I.
INTRODUCTION
CarolynPrice, through undersigned counsel, hereby submits this brief in support of
Appeal number EAC 14-111111, with Exhibits A-DD. On April xx, 2014, Ms. Price submitted
an I-290B Appeal of theMarch xx, 2014 dismissal by the USCIS Vermont Service Center of her
Motion to Reconsider the denial of her I-918 Petition.
Ms. Price submitted an I-918 Petition on May x, 2012. On June xx, 2013, USCIS issued
a Request for Evidence that the criminal activity of which Ms. Price was victim (Robbery,
pursuant to California Penal Code [“CPC”] § 211)was qualifying criminal activity pursuant to
INA §101(a)(15)(U). Ms. Price responded with evidence that robbery in California is the
equivalent of a felonious assault because it contains all of the elements of assault pursuant to
CPC § 240, and is a felony pursuant to CPC § 211. USCIS rejected this analysis and determined
that Ms. Price was not the victim of qualifying criminal activity, and therefore that evidence she
submitted of her helpfulness and substantial abuse was irrelevant. On November xx, 2013, Ms.
Price submitted an I-290B motion to reconsider that denial to USCIS. On March xx, 2014,
USCIS denied Ms. Price’s motion to reconsider.
Ms. Price hereby requests that the USCIS Administrative Appeals Office reconsider the
denial of her I-918 Petition and determine that robbery with force pursuant to CPC § 211 is
qualifying criminal activity.
II.
CRIMINAL ACTIVITY OF WHICH MS. PRICE WAS THE VICTIM
CarolynPrice was the victim of the felonious assault of robbery by force whenan
unknown assailant repeatedly pulled on a bag that had been caught around the victim’s arm with
great force, and ultimately stole the purse. The assault is felonious because it was carried out in
the commission of a robbery, a felony under Section 211 of the California Penal Code.
Therefore, Mrs. Price’s victimization also qualifies as a felonious assault.
Oakland Police officer John Jonesinvestigated and reported the crime committed against
Ms. Price as CPC §211, Robbery, Felony. (See Exhibit A, Copy of Oakland Police Department
Report #08-009815) The Oakland Police Department certified the investigated crime as
Felonious Assault, and described its rationale in making that determination in Part 4, Question 5
of that form. (See Exhibit B, Copy of I-918 Supplement B submitted with I-918 Petition.)
III.
ROBBERY IN CALIFORNIA IS A FELONIOUS ASSAULT
Unlike many states, California does not have a specific Felonious Assault or Aggravated
Assault Penal Code section. Instead, California Penal Code Title 8 lists Crimes Against Persons,
which involve the threat or use of force by a perpetrator against a victim (compared against CPC
Title 13, which defines Crimes Against Property that do not generally involve such a threat or
use of force). (See Exhibit C, Copy of Table of Contents of California Penal Code Title 8 and
Title 13.) Indeed, Title 8 includes dozens of offenses that are both felonies and meet all of the
elements of assault pursuant California Penal Code § 240, but are not categorized under the
rubric of felonious assault or aggravated assault, nor are they itemized in CPC §245(a), which
section has been cited by some USCIS adjudicators as the sole felonious assault statute in
California. These felony offenses include mayhem (CPC §204), robbery (CPC §§211),
administration of a controlled substance to enable commission of a felony (CPC §222), battery
with great bodily injury (CPC §243(d)), hazing (CPC §245.6), vehicular manslaughter (CPC
§192.5(e)), and shooting into an inhabited dwelling (CPC §246). See copies of above-cited
California Penal Code sections at Exhibit D.
A. Robbery pursuant to CPC § 211 is an Assault
The CPC section reported by Oakland Police officer Jones as the crime committed
against Ms. Price, § 211, specifies that the reported crime is robbery, which is punishable by
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imprisonment in the state prison for two, three, or five years. (CPC § 213(a)(2). This penal code
section contains the same in all elements as an assault under CPC §240, and as the California
Court of Appeals held in People v. Sutton, (1973) 35 Cal. App. 3d 264, (Exhibit E) citing People
v. Guerin, (1972) 22 Cal. App. 3d 775, (Exhibit F),robbery “is a compound felony which
includes all the elements of both theft and assault.” Those elements are:
i.Unlawful Attempt. To support a conviction for assault, the evidence must only
demonstrate that the defendant willfully or purposefully attempteda "violent injury" or "the least
touching," i.e., any wrongful act committed by means of physical force against the person of
another. The "injury" element of the crime of assault is satisfied by any attempt to apply physical
force to the victim and includes even injury to the victim's feelings. People v. Golde, 77 Cal.
Rptr. 3d 120 (Cal. App. 3d Dist. 2008). (Exhibit G)
Robbery is an unlawful activity, which necessarily requires as noted in People v. Sutton, an
attempt to commit a violent injury. In the criminal activity of which Ms. Price was victim, in the
course of a felonious robbery, the suspect succeeded in his attempt to use physical force against
her person when he grabbed and repeatedly pulled her purse against her shoulder with so much
force that according to her sworn statement, “I thought I would fall on the ground. I had the bag
tightly wrapped around my arm so when he forcefully pulled on my bag, I also felt as though he
was going to pull my arm off. I felt tremendous pain all through my arm…”
ii.Coupled with present ability. In People v. Valdez175 Cal.App.3d 103 (1985) (Exhibit
H), the California Court of Appeals held that the present ability element of assault is satisfied
when the defendant has attained the means and location to strike immediately.
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In the criminal activity of which Ms. Pricewas victim, the suspect had the means and location to
strike immediately, and he did indeed repeatedly pull at the purse that was stuck on her shoulder
with enough force that she felt her arm would be pulled off.
iii.To commit a violent injury on the person of another. "Violent injury," as would
support conviction for assault, can be "the least touching," and it includes any wrongful act
committed by means of physical force against the person of another, even if only the feelings of
such person are injured. People v. Golde, supra.
California Penal Code § 212 defines “fear” as the fear of an unlawful injury to the person or
property of the person robbed, or of any relative of his or member of his family.In the criminal
activity of which Ms. Price was victim, the suspect committed a violent injury by means of a
wrongful act committed by means of physical force.
B. Robbery pursuant to CPC §211, with severity defined by CPC § 215(c), is a felony crime
of violence, and therefore a Felonious Assault.
As noted above, Robbery is among the Crimes Against Persons in CPC Title 8 that is
classified as a felony because, as defined by the U.S. Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, it is serious crime of violence, not a mere property crime.
(Exhibit I, U.S. Department of JusticeOffice of Justice Programs Bureau of Justice Statistics
Special Report, Age Patterns of Victims of Serious Violent Crime, Page One, which states the
BJS definition of Serious Violent Crime.) Individuals who commit robberies pose a violent
threat to the entire community, which is why, unlike mere property crimes, robbery is a felony.
The determination of whether a particular criminal incident is such a threat to public safety, and
therefore a robbery, is made by the police officers on the scene who investigate that crime, based
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on their training, experience and responsibility to the community. If an officer determines that a
crime did not involve immediate threat of injury, she or he will not classify it as a felony
robbery. These individual determinations by responding officers, based on the facts of each
crime investigated, are respected by officials who sign I-918 Supplement B certifications for
robbery crimes in the felonious assault category. In the instant case, the determination that the
crime against Ms. Price was the serious violent felony robbery rather than larceny or another
property crime was made by the investigating officer.
C. Robbery pursuant to CPC §211 is a felony that meets U.S. and many states’ definitions of
Aggravated or Felonious Assault
The U.S. Sentencing Commission Guidelines define Aggravated Assault as a felonious
assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely
to frighten) with that weapon; (B) serious bodily injury; or (C) an intent to commit another
felony [emphasis added]. USSC GuidelinesChapter 2 Part A Section 2 Definitions (Exhibit J)
Twelve states define an Aggravated or Felonious Assault as assaults with intent to
commit robbery or intent to commit a felony. ((1) Code of Alabama Title 13A, Article 6, Section
20; (2) Florida 2013 Statutes Title XLVI Chapter 784.021: (2) Georgia Code - Crimes and
Offenses - Title 16, Section 16-5-21 (a): (3) Kansas Crimes and Punishments; Chapter 21 Article
2410(c); (4) Massachusetts General Laws Chapter 265 § 20; (5) Michigan Penal CodeChapter XI
Section750.88; (6)New Mexico Statutes Chapter 30 Article 3 Section 30-3-2.C.; (7) Iowa Code
Section 708.3; (8) New York Penal Law Section 120.10; (9) Revised Code of Washington
Chapter 9A Section 36.021(e); (10) Rhode Island Statutes Title 11 Chapter 11-5 Section 11-5-1;
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(11) South Carolina Code of Laws Title 16 Chapter 3 Article 1 Section 600(C)(1); (See Excerpts
of State Criminal Code sections at Exhibit K)
Because California does not use the categories of aggravated or felonious assault, it does
not specify an assault with intent to commit robbery is such an assault. However, as held in
People v. Guerin, supra, a robbery is an assault, and the perpetrator will face a felony penalty.
The fact that other jurisdictions that do use “felony assault” and “aggravated assault” in their
penal codes, specifying the aggravating nature of a robbery, is persuasive evidence that a felony
robbery is indeed a felonious assault.
8 C.F.R. 214.14(a)(9) states, “[t]he statutory list of qualifying criminal activity in section
101(a)(15)(U)(iii) of the INA, 8 U.S.C. 1101(a)(15)(U)(iii), is not a list of specific statutory
violations, but instead a list of general categories of criminal activity. It would be an absurd
outcome, and strikingly unfair to crime victims in California if they are unable to obtain lawful
status envisioned by Congress because the California Penal Code uses terminology other than
“aggravated assault” or “felonious assault” to define the range of assaults which are felonious.
D. Robbery pursuant to CPC §211 is a felonious assault of which “vulnerable immigrants
are often targeted as victims,”
INA §101(a)(15)(U) specifies that “the criminal activity referred to in this clause is that
involving one or more of the following or any similar activity in violation of Federal, State, or
local criminal law.” Interim Regulations published at Federal Register/ Vol. 72, No. 179 /
Monday, September 17, 2007 / Rules and Regulations 53014 (Exhibit L) specify at Page 53015,
“The list of qualifying crimes represents the myriad types of behavior that can constitute
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domestic violence, sexual abuse, or trafficking, or are crimes of which vulnerable immigrants
are often targeted as victims.” [emphasis added] The Interim Regulationsfurther clarify that,
“[t]he statutory list of qualifying criminal activity in section 101(a)(15)(U)(iii) of the INA, is “a
non-exclusive list.”
Robbery under California law, which is a felony crime of violence frequently targeted at
undocumented immigrants because of their reputed fear of law enforcement, fits squarely within
the list of criminal activity listed in INA § 101(a)(15)(U).
IV.
U.S. and Local Government
A. Survey of Police Chiefs.
A majority of 237 police chiefs surveyed by Arizona State University in 2008 stated that
undocumented immigrants are more likely to be victims of robbery (cited in “The Role of Local
Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, Journal of
Public Administration Research and Theory, Inc., October 24, 2012, attached as Exhibit M).
Statements listed below from U.S. and local government and law enforcement, as well as
California and national media reports illustrate this fact.
B. U Status Adjustment of Status Regulations.
The government’s concern with robbery as a crime that disproportionately impacts
immigrants is noted in Executive Order 12866 (Regulatory Planning and Review) published in
the U Nonimmigrant Status Adjustment of Status regulations in Federal Register Volume 73,
Number 240, 75540, December 12, 2008 (Exhibit N). That Order states at page 75552:
“According to findings from the National Crime Victimization Survey, in 2005, U.S.
residents age 12 or older experienced approximately 23 million crimes; 22% (5.2
million) were crimes of violence. For every 1,000 persons age 12 or older, there
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occurred: 1 rape or sexual assault, 1 assault with injury, and 3 robberies. However,
only 49.9 percent of all violent crimes are reported to police. Aliens, especially those
without legal immigration status, are often reluctant to help in the investigation or
prosecution of those crimes. And, while there is no specific data on alien victims of
crime, demographic statistics indicate that aliens may be victimized at even higher
rates than citizens. For example, in 2005, persons in households with an annual
income under $7,500 experienced higher rates of robbery and assault than persons in
households with higher income levels. In addition, Hispanics were victims of overall
violence at a rate higher than non-Hispanics, making up 15% of all violent crime
victims, but only 13% of the population. U visas are intended, in part, to help
overcome this reluctance to aid in law enforcement.”
C. Oakland, California.
“Amigo Checking” is a street term referring to the practice of committing street
robberies targeting persons believed to be undocumented day laborers. Suspects have confessed
that this type of victim is chosen because of the assumption that they will not report the crime to
the police. From Report to the Office of the City Administrator, City of Oakland, from Oakland
City Attorney and Oakland Police Department. (Exhibit O)
Oakland Police Department’s Lieutenant Kevin Wiley, interviewed for a New York
Times article on U Visas said: “It’s all about building trust.” Lieutenant Wiley added that police
certification of the U visas was a powerful tool in creating bonds among wary residents who
have long been the silent victims of a range of crimes, like the robberies of illegal immigrants
known on the streets as “amigo checkings.” New York Times, “A Special Visa Program
Benefits Abused Illegal Immigrants”, January 8, 2010. (Exhibit P)
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D. San Francisco, California.
In a January 2011 article in Community Policing Dispatch,Volume 4, Issue 1 (Exhibit
Q),San Francisco Police Department Sergeant Inspector Tony Flores writes with Rodolfo
Estrada:
“The owner of a small restaurant says he is concerned about one of his employees.
The employee is undocumented and was robbed recently after leaving work one
night. The owner says, “He’s afraid to talk to the police and he has seen these guys
before. These guys are going after people they know aren’t from this country because
they figure they are walking ATMr. They always have cash on them—not credit
cards or debit cards—cash.”
E. Washington D.C.
In a November 3, 2011 statement (Exhibit R), retired police Captain Maria AlvarengaWatkins of the Washington D.C. Metropolitan Police Department writes:
“At one time, an irate citizen came to the police station to complain that local law
enforcement was failing to protect the citizens that lived in a northwestern
community. He explained that there were a number of robberies, [emphasis added]
assaults, rapes, threats and other crimes against Latino immigrants and the police
were looking the other way. Upon investigating this claim, it was determined that
many of those crimes had not been reported to police; one of the main reasons crime
was not being reported in this community was because Latinos feared deportation.”
F. DeKalb, Georgia.
DeKalb Georgia Police Sergeant Jay Eisner:
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“For most people who commit rapes, robberies and aggravated assaults, that is not an
isolated incident, it’s their lifestyle. If the victim happens to be illegal and can help us
get this person off the street, other people that would have been victimized now won’t
be as a result of the immigrant coming forward.”(Exhibit S)
V.
California and National Media.
Newspaper articles from California and throughout the U.S. demonstrate the fact that
robbers seek out immigrant victims because their fear of detection and deportation provide near
impunity for perpetrators. Some of those articles are attached to this response. Relevant
passages from those articles include:
“The Oakland police released a report on Feb. 13 that described a
criminal trend identified in 2006 that is known by its slang term, “amigo
checking.” The report found that many immigrants were being attacked—mostly
by young African-Americans—because they don’t have bank accounts and carry
cash with them.
But beyond the money the workers carry in their pockets, Emilia Otero points to
other reasons workers from Guatemala, in particular, have become an easy target
for many criminals. .… Guatemalans tend to be “more shy and have a smaller
physical stature,” she says. Otero identifies language as another important
factor. “They don’t speak English or Spanish. I think when they walk in a group
and people hear them talking a different language, they are identified.” New
American Media, “Amigo Checking’: Wave of Muggings Targets Immigrant
Workers,” March 23, 2007. (Exhibit T)
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“They’re picked out as targets,” said Msgr. John Jenik of Our Lady of
Refuge, who ran the meeting. No fewer than 11 members of his congregation took
turns describing how they were robbed, some more than once. The muggings took
place in the past year, but the rate of attacks has quickened, with half a dozen or
so in the last few weeks. . . . “It’s because they feel they have no rights,” said
Reinaldo Morales, a local resident who was mugged a few years ago and said he
attended the meeting to show solidarity with the victims.
“Janssen Valencia, a police officer who acts as an interpreter and occasionally
as a radio counselor for Hispanic laborers here, urges them to hide their money
and vary their walking patterns. …“It’s very sad that they’re here helping us
rebuild, yet you have an element that’s targeting them,” Officer Valencia said.
“They work all week. Then comes the weekend, they get robbed.” … “What they
really voice is: ‘That money was for the family. We don’t harm anybody. Why
does anybody mess with us?’” … As work has tightened up with the economic
downturn, the atmosphere has turned even grimmer. The muggings continue
unabated, even as work days drop off. … “They took money from everybody,”
said Cesar Reynoso, a Guatemalan, recalling the afternoon in December when he
and five friends were robbed in the rough Central City neighborhood. They were
in a sports field, Mr. Reynosa said, and four men pointed guns at them. They took
$1,200 from the laborers. … “They just came up and took our stuff,” he said.
“They were just yelling at us.” New York Times, “For Mexican Workers, a Long
Walk Home,” 2/16/2009. (Exhibit U)
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“Hernandez, a dishwasher in Montgomery County, was an ideal target
that August night in a type of robbery that law enforcement officials say has
become alarmingly common in parts of the Washington region. Hispanic
immigrants are being targeted, often in gratuitously violent attacks by nonHispanics, because they are thought to carry cash rather than use banks and to be
reluctant to report crimes to police, the officials said. Washington Post, “Robbers
Stalk Hispanic Immigrants, Seeing Ideal Prey”October 26, 2007.(Exhibit V)
San Francisco police officers don't inquire about the immigration status of
people who report crime, yet the fear persists. Mug a day laborer or beat your
wife, the thinking goes —what are the victims going to do? Call 911, so they can
be among the more than 300,000 people deported annually? The bad guys go
unchecked, police are in the dark about entire swathes of a city, and public safety
suffers. The San Francisco Weekly, U-Visa: Illegal Immigrants Become Legal
Residents Via Crime Victimization” March 16, 2011. (Exhibit W)
In Mendoza's case, the three suspects had robbed several other stores in
the neighborhood, but no one had ever called the police. .. In the end, the three
suspects in Mendoza's case were arrested, she testified and they were convicted,
The Bay Citizen,“Special visas for crime victims surge in Oakland,”October 30,
2012.(Exhibit X).
Since many undocumented immigrants are unable to open bank accounts, they are
often forced to carry large amounts of cash, making them susceptible crime or, as
Cruz-Takash called it, "walking ATMr." Huffington Post, “Undocumented
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Immigrant Debit Cards: Oakland Introduces Landmark New Program”,
2/26/2013. (Exhibit Y)
Oakland's top robbery hot spots are the downtown, Lake Merritt area and
the Fruitvale district, police said. Unlike homicides, which are concentrated in
certain sections of the city, robberies are occurring all over town. Bus stops and
BART stations always are hot spots, and individuals are targeted more than
businesses, according to police. Quite a few victims have been Hispanic women
wheeling strollers, said Lt. Oliver Cunningham, who oversees robbery
investigations. Hispanics and Asians are disproportionately targeted, police say,
because robbers think the largely immigrant populations are less likely to resist
or report the crime. San Jose Mercury News, “Oakland: Robbery Capital of
America,” May 7, 2013.(Exhibit Z)
Gangs know undocumented day workers are especially lucrative targets,
he says. Their pockets are often stuffed with a day's or even a week's worth of
wages. The street term for these men: "walking ATMs." National Public Radio,
“Police, Banks Help Undocumented Workers Shake 'Walking ATM' Label,”
January 20, 2014. (Exhibit AA)
VI.
Law Enforcement Officials Want to Use U Visas to Help Reach and ServeImmigrant
Victims of Robbery.
Section 1513 of the Victims of Trafficking and Violence Prevention Act (Exhibit BB)
states as one of the Purposes of U Nonimigrant Status, “This visa will encourage law
enforcement officials to better serve immigrant crime victims…”. The Department of Homeland
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Security U Visa Law Enforcement Certification Resource Guidefor Federal, State, Local, Tribal
and Territorial Law Enforcement (relevant sections at Exhibit CC) specifies that the U Visa
program “supports law enforcement efforts to investigate and prosecute crimes committed
against immigrant victims.” Congress correctly placed the U Visa tool in the hands of law
enforcement because law enforcement is best positioned to recognize the threats to community
security and devise strategies to combat those threats. A majority of law enforcement agencies
that have opted to use the U Visa tool view robbery as one of those threats. As noted above in
discussions above, law enforcement officials from Oakland and San Francisco, California;
Washington, D.C.; and DeKalb, Georgia have identified robbery as a crime that targets
immigrants, and that the U Visa can be used to combat. Approximately 90%1 of California law
enforcement agencies that certify victim cooperation on the Form I-918 Supplement B do so for
robberies, either in the felonious assault category or as criminal activity substantially similar to
the crimes listed in INA § 101(a)(15)(U). Oakland Police Department Lieutenant Kevin Wiley
notes about the range of crimes certified by OPD, which includes a substantial proportion of
robberies, “These are disclosure-driven crimes, meaning people have to come forth and report
them; there's no gunshot to bring it to our attention. . . . It's all about building trust.” (From
National Immigrant Women’s Advocacy Project at American University Washington College of
Law, “The Importance of the U-visa as a Crime-Fighting Tool for Law Enforcement Officials Views from Around the Country” December 3, 2012).(Report at Exhibit DD)
Robbery, defined by California Penal Code § 211, is among the “myriad” crimes
described in INA § 101(a)(15)(U) because although there is no “felonious assault” or
1
Estimate based on March 6, 2014 survey of U Visa practitioner members of the national ASISTA-hosted
“VAWAexperts” listserve,conducted by the Immigration Center for Women and Children.
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“aggravated assault” in California, its elements and punishment meet national and many states’
definitions of felonious assault and aggravated assault, it is widely regarded as disproportionately
targeted at immigrants, and law enforcement agencies use the U Visa as tool to combat it.
The evidence submitted with Ms. Price’s petition, supplemented with the more detailed
explanation and additional evidence submitted with this appeal, supports a finding that the
criminal activity she suffered was qualifying criminal activity listed in INA § 101(a)(15)(U).
Based on the above, Ms. Price respectfully requests that his application for U Nonimmigrant
Status (Form I-918) be approved.
Respectfully submitted this 9th day of May, 2014
______________________________
Susan Bowyer
Attorney for Appellant CarolynPrice
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