IMMIGRATION REMEDIES FOR VICTIMS OF CRIME, TRAFFICKING, AND DOMESTIC VIOLENCE

VAWA

October 28, 2008 Presented by: Amany S. Ezeldin Life Span Center for Legal Services & Advocacy

Terms and Definitions

 LPR: Lawful Permanent Resident  USC: United States Citizen  EWI: Entry without inspection  DHS: Department of Homeland Security  USCIS: United States Citizen and Immigration Services (Formerly INS)  USICE: Immigration and Customs Enforcement  USCBP: Customs and Border Patrol

What does being undocumented mean?

 Someone who entered the U.S. with fraudulent passport/visa  Someone who came across the border of US and Mexico/Canada without inspection (EWI)  Someone who entered on a temporary visa, but the visa expired

How do people gain Immigration status?

 Family-based  Employment-based  Diversity Visa Lottery  Special Categories  Refugees/Asylees  Relief from Removal

Special Problems posed by DV for Battered Immigrant Women

 Abuser may never file the family immigration petition  Abuser may withdraw petition  Abuser maintains complete control over process  Abuser may threaten and use Immigration status to control  Language/cultural barriers, isolation, limited family support

The Violence Against Women Act

 Originally passed in 1994, included Immigration law remedies for victims  Battered Immigrant Women Protection Act of 2000 (VAWA 2000)  Victims of Trafficking and Violence Protection Act of 2000 (VTVPA)  Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) – HR3402

Eligibility for I-360 VAWA Self-Petition

Self-Petitioning under INA §204

1) Spouse or child of LPR or USC, and parent of adult USC (adult = over 21 years old)

Eligibility for I-360 VAWA Self-Petition

A) B) C) D) Abused spouse of USC or LPR. Can include children as derivatives even if children were not abused or related to abuser.

Non-abused spouse of USC or LPR, where the applicant’s child is abused. Can also include other children as derivatives.

Abused “intended spouse” of USC or LPR. Abused children of USC or LPR.

Eligibility for I-360 VAWA Self-Petition

2) Residence with abusive spouse/parent/ son/daughter  Not necessary to currently be with abuser  – Self-Petitioner can apply while residing outside the U.S. if: Abusive spouse is member of U.S. armed forces or employee of U.S. government, or – Self-Petitioner or child was abused by USC or LPR spouse in the U.S.

Eligibility for I-360 VAWA Self-Petition

3)Abuse or extreme mental cruelty by LPR or USC spouse/parent/son/daughter  Battered or subjected to extreme cruelty  Broad definition, includes physical, emotional/mental, sexual, psychological, economic, spiritual

Eligibility for I-360 VAWA Self-Petition

4) Good Moral Character   Must have no bars (listed in INA §101(f)) for the past 3 years Special exception to bars of GMC (INA §204(a)(1)(C))

Applicant must prove:

 – Good faith marriage to abusive USC or LPR Legal marriage and Immigration status not sole reason for marriage – If divorced, applicant must file I-360 Self-Petition within 2 years of divorce being final

Applicant must prove:

 – – – Good faith marriage (continued …) Can file if abuse occurred before abuser became LPR or USC If abuser is deported (loses LPR status) for reasons of domestic violence, may file within 2 years of abuser’s deportation If USC spouse dies, I-360 Self-Petition can be filed within 2 years of death (not for spouses of abusive LPRs)

VAWA Self-Petition: Important Points

 Abused children of USC parents can now file for VAWA up to age 25, if the abuse was at least “one central reason” for the delay in filing (VAWA 2005)  VAWA approved petitioner may remarry AFTER VAWA is approved, but not before petition filed or while pending (INA sec. 204(h)).

Miscellaneous

 VAWA Approval = Deferred Action (includes work authorization)  Derivatives can “Follow to Join”  Potential to adjust status to LPR  Confidentiality Provisions  Immigration status irrelevant in family law context for purposes of custody or maintenance

Conditional Permanent Residents

 Definition: A person who

immigrates

through a USC or LPR spouse

within two years of marrying the petitioner

.

 Petition to remove the conditions must be filed in 2 years with the petitioning spouse (green card “expires” in 2 years) or file a battered spouse waiver for DV

For Battered Spouse Waiver, must prove:

 Marriage began in good faith, and  The LPR or USC spouse battered the conditional resident or subjected her/him to extreme cruelty

VAWA Pro Bono Opportunities

 National Immigrant Justice Center, (312) 660-1370  For more information on becoming an NIJC

pro bono

partner, please contact NIJC’s pro bono coordinator. You must attend a training before representing a client through NIJC.