(b)(6)
DATE:
AUG
0 9
2013
INRE:
Applicant:
U.S.
Department
of Homeland Security
U.S. Citizenship and Immigration Services
Administrative Appeals Office (AAO)
20 Massachusetts Ave., N.W.,
MS
2090
Washington, DC 20529-2090
U.S.
Citizenship
and Immigration
Services
Office:
VERMONT
SERVICE
CENTER
H'TT
H'
APPLICATION:
Application for Temporary Protected Status under Section 244
of
the
Immigration and Nationality Act, 8 U.S.C.
§ 1254
ON
BEHALF OF APPLICANT:
INSTRUCTIONS:
Enclosed please find the decision
of
the Administrative Appeals Office (AAO) in your case.
This is a non-precedent decision.
The
AAO does not announce
new
constructions
of
law nor establish
agency policy through non-precedent decisions.
If
you
believe the
AAO
incorrectly applied current law
or policy to your case
or
if
you seek to present
new
facts for consideration,
you
may file a motion to
reconsider or a motion to reopen, respectively. Any motion
must
be
filed on a Notice
of
Appeal or
Motion (Form I-290B) within 33 days
of
the date
of
this decision. Please review the Form I-290B
instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and
other requirements.
See also 8 C.F.R. § 103.5. Do not file a motion directly with the
AAO.
Thank you,
~r-E·.
'
---::
n Rosenber
ing Chief, Administrative Appeals Office
www.
uscis.gov
(b)(6)
NON-PRECEDENTDEC§JON
PageL
DISCUSSION: The applicant's Temporary Protected Status was withdrawn by the Director,
Vermont Service Center. The matter is
now
before the Administrative Appeals Office (AAO) on
appeal. The appeal will be dismissed.
The applicant is a native and citizen
of
El Salvador who was granted Temporary Protected Status
(TPS) under section 244
of
the Immigration and Nationality Act (the Act), 8 U.S.C. § 1254.
The director withdrew TPS because the applicant had been convicted
of
two misdemeanors in
the United States and because he had failed to submit requested court documentation relating to
his arrest on December 25, 2008.
On appeal, counsel asserts that the applicant has not been convicted
of
misdemeanors as driving
under the influence and operating without a license are classified as traffic offenses. Counsel
states that the final disposition
of
the applicant's December 25, 2008 arrest was provided on
March 4, 2011.
The director may withdraw the status
of
an alien granted TPS under section 244
of
the Act at any
time
if
it is determined that the alien was not in fact eligible at the time such status was granted, or at
any time thereafter becomes ineligible for such status. 8 C.F.R. § 244.14(a)(l).
An alien shall not be eligible for TPS under this section
if
the Secretary
of
the Department
of
Homeland Security finds that the alien has been convicted
of
any felony
or
two or more
misdemeanors committed
in
the United States. See Section 244( c )(2)(B)(i)
of
the Act and 8
C.P.R.
§ 244.4(a).
"Misdemeanor" means a crime committed in the United States, either (1) punishable by
imprisonment for a term
of
one year or less, regardless
of
the term such alien actually served,
if
any,
or (2) a crime treated as a misdemeanor under the term "felony"
of
this section. For purposes
of
this
definition, any crime punishable by imprisonment for a maximum term
of
five days or less shall not
be considered a misdemeanor. 8 C.F.R.
§ 244.1.
The term 'conviction' means, with respect to an alien, a formal
judgment
of
guilt
of
the alien
entered
bY,
a court or, adjudication
of
guilt has been withheld, where - (i) a
judge
or
jury
has
found the alien guilty
or
the alien has entered a plea
of
guilty or nolo contendere or has admitted
sufficient facts to warrant a finding
of
guilt, and (ii) the
judge
has ordered some form
of
punishment, penalty,
or
restraint
on
the alien's liberty to be imposed. Section 101(a)(48)(A)
of
the Act.
Section 101(a)(48)(B)
of
the Act provides, "any reference to a term
of
imprisonment or a sentence
with respect to an offense is deemed to include the period
of
incarceration or confinement ordered
by a court
of
law regardless
of
any suspension
of
the imposition or execution
of
that imprisonment
or sentence in whole or in part."
(b)(6)
NON-PRECEDENT
DECISION
Page
3
The AAO conducts appellate review on a
de novo basis. See Soltane v.
DOl,
381 F.3d 143, 145
(3d Cir. 2004).
In response
to
a notice dated February 12, 2008, which requested the applicant to submit
certified judgment and conviction documents from the courts for all arrests, the applicant
provided court documentation in Case no. 07022710TC10A from the County Court in and for
Broward County, Florida, which indicates that on July 16, 2007, the applicant pled guilty
to
operating without a license, a violation
of
Florida Statute 322.03(1). Adjudication
of
guilt was
withheld and the applicant was ordered
to
pay court cost.
The current Federal Bureau
of
Investigation report reflects the applicant's criminal history in the
state
of
Florida as follows:
1.
On December 25, 2008, the applicant was arrested by the Police
Department
of
Florida for driving under the influence with blood alcohol level
above 0.20percent, a violation
of
Florida Statute 316.193, and operating without
a valid license a violation
of
Florida Statute 322.03(1).
2.
On February 21, 2010, the applicant was arrested by
the
County
Sheriffs
Office
of
Florida for operating without a valid license, a violation
of
Florida Statute 322.03(1).
3.
On August
9,
2010, the applicant was arrested by the Police Department
of
Florida for driving under the influence -
2nd
offense, and driving with .15
percent or more alcohol in the blood with a person under the age
of
18, a violation
of
Florida Statute 316.193, two counts
of
driving under the influence causing
damage
to
person or property, Florida Statute, operating without a valid license, a
violation
of
Florida Statute 322.03(1), driving while license is suspended and
careless driving.
On November 26, 2010, the applicant filed a re-registration application . The
applicant indicated that
he
had several arrests including in October 2003 by the County
Police
of
Virginia for driving under the influence and driving without a license. The applicant
indicated that he was in the process
of
obtaining the court records from Virginia. Along with the
re-registration application, the applicant submitted the following:
• For number one, the arrest report from the Police Department
of
Florida
and court documentation in Case no. from the County Court in
and for County, Florida, which indicates that on March 1, 2010, the
applicant plea no contest to driving under the influence with blood alcohol level
above 0.20 percent and operating without a valid license. The applicant was found
guilty
of
violating Florida Statute 316.193 and the applicant was ordered to attend
DUI school level 1, pay a $1000 fine and court costs, and was placed on probation
for six months. Adjudication
of
guilt was withheld for violating Florida Statute
322.03(1) and the fine and court costs were waived.
(b)(6)
NON-PRECEDENT
DECISION
Page 4
• For number two, the arrest report and court
dor.11ment::Jtion
in Case no.
from the County Court in and for County, Florida,
which indicates that on March
9,
2010, the applicant pled no contest to operating
without a valid license. Adjudication
of
guilt was withheld and the applicant was
ordered
to
pay court costs.
• For number three, the arrest report from the Police Department and court
documentation
in
Case no. from the County Court
in
and for
County, Florida, which indicates that on November 12, 2010, the
applicant was found guilty
of
count one, driving under the influence with blood
alcohol level above 0.20 percent with a minor in vehicle and count five, operating
without valid license. The applicant was placed on probation for 12 months (to
run consecutive), ordered
to
attend a DUI school level 2, and pay a $2000 fine
and court costs. The applicant was credited with time served (96 days) for count
one.
On January 27, 2011, the director issued a notice requesting the applicant
to
submit certified
judgment and convictions documents from the courts for all arrests including the arrests
mentioned above. The applicant, in response, re-submitted the final court dispositions.
Therefore, the director's finding that the applicant failed
to
submit the court disposition for his 2008
arrest
is
withdrawn.
On appeal, counsel claims that
the
applicant was only convicted
of
traffic offenses and not criminal
offenses. However, Federal immigration laws should be applied uniformly, without regard
to
the
nuances
of
state law. See Ye
v.
INS, 214 F.3d 1128, 1132 (9th Cir. 2000); Burr
v.
INS, 350 F.2d
87, 90 (9th Cir. 1965). Thus,
~hether
a particular offense under state law constitutes a
"misdemeanor" for immigration purposes is strictly a matter
of
federal law. See Franklin v. INS,
72 F.3d 571 (8th Cir. 1995); Cabral
v.
INS,
15
F.3d 193, 196 n.5 (1st Cir. 1994). While we must
look
to
relevant state law
in
order
to
determine whether the statutory elements
of
a specific
offense satisfy the regulatory definition
of
"misdemeanor," the legal nomenclature employed by
a particular state
to
classify an offense or the consequences a state chooses
to
place on an offense
in its own courts under its own laws does not control the consequences given
to
the offense
in
a
federal immigration proceeding. See
Yazdchi
v.
INS, 878 F.2d 166, 167 (5th Cir. 1989);
Babouris
v.
Esperdy, 269 F.2d 621, 623 (2d Cir. 1959); United States
v.
Flares-Rodriguez, 237
F.2d 405, 409 (2d Cir. 1956).
The fact that Florida's legal taxonomy classifies the applicant's offense as a "traffic offense"
rather than a "crime," is simply not relevant
to
the question
of
whether the offense qualifies as a
"misdemeanor" for immigration purposes. As cited above, for immigration purposes, a
misdemeanor is any offense that
is
punishable by imprisonment for a term
of
one year or less,
regardless
of
the term such alien actually served,
if
any. (Emphasis added.) Florida law provides
that:
(b)(6)
NON-PRECEDENT DECISION
Page 5
• A violation
of
driving under the influence with blood alcohol level above 0.20
with a minor in vehicle is punishable by up
to
9 months incarceration. Florida
Statute 316.193(4)(b).
• A violation
of
driving under the influence
is
punishable
by
up
to
6 months
incarceration. Florida Statute 316.193(2a).
• Anyone who violates operating without a valid license (except paragraph (c)) is
guilty
of
a misdemeanor
of
the first degree, punishable as provided in section
775.082 or section 775.083. Florida Statute 322.03(3)(b).
Therefore, the applicant's convictions listed above qualify as "misdemeanors" as defined for
immigration purposes in 8 C.F.R. § 244.1.
In the instant case, the court documents submitted reflect that the applicant pled no contest
and/or was found guilty
of
each charge, and the judge ordered some form
of
punishment, penalty
and/or restraint on the applicant's liberty
to
each charge. Therefore, for immigration purposes,
the applicant has been convicted
of
misdemeanor offenses within the meaning
of
section
101(a)(48)(A)
ofthe
Act.
The applicant is ineligible for TPS due to his misdemeanor convictions. Section 244(c)(2)(B)(i)
of
the Act and 8 C.F.R. § 244.4(a). Consequently, the director's decision to withdraw TPS on
this ground will be affirmed. The director requested the applicant to submit certified judgment
and conviction documents for all arrests. The applicant, however, has failed to provide court
documentation revealing the final disposition
of
his arrest in October 2003 in County,
Virginia. Therefore, the applicant is also ineligible for TPS because
of
his failure to provide
information necessary for the adjudication
of
his application. 8 C.F.R. § 244.9(a). Consequently,
TPS must also be withdrawn on this ground.
TPS will be withdrawn for the above stated reasons, with each considered
as
an independent and
alternative basis for the withdrawal.
An
alien applying for TPS has the burden
of
proving that he
or she meets the requirements enumerated above and is otherwise eligible under the provisions
of
section 244
of
the Act. The applicant has failed
to
meet this burden.
ORDER:
The appeal is dismissed.
