien who entered the United States without inspection... would be strictly defined as an immigrant under the INA because the alien was not legally admitted under [a] specific nonimmigrant categor[y] (emphasis added. While the reasoning of Matter of R-C- errs in other critical respects not described here, the foregoing sufficiently demonstrates that the decision s core assumption, that an immigrant cannot be granted a nonimmigrant status, does not follow logically from the definition of immigrant under the Act. Moreover, as the following demonstrates, the reasoning and conclusions in Matter of R-C- would lead to untenable results that were clearly never intended by Congress. 16

D. The Reasoning and Conclusions of Matter of R-C- Would Lead to Untenable Results Never Intended by Congress One of the primary goals of the U Nonimmigrant classification was to protect aliens living in the United States without a valid immigration status. As a result, an alien who enters the United States without inspection, for example, is nonetheless eligible for U Nonimmigrant Status. However, an alien living in the United States without a valid immigration status is also, by definition, an immigrant under INA 101(a(15, meaning that such an alien would be subject to the same statutory bar asserted by Matter of R-C-. INA 101(a(15. Accord USCIS, Glossary: Permanent Resident Alien (last accessed Dec. 15, 2016 ( alien who entered the United States without inspection [is] defined as an immigrant under the INA (emphasis added. Such an interpretation of the immigration laws, however, would clearly contravene the express will and intent of Congress, if not the plain language of the Act. Moreover, the petitioner in Matter of R-C- was, apparently, a conditional resident whose status was terminated and who was then placed in removal proceedings by the Department. See ID# 56486 at 2 3. In holding that the petitioner was still a conditional resident and, therefore, ineligible for U Nonimmigrant Status, Matter of R-C- explicitly relied upon the fact that the petitioner was in removal proceedings and that her conditional residence had not yet been terminated by a final administrative order. See ID# 56486 at 3. However, if the Department had stopped at termination of the petitioner s status and had never placed her in removal proceedings by issuing a Notice to Appear (NTA, then the Department s decision to terminate her status would presumably have become the final administrative decision on the subject. Accord 8 C.F.R. 216.4(d(2 ( [t]he alien s lawful permanent resident status shall be terminated as of the date of the director s written decision... however, the alien may seek review [but is not required to seek review] of the decision in removal proceedings (emphasis added. As a result, if the Department had never issued a Notice to Appear (NTA, which is a decision solely within the discretion of the Department, then the petitioner in Matter of R-Cwould have been eligible for U Nonimmigrant Status. However, nothing in the U Nonimmigrant provisions or any other section of the Act indicates that Congress intended such an arbitrary result, whereby an alien s eligibility for U Nonimmigrant Status is determined solely by whether the Department has issued an NTA. Cf. Cisneros-Rodriguez, 813 F.3d 748, 760 (overturning an administrative removal order where the Department denied an alien the opportunity to petition for U Nonimmigrant Status simply by placing him in administrative removal proceedings rather than proceedings before the Immigration Court. Finally, it is worth noting that the position asserted by Matter of R-C- is directly contrary to the existing practices and policies of U.S. immigration and consular officials. According to the Foreign Affairs Manual (FAM, for example, a lawful permanent resident of the United States is eligible for and authorized to obtain a nonimmigrant visitor visa under certain 17

circumstances. See 9 FAM 402.2 4(B(10 ( lawful permanent resident... alien may be issued a nonimmigrant visa for this purpose and Form I-551 need not be surrendered, TAB A. Moreover, the Department of Homeland Security is required to adjust a permanent resident to one of several specified nonimmigrant statuses if the alien has subsequently become eligible for such status. See INA 247(a ( [t]he status of an alien lawfully admitted for permanent residence shall be adjusted... to that of a nonimmigrant under paragraph (15(A, (15(E, or (15(G of section 101(a, if such alien had at the time of admission or subsequently acquires an occupational status which would... entitle him to a nonimmigrant status under such sections (emphasis added. If these policies and statutes make anything clear, it is that immigrants are not statutorily barred from becoming nonimmigrants. CONCLUSION Accordingly, and for all of the other reasons already stated above, the AAO should overturn the Director s decision to deny Ms. SMITH s U Nonimmigrant Petition and instruct the Director to reconsider Ms. SMITH s U Nonimmigrant Petition and associated Waiver Application on the merits. Respectfully submitted, Wayne S. Massey Attorney for the Appellant Petitioner December 12, 2016 18