Transcript VAWA Pro Bono Training

VAWA Pro Bono Training
Legal Services Center for Immigrants
Legal Assistance Foundation of Metropolitan
Chicago
Family-Based Immigration
and Self-Petitions under
the Violence Against Women Act
March 31, 2005
Introduction
VAWA = Violence Against Women Act
• 8 USC §§ 1154(a)(1)(A) and (B)
• lets immigrant spouses and children get legal status
independent of their abusers
• gender-neutral
• outreach on legal rights of abused immigrants
• + staff reductions at nonprofit immigration legal aid
agencies
• > growing need for VAWA representation
Basic Immigration Terms
USCIS = U.S. Citizenship & Immigration Services
• was Imm’n. & Naturalization Service
(INS)
• then Bureau of Imm. & Cit’p. Services (BCIS)
• was in U.S. Dept. of Justice
• now in U.S. Dept. of Homeland Security (DHS)
• adjudicates immigration petitions & applications
(family petition, EAD, AOS, naturalization, etc.)
U.S. citizen = USC
How citizenship is obtained (4 main ways):
• native = born in U.S.
• acquire = born abroad to USC parent(s)
• naturalize = apply after 5+ years as LPR
• derive = if parent(s) of LPR under 18
naturalize
U.S. citizens can . . .
• live, work, vote in U.S.
• live outside U.S., yet always be readmitted
• never be deported (unless got USC by
fraud)
• if adult (21+), petition close relatives:
– spouse, minor unmarried children, AND
– parents, siblings, adult sons/daughters,
and married sons/daughters
A few more terms . . .
nonimmigrant visa = for limited time +
specific purpose
tourist (B-2), student (F-1), fiancee (K-1),
exchange visitor (J-1), etc.
immigrate
= obtain LPR status (“green card,” “mica”)
immigrant
= lawful permanent resident (LPR)
Rights of LPRs
• far fewer rights than USCs
• can live and work “permanently” in
U.S.
• BUT can be deported if
- criminal conviction (INA Sec. 237)
- abandon residency in U.S.
- LPR obtained by fraud or material
misrepresentation
Some ways to become
lawful permanent resident (LPR)
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admitted as refugee + 1 year
granted asylum + 1 year
employment-based ways
1986 legalization law (“amnesty”)
special legislation, e.g., Cuban Adjust. Act
I-130 petition by close USC or LPR relative
= most common path
A few more terms . . .
nonimmigrant visa = for limited time +
specific purpose
tourist (B-2), student (F-1), fiancee (K-1),
exchange visitor (J-1), etc.
immigrate
= obtain LPR status (“green card”)
immigrant
= lawful permanent resident (LPR)
Petition for Alien Relative (I-130)
• Petitioner
= USC or LPR who files petition so that
close relative can someday “immigrate”
to U.S.
submits proof of USC or LPR status
+ of relationship
Beneficiary
= relative for whom petition is filed
(spouse, son or daughter, parent, sibling)
Derivative beneficiary
= spouse or unmarried minor child (under
21) of principal beneficiary
• spouse of LPR must wait 5+ years
– If from Mexico, must wait 7+ years
Preference Immigrants
1. Petitioner sends I-130 to USCIS (Lincoln, NE)
2. Beneficiary awaits I-130 approval from Lincoln
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•
Before 7/15/04, approved in 1-2 years
Now, decided only once PD current and can
apply for LPR status
3. Beneficiary waits until PD is “current”
= has passed on monthly DOS Visa Bulletin
Where Beneficiary Can Apply for LPR
Status
If abroad, Consular Processing
If in U.S., Adjustment of Status to LPR
Consular Processing
= at interview at U.S. consulate abroad,
granted immigrant visa,
then admitted to U.S. as LPR
usually is sole option if living abroad,
or if living in U.S. but not eligible to adjust
Adjustment of Status
To apply to “adjust status” to LPR status,
must be living in U.S., AND
- be IR and prove last entered U.S. legally,
OR
- be eligible to adjust via INA § 245(i), OR
- have approved or IR VAWA petition
When Beneficiary Can Apply for
LPR Status
Turns on petitioner’s
- immigration status (USC vs. LPR)
- family relationship to beneficiary
IRs vs. Preference Immigrants
“Immediate relatives”
(spouse, parent, or minor unmarried child of USC)
• exempt from visa backlogs, so can apply
immediately
• “processing” of LPR application (filing-tointerview) still takes 1-2 years
“Preference immigrants” = everyone else
can’t apply until PD becomes current
because are subject to visa backlogs
Visa Backlogs and Waiting Lists
• Limited # allotted per year, and demand
exceeds supply > visa backlog
• Priority date (PD) = date I-130 filed
• sets place in line to apply for LPR
• can’t apply for LPR until PD “current” on Visa
Bulletin (VB)
• VM shows what PD holders can now apply
• Movement VB depends on demand
– how many people immigrate each month
Family Preference Categories
1st Preference: unmarried adult sons and
daughters of USCs
2nd Preference:
2A:
spouses and unmarried minor
children of LPRs
2B:
unmarried adult sons and
daughters of LPRs
3rd Preference: married sons and daughters of
USCs
4th Preference: siblings of USCs
Visa Bulletin – April 2005
Family Preference Category
All other India
countries
Mexico
1:
Unmarried sons/daughters
of USCs
3-15-01
3-15-01
10-22-94 12-15-90
2A:
Spouses & unmarried
children of LPRs
1-8-01
1-8-01
1-15-98
2B:
Unmarried adult
sons/daughters of LPRs
10-15-95
10-15-95 3-15-92
10-15-95
3:
Married sons/daughters of
USCs
1-22-98
1-22-98
4-8-95
8-1-90
4:
5-15-93
9-8-92
5-15-93
11-22-82
Siblings of adult USCs
Philippines
1-8-01
Immigrating via Marriage to USC or
LPR
Consular Processing abroad:
- USC/LPR files I-130
- couple interviewed at U.S. consulate
abroad
- DOS decides if admissible under imm.
law
- then spouse admitted to U.S. as LPR
Adjustment of Status via I-130
If already in U.S., I-130 option:
USC/LPR files I-130
If LPR, must then wait until PD current
She files I-485 with local CIS office
Couple attend AOS interview 6 – 22 mo.
later, where CIS decides whether
- she married in good faith
- she’s admissible under imm. law
Adjustment of Status via fiancée visa
If abroad and not yet married, she:
• Obtains K-1 visa to come to U.S.
• Marries within 90 days after arrival
• Applies for adjustment
Abusers often use immigration status
to control spouse and children
• refusing to file immigration papers
• threatening to
- cancel I-130 he filed
- divorce her so she can’t get papers
- not accompany to her green card interview
- tell INS she only married him for papers
- get her deported by “calling INS”
- keep the children
Before VAWA
• If no petition, or if petition withdrawn by
abuser, wife/child were left in legal limbo
• no legal status + no way to get it
• If abuser refused to accompany wife/child
to adjustment interview, INS would deny
application + start deportation proceedings
Life Without Papers
• Very difficult in U.S. if undocumented
• No work permit > turned down for better
jobs + at risk for exploitation in poor jobs
• No SSN > no state ID, no driver’s license
• Can’t open bank account or insure car
• Constantly fear deportation and separation
from USC children
• Can’t travel abroad and return if relative
there is ill, or if need to escape abuse
VAWA
• INA (Immigration & Nationality Act)
§ 204(a)(1)(A) and (B)
= 8 USC § 1154(a)(1)(A) and (B)
• lets abused spouses and children start
process toward LPR status, independent of
abusers
• “self-petitioner” is both beneficiary, and
her own petitioner
4 Steps to Legal Status via VAWA
1. File VAWA petition to VAWA Unit
housed in Vermont Service Center
decides all VAWAs nationwide
trained in dynamics of DV
2. Await approval of VAWA
basis to apply for LPR status once PD
current
More benefits of approved VAWA
• granted Deferred Action = formal decision
that as abuse victim, she’s too low a priority
for DHS to initiate removal procgs.
• Deferred Action entitles to EAD, renewable
until she becomes LPR
• I-360 replaces any I-130 by spouse
• still subject to visa backlog if abuser = LPR
• but can retain PD from I-130 even if divorce,
abuser cancels I-130, or dies
3. Wait until PD becomes current, then
4. Apply to adjust status
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File adjustment application
Get fingerprinted by USCIS
Await interview
Attend interview at Chicago CIS
Show admissible under immigration
law
Typical VAWA Scenario
1. Noncitizen marries USC or LPR
2. USC or LPR abuses her or her/their child
3. Abuser refuses to file petition, or threatens to
withdraw petition, divorce her, or not attend her
green card interview
4. Abused spouse/child feels trapped
5. Then learns of rights and files VAWA petition
6. VAWA approved and Deferred Action granted:
> work permit and low risk of deportation
7. Abused spouse/child eventually become LPRs
with no reliance on abuser
VAWA Requirements
1. Spouse, child, or stepchild of USC or
LPR via legally valid marriage
2. Good moral character
3. Married in “good faith”
4. Past or present residence with abuser
5. Battered and/or subjected to “extreme
cruelty”
1- Spouse/Child of USC or LPR
• Legally valid marriage:
Must have terminated own prior marriage
If abuser didn’t, but she was unaware as of
DOM, she is still “intended spouse”
• Child = biological child, or stepchild
(parents married before child turned 18)
VAWA Deadlines
Can still file VAWA within 2 years after:
• Couple divorce,
• USC abuser dies, or
• LPR abuser is deported due to DV
incident
2 – Good Moral Character
Focus is on 3 years before filing
= statutory period
Earlier period also relevant
= “residual” GMC
Misdemeanor convictions may not bar
GMC, especially if connected to abuse
3 – Married in Good Faith
• Must have married intending to establish
life together, not just for papers
• Key = intent at DOM
• Facts before and after DOM relevant:
courtship, etc.
4 – Joint Residence
• Must have lived with abuser
– In U.S. or abroad
– No minimum time requirement
• Must now reside in U.S., or
• Can file from abroad if
– abused in U.S., or
– if abuser is U.S. government employee
or member of uniformed services
5 – Battery or Extreme Cruelty
• Can file VAWA as
• abused spouse,
• abused child, or
• parent of abused child
• Abuse of spouse or stepchild must have
occurred during marriage
• Prior abuse also relevant
What qualifies as abuse
• Violent acts or threats of violence
– including sexual abuse or exploitation
• “Extreme cruelty”
= mental/emotional abuse
• Often = a pattern of behavior intended to
intimidate and control
Abuse (cont.)
• Physical abuse = violence or threats
of violence
• Includes slapping, pushing, etc., even
if - not physically injured
- didn’t call police
Client may deny or minimize abuse
Sexual abuse
• Sexual assault, rape, forced
prostitution
• Ask the right questions:
“Did he ever force you to have sex?”
“Were you afraid to refuse him?”
“What were you afraid would happen?”
• But if client hesitant, let DV counselor
elicit facts and write detailed letter
What is extreme cruelty
See extreme cruelty questionnaire
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Verbal abuse and degradation
Isolation
Intimidation
Economic abuse
Extreme possessiveness and jealousy
Degradation and constant criticism
Extreme cruelty (cont.)
• Using children
• Coercion and threats to:
– get her deported and/or take away
children away if she leaves him, calls
police, goes to court against him
– call DCFS
VAWA Requirements Review
1. Legally valid marriage to USC or LPR,
child of USC or LPR,
or stepchild of legally valid marriage
2. Good moral character
3. Married in good faith
4. Resided with abuser
5. Abused by spouse or parent during the
marriage
Working with VAWA Clients
• Might be nervous, upset, intimidated,
unresponsive/“shut-down” -- PTSD?
• Be patient and express sympathy
• Try to gain trust and put at ease
• Ask questions in different ways if needed
• Offer her chance to write out her story
• Never use her relative as interpreter
• Encourage her to use DV support services
(counselors, support groups, shelters)
Preparing a VAWA Case
Complete Packet Includes:
• Government-issued photo ID, to establish
her identity
• I-360 photo VAWA Petition
• I-765 for Employment Authorization +
photos
• Documents to support each statutory
requirement
VAWA Petitioner’s Affidavit
= the Most Important Document!
Client’s story in her own words
OK to edit; needn’t re-write or correct grammar
Chronological is best:
• History of entries into/departures from U.S.
“DOE, POE, and MOE” + why left + why
returned
• How couple 1st met, courtship, wedding,
marriage, children if any
• When abuse began, details of 1st + worst
incidents, separations, use of DV services
Self-Petitioner’s Affidavit, cont.
List all marital addresses (at least what
towns)
Assert own good moral character
e.g., “I have never been arrested or
convicted of a crime in the U.S. or
anywhere else.”
State whether ever under immigration
proceedings
(means deportation, removal, etc.)
Documenting VAWA Requirements
Generous standard of proof
= “any credible evidence”
Make proof as strong as can
Give client
DV affidavit guides – pp. 6.13 - 6.14
List of Suggested Documents – p. 3.8
VAWA pamphlet – knowledge = power!
1A - Proving Abuser Is USC
If native USC, birth certificate or U.S. passport
If can’t get, give date, place of birth (POB) = town
and state, and parents’ complete names
Check for docs showing POB in U.S:
– marriage license application
– birth certificate of abuser’s child
– arrest reports
If naturalized, U.S. passport, natz. certificate, or
anything showing former A#, e.g., any INS/CIS
receipt or approval notice -- for I-130 he filed?
1B - Proving Abuser Is LPR
• I-551 = “green card” = LPR card
• A-# (Alien Registration Number)
• any INS/CIS letters, receipts, applications
IF A-NUMBER UNKNOWN, give:
Abuser’s complete name, date of birth, town
and state of birth, parents’ complete names,
and how became LPR, if known
CIS will attempt to verify via its database
NOTE: SSN probably doesn’t help
1C - Proving Client’s Priority Date
• Best = approval notice for I-130
• Next best = receipt for I-130
• Then correspondence from National
Visa Center
• or from Dept. of State Visa Section
• May be able to write NVC and get PD
1D – Proving Marriage Legally Valid
• Proof that prior marriages of either were
terminated (divorce or death certificate)
• Search for husband’s divorce decree from
1st wife
• If insufficient information, state what
know and why believe he was divorced
• If learned only after DOM that bigamous,
describe in detail why thought he was free
to marry
2 - Proving Good Moral Character
• client’s affidavit stating no arrests or
convictions, AND
• fingerprint-based report (FBI best,
otherwise ISP)
• OR police clearance letter/all towns past 3
yrs., ALL names (maiden, married, aliases)
• OR if FP and police ltrs n/a, GMC letters
from employers, clergy, co-workers,
community groups, etc.
3 – Proving Married in Good Faith
• Marriage certificate(s) (esp. religious)
• Birth certificates of couple’s children
before or after DOM
• Anything to show husband is father, if not
named on b.c., or took paternal role for
stepchildren
• Photos of courtship, wedding, together or
either with other’s relatives/friends
• Affidavits by people who knew them as
married couple
Proving Married in Good Faith,
cont.
• Proof that financial resources and
obligations were commingled
– Joint bank statements, leases, tax
returns, mortgage, installment contracts,
etc.
– Correspondence or bills to either party
at any marital address
postmarked envelopes
4 – Proving Joint Residence
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Most of same docs as for GFM
E.g., utility bills to either party
Postmarked mail to either party
“Putting together the puzzle”
5 – Proving Abuse
• Detailed police reports (3510 S. Mich.)
• Crim. complaint and certified disposition
• Orders of protection (emergency +
plenary = dispositive proof of abuse)
- include supporting petition or affidavit
• Client’s affidavit (most important
supporting document!)
• Hospital or other medical records
• Photographs of injuries
5B – Proving Extreme Cruelty
• Get affidavits of witnesses to abuse
wherever possible
• Or even of witnesses to client’s report
of abuse
• SEE GUIDES IN MANUAL PART 6
AND GIVE TO CLIENT
Proving extreme cruelty
CRUCIAL:
• Letters from DV counselor
• Letters from witnesses to abuse or to client
reporting it
– Friends, relatives, neighbors, co-workers,
church members
– “Any credible evidence” -- hearsay rules
don’t
Filling in the Gaps
If you lack primary evidence for any
requirement,
explain why in client’s affidavit
• Abuser’s status
–Saw his passport or green card, saw
him enter U.S. legally, saw him
vote, knows he was born in U.S.
(tell how knows)
• Police reports or medical records
– None because abuser always threatened
to call Immigration and get her deported
if she called police
– Abuser refused to take her to hospital
• Joint residence
– Abuser kept all bank accounts, utilities,
etc. in his name only
Assembling the VAWA Packet
• G-28 =
• I-360 =
• I-765 =
attorney’s appearance, co-signed by client
VAWA petition
EAD application: category (c)(14) Deferred
Action
• $185 money order for I-360, or Fee Waiver Request
• $175 money order for I-765, or Fee Waiver Request
• Cover letter as “road map” to case
– Ask to preserve priority date, if any
– Point out fee waiver request, if any
• Table of contents, organizing documents by 5 statutory
requirements – helpful to characterize each, list dates
• Supporting documents, including self-petitioner’s
affidavit
CIS Responses
• Receipt notice
p. 8.2
– Usually arrives within 2-4 weeks after file
• Prima Facie Determination
p. 8.3
– Facilitates getting public benefits
– Usually arrives within 4 weeks after file
• Extension of Prima Facie Determination
• Request for Evidence
pp. 8.4 et seq.
– “blue letter”
• Approval notice
– Now taking 8 months if no RFE
pp. 8.6 - 8.7
Questions?