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U.S. Citizenship and Immigration Services

MATTER OF I-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: DEC. 1, 2015

MOTION OF ADMINISTRATIVE APPEALS OFFICE DECISION

APPLICATION: FORM I-485, APPLICATION TO REGISTER PERMANENT RESIDENCE OR ADJUST STATUS

The Applicant is a native and citizen of Angola who seeks to adjust status to lawful permanent resident. See Section 13 ofthe Act of September 11, 1957, Pub. L. No. 85-316,71 Stat. 642, amended by Pub. L. No. 97-116, 95 Stat. 161 (1981), 18 U.S.C. § 1255b. The application was denied by the National Benefits Center Director and a subsequent appeal was dismissed by the Administrative Appeals Office (AAO). The matter is now before us on a motion to reopen and to reconsider. The motion will be denied.

The Director, in a decision dated May 5, 2014, denied the application for adjustment of status after determining that the Applicant had not established that her husband performed diplomatic or semi­diplomatic duties and also did not demonstrate that compelling reasons prevent her return to Angola. The Applicant appealed the denial decision, and on November 26, 2014, upon a de novo review of the evidence of record, we concurred with the Director's determination.

On motion, as on appeal, the Applicant contends that in addition to his duties as a translator and interpreter for the Embassy of Angola in her husband performed other diplomatic or semi-diplomatic duties. She also asserts that she has established compelling reasons prevent her return to Angola.

The record includes, but is not limited to, documents establishing relationships and identity, a brief, a psychological evaluation of the Applicant, and statements by her spouse's colleagues. The entire record was reviewed and considered in rendering this decision.

A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). The motion to reopen qualifies for consideration under 8 C.F.R. § 103.5(a)(2) because the Applicant alleges new facts and provides additional documentation to support her assertion that her husband performed diplomatic or semi-diplomatic duties and compelling reasons prevent her return to Angola.

A motion to reconsider must: ( 1) state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy; and (2) establish that the decision was incorrect based on the evidence of

Matter of 1-S-

record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 1 03.5(a)( 4). The motion does not qualify for consideration under 8 C.F.R. § 103.5(a)(3) because the Applicant does not allege that the Director and we misapplied law or policy.·

On motion, as on appeal, the Applicant asserts that her spouse performed diplomatic or semi-diplomatic duties and that compelling reasons prevent her return to Angola. She states that her husband, who returned to Angola, will kidnap their daughters if she returns to Angola with them. The Applicant also requests consideration on humanitarian grounds. She states that due to her medical conditions she and her two young daughters would experience hardship in Angola. The Applicant submits a brief, a statement, a psychological report, and two letters describing her spouse's duties.

Section 13 ofthe Act of September 11, 1957, as amended on December 29, 1981, by Pub. L. 97-116,95 Stat. 1161, provides, in pertinent part:

(a) Any alien admitted to the United States as a nonimmigrant under the provisions of either section 101(a)(15)(A)(i) or (ii) or 101(a)(15)(G)(i) or (ii) of the Act, who has failed to maintain a status under any of those provisions, may apply to the [Department of Homeland Security] for adjustment of his status to that of an alien lawfully admitted for permanent residence.

(b) If, after consultation with the Secretary of State, it shall appear to the satisfaction of the [Department of Homeland Security] that the alien has shown compelling reasons demonstrating both that the alien is unable to return to the country represented by the government which accredited the alien or the member of the alien's immediate family and that adjustment of the alien's status to that of an alien lawfully admitted for permanent residence would be in the national interest, that the alien is a person of good moral character, that he is admissible for permanent residence under the Immigration and Nationality Act, and that such action would not be contrary to the national welfare, safety, or security, the [Department of Homeland Security], in its discretion, may record the alien's lawful admission for permanent residence as of the date [on which] the order of the [Department of Homeland Security] approving the application for adjustment of status is made.

8 U.S.C. § 1255b(b).

Pursuant to 8 C.F.R. § 245.3, eligibility for adjustment of status under Section 13 is limited to individuals who were admitted into the United States under section 101, paragraphs ( a)(15)(A)(i), (a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Act who performed diplomatic or semi-diplomatic duties and to their immediate families, and who establish that there are compelling reasons why they or members of their immediate family are unable to return to the country represented by the government that accredited them, and that adjustment of the applicant's status to that of an alien lawfully admitted to permanent residence would be in the national interest.

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The legislative history for Section 13 reveals that the provision was intended to provide adjustment of status for a "limited class of ... worthy persons ... left homeless and stateless" as a consequence of "Communist and other uprisings, aggression, or invasion" that have "in some cases ... wiped out" their governments. Statement of Senator John F. Kennedy, Analysis of Bill to Amend the Immigration and Nationality Act, 85th Cong., 103 Cong. Rec. 14660 (August 14, 1957). The phrase "compelling reasons" was added to Section 13 in 1981 after Congress "considered 74 such cases and rejected all but 4 of them for failure to satisfy the criteria clearly established by the legislative history of the 1957 law." H. R. Rep. 97-264 at 33 (October 2, 1981).

We acknowledge that the terms diplomatic and semi-diplomatic are not defined in Section 13 or pertinent regulations and that the standard definitions of terms such as diplomat, diplomatic and diplomacy are varied and broad, and that, in practice, diplomacy may encompass many responsibilities and duties. However, the essential role of a diplomat is the representation of a country in its relations with other countries. See American Heritage Dictionary of the English Language, 4th Edition, 2000 (Diplomat: One, such as an ambassador, who has been appointed to represent a government in its relations with other governments); Black's Law Dictionary (Diplomacy: The art and practice of conducting negotiations between national governments). Both section 101(a)(15)(A) of the Act and the Vienna Convention recognize that certain accredited employees or officials admitted to serve within embassies or other diplomatic missions are not "diplomatic" staff. The Vienna Convention refers to such personnel as administrative and technical staff, service staff, or personal servants. The Vienna Convention on Diplomatic Relations, Art. 1 (April18, 1961), 500 U.N.T.S. 95. Whereas ambassadors, public ministers, and career diplomatic or consular officers are admitted under section 10l(a)(15)(A)(i) of the Act, those admitted under section 101(a)(15)(A)(ii), are described only as "other officials and employees" accepted on the basis of reciprocity. These "non-diplomatic" employees are nevertheless afforded the rights and immunities of diplomatic staff. See Vienna Convention, supra, Art. 37. In the case of non-diplomatic employees who are admitted pursuant to section 101(a)(15)(A)(ii) of the Act, U.S. Citizenship and Immigration Services (USCIS) must evaluate the position held and its attendant duties to determine whether the Applicant is eligible under Section 13. To establish eligibility for Section 13 the Applicant's spouse must have performed diplomatic or semi-diplomatic duties, not duties that only relate to clerical, administrative, custodial, or technical support of the Consulate or Embassy.

The record establishes the Applicant last entered the United States on August 26, 2005, in A-2 non-immigrant status, as the spouse of who worked for the Embassy of Angola in

as a Her husband's status was terminated on The Applicant applied for adjustment of status on August 26, 2013. Per the requirements of

section 13(a) of the 1957 statute, the Applicant's husband was admitted to the United States pursuant to 101(a)(15)(A)(i) of the Act but did not hold diplomatic status at the time the Applicant filed this application for adjustment.

Pursuant to 8 C.F.R. § 245.3, eligibility for adjustment of status under Section 13 is limited to individuals who were admitted into the United States under section 101, paragraphs (a)(15)(A)(i), (a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Act who performed diplomatic or semi-diplomatic duties and to their immediate families, and who establish that there are compelling reasons why they members of their immediate families are unable to return to the country represented by the government

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Matter of 1-S-

which accredited them, and that adjustment of status to lawful permanent resident would be in the national interest. Individuals whose duties were of a custodial, clerical, or menial nature, and members of their immediate families, are not eligible for benefits under Section 13.

In a sworn statement before a USCIS immigration officer on November 22, 2013, the Applicant testified that her husband served as a for the Angolan embassy. In her statement submitted on appeal, she stated that her husband regularly traveled with the secretary of the embassy and the ambassador throughout the United States on official business; he attended meetings with the ambassador and regularly wrote reports for the ambassador to send to the government in Angola; and he performed many other official duties "well beyond the clerical duties of a and encompassed formal advisory and decision-making duties." As noted in our decision dismissing the appeal, the record lacked supporting documentation to establish that the Applicant's husband's duties were diplomatic or semi-diplomatic in nature.

On motion, the Applicant asserts that her husband worked in a multi-function capacity as an assistant to the chief of mission and the deputy chief of mission from 2002 to 2008 and that his duties were diplomatic or semi-diplomatic in nature.

The Applicant submits letters from dated December 19, 2014, and dated January 8, 2015. states that she has been employed by the Embassy of

the Republic of Angola in . since 1994, as indicates that she is a Both state that from 2002 to

2008, the Applicant's husband worked in a "multi-function capacity" as an assistant to the chief of mission and the deputy chief of mission. Both letters include essentially identical terms in describing the Applicant spouse's duties, including

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being an excellent The authors also state that in addition to

the Applicant's husband was also helpful with

One of the letters, however, is not signed in an official capacity; and in the other, the writer does not indicate whether she was employed at the Angolan Embassy during the same period as the Applicant's spouse. Also, the letter writers do not indicate how they gained knowledge of the Applicant's spouse's duties at the embassy, whether they base their descriptions on official records, and if not, why official records are not available. In addition, the letters are not supported by corroborative evidence of the duties the letter writers describe. While the letters includes numerous duties beyond the duty of

the Applicant described in her November 22, 2013 sworn statement, the Applicant does not provide evidence to corroborate the expanded descriptions of her husband's duties. We find, therefore, that the Applicant has not established that her husband's duties were diplomatic or semi­diplomatic in nature ..

In the event that the Applicant had established that her spouse performed diplomatic or semi-diplomatic duties, she has not shown that compelling reasons prevent her return to Angola. In our dismissal of her

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appeal, we found the Applicant had not provided compelling reasons related to political changes in Angola that render her, as the spouse a foreign representative, "stateless or homeless" or at risk of harm following political upheavals in the country represented by the government which accredited her husband. We also noted that the record lacked evidence showing that the Applicant is at greater risk of harm because of her husband's specific past government employment, political activities, or other related reasons, including his employment as a translator.

On motion, as on appeal, the Applicant contends that she cannot return to Angola because she would be subjected to abuse by her husband and that her husband would take their children from her. The Applicant contends that her situation, including her heath, would leave her vulnerable to her husband if she returns to Angola.

On motion, the Applicant submits a psychological assessment, dated December 21, 2014, prepared by a licensed clinical social worker who describes an emotionally abusive relationship in a hostile marriage between the Applicant and her husband. She states that the Applicant "became increasingly depressed and overwhelmed" over the years she spent with her husband. The social worker adds that the Applicant "began experiencing insomnia, anhedonia, decreased weight and appetite and low mood .... struggled with hopelessness, shame and helplessness [and] did not know what to do to improve her situation." According to the social worker, the Applicant "struggled year after year to try to provide a sense of stability to herself and her children in the face of such emotional cruelty and financial neglect." The social worker concludes that the Applicant has "significant and compelling reasons" to fear returning to Angola, related to her abusive relationship with her husband and her "certainty that he would take" their daughters. She adds that her fear causes the Applicant "significant emotional distress."

The Applicant's psychological assessment describes her relationship with her husband as complex and the cause of her fear of returning to Angola. The difficulties and fears described, however, do not amount to compelling reasons that prevent the Applicant from returning to Angola. Though we sympathize with the Applicant's circumstances, which are unfortunate, there is no humanitarian exception to the requirement that she demonstrate compelling reasons prevent her return to Angola. The documentation provided does not establish compelling reasons that prevent the Applicant from returning to Angola.

As set forth in the Director's decision, the legislative history of Section 13 shows that Congress intended that "compelling reasons" relate to political changes that render diplomats and foreign representatives "stateless or homeless" or at risk of harm following political upheavals in the country represented by the government which accredited them. Section 13 requires that an applicant for adjustment of status under this provision have "compelling reasons demonstrating that the alien is unable to return to the country represented by the government which accredited the applicant. (Emphasis added). The term "compelling" must be read in conjunction with the term "unable" to correctly interpret the meaning of the words in context. Thus, reasons that are compelling are those that render an applicant unable to return, rather than those that merely make return undesirable or not preferred from the applicant's perspective.

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The Applicant has not met her burden of proof in this regard. As the Applicant has not established that compelling reasons prevent her return to Angola, the question of whether adjustment of status would be in the national interest need not be addressed.

For the reasons discussed above, we find that the Applicant is not eligible for adjustment of status. She has not established that her husband performed diplomatic or semi-diplomatic duties and that compelling reasons prevent her return to Angola.

In application proceedings, the burden of proving eligibility for the benefit sought remains entirely with the Applicant. Section 291 of the Act, 8 U.S.C. § 1361. The Applicant has not met that burden.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter of 1-S-, ID# 11340 (AAO Dec. 1, 2015)