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 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. InPeople 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.
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 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; (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 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 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.”