MATTER OF J-S-J-

APPEAL OF VERMONT SERVICE CENTER DECISION

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 13,2017

PETITION: FORM 1-360, PETITION FOR AMERASIAN, WIDOW(ER), OR SPECIAL IMMIGRANT

The Petitioner seeks immigrant classification as an abused spouse of a U.S. citizen. See Immigration and Nationality Act (the Act) section 204(a)(l )(A)(iii), 8 U.S.C. § 1154(a)(l )(A)(iii). Under the Violence Against Women Act (VAWA), an abused spouse may self-petition as an immediate relative rather than remain with or rely upon an abuser to secure immigration benefits.

The Director of the Vermont Service Center denied the Form I-360, Petition for Amerasian. Widow(er), or Special Immigrant (VA WA petition), concluding that the Petitioner did not establish that she had a qualifying relationship with her spouse and was eligible for immigrant classification based on that relationship. The Director determined that the Petitioner did not establish a qualifying relationship within two years of filing the petition, as required by statute.

On appeal, the Petitioner submits a brief and asserts that the filing period should be tolled since she had filed a previous VA WA petition.

Upon de novo review, we will dismiss the appeal.

I. LAW

A petitioner who is the spouse of a United States citizen may self-petition for immigrant classification if the petitioner demonstrates that he or she entered into the marriage with the United States citizen spouse in good faith and that during the marriage, the petitioner or his or her child was battered or subjected to extreme cruelty perpetrated by the petitioner's spouse. Section 204(a)(l )(A)(iii)(l) of the Act. In addition, a petitioner must show that he or she is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i) of the Act, resided with the abusive spouse, and is a person of good moral character. Section 204(a)(l)(A)(iii)(II) ofthe Act.

An individual who is no longer married to a citizen of the United States remains eligible to self-petition under section 204(a)(l)(A)(iii) of the Act if he or she is an alien: "who was a bona tide spouse of a United States citizen within the past 2 years and ... who demonstrates a connection between the legal termination of the marriage within the past 2 years and battering or extreme cruelty by the United States citizen spouse[.]" Section 204(a)(l)(A)(iii)(II)(aa)(CC)(ccc) of the Act.

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Matter of J-S-J-

The burden of proof is on a petitioner to demonstrate. eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369,375 (AAO 2010). A petitioner may submit any evidence for us to consider, however, we determine the credibility of and the weight to give that evidence. Section 204(a)(l)(J) ofthe Act; 8 C.F.R. § 204.2(c)(2)(i).

II. ANALYSIS

The Petitioner filed a VA W A petition in October 2011 that was denied as abandoned in March 2014. In March 2016 the Petitioner filed the instant VA W A petition that the Director denied because evidence in the record showed that the Petitioner divorced her U.S. citizen spouse, W-E-J-, in

2009, thus a qualifying relationship did not exist within two years of filing the VA W A petition. 1 On appeal, the Petitioner asserts that although the second petition was filed more than two years after the date of divorce her petition should be approved because the two-year requirement under the Act is a statute of limitations and not a statute or repose and is therefore eligible to be equitably tolled. A full review of the record, including evidence submitted on appeaL does not establish that the Petitioner had a qualifying relationship with a U.S. citizen and corresponding eligibility for immediate relative classification.

On appeal, the Petitioner contends that the two-year deadline was triggered when she became divorced, thus the divorce was the variable that makes the deadline a statute of limitations. The Petitioner states that when she filed her first VA W A petition, she provided necessary documentation to her then-counsel to respond to a Director's request for evidence (RFE) and to a later notice of intent to deny (NOID) her VA W A petition. The Petitioner asserts that her prior counsel failed to respond to the NOID and did not then provide her with a copy of the March 2014 denial. She contends that she was harmed by the fraud and deceit of her prior counsel, not due to any fault of her own, so the statutory bar should begin to run when the fraud was discovered.

The Petitioner also maintains that she filed a grievance with the Attorney Grievance Commission of Maryland and informed the commission that shortly before her prior counsel was disbarred she had advised the Petitioner that she had a good case even though the VA W A petition had already been denied. The Petitioner asserts that she did not know her VA W A petition had been denied, which resulted in her being unable to file an appeal of the denial. The Petitioner states she was informed in a March 2016 letter from the grievance commission that her prior counsel had been disbarred and that the Petitioner's complaint would be kept in case the prior counsel filed for reinstatement. The Petitioner maintains that she attempted to contact her prior counsel, but that the office was closed and she could not send copy of her complaint to her prior counsel since she had no way of knowing where prior counsel was and the commission did not forward her complaint. The Petitioner asserts that she has thus satisfied Lozada requirements. 2

1 Initials are used throughout this decision to protect the identities of the individuals. 2 Referring to Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

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Matter of J-S-J-

A claim based upon ineffective assistance of counsel requires: ( 1) that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement entered into with counsel with respect to the actions to be taken and the representations made or not made by counsel in this regard; (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him or her and be given an opportunity to respond; and (3) that the appeal or motion reflect whether a complaint has been filed with the appropriate disciplinary authorities where counsel's actions involved a violation of ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 637,639 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988). Here, the Petitioner has not submitted any supporting documentation to reflect that she filed a grievance against her prior counsel, the details of the agreement she entered into with her prior counsel, or her attempt to notify her prior counsel of the allegations she made. Accordingly, the Petitioner did not articulate a proper claim for ineffective assistance of counsel under Lozada.

The Petitioner further states that she believes her VA W A petition is within the extraordinary circumstances equitable tolling exception because her prior counsel acted negligently in not submitting documents, kept her in the dark as to the status of her case, and lied that she had a good case even after knowing it had been denied. The Petitioner maintains that the fraud, deceit, and negligence of her prior counsel denied her the ability to present her claim. In support of her contention the Petitioner cites Harris v. Hutchinson, 209 F.3d 325, 329 (4th Cir. 2000) and Kuusk v. Holder, 732 F.3d 302 (4th Cir. 2013).

While courts have found certain filing deadlines to be statutes of limitations subject to equitable tolling in the context of removal or deportation, the petitioner cites no case finding visa petition filing deadlines subject to equitable tolling. In Kuusk, the Fourth Circuit Court of Appeals determined that the statutory filing deadline for a motion to reopen removal proceedings could be equitably tolled, only when ( 1) the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant or (2) extraordinary circumstances beyond plaintiff's control made it impossible to file the claims on time. Kuusk, 732 F.3d at 305, citing Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (In Harris, where a defendant sought federal habeas corpus relief. the Court found that an attorney's innocent misreading of a statute imposing a one-year time limit for filing federal habeas petition was not an extraordinary circumstance beyond a petitioner's control and thus did not justify equitable tolling).

Here the Petitioner does not cite any precedential decisions finding visa petition filing deadlines subject to equitable tolling. In enacting section 204(a)(l )(A)(iii)(II)(aa)(CC) of the Act, Congress provided that the two-year post-divorce tiling requirement is a prerequisite to U.S. Citizenship and Immigration Services' jurisdiction to consider a VA WA petition. We acknowledge that the Petitioner may not have been aware that a response to the NOID in her first VAWA petition was not timely submitted by his previous counsel. However, notwithstanding the Petitioner's reliance on her previous attorney and her claimed ineffective assistance of counsel complaint, the two-year, post-termination filing period of section 204(a)(l)(A)(iii)(II)(aa)(CC) of the Act is a statute of repose not subject to equitable tolling, and we lack the authority to waive this statutory deadline.

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Matter of J-S-J-

In addition, even if the Petitioner had filed her VA W A petition within the required two years of divorce, she appears to be otherwise ineligible as the record indicates she remarried prior to tiling her first VA W A petition. On both the first and the instant VA W A petitions, both of which were filed after her divorce from W-E-1-, the Petitioner indicated she was married. On the first VA W A petition the Petitioner indicated that she had been married two times and on the instant VA W A petition she indicates she has been married three times. On a Form G-325, Biographic Information sheet signed by the Petitioner in 20 I 0 and on another form signed in May 2016 the Petitioner indicated that W-E-1- was her former spouse and that she had a current spouse, B-B-, whom she indicated she married in 2010. A 2016 psychological evaluation of the Petitioner submitted with the instant VA WA petition states that the Petitioner has been married three times, that W-E-1- was her second husband, and that at the time of the evaluation she was separated from her third husband. The record also shows that the RFE and NOlO related to the Petitioner's first VA W A petition sought documentation regarding her marriages. With the instant VA W A petition and on appeal the Petitioner has not addressed the number of her marriages or if she remarried after her divorce from W-E-1-.

III. CONCLUSION

The Petitioner has not established that she has a qualifying relationship with a U.S. citizen and her corresponding eligibility for immediate relative classification, as required by section 204(a)(1 )(A)(iii)(II)(cc) of the Act.

ORDER: The appeal is dismissed.

Cite as Matter o.f.J-S-.1-, ID# 655123 (AAO Nov. 13, 20 17)

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