Domestic violence occurs in all communities irrespective of ethnic or socioeconomic backgrounds. Immigrant women and children, however, are particularly vulnerable since the U.S. citizen (USC) or lawful permanent resident (LPR) spouse is able to use immigration as yet another means of controlling the victim.

In 1994, Congress recognized the plight of abused immigrants and their children by enacting the Violence Against Women Act which amended the Immigration and Nationality Act (INA) to allow abused immigrant spouses and their children to obtain permanent residence by self-petitioning before the U.S. Citizenship and Immigration Services (USCIS). “Self-petitioning” means to request status independently, without the involvement or knowledge of the abusive USC or LPR spouse. VAWA 1994 was subsequently amended by the Battered Immigrant Women Protection Act (VAWA 2000) and again by the Violence Against Women Reauthorization Act of 2005. It is important to note that, despite the name, relief under VAWA is available to abused spouses regardless of gender.

Currently, a self-petition under VAWA may be filed by (1) abused spouses of USCs or LPRs; (2) spouses of USCs or LPRs whose children have been abused by the USC or LPR spouse; (3) abused “intended spouses” of USCs or LPRs (an “intended spouse” is one who marries a USC or LPR in good faith but then learns that the marriage is not legitimate because the USC or LPR is still married to someone else (see INA §101(a)(50)); (4) abused children of USCs or LPRs; and (5) abused parents of USCs who qualify as immediate relatives (abusive USC must be at least 21 years old). (INA §201(a)(1)). In addition, other than the last category, applicants may include their children as derivative beneficiaries even if the children are not related to the abuser and even if the children have not been abused. (8 CFR §204.2(c)(4)).

The requirements for a self-petition vary slightly depending on whether the self-petitioner is a spouse, child, or parent. A spouse or “intended spouse” must show the following:

(1) Good Moral Character, generally for the last three years preceding the filing of the self-petition (8 CFR §204.2(c)(1)(vii)). Waivers may be available to those who meet eligibility requirements.

(2) Marriage to a USC or LPR. An abused spouse who has since divorce or whose spouse has died within the past two years may self-petition. (INA §§204(a)(1)(A)(iii)(II)(aa)(CC)(ccc), (A)(vi), (B)(ii)(II)(aa)(CC)(bbb)).

(3) Good faith marriage. A self-petitioning spouse must show by a preponderance of the evidence that the marriage or intended marriage was entered into in good faith.

(4) That during the marriage, the spouse was battered or subject of extreme cruelty committed by the USC or LPR spouse. (INA §204(a)(1)(A)(iii)(bb), (iv), (B)(ii)(I)(bb), (iii)). Abuse is defined as “any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” It includes psychological abuse, rape, incest, and forced prostitution. (8 CFR §§204.2(c)(1)(vi), (e)(2)(vi)).

(5) Residence, in the past or presently, with the USC or LPR spouse, and

(6) The abuse spouse’s current residence in the United States or, if living abroad, that the abusing spouse is an employee of the U.S. government, member of the uniformed services, or that the battery or extreme cruelty occurred in the United States. (INA §§201(a)(1)(A),(B)).

As you can see from this discussion, there are many nuances involved in the VAWA application process and every case requires a thorough analysis and assessment of the particular facts of each case.

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About Marie Wood

Marie is licensed to practice law in the State of California and throughout the United States in federal immigration matters. She is admitted to all California state courts, the Central, Eastern, Northern, and Southern District Courts, and Immigration Courts. Marie joined Reid & Hellyer in 2016 and practices immigration law and transactional law. She has also represented individuals and lending institutions in civil litigation matters from inception of the case to post-judgment matters, and in exercising creditor rights in bankruptcy court. Marie immigrated to this country at a young age, and is fluent in Spanish. As an immigrant, she has personal knowledge of the emotional and financial struggles faced by individuals and families during the immigration process. This personal experience is what encouraged her to become an immigration attorney. Throughout the years she has volunteered countless hours at legal clinics and other events in which she has offered pro bono legal services in both immigration and civil matters. She is also a professor and teaches legal and business courses at Palomar Community College and is a guest speaker at California State University, San Marcos. Marie is the 2016 vice-president and 2017 president-elect of the Southwest Riverside County Bar Association. She is also a member of the American Immigration Lawyers Association (AILA), the AILA San Diego Chapter, the Riverside and North County Bar Associations, and the Fiorenzo V. Lopardo Chapter of the American Inns of Court. Marie received her Juris Doctor degree from Thomas Jefferson School of Law in 2009, where she graduated magna cum laude. While attending law school, she was a Notes Editor of the Thomas Jefferson Law Review, and a member of Phi Alpha Delta, the country’s oldest legal fraternity.

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