PROTECTION FOR BATTERED
SPOUSES AND CHILDREN
By: Samuel N Omwenga, Esq.
There are a number of laws in the books that protect against domestic abuse but one that offers significant protection against non-citizen spouses and their children is the Violence Crime Control and Law Enforcement of 1994 (VAWA). This law allows spouses and their children who have suffered abuse in the hands of U.S. citizen or permanent resident spouse to apply for protection under VAWA, which normally leads to permanent resident status. This can be accomplished in two ways: (i) self-petitions for legal status that do not depend on the assistance of the abuser or (ii) cancellation of removal that requires only three years of continuous physical presence in the U.S. (instead of the usual seven years).
This protection against domestic abuse was further expanded in 1996 when Congress enacted laws preventing the Attorney General from establishing deportability or inadmissibility based solely on evidence from an abusive or battering spouse, parent, or other family member. The 1996 law also provides additional humanitarian benefits for battered spouses and their children, including exemption from a number of provisions that would otherwise render these individuals deportable. If you or a friend believes he or she is a victim of domestic abuse, you or that person should contact an immigration lawyer to determine whether they can obtain protection from this law. Usually, the affected person can “self-petition,” meaning, they don’t need the cooperation of the abusive spouse to apply to become a permanent resident.
There are several requirements that must be satisfied before one can self-petition for protection under VAWA: First, one must show that he or she is a spouse or child who has been battered by, or has been the subject of extreme cruelty in the hands of a U.S. citizen or lawful permanent resident spouse or parent. These terms include being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Some of the acts that render one eligible for protection under VAWA include phsychological or sexual abuse or exploitation. These acts must have also occurred during the marriage or, in the case of extreme cruelty against a child self-petitioner, during residence with the abuser.
The abuse can be established in a number of ways, including reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Also considered relevant evidence are: an order of protection against the abuser; evidence that the abused sought refuge in a battered women's shelter; a photograph showing visible injuries (and supported by affidavits); or a pattern of abuse and violence. Of course, it helps if one has supporting statements from witnesses, friends or relatives, shelter workers, counselors, social workers, clergy, experts on domestic violence, or other service providers.
The second requirement for protection under VAWA is that the abuser must be a U.S. citizen or a lawful permanent resident spouse or parent. The abuser must have this status both at the time the self-petition is filed and at the time of its approval and the burden in on the self-petitioner to show proof that the abuser has the status claimed.
The third requirement for self-petition under VAWA is a showing that the marriage between the self-petitioning spouse and the abuser was entered into in good faith, which is another way of saying the marriage relationship must not have been entered into to circumvent immigration laws. However, the petition cannot be denied simply because the spouses are not living together and the marriage is no longer good.
The fourth requirement relates to the timing of divorce. A self-petitioning spouse must be legally married to the abuser when the petition is properly filed with the INS. Once the self-petition is properly filed, legal termination of the marriage (through death, divorce, or annulment) has no effect on a pending self-petition and no effect on an approved self-petition. For self-petitioning children, they must have a parent-child relationship to the abuser when the petition is filed and when it is approved.
Finally, the self-petitioner must prove “extreme hardship" and “good moral character." Exactly what these two requirements mean or how one can satisfy them is beyond the scope of this article but at the minimum, it should be noted that self-petitioners face a tougher standard for good moral character than any other person required to make that showing. As for extreme hardship, what is required to meet the requirement is fairly elusive but the self-petitioner must show such extreme hardship to herself or himself, or to the self-petitioner's child, if deported. Our office can provide additional information or answer specific questions regarding these requirements or any other immigration matters.