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

VAWAOctober 28, 2008

Presented by: Amany S. EzeldinLife 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-basedEmployment-basedDiversity Visa LotterySpecial CategoriesRefugees/AsyleesRelief 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 victimsBattered 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-360VAWA 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-360VAWA Self-Petition

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

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

C) Abused “intended spouse” of USC or LPR. D) Abused children of USC or LPR.

Eligibility for I-360VAWA 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-360VAWA 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-360VAWA 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.