The VAWA Manual: Immigration Relief for Abused Immigrants [7 ed.]

Table of contents :
Acknowledgments
Author Biographies
Table of Contents
Chapter 1: Introduction
§ 1.1 Introduction to Immigration Relief for Abused Noncitizen Spouses and Certain Other Family Members
§ 1.2 How to Use This Manual
§ 1.3 Contents of the Manual
§ 1.4 Overview of Self-Petitioning under VAWA: Who Is Eligible
§ 1.5 Overview of Self-Petitioning: Self-Petitioning Requirements
§ 1.6 Overview of Self-Petitioning: Process and Benefits
§ 1.7 Other Forms of Immigration Relief for Abused Spouses
Appendix 1-A
Chapter 2: Initial Discussions with Clients
§ 2.1 Overview of Working with Clients to Complete the Self-Petition
§ 2.2 Tips on Interviewing from Immigration and Domestic Violence Experts
§ 2.3 Using an Interpreter
§ 2.4 Explaining VAWA to Clients
§ 2.5 Explaining the VAWA Process
§ 2.6 Talking about Advantages and Disadvantages of Applying for VAWA
§ 2.7 Getting the Client Started on Gathering Documentation
§ 2.8 Next Steps
Index of Appendices
Appendix 2-A
Appendix 2-B
Appendix 2-C
Appendix 2-D
Appendix 2-E
Appendix 2-F
Appendix 2-G
Appendix 2-H
Appendix 2-I
Appendix 2-J
Appendix 2-K
Appendix 2-L
Appendix 2-M
Appendix 2-N
Chapter 3: Requirements for Self-Petitioning under the Violence Against Women Act
§ 3.1 Introduction
§ 3.2 Who Can Self-Petition under VAWA
§ 3.3 Requirements for VAWA Self-Petitioning Spouses
§ 3.4 Status of the Abuser: The Abuser Is (or Was) a United States Citizen or Lawful Permanent Resident
§ 3.5 Marriage Issues
§ 3.6 Abuse Issues: The USC or LPR Abused the Self-Petitioner during Their Marriage
§ 3.7 Residence Issues
§ 3.8 The Self-Petitioner Is a Person of Good Moral Character
§ 3.9 VAWA Exceptions for the Bars to Good Moral Character
§ 3.10 Children of the Self-Petitioner May Qualify for Derivative Status
§ 3.11 Requirements for VAWA Self-Petitioning Children
§ 3.12 The Self-Petitioner Is the Child of the Abuser
§ 3.13 The Abuser Is (or Was) a USC or LPR
§ 3.14 The USC or LPR Abused the Self-Petitioning Child
§ 3.15 The Self-Petitioning Child Is Residing in the United States at the Time the Self-Petition Is Filed, or, if Filing from Abroad, Meets Certain Requirements
§ 3.16 The Self-Petitioning Child Lives or Lived with the Abusive USC or LPR Parent
§ 3.17 The Child Is a Person of Good Moral Character
§ 3.18 Derivative Children
§ 3.19 Requirements for VAWA Self-Petitioning Parents
§ 3.20 The Self-Petitioner Is the Parent of the Abuser
§ 3.21 The Abuser Son or Daughter Is (or Was) a USC
§ 3.22 The USC Son or Daughter Abused the Self-Petitioning Parent
§ 3.23 The Self-Petitioning Parent Resides or Has Resided with the Abusive USC Son or Daughter
§ 3.24 The Self-Petitioning Parent Is a Person of Good Moral Character
§ 3.25 Prohibition on Petitioning for Abusers
§ 3.26 Humanitarian Parole
Index of Appendices
Appendix 3-A
Appendix 3-B
Appendix 3-C
Appendix 3-D
Appendix 3-E
Appendix 3-F
Appendix 3-G
Appendix 3-H
Appendix 3-I
Appendix 3-J
Appendix 3-K
Chapter 4: The VAWA Self-Petitioning Process
§ 4.1 Introduction to the VAWA Self-Petitioning Process
§ 4.2 Completing the VAWA Self-Petition
§ 4.3 Filling Out the I-360
§ 4.4 Documenting the Requirements for the I-360
§ 4.5 A Detailed Cover Letter with an Index of the Documentation
§ 4.6 Notice of Entry of Appearance by the Attorney or Accredited Representative
§ 4.7 Filing Fee Amount
§ 4.8 The Self-Petitioner’s Detailed Declaration or Affidavit
§ 4.9 Proof That the Abuser Is (or Was) a Lawful Permanent Resident or United States Citizen
§ 4.10 Proof That the Self-Petitioner Is (or Was) Married to the USC or LPR
§ 4.11 Proof That the Self-Petitioner Suffered Battery or Extreme Cruelty
§ 4.12 Proof That the Marriage or Intended MarriageWas in Good Faith
§ 4.13 Proof That the Self-Petitioner Resided with the Abuser
§ 4.14 Proof That the Self-Petitioner Has Good Moral Character
§ 4.15 Evidence of the Self-Petitioner’s Current Residence
§ 4.16 Documenting Eligibility for a VAWA Self-Petition for a Child or Parent
§ 4.17 Filing the Completed I-360 Packet
§ 4.18 Prima Facie Eligibility
§ 4.19 Notice of Action/Request for Evidence
§ 4.20 Deferred Action
§ 4.21 Preference Categories for Family-Based Immigration
§ 4.22 How the Preference System Works
§ 4.23 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate
§ 4.24 Employment Authorization
§ 4.25 Adjustment of Status and Consular Processing
§ 4.26 Notice of Intent to Deny
§ 4.27 Special Concerns for Advocates Who Are Not Attorneys or BIA Accredited Representatives
Index of Appendices
Appendix 4-A
Appendix 4-B
Appendix 4-C
Appendix 4-D
Appendix 4-E
Appendix 4-F
Appendix 4-G
Appendix 4-H
Appendix 4-I
Appendix 4-J
Appendix 4-K
Appendix 4-L
Appendix 4-M
Appendix 4-N
Appendix 4-O
Appendix 4-P
Appendix 4-Q
Appendix 4-R
Appendix 4-S
Appendix 4-T
Appendix 4-U
Appendix 4-V
Appendix 4-W
Appendix 4-X
Appendix 4-Y
Appendix 4-Z
Chapter 5: Adjustment of Status for VAWA Self-Petitioners
§ 5.1 Introduction
§ 5.2 When Will a Lawful Permanent Resident Visa Be Available?
§ 5.3 Adjustment of Status for VAWA Self-Petitioners: Adjustment Requirements
§ 5.4 When Should a Self-Petitioner File an Application for Adjustment of Status?
§ 5.5 VAWA, Aging Out, and the Child Status Protection Act
§ 5.6 Where to File the Adjustment Application for Self-Petitioners Who Have Never Been in Removal Proceedings
§ 5.7 Adjustment Applications for Self-Petitioners in Removal Proceedings
§ 5.8 Adjustment of Status for Derivative Beneficiaries
§ 5.9 Applying for Adjustment of Status
§ 5.10 The Contents of the Adjustment Application Packet
§ 5.11 Filing Fees and Requests for Fee Waivers for Adjustment Applications Filed with USCIS
§ 5.12 USCIS Interview Process
§ 5.13 If USCIS Denies Adjustment of Status
§ 5.14 Special Cases: Adjustment for Abused Spouses and Children of Principal Applicants under CAA, HRIFA, and NACARA
Index of Appendices
Appendix 5-A
Appendix 5-B
Appendix 5-C
Appendix 5-D
Appendix 5-E
Appendix 5-F
Appendix 5-G
Appendix 5-H
Appendix 5-I
Appendix 5-J
Chapter 6: Inadmissibility Grounds for VAWA Self-Petitioners
§ 6.1 Overview
§ 6.2 Health-Related Grounds
§ 6.3 Health-Related Grounds: Communicable Diseases
§ 6.4 Health Related Grounds: Lack of Vaccination
§ 6.5 Health-Related Grounds: Physical or Mental Disorders
§ 6.6 Health-Related Grounds: Drug Abusers or Addicts
§ 6.7 Criminal Grounds: Overview
§ 6.8 Some Definitions: “Conviction,” “Admission,” and “Sentence”
§ 6.9 Crimes Involving Moral Turpitude
§ 6.10 Multiple Criminal Convictions
§ 6.11 Controlled Substance Violations
§ 6.12 Traffickers in Controlled Substances
§ 6.13 Prostitution and Commercialized Vice
§ 6.14 Immunity from Prosecution
§ 6.15 Particularly Serious Violations of Religious Freedom
§ 6.16 Significant Traffickers in Persons
§ 6.17 Aggravated Felonies
§ 6.18 212(h) Waivers for Criminal Conduct for Immigrants
§ 6.19 National Security Grounds
§ 6.20 Public Charge
§ 6.21 Previous Immigration Violations: Overview
§ 6.22 Immigrants Present without Permission or Parole
§ 6.23 Failure to Attend Removal Proceedings
§ 6.24 Fraud or Willful Misrepresentation
§ 6.25 INA § 212(i) Waivers for Fraud or Misrepresentation
§ 6.26 False Claim of U.S. Citizenship
§ 6.27 Stowaways
§ 6.28 Smugglers and Encouragers of Unlawful Entry
§ 6.29 Final Civil Document Fraud Order
§ 6.30 Foreign Students
§ 6.31 Ineligible for Citizenship
§ 6.32 Prior Removal Orders or Periods of Unlawful Presence
§ 6.33 Having Previously Been Removed: INA § 212(a)(9)(A)
§ 6.34 Unlawful Presence Bars: INA § 212(a)(9)(B)
§ 6.35 Reentering the U.S. without Authorization after Removal or One Year Unlawful Presence: INA § 212(a)(9)(C)
§ 6.36 Miscellaneous Grounds
§ 6.37 Reinstatement of Prior Removal Order and Consequent Ineligibilityfor Relief
Chapter 7: Waivers of Inadmissibility for Vawa Self-Petitioners
§ 7.1 Overview
§ 7.2 The Exercise of Discretion
§ 7.3 Extreme Hardship: Definitions
§ 7.4 Documenting Extreme Hardship and Favorable Discretionary Factors
§ 7.5 INA § 212(g) Waivers for Health-Related Grounds
§ 7.6 INA § 212(h) Waivers for Criminal Conduct
§ 7.7 INA § 212(i) Waivers for Fraud or Misrepresentation
§ 7.8 INA § 212(a)(9)(B)(v) Waivers for Unlawful Presence
§ 7.9 INA § 212(a)(9)(C) Waiver for Reentering the United States without Authorization Following Immigration Violations
§ 7.10 Strategy and Procedure for Waiver Applications
§ 7.11 Form I-212 Consent to Reapply for Admission
Index of Appendices
Appendix 7-A
Appendix 7-B
Appendix 7-C
Chapter 8: Consular Processing for VAWA Self-Petitioners
§ 8.1 Introduction
§ 8.2 Overview of Consular Processing
§ 8.3 Step I: Establishing Email Correspondence and a Point of Contact
§ 8.4 Step II: Paying the Fees
§ 8.5 Step III: Submitting the On-Line Application for an Immigrant Visa, the Affidavit of Support and the Civil Documents
§ 8.6 Step IV: Preparing for the Consular Interview
§ 8.7 Step V: The Consular Interview
§ 8.8 Final Step: Once the Consulate Grants the Immigrant Visa
§ 8.9 Consular Processing for Derivative Beneficiaries
§ 8.10 Review of Visa Denials
§ 8.11 What Can Happen at the Border?
§ 8.12 Conclusion
Index of Appendices
Appendix 8-A
Appendix 8-B
Appendix 8-C
Chapter 9: Conditional Permanent Residence and Abused Immigrants
§ 9.1 Introduction
§ 9.2 What Is Conditional Resident Status?
§ 9.3 Termination of Conditional Status by USCIS during the Two-Year Conditional Period
§ 9.4 Removing Conditional Status through a Joint Petition
§ 9.5 Grounds and Procedure for Removing Conditional Status through a Waiver
§ 9.6 Petitions and Waivers Filed for Children
§ 9.7 USCIS Interview
§ 9.8 Approval of the I-751 Petition
§ 9.9 Denial and Review in Removal Proceedings
§ 9.10 Filing a VAWA Self-Petition in Lieu of Proceeding with an Application for a Waiver of the Joint Petition Requirement
§ 9.11 USCIS Notice Requirements
§ 9.12 Conclusion
Index of Appendices
Appendix 9-A
Appendix 9-B
Appendix 9-C
Appendix 9-D
Appendix 9-E
Appendix 9-F
Appendix 9-G
Chapter 10: Obtaining Relief for Abused Immigrants in Removal Proceedings
§ 10.1 Introduction
§ 10.2 An Overview of Removal Proceedings
§ 10.3 Preliminary Considerations in Removal Proceedings: Prosecutorial Discretion and Motions for Continuance, Termination, and Administrative Closure
§ 10.4 The Process of Removal Proceedings
§ 10.5 Discovery in Removal Proceedings
§ 10.6 Motions to Reopen Removal Proceedings
§ 10.7 Reinstatement of Prior Removal Order and Consequent Ineligibility for Relief
§ 10.8 Treatment of Statutory Bars to Relief for VAWA Self-Petitioners
§ 10.9 Relief for Overstaying Voluntary Departure
§ 10.10 Relief for In Absentia Removal
Index of Appendices
Appendix 10-A
Appendix 10-B
Appendix 10-C
Appendix 10-D
Appendix 10-E
Appendix 10-F
Appendix 10-G
Appendix 10-H
Appendix 10-I
Appendix 10-J
Appendix 10-K
Chapter 11: VAWA Cancellation of Removal
§ 11.1 Introduction to Cancellation of Removal
§ 11.2 A Comparison of VAWA Self-Petitions with VAWA Suspension and VAWA Cancellation
§ 11.3 The Difference between VAWA Cancellation and VAWA Suspension
§ 11.4 Persons Eligible to Apply for VAWA Cancellation of Removal or Suspension of Deportation
§ 11.5 Requirements for Cancellation of Removal or Suspension of Deportation: Overview
§ 11.6 Establishing the Family Relationship
§ 11.7 Battery or Extreme Cruelty
§ 11.8 Three Years Continuous Physical Presence
§ 11.9 Extreme Hardship
§ 11.10 Ineligibility under Certain Inadmissibility and Deportability Bars
§ 11.11 Good Moral Character
§ 11.12 Discretion
§ 11.13 Documentation and the “Any Credible Evidence” Standard
§ 11.14 The Contents of the Application
§ 11.15 The Effect of a Grant of VAWA Suspension or Cancellation: Permanent Residence
§ 11.16 Parole of the Child or Parent of a VAWA Suspension or Cancellation Grantee
§ 11.17 Denials and Appeals
Index of Appendices
Appendix 11-A
Appendix 11-B
Other ILRC Resources
Attorney of the Day Service
Reprint Permissions
Subscribe to ILRC Listservs
Related Publications

Citation preview

ILRC.VAWA.7thEd.2017Cover.final.qxp_Layout 2 6/5/17 3:04 PM Page 1

Consisting of 11 chapters, this manual includes in-depth information on the following critical areas: • VAWA self-petitioning requirements and process • Adjustment of status • Inadmissibility grounds and waivers • Removal proceedings and motions to reopen VAWA

• VAWA cancellation of removal • Conditional permanent residency • Consular processing, and more Also featured are practical tips for working with immigrant survivors of domestic violence, assembling and documenting a strong VAWA self-petition, and extensive appendices of USCIS policy guidance, sample applications, fee waiver requests, declarations, and more.

The VAWA Manual

The VAWA Manual: Immigration Relief for Abused Immigrants is a completely revised edition of our popular, comprehensive guide for advocates working with immigrant survivors of domestic violence.

The VAWA Manual Immigration Relief for Abused Immigrants

TEACHING, INTERPRETING AND CHANGING LAW SINCE I 979

a publication of the

IMMIGR ANT LEGAL RESOURCE CENTER

7th EDITION 1663 MISSION STREET SUITE 602 SAN FRANCISCO, CA 94103

T 415.255.9499 / F 415.255.9792 WWW.ILRC.ORG

7th Edition

By Evangeline Abriel, Clinical Professor of Law, Santa Clara University School of Law & Sally Kinoshita, Deputy Director, Immigrant Legal Resource Center

The VAWA Manual Immigration Relief for Abused Immigrants

7th Edition By Evangeline Abriel, Clinical Professor of Law, Santa Clara University School of Law

& Sally Kinoshita, Deputy Director, Immigrant Legal Resource Center

The Immigrant Legal Resource Center

A

Copyright 2017 Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 (415) 255-9499 www.ilrc.org

The Immigrant Legal Resource Center (ILRC) is a national, nonprofit resource center that provides legal trainings, educational materials, and advocacy to advance immigrant rights.  Since 1979, the mission of the ILRC is to work with and educate immigrants, community organizations, and the legal sector to continue to build a democratic society that values diversity and the rights of all people. WHAT WE DO Legal Professionals & Advocates 

Trainings: Throughout the year, the ILRC staff attorneys provide classroom seminars and webinars on a wide range of topics that affect the immigrant community.



Publications: ILRC publishes some of the top reference manuals on immigration law.



Technical Assistance: Our unique, nation-wide consultation service called the Attorney of the Day (AOD) provides legal assistance to attorneys, staff of nonprofit organizations, public defenders, and others assisting immigrants. Immigrants 

Community Advocacy: ILRC assists immigrant groups in understanding immigration law and the democratic process in the United States, so as to enable them to advocate for better policies in immigration law, as well as in health care, community safety, and other issues that affect the immigrant community.



Leadership Training: ILRC trains immigrant leaders how to be more effective advocates for their communities.



Know Your Rights Presentations: ILRC attorneys regularly conduct “know your rights” trainings with immigrant-based organizations to inform immigrants about their rights under the immigration laws and the United States Constitution, how to protect themselves from becoming victims of immigration fraud, changes in immigration law and policy, and a host of other issues that affect the lives of immigrants. Laws, Policies & Practice 

Monitoring Changes in Immigration Law: ILRC attorneys are experts in the field of immigration law, and keep abreast of the frequent changes in immigration case law and policy so that we can inform our constituents of those changes as soon as they occur.



Policies: ILRC conducts ongoing dialogues between Immigration Service officials and the community agency representatives to help ensure that government policies and procedures are more reasonable and fair, and to make sure that information about these policies is provided to the immigrant advocacy community in a timely manner.



Advocacy: ILRC advocates for reasonable changes in immigration law to get closer to our ideal of a system that will recognize the contributions immigrants make to our society, respect their dignity, and insure a workable, secure, and humane immigration system. How to Contact Us 

General inquiries: [email protected]



Publications: [email protected]



Seminars: [email protected]



Attorney of the Day (AOD): [email protected]

 Website: www.ilrc.org How to Support Our Work Please visit our website www.ilrc.org to make a tax-deductible contribution.

ACKNOWLEDGMENTS The VAWA Manual was originally published in 2002 as collaboration between two immigration law resource centers: the Catholic Legal Immigration Network, Inc. (CLINIC) and the Immigrant Legal Resource Center (ILRC) in San Francisco, California with funding from The California Endowment. It was updated in 2005, 2006, 2007, 2008, 2014, and now in 2017 with funding from the California State Bar Trust Fund Equal Access Fund. We are pleased to acknowledge the helpful and dedicated individuals who helped make the original VAWA Manual and this updated version possible. We are grateful to our amazing colleagues who contributed in one way or another to this manual. Susan Bowyer, formerly an ILRC Project Attorney and now Deputy Director at Immigration Center for Women and Children (ICWC); CLINIC attorney staff; ILRC Senior Staff Attorney Kathy Brady and ILRC Law Fellow Ariel Brown; Lauren Gilbert, formerly a CLINIC Staff Attorney and now a law professor at St. Thomas University School of Law in Miami; Susan Schreiber, CLINIC’s Midwestern Field Office Attorney; and CLINIC Division Director Charles Wheeler. We also appreciate the generosity of the many organizations and individuals who allowed us to use their materials in the development of this manual. Legal Momentum (formerly National Organization for Women Legal Defense and Education Fund), the Legal Aid Foundation of Los Angeles, the International Institute of the East Bay, the Northwest Immigrant Rights Project, the Katharine & George Alexander Community Law Clinic, Catholic Charities Diocese of Stockton and the ASISTA Technical Assistance Project all provided invaluable materials, input and suggestions. We would also like to send a special thanks and note of appreciation to our colleague Ann Block, a contract attorney with the ILRC who maintains a practice immigration practice in Davis, California. We are truly grateful for the expertise, experience, and sample materials she shared with us, in addition to providing updated information, research, and editing expertise in a number of chapters of this manual’s edition. Finally, we owe a note of gratitude to Timothy Sheehan of the ILRC for his hard work and patience and to Eric Cohen of the ILRC for his support and perseverance—all of which made this manual possible. Evangeline Abriel & Sally Kinoshita

AUTHOR BIOGRAPHIES Evangeline Abriel Evangeline Abriel a Clinical Professor of Law at Santa Clara University School of Law. Professor Abriel joined the Legal Research, Analysis, and Writing (LARAW) faculty at Santa Clara University School of Law in 2003 and directed the program from 2007 until 2014. In addition to teaching LARAW and Advocacy, she directs the Immigration Appellate Practice Clinic and the law school’s summer legal studies program in Sydney, Australia. Prior to joining the Santa Clara law faculty, Professor Abriel spent a year in Perth, Western Australia, where she taught at Notre Dame University School of Law and served as a consultant to the Murdoch University Law School Clinic in 1999. Upon returning to the United States, she was a senior attorney with the Catholic Legal Immigration Network, Inc. (CLINIC) in San Francisco. Professor Abriel also served as a clinical professor of law at Loyola University New Orleans from 1983 until 1999, where she practiced law with her students in the areas of immigration, juvenile, domestic, and federal civil rights law and directed the Street Law program, the summer legal studies program in Mexico, and the Mobile Immigration Law Clinic. In addition to this manual, Professor Abriel is the co-author of A Guide for Legal Advocates Providing Services to Victims of Human Trafficking (written for CLINIC and the U.S. Conference of Catholic Bishops under a grant from the Office of Refugee Resettlement). She received her J.D. from Tulane Law School. She writes and speaks frequently on immigration law matters, particularly on immigration relief for refugees and victims of abuse and crime. Sally Kinoshita Sally Kinoshita is the Immigrant Legal Resource Center’s Deputy Director based in San Francisco. She has worked at the ILRC since 2001 and has co-authored a number of publications including The U Visa: Obtaining Status for Immigrant Victims of Crime (ILRC), The VAWA Manual: Immigration Relief for Abused Immigrants (ILRC), Immigration Benchbook for Juvenile and Family Court Judges (ILRC), and Application of Protection Remedies for Victims of Domestic Abuse, Human Trafficking, and Crime under U.S. Law to Persons Physically Present in the U.S. Territories (Family Violence Prevention Fund). Prior to working at the ILRC, Sally was a Staff Attorney at Asian Law Caucus and a consultant with ASISTA, the National Immigration Project of the National Lawyers Guild and Family Violence Prevention Fund/Futures Without Violence. During law school, she worked with the UC Davis Immigration Law Clinic, Northern California Coalition for Immigrant Rights, ACLU of Northern California, and California Rural Legal Assistance Foundation. Sally earned her law degree from the University of California at Davis.

VAWA Manual March 2017

THE VAWA MANUAL: IMMIGRATION RELIEF FOR ABUSED IMMIGRANTS 7TH EDITION TABLE OF CONTENTS Chapter 1

Introduction

§ 1.1

Introduction to Immigration Relief for Abused Noncitizen Spouses and Certain Other Family Members .......................................................................... 1-1 How to Use This Manual.................................................................................... 1-2 Contents of the Manual ...................................................................................... 1-3 Overview of Self-Petitioning under VAWA: Who Is Eligible ........................... 1-4 Overview of Self-Petitioning: Self-Petitioning Requirements ........................... 1-5 Overview of Self-Petitioning: Process and Benefits .......................................... 1-6 Other Forms of Immigration Relief for Abused Spouses ................................... 1-7

§ 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 Appendix 1-A

Resources for Advocates Serving Survivors of Domestic Abuse, Trafficking and Other Crimes

Chapter 2

Initial Discussions with Clients

§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8

Overview of Working with Clients to Complete the Self-Petition ..................... 2-1 Tips on Interviewing from Immigration and Domestic Violence Experts ......... 2-2 Using an Interpreter ............................................................................................ 2-6 Explaining VAWA to Clients............................................................................. 2-7 Explaining the VAWA Process .......................................................................... 2-8 Talking about Advantages and Disadvantages of Applying for VAWA ........... 2-9 Getting the Client Started on Gathering Documentation ................................. 2-10 Next Steps ........................................................................................................ 2-13

Appendix 2-A Appendix 2-B Appendix 2-C Appendix 2-D Appendix 2-E Appendix 2-F Appendix 2-G Appendix 2-H Appendix 2-I Appendix 2-J Appendix 2-K Appendix 2-L

“Working with Immigrant Survivors” by Gail Pendleton Violence Against Women Act (VAWA) Confidentiality Provisions fact sheets IIRIRA § 384 on confidentiality and penalties for disclosure of information INS Memorandum from Office of Programs, Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA § 384 (May 5, 1997) Sample VAWA Intake Form Documentation Checklists for VAWA Requirements in English and Spanish Model client authorization for release of information Model letters requesting birth, marriage, divorce, and death records Model request for police clearance letter Model request for police reports of domestic violence incident Model request for copy of temporary restraining order Guidelines for client declarations in English and Spanish

Table of Contents 1

Immigrant Legal Resource Center March 2017

Appendix 2-M Appendix 2-N

Guidelines for a letter of support from social service providers in English and Spanish Instructions and model letters for clients to obtain criminal records (if necessary)

Chapter 3

Requirements for Self-Petitioning under the Violence Against Women Act (VAWA)

§ 3.1 § 3.2 § 3.3 § 3.4

Introduction ........................................................................................................ 3-2 Who Can Self-Petition under VAWA ................................................................ 3-3 Requirements for VAWA Self-Petitioning Spouses .......................................... 3-3 Status of the Abuser: The Abuser Is (or Was) a United States Citizen or Lawful Permanent Resident ............................................................................... 3-4 Marriage Issues .................................................................................................. 3-6 Abuse Issues: The USC or LPR Abused the Self-Petitioner during Their Marriage.................................................................................................. 3-10 Residence Issues ............................................................................................... 3-13 The Self-Petitioner Is a Person of Good Moral Character................................ 3-14 VAWA Exceptions for the Bars to Good Moral Character .............................. 3-15 Children of the Self-Petitioner May Qualify for Derivative Status .................. 3-17 Requirements for VAWA Self-Petitioning Children ....................................... 3-20 The Self-Petitioner Is the Child of the Abuser ................................................. 3-20 The Abuser Is (or Was) a USC or LPR ............................................................ 3-24 The USC or LPR Abused the Self-Petitioning Child ....................................... 3-24 The Self-Petitioning Child Is Residing in the United States at the Time the Self-Petition Is Filed, or, if Filing from Abroad, Meets Certain Requirements ....................................................................................... 3-25 The Self-Petitioning Child Lives or Lived with the Abusive USC or LPR Parent ....................................................................................................... 3-25 The Child Is a Person of Good Moral Character .............................................. 3-25 Derivative Children .......................................................................................... 3-26 Requirements for VAWA Self-Petitioning Parents .......................................... 3-27 The Self-Petitioner Is the Parent of the Abuser ................................................ 3-27 The Abuser Son or Daughter Is (or Was) a USC ............................................. 3-28 The USC Son or Daughter Abused the Self-Petitioning Parent ....................... 3-29 The Self-Petitioning Parent Resides or Has Resided with the Abusive USC Son or Daughter ....................................................................................... 3-29 The Self-Petitioning Parent Is a Person of Good Moral Character .................. 3-29 Prohibition on Petitioning for Abusers ............................................................. 3-30 Humanitarian Parole ......................................................................................... 3-30

§ 3.5 § 3.6 § 3.7 § 3.8 § 3.9 § 3.10 § 3.11 § 3.12 § 3.13 § 3.14 § 3.15 § 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22 § 3.23 § 3.24 § 3.25 § 3.26

Table of Contents 2

VAWA Manual March 2017

Appendix 3-A Appendix 3-B Appendix 3-C Appendix 3-D Appendix 3-E Appendix 3-F Appendix 3-G Appendix 3-H Appendix 3-I Appendix 3-J Appendix 3-K Appendix 3-L

Aleinkoff, Executive Associate Commissioner, Office of Programs, INS Mem/HQ 204-P, April 16, 1996 Gail Pendleton and Ann Block, “Applications for Immigration Status under the Violence Against Women Act,” 2001 AILA Annual Meeting Materials, at Volume II Yates, Associate Director, Operations, USCIS Mem./HQOPRD 70/8.1/8.2, January 19, 2005 USCIS Chart: Waivable Conduct Contained in the Statutory Bars to Establishing Good Moral Character USCIS Attachment to January 19, 2005 Memoranda: Authorities Affecting False Testimony Determinations Sample Humanitarian Parole Packet Aytes, Acting Associate Director, Domestic Operations, USCIS Mem/HQ 70/8, October 31, 2005 Sally Kinoshita, Extreme Cruelty: What it is and how to prove it, Asista Newsletter, 2-4 (Fall 2006) USCIS Policy Memorandum, “Continued Eligibility to File for Child VAWA Self-Petitioners After Attaining Age 21,” PM-602-0048, September 6, 2011 USCIS Policy Memorandum, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen,” PM-602-0046, August 30, 2011 ILRC Practice Advisory, “Marriage Equality in Immigration Law: Immigration Benefits for Same-Sex Married Couples” Novak, Director, Vermont Service Center, USCIS Mem/HQOPRD 70/8.1/8.2, January 19, 2005

Chapter 4

The VAWA Self-Petitioning Process

§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6

Introduction to the VAWA Self-Petitioning Process ......................................... 4-1 Completing the VAWA Self-Petition................................................................. 4-2 Filling Out the I-360 ........................................................................................... 4-2 Documenting the Requirements for the I-360 .................................................... 4-7 A Detailed Cover Letter with an Index of the Documentation........................... 4-8 Notice of Entry of Appearance by the Attorney or Accredited Representative .................................................................................................. 4-10 Filing Fee Amount ........................................................................................... 4-10 The Self-Petitioner’s Detailed Declaration or Affidavit................................... 4-10 Proof That the Abuser Is (or Was) a Lawful Permanent Resident or United States Citizen ........................................................................................ 4-11 Proof That the Self-Petitioner Is (or Was) Married to the USC or LPR .......... 4-12 Proof That the Self-Petitioner Suffered Battery or Extreme Cruelty ............... 4-13 Proof That the Marriage or Intended Marriage Was in Good Faith ................. 4-14 Proof That the Self-Petitioner Resided with the Abuser .................................. 4-15 Proof That the Self-Petitioner Has Good Moral Character .............................. 4-16 Evidence of the Self-Petitioner’s Current Residence ....................................... 4-17

§ 4.7 § 4.8 § 4.9 § 4.10 § 4.11 § 4.12 § 4.13 § 4.14 § 4.15

Table of Contents 3

Immigrant Legal Resource Center March 2017

§ 4.16 § 4.17 § 4.18 § 4.19 § 4.20 § 4.21 § 4.22 § 4.23 § 4.24 § 4.25 § 4.26 § 4.27 Appendix 4-A Appendix 4-B Appendix 4-C Appendix 4-D Appendix 4-E Appendix 4-F Appendix 4-G Appendix 4-H Appendix 4-I Appendix 4-J Appendix 4-K Appendix 4-L Appendix 4-M Appendix 4-N Appendix 4-O Appendix 4-P Appendix 4-Q Appendix 4-R Appendix 4-S Appendix 4-T Appendix 4-U Appendix 4-V

Documenting Eligibility for a VAWA Self-Petition for a Child or Parent ........................................................................................................... 4-17 Filing the Completed I-360 Packet ................................................................... 4-20 Prima Facie Eligibility..................................................................................... 4-20 Notice of Action/Request for Evidence............................................................ 4-21 Deferred Action ................................................................................................ 4-23 Preference Categories for Family-Based Immigration ..................................... 4-24 How the Preference System Works .................................................................. 4-25 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate ................................................................... 4-25 Employment Authorization .............................................................................. 4-28 Adjustment of Status and Consular Processing ................................................ 4-31 Notice of Intent to Deny ................................................................................... 4-32 Special Concerns for Advocates Who Are Not Attorneys or BIA Accredited Representatives .............................................................................. 4-33 VAWA Document-Gathering Guide Form I-360 Sample VAWA Self-Petitioning Cover Letter Form G-28 Yates, Associate Director, Operations, USCIS Mem/HQ70/5.5, March 4, 2004 Sample Fee Waiver Requests Sample Self-Petitioner Declaration Pearson, Executive Associate Commissioner, Office of Field Operations, INS Mem. HQADN/70/8, January 2, 2002 INS Memorandum, May 6, 1997, from the Office of Programs, regarding Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues Sample Receipt Notice Sample Prima Facie Determination Notice Sample Notice of Action/Request for Evidence Sample VAWA Approval Notice and Initial Grant of Deferred Action Yates, Director, Operations, USCIS Mem. HQOPRD 70/8.1/8.2, dated April 8, 2004 Cronin, Acting INS Executive Association Commissioner, INS Mem. HQ/AND/70/6.1IP, dated September 8, 2000 Sample State Department Visa Bulletin Form I-765 Sample Notice of Intent to Deny Form G-639 (FOIA Request) Virtue, Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA § 384m 96 act.036, May 5, 1997 VAWA Adjustment of Status Red Flag Checklist Sample Response to Notice of Intent to Deny

Table of Contents 4

VAWA Manual March 2017

Appendix 4-W Appendix 4-X Appendix 4-Y Appendix 4-Z

Sample Letter Requesting Extension of Prima Facie Determination “Violence Against Women Act (VAWA) Confidentiality Provisions at the Department of Homeland Security” Fact Sheet Asista VAWA Good Faith Marriage Amicus Brief “Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self-Petition; and, Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants,” Draft PM-602-XXXX (Dec. 12, 2012)

Chapter 5

Adjustment of Status for VAWA Self-Petitioners

§ 5.1 § 5.2 § 5.3

Introduction ........................................................................................................ 5-1 When Will a Lawful Permanent Resident Visa Be Available? .......................... 5-2 Adjustment of Status for VAWA Self-Petitioners: Adjustment Requirements .................................................................................. 5-5 When Should a Self-Petitioner File an Application for Adjustment of Status? ............................................................................................................ 5-6 VAWA, Aging Out, and the Child Status Protection Act ................................ 5-10 Where to File the Adjustment Application for Self-Petitioners Who Have Never Been in Removal Proceedings...................................................... 5-14 Adjustment Applications for Self-Petitioners in Removal Proceedings .......... 5-15 Adjustment of Status for Derivative Beneficiaries ........................................... 5-17 Applying for Adjustment of Status .................................................................. 5-18 The Contents of the Adjustment Application Packet ....................................... 5-22 Filing Fees and Requests for Fee Waivers for Adjustment Applications Filed with USCIS ............................................................................................. 5-25 USCIS Interview Process ................................................................................. 5-25 If USCIS Denies Adjustment of Status ............................................................ 5-27 Special Cases: Adjustment for Abused Spouses and Children of Principal Applicants under CAA, HRIFA, and NACARA .............................. 5-27

§ 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13 § 5.14 Appendix 5-A Appendix 5-B Appendix 5-C Appendix 5-D Appendix 5-E Appendix 5-F Appendix 5-G

USCIS, Policy Memorandum 602-0022, Subject: Revocation of VAWABased Self-Petitions (Forms I-360), AFM Update AD10-49 (December 15, 2010) Form I-912 Request for Fee Waiver Michael L. Aytes, Assoc. Dir. Dom. Opers, USCIS, re “Adjustment of status for VAWA self-petitioner who is present without inspection,’ April 11, 2008 Adjustment Cover Letter Form G-325 Form I-864W, Intending Immigrant’s Affidavit of Support Exemption William R. Yates, Assoc. Dir. For Opers., USCIS, Re: Age-Out Protections Afforded Battered Children Pursuant to the Child Status Protection Act and the Victims of Trafficking and Violence Protection Act,” HQOPRD 70/6.1.1 (August 17, 2004)

Table of Contents 5

Immigrant Legal Resource Center March 2017

Appendix 5-H Appendix 5-I Appendix 5-J

Form G-1145 E-Notification of Application/Petition Acceptance Adjustment Interview Preparation Materials Form I-485

Chapter 6

Inadmissibility Grounds for VAWA Self-Petitioners

§ 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12 § 6.13 § 6.14 § 6.15 § 6.16 § 6.17 § 6.18 § 6.19 § 6.20 § 6.21 § 6.22 § 6.23 § 6.24 § 6.25 § 6.26 § 6.27 § 6.28 § 6.29 § 6.30 § 6.31 § 6.32 § 6.33 § 6.34 § 6.35

Overview ............................................................................................................ 6-2 Health-Related Grounds ..................................................................................... 6-3 Health-Related Grounds: Communicable Diseases............................................ 6-4 Health Related Grounds: Lack of Vaccination ................................................... 6-4 Health-Related Grounds: Physical or Mental Disorders .................................... 6-5 Health-Related Grounds: Drug Abusers or Addicts ........................................... 6-5 Criminal Grounds: Overview ............................................................................. 6-6 Some Definitions: “Conviction,” “Admission,” and “Sentence” ....................... 6-8 Crimes Involving Moral Turpitude .................................................................. 6-12 Multiple Criminal Convictions......................................................................... 6-15 Controlled Substance Violations ...................................................................... 6-15 Traffickers in Controlled Substances ............................................................... 6-16 Prostitution and Commercialized Vice............................................................. 6-17 Immunity from Prosecution.............................................................................. 6-17 Particularly Serious Violations of Religious Freedom ..................................... 6-18 Significant Traffickers in Persons .................................................................... 6-18 Aggravated Felonies ......................................................................................... 6-19 212(h) Waivers for Criminal Conduct for Immigrants..................................... 6-19 National Security Grounds ............................................................................... 6-21 Public Charge ................................................................................................... 6-22 Previous Immigration Violations: Overview.................................................... 6-22 Immigrants Present without Permission or Parole ........................................... 6-23 Failure to Attend Removal Proceedings ........................................................... 6-24 Fraud or Willful Misrepresentation .................................................................. 6-25 INA § 212(i) Waivers for Fraud or Misrepresentation ..................................... 6-26 False Claim of U.S. Citizenship ....................................................................... 6-27 Stowaways ........................................................................................................ 6-29 Smugglers and Encouragers of Unlawful Entry ............................................... 6-29 Final Civil Document Fraud Order .................................................................. 6-29 Foreign Students ............................................................................................... 6-30 Ineligible for Citizenship .................................................................................. 6-30 Prior Removal Orders or Periods of Unlawful Presence .................................. 6-30 Having Previously Been Removed: INA § 212(a)(9)(A) ................................. 6-30 Unlawful Presence Bars: INA § 212(a)(9)(B) .................................................. 6-32 Reentering the U.S. without Authorization after Removal or One Year Unlawful Presence: INA § 212(a)(9)(C) .......................................................... 6-39 Miscellaneous Grounds .................................................................................... 6-41 Reinstatement of Prior Removal Order and Consequent Ineligibility for Relief .......................................................................................................... 6-42

§ 6.36 § 6.37

Table of Contents 6

VAWA Manual March 2017

Chapter 7

Waivers of Inadmissibility for VAWA Self-Petitioners

§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9

Overview ............................................................................................................ 7-1 The Exercise of Discretion ................................................................................. 7-1 Extreme Hardship: Definitions ........................................................................... 7-3 Documenting Extreme Hardship and Favorable Discretionary Factors ............. 7-6 INA § 212(g) Waivers for Health-Related Grounds .......................................... 7-8 INA § 212(h) Waivers for Criminal Conduct................................................... 7-10 INA § 212(i) Waivers for Fraud or Misrepresentation ..................................... 7-11 INA § 212(a)(9)(B)(v) Waivers for Unlawful Presence ................................... 7-13 INA § 212(a)(9)(C) Waiver for Reentering the United States without Authorization Following Immigration Violations ............................................ 7-14 Strategy and Procedure for Waiver Applications ............................................. 7-14 Form I-212 Consent to Reapply for Admission ............................................... 7-17

§ 7.10 § 7.11 Appendix 7-A Appendix 7-B

Form I-601 Response to Request for Evidence on I-601 Provisional Waiver Application. NOTE: This sample concerns an application for a provisional waiver of the unlawful presence inadmissibility grounds. While VAWA self-petitioners will usually not need a waiver of these grounds, the sample provides a general example of how to assemble documents to support a waiver application.

Chapter 8

Consular Processing For VAWA Self-Petitioners

§ 8.1 § 8.2 § 8.3 § 8.4 § 8.5

Introduction ........................................................................................................ 8-1 Overview of Consular Processing ...................................................................... 8-2 Step I: Establishing Email Correspondence and a Point of Contact................... 8-6 Step II: Paying the Fees ...................................................................................... 8-6 Step III: Submitting the On-Line Application for an Immigrant Visa, the Affidavit of Support and the Civil Documents ............................................. 8-8 Step IV: Preparing for the Consular Interview ................................................. 8-10 Step V: The Consular Interview ....................................................................... 8-13 Final Step: Once the Consulate Grants the Immigrant Visa............................. 8-14 Consular Processing for Derivative Beneficiaries ............................................ 8-15 Review of Visa Denials .................................................................................... 8-17 What Can Happen at the Border? ..................................................................... 8-18 Conclusion ........................................................................................................ 8-19

§ 8.6 § 8.7 § 8.8 § 8.9 § 8.10 § 8.11 § 8.12 Appendix 8-A Appendix 8-B Appendix 8-C

Sample DS-260 DS-260 Worksheet (English) DS-260 Worksheet (Spanish)

Table of Contents 7

Immigrant Legal Resource Center March 2017

Chapter 9

Conditional Permanent Residence and Abused Immigrants

§ 9.1 § 9.2 § 9.3

Introduction ........................................................................................................ 9-1 What Is Conditional Resident Status? ................................................................ 9-2 Termination of Conditional Status by USCIS during the Two-Year Conditional Period.............................................................................................. 9-6 Removing Conditional Status through a Joint Petition ...................................... 9-7 Grounds and Procedure for Removing Conditional Status through a Waiver .............................................................................................. 9-11 Petitions and Waivers Filed for Children ......................................................... 9-21 USCIS Interview .............................................................................................. 9-22 Approval of the I-751 Petition.......................................................................... 9-24 Denial and Review in Removal Proceedings ................................................... 9-24 Filing a VAWA Self-Petition in Lieu of Proceeding with an Application for a Waiver of the Joint Petition Requirement ................................................ 9-25 USCIS Notice Requirements ............................................................................ 9-25 Conclusion ........................................................................................................ 9-25

§ 9.4 § 9.5 § 9.6 § 9.7 § 9.8 § 9.9 § 9.10 § 9.11 § 9.12 Appendix 9-A Appendix 9-B Appendix 9-C Appendix 9-D Appendix 9-E Appendix 9-F Appendix 9-G

Yates, Acting Associate Director, Operations, USCIS Mem/HQADN 70/23.12, December 2, 2003 Form I-751 Materials Aytes, Acting Associate Director, Domestic Operations, USCIS Mem/HQPRD 70/6.2.8, January 30, 2006 Yates, Associate Director, Operations, USCIS Mem/HQ SCOPS 70/23.12, June 24, 2005 Neufeld, USCIS Acting Associate Director, I-751 Filed Prior to Termination of Marriage, Memorandum to Regional, District, Service Center, and Field Office Directors, April 3, 2009 Yates, Associate Director, Operations, Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the INA, January 27, 2005 USCIS Interim Policy Memorandum, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions,” December 23, 2012.

Chapter 10

Obtaining Relief for Abused Immigrants in Removal Proceedings

§ 10.1 § 10.2 § 10.3

Introduction ...................................................................................................... 10-1 An Overview of Removal Proceedings ............................................................ 10-2 Preliminary Considerations in Removal Proceedings: Prosecutorial Discretion and Motions for Continuance, Termination, and Administrative Closure..................................................................................... 10-3 The Process of Removal Proceedings .............................................................. 10-6 Discovery in Removal Proceedings ................................................................. 10-9 Motions to Reopen Removal Proceedings ..................................................... 10-14

§ 10.4 § 10.5 § 10.6

Table of Contents 8

VAWA Manual March 2017

§ 10.7 § 10.8 § 10.9 § 10.10 Appendix 10-A Appendix 10-B Appendix 10-C Appendix 10-D Appendix 10-E Appendix 10-F Appendix 10-G

Appendix 10-H

Appendix 10-I Appendix 10-J

Appendix 10-K

Reinstatement of Prior Removal Order and Consequent Ineligibility for Relief ........................................................................................................ 10-18 Treatment of Statutory Bars to Relief for VAWA Self-Petitioners................ 10-24 Relief for Overstaying Voluntary Departure .................................................. 10-24 Relief for In Absentia Removal ...................................................................... 10-25 Sample Motion to Reopen Following In Absentia Removal Sample Motion to Reopen for Adjustment based on VAWA Self-Petition Sample Motion to Reopen for Continuance and/or Administrative Closure for VAWA I-360 Adjudication Sample Motion to Recalendar and Terminate Proceedings Sample Immigration Court Order Terminating Proceedings Without Prejudice. Instructions for Submitting Certain Applications in Immigration Court John P. Torres, Office of Detention and Removal Operations, U.S. Immigration and Customs Enforcement, re “Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005” (Jan. 22, 2007) Michael Aytes, Acting Assoc. Dir. for Opers., Memorandum re “Adjudicating Forms I-212 for aliens inadmissible under section 212(a)(9)(c) or Subject to Reinstatement under section 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007)” (May 19, 2009) John Morton, Asst. Sec. ICE, “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions” (August 20, 2010) USCIS Policy Memorandum, re “Guidance for Coordinating the Adjudication of Applications and Petitions Involving Individuals in Removal Proceedings; Revisions to the Adjudicator’s Field Manual (AFM) New Chapter 10.3(i): AFM Update AD 11-16” (February 4, 2011) John Kelly, Secretary of Homeland Security, Memorandum re “Enforcement of the Immigration Laws to Serve the National Interest” (Feb. 20, 2017)

Chapter 11

VAWA Cancellation of Removal

§ 11.1 § 11.2

Introduction to Cancellation of Removal ......................................................... 11-1 A Comparison of VAWA Self-Petitions with VAWA Suspension and VAWA Cancellation ........................................................................................ 11-2 The Difference between VAWA Cancellation and VAWA Suspension ......... 11-3 Persons Eligible to Apply for VAWA Cancellation of Removal or Suspension of Deportation ............................................................................... 11-4 Requirements for Cancellation of Removal or Suspension of Deportation: Overview ..................................................................................... 11-5

§ 11.3 § 11.4 § 11.5

Table of Contents 9

Immigrant Legal Resource Center March 2017

§ 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11 § 11.12 § 11.13 § 11.14 § 11.15 § 11.16 § 11.17 Appendix 11-A Appendix 11-B

Establishing the Family Relationship ............................................................... 11-6 Battery or Extreme Cruelty .............................................................................. 11-8 Three Years Continuous Physical Presence ................................................... 11-11 Extreme Hardship ........................................................................................... 11-12 Ineligibility under Certain Inadmissibility and Deportability Bars ................ 11-14 Good Moral Character .................................................................................... 11-17 Discretion ....................................................................................................... 11-19 Documentation and the “Any Credible Evidence” Standard.......................... 11-20 The Contents of the Application .................................................................... 11-21 The Effect of a Grant of VAWA Suspension or Cancellation: Permanent Residence ..................................................................................... 11-26 Parole of the Child or Parent of a VAWA Suspension or Cancellation Grantee ...................................................................................... 11-27 Denials and Appeals ....................................................................................... 11-29 Sample VAWA cancellation application Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children (Oct. 16, 1998)

Table of Contents 10

CHAPTER 1 INTRODUCTION

This chapter includes: § 1.1

Introduction to Immigration Relief for Abused Noncitizen Spouses and Certain Other Family Members .......................................................................... 1-1 How to Use This Manual.................................................................................... 1-2 Contents of the Manual ...................................................................................... 1-3 Overview of Self-Petitioning under VAWA: Who Is Eligible ........................... 1-4 Overview of Self-Petitioning: Self-Petitioning Requirements ........................... 1-5 Overview of Self-Petitioning: Process and Benefits .......................................... 1-6 Other Forms of Immigration Relief for Abused Spouses ................................... 1-7

§ 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7

§ 1.1

Introduction to Immigration Relief for Abused Noncitizen Spouses and Certain Other Family Members

The Violence Against Women 1 Act (VAWA), enacted in 1994 and amended in 1996, 2000, 2006, and 2013 addresses a widespread problem: some abused noncitizens stay in abusive relationships because an abusive family member holds a vital key to their immigration status in the United States. United States (U.S.) immigration law permits U.S. citizens (USCs) and lawful permanent residents (LPRs) to petition for lawful status for certain relatives through a “family visa petition.” Until a noncitizen has legal immigration status, she can be deported at any time and cannot get permission to work legally. Undocumented noncitizens are ineligible for some important types of government aid like Temporary Assistance for Needy Family (TANF) and food stamps, which are critically important to victims of domestic violence to free themselves and their children from an abusive spouse and to ensure their health and safety. Too often, abusive spouses use the family visa process to control the undocumented spouse. Some refuse to file the family visa petition. Others threaten to withdraw the petition or even call immigration authorities to deport a spouse who leaves, objects, or calls the police to report the abuse. Congress did not want U.S. immigration laws to be used as a weapon in an abuser’s arsenal. So it created VAWA to permit victims in this situation to gain lawful status on their own without having to rely on abusive spouses to start and complete the process. Under VAWA’s major immigration provision, an abused spouse or child of a USC or LPR or an abused parent of an adult USC son or daughter can self-petition for lawful immigration status in the United States. Once a self-petition is approved, the self-petitioner will have some protection Although husbands, fathers, and sons are sometimes the victims of domestic violence and may be eligible for benefits under the Violence Against Women Act (VAWA), the title of the Act reflects the gender of participants in the majority of domestic violence cases. This manual generally attempts to avoid genderspecific language, but where such language is used, it similarly sometimes uses female pronouns for victims, and conversely, male pronouns for abusers. 1

1-1

Chapter 1

VAWA Manual March 2017

Chapter 1

Immigrant Legal Resource Center March 2017

from deportation, will be qualified to work legally in the United States, and can receive pretty much the same government aid that lawful permanent residents do. Under an additional provision, special rules make it easier for an abused spouse or child of a USC or LPR to qualify while in removal proceedings for cancellation of removal. Cancellation of removal is only for people who are in immigration court and there is a danger that an immigration judge might remove (deport) them from the United States if they lose their case. While VAWA can provide critically important benefits that may help many abused noncitizens escape abuse, unless potential beneficiaries hear about it, particularly from someone they trust, they cannot apply and get the benefits they need. Outreach to people who are victims of domestic violence, and who may not have immigration documents, may be very difficult. Staff of government agencies and nonprofits that work with immigrants can be extremely effective at identifying potential applicants, providing them with information and referrals, and helping them gather the documentation they need to apply. Although legislative changes to VAWA in 2000, 2006 and 2013 was improved the immigration provisions from the original version, other future, legislative changes may not be as good, so now is a good time for potential applicants to consider applying. However, it is also important to recognize that deciding whether to apply for relief under VAWA is completely up to the potential applicant. Some people who may qualify for immigration relief under VAWA may choose not to do so. Some people may feel that the application process is too complex and requires them to relive trauma they have experienced. Others may be concerned that applying under VAWA will cause their abusers to be arrested or deported, or that they will be criticized by their families or communities for going outside the family about the abuse. People’s concerns are as varied as the effects of domestic violence. Although a friend, social worker or other advocate may feel that it is essential that an immigrant victim of domestic violence apply for relief under VAWA, that helper must respect the decision of the domestic violence victim herself. § 1.2

How to Use This Manual

This manual is designed for staff of non-profits and government agencies, shelters, law enforcement agencies, schools, social service agencies, and health care providers as well as immigration lawyers, pro bono attorneys, BIA accredited representatives and paralegals. This manual guides you through the entire process of handling an immigration case with an abused noncitizen from the first meeting with a potential VAWA applicant through the completion and filing of the appropriate application, the appeal (if necessary), and adjustment of status to lawful permanent residence. Because clients’ contributions are so essential to the success of a VAWA case, this manual is not simply a discussion of legal requirements and procedures. It also includes ideas about how to help clients understand the benefits available under VAWA, the legal requirements, and ways in which they can help make their cases as strong as possible. Please see particularly the discussion of working with clients in Chapter 2. Partnering with domestic violence advocates is critical to the success of a VAWA case. Supporting a client’s involvement in the preparation of her case, the domestic violence advocate can do more than just make the case more efficient for a legal worker. As a team, the domestic 1-2

violence advocate and the legal worker can educate and encourage their client to become an active participant in her case. The client’s active and informed participation actually helps build a stronger case. As described in Chapter 2, the most important document in a VAWA case is the declaration of the applicant. A client who understands the requirements and process can create a more effective declaration. She can help identify people who can write supporting letters and declarations and communicate relevant information to them, including shelter workers, domestic violence counselors and acquaintances with knowledge of her circumstances. Finally, as described in depth in Chapter 2, it is vital that people who work with victims of domestic develop trusting relationships with them. It is therefore important to not keep clients in the dark about the rules and procedures that may have a profound impact on them and the considerations they should take into account in deciding whether to apply for VAWA relief. Much of this manual is dedicated to presenting and discussing the basic legal requirements for VAWA relief. Some of the legal requirements are clear cut and probably inflexible. Others are murky, not clearly defined, and probably flexible. VAWA advocates report that staff of the U.S. Citizenship and Immigration Service (USCIS) service center in Vermont that handles VAWA self-petitioning cases is well trained and fair. However, some VAWA policy is set at other levels of USCIS, and local USCIS offices handle VAWA cases at later stages, and even the Vermont Service Center sometimes makes mistakes. We strongly encourage you to investigate challenging the USCIS’ interpretation of any legal requirement that is not grounded in the Immigration and Nationality Act (INA). Although we have thoroughly researched the legal requirements presented in this manual, you should not use it as a substitute for your own research and knowledge. Immigration law, policy, and procedure change constantly and can be complex. Further research must be done on new developments in the field and issues not discussed in this manual. Attached to this chapter at Appendix 1-A is a list of resources for technical assistance, list serves, updates, and materials. We strongly recommend that advocates regularly consult with these resources to find the latest developments on VAWA law and procedure. § 1.3

Contents of the Manual

This manual contains 11 chapters and an appendix at the end of each chapter. The following subjects are covered in detail: •

Chapter 2 discusses issues involved in working with immigrant survivors of domestic abuse, and includes guidelines for explaining VAWA’s requirements and process in terms understandable to clients.

•

Chapter 3 provides a detailed description of the legal requirements for self-petitioning under VAWA.

•

Chapter 4 describes the self-petitioning process, including the contents of the application packet and the self-petitioning timeline.

•

Chapter 5 describes “adjustment of status”—the process in the United States through which someone (like an approved VAWA self-petitioner) becomes an LPR.

1-3

Chapter 1

VAWA Manual March 2017

Chapter 1

Immigrant Legal Resource Center March 2017

•

Chapter 6 details the Immigration and Nationality Act’s “grounds of inadmissibility,” a list of conditions and conduct which can prevent an immigrant, including a VAWA selfpetitioner, from getting LPR status

•

Chapter 7 covers waivers of the grounds of inadmissibility available to VAWA selfpetitioners.

•

Chapter 8 describes “consular processing,” the process outside of the United States through which someone with an approved immigrant visa (like an approved VAWA selfpetitioner) becomes an LPR.

•

Chapter 9 describes the process whereby a battered Conditional Resident (a person who has immigrated through a spouse within two years of having married that spouse) can have the conditions on that status removed without the cooperation of the abusive spouse.

•

Chapter 10 provides information about removal proceedings and motions to reopen for those who are required to appear for an immigration judge or who have already been ordered deported or removed in the past.

•

Chapter 11 details Cancellation of Removal, the procedure for domestic violence victims in removal proceedings to obtain LPR status.

The appendix at the end of each chapter includes many items an advocate may need to help a client submit an effective application for immigration relief, including application forms, model applications and documentation, copies of USCIS notices, statutes, and USCIS memoranda interpreting VAWA. (See the Index of Appendices at the end of each chapter). § 1.4

Overview of Self-Petitioning under VAWA: Who Is Eligible

The major limiting factor for VAWA self-petitioning is that the self-petitioner must have been abused by a USC or LPR (green card holder) spouse or parent or a USC son or daughter. This limitation is the result of Congress’s intent to remove an abuser’s power over immigration status—a power that undocumented abusers do not have. The following relatives of those abusers are eligible to self-petition (if they also meet the self-petitioning requirements described below in § 1.6): 1. An abused spouse of a USC or LPR; 2 2. An abused child of a USC or LPR (a “child” is generally defined as unmarried and under 21 years of age); 3 3. A non-abused spouse of a USC or LPR whose child is abused by the USC or LPR spouse; 4 4. An abused parent of a USC son or daughter (a “son” or “daughter” is defined as 21 years or older). 5

INA § 204(a)(1)(A)(iii) (spouse of USC) and INA § 204(a)(1)(B)(ii) (spouse of LPR). INA § 204(a)(1)(A)(iv) (child of USC) and INA § 204 (a)(1)(B)(iii) (child of LPR). 4 INA § 204(a)(1)(A)(iii) (spouse of USC) and INA § 204(a)(1)(B)(ii) (spouse of LPR). 5 INA § 204(a)(1)(A)(vii). 2 3

1-4

Note: A non-abused child of an abused spouse or child qualifies for VAWA if she is listed on the abused spouse or child’s self-petition. 6 Someone who fits into one of these categories and hopes to self-petition under VAWA is called a “VAWA self-petitioner.” See Chapter 3 for an in-depth discussion of who qualifies for VAWA self-petitioning. § 1.5

Overview of Self-Petitioning: Self-Petitioning Requirements

A person who qualifies as a spouse, child or parent according to the definitions listed above in § 1.4 must also meet all of the following requirements. See Chapter 3 for an in-depth discussion of the requirements for VAWA self-petitioning. 1. The self-petitioner’s spouse abused the self-petitioner (or her child) during the marriage (in the case of a child or parent self-petitioner, the abuse could have happened at any time.) 7 Note: The self-petitioner does not have to be married to the abuser at the time of filing the petition, if the marriage ended because of the abuse within the two years before she files the petition. 8 2. The self-petitioner was subjected to battery or extreme cruelty by the USC or LPR spouse or parent or the USC son or daughter: 9 Battery or extreme cruelty includes behavior such as the following: • • • • • • • • •

Threatening to beat or terrorize her Hitting, punching, slapping, kicking, or hurting her in any way Emotionally abusing her, such as insulting her at home or in public Forcing her to have sex when she does not want to Threatening to take her children away or hurt them Threatening to deport her or turn her over immigration authorities, as part of a larger pattern of control and abuse Controlling where she goes, what she can do, and who she can see Forcibly detaining her Engaging in a pattern of behavior that would not appear abusive if considered individually

3. The self-petitioner lived with the abuser at some time. They do not have to be living together now or when the self-petition is submitted. 10 4. With some exceptions, the self-petitioner must currently be living in the United States. If the self-petitioner is living abroad, she may still qualify if the abusing spouse is an Id.; INA § 204(a)(1)(A)(iv) and INA § 204(a)(1)(B)(iii). INA § 204(a)(1)(A)(iii)(II)(bb) (spouse of USC); INA § 204(a)(1)(B)(ii)(I)(bb) (spouse of LPR). 8 INA § 204(a)(1)(A)(iii)(ii)(aaa)(CC)(ccc) (spouse of USCs); INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(ccc) (spouse of LPRs). 9 INA § 204(a)(1)(A)(iii)(I)(bb) (spouse and intended spouse of USC); INA § 204(a)(1)(A)(iv) (child of USC); INA § 204(a)(1)(B)(ii)(I)(bb) (spouse and intended spouse of LPR); INA § 204(a)(1)(B)(iii) (child of LPR). 10 INA § 204(a)(1)(A)(iii)(II)(dd) (spouse of USC); INA § 204(a)(1)(B)(ii)(II)(dd) (spouse of LPR). 6 7

1-5

Chapter 1

VAWA Manual March 2017

Chapter 1

Immigrant Legal Resource Center March 2017

employee of the U.S. government or armed services, or the abuse occurred in the United States. 11 5. If the self-petitioner is an abused spouse, the self-petitioner must have gotten married in “good faith.” 12 6. The self-petitioner has good moral character. Basically, this means that she did not commit certain crimes or immigration offenses. 13 7. The abuser must be a USC or LPR. However, if the abuser was lost immigration status or U.S. citizenship due to an incident of domestic violence, the abused spouse or child may self-petition within two years of the loss of status or citizenship. 14 Note: If a self-petitioning spouse or child qualifies, then her children (unmarried, under 21, including adopted and stepchildren) listed on her self-petition also qualify, even if they have not suffered any form of abuse. 15 When the child of the self-petitioner turns 21, he will not lose VAWA benefits, including eligibility to apply for an immigrant visa. Instead, the USCIS will consider the derivative a self-petitioner in his or her own right and just change his visa category from that of an “unmarried child” to one for an “unmarried son or daughter.” 16 § 1.6

Overview of Self-Petitioning: Process and Benefits

Unlike most family-based immigration, an approved VAWA self-petitioner may be eligible for work authorization and certain public benefits, and protected from deportation during the waiting period before she obtains lawful permanent residence. The self-petitioning process, and the points at which an applicant is eligible for various types of relief, is briefly discussed below, and in more depth in Chapter 4. Self-petitions are adjudicated by the U.S. Citizenship and Immigration Services (USCIS) through its Vermont Service Center (VSC). 1. The self-petition is filed with a specially designated USCIS VAWA Unit at the Vermont Service Center (VSC), on Form I-360, with documentation to prove how the selfpetitioner meets the self-petitioning requirements. USCIS can correspond with a selfpetitioner’s designated representative instead of with the self-petitioner herself so her abuser will not find out that she filed a self-petition. 2. If the self-petition is apparently approvable, USCIS will send the self-petitioner (or her representative) a Notice of Prima Facie Eligibility within a few months. The selfpetitioner may use this notice as evidence of “qualified alien” status to obtain government aid like Medicare and TANF (and with some additional requirements, Food Stamps, and other benefits). Some of these benefits vary by state. INA § 204(a)(1)(A)(v) (spouse and child of USC); INA § 204(a)(1)(B)(iv) (spouse and child of LPR). INA § 204(a)(1)(A)(iii)(I)(aa) (spouse of USC); INA § 204(a)(1)(B)(ii)(I)(aa) (spouse of LPR). 13 INA § 204(a)(1)(A)(iii)(II)(bb) (spouse of USC); INA § 204(a)(1)(B)(ii)(II)(bb) (spouse of LPR). 14 INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb) (USC abuser); INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa) (LPR abuser). 15 INA § 204(a)(1)(A)(iii) (child of abused spouse of USC); INA § 204(a)(1)(B)(i) (child of abused spouse of LPR). 16 INA§ 204(a)(1)(D)(i). 11 12

1-6

3. If the USCIS approves the self-petition, the USCIS will send the self-petitioner an Approval Notice and a Notice of Deferred Action, if she requested it. 17 Deferred Action means the immigration authorities know the self-petitioner is in the United States, and most likely it will not try to deport her. The self-petitioner can apply for work authorization from the USCIS as an approved VAWA self-petitioner or the Notice of Deferred Action. 4. The self-petitioner may “adjust status” or consular process to obtain LPR status when her immigrant visa becomes available. This may be immediately for spouses, children and parents of USCs, or may take several years for spouses and children of LPRs. § 1.7

Other Forms of Immigration Relief for Abused Spouses

Some abused noncitizens who do not qualify for self-petitioning under VAWA may instead be eligible for other forms of immigration relief. Some of the other VAWA-specific options are discussed in more detail in Chapters 9 and 11. Briefly, they include: Battered Spouse Waiver of Joint Petition for Removal of Conditional Residence. A noncitizen who is a conditional resident need not file a VAWA self-petition. Conditional residence means the person actually has conditional lawful resident status that lasts for two years. In conditional residence cases, the married couple must together file a petition (called a “joint petition”) to remove the conditions near the end of the two-year period. Instead of enduring the harmful relationship and hoping her spouse will help file the joint petition, the conditional resident may have the option of obtaining a special “battered spouse waiver” showing that she has been subjected to battery or extreme cruelty during the marriage to the USC or LPR. This is discussed in further detail in Chapter 9 of this manual. VAWA Cancellation of Removal. VAWA permits some abused noncitizens to apply for permanent residence status while in removal proceedings in front of a judge in immigration court in a process called cancellation of removal. The major requirements for VAWA cancellation of removal are: • • •

the non-citizen has been battered or subject to extreme cruelty by a spouse, former spouse, or parent who is or has been a USC or LPR; the non-citizen has resided continuously in the United States for at least three years; removal from the United States would cause extreme hardship to the non-citizen, or her child or parent.

This form of relief is discussed in further detail in Chapter 11 of this manual. U Visas for Victims of Crime. Abused noncitizens who are not married to their USC or LPR abusers, or are married to abusers who are not USCs or LPRs cannot file a VAWA self-petition. However, in 2000 a “U” visa category was created for victims of crimes, including domestic violence, who are willing to help in a criminal investigation or prosecution of perpetrators of Adjudications times at USCIS services centers and district offices can vary from office and change over time. To find the processing times for the Vermont Service Center where all VAWA I-360s are adjudicated, go to https://egov.uscis.gov/cris/processTimesDisplayInit.do or go to the USCIS website at www.uscis.gov and search for “processing times.” 17

1-7

Chapter 1

VAWA Manual March 2017

Chapter 1

Immigrant Legal Resource Center March 2017

crime. This option is discussed in further detail in the ILRC’s manual entitled The U Visa: Obtaining Status for Immigrant Victims of Crime, which can be purchased at www.ilrc.org/publications. Special Immigrant Juvenile Status. Children who are in, or are eligible for, long-term foster care in dependency or are under the care of a state family, delinquency, or family court may selfpetition for an immigrant visa as a Special Immigrant Juvenile (SIJS). Under this program, the immigration status of the child’s parents is irrelevant. Furthermore, the child does not have to wait for a priority date to become current. However, the entire process needs to be completed while the child is still under a state court’s jurisdiction. This is discussed in-depth in an ILRC publication on the topic entitled, Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth, which can be purchased at www.ilrc.org/publications. T Visas for Victims of Human Trafficking. Some abused noncitizens may be eligible for the new “T” visa that was created in 2000. This visa category was created for victims of both human sex trafficking and labor-related trafficking. This is discussed in-depth in an ILRC publication on the topic entitled, Representing Survivors of Human Trafficking: A Promising Practices Handbook, which can be purchased at www.ilrc.org/publications. Asylum for Domestic Violence. Some abused noncitizens may be eligible for asylum if they can show that they were persecuted, or have a well-founded fear of future persecution, based on their race, religion, nationality, political opinion, or membership in a particular social group. Recent cases and changes in USCIS rules on domestic violence cases have made asylum for some victims of domestic violence a stronger possibility for obtaining protection and legal status. For assistance with these cases, please consult the resources available from the Center for Gender and Refugee Studies at http://cgrs.uchastings.edu/.

1-8

CHAPTER 1 REQUIREMENTS FOR SELF-PETITIONING UNDER THE VIOLENCE AGAINST WOMEN ACT (VAWA) INDEX OF APPENDICES Appendix 1-A

Resources for Advocates Serving Survivors of Domestic Abuse, Trafficking and Other Crimes

1-9

Chapter 1

VAWA Manual March 2017

Chapter 1

=

APPENDIX 1-A RESOURCES FOR ADVOCATES SERVING SURVIVORS OF DOMESTIC ABUSE, TRAFFICKING AND OTHER CRIMES Resources in this appendix are divided into two categories. The first category lists organizations and information sources for technical assistance. The second category is a list of other resources including more in-depth written materials, listserves, and websites available for the different areas of immigration law discussed in this manual. This list of resources is by no means exhaustive but provides some services available and agencies willing to provide technical assistance and materials. Technical Assistance and Training American Bar Association Commission on Immigration Policy, Practice, and Pro Bono www.abanet.org/immigprobono The ABA Commission on Immigration Policy, Practice, and Pro Bono provides grants, technical assistance, and support for pro bono programs and lawyers working with detained and released children in immigration proceedings and in immigration matters. The Commission works on policy-related issues vis-à-vis children in immigration matters and is currently undertaking a project to develop model ethical standards for the legal representation, adjudication, and detention of children in immigration matters. ASISTA Technical Assistance Project www.asistahelp.org ASISTA provides free technical assistance nationally to OVW and STOP grantees on VAWA, U status and T visa cases. Visit the ASISTA website at www.asistahelp.org/en/technical_assistance/ for more information about accessing their technical assistance. The website also contains a great deal of helpful information such as sample materials and practice pointers. Catholic Legal Immigration Network, Inc. (CLINIC) www.cliniclegal.org Provides technical assistance, training, and materials to Catholic and other non-profit organizations representing victims of domestic abuse and crime, on VAWA self-petitioning and cancellation of removal, U visas for victims of crime, T visas for victims of human trafficking, Special Immigrant Juvenile Status for immigrant children, and gender-related asylum. Maintains daily listserv of immigration-related information. The Center for Gender and Refugee Studies http://cgrs.uchastings.edu/ The Center for Gender and Refugee Studies (CGRS) provides legal expertise and resources to attorneys representing women asylum-seekers fleeing gender related harm, at both the practice

Appendix 1-A-1

Chapter 1

VAWA Manual March 2017

Chapter 1

Immigrant Legal Resource Center March 2017

and policy levels, and seeks to track decisions in these cases. CGRS also works to coordinate legal and public policy advocacy efforts through domestic and international networking, and engages in public education efforts in order to educate decision makers and the public and contribute to the formulation of national and international policy and practice. The Coalition to Abolish Slavery and Trafficking (CAST) www.castla.org CAST’s mission is to assist persons trafficked for the purpose of forced labor and slavery-like practices and to work toward ending all instances of such human rights violations. Their approach focuses on client-centered advocacy and coalition building, outreach and client services. Immigrant Legal Resource Center [email protected] and www.ilrc.org The ILRC provides technical assistance on a wide variety of matters related to immigration law and practice, ranging from family-based immigration; removal defense; the intersection between criminal and immigration law; naturalization and other citizenship matters; humanitarian benefits such as asylum and withholding of removal; options for victims of crimes and domestic abuse; relief for minors; and much more to attorneys, employees of non-profit organizations, criminal defenders, and others assisting the immigrant community. IOLTA-funded legal services providers in California and any San Francisco Bay Area nonprofit organization can contact the ILRC to get free advice and technical assistance on individual cases or policy issues. National Immigration Law Center (NILC) www.nilc.org NILC provides advice over the telephone and some training in Los Angeles area. Special expertise in public benefits law. National Immigration Project of the National Lawyers Guild www.nationalimmigrationproject.org The Project provides technical assistance, advice and resources to their member legal practitioner and community groups throughout the country with a special emphasis and expertise in the area of VAWA. It sponsors seminars and produces publications on a variety of subjects to develop and improve legal and advocacy skills. Written and Other Materials Trafficking Human Trafficking: a Resource Guide to U.S. Law, by the Legal Aid Foundation for Los Angeles (LAFLA). A free CD-ROM compilation of statutes, regulations, government memoranda, and guidance and community education materials relating to human trafficking and U visas. Identification and Legal Advocacy for Trafficking Victims, by the NYC Service Network for Trafficking Persons Legal Subcommittee.

Appendix 1-A-2

Human Trafficking and Slavery: Basic Tools for an Effective Response: Understanding the Legal Perspective, by the Freedom Network Institute on Human Trafficking. Representing Survivors of Human Trafficking: A Promising Practices Handbook by Ivy C. Lee, Lynette M. Parker & Cindy C. Liou, available through the ILRC at www.ilrc.org/publications. U Visas The U Visa: Obtaining Immigration Status for Immigrant Victims of Crime by Sally Kinoshita, Susan Bowyer, Jessica Farb & Catherine Seitz includes sample materials and detailed information for assisting immigrant crime victims with the U nonimmigrant visa petitioning process. It is available through the ILRC at www.ilrc.org/publications. Special Immigrant Juvenile Status Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth by Angie Junck, Sally Kinoshita & Kathy Brady with Kristen Jackson & Helen Lawrence. It is available through the ILRC at www.ilrc.org/publications. U.S. Government Websites U.S. Citizenship and Immigration Services www.uscis.gov Description of VAWA self-petitioning, Special Immigrant Juvenile Status, U and T visas, and asylum; forms and instructions. U.S. Department of Health and Human Services, www.acf.hhs.gov (clearinghouse website) Information about human trafficking, special information for law enforcement, social service organizations, and health care providers; fact sheets. U.S. Department of Justice www.usdoj.gov Explanation of the federal government’s activities to combat trafficking in persons, fact sheets, identification of the various federal government departments and agencies engaged in combating trafficking. U.S. Department of State www.state.gov Annual State Department Report on Trafficking in Persons, description of international efforts to combat human trafficking and of U.S. government’s role. U.S. Office of Refugee Resettlement, Department of Health and Human Services www.acf.hhs.gov/programs/orr/programs Provides resettlement benefits to asylees and victims of human trafficking; instructions for applying for benefits and contact information for state refugee coordinators. Appendix 1-A-3

Chapter 1

VAWA Manual March 2017

Chapter 1

Immigrant Legal Resource Center March 2017

Listserves VAWA Updates The VAWA Updates listserve is maintained by the ASISTA technical assistance project and provides ongoing updates about changes in VAWA and the new U visa provisions. To join the listserve, contact Asista at [email protected].

Appendix 1-A-4

CHAPTER 2 INITIAL DISCUSSIONS WITH CLIENTS 1

Tab Position 1

VAWA Manual March 2017

This chapter includes: Overview of Working with Clients to Complete the Self-Petition ..................... 2-1 Tips on Interviewing from Immigration and Domestic Violence Experts ......... 2-2 Using an Interpreter ............................................................................................ 2-6 Explaining VAWA to Clients............................................................................. 2-7 Explaining the VAWA Process .......................................................................... 2-8 Talking about Advantages and Disadvantages of Applying for VAWA ........... 2-9 Getting the Client Started on Gathering Documentation ................................. 2-10 Next Steps ........................................................................................................ 2-13

§ 2.1

Overview of Working with Clients to Complete the Self-Petition

Working with a potentially eligible client for self-petitioning under VAWA requires knowledge about two very different kinds of needs she has—one about eligibility for an immigration benefit, and the other about the nature and degree of domestic violence the client has endured. Both cases have in common the importance of encouraging and valuing the client’s informed participation. This chapter will suggest a possible way to explain the law and procedure to a client to demystify the process for her and engage her participation. A VAWA self-petitioner wins or loses her case based on how effectively she can show in her own declaration and other documents that she meets the requirements discussed in Chapter 3. A client who understands those requirements, the rationale behind them, and the VAWA process will be much more effective in explaining in a declaration how she meets key requirements to self-petition. She can also help identify people who can write supporting letters and declarations and communicate relevant information to them, including shelter workers, domestic violence counselors and acquaintances with knowledge of her circumstances. Just as important, it is vital that people who work with victims of domestic violence develop trusting relationships with them. It is therefore important that you share with clients the rules and procedures that may have a profound impact on them. A question like “are you divorced or have you or your husband filed for divorce?” may make a client worry that she might not qualify for VAWA if she answers yes, that you are judging her for losing her marriage, or that you are suggesting that she should be divorced. It may feel like hundreds of questions she may have been asked by police officers, hospital administrators and doctors, and others who have interviewed her about her situation before you. On the other hand, if you explain why the question is relevant, she may not only be able to give you a complete answer (e.g., “I want to divorce him, but I’m Much of the information provided in this chapter is based on interviews with Carmen Reyes-Yosiff, Former Managing Attorney, International Institute of the East Bay, Oakland, CA and Lyn Kirkconnell, Former Co-director of Immigration and Refugee Services, Catholic Charities, Stockton, CA.

1

2-1

Chapter 2

§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 § 2.8

afraid if I do he’ll get my kids because I won’t have a green card”), she may feel respected and included.

Chapter 2

In addition to discussing basic immigration legal issues, you must also talk to your client about the nature and degree of abuse she has endured. Experts who work with immigrant victims of domestic violence suggest allotting significantly more time for a VAWA interview than for a typical immigration interview—this may make your interviews more effective at gathering important information. They may also make your client feel more respected and acknowledged as an active agent for change in her circumstances. Those clients who are emotionally ready to take an active role in their case should be strongly encouraged to do so. Many people who are raised in more traditional and hierarchical societies are taught to adopt a somewhat passive and subservient manner when dealing with professionals such as attorneys or others working in law offices. If it is appropriate in your ongoing work with your client, encourage her to take an active role as part of the team that is trying to win something very important for her and her family. Once you have reached an understanding with your client about the collaborative nature of your working relationship, you will have laid a solid foundation for working together on building a winning case. For more information on working with immigrant crime survivors, see Gail Pendleton’s article at Appendix 2-A. WARNING: Know the Risks. While the immigration policy has been that the USCIS Vermont Service Center—the immigration office that adjudicates all VAWA self-petitions—will not report a VAWA self-petitioner to the deportation authorities, that policy could change. Thus, it is crucial that advocates examine each client’s immigration history to determine whether a client may be at increased risk for removal—for example, because she has a weak VAWA case AND a criminal history that includes an aggravated felony, or an immigration history that includes a prior order of removal. This is discussed in more detail in Chapter 4. If the advocate preparing the VAWA self-petition is not an immigration attorney or a Board of Immigration Appeals (BIA) accredited representative, he or she should consult with an immigration expert. Your client may nonetheless be able to prevail through VAWA—for example, it may be possible to reopen the client’s removal proceedings for the purpose of applying for adjustment or some other form of relief from removal. This possibility should be investigated before filing the VAWA self-petition as part of the strategic planning of the case. Motions to reopen are discussed in Chapter 10 of this manual. § 2.2

Tips on Interviewing from Immigration and Domestic Violence Experts 2

It is critical to ensure someone competent is providing your client with safety planning BEFORE you figure out her immigration options. For this reason, it is essential that immigration advocates partner with domestic violence providers on VAWA cases from the beginning. Simply providing These tips are taken from several excellent resources for working with immigrant victims of domestic violence, including NOWLDEF’s “Overcoming Cultural Barriers in Working with Immigrant Battered Women,” the Migrant Clinician Network’s “Training Manual on Domestic Violence,” and “How Can You Help a Battered Immigrant Woman?” by the International Institute of the East Bay. 2

2-2

Tab Position 1

Immigrant Legal Resource Center March 2017

a referral is not sufficient. A domestic violence partner should have substantial involvement in the case. Best Practices When Working with Immigrant Survivors 3

Tab Position 1

VAWA Manual March 2017

Although an attorney or accredited representative is needed for any analysis of legal issues, the best practice is for the legal advocate to partner with a domestic violence advocate who can take primary responsibility for: Interviewing the client to get her story. Successful and sensitive client interviewing in the VAWA context requires knowledge of domestic violence that immigration advocates typically do not have, knowing how to ask the right questions to uncover the range of things that constitute domestic violence, and time to do several lengthy interviews.

•

Helping the client write her affidavit.

•

Finding documentation to support all eligibility requirements that meet the any credible evidence standard.

•

Writing corroborating affidavits. A supporting affidavit should not simply be a list of dates the client came to the agency for counseling. Instead, it should follow the guidelines on the ASISTA website that explain what advocates should do in each paragraph of the affidavit. See www.asistahelp.org for guidelines.

•

Build trust with the client and help her navigate the systems she needs to access (family court, criminal court, public benefits, work, housing, etc.)

Because some circumstances do not allow an immigration advocate to develop a meaningful partnership with a domestic violence advocate before beginning work on a VAWA case, we provide guidance below on working with immigrant survivors of domestic abuse. Nonetheless, we reiterate that best practices dictate that a true partnership with a domestic violence agency is often key to providing the best service to your client. Before the Interview •

Partner with a local domestic violence agency who will share the responsibility of providing your client with safety planning, counseling, accompaniment and holistic services throughout the VAWA process.

•

Make sure that your office is a safe place for clients to be and to relate their stories. Keep your VAWA files in a separate, locked cabinet. Do not give information about a client’s file to anyone but the client or an authorized representative. If possible, maintain a separate VAWA interview room in which your client cannot be seen.

•

As you prepare, be aware that you are dealing with an individual who has suffered profound violence and be sensitive to the ways that different cultures deal with such issues.

Thank you to Gail Pendleton of Asista and Susan Bowyer of Immigration Center for Women and Children (ICWC) for their contributions to this Best Practices section.

3

2-3

Chapter 2

•

Chapter 2

•

Familiarize yourself as much as possible with conditions you expect will be common to the client’s community, including the treatment of women and/or domestic violence in her home country and the community in which she is living in the United States.

•

Recognize that domestic violence dynamics may result in the client’s missing appointments at a higher rate than other immigration clients.

•

Set aside enough time to interview the client so that you do not feel you need to rush. VAWA interviews will invariably be lengthy, due to such factors as trauma in reliving painful events, the need to establish rapport between the client and advocate, and translation problems. Some advocates schedule two hours for the first interview.

At the First Interview •

Tell the client how long the interview will be and that you will be telling her about the VAWA law, including who qualifies for it, its benefits and disadvantages, the application process, and the timeline. Also tell her that you’ll work together to figure out whether she qualifies for it and should apply.

•

Explain that you may be asking questions that may be painful and intrusive in order to determine whether and to what extent she has experienced domestic violence.

•

Tell the client that everything you discuss with her and everything in her files is confidential and that procedures are in place in your office to prevent her abuser from learning about her case. Point out that the immigration authorities are legally prevented from sharing information about a VAWA application with an abusive spouse or anyone except another immigration officer. 4 Ask the client when and how she would like you to contact her—for example, only during work hours, through a friend, without identifying yourself, etc.

•

Explain to the client your need to take notes (which will go in her confidential file) and ask her permission to do so.

•

Start the interview by listening, rather than explaining law. Listen attentively and nonjudgmentally. Be respectful in your manner and body language.

•

Be supportive and understanding. Reassure the client that the abuse is not her fault, that she has the right to be safe in her home, that domestic violence is against the law, that resources are available to help her.

•

Believe the client. Resist the temptation to believe a charming, well acculturated abuser more than a client who may have a hard time telling her story. Her abuser has probably

Please see materials describing this standard at Appendices 2-B through 2-D, including “Violence Against Women Act (VAWA) and the Family Violence Prevention and Services Act (FVPSA)” fact sheet prepared by National Network to End Domestic Violence, “Violence Against Women Act (VAWA) Confidentiality Provisions at the Department of Homeland Security” prepared by DHS, the text of IIRIRA § 384, and the May 5, 1997, Memorandum from INS Acting Executive Associate Commissioner Paul Virtue, “NonDisclosure and Other Prohibitions Relating to Battered Immigrants: IIRIRA § 384.”

4

2-4

Tab Position 1

Immigrant Legal Resource Center March 2017

told her that she is a liar or incompetent, so it is essential to treat her as sane, competent and believable. Explain VAWA self-petitioning to the client, including its purpose, advantages and disadvantages, process, and timeline. Break down each element into smaller sections that can be more easily understood.

•

Use open-ended questions to encourage the applicant to disclose any abuse, moving towards increasingly more specific questions.

•

Take notes with as much detail as possible so that you can remind your client about things she may not later remember.

•

Never insist that your client speak about aspects of her relationship that she does not want to share. [However, she must be forthcoming about criminal and immigration violations.]

•

Do not tell a noncitizen to contact any immigration agency on her own.

•

Realize you will not get all the information you need in the first interview. Be prepared that much of her story will unfold over the course of several meetings as she grows to trust you more, and not at the initial stages.

•

Help the client divide problems into separate pieces so they will not seem overwhelming.

•

If your client is literate, give her a list of the requirements (in the client’s native language, if possible) and refer to them as you explain them.

•

Encourage the client to ask questions about anything she does not understand.

•

If your client has a hard time remembering dates, try to help her tie dates to the occurrence of an event she remembers well, for example a holiday or the birth of a child.

•

Ask the client how she felt or feels about particular acts of abuse.

•

Some people who have experienced domestic violence might not understand or may be put off by broad concepts like “abused” or “battered” or “domestic violence” (although you can name the problem for her after hearing her story). Instead of using concepts, ask very specific questions: Don’t ask: Did your husband beat you? Ask: Did your husband ever hurt you physically, slap you, punch you, kick you, shove you, bite you, choke you, poke his finger in your chest, raise his fist at you, grab you, pull your hair, throw things at you, destroy your property, use a weapon during an argument, etc.? Don’t ask: Did your husband ever rape you? Ask: Did your husband ever make you have sexual relations when you didn’t want to? Don’t ask: Did your husband ever threaten you?

2-5

Chapter 2

•

Tab Position 1

VAWA Manual March 2017

Chapter 2

Ask: Did your husband tell you he would call Immigration and have you deported, tell you he would hurt you physically, tell you he would take your children from you, tell you he would hurt your family, etc.? •

When your client tells you about an incident, go over the incident asking specific questions, including: who, what, when, where, and how did she feel about it?

•

Help your client to access domestic violence services such as counseling and support groups to help her understand the many varieties of abuse.

•

If you don’t understand what your client has related, restate what you think she said and ask for clarification.

•

Explain your client’s legal alternatives clearly and let her make the decisions.

•

Help your client access any other services she may need, including shelter, social services, and protection through civil and or criminal legal systems.

•

Explain to your client the importance of making copies of all important documents (like birth certificates, immigration papers and school records) and keeping them in a safe place. § 2.3

Using an Interpreter 5

If your client is less than fluent in English, it is critical that you have a competent interpreter. Your client may also be non-literate in her native language. If your client does not understand you fully, or misunderstands you, or vice-versa, it can result in serious mistakes. Your relationship to your client depends very much upon how you use your interpreter. Your primary relationship should remain with your client at all times, and your interpreter should ensure he or she is just interpreting exactly what you client is saying, without additional explanation or comment. Otherwise, you risk creating distance and mistrust between you and your client. Here are some simple rules that should be strictly followed: •

Always arrange for a disinterested translator. Never use a child—particularly the client’s child—as a translator.

•

Speak directly to the client. Speak directly to your client in the second person (“How old are you?”) rather than through the interpreter in the third person (“Ask him how old he is”). This causes less confusion for the interpreter and results in the one-on-one relationship that you seek with your client.

•

Look at your client. You are interviewing your client, not the interpreter. Your client should be seated where you can see him directly.

This section was originally written by Larry Katzman and Eleanor Hoague and taken from ILRC’s manual, Winning Asylum Cases.

5

2-6

Tab Position 1

Immigrant Legal Resource Center March 2017

Use simple and short questions. Never ask lengthy or complex questions. They are difficult to interpret and often confuse the client.

•

Remind your client to speak in short phrases. It is much easier for the interpreter if your client pauses for interpretation, breaking up his answer into parts. This is an unnatural way to speak and so your client may need reminding of this several times. Train your interpreter to put up her hand in a stop fashion whenever a break in the response is needed.

•

Do not have discussions in English with your interpreter in front of your client. Discuss the process and any other information with the interpreter before or after the interview. However, sometimes the interpreter may have some valuable information for you, such as that the client is not understanding your question, or that there is an important bit of political, cultural, or geographic information that you should be aware of that impacts your client’s understanding or response. In this event, if you engage in a short conversation with the interpreter (in English), be sure to summarize the conversation for the client immediately afterward. This way, she will not suspect you of talking “about her.”

•

Try to sit across from your client. And ask the interpreter to sit next to your client. This lessens the impression that you and the interpreter are colluding, prevents head-turning, and promotes better communication.

•

Have the interpreter interpret verbatim. Don’t let him paraphrase or summarize your questions or the client’s responses. This could result in the loss of critical information, including the client’s own feelings about and perception of the facts. If you suspect that this is happening, stop the interview and reiterate the need to interpret accurately and verbatim.

•

Ask the interpreter to bring a dictionary. Also, he should have access to a pad and pen to jot down words or phrases, times, dates, numbers, names, etc.

To ensure success in working with an interpreter, make sure to discuss and agree upon all of the guidelines above before the interview. It is also very helpful to prepare the interpreter concerning the type of case and the sort of immigration relief involved, so that the interpreter is sensitized to the issues that may arise. Finally, consider whether it may be helpful to have an interpreter of the client’s own gender, which can lessen the client’s potential sense of embarrassment, shame, or reluctance to talk about sensitive matters. § 2.4

Explaining VAWA to Clients

As in any client relationship, one must cover several important elements in initial discussions with people who may be eligible to apply for VAWA. First, the client needs to know the legal requirements so she’ll know whether she might be eligible to apply. 6 Explaining the requirements In most cases, it will be most appropriate for someone else with both VAWA training and a relationship with the client—like a counselor at a shelter—to explain VAWA to her and help her make a preliminary determination whether she is eligible to apply. This will help prevent an ineligible client from getting her hopes up at the prospect of meeting a legal worker and then facing disappointment in addition to all the

6

2-7

Chapter 2

•

Tab Position 1

VAWA Manual March 2017

Chapter 2

of VAWA at the outset will make discussions about any complex aspects of the client’s case more productive. The client is also probably anxious to know whether she can apply, so any other topics will seem unimportant and frustrating to her. Explaining the law also sets the tone for a working relationship that recognizes the importance of the client’s input. Second, she needs to know about the benefits and risks involved in applying so that she can decide whether or not to pursue the VAWA self-petition. For most clients, the benefits of potentially obtaining protection from deportation and a work permit outweigh the risks inherent to being undocumented. However, many clients will have questions and concerns about bringing themselves to the attention of immigration authorities. Third, she needs to understand the VAWA process so that she feels confident working her way through it and so that she can prepare well for each step. Fourth, you must communicate that you and she are working together to prepare her VAWA application. Some clients who have experienced domestic violence will be too emotionally traumatized to play a significant role in documenting their VAWA cases. Those clients who are ready to participate should understand that while they have the most important role to play in applying, they can depend on you to carry out your responsibilities, as well. When explaining laws and procedures to a client, always try to speak as clearly and straightforwardly as possible. Be sure to explain VAWA to the client in understandable terms. Remember that the better informed a client is, the greater her ability to do her own preparation and succeed in her interview. Different methods of explanation will, of course, be more or less effective with different clients. Your explanations should always take into account your client’s education level and language abilities as well as her emotional readiness to take in a significant amount of information upon which to base important decisions. PRACTICE POINTER: Many immigration advocates have their own intake forms or client information questionnaires that can be completed during the interview described in this chapter. A sample VAWA intake form is included in Appendix 2-E. Non-immigration advocates who want to do only a preliminary screening of clients to determine whether they may be eligible for VAWA, and not to provide them with immigration services, may find the preliminary VAWA self-petitioning screening sheet useful. § 2.5

Explaining the VAWA Process

As noted earlier, it is vital that a client understand not only the legal requirements for VAWA, but also the process from VAWA application to adjustment of status, including its variable and potentially long timeline. This is also a good time to talk about three of VAWA’s most significant benefits: when and how a VAWA applicant gets protection from deportation, access to public benefits and employment authorization. Because self-petitioners whose abusers are lawful permanent residents will have multi-year waits to apply for adjustment of status, it is essential to explain what role you or your office will play during that waiting period.

other pressures she faces. However, only lawyers, BIA Accredited Representatives, and other experienced legal workers should make a final determination regarding a client’s eligibility. Domestic violence workers must always err on the side of caution by referring cases with potential problems to non-profit agencies and lawyers specializing in immigration and VAWA law and procedure. 2-8

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 2.6

Talking about Advantages and Disadvantages of Applying for VAWA

Some of the reasons people choose whether or not to self-petition are described below. The reason most people decide to self-petition is to become self-sufficient, rather than having to depend on their abusers. Self-petitioners become eligible for public benefits, employment authorization and protection from deportation so that they can get themselves and their children away from abuse. The ability to become a permanent resident (get a green card) is also very important to many self-petitioners. On the other hand, some abused non-immigrants have concerns that must be recognized and, if possible, addressed to help them decide whether to self-petition. Some are concerned that their abuser may find out that they applied and subject them to additional abuse as a result. It is important to point out to all clients that the VAWA process is confidential—that the USCIS and all of its officers are legally prevented from sharing information about a self-petition with anyone except other immigration officers. 7 Your office must abide by strict confidentiality rules, and you should also tell all your clients about whatever steps your office takes to ensure confidentiality. Many people may be concerned at the risks involved in filing a self-petition with immigration authorities when thus far they have been able to remain “under the radar.” USCIS specifically permits a self-petitioner to list on the petition an address other than her residence. She can list a trusted friend’s address or your address to receive correspondence from USCIS. This may help assuage not only her fears about her abuser discovering she submitted a VAWA self-petition but also fears she may have that ICE would try to locate her. See § 2.2, Before the Interview. Some people are concerned that self-petitioning would expose any immigration or criminal problems they may have had to the immigration authorities or the police. As of this manual’s writing (March 2017), the current policy is that the immigration authorities who adjudicate VAWA self-petitions, at the USCIS Vermont Service Center (VSC), will not generally report people who fail to qualify for VAWA, or whose applications reveal that they are deportable, into deportation proceedings. However, that policy may change. Those who are especially at risk are Please see materials describing this standard at Appendices 2-B through 2-D, including “Violence Against Women Act (VAWA) and the Family Violence Prevention and Services Act (FVPSA)” fact sheet prepared by National Network to End Domestic Violence, “Violence Against Women Act (VAWA) Confidentiality Provisions at the Department of Homeland Security” prepared by DHS, the text of IIRIRA § 384, and the May 5, 1997, Memorandum from INS Acting Executive Associate Commissioner Paul Virtue, “NonDisclosure and Other Prohibitions Relating to Battered Immigrants: IIRIRA § 384.”

7

2-9

Chapter 2

If your client has already decided that she wants to self-petition—once you’ve determined together that she’s eligible—you may not need to talk with her about the potential advantages or disadvantages. If your client isn’t sure she wants to self-petition, however, you can help her work through making the decision of whether or not to apply. Your client may already have thought about why she wants to apply and concerns she may have. You should listen carefully to her views on the subject and talk about each point she raises. Although you may feel strongly that abused immigrants should self-petition, always remember that it is the client’s decision to apply or not. Your job is to make sure that the client has all the information she needs to make an informed decision.

Tab Position 1

VAWA Manual March 2017

Chapter 2

those who may fall under new enforcement priorities set by the current President, including those with criminal arrests or convictions or gang affiliation or who could be found to be a threat to public safety or national security. Thus, it is crucial that especially anyone with criminal or serious immigration violations must consult with an immigration expert before filing a selfpetition, to ensure that those problems will not keep them from getting the self-petition approved and that the problems will not lead to deportation proceedings when they apply to “adjust status.” See the discussion of adjustment of status in Chapter 5 and grounds of inadmissibility in Chapter 6. Some abused spouses or children are concerned that information they provide in the self-petition may get their abusers in trouble with the immigration authorities or law enforcement. Although VAWA provides self-petitioners with some economic independence so that, if a spouse or parent were imprisoned or deported, the self-petitioner would have some resources to support herself, this is still a common and legitimate concern for many people. In addition, some potential selfpetitioners may recognize that they have a better chance of winning their cases if they have called the police to report abuse, or have gotten protection orders against their spouses, but are nevertheless conflicted about whether to put their abusers at risk of arrest or deportation. Finally, as described above and in Chapter 4, self-petitioning involves quite a bit of documentgathering to prepare a winnable case. PRACTICE POINTER: Deciding Whether to Self-Petition under VAWA. If your client is unsure about whether or not to self-petition, encourage her to make a list of the advantages and disadvantages in her own case. On a sheet of paper make two columns, one labeled advantages (or “pros”) and the other labeled disadvantages (or “cons”). Your client can write down the factors she feels are most important to her in the correct column. You can help your client with this exercise. Weighing advantages and disadvantages is a common way people make decisions. Writing the factors and weighing each of those factors helps a person visualize which side is more compelling. § 2.7

Getting the Client Started on Gathering Documentation

As noted above, some clients have the emotional and physical resources to do most of the work involved in gathering supporting documentation themselves. Others are in difficult living situations and/or emotional states and will need significantly more assistance in completing this task. At the same time, some advocates will have the resources to help gather documents, and others will not. Ideally, if a client can do much of the work of document-gathering, it can be an empowering and skill-building experience for her and can enable the advocate to focus on other parts of the case or on other cases. However, advocates must be careful not to overwhelm clients who do not have these resources, make them feel alone at a time when many battered immigrants feel particularly isolated, or discourage them with what may seem like a daunting task. Indeed, some clients who feel overwhelmed or unsupported may decide not to pursue otherwise valid cases and may never return to the advocate for assistance. The following discussion assumes that the client can write a declaration and gather documents by herself with guidance from the advocate, tailored to fit the capacity of each client.

2-10

Tab Position 1

Immigrant Legal Resource Center March 2017

The advocate should remind the client that each VAWA requirement must be proven with some kind of document and that they will talk about what documents they might be able to get to support the client’s case. The advocate should go over with the client one of the document checklists for VAWA requirements included in Appendix 2-F, asking the client which of the documents in each category she believes would be available and, if appropriate for the particular client, which ones she can get. 8 Different checklists, including ones in Spanish and English, are included in this appendix to serve the needs of different advocates and clients. The advocate should tell the client that they will meet again to look over the declaration and make any needed changes or additions and to look over the documents she has collected. The client and advocate should agree to a timeline for the client to write the declaration and get the documents. It may be useful now to schedule the follow up interview. The appendices also include materials that may help an advocate gather documents on the client’s behalf, or make it easier for the client to gather documents. These materials include: • • • • • • • •

A model authorization (by the client) for release of documents (to the advocate) so that the advocate can write for or pick up documents relating to the client. (Appendix 2-G) Model letters requesting birth, marriage, divorce, and death records, copies of restraining orders and court records, which can either be sent by the client herself or, with the client’s authorization letter, by you. (Appendix 2-H) Model requests for police clearance letters, which can either be sent by the client herself, or, with the client’s authorization letter, by you. (Appendix 2-I) Model request for police reports of domestic violence incidents. (Appendix 2-J) Model request for copy of restraining order. (Appendix 2-K) Guidelines for client declarations (in English and Spanish). (Appendix 2-L) Guidelines for a letter of support from social service providers (in English and Spanish). (Appendix 2-M) Guidelines and model letters for clients to obtain criminal records (if necessary). (Appendix 2-N)

The Immigrant Legal Resource Center produced a packet entitled “Document-Gathering Guide for SelfPetitioning under VAWA” that includes detailed instructions about gathering each of the documents listed in these checklists. This packet is attached as Appendix 4-A or can be downloaded for free at www.ilrc.org/resources/document-gathering-for-self-petitioning-under-the-violence-against-women-act. 8

2-11

Chapter 2

PRACTICE TIP: Working with Domestic Violence Advocates. Staff of domestic violence agencies may be the best resource to help clients get some of the documents they need. Sometimes staff from a domestic violence or non-profit agency may have referred the client to you in the first place and has an interest in helping her. Immigration advocates should cultivate relationships with local organizations and agencies that work with immigrant victims of domestic violence, to partner with them on VAWA cases. Domestic violence counselors at a shelter can help the client draft her declaration. In some cases, a sympathetic case worker may be willing to do the legwork to help a client pick up needed documents. In other cases, domestic violence agency staff can facilitate partnerships with other key allies, such as law enforcement agencies. For example, a police officer who investigated a client’s case can help the client get a police clearance letter.

Tab Position 1

VAWA Manual March 2017

Chapter 2

Client’s Declaration. The advocate should tell the client that her declaration is the most important documentary evidence in a VAWA case. Explain that the declaration should describe in her own words the history and nature of her relationship and residence with the abuser, the history and nature of the abuse, and the ways in which she has good moral character. The advocate can provide her with a copy, in English or Spanish, of “Guidelines for Client Declarations” (see Appendix 2-L). 9 Explain to the client that she should describe details rather than simply making general statements. For example, she should not write, “he abused me.” Rather, she should describe in detail several incidents of abuse, including what led up to them, how she felt about it, and specific dates, where possible. In addition, the advocate should explain that a good declaration contains the following: Section on Her Relationship to the Abuser • • • •

How, when, and where the applicant met the spouse. Description of the courtship before they married. Details about the marriage proposal and wedding day. Names and birthdates of any children.

Section on Residence with the Abuser • • •

When they moved in together. Places where they lived together. How long they lived in each place together.

Section on Domestic Violence • • • • • • • • • • • • • • • •

Describe HOW and WHEN spouse began abusive behavior; State how long into marriage the spouse’s behavior changed; Describe whether the behavior change was sudden or gradual; Focus on FIRST, WORST, and LAST incidents; Include both PHYSICAL and PSYCHOLOGICAL abuse. Describe what led up to the incidents; Explain whether the applicant called the police and, if not, why not; State whether, if police were called, the abuser was arrested and, if not, why not; State whether the applicant go to a doctor or hospital; State whether the applicant obtained a restraining order and, if so, when and from which court; State whether anyone witnessed the violence; Describe any sexual abuse; Describe any verbal abuse, including insults; Describe any abuse based on economic power; Describe any effect on children; Describe any threats by the abuser to turn the applicant into the immigration authorities or have her deported.

Developed by, and provided here with the permission of, Legal Aid Foundation of Los Angeles. Translation by, and with permission from, the International Institute of the East Bay.

9

2-12

Tab Position 1

Immigrant Legal Resource Center March 2017

Section on Good Moral Character • • • •

Lack of problems with the law. Position in, contributions to community. Role in the positive development of her children. More extensive explanation of good moral character if needed to counterbalance any problems showing good moral character. 10 § 2.8

Next Steps

First Interview: The advocate explains self-petitioning, determines whether the client meets the requirements for VAWA self-petitioning, helps the client decide whether to self-petition, and instructs the client on writing the declaration and gathering other documents. Between the First and Second Interviews: The client writes a draft of the declaration and gathers other supporting documents. The advocate completes the I-360 form using the information gathered at the first interview. Second Interview: The advocate reviews the client’s declaration and suggests changes. The advocate also looks over the documentation the client has gathered to see whether it is sufficient. If it is not, the advocate suggests ways for the client to get additional or better documentation. Third Interview: The client brings any additional documentation. The client and advocate go over the completed application and documentation to make sure everything is correct so that the client can sign it, and the advocate can send it off. The advocate and client should continue to meet periodically to: discuss notices sent by USCIS, ensure that the client gets any needed public benefits, apply for work authorization, apply for extensions of deferred action status and work authorization.

The next step in the process, the application for permanent residency, should only be completed only with assistance from an immigration expert. Please see Chapters 4, 5, 6 and 8 for discussions of helping clients at this stage.

10

See discussion in Chapter 3 on good moral character. 2-13

Chapter 2

Many VAWA practitioners recommend scheduling three interviews with a client to complete the following tasks:

• • • •

Tab Position 1

VAWA Manual March 2017

CHAPTER 2 INITIAL DISCUSSIONS WITH CLIENTS

Chapter 2

INDEX OF APPENDICES Appendix 2-A

“Working with Immigrant Survivors” by Gail Pendleton

Appendix 2-B

Violence Against Women Act (VAWA) Confidentiality Provisions fact sheets

Appendix 2-C

IIRIRA § 384 on confidentiality and penalties for disclosure of information

Appendix 2-D

INS Memorandum from Office of Programs, Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA § 384 (May 5, 1997)

Appendix 2-E

Sample VAWA Intake Form

Appendix 2-F

Documentation Checklists for VAWA Requirements in English and Spanish

Appendix 2-G

Model client authorization for release of information

Appendix 2-H

Model letters requesting birth, marriage, divorce, and death records

Appendix 2-I

Model request for police clearance letter

Appendix 2-J

Model request for police reports of domestic violence incident

Appendix 2-K

Model request for copy of temporary restraining order

Appendix 2-L

Guidelines for client declarations in English and Spanish

Appendix 2-M

Guidelines for a letter of support from social service providers in English and Spanish

Appendix 2-N

Instructions and model letters for clients to obtain criminal records (if necessary)

2-14

Tab Position 1

Immigrant Legal Resource Center March 2017

APPENDIX 2-A Working with Immigrant Crime Survivors By Gail Pendleton

Tab Position 1

VAWA Manual March 2017

Building trust is essential to working with all violence survivors, especially those who lack secure immigration status. Be aware of the barriers they experience in trying to access your help. Spend time working to overcome those barriers and building trust.

• • •

Non-citizens in general may be unfamiliar with the systems and resources available to crime survivors in this country. They may think you work for the government and may fear that talking to you will get them or their family members deported. They may come from countries or situations where there they had few or no rights (especially if they are women or children), and they may not realize that our criminal and civil justice systems must protect them, regardless of their immigration status. They may not understand the services and resources you are offering if you are not communicating in the same language. As with other survivors, they may be focused on needs that seem relatively unimportant to you, but which make sense in their own realities.

Understanding Their Reality The best way for you to learn how to work with immigrant crime survivors is to adapt and expand what you know from your current work and experience. Consider these questions in the context of your work with domestic violence and sexual assault survivors generally: • • • • • • • • •

Why might they not tell you the details of their experience? Have they experienced violence throughout their lives10 and, if so, how does this affect their actions now? If you ask them whether they have been “sexually assaulted” or “subjected to domestic violence” will they know what you’re talking about? Why might they need time to make decisions or seem paralyzed about making decisions? Why might they want to go back to the home country? Why might they fear accessing or using the US criminal system? Why might they not tell the truth? What can you do to make sure survivors are making decisions because they think they are the best for them, not because they fear those who harmed them? If their fears are legitimate, what can you do to help eliminate the reasons for their fears?

What additional issues may prevent immigrant survivors from talking to you? •

No information or misinformation about our legal system (who controls their access to this information?)

Appendix 2-A-1

Chapter 2

•

Chapter 2

• • • • •

Fear that the criminal system will harm them (who instills this?) Fear of deportation if they access services (could this happen to them?) Fear of retaliation against them or their families if they tell the truth They can’t work legally and are economically dependent on those who harmed them Their communities, here or abroad, may ostracize or punish them for challenging those who harmed them.

In addition to the answers you came up with, here are some observations from those who work with crime survivors: •

• • •

They may have difficulty identifying individual needs if they are used to thinking of their needs as irrelevant or secondary to others’ needs. Many immigrant crime victims were abused or sexually assaulted in the past, have been treated like property all their lives, or have experienced the violence of war, natural disaster, or political unrest. Like other trauma survivors, they may minimize their problems. They may not have the vocabulary to communicate what they’ve experienced, and they may use nonverbal cues differently from you (e.g., to them, eye contact may by a sign of disrespect, not truthfulness). They may not understand our mental health services or, like other crime survivors, may resist because they think there is stigma attached to them. They may be suffering, however, from various mental health problems, including Post Traumatic Stress Disorder, dissociative disorders, depression and suicidal impulses or desires.

Understanding Your Reality Try to be sensitive to the things you bring to the table that might inhibit communication with survivors: • • • • •

Your professional role Ethnic/racial differences Class (within immigrant groups, as well as between different groups) Language Gender

Any or all of these factors may make communicating difficult, unless you take steps to identify and overcome them. Assumptions and stereotypes about specific ethnic groups, see your client’s reality. The next section provides more background on these issues. Here are a few rules that are particularly relevant here: Be aware of your biases, prejudices and knowledge about a victim. • • •

Do not make assumptions based on appearance. Use appropriate language - Are you judging your client, consciously or unconsciously? Recognize your professional power and avoid imposing those values.

Appendix 2-A-2

Tab Position 1

Immigrant Legal Resource Center March 2017

• • • • •

Use non-judgmental questions Listen to the victims. Let them tell their stories. Do not assume what they know and don’t know Pay attention to verbal and nonverbal cues. Gather information about the victim’s interpretation of their culture. “What is it like for you to talk about this problem with your family or in your community?”

Thank them for sharing and acknowledge existing support systems and efforts to keep safe. Whose Life Is This? Be aware that your clients have adapted and survived by allowing themselves to be dominated and manipulated. It may be hard for them to avoid replicating these roles. It is your job, therefore, to guard against this occurring. Making decisions for your clients may backfire in many ways: it can undermine trust, it may result in choices that are not what your clients want, and it may further endanger or traumatize them. To be good at this work, you must leave at home the notion that you “know what’s best.” • • •

Don’t assume they understand what you’re telling them, just because they say they do. Ask them to repeat back what you’ve told them, so you know they understand and are not just trying to appease you. Avoid imposing your goals and your ideas about the right outcomes. Discard your assumptions and judgments. They are probably wrong and certainly unhelpful.

If you can’t meet your client’s needs right now, get them to others who can help them with their top priorities. Maintain your relationship with them, however; you can help them navigate the other people and systems they need, and you will be there when they are ready for your help. Some Basic Rules Here are some suggestions for communicating with non-citizen survivors. These are particularly important if you are the first person seeing the victim. Do NOT say: • What is your immigration status? (Do you have a green card? Are you a citizen?) • Are you “residing” in this county? (“Lawful permanent residence” is the immigration status those with “green cards” have, so the words “residing” or “resident” may be confusing)

Appendix 2-A-3

Chapter 2

Validate the victim’s strengths.

Tab Position 1

VAWA Manual March 2017

Chapter 2

Do say: • I do not work for the government, the immigration system, or the police (if this is true). My job is to help you. • Everything you tell me is confidential and I will not share it with anyone else without permission (ensure that this is true for your professional role). • I provide services regardless of your immigration status • You do not have to talk about your immigration status if you do not feel comfortable. Some victims of crimes qualify for immigration status, however, so I may tell you about some options for applying for status that could apply to you, if you are not a US citizen. • You also have rights if you are picked up by the police or by immigration. • These include the right to speak to an attorney, to not sign anything or say anything without an attorney present, and to have a hearing before a judge if you are charged with a crime or with being deportable. •

Appendix 2-A-4

Tab Position 1

Immigrant Legal Resource Center March 2017

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-B-1

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-B-2

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-B-3

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-B-4

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-C-1

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-C-2

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-D-1

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-D-2

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-D-3

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-E-1

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-F-1

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-F-2

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-F-3

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-F-4

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-G-1

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-H-1

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-H-2

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-H-3

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-H-4

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-I-1

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-I-2

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-J-1

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-K-1

APPENDIX 2-L GUIDELINES FOR CLIENT DECLARATIONS 1

Chapter 2

The immigration law for which are you applying requires that you provide evidence of a legitimate marriage and domestic violence. You need to provide a declaration, which addresses each of the categories just described. You will want to concentrate and write more about those areas where you have little or no documentary evidence. It is very important that you write the declaration in your own words and it should be informative but concise. A list of suggestion questions has been provided to help guide your discussion of each section. You do not have to answer every question because not every question will apply to your situation. > Department of Homeland Security Citizenship & Immigration Service Vermont Service Center Attn: VAWA 75 Lower Welden Street St. Albans, VT 05479-0001 I, (name of client) hereby declare the following: My name is (name of client). I met my husband in Mexico…… in You will need to address the letter to CIS as follows: Department of Homeland Security Citizenship & Immigration Service Vermont Service Center Attn: VAWA 75 Lower Welden Street St. Albans, VT 05479-0001 You should begin your declaration with the statement: “I (your name), hereby declare” as shown above. Then you should continue your declaration using some of the suggestions outlined below. Section 1: The Marriage Describe how, when and where met your husband. Include dates if possible.

1

This material was created using resources and permission of Legal Aid Foundation of Los Angeles. Appendix 2-L-1

Tab Position 1

Immigrant Legal Resource Center March 2017

Suggested things to include: • • • •

When did you meet your husband? Where did you meet your husband? How long did you date before you were married? Do you have any children together? If so, how many and how long after marriage did you have your first child?

Tab Position 1

VAWA Manual March 2017

Section 2: Domestic Violence

Do not make general statements without explanations. For example don’t say, “my husband used to hit me all the time” Instead, give specific examples of when he hit you by giving dates, and specific details of what happened. Suggested things to include: • • • • • • • • • •

How long after you were married did his behavior change? Was it gradual? How did he change? Was substance abuse involved? What led up to the incidents? Did you call the police? If not, why not? If you did, was he arrested? If not, why wasn’t he arrested? Did you get a restraining order, if so when? Did anyone witness the violence? Was there sexual abuse? (describe) Was there verbal abuse? (describe)

Section 3: Good Moral Character Write about your good moral character, including: • • •

Your lack of problems with the law Your position in, and your contributions to, your community Your role in the positive development of your children

The last section of your letter to CIS should include the following statements: “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.” Sign your declaration, and write the date.

Appendix 2-L-2

Chapter 2

Give a brief description as to how and when your husband began his abusive behavior towards you. You may want to focus on the first, worst, and last incidence of violence. Include dates if possible. Make sure to include both physical and psychological abuse.

Instrucciones para Declaración de la Aplicante

Chapter 2

La ley de Inmigración por la cual usted esta aplicando requiere que usted provee evidencia de un matrimonio legitimo y violencia domestica. Usted necesita proveer una declaración que indique cada una de las categorías anteriormente mencionadas. Necesita concentrarse y escribir sobre las arias en las cuales usted tiene muy poco o nada de evidencia. Es muy importante que usted escriba la declaración en sus propias palabras. La declaración debe ser informativa pero concisa. Si usted no sabe escribir ingles puede escribir la declaración en español. Recuerde que todo documento debe de ser sometido o traducido a ingles. Se le ha dado una lista de preguntas para ayudarle en su decisión de cada una de las secciones. No es necesario que usted conteste todas las preguntas porque no todas aplican a su situación. Ejemplo de Declaración Department of Homeland Security Citizenship & Immigration Service Vermont Service Center Attn: VAWA 75 Lower Welden Street St. Albans, VT 05479-0001 Yo, (su nombre completo) por la presente declaro lo siguiente: Mi nombre es (su nombre completo. Yo conocí a mi esposo (su nombre) en México en . . . Puede dirigir la carta a “Citizenship & Immigration Service” o “CIS” al siguiente domicilio: Department of Homeland Security Citizenship & Immigration Service Vermont Service Center Attn: VAWA 75 Lower Welden Street St. Albans, VT 05479-0001 Usted necesita empezar con la siguiente declaración: Yo, (su nombre completo), por la presente bajo multa de perjuicio que lo siguiente e verdadero y correcto a mi mejor conocimiento. Luego continúe con su declaración basando en las preguntas sugestionadas.

Appendix 2-L-3

Tab Position 1

Immigrant Legal Resource Center March 2017

Sección 1: EL MATRIMONIO Describa como, cuando y donde conoció a su esposo. Incluya fechas si es posible.

Tab Position 1

VAWA Manual March 2017

Sugerencias: ¿Cuándo conoció a su esposo? ¿En donde conoció a su esposo? ¿Cuánto tiempo estuvieron de novios antes de casarse? Tienen hijos juntos? ¿Cuantos tienen y cuanto tiempo después de casarse tuvo su primer hijó/a?

Sección 2: VIOLENCIA DOMESTICA De una breve descripción de como y cuando su esposo empeso su comportamiento abusivo contra usted. Enfoque su descripción al primer, peor, y ultimo incidente de violencia. Incluya fechas si es posible asegúrese de incluir información sobre el abuso físico y mental. No haga declaraciones generales sin explicación. Por ejemplo no diga “mi esposo me pega todo el tiempo.” En vez, de ejemplos específicos de cuando le pego, dando las fechas y detalles de lo que paso. Sugestiones: • • • • • • • • •

¿Cuánto tiempo después de casados cambio su comportamiento hacia Ud.? ¿fue gradualmente? ¿Cómo cambió él? ¿Había abuso de drogas o alcohol? ¿Que llevo acabo los incidentes? ¿Llamo a la policía? Sí o no, ¿porque no? ¿Si llamo, fue arrestado? Sí o no, ¿porque no? ¿Obtuvo una orden de restricción? Si la obtuvo, ¿cuando fue? ¿Alguien fue testigo de la violencia? ¿Hubo abuso sexual? Explique

Sección 3: BUENA CONDUCTA MORAL Escriba sobre su buena conducta, es decir falta de incidentes con las autoridades y si alguno(s), explique brevemente, posición en su comunidad, su apoyo para sus hijos, etc. La Ultima seccion de su declaracion a CIS debe incluir la siguiente declaracion: “Yo declaro bajo multa de perjuicio que lo antedicho es verdadero y correcto.” Entonces, firmar su declaración y escribir la fecha.

Appendix 2-L-4

Chapter 2

• • • •

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-M-1

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-M-2

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-M-3

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-M-4

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-N-1

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-N-2

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-N-3

Tab Position 1

VAWA Manual March 2017

Chapter 2

Appendix 2-N-4

Tab Position 1

Chapter 2

Immigrant Legal Resource Center March 2017

Appendix 2-N-5

CHAPTER 3 REQUIREMENTS FOR SELF-PETITIONING UNDER THE VIOLENCE AGAINST WOMEN ACT (VAWA)

Tab Position 1

VAWA Manual March 2017

This chapter includes: § 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6

§ 3.16 § 3.17 § 3.18 § 3.19 § 3.20 § 3.21 § 3.22 § 3.23 § 3.24 § 3.25 § 3.26

3-1

Chapter 3

§ 3.7 § 3.8 § 3.9 § 3.10 § 3.11 § 3.12 § 3.13 § 3.14 § 3.15

Introduction ........................................................................................................ 3-2 Who Can Self-Petition under VAWA ................................................................ 3-3 Requirements for VAWA Self-Petitioning Spouses .......................................... 3-3 Status of the Abuser: The Abuser Is (or Was) a United States Citizen or Lawful Permanent Resident ............................................................................... 3-4 Marriage Issues .................................................................................................. 3-6 Abuse Issues: The USC or LPR Abused the Self-Petitioner during Their Marriage.................................................................................................. 3-10 Residence Issues ............................................................................................... 3-13 The Self-Petitioner Is a Person of Good Moral Character................................ 3-14 VAWA Exceptions for the Bars to Good Moral Character .............................. 3-15 Children of the Self-Petitioner May Qualify for Derivative Status .................. 3-17 Requirements for VAWA Self-Petitioning Children ....................................... 3-20 The Self-Petitioner Is the Child of the Abuser ................................................. 3-20 The Abuser Is (or Was) a USC or LPR ............................................................ 3-24 The USC or LPR Abused the Self-Petitioning Child ....................................... 3-24 The Self-Petitioning Child Is Residing in the United States at the Time the Self-Petition Is Filed, or, if Filing from Abroad, Meets Certain Requirements ....................................................................................... 3-25 The Self-Petitioning Child Lives or Lived with the Abusive USC or LPR Parent ....................................................................................................... 3-25 The Child Is a Person of Good Moral Character .............................................. 3-25 Derivative Children .......................................................................................... 3-26 Requirements for VAWA Self-Petitioning Parents .......................................... 3-27 The Self-Petitioner Is the Parent of the Abuser ................................................ 3-27 The Abuser Son or Daughter Is (or Was) a USC ............................................. 3-28 The USC Son or Daughter Abused the Self-Petitioning Parent ....................... 3-29 The Self-Petitioning Parent Resides or Has Resided with the Abusive USC Son or Daughter ....................................................................................... 3-29 The Self-Petitioning Parent Is a Person of Good Moral Character .................. 3-29 Prohibition on Petitioning for Abusers ............................................................. 3-30 Humanitarian Parole ......................................................................................... 3-30

§ 3.1

Introduction

This chapter takes a closer look at who is eligible to self-petition under the Violence Against Women Act (VAWA). 1 Most victims of domestic violence are women, and, for the sake of clarity, this chapter will refer to the abuser as “he” and the victim as “she.” It is important to note, however, that men and boys sometimes are the victims of domestic violence and women sometimes the abusers. The VAWA immigration provisions benefit both abused husbands and wives as well as abused children and parents of both sexes. Abused spouses in same-sex legal marriages should also be able to qualify under VAWA. 2 In addition to abused spouses, VAWA also protects children abused by a U.S. citizen (USC) or lawful permanent resident (LPR) parent. Frequently, even if the child was abused and the parent was not, the noncitizen parent may also qualify for VAWA. Similarly, if the parent was abused and the child was not, the child may also qualify. See § 3.10 for a discussion of children and VAWA.

Chapter 3

Finally, VAWA 2005 added a category of abused family members who may self-petition under VAWA. Parents who are being or have been abused by a USC son or daughter may also selfpetition. See § 3.19 for a discussion of abused parents and VAWA. PRACTICE POINTER: VAWA in the Context of Family-Based Immigration. VAWA selfpetitions are both similar to and different from regular family visa petitions. On the one hand, the VAWA self-petitioner must prove the same types of facts as in a regular family visa petition. The self-petitioner must offer proof of the abuser’s USC or LPR status to show that the abuser would have been able to petition for her, must show that a valid and bona fide marriage or child/parent relationship existed, and must have a current priority date in order to become a permanent resident. Thus, with some important exceptions, the eligibility requirements for family visa petitions also apply to self-petitions under VAWA. On the other hand, VAWA applicants benefit from important exceptions to normal requirements for a marriage petition. For example, in some cases the VAWA self-petitioner can immigrate even if the abuser is no longer a USC or LPR, if the marriage has ended in divorce, or if the abused spouse believed that the couple was married but in reality the marriage was invalid. However, VAWA self-petitioners must meet additional requirements that do not apply to regular marriage petitions. For example, they must prove that

Violence Against Women Act of 1994, Pub.L.No. 103-322, 108 Stat. 1796, §§ 40001 et seq., (hereinafter “VAWA”). On October 28, 2000, President Clinton signed into law the Battered Immigrant Women Protection Act of 2000 (VAWA 2000), as part of the Victims of Trafficking and Violence Protection Act of 2000. Pub.L.No. 106-386, 114 Stat. 1464, at §§ 1501-13. On January 5, 2006, President Bush signed into law the Violence Against Women and Depart of Justice Reauthorization Act of 2005 (VAWA 2005). Pub.L.No. 109-162, 119 Stat. 2960. Most recently, President Obama signed into law the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) on March 7, 2013. Pub.L.No. 113-4, 127 Stat. 54. This manual incorporates all four laws. 2 See practice pointer on United States v. Windsor, 570 U.S. _____, 133 S. Ct. 2675 (2013) in § 3.5, Marriage Issues, of this chapter for more on this topic. 1

3-2

Tab Position 1

Immigrant Legal Resource Center March 2017

they have good moral character, that the abuse occurred and that they lived with the abuser at some point. This chapter discusses the VAWA requirements as they apply to spouses who are abused by a USC or LPR spouse, to children who are abused by a USC or LPR parent, and to parents who are abused by a USC son or daughter. Chapter 4 describes how to document that a VAWA selfpetitioner has met the requirements and the procedure for filing a VAWA case. § 3.2

Tab Position 1

VAWA Manual March 2017

Who Can Self-Petition under VAWA

VAWA allows certain abused spouses, children, and parents to self-petition for permanent residency in the United States. The following persons are eligible to self-petition under VAWA: • • •

Because the requirements for abused spouses, abused children, and abused parents vary slightly, they are discussed separately below. § 3.3

Requirements for VAWA Self-Petitioning Spouses

The self-petitioning spouse must prove: 1. Status of the abuser: The abuser is (or was) a USC or LPR; 2. Marriage: The self-petitioner is (or was) legally married to the USC or LPR abuser, and the marriage that forms the basis of the self-petition was a “good faith” marriage; 8

INA § 204(a)(1)(A)(iii). INA § 204(a)(1)(B)(ii). 5 INA § 204(a)(1)(A)(iii)(I) [children abused by U.S. citizens]; INA § 204(b)(1)(B)(ii)(I) [children abused by lawful permanent residents]. 6 INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 7 INA § 204(a)(1)(A)(vii). 8 INA § 204(a)(1)(A)(iii)(I)(aa) [spouses of U.S. citizens]; INA § 204(a)(1)(B)(ii)(I)(aa) [spouses of lawful permanent residents]. 3 4

3-3

Chapter 3

• •

Abused spouses of United States citizens (USCs), including their children as derivatives, whether or not the children are abused, and whether or not the children are related to the abusive USC. 3 Abused spouses of Lawful Permanent Residents (LPRs), including their children as derivatives, whether or not the children are abused, and whether or not the children are related to the abusive LPR. 4 Non-abused spouses of USCs or LPRs whose child is or was abused by the USC or LPR spouse. Also includes other children as derivatives, even if the children are not related to the USC or LPR abuser. 5 Abused children of USCs or LPRs, including their children as derivatives. 6 Abused parents of USC sons and daughters. 7 The statute does not include derivatives of abused self-petitioning parents.

3. Abuse: The USC or LPR spouse subjected the self-petitioner to “battery or extreme cruelty” during their marriage; 9 4. Residence: The self-petitioner lived with the abuser, 10 and the self-petitioner is either residing in the United States, or if living abroad, was subjected to abuse by the USC or LPR spouse in the United States, or the USC or LPR spouse is an employee of the U.S. government or armed forces; 11 and 5. The self-petitioner is a person of good moral character. 12 In some circumstances, the child of the abused spouse qualifies for status even if the child herself was not abused, and the parent of an abused child qualifies for status even if the parent herself was not abused (see § 3.10). Each of these requirements is discussed in more detail below. § 3.4

Status of the Abuser: The Abuser Is (or Was) a United States Citizen or Lawful Permanent Resident

Chapter 3

VAWA self-petitioner spouses will qualify for VAWA only if they are or were married to a United States Citizen (USC) or a Lawful Permanent Resident (LPR). 13 There are some exceptions to this requirement. The special rules and exceptions for this requirement are: •

The abuse may have occurred before the abuser became a USC or LPR.

•

If the abuser lost or renounced his U.S. citizenship and the loss or renunciation of U.S. citizenship was related to an incident of domestic violence, the victim may still qualify to self-petition. That self-petition, however, must be filed within two years of the date the abuser lost or renounced his U.S. citizenship. 14

•

If the abuser lost his lawful permanent residency status and the loss of status was due to an incident of domestic violence, the victim may still qualify to self-petition. That selfpetition, however, must be filed within two years of the date the abuser lost his lawful permanent residency status. 15

INA § 204(a)(1)(A)(iii)(I)(bb) [spouses of U.S. citizens]; INA § 204(a)(1)(B)(ii)(I)(bb) [spouses of lawful permanent residents]. 10 INA § 204(a)(1)(A)(iii)(II)(dd) [spouses of U.S. citizens]; INA § 204(a)(1)(B)(ii)(II)(dd) [spouses of lawful permanent residents]. 11 INA § 204(a)(1)(A)(v) [spouses of U.S. citizens]; INA § 204(a)(1)(B)(iv) [spouses of lawful permanent residents]. 12 INA § 204(a)(1)(A)(iii)(II)(bb) [spouses of U.S. citizens]; INA § 204(a)(1)(B)(ii)(II)(bb) [spouses of lawful permanent residents]. 13 Prior to the VAWA 2000 amendments, the self-petitioner’s abusive spouse or parent must have been a USC or LPR at the time the self-petition was filed and approved. 14 INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb). 15 INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(bbb). 9

3-4

Tab Position 1

Immigrant Legal Resource Center March 2017

•

If the abuser lost his lawful permanent residency status for any other reason after the selfpetition is filed, that loss of status will not affect the self-petitioner’s case for selfpetitioning or adjustment of status purposes. 16

Tab Position 1

VAWA Manual March 2017

Example: Carmen was married to Kevin, an LPR. Kevin physically and mentally abused Carmen during the marriage. Carmen left Kevin and filed a VAWA self-petition in April 2016. After the self-petition was filed, Carmen called the police for protection during a subsequent incident of domestic violence. The police arrested Kevin, and he was subsequently convicted of domestic violence, but ICE placed him in removal proceedings based upon a prior aggravated felony drug conviction. He was ordered removed on October 15, 2016. His loss of LPR status does not affect Carmen’s self-petition since the self-petition was filed before Kevin lost his status. Carmen does not need to show that the loss of status was connected to the abuse. Now assume that Carmen did not file her self-petition prior to Kevin’s losing his LPR status. She may file her self-petition up to October 14, 2018 if she can show that Kevin’s loss of LPR status was due to an incident of domestic abuse. Carmen should argue to the U.S. Citizenship and Immigration Services (USCIS) that, although Kevin was not deported under the domestic abuse deportation ground, it was an arrest during an incident of domestic violence that ultimately led to his removal.

PRACTICE POINTER: Naturalization of the Abusive LPR Spouse or Parent. If an abusive LPR spouse or parent naturalizes, a pending self-petition may be reclassified as a self-petition of a spouse or child of a USC, even if the naturalization occurs after divorce or termination of parental rights. 18 The result is that, upon approval of the self-petition, the self-petitioner will be immediately eligible to adjust her status to that of a lawful permanent resident. Because of privacy concerns, USCIS cannot affirmatively disclose the status of an individual’s immigration

INA § 204(a)(1)(A)(vi); INA § 204(a)(1)(B)(v)(I). Aytes, Acting Assoc. Dir, Domestic Operations, “Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident Within Two Years of the Abuser’s Loss of Status” (October 31, 2005) (attached as Appendix 3-G). 18 INA § 204(a)(1)(B)(v)(II). 16 17

3-5

Chapter 3

PRACTICE POINTER: Showing Loss of Status Was Due to an Incident of Domestic Violence. In order for an abused spouse to remain eligible to self-petition after an abuser has lost his lawful immigration status, the act or conviction must be considered sufficiently related to or due to an incident of domestic violence. In the absence of regulations implementing this provision, an internal USCIS memorandum suggests that adjudicators should consider “the full history of domestic violence in the case.” 17 Therefore, even in those cases where the abuser may have ultimately been removed or deported for another act or conviction, advocates should explain the loss of status in the context of the domestic violence relationship to show the connection, if any, to the domestic violence. In the future, regulations may further clarify what is needed to prove that an abuser’s loss of status was sufficiently connected to the domestic violence.

status or naturalization application. However, an approved VAWA self-petition will include a code that will indicate whether the self-petitioner is the family member of a USC or LPR. § 3.5

Marriage Issues

Abused spouses who self-petition under VAWA must show they are or were married to a USC or LPR. However, there are some special exceptions that apply. The special rules and exceptions for this requirement are discussed below. The Self-Petitioner Is (or Was) Legally Married to the USC or LPR Abuser The marriage is considered valid for immigration purposes if it was valid in the place where it was performed or celebrated. The term includes common law marriages and same sex marriages from places where they are recognized (see Practice Pointers below). Even if the self-petitioner divorces the abuser, she is not necessarily precluded from self-petitioning under VAWA. 19 The following are exceptions to the requirement to show a current spousal relationship and do not preclude an abused spouse from self-petitioning under VAWA.

Chapter 3

•

If the marriage was terminated and a “connection” between the divorce and domestic violence can be shown, the self-petition can be filed within two years of the termination of the marriage. 20

Evidence, such as a final divorce decree, showing that the marriage was terminated within the last two years must be provided. 21 However, USCIS will not require that the divorce decree specifically state that the termination of the marriage was due to domestic violence. 22 Instead the self-petitioner must “demonstrate that the battering or extreme cruelty led to or caused the divorce” and “evidence submitted to meet the core eligibility requirements may be sufficient to demonstrate a connection between the divorce and the battering or extreme mental cruelty.” 23 Marriages that were annulled within two years prior to the filing of a VAWA self-petition have also been approved by USCIS where a connection to the domestic violence was shown. In the

INA § 204(a)(1)(A)(vi) [spouses and intended spouses of U.S. citizens]; INA § 204(a)(I)(B)(v)(I) [spouses and intended spouses of lawful permanent residents]. Prior to VAWA 2000, the self-petitioner had to be legally married to the abusing spouse at the time the self-petition was filed, although subsequent termination of the marriage did not affect the self-petition. 20 INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc) [spouses and intended spouses of U.S. citizens]; INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(ccc) [spouses and intended spouses of lawful permanent residents]. 21 This rule applies to cases pending on or filed after October 28, 2000. Cases denied prior to this date solely for divorce may file a motion to reopen if the self-petitioner can show the divorce occurred on or after October 28, 1998. 22 Anderson, Executive Associate Commissioner, Office of Policy and Planning, INS Mem/HQADN/70/8, January 2, 2002, attached as Appendix 4-H. 23 Id. 19

3-6

Tab Position 1

Immigrant Legal Resource Center March 2017

early days of VAWA, the legacy-INS made clear that annulments should also count under VAWA. 24 Example: Jim was married to Eva, a USC, on June 15, 2014. During the marriage, Eva subjected him to such mental cruelty that he moved out of the house on June 15, 2015. He later obtained a “no fault” divorce, on June 15, 2016, based upon having lived separate and apart from Eva for the requisite period of time. Jim may file a self-petition before June 14, 2018, even though he is no longer married to Eva, if he can show a connection between his divorce and the abuse he suffered. Here, Jim’s detailed declaration should show that he left the family home because of the abuse. Statements and letters should be included to support this.

Tab Position 1

VAWA Manual March 2017

Example: Maribel’s husband abused her for years before she was finally able to obtain a divorce from him. Her ex-husband subsequently became an LPR. It has been less than two years since the final termination of their marriage, so Maribel wants to know if she is eligible to self-petition under VAWA. She is able to prove a connection between the divorce and the abuse. Would she qualify for VAWA self-petitioning?

•

If the marriage was terminated for any reason after the self-petition was filed, that termination will not affect the self-petition. 27 Example: Lani filed a VAWA self-petition based on abuse by her husband, Jack. While her self-petition was pending, Lani’s divorce from Jack became final. Lani continues to be eligible for VAWA, even though the qualifying marriage ended. Note that Lani must not remarry until her self-petition is approved, however.

See Aleinkoff, Executive Associate Commissioner, Office of Programs, “Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents,” (April 16, 1996), attached as Appendix 3-A. 25 INA § 204(a)(1)(B)(ii)(II)(aa)(AA). 26 INA § 204(a)(1)(B)(ii)(II)(aa)(CC). 27 INA § 204(a)(1)(A)(vi) [spouses and intended spouses of U.S. citizens]; INA § 204(a)(1)(B)(v)(I) [spouses and intended spouses of lawful permanent residents]. 24

3-7

Chapter 3

Unfortunately, Maribel would not be eligible to self-petition under VAWA because the divorce precludes her from showing a qualifying relationship. The abuser need not be an LPR during the abuse or the marriage (although the abuse must have taken place during the marriage), but the applicant must be married to the abuser at time of filing 25 or have been a spouse of an LPR within the past 2 years. 26 Maribel was divorced before the abuser became an LPR and therefore was never the spouse of an LPR, so she meets neither qualification.

•

If the abusive spouse is a USC and dies, the self-petition can be filed within two years of his death. 28 This provision does NOT apply to the spouses of abusive LPRs or the children of abusive USCs or LPRs. 29 Example: Kui was married to Feng, a USC, on April 15, 2009. During the marriage, Feng subjected Kui to physical and mental abuse. Feng died on April 15, 2016. Kui can file a self-petition before April 14, 2018. However, if Feng were an LPR and not a USC, Kui unfortunately would not be eligible to self-petition under VAWA.

If the abuser dies after the self-petition has been filed, the self-petitioner may continue to be eligible under VAWA. 30 VAWA 2013 additionally provides that children of VAWA selfpetitioners may continue to be eligible for derivative benefits if the abuser dies while the principal’s VAWA application is pending or approved. 31 •

If the marriage was not valid because a prior or concurrent marriage of the abuser was not legally terminated, but the self-petitioner believed that her marriage was valid and can demonstrate that a marriage ceremony was performed, she may nevertheless file a self-petition. This is referred to as an “intended marriage.”

Chapter 3

Example: Yoko married Jose, a USC, in a large wedding ceremony in front of all of their family and friends. However, Jose did not tell Yoko that he never terminated his previous marriage and remained married to his first wife. During the course of their relationship, Jose became so abusive that Yoko felt she needed to leave him. Although a marriage ceremony was performed and Yoko thought she was legally married to Jose, their marriage was not valid. Nonetheless, because the bigamy was perpetrated by Jose, the abuser, and Yoko was not aware of it at the time she thought she married him, she would still be eligible to self-petition as an “intended spouse.” •

If the self-petitioner remarries after the approval of the self-petition, the self-petition will not be revoked. 32 Example: Susan was married to John, a USC, on January 2, 2008. During the marriage, John was abusive to Susan, and the couple was divorced on January 1, 2014. Susan filed a self-petition on December 10, 2014 and attached evidence showing that the divorce was connected to the abuse. The self-petition was approved on October 1, 2015. Susan remarried on March 15, 2016. The remarriage will not cause the approval to be revoked. Had Susan remarried either before filing the self-petition or before the self-petition was approved, however, the remarriage would have caused the self-petition to be denied or the approval to be revoked.

PRACTICE POINTER: VAWA Benefits Extended to Same Sex Couples in 2013. In June 2013, the Supreme Court decided in United States v. Windsor, 570 U.S. __, 133 S.Ct. 2675 (2013), that INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa). However children of VAWA self-petitioners may continue to be eligible for derivative benefits, see § 3.10. 30 INA § 204(1). 31 INA § 204(l)(2)(F). 32 INA § 204(h). 28 29

3-8

Tab Position 1

Immigrant Legal Resource Center March 2017

Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. As a result, U.S. Citizenship and Immigration Services (USCIS) were directed by former President Obama and then-DHS Secretary Janet Napolitano to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse and to ensure that federal benefits for same-sex legally married couples are implemented swiftly and smoothly. As a result, same sex I-130 marriage petitions and adjustments of status are now routinely filed and approved, and abused spouses in same sex marriages should also benefit under VAWA where the abusive spouse was or is a USC or LPR. Make sure to research and prove that your client’s same sex marriage was valid and legal in the location in which it took place at the time of the marriage. For more information, see the practice advisory, “Marriage Equality in Immigration Law: Immigration Benefits for Same-Sex Married Couples” at Appendix 3-K.

Tab Position 1

VAWA Manual March 2017

PRACTICE POINTER: Common Law Marriages. Common law marriages may be recognized as valid for immigration purposes if they were valid where entered into. As of this manual’s writing (March 2017), common law marriages are recognized only in the District of Columbia, Colorado, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah. New Hampshire also recognizes common law marriage but only through death for probate purposes. The vast majority of states do not recognize common law marriage.

The Marriage Is (or Was) a “Good Faith” Marriage The self-petitioning spouse must establish that the marriage or intended marriage was entered into in good faith. This means that the self-petitioner must NOT have entered into the marriage with the USC or LPR spouse solely for the purpose of obtaining immigration status. The most important factor in establishing a good faith marriage is whether the couple intended to establish a life together at the time of the marriage. 33 Conduct after a couple is married—even separation shortly after the marriage—is relevant only to establish intent at the time the marriage was entered into. A self-petition will not be denied just because the spouses are no longer living together and the marriage is no longer viable. 34 Where the self-petitioner married the USC or LPR while in exclusion, deportation, removal proceedings or related appeals or judicial proceedings, then the self-petitioner must meet a higher standard of proof to show a good faith marriage. 35 Lutwak v. United States, 344 U.S. 604, 611 (1953); Bark v. INS, 511 F.2d 1200 (9th Cir. 1975); Matter of Soriano, 19 I&N Dec. 764, 765 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 2-3 (BIA 1983); Matter of McKee, 17 I&N Dec. 332, 334 (BIA 1980). 34 8 CFR § 204.2(c)(1)(ix). 35 The general “standard of proof,” or degree of evidence, that must be produced to prove good faith marriage is that of a “preponderance of evidence.” This is generally interpreted to mean something more 33

3-9

Chapter 3

The requirements to show a common law marriage vary state by state. Therefore, you need to include information in the self-petition cover letter explaining that the marriage is based on common law and include the definition in that state with evidence that the self-petitioner’s common law marriage meets the state’s definition.

Where the self-petitioner is married to a lawful permanent resident who obtained residence through a previous marriage within the last five years, the self-petitioner will have the additional burden of showing that the abuser’s prior marriage was a good faith marriage. 36 § 3.6

Abuse Issues: The USC or LPR Abused the Self-Petitioner during Their Marriage

VAWA requires that the self-petitioner show that she or her child “has been battered or has been the subject of extreme cruelty” by the USC or LPR spouse or parent. 37 The definition of the abuse covered under the immigration regulations and guidance is flexible and broad enough to encompass physical, sexual, and psychological acts, as well as economic coercion. 38 They may include:

Chapter 3

• • • • • • • • • •

Threats to beat or terrorize the self-petitioner; Hitting, punching, slapping, kicking, or hurting her in any way; Emotional abuse, such as insulting her at home or in public; Sexual abuse or exploitation, including molestation, forced sex when she does not want to engage in it, or forced prostitution; Threats to take her children away or hurt them; Threats to deport her or turn her into Immigration; Controlling where she goes, what she can do, and whom she can see; Forcibly detaining her that causes or threatens to cause physical or mental injury; Engaging in a pattern of acts that alone would not normally constitute abuse but are part of an overall pattern of violence; Threats or committed acts of violence against a third person or thing in order to scare or pacify her. Example: A few years after they were married, Craig started beating Reni, forcing her to have sexual relations, and isolating her from her friends and family by not letting her talk to or see them. Craig refused to file a visa petition for Reni even though she was eligible

than a 50% likelihood that the alleged facts occurred. However, if the self-petitioner was married on or after November 10, 1986, and while in exclusion, deportation, removal proceedings or related judicial proceedings, then the self-petitioner must meet a higher standard of proof. In such a case, the immigration authorities cannot approve a visa petition based on the marriage until the immigrant spouse has lived outside the United States for two years. This two-year foreign residency requirement may be waived if the self-petitioner establishes by “clear and convincing evidence” that the marriage was entered into in good faith, in accordance with the laws of the place where it took place, that the marriage was not entered into just to obtain an immigration benefit (like a visa for the immigrant spouse), and that no fee or other consideration (other than attorneys’ fees) was given for the filing of the petition. INA § 204(g); INA § 245(e). 36 INA § 204(a)(2)(A)(ii). 37 INA § 204(a)(1)(A)(iii)(I)(bb) [spouses and intended spouses of U.S. citizens]; INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(ii)(I)(bb) [spouses and intended spouses of lawful permanent residents]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 38 8 CFR § 204.2(c)(1)(vi) [abused spouses]; 8 CFR § 204.2(e)(1)(vi) [abused children].

3-10

Tab Position 1

Immigrant Legal Resource Center March 2017

as an immediate relative. Based on this abuse, Reni may qualify as a VAWA selfpetitioner. Battery

Tab Position 1

VAWA Manual March 2017

Battery includes but is not limited to an act of violence resulting in injury. 39 VAWA does not require that the violence be “heightened” or result in injury, though violence resulting in physical injury qualifies per se as battery. 40 Extreme Cruelty VAWA distinguishes “extreme cruelty” as domestic violence other than physical assault. 41 Abusive acts that may not initially appear violent but are part of an overall pattern of violence are part of this definition. Therefore, a person who has suffered no physical abuse may be eligible to self-petition. 42 The abuse must rise to a certain level of severity, however, to constitute battery or extreme cruelty. 43 Non-physical actions rise to the level of domestic violence when “tactics of control are intertwined with the threat of harm in order to maintain the perpetrator’s dominance through fear.” 44

8 CFR § 204.2(c)(1)(vi). See Lopez-Birrueta v. Holder, 633 F.3d 1211, 1216-17 (9th Cir. 2011). 41 In Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003), the Ninth Circuit found that the determination of whether a self-petitioner was subject to “battery or extreme cruelty” was a nondiscretionary decision. However, there is a split among the circuit courts on the question of whether the determination is discretionary or non-discretionary. See also Johnson v. Attorney General of the United States, 602 F.3d 508 (3rd Cir. 2010); Stepanovic v. Filip, 554 F.3d 673 (7th Cir. 2009); Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. 2006); Perales-Cupean v. Gonzales, 429 F.3d 977 (10th Cir. 2005). The classification of the decision as discretionary or nondiscretionary is important because the federal circuit courts are prohibited from reviewing purely discretionary decisions. 8 USC § 1252(a)(2)(B). Nonetheless, even a discretionary decision is reviewable if it involves a constitutional question or a question of law. 8 USC § 1252(a)(2)(D). The classification is also important in terms of evidence, because the self-petition should contain evidence to support a favorable exercise of discretion. 42 8 CFR § 204.2(c)(1)(vi) [abused spouses]; 8 CFR § 204.2(e)(1)(vi) [abused children]. 43 Aleinkoff, Executive Associate Commissioner, Office of Programs, INS Mem/HQ 204-P, April 16, 1996, at 9-10 [reprinted at Appendix 3-A]. 44 Hernandez v. Ashcroft, 345 F.3d 824, 840 (9th Cir. 2003); compare with Krzyzanek v. Holder, No. 1071792, 2013 WL 1174043, at *1 (9th Cir. 2013) (holding that “verbal cruelty” including insults and cursing and “financial abuse” did not rise to the requisite level of “battery or extreme cruelty”). 45 See Gail Pendleton and Ann Block, Applications for Immigration Status under the Violence Against Women Act, 2001 AILA Annual Meeting Materials, at Volume II, page 436 (reprinted at Appendix 3B)(also available from the National Lawyers’ Guild Website). 39 40

3-11

Chapter 3

There is no exhaustive list of acts that constitute “battery or extreme cruelty.” Examples of abuse that may constitute extreme cruelty include social isolation of the victim, accusations of infidelity, incessantly calling, writing or contacting her, interrogating her friends and family members, threats, economic abuse, not allowing the victim to get a job, controlling all money in the family, and degrading the victim. 45

Violence against another person or thing may be considered abuse if it can be established that the act was deliberately used to perpetrate extreme cruelty against the victim. 46 Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution would also be considered acts of violence for this purpose. 47 PRACTICE POINTER: Proving Extreme Cruelty. The key to claims of extreme cruelty is to include evidence of the self-petitioner’s subjective perception of the abuse. The self-petitioner must document in her self-petition not only the acts and behavior of her abuser but also that she perceived those acts or behavior as extreme cruelty. This can be addressed in the self-petitioner’s declaration.

Chapter 3

Also, because acts of extreme cruelty often go unreported to police or medical personnel and happen without witnesses, self-petitioners may have to rely solely on their own detailed declaration to describe the abuse suffered. It is therefore extremely important that the selfpetitioner comes across as credible as possible. Facts should be checked to make sure they are consistent throughout the declaration and corroborating evidence should be provided when available. For example, if the self-petitioner mentions that her sister witnessed the extreme cruelty, she should provide a declaration or affidavit from that sister. Or if the self-petitioner mentions she sought counseling from a therapist as a result of the extreme cruelty, she should provide a letter from her therapist. The national USCIS office that processes these petitions is well trained in domestic violence issues and has been flexible in applying the definition of abuse. For further information on what constitutes domestic abuse, please see the article attached as Appendix 3-H or check relevant materials on the Asista website at www.asistahelp.org. Example: Annette came to the United States from the Philippines four years ago as a student and married Greg, a U.S. citizen, two years later. When her visa expired, Greg began to fill out the forms for her to get a family visa petition, but he never filed them. For the past year, Greg has been isolating Annette from her friends and family. He does not allow Annette to have any money without his permission and forbids her to leave the house without him. One day, about a month ago, while Greg was at work, Annette left to help a sick friend. Greg came home early and was waiting at the house when Annette returned. He yelled at her, threatening to turn her in to the immigration authorities and have her deported. Upon hearing Greg’s yelling, Annette’s cherished dog, “Baby,” ran into the room. Greg kicked Baby severely several times until Annette begged him to stop. Greg then told Annette, “Baby got what he deserved and if you don’t shape up, you will too.” This is not the first time Greg has mistreated Baby. Because of her husband’s controlling behavior and mistreatment, Annette became depressed and despondent. Greg’s behavior should qualify as extreme cruelty to Annette.

46 47

Id. Id. 3-12

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 3.7

Residence Issues

There are two residence-related requirements for VAWA self-petitioners. Both are discussed below.

Tab Position 1

VAWA Manual March 2017

The Self-Petitioner Lived with the USC or LPR Abuser Under current law, the self-petitioner must have resided at some point with the abuser, either inside or outside the United States. 48 There is no specified amount of time the self-petitioner must have lived with the abuser. Additionally, there is no requirement that the self-petitioner be residing currently with the abuser in the United States at the time the self-petition is filed. Thus, a self-petitioner can qualify even if she lived with the abuser for only a short time or only in another country. Example: Sara lived with her uncle before marrying Andrew. Soon after she married and moved in with him, Andrew began to abuse her. To avoid Andrew’s abuse, Sara returned to her uncle’s house. She spends most of her time there, even sleeping several nights a week in her old bedroom. Sara meets the requirement for residence with the abuser because she did reside with Andrew for a short time. There is no minimum length of time she must have resided with him.

The self-petitioner need not reside in the United States in order to qualify under VAWA. Nor does a self-petitioner need to have continuous physical presence in the United States to file the petition. 49 A self-petitioner who recently moved to the United States can qualify. Eligible individuals living outside of the United States can self-petition if: • •

The abusive spouse is an employee of the U.S. government or member of the U.S. armed services, or The abusive spouse subjected the self-petitioner or the self-petitioner’s child to battery or extreme cruelty in the United States. 50 Example: Marina is the wife of Eric, a USC who is a lieutenant in the U.S. Army, stationed in Germany. Marina has never been to the United States. Eric has been abusing her. Marina can self-petition, even though she is not in the United States and has never been in the United States, because Eric is a member of the U.S. armed services.

INA § 204(a)(1)(A)(iii)(II)(dd) [spouses and intended spouses of U.S. citizens]; INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(ii)(II)(dd) [spouses and intended spouses of lawful permanent residents]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 49 Prior to the Battered Immigrant Women Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464, §§ 1501-13, the law required the self-petitioner to both presently reside in the United States and have resided with the abuser in the United States. 50 INA § 204(a)(1)(A)(v) [spouses, intended spouses, and children of U.S. citizens]; INA § 204(a)(1)(B)(iv) [spouses, intended spouses, and children of lawful permanent residents]. 48

3-13

Chapter 3

The Self-Petitioner Either Is Residing in the United States, or if Living Abroad, Was Subjected to Abuse by the USC or LPR Spouse in the United States or the USC or LPR Spouse Is an Employee of the U.S. Government or Armed Forces

Example: Marta married Jose in Venezuela. Jose is a lawful permanent resident. Marta went to the United States to live with Jose, but he subjected her to domestic abuse, and she returned to Venezuela to escape the abusive situation. Marta can self-petition, even though she is outside the United States, because the domestic abuse occurred in the United States. § 3.8

The Self-Petitioner Is a Person of Good Moral Character

VAWA self-petitioners must establish that they are of good moral character. 51 The immigration laws do not define good moral character per se. However, INA § 101(f) states that a person will be barred from showing good moral character if she is or was: • • • • • •

Chapter 3

• • • • • • •

A habitual drunkard; Engaged in prostitution within the last ten years before filing the application; Engaged in any other commercial vice, whether or not related to prostitution; Involved in smuggling people into the United States; Convicted of, or has admitted, committing acts of moral turpitude, other than (1) purely political crimes, (2) a petty offense, or (3) crime committed both when the alien was under 18 years of age and more than five years before applying for a visa or admission; Convicted of two or more offenses for which the aggregate sentences to confinement were five years or more; Convicted of, or has admitted to, violating laws relating to controlled substances (except for simple possession of 30 grams or less of marijuana); Earning income derived principally from illegal gambling; Convicted of two or more gambling offenses; One who has given false testimony for the purposes of obtaining an immigration benefit; Incarcerated for an aggregate period of 180 days or more as a result of a conviction; Convicted of an aggravated felony, as defined in INA § 101(a)(43), where the conviction was entered on or after November 29, 1990 (except for conviction of murder, which is a bar to good moral character regardless of the date of conviction); Engaged in polygamy. 52

The self-petitioner must demonstrate good moral character for the past three years 53 by showing that none of the bars to good moral character listed in INA § 101(f) applies. If any of the bars above do apply, the self-petitioner will need to show she is eligible for the special VAWA exceptions noted below.

INA § 204(a)(1)(A)(iii)(II)(bb) [spouses and intended spouses of U.S. citizens]; INA § 204(a)(1)(B)(ii) [spouses and intended spouses of lawful permanent residents]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 52 INA § 101(f). 53 The USCIS may also investigate the self-petitioner’s background beyond the three-year period to determine good moral character, “when there is reason to believe that the self-petitioner may not have been a person of good moral character during that time” (emphasis added). See January 19, 2005 USCIS guidance memorandum cited infra. 51

3-14

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 3.9

VAWA Exceptions for the Bars to Good Moral Character

A person who falls under one of the statutory bars normally cannot show good moral character. For VAWA self-petitioners, however, there is a special exception for the statutory bars to good moral character, found at INA § 204(a)(1)(C). Under that exception, even if the self-petitioner has committed an act or has a conviction listed under INA § 101(f), that act or conviction does not bar the USCIS from finding that the self-petitioner is a person of good moral character if (1) the act or conviction is waivable with respect to the self-petitioner for purposes of determining whether the self-petitioner is admissible or deportable, and (2) the act or conviction was connected to the abuse suffered by the self-petitioner.

Tab Position 1

VAWA Manual March 2017

The good moral character exception for VAWA self-petitioners was added to the Immigration and Nationality Act by VAWA 2000. In a memorandum of January 19, 2005, the USCIS provided guidance on the exception to the good moral character requirement for VAWA selfpetitioners. 54 Showing That a Waiver Is Available

The USCIS also provided a chart to indicate which bars to good moral character may qualify under the VAWA exception because they are acts or convictions that may be waived. It is reprinted in this manual as Appendix 3-D. 56 Also attached to this chapter is a USCIS reference guide for authorities affecting false testimony determinations made under INA § 101(f)(6), reprinted as Appendix 3-E. Showing That the Act or Conviction Is Connected to the Abuse The USCIS memorandum specifically addresses this connection requirement, defining “connected to” as a showing that the abuse experienced by the self-petitioner “compelled or coerced” the self-petitioner to commit the act or crime that precludes good moral character. The evidence should establish that the self-petitioner would not have committed the act or crime in the absence of the battering or extreme cruelty. To demonstrate the connection between the act or conviction and the abuse, self-petitioners should submit evidence of:

William R. Yates, Ass. Dir. Opers. USCIS, Memo re: Determinations of Good Moral Character in VAWA-Based Self-Petitions (Jan. 19, 2005) (reprinted at Appendix 3-C). 55 Id. at 3. 56 USCIS made an error in referencing aliens previously removed from the United States [INA § 212(a)(9)(A)]. This was a drafting error that was corrected by VAWA 2005 and instead should have referenced polygamists [INA § 212(a)(10)(A)]. Prior removals should not be a bar to GMC. 54

3-15

Chapter 3

According to USCIS guidance, the self-petitioner must submit evidence to address whether a waiver would be available for any act or conviction that falls under the categories listed at INA § 101(f). The self-petitioner does not need to demonstrate that she would be granted a waiver, only that one would be available at the time the self-petition is filed. However, it is important to note that if a USCIS adjudicator determines that an act or conviction constitutes an aggravated felony, the self-petitioner may be placed in removal proceedings. 55

• •

The circumstances surrounding the act or conviction, including the relationship of the abuser to, and his role in, the act or conviction committed by the self-petitioner; and The requisite causal relationship between the act or conviction and the battering or extreme cruelty.

Self-petitioners need not show that the act or conviction occurred during the marriage to the USC or LPR abuser. USCIS adjudicators should consider the full history of domestic violence in the case. Example: Catherine is a victim of domestic abuse. In addition to physical abuse, her husband, an LPR, frequently fails to provide food for Catherine and her two children, aged 18 months and 6 months. On numerous occasions, when her husband was absent from home for several days without leaving food or money with which to buy food, Catherine has to shoplift food and formula from nearby grocery stores. On several occasions, she is arrested, convicted of theft, and sentenced to probation (she is not given any sentence to incarceration). She then files a VAWA self-petition.

Chapter 3

After researching the issue, Catherine’s advocate concludes that the offenses of theft as set forth in the state criminal statute are crimes involving moral turpitude (CIMT) and that the convictions for theft place Catherine under one of the INA § 204(a)(1)(C) waivers for those bars to good moral character. [It is not an aggravated felony because Catherine was not given a sentence of a year or more incarceration, and the advocate also concludes that Catherine does not fall under the petty offense exception to the CIMT inadmissibility ground.] The advocate finds that there is a waiver under INA § 212(h) for the inadmissibility ground of having a conviction for a crime involving moral turpitude. Catherine appears to meet the statutory requirements for that waiver since she is a VAWA self-petitioner. If the advocate can also show that the conviction is connected to the domestic abuse, then the USCIS should not be precluded from finding Catherine to be of good moral character. Note that at this point in the self-petitioning process, we are looking at the waivers of inadmissibility grounds only for the purposes of overcoming the inadmissibility grounds that bar a finding of good moral character. Later on, once the self-petition is granted, the self-petitioner will proceed to establish that she is admissible under the INA § 212 inadmissibility grounds. At that point, an act or conviction that posed an obstacle to establishing good moral character may also result in the self-petitioner being inadmissible under the INA § 212(a)(2) criminal inadmissibility grounds. If so, then the self-petitioner will need to apply for a waiver of that inadmissibility ground, under INA § 212(h). The inadmissibility grounds and waivers are covered in Chapters 6 and 7 of this manual. The regulations provide that self-petitioners who willfully failed or refused to support dependents or committed unlawful acts that adversely reflect upon moral character, even if those acts are not statutory bars under INA § 101(f), cannot establish good moral character unless the self-petitioner also establishes extenuating circumstances. 57 An abused immigrant who was forced to engage in 57

8 CFR § 204.2(c)(1)(vii).

3-16

Tab Position 1

Immigrant Legal Resource Center March 2017

behavior that adversely reflects on her good moral character is not precluded from being found to be of good moral character if the person has not been convicted for the offense. 58 PRACTICE POINTER: Demonstrating Good Moral Character. In addition to demonstrating the three years’ absence of a statutory bar to good moral character or eligibility for an exception to such a bar, the self-petitioner must also present sufficient information to allow the USCIS to conclude that she is a person of good moral character. The applicant’s declaration is primary evidence of her good moral character. 59 It must be accompanied by police clearances from each place where the self-petitioner has lived for six months or more during the past three years. 60 USCIS could also conceivably look beyond the most recent three years if they have reason to believe the self-petitioner was not a person of good moral character. 61 The USCIS will also consider other credible evidence of good moral character, such as affidavits from responsible persons who can knowledgeably attest to the self-petitioner’s good moral character. 62

Tab Position 1

VAWA Manual March 2017

§ 3.10 Children of the Self-Petitioner May Qualify for Derivative Status Children of the abused self-petitioning spouse or child who are unmarried and under age 21 qualify for derivative status. 63 A self-petitioning spouse or child should list her children (unmarried, under 21 years of age) on the self-petition so that they can obtain the same benefits the self-petitioner receives, including deferred action status, work authorization, and eligibility to adjust to LPR status. The derivative child does not have to show that he or she has been abused.

Example: Harriet was abused by her lawful permanent resident husband, George. He did not abuse Harriet’s daughter Ann, and Ann did not live with Harriet and George. Harriet’s situation met all the requirements for VAWA, so she submitted a self-petition with 19-year-old Ann’s name listed on it. Harriet and Ann both received “Deferred 58

Id. 8 CFR § 204.2(c)(2)(v) [self-petitioningspouse]. 60 Id. 61 Novak, Director, Vermont Service Center, USCIS Mem/HQOPRD 70/8.1/8.2, January 19, 2005 [reprinted at Appendix 3-L]. 62 Id. 63 INA § 204(a)(1)(A)(iii) [children of abused spouses and intended spouses of U.S. citizens]; INA § 204(a)(1)(B)(ii) [children of abused spouses and intended spouses of lawful permanent residents]. Note that children of a self-petitioning abused parent do not qualify for derivative status. 64 INA § 204(a)(1)(D)(i)(III). 65 INA § 204(a)(1)(D)(i)(I). 66 Id. 59

3-17

Chapter 3

A derivative child of a self-petitioning spouse or child will not “age out” by turning 21. Instead he or she will become a self-petitioner in their own right and automatically be considered a petitioner for the preference category for unmarried sons and daughters and will retain the parent’s original self-petition date as his or her priority date. 64 Similarly, if the child of a USC abuser marries, he or she will automatically be considered a petitioner for third preference. 65 No new petition need be filed. 66

Action” notices (see § 4.20 “Deferred Action” for further discussion) and employment authorization, and were put on a list to receive a second preference immigrant visa when it becomes available. When Ann turns 21, the USCIS will automatically move her from the second preference “A” list (for spouses and unmarried children under 21 of LPRs) to the second preference “B” list [for ‘unmarried sons and daughters’ (over 21)]. Although it will take Ann longer to get her immigrant visa in this new category, she will maintain her legal permission to live and work in the United States until it is available. VAWA 2013 additionally provides that children of VAWA self-petitioners may continue to be eligible for derivative benefits if the abuser dies while the principal’s VAWA application is pending or approved. 67

Chapter 3

PRACTICE POINTER: Other Immigration Options for Abused Spouses. More information about other immigration options for clients is covered in Chapters 9 and 11 of this manual. Below is a brief summary of some of the more common ones. Conditional Residence: If your client is a conditional resident (has a temporary green card through a petitioning spouse), a VAWA self-petition need not be filed. Conditional residence means the USC or LPR spouse filed a petition, the petition was approved, and the immigrant spouse actually received a conditional “green card” that lasts for two years. In conditional residence cases, the married couple must together file a petition (called a “joint petition”) to remove the condition near the end of the two-year period. Instead of enduring the harmful relationship for this period and hoping her spouse will help file the joint petition, the conditional resident may have the option of leaving the relationship and obtaining a special “battered spouse waiver” to remove the condition. See Chapter 9 for more information on conditional residence. Crime Victim Visas: Battered men, women and children who do not qualify for VAWA (for example, because they are not legally married or their abusive spouse is not a USC or LPR) may be eligible for the “U” nonimmigrant visa status created in 2000. 68 The U visa benefits victims of crimes who are willing to help in a criminal investigation or prosecution of perpetrators of crime. This visa is not limited to domestic violence crimes committed by lawful USC or LPR spouses. There are no requirements as to who the perpetrator must be—he or she could be a stranger or a relative, a U.S. citizen or an undocumented person. The offense could involve sexual attack, physical attack, kidnapping, incest, or many other types of criminal offenses. The “U” visa provides temporary status and can lead to permanent residency. U visas are covered in great detail in The U Visa: Obtaining Status for Immigrant Victims of Crime, a comprehensive manual on U visas available through the Immigrant Legal Resource Center (ILRC) at www.ilrc.org/publications. Note that another visa, the “T” visa, is available to persons who were victims of human trafficking for sex or labor. 69 For more information on the T visa, the Immigrant Legal Resource Center (ILRC) has a publication entitled, Representing Survivors of Human Trafficking: A Promising Practices Handbook that may be purchased at www.ilrc.org/publications.

INA § 204(l)(2)(F). See INA § 101(a)(15)(U). 69 See INA § 101(a)(15)(T). 67 68

3-18

Tab Position 1

Immigrant Legal Resource Center March 2017

Cancellation of Removal for Domestic Violence under VAWA: Abused spouses and children USCs or LPRs who are in removal proceedings and have lived in the United States for at least three years may be eligible for VAWA cancellation of removal. VAWA cancellation, like VAWA self-petitioning, leads to permanent residence status. See Chapter 11 for a detailed discussion of VAWA Cancellation of Removal.

Tab Position 1

VAWA Manual March 2017

Asylum for Domestic Violence: Some clients may be eligible for asylum if they can show that they were persecuted, or have a well-founded fear of future persecution, based on their race, religion, nationality, political opinion, or membership in a particular social group. Recent cases and changes in immigration rules on domestic violence cases have made asylum a possibility for obtaining protection and legal status for some victims of domestic abuse. For assistance with these cases, advocates should consult with experts in gender-based asylum law, including the National Immigration Project of the National Lawyers Guild at www.nationalimmigrationproject.org and the Center for Gender and Refugee Studies at http://cgrs.uchastings.edu. 70

Special Relief under the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) and the Cuban Adjustment Act of 1966 (CAA): Both of these acts include special provisions for abused family members to seek immigration relief without the help of an abusive principal applicant. These options are discussed in more detail in Chapter 5 of this manual.

See also Gender-Based Asylum Post-Matter of A-R-C-G- by Blaine Bookey on Asista, at www.asistahelp.org/documents/filelibrary/asylum_series/Bookey_article_v_22808202CCBD6.pdf. 71 INA § 106(a)(15). 70

3-19

Chapter 3

Employment Authorization for Abused Spouses of Certain Nonimmigrant Professionals: The derivative spouses of certain nonimmigrant professional visa holders can obtain work authorization if the derivative spouse can demonstrate that during the marriage she (or a child) has been battered or subject to extreme cruelty perpetrated by the principal. It does not create a separate visa status or route to legal permanent residency for the abused derivative spouse. This provision was created by VAWA 2005 and applies to abused derivative spouses of A (diplomatic visas), E(iii) (treaty-based travel), G (visa category related to officials or employees of foreign governments of international organizations), and H (business visa, multiple categories). 71 To qualify, the abused spouse must show that she is married to a qualifying nonimmigrant spouse; or was married to a qualifying nonimmigrant spouse and that spouse died within the two years prior, lost qualifying nonimmigrant status due to an incident of domestic violence; or the marriage was terminated within the two years prior and there is a connection between the termination of the marriage and the battery or extreme cruelty perpetrated by the former spouse; was last admitted to the United States as a nonimmigrant under INA § 101(a)(15)(A), (E)(iii), (G), or (H); was battered or subjected to extreme cruelty (or her child was battered or subjected to extreme cruelty) perpetrated by the nonimmigrant spouse during the marriage and after admission as a nonimmigrant under INA § 101(a)(15)(A), (E)(iii), (G), or (H); and currently resides in the United States.

§ 3.11 Requirements for VAWA Self-Petitioning Children In order to self-petition under VAWA, a child of a USC or LPR must prove that: • • • • • •

He or she meets the definition of a “child,” that is, that he or she is unmarried, under 21 when the self-petition is filed or falls under certain exceptions (see more below), and has a qualifying relationship to the abuser; The abuser is (or was) a USC or LPR; 72 The USC or LPR abused the self-petitioning child; 73 The self-petitioning child is residing in the United States at the time the self-petition is filed, or if filing from abroad meets certain requirements; 74 The self-petitioning child lives or lived with the USC or LPR parent; and The self-petitioning child is a person of good moral character. 75

NOTE: A child who was not abused may qualify as a derivative beneficiary if he or she is the child of a VAWA self-petitioning spouse or child’s; see discussion in § 3.10. If he or she is the child of a VAWA self-petitioning parent of an abusive U.S. citizen son or daughter, he or she will not qualify as a derivative beneficiary under VAWA.

Chapter 3

§ 3.12 The Self-Petitioner Is the Child of the Abuser The self-petitioning child must be unmarried and under 21 years of age when the self-petition is filed, in addition to having a qualifying “parent/child” relationship with the USC or LPR abuser. 76 Exceptions to the definition for a “child” are discussed below. Qualifying relationships include: • •

Children born in wedlock; Step-children, whether born in or out of wedlock, if the marriage creating the steprelationship occurred before the child’s 18th birthday;

INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 73 Id. 74 INA § 204(a)(1)(A)(v) [spouses, intended spouses, and children of U.S. citizens]; INA § 204(a)(1)(B)(iv) [spouses, intended spouses, and children of lawful permanent residents]. 75 INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 76 Under INA § 101(b), the term “child” means a person who is unmarried and under the age of 21. 72

3-20

Tab Position 1

Immigrant Legal Resource Center March 2017

• •

Adopted children, if the adoption was finalized before the child’s 16th birthday (or the child is the sibling of a child adopted by the same parents before the age of 18); and Children born out of wedlock, if legitimated, 77 or if the father has or had a bona fide parent-child relationship 78 with the child.

Tab Position 1

VAWA Manual March 2017

The self-petitioning child does not have to be in the abuser’s legal custody at the time of the VAWA self-petition filing (see section on adopted children below), nor will changes in parental rights or legal custody affect the status of the child’s self-petition. 79 NOTE: The VAWA self-petitioning child does not have to be the child of a self-petitioning spouse. VAWA 2005 created two important exceptions to the above rules regarding child self-petitioners. One affects “children” who are over the age of 21, and the other affects adopted children. “Children” Who Are over 21, but under 25 Individuals who are now over the age of 21 and were eligible to self-petition before they turned 21, but did not, can still file a VAWA self-petition up to the age of 25 if they can show that the abuse was “at least one central reason” for the filing delay. 80 Although USCIS still has not promulgated regulations on this provision, in September 2011 they did issue a policy memorandum for adjudicators. 81 According to USCIS policy, all of the qualifying factors for a VAWA self-petitioning child must have been in place on the day before the self-petitioner turned 21 years old. If the “qualifying” abuse took place only after the person attained age 21, he or she does not qualify for VAWA selfpetitioning as a “child” under this provision. Abuse must be one central reason for the delay in filing One central reason means that the delay in filing was caused by or incident to the battery or extreme cruelty to which the self-petitioner was subjected. The abuse is not required to be the sole reason for the delay, but to be considered central, the nexus between the abuse and the filing delay must be more than tangential.

A child can be legitimated under the laws of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation. See INA § 101(c). 78 INA § 101(d). 79 8 CFR § 204.2(e)(1)(ii). 80 INA § 204(a)(1)(D)(v). 81 USCIS Policy Memorandum, “Continued Eligibility to File for Child VAWA Self-Petitioners After Attaining Age 21,” PM-602-0048 (Sept. 6, 2011) (reprinted at Appendix 3-I). 77

3-21

Chapter 3

The self-petitioner must have qualified for VAWA before attaining age 21

Here are some examples from the USCIS policy memorandum that qualify as “one central reason” for a delay in timely filing: • •

The abuse took place so near in time to the self-petitioner turning 21 that there was insufficient time to file before the self-petitioner’s 21st birthday; The abuse was so traumatic that the self-petitioner was mentally or physically incapable of filing in a timely manner period.

These are not the only reasons that would qualify as “one central reason.” Each case will be evaluated on a case-by-case basis, taking into account the totality of circumstances and the full history of abuse in the case. The adjudicating officer also has the discretion to determine the credibility and probative value of the evidence provided. USCIS must consider any credible evidence in adjudicating whether the abuse was one central reason for the delay in filing. At a minimum, the self-petitioner should include a statement explaining how the abuse was connected to the delay, as well as how any evidence submitted establishes the required nexus between the abuse and the delay. The self-petition must be filed prior to attaining age 25

Chapter 3

To qualify for VAWA self-petitioning under this provision, the self-petitioner must file the Form I-360 and all accompanying documentation before attaining age 25. The self-petitioner must be unmarried According to the USCIS policy memorandum, self-petitioners seeking to qualify for VAWA under this provision must be unmarried at the time of filing. Also, self-petitioners who were unmarried at the time of filing, but then marry and acquire a spouse while the I-360 VAWA selfpetition is still pending will be ineligible for VAWA if they remain married at the time of adjudication. However, an unmarried self-petitioner who files an I-360 under this provision and marries while the I-360 is pending, and whose marital relationship is terminated prior to a final decision by USCIS on the I-360, may remain eligible. In such a circumstance, the self-petitioner should submit credible evidence of the legal termination of the marriage. Approvals and denials If the self-petition is approved under this provision, the self-petitioner’s continued eligibility and classification for adjustment of status or visa issuance will be governed by INA § 201(f) or INA § 204(a)(1)(D), whichever is appropriate. If she is in the United States and eligible to adjust status, USCIS will retain her file. If she is outside the United States and will apply for an immigrant visa abroad through consular process, USCIS will forward her file to the National Visa Center. Adopted Children Generally in immigration law, adopted children are considered “children” for immigration purposes only if the adoption was finalized before the child’s 16th birthday and the child has been in the adoptive parent’s physical and legal custody for two years (or is the sibling of an adopted child who meets all of the requirements and is adopted by the same parents before the age of 18). VAWA 2005 amended the INA § 101(b) definition of “child” by removing the two-year custody

3-22

Tab Position 1

Immigrant Legal Resource Center March 2017

and residency requirement for abused adopted children. 82 This allows adopted children who have been battered or subjected to extreme cruelty by an adoptive parent (or by a family member of the adoptive parent residing in the same household) to self-petition as an “adopted child” without having to reside in the legal and physical custody of the adoptive parent for an extended period of time. Under the VAWA 2005 amendments, the VAWA self-petitioning child must still show a valid adoption and must have resided with the abusive parent for some period of time. However, the adopted child is no longer required to show that he or she has been in the custody of and resided with the abusive parent for two years. The self-petitioning adopted child also does not need to be residing with the abusive parent at the time he or she files the self-petition. USCIS revised its Adjudicator’s Field Manual to reflect these changes.

Tab Position 1

VAWA Manual March 2017

Example: Joe’s mother Martha marries Donald, an LPR, when Joe is 15 years old. Donald’s adoption of Joe is also completed when Joe is 15 years old. Within a year of marrying Donald, the abuse against both Martha and Joe escalates to such a degree that Donald knocks Martha unconscious. Currently, she is in a coma and it is unclear whether she will regain consciousness.

PRACTICE POINTER: “Aging Out” of Status. A self-petitioning child will not “age-out” (that is, lose status as a “child” by turning 21). Instead she is automatically considered a petitioner in the appropriate visa category for “sons or daughters” (that is, a child over 21 of a USC or LPR) as long as the self-petition is filed or approved before the child turns 21. 83 The self-petition of a son or daughter of a USC is moved to the first preference category, while the self-petition of a son or daughter of an LPR is moved from the 2A to the 2B classification. The self-petitioner does not have to file any additional paperwork, and her priority date remains the original self-petitioning date. 84 Although it may take these self-petitioners longer to get their immigrant visas, they will maintain deferred action status and eligibility for work authorization during the entire waiting period. 85 In addition, the Child Status Protection Act of 2002 may protect an individual from aging out and moving into a slower immigration category. For more information about the Child Status Protection Act and expedited adjustment of status for persons about to “age-out,” please see § 5.5 of this manual. Example: Joaquin’s mother Maritza is an LPR. Maritza often beats Joaquin and disappears for days at a time. Joaquin successfully self-petitions under VAWA. Because INA § 101(b)(1)(E)(i). INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii)[children or lawful permanent residents]. 84 INA § 204(a)(1)(D)(i)(I)-(II). 85 Id. 82 83

3-23

Chapter 3

Because Martha is currently unable to self-petition for herself or for Joe as her derivative, Joe would like to self-petition for himself as the abused adopted child of an LPR. Under changes in the law made through enactment of VAWA 2005, he can qualify as a child VAWA self-petitioner even though he has not yet resided for two years in the physical and legal custody of Donald.

his mother is an LPR, he will be given a priority date as a 2A category. Even if his priority date does not become current until after his 21st birthday, he will still be able to adjust status through his self-petition. However, his category will change to 2B because he will be an unmarried son of an LPR. Example: Charlie is the son of Albert, an LPR who abused Charlie. Charlie is 20 and will turn 21 in six months. He files a self-petition before turning 21, but by the time the self-petition is adjudicated, he is 21. Charlie’s self-petition will not be denied, even though he no longer meets the definition of “child.” Instead, his preference category will automatically be changed from the 2A category to the 2B category, and he will be eligible for deferred action and employment authorization while waiting for his priority date to become current. Had Charlie not filed his self-petition prior to turning 21, however, he would have been ineligible to self-petition (unless he qualifies for the age 25 exception discussed above).

Chapter 3

Note that the Child Status Protection Act may apply to keep Joaquin and Charlie from moving from the 2A and derivative categories. PRACTICE POINTER: Marriage of Self-Petitioning Children. VAWA provides that the marriage of a self-petitioning child after approval of the self-petition shall not serve as a basis for revoking an approved self-petition. 86 This appears to be the case even for self-petitioning children of lawful permanent residents, even though typically in family immigration law there is no preference category for a married son or daughter of a lawful permanent resident. In other words, even though marriage would seem to render the son or daughter of a lawful permanent resident ineligible for a second preference visa, the marriage of a self-petitioning child will not cause revocation of an approved self-petition. It may be that, in order to adjust under the approved selfpetition, the LPR abuser must naturalize, thus converting the son or daughter to the third preference category, or the married son or daughter might divorce in good faith, thus restoring himself or herself to eligibility under the second preference category. In the meantime, the married son or daughter should be able to maintain his or her deferred action status and eligibility for employment authorization. 87 § 3.13 The Abuser Is (or Was) a USC or LPR The rules and exceptions to this requirement are the same for a child as those for an abused spouse. See § 3.4 above. § 3.14 The USC or LPR Abused the Self-Petitioning Child The definition of abuse for a VAWA self-petition is discussed in § 3.6. Not only acts and threatened acts of violence against the child, but such acts against a third person (including the other parent) may qualify as abuse if deliberately used to perpetuate extreme cruelty against the INA § 204(h). See Lauren Gilbert, “Family Violence and U.S. Immigration Law: New Developments,” Immigration Briefings, March 2001, at 7.

86 87

3-24

Tab Position 1

Immigrant Legal Resource Center March 2017

child. Incest is automatically considered an act of violence against a minor, regardless of the minor’s possible “consent.” 88 Witnessing domestic violence can also be a form of extreme cruelty.

Tab Position 1

VAWA Manual March 2017

§ 3.15 The Self-Petitioning Child Is Residing in the United States at the Time the Self-Petition Is Filed, or, if Filing from Abroad, Meets Certain Requirements The self-petitioning child does not need to have continuous physical presence in the United States to file the petition. A self-petitioning child who recently moved to the United States can qualify. Furthermore, noncitizen children living abroad can self-petition, where: • •

The abusive parent is an employee of the U.S. government or member of the U.S. armed services, or The abusive parent subjected the self-petitioning child to battery or extreme cruelty in the United States. 89 § 3.16 The Self-Petitioning Child Lives or Lived with the Abusive USC or LPR Parent

§ 3.17 The Child Is a Person of Good Moral Character Children under 14 years of age are presumed to be of good moral character and are not required to submit affidavits of good moral character, police clearances, criminal background checks, or other evidence of good moral character. 91 If the self-petitioning child is 14 years or older, the rules are the same as for a self-petitioning spouse, which are described in § 3.8. Juvenile delinquency dispositions are not considered criminal convictions and therefore usually do not qualify as statutory bars to good moral character. However, the USCIS can consider them in the discretionary balance test for good moral character determination. Care should be exercised in cases of juvenile dispositions relating to drug sales or prostitution, which might bar good moral character.

Aleinkoff, Executive Associate Commissioner, Office of Programs, INS Mem/HQ 204-P, April 16, 1996 [reprinted at Appendix 3-A]. 89 INA § 204(a)(1)(A)(v) [spouses, intended spouses, and children of U.S. citizens]; INA § 204(a)(1)(B)(iv) [spouses, intended spouses, and children of lawful permanent residents]. 90 INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 91 8 CFR § 204.2(e)(2)(v). 88

3-25

Chapter 3

The self-petitioner does not need to be currently living with the abusive parent. He or she must merely have lived with the abusive parent at some point. There is no specified amount of time the child must have lived with the abusive parent. For children, residence with the abusive USC or LPR parent includes any period of visitation in the United States. 90 Thus, a child can qualify even if he or she lived with the abusive parent for only a short time.

§ 3.18 Derivative Children

Chapter 3

Children of an abused spouse or child who are unmarried and under the age of 21 may also be able to gain lawful permanent residency as a derivative if they are included on the VAWAeligible parent’s self-petition. 92 (Note, however, that the children of those who self-petition as the parent of an abusive U.S. citizen son or daughter do not qualify for derivative status). Derivative children are not required to have been the victims of abuse, nor do they have to have resided in the United States, nor are they required to be related to the abuser through blood or marriage. As with self-petitioning children, a derivative child who turns 21 after filing or approval of the parent’s self-petition will be considered a petitioner under the first, second, or third family preference categories and is eligible for deferred action and work authorization. 93 No new petition need be filed. 94 Example: Cristina is 18 and is the daughter of Marie, who was abused by her USC husband. Marie filed a self-petition and listed Cristina as her daughter on her form I-360 self-petition. Before the self-petition is approved, Cristina turned 21. Cristina will not lose her status as a derivative child. Instead, she will automatically be considered as a petitioner under the 2B preference category. Marie will not need to file any petition on Cristina’s behalf. Cristina will be eligible for deferred action status and employment authorization while waiting for her priority date to become current. Had Marie not filed her self-petition before Cristina turned 21, however, Cristina would not have been able to be included as a derivative, and would have to wait until Marie became an LPR to file an I-130 petition for her. PRACTICE POINTER: Other Immigration Options for Abused Children. Some children may not qualify for VAWA, while others may qualify but find another form of relief is better for them. Special Immigrant Juvenile Status: One important form of relief is special immigrant juvenile status, or “SIJS.” A grant of SIJS gives the child permanent residence. Children may qualify for SIJS if they are under the jurisdiction of a state court (for example, dependency, delinquency, family or probate guardianship), are dependent on the court or legally placed with a state agency, a private agency, or a private person, and cannot be reunited with at least one parent due to abuse, neglect or abandonment. 95 There is no requirement that the parent was a USC or LPR, and there is no need to wait for a priority date. However, the entire process must be completed while the child remains under the jurisdiction of a state court. For more information, a manual on SIJS, the manual entitled Special Immigrant Juvenile Status and Other Immigration Options for Children & Youth can be purchased from the Immigration Legal Resource Center (ILRC) website at www.ilrc.org/publications. U.S. Citizenship: Children of U.S. citizens may already be U.S. citizens because they acquired citizenship by birth in another country to a U.S. citizen parent. Charts to help analyze possible acquisition or derivation of U.S. citizenship can be downloaded for free from the Immigration INA § 204(a)(1)(A)(iii) [children of abused spouses and intended spouses of U.S. citizens]; INA § 204(a)(1)(B)(I) [children of abused spouses and intended spouses of lawful permanent residents]. 93 INA § 204(a)(1)(D)(i)(III). 94 Id. 95 INA § 101(a)(27)(J) and 8 CFR § 204.11. 92

3-26

Tab Position 1

Immigrant Legal Resource Center March 2017

Legal Resource Center (ILRC)’s website at www.ilrc.org/resources/naturalization-quickreference-charts. The ILRC also has a naturalization manual entitled Naturalization and U.S. Citizenship: The Essential Legal Guide that can be purchased at www.ilrc.org/publications.

Tab Position 1

VAWA Manual March 2017

Asylum: Some children may be eligible to apply for asylum based on traditional arguments, or because they were street children or even victims of domestic violence. Please also see Practice Pointer on “Other Immigration Relief for Abused Spouses” above. Deferred Action for Childhood Arrivals (DACA): Some young people may be eligible for DACA if they were under the age of 31 as of June 15, 2012, came to the United States before reaching their 16th birthday, have continuously resided in the United States since June 15, 2007, are currently and were physically present in the United States on June 15, 2012, have and had no lawful status on June 15, 2012, and are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States, and have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety. Those who are granted DACA are eligible for work authorization and may be able to obtain advance parole to travel. For more detailed information, the ILRC’s manual, DACA: The Essential Legal Guide may be purchased at www.ilrc.org/publications.

In order to self-petition under VAWA, a parent of a USC must prove that: • • • • •

He or she is a parent of a son or daughter over the age of 21, and has a qualifying relationship to the abuser; The abuser is (or was) a USC; 96 The USC son or daughter abused the self-petitioning parent; 97 The self-petitioning parent resides or has resided with the abusive USC son or daughter; 98 and The self-petitioning parent is a person of good moral character. 99

Self-petitioning parents of abusive U.S. sons and daughters cannot include their children as derivative beneficiaries. § 3.20 The Self-Petitioner Is the Parent of the Abuser In order to qualify as a self-petitioning parent, the parent must be eligible for classification as an immediate relative under INA § 201(b)(2)(A)(i). 100 That definition requires the abuser son or daughter to be over the age of 21when the self-petition is filed in order for the abused parent to INA § 204(a)(1)(A)(vii). Id. 98 INA § 204(a)(1)(A)(vii)(IV). 99 INA § 204(a)(1)(A)(vii)(II). 100 INA § 204(a)(1)(A)(vii)(III). 96 97

3-27

Chapter 3

§ 3.19 Requirements for VAWA Self-Petitioning Parents

qualify for VAWA self-petitioning. This includes biological parents, stepparents, and adoptive parents. 101 The abused parent must show a qualifying relationship with the son or daughter at both the time of the abuse and the filing. 102 Qualifying parent/child relationships are discussed at § 3.12 above. Abused stepparents and certain adoptive parents may also qualify under this provision of VAWA if they are abused by a stepson, stepdaughter, adopted son or adopted daughter, provided that the self-petitioner meets the definition of a “parent” (as defined in INA § 101(b)(2)) and has or had a qualifying relationship to the abusive U.S. citizen son or daughter. The qualifying relationship must also be in existence at the time of the abuse and at the time of the filing. If the basis for the VAWA self-petition was a stepparent relationship that was terminated by death, legal separation or divorce, the self-petitioning stepparent must demonstrate three things to qualify for VAWA: 1. The U.S. citizen stepson or stepdaughter had not reached the age of eighteen years at the time the marriage creating the step-relationship occurred; 2. The step-relationship was in legal existence and not terminated by death, legal separation or divorce at the time of the abuse; and

Chapter 3

3. The step-relationship was in legal existence at the time of filing or, if the relationship was terminated by death, legal separation or divorce, the stepparent may remain eligible if he or she can demonstrate that as a matter of fact, the relationship continued to exist between the stepparent and the U.S. citizen stepson or stepdaughter at the time of filing. 103 The relationship need not continue after filing. § 3.21 The Abuser Son or Daughter Is (or Was) a USC Abused parents will qualify for VAWA self-petitioning only if the abuser son or daughter is or was a U.S. citizen. 104 The abusive USC son or daughter must be at least 21 years of age when the parent’s self-petition is filed. The abused parents of lawful permanent residents do not qualify. If the abuser son or daughter lost or renounced his or her citizenship status as a result of an incident of domestic violence, the abused parent may still self-petition if she does so within two years of the abuser losing citizenship. 105 At the time of loss of status, the son or daughter must have been at least 21 years of age.

USCIS Policy Memorandum, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen,” PM-602-0046, August 30, 2011 [hereinafter USCIS, Parent Memorandum] attached as Appendix 3-J. 102 Id. 103 Matter of Mowrer, 17 I&N Dec. 613, 615 (BIA 1981). 104 INA § 204(a)(1)(A)(vii). 105 INA § 204(a)(1)(A)(vii)(I). 101

3-28

Tab Position 1

Immigrant Legal Resource Center March 2017

An abused parent may also self-petition within two years of the abuser U.S. citizen son or daughter’s death. 106 In this situation, the son or daughter must have been at least 21 years of age at the time of death.

Tab Position 1

VAWA Manual March 2017

§ 3.22 The USC Son or Daughter Abused the Self-Petitioning Parent The definition of abuse for a VAWA self-petition is discussed in § 3.6. Not only acts and threatened acts of violence against the parent, but such acts against a third person (including another family member) may qualify as abuse if deliberately used to perpetuate extreme cruelty against the parent. Evidence of the abuse may include (but is not limited to): police reports, court records, medical records, and social service agency reports. If a protective order is in place, a copy should be submitted. 107 § 3.23 The Self-Petitioning Parent Resides or Has Resided with the Abusive USC Son or Daughter The statute requires the abused parent to reside or have resided at some point in time with the abusive son or daughter. 108 The self-petitioning parent does not need to be currently residing with the abusive son or daughter, nor is there any specified amount of time the abused parent must have lived with the son or daughter.

§ 3.24 The Self-Petitioning Parent Is a Person of Good Moral Character Good moral character is described in greater detail at § 3.8. Self-petitioning parents must submit affidavits of good moral character, police clearance letters, criminal background checks or other evidence of good moral character for the three years preceding filing of the VAWA selfpetition. 110 It is unclear whether self-petitioning parents will be able to avail themselves of the exceptions to the bars to a finding of good moral character made available to VAWA self-petitioners at INA § 204(a)(1)(C). This is because that section of the statute fails to cross-reference the selfpetitioning parent provisions in the statute. However, this may have been an error that will be changed by a technical correction in the future. USCIS, Parent Memorandum, supra note 107, at 5. Id. 108 INA § 204(a)(1)(A)(vii)(IV). 109 INA § 204(a)(1)(A)(v); see also USCIS, Parent Memorandum, supra note 107, at 5. 110 USCIS, Parent Memorandum, supra note 107, at 5. 106 107

3-29

Chapter 3

There is nothing in the statute that requires an abused parent to show residence in the United States. However, USCIS guidance indicates that if a self-petitioning parent is outside the United States, he or she must show that the abusive USC son or daughter is an employee of the U.S. government or a member of the armed forces, or the abusive son or daughter subject the selfpetitioning parent to battery or extreme cruelty in the United States. 109

§ 3.25 Prohibition on Petitioning for Abusers Approved VAWA self-petitioners, including the VAWA self-petitioners’ derivatives, may never file a petition for permanent residency or other nonimmigrant status for the abuser upon whose abuse the original VAWA self-petition was based. 111 This new provision was added by VAWA 2005 to prohibit an abused spouse from petitioning her abuser spouse, an abused child from petitioning her abuser parent, or an abused parent from petitioning her abuser son or daughter in the future if the abused individual received an approved VAWA self-petition based on that abuse. § 3.26 Humanitarian Parole 112 Occasionally a VAWA self-petitioning client will have family members that may not benefit directly from the VAWA immigration provisions. For example, this happens when a VAWA selfpetitioner has grandchildren who cannot be included as VAWA derivatives. In those cases, the grandchildren cannot obtain immigration status or reunite with the family in the United States under VAWA.

Chapter 3

Example: Veronica was abused by her USC husband. She decided to self-petition under VAWA. When she self-petitioned, she also included her 17-year old daughter Leia as a derivative. Leia lives in Suriname with a one-year old son named Vincent. When the selfpetition is approved, Leia will be able to come to the United States through consular processing as a VAWA derivative. However, Leia will have to leave Vincent behind in Suriname. This is because Veronica cannot include Vincent as a derivative because there is no derivative provision for grandchildren. Furthermore, Leia cannot include Vincent as a derivative because derivatives cannot have their own derivatives under VAWA. Leia wants to come to the United States to be with her mother as soon as possible. However, neither Leia nor Veronica wants Leia to leave Vincent behind in Suriname as there is no other family to take care of him there. They would like all three of them to be reunited in the United States. In cases such as these, one option to pursue is humanitarian parole. Humanitarian parole is not a document that grants immigration status. Instead, according to USCIS, it is used “sparingly” to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency. 113 It can be used only for individuals outside the United States unless it is being used to extend the parole for someone who was admitted for a specific time period. Humanitarian parole is to be used in cases when there is no other immigration benefit available for the applicant AND there is a demonstrated need for the applicant to be admitted into the INA § 204(a)(1)(L). Special thanks to Protima Pandey, Attorney at Bay Area Legal Aid, Sarabeth Marinelli, Volunteer Attorney at Bay Area Legal Aid, and Catherine Seitz, Regional Immigration Coordinator at Bay Area Legal Aid for sharing their expertise, helping to draft this section, and providing sample materials. 113 More information on humanitarian parole can be found at www.uscis.gov/humanitarianparole and in the ILRC’s manual entitled Parole in Immigration Law, which may be purchased at www.ilrc.org. 111 112

3-30

Tab Position 1

Immigrant Legal Resource Center March 2017

United States for urgent humanitarian reasons or significant public benefit. 114 The period of time for which humanitarian parole is granted should correspond with the length of the emergency or humanitarian situation.

Tab Position 1

VAWA Manual March 2017

The entire humanitarian parole petition must focus on the need for the parole and the extreme hardship if the parole is not granted, and the applicant must attach supporting documents. In general, a humanitarian parole application will include: • • • • • • • • • •

Form I-131; Copy of identity document; Description of the reason for requesting humanitarian or public benefit; Evidence supporting that reason (i.e., medical docs); Form I-134 Affidavit of Support; Statement of efforts to obtain the following or why they are unavailable: o U.S. visa and Waiver of any inadmissibility grounds; Decision/evidence regarding any immigration petition filed; Length of time parole is sought; 2 photographs of parolee (abroad); and $575 filing fee or fee waiver (there is no additional biometrics fee).

For VAWA self-petition grandbaby cases, supporting evidence often includes: Documents to show that the principal and derivative have had their VAWA applications approved;

•

Birth certificates with translations showing the relationship between the principal and the derivative and between the derivative and the grandchild who is requesting humanitarian parole, including birth certificate of the grandchild;

•

Three declarations: from (a) VAWA principal (grandparent), (b) VAWA derivative (derivative child / parent of grandchild), and (c) grandchild (if old enough to express herself) of why there is a compelling humanitarian reason for the grandchild to be issued humanitarian parole, including why there is no other way the child can lawfully enter the United States and why no one in the child’s home country, including the other parent if applicable, can care for the child; and

•

Detailed letters of support from grandchild’s family and friends detailing the humanitarian need.

Sample materials from a successful humanitarian parole application—including a cover letter, applicant declaration and response to an RFE—are included as Appendix 3-F. More information about humanitarian parole can also be found on the USCIS website at www.uscis.gov/humanitarianparole.

See generally Immigration Nationality Act Sec. 212 (d)(5)(A); see also Tri-Parte MOA between USCIS, ICE, and CPB signed on 9/28/08 available at www.ice.gov/doclib/foia/reports/parole-authority-moa-908.pdf. 114

3-31

Chapter 3

•

PRACTICE POINTER: Obtaining Humanitarian Parole. Pay close attention to the facts in your petition that describe the relationship between the applicant and the beneficiary. If you are required to submit DNA proof of relationship, ensure that the DNA lab is an authorized USCIS vendor and that they follow the exact method of delivery of results as required by the USCIS in your specific case.

Chapter 3

Once the approval is obtained, the humanitarian parole beneficiary will have to be admitted into the United States on a fairly quick turnaround. (In the case of one VAWA advocate, the client was given only 25 days to bring the baby from overseas into the United States.) Contact the State Department in the country where the beneficiary resides and make arrangements for the beneficiary to collect the travel documents from the State Department of the home country. A word of caution: unless your approval notice requires you to, do not fill out the Form DS-260 or Form DS-160 because humanitarian parole is not a visa. It is just a permit to enter the United States. Ensure that travel arrangements are made for the beneficiary to leave the home country as soon as the travel documents are received. Obtaining humanitarian parole and entering the United States can be just the first (and most difficult) step in reuniting a client’s family. An I-130 family-based petition should be filed for the family member as soon as possible based on eligibility. The parole status should be renewed annually until the paroled family member’s 2A priority date is current and the paroled family member is eligible to adjust status.

3-32

Tab Position 1

Immigrant Legal Resource Center March 2017

CHAPTER 3 REQUIREMENTS FOR SELF-PETITIONING UNDER THE VIOLENCE AGAINST WOMEN ACT (VAWA)

Tab Position 1

VAWA Manual March 2017

INDEX OF APPENDICES Aleinkoff, Executive Associate Commissioner, Office of Programs, INS Mem/HQ 204-P, April 16, 1996

Appendix 3-B

Gail Pendleton and Ann Block, “Applications for Immigration Status under the Violence Against Women Act,” 2001 AILA Annual Meeting Materials, at Volume II

Appendix 3-C

Yates, Associate Director, Operations, USCIS Mem./HQOPRD 70/8.1/8.2, January 19, 2005

Appendix 3-D

USCIS Chart: Waivable Conduct Contained in the Statutory Bars to Establishing Good Moral Character

Appendix 3-E

USCIS Attachment to January 19, 2005 Memoranda: Authorities Affecting False Testimony Determinations

Appendix 3-F

Sample Humanitarian Parole Packet

Appendix 3-G

Aytes, Acting Associate Director, Domestic Operations, USCIS Mem/HQ 70/8, October 31, 2005

Appendix 3-H

Sally Kinoshita, Extreme Cruelty: What it is and how to prove it, Asista Newsletter, 2-4 (Fall 2006)

Appendix 3-I

USCIS Policy Memorandum, “Continued Eligibility to File for Child VAWA Self-Petitioners After Attaining Age 21,” PM-602-0048, September 6, 2011

Appendix 3-J

USCIS Policy Memorandum, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen,” PM-602-0046, August 30, 2011

Appendix 3-K

ILRC Practice Advisory, “Marriage Equality in Immigration Law: Immigration Benefits for Same-Sex Married Couples”

Appendix 3-L

Novak, Director, Vermont Service Center, USCIS Mem/HQOPRD 70/8.1/8.2, January 19, 2005

3-33

Chapter 3

Appendix 3-A

Chapter 3

Tab Position 1

=

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-1

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-A-2

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-3

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-A-4

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-5

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-A-6

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-7

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-A-8

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-9

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-A-10

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-11

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-A-12

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-13

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-A-14

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-A-15

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-1

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-2

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-3

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-4

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-5

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-6

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-7

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-8

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-9

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-10

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-11

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-12

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-13

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-14

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-15

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-16

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-17

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-18

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-19

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-20

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-21

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-22

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-23

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-24

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-25

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-26

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-27

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-28

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-29

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-30

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-31

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-B-32

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-B-33

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-C-1

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-C-2

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-C-3

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-C-4

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-D-1

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-D-2

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-D-3

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-D-4

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-D-5

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-E-1

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-E-2

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-E-3

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-E-4

APPENDIX 3-F March 13, 2012 USCIS Attn: Humanitarian Parole Unit P.O. Box 660865 Dallas, TX 75266 Re:

Petitioner: Petitioner, A:XXX-XXX-XXX Beneficiary: Beneficiary, minor and granddaughter of petitioner I-131 APPLICATION FOR HUMANITARIAN PAROLE ENCLOSED

Dear Sir or Madam:

Chapter 3

Enclosed please find the above mentioned application for humanitarian parole for Beneficiary. Petitioner is a self-petitioner VAWA applicant, suffering abuse from her U.S. citizen spouse J S. Her application was approved and she was granted lawful permanent resident status on May 21, 2011. Petitioner submitted a DS-230 application for her three derivative children on June 29, 2011, requesting visas for her three children: A, B, and C. C received an interview appointment for her application at the U.S. Embassy in Manila on September 22, 2011. On October 18, 2011, C was granted a travel visa valid through March 5, 2012. However, before she received the visa she experienced premature labor and underwent an emergency Cesarean section on September 30, 2011. One of her twins died but the other, Beneficiary, was born and survived. C cared for beneficiary until February 17, 2012 when she was forced to immigrate to the United States or risk expiration of her visa. Although C’s derivative status allows her to travel to the United States, her daughter beneficiary does not qualify under this category as she is not a VAWA petitioner’s spouse, child or unmarried sibling under the age of 16. We are therefore seeking humanitarian parole to allow Beneficiary to join her mother and family in the United States. C plans to submit an I-130 application once the child is admitted to the United States to allow her to remain with her family. However, because Beneficiary is only five months old, she is in desperate and immediate need of her mother’s care and breast milk. There is no one in the Philippines who is willing and able to care for the child. Petitioner will pay for all of the child’s housing, food, and subsistence needs, and plans to add the child to her health insurance to provide the child with full medical coverage once she can become her legal guardian. Petitioner, with the consent of her daughter C, has filed a guardianship petition in the San Mateo Superior Court to become beneficiary’s legal guardian so that the child will be covered under her employer-provided health insurance. If this application is denied, Beneficiary will be forced to stay in the Philippines with no one to care for her. This is not an acceptable situation for her. Beneficiary’s birth father has refused to acknowledge

Appendix 3-F-1

Tab Position 1

Immigrant Legal Resource Center March 2017

paternity of his baby and has abandoned her and C, providing no support whatsoever. There are no other family members who are willing and able to care for Beneficiary in the Philippines. Staying in the United States and leaving Beneficiary in the Philippines is not an option for C. The child is still breast feeding and needs to be in her mother’s care. Even if C were to travel back to the Philippines to be with her daughter, however, she is not able to properly care for beneficiary. C is under the age of 18, and is still in school. She lacks the financial means and the maturity to properly care for this baby on her own. Both C and Beneficiary would suffer irreparably if Beneficiary is not permitted to travel to the United States and live in the care of (and be supported, financially and emotionally, by) her mother, grandmother, aunt, uncle, and extended family.

Tab Position 1

VAWA Manual March 2017

In support of this application, we enclose the following: 1. G-28 signed by Petitioner authorizing my representation 2. I-912 requesting a Fee Waiver 3. Form I-131 Additionally, please see the following evidence in support of this application: Evidence of emergent reasons in support of granting advance parole Declaration of petitioner Statement of Emergent Reasons Explaining Why Advance Parole Should Be Authorized VAWA approval letter evidencing VAWA status for Petitioner Visa of C Birth Certificate of C Birth Certificate of Beneficiary

Affidavit of Support with Evidence of Sponsor’s Occupation and Ability to Provide Necessary Support 1. 2. 3. 4.

I-134 Affidavit of Support by Petitioner Attachment to Form I-134, Affidavit of Support Wells Fargo Account Summary showing amount in checking and savings accounts Letter from Employer, Human Resources Manager South Parking confirming employment and wages 5. Paystubs 6. Excerpt from Bay Area Welfare Fund, Summary of Plan Description, showing medical coverage for all dependents, including “any other child for whom you are the court-ordered legal guardian” 7. Endorsed File Stamped Petition for Legal Guardianship of Minor Beneficiary 8. I-134 Affidavit of Support by Uncle 9. Declaration of uncle of petitioner in support of I-134 10. 1040 Income Tax Return for Year 2010 for Uncle

Appendix 3-F-2

Chapter 3

1. 2. 3. 4. 5. 6.

Evidence of how medical care, housing, and other expenses and subsistence needs will be met See Exhibits X,X,X,X,X,X, and X. Remaining Documentation 1. 2. 3. 4. 5.

Statement explaining why a U.S. Visa cannot be obtained Statement Explaining why a waiver of inadmissibility cannot be obtained (n/a) Documentation regarding pending immigrant petition (n/a) Two photographs of beneficiary Official Photo Identity Document for petitioner

Sincerely,

Chapter 3

Protima Pandey Staff Attorney Bay Area Legal Aid

Appendix 3-F-3

Tab Position 1

Immigrant Legal Resource Center March 2017

[CreateDate]

Tab Position 1

VAWA Manual March 2017

Re: Dear [recipient name]; Sincerely, [senders title] DECLARATION OF PETITIONER TO IN SUPPORT OF HER APPLICATION FOR HUMANITARIAN PAROLE FOR BENEFICIARY OF THE PAROLE I, Petitioner, declare under penalty of perjury that the following is true to the best of my knowledge:

2. Daughter 1’s travel visa had an expiration date of March 5, 2012. We tried to extend the visa so that she could stay in the Philippines longer with her baby but we were told there was no way to extend. The only option was to let it expire and then request a renewal, which we did not do for fear of it being denied. I understand that my granddaughter Beneficiary of the parole does not have any basis to obtain a travel visa that will not involve many months and even years of separation from her mother Daughter 1 and me and the rest of our family, other than a humanitarian parole application. Her birth father has refused to acknowledge that he is her father and has abandoned Beneficiary of the parole and her mother Daughter 1. His family has similarly denied the baby and failed to provide any support. There is no one else willing and able to care for the child in the Philippines. We are therefore faced with two impossible scenarios: Daughter 1 will be forced to return to the Philippines and as a teenage single mother must raise her baby daughter without the support of her family, which she cannot do because she is still in school, has no money and no experience to care for a baby, or Beneficiary of the parole must wait in the Philippines until her mother Daughter 1 can submit an I-130 petition to immigrate her to the U.S., which may mean years of separation until her visa number becomes current with no known or family caretaker for her in the Philippines. This she cannot do either

Appendix 3-F-4

Chapter 3

1. My name is Petitioner. I am 40 years old and live in the Bay area, California. My address is confidential as I am a domestic violence survivor. As a result of my successful VAWA petition, I became a lawful permanent resident on May 27, 2011. On June 29, 2011 I submitted an I-230 application on behalf of my three minor children who were then living in the Philippines. The children had an interview at the U.S. Embassy in the Philippines in September, 2011. They were all granted visas on October 18, 2011. However, my eldest daughter Daughter 1, who is 17 years old, went into premature labor and had to undergo an emergency Cesarean section operation to deliver her twins on October 3, 2011. One of the twins died, but the other twin, Beneficiary of the parole, survived. My two youngest children, A and B, joined me in the U.S. in October, 2011. Daughter 1 only just arrived in the U.S. in February, 2012. She had to leave her baby girl behind for now.

because she is just a baby who is still breast feeding and needs much more love and support and care. Neither of these are viable options for my grandbaby.

Chapter 3

3. My daughter Daughter 1 needs to be near her mother. She is only 17 years old and has suffered great joy but also great tragedy. She is the victim of statutory rape, and even though the birth of Beneficiary of the parole was joyous the death of her other twin baby was a traumatic experience. As a teenage mother, she needs extra help; I can help her raise Beneficiary of the parole, which I could not do if she had to return to the Philippines or leave Beneficiary of the parole in the Philippines for years while waiting for a family immigration petition to become current. Here in the U.S. Daughter 1 would also have the support of her siblings, as well as her great uncle and extended family. If Beneficiary of the parole is granted humanitarian parole then with our family together we can help heal the tragedy that has befallen Daughter 1 and Beneficiary of the parole. 4. If Beneficiary of the parole is granted humanitarian parole I will be able to care for her along with her mother Daughter 1, and provide health insurance through my employer’s health care plan. In order to do this I must become her legal guardian, which I have applied to do. My daughter Daughter 1 has given her consent to the guardianship. Documents for the guardianship are included in this application. I have an apartment where I and my three children are staying. The baby will sleep with Daughter 1, and there is enough room for everyone. I plan to move to a large place once I am able. But with the income I get from both of my jobs, I will be able to support the baby as I have been able to support my children. I have been supporting the baby financially in the Philippines since she was born, so it will really be no different here. 5. In addition, I will care for my granddaughter and my children and make sure they are raised in a loving family, with their needs taken care of. My uncle wants to be a part of our family in every way, including financially. We have both included financial documents to support our intention to meet the Beneficiary of the parole financial needs so that she will not become a public charge, please see the I-134 Affidavits of Support included in this application. In case anything were to happen to me, or if I were to lose my job, for example, Uncle has stated that he will take on the financial responsibility to care for my grandbaby. Thank you for considering my Humanitarian Parole application for my granddaughter Beneficiary of the parole, which would allow her to travel from the Philippines and give our family the opportunity to unite in the U.S. and create a better future our family. Date:

______________________________ Petitioner

Appendix 3-F-5

Tab Position 1

Immigrant Legal Resource Center March 2017

July xx, 2012 USCIS Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001

Tab Position 1

VAWA Manual March 2017

RE: Request for Evidence – On behalf of Beneficiary of the parole, IA------------(I-131-Humanitarian Parole application) Dear Sir or Madam: I am writing in response to your request for additional information regarding the above-named individual. I am the attorney representing the Petitioner, Petitioner, pursuant to the enclosed G-28, as well as, her daughter, and mother of Beneficiary of the parole, on whose behalf this petition was filed, G-28 also enclosed, Exhibit A. Following is the information requested in the Request for Evidence (copy of RFE enclosed herein as Exhibit B):

Uncle is the uncle of Petitioner, and great great uncle of daughter. Please see the following evidence to establish his identity, enclosed herein as Exhibit C: a. Copy of California Driver License for Uncle b. Copy of United States Passport of Uncle 2. Notarized Declarations from Petitioner and daughter explaining why the consent of the father cannot be obtained Enter info here about father’s consent not needed b/c not on birth certificate and his consent not required- first needs to be researched at Philippine Consulate. Beneficiary’s father, father, has refused to provide his written consent for Beneficiary to leave the Philippines. However, in numerous telephone conversations he has stated to Petitioner and daughter that he does not object to her leaving the country. In fact, he has never held himself out as beneficiary’s father nor has he expressed his desire to have a parental relationship with his daughter, as detailed in the declarations. Please see the following detailed explanations of why the father’s consent cannot be obtained, enclosed as Exhibit D: a. Notarized Declaration of Petitioner, dated May 29, 2012 b. Notarized Declaration of daughter, dated May 29, 2012

Appendix 3-F-6

Chapter 3

1. A copy of a Government issued identification of the sponsor, Uncle

3. Status of guardianship of Beneficiary of the parole A guardianship petition was filed by Petitioner in San Mateo Superior Court on February 24, 2012 on behalf of Beneficiary. This petition was filed to enable Petitioner to provide health insurance for Beneficiary for her proper health and welfare (her insurance provides health coverage for wards). At the time of this petition, petitioner’s daughter had just barely arrived from the Philippines and was not able to provide health insurance for XX. After conversations with the San Mateo County Court Investigator’s office regarding this petition, they expressed concern that the court did not have appropriate jurisdiction over Beneficiary as she remained in the Philippines. Despite requests to continue the matter in hopes that a determination might be received as to her humanitarian parole application, the court determined that it did not have jurisdiction and on April 17, 2012 it dismissed the petition. Please see the following, enclosed as Exhibit E:

Chapter 3

a. Minute Order dismissing the guardianship petition by petitioner, as well as Confidential Investigator’s Report. In the interim, daughter has diligently moved forward with her life in a responsible manner, starting to build a life for herself and her daughter. She has taken a G.E.D. test and obtained part time work. She is working to find a full time job which would allow her to obtain her own health insurance and insurance for her daughter, beneficiary, as explained on Exhibit D, infra. 4. DNA test results establishing the relationship between daughter and Beneficiary Daughter submitted a sample for DNA testing at the AABB approved laboratory, Universal Genetics, LLC., through their collection center at S.F., CA called DNA Diagnostics Center. Her daughter Beneficiary submitted her sample through the same approved laboratory, at their collection center in Manila, Philippines where she currently resides. Pursuant to the requirements of the RFE the results of the parentage-testing were submitted directly to the Humanitarian Affairs Branch in Washington, D.C. Per the collection laboratory, copies of the results were submitted directly to USCIS pursuant to directions in the RFE. Please note that both daughter and Beneficiary presented themselves as outlined below for the testing: a. daughter presented herself to the SF collection laboratory of Universal Genetics, LLC, on May 30, 2012 for her DNA test b. Beneficiary presented herself to the Manila collection laboratory of Universal Genetics, LLC for her DNA test

Appendix 3-F-7

Tab Position 1

Immigrant Legal Resource Center March 2017

Please feel free to contact me if you require any additional information. Thank you for your kind attention to this matter.

Tab Position 1

VAWA Manual March 2017

Sincerely,

PROTIMA PANDEY Staff Attorney Bay Area Legal Aid

Chapter 3

Appendix 3-F-8

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-G-1

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-G-2

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-G-3

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-G-4

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-G-5

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-H-1

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-H-2

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-H-3

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-H-4

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-I-1

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-I-2

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-I-3

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-I-4

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-I-5

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-J-1

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-J-2

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-J-3

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-J-4

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-J-5

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-J-6

Tab Position 1

Chapter 3

Immigrant Legal Resource Center March 2017

Appendix 3-J-7

Tab Position 1

VAWA Manual March 2017

Chapter 3

Appendix 3-J-8

APPENDIX 3-K MARRIAGE EQUALITY IN IMMIGRATION LAW: IMMIGRATION BENEFITS FOR SAME-SEX MARRIED COUPLES On June 26, 2013, the U.S. Supreme Court held in United States v. Windsor, 570 U.S. ___ (2013) that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional. Section 3 of DOMA, for purposes of numerous federal programs and benefits, defined marriage as only a legal union between a man and a woman and defined a spouse as a person of the opposite sex. Since immigration is a federal benefit that had been restricted by DOMA, once the Supreme Court declared it unconstitutional, President Obama and Department of Homeland Security (DHS) Secretary Janet Napolitano directed the immigration agencies, such as United States Citizenship and Immigration Services (USCIS), to treat same-sex bi-national married couples the same as opposite-sex married couples for the purposes of immigration law including reviewing immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse and ensuring that federal benefits for same-sex legally married couples were implemented swiftly and smoothly. USCIS and the U.S. Department of State have both issued guidance on this issue (www.uscis.gov/family/same-sex-marriages; http://travel.state.gov/content/dam/visas/DOMA/DOMA%20FAQs.pdf).

Chapter 3

Family-Based Petitions for Same-Sex Couples USCIS has begun approving visa petitions for same-sex spouses, announcing that it will use the same criteria as for opposite-sex couples. To this end, the USCIS has stated that it will look to the law of the location where the marriage took place when determining whether a marriage is valid for immigration law purposes. Currently thirteen states (California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont, and Washington) and the District of Columbia have marriage equality and recognize same-sex marriages as legal, valid marriages. Same-sex marriages have also been legalized in numerous other countries such as The Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, New Zealand, Uruguay, Brazil, France, certain parts of the United Kingdom and Mexico – and the list continues to grow. Couples who do not currently live in a state or country that recognizes same-sex marriage may obtain a lawful marriage in one of the places that recognize marriage equality so long as the laws of that place permit out-of-state residents to marry there. As of now, only legal marriages establish eligibility for immigration purposes, which means that civil unions and domestic partnerships will not be viewed as a marriage for immigration purposes. Example: Theresa is a U.S. citizen and her wife Jenny is from Trinidad and Tobago. They were married in Amherst, Massachusetts. Michael is a U.S. citizen and his husband Fernando is from Spain. They were married in Madrid, Spain. Sung Bae is a U.S. citizen and his husband Takeshi is from Canada. They were married in Vancouver, British Columbia, Canada. All three of these couples were married in places and times that made their marriages legal. As of now, these couples will finally be able to petition their spouses for immigration benefits.

Appendix 3-K-1

Tab Position 1

Immigrant Legal Resource Center March 2017

Note: Eligibility to petition for a spouse based on a legal marriage, and a spouse’s eligibility to receive a green card are two different criteria. To receive a green card, in addition to proving a qualifying family relationship, a foreign national will also have to prove he or she is admissible to the United States, pay filing fees, have a medical exam done, attend an interview, and more. Speak to an attorney or a BIA-accredited representative before deciding whether to petition for a spouse or family member.

Tab Position 1

VAWA Manual March 2017

For those previously submitted same-sex marriage family petitions that were denied solely because of DOMA, USCIS will reopen those cases. USCIS will try to notify certain petitioners of such action, but it’s best to alert USCIS at [email protected] and request they reopen the case in light of the recent Supreme Court decision. This also applies to adjustment of status and employment authorization applications. If a same-sex couple is not currently married, just as with opposite-sex couples, a U.S. citizen that is engaged to a foreign national of the same sex can file a fiancé or fiancée petition, which may allow him or her to enter the United States to get married. However, the couple must be married within a certain amount of time of the foreign national spouse’s admission to the United States. Only certain U.S. states allow same-sex couples to legally marry, so they must make sure to marry in a marriage equality state.

Nonimmigrant Visas As stated above, the U.S. Department of State also issued guidance regarding same-sex marriages. Same-sex spouses and their children, just like with opposite-sex spouses, are now eligible for nonimmigrant derivative visas. For example, stepchildren of the primary applicant (when the marriage took place before the child turned 18) can qualify as derivatives. Certain visa categories will require approval of certain forms or documents before an interview can take place. These requirements are also required for opposite-sex couples. For example, same-sex spouses and children of a student visa (F or M) applicant will need to obtainI-20A. Spouses of J visa holders will need an approved DS-2019. Spouses of those that have been a victim of a crime (U) or of trafficking (T) will need to submit Supplement A to Form I-918 or I914, respectively, before receiving an approval. Transgender Spouses Transgender individuals in heterosexual marriages should no longer be subjected to any special requirements or conditions in order to prove that their marriage is in fact a “heterosexual” marriage due to the Supreme Court decision. Familiarity with the April 2012 USCIS Policy Memorandum regarding the adjudication of benefits for transgender individuals may still be helpful in matters concerning ways of documenting a change of gender identification for purposes of requesting the same be reflected on immigration documents. This memorandum clarifies that

Appendix 3-K-2

Chapter 3

Similarly to marriage-based petitions, abused spouses in same-sex marriages should also benefit under the Violence Against Women Act (VAWA) immigration provisions where the abusive spouse was or is a U.S. citizen or lawful permanent resident. The VAWA immigration benefits are available to both men and women and are now available to abused spouses from same-sex marriages. Make sure to research and prove the same-sex marriage was valid and legal in the location in which it took place at the time of the marriage.

Chapter 3

sex reassignment surgery is not necessary and it acknowledges a broader range of clinical treatments and other steps that can result in a legal change of gender under the various laws of the states.

Appendix 3-K-3

Tab Position 1

Immigrant Legal Resource Center March 2017

CHAPTER 4 THE VAWA SELF-PETITIONING PROCESS

Tab Position 1

VAWA Manual March 2017

This chapter includes: § 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 § 4.9 § 4.10 § 4.11 § 4.12 § 4.13 § 4.14 § 4.15 § 4.16

§ 4.24 § 4.25 § 4.26 § 4.27

§ 4.1

Introduction to the VAWA Self-Petitioning Process

There are two components to obtaining lawful permanent residence through VAWA selfpetitioning: One, the abused spouse, child, or parent files the self-petition by mail to the U.S.

4-1

Chapter 4

§ 4.17 § 4.18 § 4.19 § 4.20 § 4.21 § 4.22 § 4.23

Introduction to the VAWA Self-Petitioning Process ......................................... 4-1 Completing the VAWA Self-Petition................................................................. 4-2 Filling Out the I-360 ........................................................................................... 4-2 Documenting the Requirements for the I-360 .................................................... 4-7 A Detailed Cover Letter with an Index of the Documentation........................... 4-8 Notice of Entry of Appearance by the Attorney or Accredited Representative .................................................................................................. 4-10 Filing Fee Amount ........................................................................................... 4-10 The Self-Petitioner’s Detailed Declaration or Affidavit................................... 4-10 Proof That the Abuser Is (or Was) a Lawful Permanent Resident or United States Citizen ........................................................................................ 4-11 Proof That the Self-Petitioner Is (or Was) Married to the USC or LPR .......... 4-12 Proof That the Self-Petitioner Suffered Battery or Extreme Cruelty ............... 4-13 Proof That the Marriage or Intended Marriage Was in Good Faith ................. 4-14 Proof That the Self-Petitioner Resided with the Abuser .................................. 4-15 Proof That the Self-Petitioner Has Good Moral Character .............................. 4-16 Evidence of the Self-Petitioner’s Current Residence ....................................... 4-17 Documenting Eligibility for a VAWA Self-Petition for a Child or Parent ........................................................................................................... 4-17 Filing the Completed I-360 Packet ................................................................... 4-20 Prima Facie Eligibility..................................................................................... 4-20 Notice of Action/Request for Evidence............................................................ 4-21 Deferred Action ................................................................................................ 4-23 Preference Categories for Family-Based Immigration ..................................... 4-24 How the Preference System Works .................................................................. 4-25 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate ................................................................... 4-25 Employment Authorization .............................................................................. 4-28 Adjustment of Status and Consular Processing ................................................ 4-31 Notice of Intent to Deny ................................................................................... 4-32 Special Concerns for Advocates Who Are Not Attorneys or BIA Accredited Representatives .............................................................................. 4-33

Citizenship and Immigration Services (USCIS). Two, with an approved VAWA self-petition, the self-petitioner is eligible to apply to get a “green card.” If the approved self-petitioner wants apply for a “green card,” or lawful permanent resident status, she may through the adjustment of status process or consular processing. For some self-petitioners there may be a gap of potentially years that they must wait to apply for a green card after having the self-petition approved. For others, they may be able to apply for the VAWA self-petition and the green card at the same time. The timing of this one-step option is discussed in § 4.23 below. This chapter will discuss the first component—the VAWA self-petitioning process. Chapter 5, “Adjustment of Status” and Chapter 8, “Consular Processing” will discuss how to obtain lawful permanent residency based on an approved VAWA self-petition. See also Chapter 2, “Initial Discussions with Clients” for a detailed discussion of working with clients in the process. § 4.2

Completing the VAWA Self-Petition

The VAWA self-petition, whether filed by a self-petitioner living in the United States or abroad, is submitted on Form I-360. The self-petitioner must also submit documentation showing how she meets the VAWA requirements. This section discusses both the self-petition and documentation requirements. § 4.3

Filling Out the I-360

The first step in the self-petitioning process is to complete the I-360 petition. The petition form is called a “Petition for Amerasian, Widow(er), or Special Immigrant.” (See a sample Form I-360 in Appendix 4-B.) This petition is available at local USCIS offices, by calling the USCIS at 1-800870-3676, or by downloading it from the USCIS website at www.uscis.gov/i-360. It is also acceptable to use photocopies of the Form I-360 provided that the pages are printed exactly the same way as the official form. 1 USCIS changes immigration forms periodically, so it is important to check the USCIS website to ensure you are using the correct version of the form. See Practice Pointer below. The form was recently updated in December 2016, and no previous editions are accepted. At some point USCIS may even change the form altogether since it is currently used for many different immigration remedies.

Chapter 4

The petition must be typed or written legibly in black ink. PRACTICE POINTER: Using the Correct USCIS Forms and Filing Fee Amounts. Forms sometimes contain incomplete or out of date information, especially about petition fees. This is because the forms are not always updated as quickly as the requirements change. To check what the correct fee is for any petition and to get the most current information on which form to use, always check the USCIS website at www.uscis.gov. You can also call the USCIS at its national customer service number for current fee information at 1-800-375-5283. When checking whether the form you are using is an accepted version of the form, compare the edition date(s) that the USCIS website says can be used (sometimes they will accept more than one version) with the date on the lower left corner of any page of the form. Note this is not the 8 CFR § 299.4. Every part of the official form must be copied onto the photocopy or laser printed form. Furthermore, the forms must use black ink that will not fade or “feather” within 20 years.

1

4-2

Tab Position 1

Immigrant Legal Resource Center May 2014

same as the “expiration date” on the upper right corner of the first page of the form. USCIS often continues to use forms beyond the stated “expiration date,” and sometimes updates forms before the “expiration date,” so this date cannot be relied upon.

Tab Position 1

VAWA Manual March 2017

There will be some sections of the Form I-360 that are not relevant for a VAWA self-petitioner because this form is used for a number of different types of immigration petitions. In filling out the form, follow the instructions on the Form I-360 itself—some parts say to leave the section blank if the answer is not applicable or none; other sections say to put “N/A” if not applicable (for example, Items 8.a. & 8.b. on page 14 of the Form I-360). Although the Form I-360 is fairly straightforward, several points can cause confusion for selfpetitioners. These include: Part 1: “Information about Person or Organization Filing This Petition” This information is what the USCIS will use to contact or correspond with the VAWA selfpetitioner. The self-petitioner does not have to include her own address on the I-360, but can instead list the name of a friend, or your agency, in the c/o space, along with that person’s address. This gives the USCIS an alternative address for correspondence and therefore helps prevent the self-petitioner’s abuser from discovering that she has filed a self-petition. There is also now a section in Part 1 to list an “Alternate and/or Safe Mailing Address,” specifically for VAWA self-petitioners. Part 2: “Classification Requested” VAWA Self-petitioners should check the appropriate classification, either (I) for abused spouses, (J) for abused children, or (K) for abused parents. Part 3: “Information about the Person for Whom This Petition Is Being Filed” If the person entered without permission or illegally, also known as “without inspection,” write “N/A” for the question about the I-94 number and nonimmigrant status.

Prior to 2013, the I-94 card was a white cardboard card marked I-94. It was issued to all travelers and was loose or stapled to the passport. Now paper I-94 cards are only issued at land border ports of entry. Starting in April 2013, U.S. Customs and Border Protection (CBP) implemented an automated I94 and I-94W process for all travelers applying for admission at U.S. ports of entry by air or sea. For those who arrive by airplane or boat, CBP scans the traveler’s passport, generating an electronic arrival record. Electronic I-94 information is available at www.cbp.gov/I94. If your client cannot remember her I-94 information, you may visit this website to print the electronic I94 number.

4-3

Chapter 4

If the person entered legally, she probably entered with a nonimmigrant visa and obtained an I-94 card at the border upon entry. The I-94 should indicate the date of arrival, the current nonimmigrant status, and whether it is current or expired. Clients may have a paper or electronic version of an I-94 card.

Part 4: “Processing Information” The question about U.S. Consulates is applicable only to VAWA self-petitioners who are outside of the United States. In those cases, the U.S. consulate with jurisdiction (legal control) over the area where the self-petitioner resides will process the visa. 2 An application for adjustment of status (Form I-485) can filed concurrently with the I-360 if the VAWA self-petitioner is or was married to a U.S. citizen, is the child of a U.S. citizen or is the parent of a U.S. citizen son or daughter over the age of 21 (and is therefore an “immediate relative”) or has a current priority date. More information on adjustment of status eligibility is found in Chapter 5. Part 5: “Information About the Spouse and Children of the Person for Whom This Petition Is Being Filed” Make sure to include all children, including children born out of wedlock, adopted children, stepchildren and even children who do not plan to immigrate. It is important to include children who do not plan to immigrate currently because it may make the process easier for them if they decide to immigrate in the future. It will be more difficult for children who were not listed in the petition to immigrate later because the USCIS might doubt they are actually the applicant’s children. Parts 6, 7, 8 and 9: “Filing for an ‘Amerasian,’ as a ‘Widow/Widower,’ for a ‘Special Immigrant Juvenile’ or a ‘Special Immigrant Religious Worker’” These parts are not applicable to self-petitioners and should be left blank in all sections.

Chapter 4

Part 10: “Complete Only if Filing as a VAWA Self-Petitioning Spouse or Child of a U.S. Citizen or Lawful Permanent Resident or a VAWA Self-Petitioning Parent of a U.S. Citizen Son or Daughter” Item 12 allows the self-petitioner to check a box requesting employment authorization without filing a separate I-765 application for employment authorization. If the VAWA self-petitioner checks “yes” at item 12, once the I-360 petition is approved she will be issued employment authorization under the VAWA self-petitioner eligibility category (c)(31) without having to do anything further. However, self-petitioners who are eligible to immediately apply for adjustment of status and choose to concurrently submit a Form I-485 may want to check “no” here and put “See attached I-765 based on (c)(9) eligibility.” See more details about obtaining employment authorization under § 4.24 below Part 11: “Petitioner’s Statement, Contact Information, Declaration, and Signature (Individual)” Every petition must be properly signed. A photocopy of a signed petition or a typewritten name is not acceptable. If self-petitioner is under 14 years of age, a parent, or legal guardian may sign the petition on her behalf. USCIS has also started adding certain attestations to the signature sections The USCIS will send the petition to the National Visa Center (NVC) for initial processing. Then it will be sent to whichever consulate is named on the application. However, the consulate will not accept the petition unless it believes it has jurisdiction. The USCIS will forward the visa petition to a consulate, which it believes is the right one, or notify you that another consulate must be found.

2

4-4

Tab Position 1

Immigrant Legal Resource Center May 2014

of various forms, including the I-360, which refer to a “Penalties” section of the form instructions. The “Penalties” section reminds applicants they may face penalties and/or liability for knowingly and willfully falsifying or concealing a material fact. See “Instructions for 1-360” on the USCIS website for further instructions.

Tab Position 1

VAWA Manual March 2017

Part 12: “Statement, Contact Information, Declaration, and Signature of the Petitioner or Authorized Signatory” Complete this section only by a person who is filing Form I-360 to petition for another person or as an authorized signatory of an organization. This is not applicable to VAWA self-petitions. Part 13: “Interpreter’s Contact Information, Certification, and Signature” If an interpreter assisted the petitioner and/or preparer in completing this form, the interpreter’s information is required here. If no interpreter was used, or the preparer interpreted for the petitioner, this section may be left blank. Part 14: “Contact Information, Declaration, and Signature of the Person Preparing This Petition, if Other Than the Petitioner” If someone other than the self-petitioner completed the petition, that person must sign and date here. A stamped or typewritten name in place of a signature is not acceptable. If the same individual acted as interpreter and preparer, that person should complete both Part 13 and Part 14. If the person who completed the petition is associated with a business or organization, that person should complete the business or organization name and address information. If the person who helped prepare the petition is an attorney or accredited representative whose representation extends beyond preparation of this petition, he or she may be obliged to also submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative. 
 Part 15: “Additional Information” Use this section where additional space is needed, such as for listing dates when the selfpetitioner lived on and off with the abuser (Part 10, Item 9 on page 14), or to add an explanation.

These provisions of the law are particularly helpful if you believe your client’s abuser may contact the USCIS or any other immigration agency with information that may be harmful to her case or to find out more information about her whereabouts or the status of any applications IIRIRA § 384(a)(1); 8 USC § 1367. VAWA 2005 extended these prohibitions to all personnel in Department of Homeland Security, the Department of State, and the Department of Justice. VAWA 2005 § 817. 4 IIRIRA § 384(a)(2). 3

4-5

Chapter 4

PRACTICE POINTER: Protecting Your Client’s Confidentiality. Section 384 of the Illegal Immigration Reform and Individual Responsibility Act (IIRIRA) prohibits immigration officials from making adverse determinations based on “information furnished solely by” the applicant’s abuser, an abusive member of the applicant’s household, or someone who has abused the applicant’s child, in adjudicating cases of battered immigrants. 3 This section of IIRIRA also prohibits the “use or disclosure to anyone” (except other immigration officers “for legitimate … agency purposes”) of information relating to self-petitioners. 4

she may have pending. If that is the case, make sure to include in your cover letter a request that the USCIS invoke these § 384 confidentiality provisions in her case. A helpful memorandum to the USCIS field offices was issued in 1997 implementing § 384. (See memorandum at Appendix 4-T.) Reporting a Violation of the VAWA Confidentiality Provisions 5 Complaints alleging a violation of the VAWA confidentiality provisions by a DHS employee should be submitted in writing via letter, fax or e-mail to: U.S. Department of Homeland Security Office for Civil Rights and Civil Liberties 245 Murray Lane, SW Building 410, Mail Stop #0190 Washington, DC 20528-0190 E-mail: [email protected] For additional information, or to contact the DHS Office for Civil Rights and Civil Liberties (CRCL), you may also wish to go to: Web: www.dhs.gov/crcl Phone: (202) 401-1474 Toll Free: (866) 644-8360 Email: [email protected] Fax: (202) 401-4708 Local TTY: (202) 401-0470 Toll Free TTY: (866) 644-8361 The CRCL is statutorily obligated to review and assess information concerning abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion, by employees and officials of the Department. 6 Complaints are accepted in languages other than English.

Chapter 4

If you are filing a complaint on behalf of a client, you must provide CRCL with the express written consent of your client for you to receive information about the complaint, and you should include the following: •

Contact information: name, date of birth, A-number (if available), and contact information for your client; and name and contact information for the organization filing the complaint (if you’re filing on behalf of your client).

•

A written description of the circumstances of the alleged violation, including: date, time and location; name(s) and contact information of any witness(es); and name and contact information (if available) of the DHS employee(s) alleged to have committed the violation.

DHS Office for Civil Rights and Civil Liberties provides an optional complaint form online to ensure that it receives all the relevant information to investigate. The form can be downloaded at www.dhs.gov/xlibrary/assets/crcl-complaint-submission-form-english.pdf. 6 See 6 USC § 345 and 42 USC § 2000ee-1. 5

4-6

Tab Position 1

Immigrant Legal Resource Center May 2014

•

Relevant documentation, including: copies of any paperwork served at or during the occurrence of the alleged violation, such as NTAs and warrants; and copies of any pending VAWA, T-visa or U-visa applications filed with DHS.

•

A summary of other steps, if any, taken to resolve this complaint. CRCL will initially refer complaints to the DHS Office of the Inspector General. The complaint may later be referred to the relevant DHS component. 7

Tab Position 1

VAWA Manual March 2017

For a great flow chart on the complaint process, visit: www.dhs.gov/xlibrary/assets/crclcomplaints-flowchart.pdf. § 4.4

Documenting the Requirements for the I-360

Attached to the completed Form I-360, the VAWA self-petitioner must also submit documentation showing how she meets each of the VAWA requirements. However, VAWA recognizes that victims of domestic violence may face greater than normal obstacles to getting documentation. Therefore, although the self-petitioner is required to prove that she meets the VAWA requirements, the government must accept “any credible evidence” as proof. 8 This section will discuss ideas for obtaining and preparing documents to prove the requirements for a self-petition and what to do when documentation is unavailable. Additional information and ideas about obtaining proper documentation for VAWA self-petitions is available in the Immigrant Legal Resource Center’s “Document Gathering for Self-Petitioning Under the Violence Against Women Act: A Step-by-Step Guide,” which is available to be downloaded for free on the ILRC website at www.ilrc.org/info-on-immigration-law/vawa and is attached at Appendix 4-A. Using the Any Credible Evidence Standard to Document the Self-Petition

Records related to the abuser’s immigration status may be especially difficult to obtain where the abuser has controlled the family records and not allowed the victim access to those records. If the client and the advocate cannot obtain primary source documents as evidence to establish a crucial See “Violence Against Women Act (VAWA) Confidentiality Provisions at the Department of Homeland Security” attached as Appendix 4-X. 8 INA § 204(a)(1)(J). 9 8 CFR § 204.2(c)(2)(i) [spouses and intended spouses]; 8 CFR § 204.2(d)(2)(i) [children]. 10 INA § 204(a)(1)(J). 11 Id. 7

4-7

Chapter 4

A self-petition must contain evidence to support each of the eligibility requirements, or “elements.” Advocates should try to obtain primary source documents, such as birth certificates, naturalization certificates, and permanent resident cards. 9 It is important to remember, however, that there is a special evidentiary standard for VAWA self-petitions and for certain other types of petitions related to abused immigrants. This standard is called the “any credible evidence standard.” 10 Under it, the USCIS must consider all credible evidence submitted with the petition before reaching a conclusion. 11 Thus, if primary evidence is not available, secondary evidence, such as declarations or affidavits, is acceptable to make out the elements of the claim. Advocates using secondary evidence, however, should document their attempts to obtain primary source evidence and explain why they were unable to do so.

element of the self-petition, such as evidence of the abuser’s immigration status, the USCIS will attempt to verify the missing information from its records. 12 The cover letter to the application should indicate what documentation is missing, describe the self-petitioner’s attempts to obtain the documentation, and indicate that those attempts were unsuccessful. It should also include all information in the self-petitioner’s possession that would assist the USCIS in its verification efforts. For example, if the self-petitioner cannot obtain documentation of the abuser’s immigration status, she should provide as much information about the abuser as possible, such as his or her date of birth, social security number, address, driver’s license number and nationality (if not a U.S. citizen). The process of requesting documentation or proof from USCIS in lieu of providing primary source documents will delay processing of the self-petition and, if the search fails, may lead to a denial. Most likely, the USCIS will not have records from U.S.-born individuals who have never filed any paperwork with the immigration authorities. Therefore, it is in the self-petitioner’s best interest to also provide secondary evidence such as declarations, affidavits, school records, medical records, etc. to try to prove the abuser’s status. PRACTICE POINTER: Community Cooperation in Gathering Documents. A strong advocacy team that includes immigration advocates, domestic violence counselors, and shelter staff is key in preparing VAWA cases. If possible, the work should always include the involvement of a domestic violence advocate. They can help the self-petitioner develop her story for her affidavit, identify others who can provide affidavits, help collect documents, and write corroborating affidavits about the abuse. You should work with them to develop safety plans that include collecting and protecting essential documents. Similarly, police departments, district attorneys, courts, and hospitals are important sources of documents, including reports of domestic violence. These sorts of professionals can expedite the process of getting those reports to domestic violence victims.

Chapter 4

The self-petition packet should be paginated consecutively and should contain the information listed below. 13 If the self-petitioner or advocate cannot obtain documentation to satisfy each requirement, she should request verification by the USCIS, as described in the preceding subsection. § 4.5

A Detailed Cover Letter with an Index of the Documentation

A detailed cover letter with an index of the supporting documentation will help the USCIS examiner more clearly see how the self-petitioner qualifies for VAWA. (See Appendix 4-C for a sample cover letter.) The cover letter should provide a “roadmap” for the USCIS examiner by describing how the self-petitioner satisfies each requirement and how the evidence and documentation prove it. In addition, an index or table of contents should present the documentation in an organized manner by listing each of the VAWA requirements separately and 8 CFR § 204.1(g)(3). See Gail Pendleton and Ann Block, “Applications for Immigration Status under the Violence Against Women Act,” 2001 AILA Annual Conference Materials, at Volume II, page 436 [reprinted at Appendix 3B]; Lauren Gilbert, “Family Violence and U.S. Immigration Law: New Developments,” Immigration Briefings (March 2001).

12 13

4-8

Tab Position 1

Immigrant Legal Resource Center May 2014

listing under each of them the documents that prove that the requirement is met. It should list each document contained in the petition and if possible, the page at which it appears. What to Do if a Petition Was Already Filed for the Self-Petitioner

Tab Position 1

VAWA Manual March 2017

In some cases, the abuser may have filed an immediate relative or family preference visa petition on Form I-130 for the abused spouse or child. In this case, the self-petitioner may be able to “recapture” the priority date of the previously filed petition, even if the I-130 petition was subsequently withdrawn by the abuser or if the application was denied or its approval revoked. 14 In addition, if a self-petitioner has an I-130/I-485 relative visa petition/adjustment of status application pending, the self-petitioner or her advocate may either proceed with the adjustment based on the I-130 if the beneficiary and petitioner are still married and not legally separated, or ask the USCIS to withhold adjudication of the I-485 pending resolution of the self-petition. 15 If an I-130 Petition for Alien Relative was previously filed by any qualifying relative on the selfpetitioner’s behalf, the cover letter should reference this fact and indicate the outcome or current status of the I-130. If possible documents should be included (such as an approval or receipt notice) to show the date on which the I-130 petition was filed. The self-petitioner may therefore be able to “recapture” that priority date for use with the I-360 self-petition, and adjust status more rapidly. (See Chapter 5 for more information on Adjustment of Status.) What to Do if the Abused Spouse Is Already a Conditional Permanent Resident In other cases, an abused spouse may be in conditional permanent resident status, based upon an approved I-130 filed by the abuser. In this case she should probably file an I-751 petition for a waiver of the requirement of the jointly-filed petition to remove the condition, rather than filing a new I-360 self-petition. Please see Chapter 9 for more information on conditional permanent residence and the waivers of the joint petition requirements.

Other types of immigration records may be on file with different immigration agencies. For example, if the client was in removal proceedings, she would want to submit FOIA requests to the Executive Office for Immigration Review (EOIR) and to ICE. If she had contact with U.S.

Alenikoff, Executive Associate Commissioner, Office of Programs, INS Mem. HQ 204-P, April 16, 1996, at 2-3 [reprinted as Appendix 3-A]. 15 Id. at 3. 14

4-9

Chapter 4

PRACTICE POINTER: How to Find Out if Your Client Already Has a Petition on File. Your client may request a copy of her own immigration file from the USCIS through a Freedom of Information Act Request (commonly referred to as a “FOIA” request). If she has any immigration petitions already currently pending, if she has been granted conditional permanent residence in the past, or if she has a record of removal, she may have a file with the USCIS. This request can be made on a Form G-639 by submitting it to the last immigration office with jurisdiction over her case or to her nearest USCIS local office. See the form itself for more detail on where to file a FOIA request. The Form G-639 can be downloaded from the USCIS website. A blank copy is reproduced at Appendix 4-S. However, advocates and clients should know that it may take numerous months to receive a response to a FOIA request.

Customs and Border Protection (CBP), she might also want to submit FOIA requests to CBP and OBIM, to find out if she may have suffered an expedited removal. § 4.6

Notice of Entry of Appearance by the Attorney or Accredited Representative

If the self-petitioner is being assisted by an attorney or an accredited representative, the attorney or accredited representative should submit a Form G-28 signed by the self-petitioner and the attorney or accredited representative. This form is used only by attorneys and accredited representatives. 16 The form can be downloaded from the USCIS website at www.uscis.gov/g-28. The G-28 form authorizes the attorney/representative to represent the client in front of the USCIS and will allow the attorney or accredited representative to speak with the USCIS about the client’s VAWA case. See Appendix 4-D for a blank Form G-28. § 4.7

Filing Fee Amount

Effective July 30, 2007 there is no filing fee for self-petitioners submitting an I-360 under the Violence Against Women Act. 17 No filing fee waiver request is required unless an application for adjustment of status is filed concurrently.

Chapter 4

§ 4.8

The Self-Petitioner’s Detailed Declaration or Affidavit

The self-petitioner’s declaration or affidavit may be the most critical document submitted in support of the application. If possible, every requirement of the self-petition should be addressed in the declaration. Therefore, it should include the self-petitioner’s personal knowledge on each requirement of the claim: good moral character, residence, good faith marriage (or other qualifying relationship to the abuser), the abuser’s immigration status, and the nature of the battery or extreme cruelty. The declaration should concentrate on the self-petitioner’s detailed description of the abuse she suffered. It should describe this abuse in detail and should be organized to make the events clear to the reader. If there is some issue as to good moral character, the self-petitioner should include an explanation of that issue. If the petition is marriage-based, the bona fides of the marriage at the time of the couple married is also critically important to address, such as how the couple met, their courtship and their decision to marry. See Appendix 4-G for a sample self-petitioner declaration. PRACTICE POINTER: Using Sample VAWA Materials. Although we include a sample selfpetitioner declaration in this manual, it is of utmost importance that each self-petitioner’s declaration is individually created and does not in any way copy samples that may be available. The details and format of declarations will vary significantly according to the particular facts of the individual case. In the past, some advocates may have been tempted to use sample 8 § CFR 1.2 and 8 CFR § 292.1(a)(4). However, always make sure to check the USCIS website at www.uscis.gov for the current fee amounts for any application or petition as filing fee requirements change frequently. Not only should the “filing fee” section be checked, but also “special instructions” which often includes additional information regarding filing fees for certain petitioners or applicants. 16 17

4-10

Tab Position 1

Immigrant Legal Resource Center May 2014

declarations as a template with which they simply changed names, dates and a few details for other clients’ stories. This ultimately can raise fraud concerns among adjudicators reviewing VAWA cases and is a disservice to eligible VAWA self-petitioners. For a more detailed discussion on helping your client to draft her declaration, see Chapter 2. § 4.9

Tab Position 1

VAWA Manual March 2017

Proof That the Abuser Is (or Was) a Lawful Permanent Resident or United States Citizen

The VAWA self-petition form asks for proof of the abuser’s lawful immigration status or U.S. citizenship. Where the abuser is a U.S. citizen (USC) by birth, that status may be proven a number of different ways: 1) by the abuser’s birth certificate showing birth within the United States or its possessions, 2) by a certificate of U.S. citizenship, or 3) by a birth certificate showing birth abroad to two USC parents or to one USC parent who meets the residential requirements necessary to convey citizenship by “acquisition” upon his or her children. 18 In addition some abusers may have derived U.S. citizenship after becoming a lawful permanent resident if a parent became U.S. citizen before the permanent resident child turned 18 years old. 19 The status of an abuser who is a naturalized USC is shown by the abuser’s naturalization certificate. For both USCs by birth and USCs who have naturalized, a copy of the biographic page of their U.S. passport can also serve as proof of U.S. citizenship. For information regarding a person born in the United States, the self-petitioner can contact the state or county office of vital statistics (often the county clerk) to see if it’s possible to obtain a copy of the abuser’s birth certificate. An internet website—www.vitalchek.com—lists many local offices that provide vital statistics throughout the United States. Friends or relatives can also help the applicant in locating the information. The status of an abuser who is a lawful permanent resident (LPR) may be shown by the abuser’s permanent resident card which will include the LPR’s alien registration number, also known as an “A” number. If the abuser is an LPR, the self-petitioner can find the abuser’s “A” number on his lawful permanent resident card (“green card”) and use that as proof of his LPR status.

The act or conviction must be considered sufficiently related to or due to an incident of domestic violence for the abused spouse to qualify for VAWA self-petitioning. An internal USCIS memorandum suggests that adjudicators should consider “the full history of domestic violence in

See INA § 301 et seq., defining United States citizens at birth. See also the ILRC charts regarding acquisition and derivation of citizenship at www.ilrc.org/acquisition-derivation-quick-reference-charts. 19 Id. 20 INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc). 18

4-11

Chapter 4

PRACTICE POINTER: What to Do if the Abuser Lost His Status. If the abuser lost his U.S. citizenship or his lawful permanent resident status due to an incident of domestic violence, the self-petition should include a record of the removal, citizenship revocation, or denaturalization proceedings that indicates the date on which status was lost as well as a connection between the loss of status and domestic violence. The VAWA self-petition must also be filed within two years following the loss of status. 20

the case.” 21 Therefore, even in cases where the abuser may have ultimately been removed or deported for another act or conviction, advocates should explain the loss of status in the context of the domestic violence relationship to show the connection, if any, to the domestic violence. For example, where an abuser physically and verbally abused the children of the self-petitioner but was deported for molesting a child outside the family, that has been deemed sufficient to establish a “connection” to domestic violence. § 4.10 Proof That the Self-Petitioner Is (or Was) Married to the USC or LPR The self-petition should include a copy of the certificate of marriage between the self-petitioner and the abuser. 22 If either spouse had a prior marriage, the self-petitioner should submit divorce or death certificates to prove the legal termination of the prior marriage(s). 23 Divorce or Death of the Abuser If the marriage has terminated, the self-petition must be filed within two years after divorce or the death of the abuser. 24 The self-petitioner must submit documentation of the death or termination to establish the correct filing date. Ex-spouses of both abusive USCs and abusive LPRs may still be eligible to self-petition within that two-year window where the termination of marriage was based on divorce or dissolution of the marriage. However, note that only the spouses of abusive USCs and parents of abusive USC sons and daughters can apply after the death of the abuser. Spouses of deceased LPRs do not qualify as VAWA self-petitioners after the death of the abuser, though if an I-130 was pending or approved, and the spouse resides in the U.S., she may qualify for relief under INA § 204(l). 25

Chapter 4

If the marriage was terminated by divorce, a final divorce decree must be provided. The USCIS will not require that the divorce decree specifically state that the termination of the marriage was due to domestic violence.” 26 However, the self-petitioner must “demonstrate that the battering or extreme cruelty led to or caused the divorce.” 27 Details in the self-petitioner’s own declaration, affidavits and letters from witnesses, and other evidence submitted to meet the core eligibility requirements for VAWA may be sufficient to demonstrate the “connection” between the abuse the self-petitioner suffered and the legal termination of the marriage. 28 If the abuser was a USC who died within two years of the filing of the self-petition, the selfpetitioner should submit the abuser’s death certificate. Aytes, Acting Assoc. Dir., Domestic Operations, Eligibility to Self-Petition as a Battered Spouse or Child of a U.S. Citizen or Lawful Permanent Resident Within Two Years of the Abuser’s Loss of Status (October 31, 2005) (attached as Appendix 3-G). 22 8 CFR § 204.2(c)(2)(ii). 23 Id. 24 INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa). 25 See “Families and Immigration: A Practical Guide” 4th ed., ILRC 2014. 26 Pearson, Executive Associate Commissioner, Office of Field Operations, INS Mem. HQADN/70/8, January 2, 2002 [reprinted as Appendix 4-H]. 27 Id. 28 Id. 21

4-12

Tab Position 1

Immigrant Legal Resource Center May 2014

“Intended Spouses” If the abuser was a bigamist or polygamist (was married to someone else at the time that he and the self-petitioner married), the self-petitioner should show her good faith belief that the abuser was free to marry. This would include a statement in her affidavit that she had no prior knowledge of her spouse’s existing marriage and proof that she believed she was legally married to the abuser because a marriage ceremony was performed. She will still need to provide a marriage certificate.

Tab Position 1

VAWA Manual March 2017

PRACTICE TIP: Obtaining Documents in the United States to Show Family Relationship. To obtain a certified copy of a U.S. birth, marriage, or divorce certificate, contact the appropriate state or county agency where the event took place. Find out the correct fee, if any, whether the fee must be paid by money order instead of personal check, and whether the person needs to sign a release form. You may also want to find out how long it will take to get the documents and, if necessary, if there is a way to obtain the documents more quickly. An excellent resource guide is Where to Write for Vital Records. It provides information on how to get records from all 50 states, and the information is updated each year. The guide is available online at www.cdc.gov/nchs/w2w.htm. § 4.11 Proof That the Self-Petitioner Suffered Battery or Extreme Cruelty A self-petitioning spouse must show that the abuse occurred during the marriage. The most important evidence of domestic violence is the self-petitioner’s own declaration. It should be very detailed in its descriptions of the abuse, including, if possible, the date that the abuse began, a description of each incident of physical injury, verbal threats, accounts of other cruelty, attempts to leave or seek help, difficulty in leaving, and feelings about the abuse. The self-petitioning case will be strengthened by other proof of abuse. The following is a nonexhaustive list of possible evidence of the battery or extreme cruelty that the self-petitioner suffered:

• •

•

The self-petitioner’s own detailed declaration; Copies of temporary and final protective orders from a court; Shelter records and other evidence that the victim sought shelter or protection; Counseling records and reports; Medical records documenting the abuse; Photographs of a visibly injured self-petitioner or property damage, supported by affidavits; Evidence of torn clothing, broken furniture, or photographs of injuries; Affidavits (a notarized statement), declarations (a statement signed under penalty of perjury), or letters that support the client’s statements from witnesses such as friends, relatives, neighbors, shelter workers, police officers, counselors, social workers, medical workers, clergy, and experts on domestic violence; Police reports, police records, criminal court records, or complaints;

4-13

Chapter 4

• • • • • •

• •

Letters from clergy to whom the abuse was reported; and School records reflecting the abuse. 29

PRACTICE POINTER: Proving Extreme Cruelty. If the abuse suffered by the self-petitioner did not include any physical abuse but constituted extreme cruelty, it is critically important to fully document the extreme cruelty that the self-petitioner suffered and felt. The USCIS will look for subjective details as to how the self-petitioner felt about the way her abuser treated her in addition to objective details of the abuser’s actions or behavior. Furthermore, if the self-petitioner has sought mental health treatment to help deal with the extreme cruelty, that may be corroborating evidence of the abuse. However, keep in mind that USCIS may ask for proof of that treatment if it is mentioned. USCIS has been known to challenge affidavits, declarations, or letters from psychologists that include only a recounting of the selfpetitioner’s story and lack a diagnosis or advice for treatment. If you submit this type of evidence, make sure that it includes an assessment, diagnosis and treatment recommendation, if possible, as well as any experience and specific expertise the professional may have regarding treating survivors of domestic violence and extreme cruelty. See also § 3.6 and Appendix 3-H for a discussion of extreme cruelty. § 4.12 Proof That the Marriage or Intended Marriage Was in Good Faith “Good faith” means that the self-petitioner married the abuser for the principal purpose of sharing a life together and not solely to obtain an immigration benefit. 30 The following is a nonexhaustive list of possible evidence of the self-petitioner’s good faith intent: • • • •

Chapter 4

• • • • • • • • • •

Birth certificates of children born of the marriage; Evidence of miscarriages during the marriage; Deeds to property or leases showing both spouses’ names; Bank accounts in both spouses’ names or showing one spouse as the beneficiary of the other; Vehicle registration in both spouses’ names; Wills indicating that the parties are married; Credit card, utility, and other bills in both spouses’ names; Jointly filed income tax returns; Insurance policies showing one spouse as the beneficiary of the other; Medical records indicating status as married and/or fertility treatments or consultations Evidence of courtship, such as letters and photographs of the couple; Evidence of the marriage ceremony, such as photographs and invitations; Detailed declarations from relatives or friends regarding the courtship and marriage; and The self-petitioner’s own detailed declaration. 31

8 CFR § 204.2(c)(2)(iv) [self-petitioning spouses]; 8 CFR § 204.2(e)(2)(iv) [self-petitioning children]. See § 3.5 Marriage Issues for further discussion. 31 See 8 CFR § 204.2(c)(2)(vii). 29 30

4-14

Tab Position 1

Immigrant Legal Resource Center May 2014

For additional arguments about what should be accepted as evidence of good faith marriage, see an Asista amicus brief on VAWA good faith marriage at Appendix 4-Y.

Tab Position 1

VAWA Manual March 2017

§ 4.13 Proof That the Self-Petitioner Resided with the Abuser A self-petitioner should submit any available record showing that she resides or resided at the same place as her spouse. The records do not have to show that the residence was in the United States nor that the residence is current. This sort of evidence can include: • • • • • • • • • • • • •

Letters addressed to the abuser and the self-petitioner, together or in separate letters, at the same address; Bills in both names; Property deeds, lease agreements, or rent receipts; Insurance policies; Employment records; Children’s birth certificates; School records of petitioner or children; Medical records; Joint checking accounts; Utility receipts or other bills; Police reports; Tax returns; and The self-petitioner’s own declaration. 32

Affidavits, declarations, or letters from family members, neighbors, friends, or other people who know the spouses live or lived together may be sufficient if other records are not available. In some cases, the self-petitioner may have lived with the abuser for a very short time and it will be difficult to show joint residence. In that case, you must make sure to include as much information as possible about the circumstances.

Rajani’s residence with Vikram may not look like the typical case of joint residency that USCIS adjudicates because it was very short and in an impermanent place. Rajani may have no way to show even her stay at the hotel if the reservation was not in her name 32

8 CFR § 204.2(c)(2)(iii) [self-petitioning spouses]; 8 CFR § 204.2(e)(2)(iii) [self-petitioning children]. 4-15

Chapter 4

Example: Rajani married Vikram in India. They married very shortly after they met because their original meeting came after Vikram’s parents saw a biography of Rajani on an arranged matrimonials website. This was not uncommon in their part of India and theirs was a good faith marriage. Immediately after the wedding, Vikram returned to the United States. Later, Rajani came to the United States to join her husband. Upon meeting her at the airport, Vikram informed Rajani that he had a girlfriend with whom he lived in the United States, that his parents did not know about this girlfriend, but nonetheless he could not take Rajani home to live with him and his girlfriend. Instead, Vikram took Rajani to a hotel to live. Rajani stayed there for a week during which time Vikram raped her repeatedly, claiming it was his right as her husband. After the week, Rajani escaped and sought help.

and the room not charged to a credit card of hers. Therefore, she will need to submit a very detailed declaration describing why she cannot provide evidence of the residence as well as how the abuse was connected to the fact that she did not live with Vikram for a longer period of time or in a more typical setting. § 4.14 Proof That the Self-Petitioner Has Good Moral Character Self-petitioners who are 14 years of age and older must provide a copy of police clearance letters from jurisdictions (including other countries) where they have resided for six months or more during the three-year period preceding the filing of the self-petition. 33 Advocates should keep in mind that acts or convictions prior to that three-year period may also be considered in establishing good moral character. The self-petitioner’s own declaration is crucial in establishing good moral character. If there are no criminal convictions or other acts that would establish a statutory or discretionary bar to good moral character, then the self-petitioner may simply state in the declaration that she has never been arrested. A letter or declaration from friends, clergy, or employers attesting to the selfpetitioner’s good moral character is useful if there is a problem with good moral character. If there is a statutory or discretionary bar to establishing good moral character, the self-petitioner may use the declaration to explain the circumstances and connection between the offense and the abuse, as well as discuss the positive aspects of her good moral character.

Chapter 4

If the self-petitioner has done an act or has a conviction that would prevent her from establishing good moral character under INA § 101(f), there might still be an exception for it under INA § 204(a)(1)(C). If that is the case, then evidence should be submitted to establish that the act or conviction would be waivable and that the act or conviction was connected to the self-petitioner having been battered or subjected to extreme cruelty. For more information about what to address see § 3.9. The self-petitioner should explain in her declaration how the problems are related to her experience of domestic violence. The self-petition should also include affidavits from responsible people who can attest to the self-petitioner’s otherwise good moral character. If the self-petitioner has criminal charges or convictions, she must submit certified court documents showing the disposition of the case. WARNING: Make Sure to Ask Your Client if She Has Ever Been Arrested or Convicted for Any Crime at Any Time. If your client has any criminal arrests or convictions, it is critical that someone with immigration expertise such as an immigration attorney or BIA accredited representative analyze the case to see whether it is advisable to file. In addition to making a selfpetitioner ineligible for VAWA, some crimes (especially aggravated felonies and offenses related to controlled substances) can make a self-petitioner deportable and/or permanently barred from the United States. Clients should be warned of the risks to make an informed decision about whether to apply. On the other hand, some self-petitioners will be able to qualify for VAWA despite having a criminal record. For example, if the self-petitioner has done an act or has a conviction that would prevent him or her from establishing good moral character under INA § 101(f) but for which there might be an INA § 204(a)(1)(C) exception, then she should submit evidence to establish that 33

8 CFR § 204.2(c)(2)(v) [self-petitioning spouses]. 4-16

Tab Position 1

Immigrant Legal Resource Center May 2014

the act or conviction would be waivable under INA §§ 212 or 237 and that the act or conviction was connected to the immigrant’s having been battered or subjected to extreme cruelty. This is a complicated legal argument and should be referred to an immigration attorney or BIA accredited representative who has experience in these matters.

Tab Position 1

VAWA Manual March 2017

§ 4.15 Evidence of the Self-Petitioner’s Current Residence The self-petitioner should submit proof of her current residence in the United States or, if the selfpetitioner lives outside of the United States, that the abuser is an employee of the U.S. government, is a member of the uniformed services, or has subjected the self-petitioner to battery or cruel treatment in the United States. If the self-petitioner is currently residing in the United States, that residence can be shown through: • • • • • •

Lease agreements or rental receipts; Shelter records documenting the self-petitioner’s presence; Bills, receipts, medical records, or school records showing the self-petitioner’s presence in the United States; Employment records; Letters or declarations from relatives, friends, or neighbors; and The self-petitioner’s own declaration. § 4.16 Documenting Eligibility for a VAWA Self-Petition for a Child or Parent

Self-petitioning children and parents must provide documentation showing the parent/child relationship with the abuser. For a self-petitioning child born in wedlock or self-petitioning parents of an abusive son or daughter born in wedlock, the abuser’s birth certificate should be submitted, showing the qualifying parent/child relationship with the abuser. 34

If the self-petitioning child is adopted, documentation is required that the adoption occurred before the child turned 16 years old. If a child under 18 years was adopted together with a younger sibling who was under 16 years, the older sibling can qualify as an “adopted” child as well. In addition, a self-petitioning adopted child who has been subjected to battery or extreme cruelty qualifies for an exception to the general requirement of two years’ physical and legal

8 CFR § 204.2(e)(2)(ii). Id. 36 8 CFR § 204.2(d)(2)(iii). 34 35

4-17

Chapter 4

If the self-petitioning child was born out of wedlock and was abused by the father, then evidence must be submitted to show that either (1) the child was legitimated prior to the age of 18 and was in the custody of the legitimating parents at the time of legitimation or (2) the father and child had a bona fide parent-child relationship. 35 Examples of evidence to show the father and child had a bona fide parent-child relationship include evidence of payment of child support and statements from the self-petitioner, his or her mother, and other relatives or witnesses concerning the relationship between the father and child. 36

custody with the adopting parent. 37 The self-petitioning child will simply need to provide a valid adoption decree and proof of residence with the abusive parent for some period of time. The bona fides of the adoption itself may also be required, such as proving that the adopting parent or parents has taken over “parental control” of the child from the biological parents. This can be particularly an issue when a blood relative adopts a child. 38 For a self-petitioning parent of an abusive adopted U.S. citizen son or daughter, he or she will need to demonstrate an adoptive/adopted relationship. Evidence of such a relationship may include evidence described in 8 CFR § 204.2(d)(2)(vii) demonstrating that the relationship was created when the U.S. citizen son or daughter was under the age of sixteen (or under age eighteen if an under age sixteen sibling was adopted at the same time) and the additional requirements of INA §§ 101(b)(1)(E), (F) or (G) such as a copy of the adoption decree issued by a civil authority or other relevant evidence of the qualifying adoptive relationship. 39 Also the self-petitioning parent will need to include evidence of two years’ physical and legal custody of his or her abuser. If the self-petitioner is related to the abuser through a stepparent/child relationship, evidence of the step-relationship will be required. This may include (but is not limited to): the stepchild’s birth certificate, the marriage certificate of self-petitioner and natural parent of the abusive USC stepson or stepdaughter showing that the qualifying marriage occurred before the stepchild’s 18th birthday, evidence of legal termination of all prior marriages of either parent, if any, other legal or court documents supporting the same, affidavits or other evidence. 40

Chapter 4

If the self-petitioning father has an abusive USC son or daughter born out of wedlock, then evidence must be submitted to show that either (1) the child was legitimated prior to the age of 18 and was in the custody of the legitimating parents at the time of legitimation or (2) the father and child had a bona fide parent-child relationship. 41 Examples of evidence to show the father and child had a bona fide parent-child relationship include evidence of payment of child support and statements from the self-petitioner, his or her mother, and other relatives or witnesses concerning the relationship between the father and child. 42 PRACTICE POINTERS: Making Proper Copies of Official Government Documents. A document from a government agency, whether from the United States or another country, will probably be a photocopy of the document you requested, with an original certification stamp or signature from the government office (called a “certified copy”). For immigration purposes, this is an “original” document. There are two things to remember about original documents:

INA § 101(b)(1)(E); Adjudicator’s Field Manual, 21.14(d), which can be found at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-3481/0-0-0-6262.html. 38 Id. 39 See USCIS Policy Memorandum, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen,” PM-602-0046, August 30, 2011 [reprinted at Appendix 3-J]. 40 8 CFR § 204.2(e)(2)(ii); see also USCIS Policy Memorandum, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen,” PM-602-0046, August 30, 2011 [reprinted Appendix 3-J]. 41 Id. 42 8 CFR § 204.2(d)(2)(iii). 37

4-18

Tab Position 1

Immigrant Legal Resource Center May 2014

1. Do not submit original documents to the USCIS unless you are told to do so. Instead of sending the original document, the USCIS generally permits the filing of photocopies instead of original documents with petitions. 43 The USCIS views the signing of the petition a certification under penalty of perjury that all evidence submitted with a petition is true and correct. It is important to make sure that legible copies are submitted with the petition.

Tab Position 1

VAWA Manual March 2017

Note: If originals are submitted instead of copies, the USCIS will not return the originals to the applicant. 2. Keep the original document in a safe place and be prepared to show it to the USCIS upon request. In addition, you or the client must bring the original document to any interview that has to do with the case. If possible, return all original documents to the client and ask her to keep them safe.

PRACTICE POINTER: Making Certified Translations of Documents. All documents that are not in English must be submitted to the USCIS with a full English translation made by a person who is competent to translate. 44 An “extract” version of a document where the complete document is lengthy and filled with extraneous information may be acceptable, but only if it contains all the information necessary to make a decision on a case. For example, an official extract of a birth certificate which fully identifies the child’s parents may be used in support of a visa petition; one which only lists the child’s name and date and place of birth may not. Furthermore, only extracts prepared by an authorized official (the “keeper of record”) are acceptable. A summary of a document prepared by a translator is unacceptable. 45 Anyone (other than the applicant or a close relative of the applicant) who is competent to translate may make the translation. It does not have to be an attorney, certified representative, or notary public.

KEEP A COPY! The USCIS or the Post Office could lose your package. Never submit any documents to the USCIS without making a copy for your files. Provide the applicant with a copy as well. Keep the receipt from the certified mail/return receipt requested mailing or express USPS 8 CFR § 204.1(f)(2). 8 CFR § 103.2(b)(3). 45 USCIS Adjudicator’s Field Manual, 11.3(a), which can be found at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-2061/0-0-0-2253.html. 43 44

4-19

Chapter 4

The translator must certify the translation. To do that, the translator should write at the bottom of the last page of the English translation, “I certify under penalty of perjury that I am competent to translate from [the original language] to English and that the above is a correct and true translation to the best of my knowledge and belief.” The translator should sign and date this statement and should include his or her typed name, address and phone number.

or courier form with the copy. If there is ever a problem, this will be the proof of filing and priority date. Furthermore, because she may later go to a USCIS interview to get a green card, she will want to be familiar with all of the information that was previously submitted to USCIS in case they ask her about it. Make sure the self-petitioner retains a copy of the complete petition. § 4.17 Filing the Completed I-360 Packet All VAWA self-petitions are adjudicated by specially trained USCIS officers at the VAWA Unit of Vermont Service Center. 46 The self-petition must be mailed to: U.S. Citizenship and Immigration Services (USCIS) Vermont Service Center VAWA Unit 75 Lower Welden Street St. Albans, VT 05479 Mark “VAWA: DO NOT OPEN IN MAIL ROOM” in large red letters on the front of the envelope with the self-petition, the I-360, your cover letter and all correspondence with the USCIS. Writing “VAWA” on the envelope will make it easier for the USCIS to direct the selfpetition application to the examiners who are specially trained to adjudicate I-360s. Mail the petition certified mail, return receipt requested or send it by courier with proof of delivery retained. PRACTICE POINTER: Clients in Removal Proceedings or Already Ordered Removed. 47 If you have a client in removal proceedings or a client who has already been removed, she may face a number of complicating issues in her VAWA self-petition case and an attorney or BIA accredited representative must represent her. For more information on Removal Proceedings and Cancellation or Removal, see Chapters 10 and 11 of this manual.

Chapter 4

§ 4.18 Prima Facie Eligibility When the USCIS receives the self-petition, it issues a receipt notice that includes the receipt date, the self-petitioner’s priority date, and the Vermont Service Center case number. (See Appendix 4-J for a sample receipt notice.) The receipt date is the same as the priority date if a prior family based petition has not been filed for the self-petitioner by the abuser. 48 Within several weeks, the USCIS will review the self-petition to determine whether it states facts that, if proved true, would lead to approval. 49 (See Appendix 4-K for a sample notice of prima facie eligibility.) If it does, the USCIS will mail to the self-petitioner (or to whomever she listed INS Memorandum, May 6, 1997, from the Office of Programs, regarding Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues, at 2 [reprinted as Appendix 4-I]. 47 Although policy in this area may chance, as of this manual’s writing (May 2017) current USCIS policy is that the VAWA Unit does not refer cases for removal. If the VAWA Unit denies an I-360, it sends the file to a record center. However, a case could show up elsewhere in DHS’ system and end up in proceedings. 48 If an approvable petition was previously filed on the self-petitioner’s behalf, the self-petitioner may recapture that priority date, even if the old petition was eventually withdrawn or denied. 49 8 CFR § 204.2(c)(6)(i). 46

4-20

Tab Position 1

Immigrant Legal Resource Center May 2014

in the address section) a letter stating that she is “prima facie” eligible under VAWA. 50 This is NOT a final approval letter, nor is it a guarantee of future approval of the self-petition. Furthermore, self-petitioners must still respond to any requests for additional information from the USCIS. However, the self-petitioner can use this letter as proof of her status as a “qualified alien” to receive many forms of public assistance such as food stamps and Medicaid in many states. 51 You should note that because abused parents are currently not categorized as “qualified aliens” under the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 (PRWORA) for public benefits purposes, USCIS is currently not issuing prima facie determination notices for self-petitioning parents. 52

Tab Position 1

VAWA Manual March 2017

Prima facie notices are initially valid for 150 days. At times, 150 days will not be a sufficient amount of time for a client to receive a final VAWA approval because of current backlogs in adjudication. 53 Therefore, her representative/attorney should request an extension before it expires. This can be done by simply sending a letter to the Vermont Service Center VAWA Unit with a copy of the expiring notice. See sample letter to request extension of prima facie determination at Appendix 4-W. The first extension may be issued for 180 days. Subsequently, an extension must be requested every 60 days. 54 Once a Prima Facie Determination has been established, the self-petitioner is entitled to extensions until the Vermont Service Center takes a final action or it determines there are grounds to rescind the Prima Facie Determination, such as a determination that there is an insurmountable bar to approval of the petition. The Vermont Service Center will also give self-petitioners a chance to supplement their selfpetitions. See more on this in the section below. § 4.19 Notice of Action/Request for Evidence After sending the “prima facie” letter, the Vermont Service Center (VSC) will do a more thorough review of the self-petition and documentation provided. If more documentation is needed, the VSC will request it in a “Notice of Action.” (See sample Notice of Action/Request for Evidence at Appendix 4-L).

8 CFR § 204.2(c)(6)(iii). Memorandum from INS Office of Programs, May 6, 1997, regarding Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues, at 3-5 [reprinted as Appendix 4-I]. 52 USCIS Policy Memorandum, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen,” PM-602-0046, August 30, 2011 [reprinted at Appendix 3-J]. 53 As of this manual’s writing (March 2017), USCIS reports that their processing time for VAWA I-360 self-petitions is approximately 5 months. However, the backlog—and therefore the wait—on adjudication of immigration petitions can vary depending on changes in staffing or prioritization at the service centers, and the I-360 backlog has been known to fluctuate in the past. To check for the latest information of VAWA processing times, go to the USCIS website at www.uscis.gov and search for “processing times.” 54 Yates, Director, Operations, USCIS Mem. HQOPRD 70/8.1/8.2, dated April 8, 2004 [reprinted as Appendix 4-N]. 50 51

4-21

Chapter 4

These Notices of Action/Requests for Evidence are commonly referred to as “RFEs” and may be sent on colored paper. They will state the amount of time allowed to respond with additional evidence and will generally outline specifically which requirements require supplemental documentation to prove eligibility. When responding to the RFE, the top sheet should be the RFE

notice, to facilitate the VSC’s review of the RFE response because it will let the mailroom know where to route the package and the reviewing officer to know the reason for the submission. The maximum amount of time that USCIS can allow for a response to an RFE is twelve weeks or 87 business days. The VAWA Unit will typically grant the maximum amount of time for an RFE to a VAWA self-petition. Extensions of this time period are not allowed. For this reason, it is important to respond even if you are still waiting for a requested document, and make sure to explain attempts to obtain the requested document and an explanation why it is not yet available. If an RFE is not responded to, the adjudicator may decide to deny the case upon initial adjudication for lack of evidence of whatever eligibility requirement is at issue. The officer may also decide to issue a notice of intent to deny (NOID) with a more detailed explanation of the deficiencies. See § 4.26 for more information on NOIDs. The VSC will inform self-petitioners in these RFE notices that they should not expect an immediate adjudication of the petition upon response. Whether or not there is a response to the RFE notice, the VSC will adjudicate all petitions in the order in which they were received by the Service. PRACTICE POINTER: Contacting the Vermont Service Center about a VAWA Case. The Vermont Service Center has made available a VAWA Unit Hotline by phone and email. These are available for use by advocates only, not self-petitioners themselves. Only accredited representatives and attorneys with a Form G-28 on file can access this line. Make sure to include the advocate’s name, phone number, and email address on the Form G-28. 55 If you are not an attorney or accredited representative, and therefore do not have a G-28 on file, you can try and see if USCIS will speak to you as the indicated preparer on the Form I-360, or have your client sit with you in your office while you make the call and have your client talk to VSC directly.

Chapter 4

The VAWA Unit’s phone hotline is (802) 527-4888. It is a voicemail system on which advocates can leave questions and a call-back number. Someone from the VAWA Unit will return the call—usually within 72 hours. The VAWA Unit’s email hotline is [email protected]. When contacting the VAWA Unit, make sure to leave your client’s A number, receipt numbers, or other identifying information when you leave your message. Also, please note that the VAWA Unit does not want to be contacted both by phone and email hotline. This often creates extra work for their adjudicators and can make it difficult to locate the file. Address Changes. You will likely not want to submit any specific change of address information about your client since she may not want USCIS correspondence sent to her home for confidentiality reasons. Moreover, VSC reports that, for VAWA cases, only the attorney of record’s or representative’s address, and not the client’s, is entered into the systems. Therefore, if you as her advocate change addresses, you should send the Form AR-11 to show your change of address to the Vermont Service Center via mail and update and submit a new G-28 with your updated address. Make sure to include the self-petitioner’s A number. USCIS will then forward the address change to the file as an inclusion. Keep proof of mailing and filing of the address If a self-petitioner is unrepresented, she can inquire about her case to the VSC via mail (See § 4.17 for the VSC mailing address). She must include her receipt number or A number in the letter.

55

4-22

Tab Position 1

Immigrant Legal Resource Center May 2014

change. If the VSC sends an RFE to the wrong address after you have timely filed a change of address, and then denies your client’s petition as a result, this documentation that the address was properly changed should allow you to successfully request that the VSC reopen the case on its own motion.

Tab Position 1

VAWA Manual March 2017

PRACTICE POINTER: Corresponding with the Vermont Service Center. In general, any time something is sent as a supplement to the VSC, there is a possibility of mistaken routing by the mailroom. This is because the VSC receives a large number of petitions for many different types of cases. Therefore, the basic rule is that, every time you send the VSC something, you must (1) put as the top sheet a copy of the last correspondence you received from the VSC and (2) put “VAWA: DO NOT OPEN IN MAIL ROOM” in big red letters on both the outside envelope and the top sheet that the mail room will see when they open the envelope. PRACTICE POINTER: What to Do When Something Submitted Has Gotten Lost. In the event that something you have submitted has been lost, call the VAWA hotline number listed above. If you are unable to resolve the issue through the hotline, contact one of the national technical assistance providers such as ASISTA (www.asisthelp.org) or the National Immigration Project of the National Lawyers Guild (www.nationalimmigrtionproject.org) with (1) your client’s name and identification number, (2) a short description of the problem and a history of all correspondence between you and VSC, and (3) your contact info. They can correspond directly with supervisory adjudicators at VSC, who otherwise may not know there is a problem. § 4.20 Deferred Action

Cronin, Acting INS Executive Associate Commissioner, INS Mem. HQ/AND/70/6.1IP, dated September 8, 2000 [reprinted as Appendix 4-O]. 57 Id. 58 DHS Q&A panel, National Network to End Violence Against Immigrant Women conference, Irvine, CA, November, 2005. 56

4-23

Chapter 4

If the self-petition is approved, the VSC will mail the self-petitioner an Approval Notice (Form I797). (See sample VAWA Approval Notice at Appendix 4-M.) Normally, this includes an “Initial Grant of Deferred Action.” Although the USCIS knows the self-petitioner is present in the United States without lawful immigration status, deferred action provides that USCIS will defer any action on seeking removal of that person before she can adjust to lawful permanent resident status. Initial grants of deferred action are for 15 months. Requests for extensions of deferred action status are granted in increments of 12 months. 56 The VAWA unit at the Vermont Service Center is authorized to extend deferred action status as appropriate until the self-petitioner is able to obtain lawful permanent residency. 57 Currently, VSC appears to be renewing grants of deferred action indefinitely. In the past, VAWA Unit Supervisory Adjudicators indicated that in the future they may institute a 24- or 27-month limit on deferred action for those self-petitioners who should be able to adjust status. 58 As of this manual’s writing (March 2017) that policy has not been implemented.

In 2005, the Vermont Service Center announced that they had received new guidance prohibiting it from automatically granting deferred action status to people with prior removal orders or to people who are currently in removal proceedings. Instead, in those cases, VSC cannot grant deferred action until it consults with ICE. However, USCIS retains authority to grant deferred action even over ICE’s opposition. Self-petitioners with prior removal orders may receive a notice from the Vermont Service Center that USCIS cannot grant deferred action without following the new procedure and asks whether the self-petitioner wishes to proceed with her request for deferred action. To avoid ICE’s review of the file, some self-petitioners may wish to proceed with the self-petitioning process without requesting a grant of deferred action, as they will still otherwise be eligible to receive employment authorization as a self-petitioner if the I-360 is approved. See § 4.24 below for more details on employment authorization. WARNING: Deferred Action Status Does Not Mean Your Client Cannot Be Deported! Many advocates mistakenly think that deferred action is absolute protection against deportation for their clients. However, deferred action in the VAWA context is not designed to prevent removal. It is merely used as a mechanism for granting work authorization for those otherwise unqualified. It would be wrong to rely on deferred action as absolute protection against deportation, since the agency can revoke it and institute removal proceedings at its discretion. If you have a client facing removal, you must take the same kind of actions as you would for other clients in a similar situation. This would include exploring all options for immigration relief and/or referring her to an immigration attorney or BIA accredited representative who can represent her in immigration court. § 4.21 Preference Categories for Family-Based Immigration

Chapter 4

To determine when an approved self-petitioner is eligible to adjust her status to that of a lawful permanent resident, she must figure out under which preference category she falls. If she is or was the VAWA eligible “spouse,” “child,” or “parent” of a United States citizen as defined in the discussion at Chapter 3, she is considered an immediate relative and can apply for adjustment of status right away. She may do so by filing her application concurrently with her I360 to the Vermont Service Center. See Practice Pointer below on filing the I-360 and the I-485 concurrently. Although currently the Vermont Service Center will not adjudicate the I-485, it can forward it to the USCIS district office closest to the self-petitioner’s residence upon approval of the I-360. Others who can generally migrate through a preference visa petition will fall into one of four categories. These categories, set forth at INA § 203(a), are: First Preference: The beneficiary is the unmarried son or daughter, 21 years of age or older, of a U.S. citizen. A first preference beneficiary is a U.S. citizen’s “child” who has grown up and is unmarried. Second (2A) Preference: The beneficiary is the spouse or child of a lawful permanent resident. Second (2B) Preference: The beneficiary is the unmarried son or daughter, 21 years of age or older, of a lawful permanent resident. If an unmarried son or daughter of a lawful permanent resident marries, he or she loses eligibility to immigrate. (Conversely, if the LPR parent/petitioner

4-24

Tab Position 1

Immigrant Legal Resource Center May 2014

naturalizes before the son or daughter marries, the son or daughter beneficiary would not lose eligibility to immigrate because they would convert to 3rd preference.) Third Preference: The beneficiary is the married son or daughter, of any age, of a U.S. citizen.

Tab Position 1

VAWA Manual March 2017

Fourth Preference: The beneficiary is the brother or sister of a U.S. citizen. The petitioner must be at least 21 years old. Both siblings must at some time have been the children of one common parent. § 4.22 How the Preference System Works Once the self-petition is approved, an immediate relative may apply for adjustment of status or to consular process. 59 Spouses and children of lawful permanent residents, however, must wait until a visa is available, or close to being available (see explanation of Dates for Filing FamilySponsored Visa Applications below), under the preference system before applying for adjustment of status or to consular process. Understanding how the preference system works will help you analyze when to submit the green card or immigrant visa application. When we discuss family visas in the preference system, we are talking about people who immigrate through the first, second, third, and fourth preference categories. The USCIS can approve an unlimited number of preference visa petitions each year. But not everyone with an approved petition will be able to immigrate. Only a certain number of people who are born in each country can immigrate to the U.S. each year under the family preference system. Each time someone immigrates to the United States under the preference system, one visa is charged to (subtracted from) the numbers of visas set aside for the country where the person was born. If more people per year want to immigrate than there are visas, that country develops a waiting list or “visa backlog.” As far as understanding the preference system, that is about all you need to know: The more people who want to immigrate from a country each year over its visa allotment, the longer the waiting list for that country will be. For example, someone from France or Uruguay may be able to immigrate much faster than someone with a similar visa petition from Mexico or the Philippines.

Each month the U.S. State Department issues a Visa Bulletin. With the right information, you can consult the State Department Visa Bulletin to see if your client is eligible to immigrate. When a backlog exists, predicting exactly when the client will be able to immigrate is impossible. But the Bulletin may be used to make a very rough estimate of when the client might be able to immigrate in the future. To do this you need to know the following information about the intending immigrant:

An immediate relative may also apply for adjustment of status concurrently with the self-petition, in a “one-step” process. 59

4-25

Chapter 4

§ 4.23 Using the State Department Visa Bulletin to Make an Estimate of When Your Client Can Immigrate

Tab Position 1

Immigrant Legal Resource Center May 2014

1. The priority date of the visa petition 2. The country of chargeability 3. The preference category Priority Date The date that the I-360 petition is filed with the USCIS becomes, upon approval of the I-360, the beneficiary’s “priority date” in the preference system. That date establishes the person’s place in line to wait for a visa and determines when the person can immigrate. The priority date is the date that the USCIS received the petition and accepted the fee, not the date that the petition was approved. This difference is important because in some cases the petition might not be approved for several months or even years after filing it. Alternatively, if an I-130 visa petition was previously filed for the self-petitioner, she can retain that priority date. Country of Chargeability As a general rule, the person’s place of birth is the country or territory to which a visa will be charged. This is true even if the person has become a citizen of another country. Preference Category This is the category of the visa petition. For example, the preference category for the immigrating spouse of a lawful permanent resident is Family-Based 2A.

Chapter 4

PRACTICE POINTER: How to Read the Visa Bulletin. Look at the copy of a State Department Visa Bulletin in Appendix 4-P. The date in the title shows the month for which this visa bulletin is pertinent. The State Department issues a new visa bulletin each month, usually about two weeks before the coming month. Most of the information in the bulletin changes from month to month, so checking the new visa bulletin monthly is important. It can also be helpful to look back a few months at archived visa bulletins to get a sense of movement within different categories from one month to the next. The visa bulletin has two charts, one called “Final Action Dates” and another called “Dates for Filing.” The “Final Action Date” chart indicates which priority dates are “current,” meaning that an individual whose priority date falls before the listed date can immediately apply for lawful permanent resident status. The “Dates for Filing” chart indicates that the State Department has determined that these priority dates are getting close to being current. Each month USCIS will announce whether adjustment applicants can use the “Dates for Filing” chart to submit their adjustment applications, even though their priority date is not yet current according to the “Final Action Dates” chart. Go to www.uscis.gov/visabulletininfo to see if USCIS will allow use of the “Dates for Filing” chart in a given month. 60 To read the visa bulletin charts, across the left side of the bulletin are all the categories of preference visas. Along the top is a list of countries called the “areas of chargeability.” The first It is critical to check the USCIS monthly announcement, because if an adjustment application is filed solely based upon the State Department’s “Dates for Filing” chart, and USCIS has not indicated that the State Department chart can be used for adjustment filings, the adjustment application will likely be denied. 60

4-26

country category says “All Chargeability Areas Except Those Listed.” Known as the “worldwide” category, it includes all countries not separately listed. For example, Argentina does not have a separate listing in the bulletin. Therefore, a person from Argentina should use the numbers listed in the “All Chargeability” column. The countries that fall into this category usually have the smallest backlogs and thus the shortest waiting periods.

Tab Position 1

VAWA Manual March 2017

If the person is from a country that has its own separate listing, such as India or Mexico, he or she must consult that column of information. If you match the relevant preference category with the country of chargeability in the “Final Action Dates” chart, you will receive a date. This is the priority date of those persons for whom visas are available now. If your client’s priority date falls before the date listed on the “Final Action Dates” chart, a visa is now available, and she can immediately apply for lawful permanent resident status. If your client’s priority date falls on or after the date listed, no visa is available to her that month and she must wait longer. However, if her priority date falls before the date listed on the “Dates for Filing” chart and USCIS has stated it will allow use of the “Dates for Filing” chart for the given month, she may be able to file her application for adjustment of status. Sometimes, categories show the letters “C” or “U” instead of a date. The letter “C” means that the category is current and there is no waiting for a visa, no matter when the petitioner filed the petition. The letter “U” means that the category is unavailable. All the visas in that category and country have been used up for the current year. Some visas may become available at the end of the year or the beginning of the next year’s accounting in October. Until then, the person cannot immigrate no matter when his or her visa petition was filed. You can receive the monthly State Department Visa Bulletin by email. To be place on the listserv for the Visa Bulletin, send an email to [email protected] and in the message body type: “Subscribe Visa-Bulletin.” You can also access the Visa Bulletin on the Internet by going to https://travel.state.gov/content/v isas/en/law-and-policy/bulletin.html. You can also call (202) 485-7699 to hear a recorded message on current priority dates. The recording is normally updated on/about the 10th of each month with information on cut-off dates for the following month.

You can make only rough estimates of when a client will be able to immigrate when there is a backlog. This is because no one knows exactly how many people are on the waiting list. Some

4-27

Chapter 4

PRACTICE POINTER: Advising Your Client about When a Visa May Become Available. Predicting exactly when a visa will become available for a person waiting to immigrate under the preference system is impossible. The priority dates in the Visa Bulletin do not advance consistently because the number of people who apply in a particular preference category can vary from month to month, the number of people who are on the waiting list who still want to immigrate is unknown, and the number of derivative beneficiaries is unpredictable. The dates in one category may jump ahead three months over one month of “real time” or they may stand still or even go backwards.

may have died, changed preference categories, or changed their minds. Some may have had children, adding to the number of derivative beneficiaries ahead of you. PRACTICE POINTER: Filing the I-360 and the I-485 Concurrently. Many advocates working with clients who qualify as immediate relatives or with clients who have current priority dates may choose to file the VAWA self-petition and the adjustment of status application (on Form I485) concurrently with the Vermont Service Center. Although the VSC will not adjudicate the I485, advocates report many fewer problems having files transferred from VSC to their local offices than they experience going through the USCIS Chicago lock box. This may be because those at the USCIS Chicago lock box are not specially trained on VAWA issues, and they sometimes request documents that are not required in VAWA cases. For more information about filing the I-485, see Chapter 5 of this manual. § 4.24 Employment Authorization All VAWA self-petitioners (including self-petitioning parents) qualify for employment authorization upon the approval of their self-petition. 61 The category for employment authorization eligibility based on an approved VAWA self-petition is (c)(31). 62 The updated I360 form allows applicants to check a box indicating they would like employment authorization without having to submit a separate I-765 application for employment authorization. Part 10, Item 12, page 14 includes the following statement for the self-petitioner to respond to: “I am currently residing in the United States and I request an Employment Authorization Document.” If your client “yes” in response to this, then your client does not need to submit a Form I-765 and will be issued an employment authorization document based on the (c)(31) category once her VAWA self-petition is approved.

Chapter 4

If your client prefers to be issued employment authorization based of deferred action, select “No” in response to this. Then once her VAWA self-petition is approved, she can apply for employment authorization under eligibility category (c)(14) based on deferred action by submitting a Form I-765. Those with concurrently or previously filed I-485s may be granted work authorization faster by qualifying under category (c)(9), available to those with a pending adjustment of status application, rather than by waiting for the I-360 to be approved. For employment authorization under the (c)(9) category, the self-petitioner still needs to submit a separate Form I-765.

INA § 204(a)(1)(K). See USCIS Policy Memorandum, “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen,” PM-602-0046, (Aug. 30, 2011), at 7. While this memorandum refers to 8 CFR § 274a.12(c)(31), the regulation has yet to be updated, and this section does not currently exist. No proposed regulations have been published at the time of this manual’s drafting (May 2017). 61 62

4-28

Tab Position 1

Immigrant Legal Resource Center May 2014

In applying for the employment authorization document, always look for the latest version of the I-765 form instructions to determine what to submit. The following should be submitted to the VSC: • • • • • •

Tab Position 1

VAWA Manual March 2017

Form I-765 properly completed and signed; Proper fee $410 or fee waiver request (see Practice Pointer below); Required passport-style photos; Copy of a government-issued photo I.D., such as passport biographic page with photo, name, date of birth, etc. or state driver license; If applying under (c)(31) category, evidence that your client has an approved VAWA self-petition (such as the Form I-797 approval notice that your client will receive, see Appendix 4-M for a sample); and If applying under (c)(14) category, also include completed Form I-765WS, Form I-765 Worksheet establishing economic necessity.

There is no appeal on a denial of a Form I-765. However, you may refile for an employment authorization document. Self-Petitioners Who Are Immediate Relatives of U.S. Citizens Self-petitioners who are immediate relatives of U.S. citizens or have a current priority date are eligible for employment authorization based upon their immediate eligibility to adjust status to permanent residence. 63 They need not show any need for employment, and they may file their application for employment authorization with the Vermont Service Center at the same time as submitting the Form I-360 self-petition and the Form I-485 adjustment of status application. Self-Petitioners Who Must Wait until Their Priority Dates Become Current

PRACTICE POINTER: Properly Filing for and Renewing Work Authorization. Regardless of whether applying for an Employment Authorization Document (EAD) under category (c)(9), (c)(14) or (c)(31), all I-765s related to a VAWA self-petition can be filed with the Vermont 8 CFR § 274a.12(c)(9). 8 CFR § 274a.12(c)(14). 65 8 CFR § 274a.12(e). 66 Cronin, Acting Executive Associate Commissioner, Office of Programs, INS Mem. HQ/AND/70/6.1P (Sept. 8, 2000) [reprinted as Appendix 4-O]. 63 64

4-29

Chapter 4

Approved self-petitioners who must wait until their priority date becomes current are eligible for employment authorization based upon a grant of deferred action 64 or upon approval of the I-360 self-petition. Therefore, self-petitioners who were abused by an LPR must wait until their selfpetition is approved before obtaining employment authorization. At that time, a self-petitioner can apply for work authorization by submitting Form I-765 and Form I-765WS Worksheet, demonstrating that the self-petitioner has an economic necessity for employment authorization and listing the self-petitioner’s assets, income, and expenses. 65 For employment authorization based on deferred action, the application must be filed after notification that deferred action or the self-petition has been approved and cannot be filed concurrently. Employment authorization granted by the Vermont Service Center is issued in one-year increments, so it may need to be renewed annually. 66

Service Center VAWA Unit. Like all correspondence with the VAWA Unit, the envelope, application and cover letter should be clearly marked “VAWA: DO NOT OPEN IN MAIL ROOM” with big, bold, red letters. The correct filing fee amount or fee waiver request must be included. EAD renewal requests should be made to the VSC 90 days in advance of expiration. PRACTICE POINTER: When a Fee Waiver Is Needed for Form I-765. The current filing fee for the Form I-765 is $410. Note that there is no filing fee required for I-765s submitted based on category (c)(31) eligibility. The required fee for those filing under category (c)(9) [adjustment application pending] or (c)(14) [deferred action] can be waived through the filing of a fee waiver request for VAWA self-petitioners who are financially unable to afford the fee. 67 The fee waiver request must be in writing and included with the I-765 application. VAWA self-petitioners may submit either a Form I-912 or a written statement to request a fee waiver. A request may be granted when USCIS has determined that the individual is unable to pay the fee based on her “overall financial picture and household situation.” 68 More information and sample fee waiver requests are included at Appendix 4-F. The fee waiver request should list the self-petitioner’s assets and income (if any), number of people in the household, number of dependents, receipt of public benefits, and expenses. If possible, also provide evidence of the self-petitioner’s household income (which could include the previous year’s tax returns, pay stubs, or documentation submitted with an application for public assistance), assets, and expenses with the fee waiver request. Child applicants must also include household information. WARNING! An application is not considered properly filed until it is received by the Vermont Service Center with the correct fee or until the fee waiver is granted. Therefore, requesting such a fee waiver of any required filing fee may cause a delay in the process.

Chapter 4

Derivative Children Derivative beneficiary children are not included in the statute 69 to apply for an EAD. Derivative children desiring an EAD will need to obtain deferred action first to become eligible, unless filing a concurrent adjustment of status application and applying under (c)(9). 70

8 CFR § 103.7(c). USCIS Policy Memorandum, “Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9 (AFM Update AD11-26),” PM-602-0011.1, March 13, 2011, available at www.uscis.gov/USCIS/Laws/Memoranda/2011/March/Fee WaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf. 69 INA § 204(a)(1)(k). 70 USCIS Draft Policy Memorandum, “Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self-Petition; and, Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants,” Draft PM-602-XXXX (Dec. 12, 2012), available at www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Commen t/VAWA-Authorized-EADs-PM.pdf and attached as Appendix 4-Z. 67 68

4-30

Tab Position 1

Immigrant Legal Resource Center May 2014

For derivative children who turn 21 after the self-petition is filed, they may become their own VAWA self-petitioners and therefore eligible for work authorization if they: • • •

Were included on the VAWA self-petition that was filed or approved before they turned 21 years old; Are now 21 years old; and Were not admitted or approved for lawful permanent residence by their 21st birthday.

Tab Position 1

VAWA Manual March 2017

If the derivative child becomes a VAWA self-petitioner she can utilize the same priority date as the original self-petitioner (i.e., the parent). 71 PRACTICE POINTER: Employment Authorization for Abused Spouses of Certain Nonimmigrant Professionals. Eligible battered spouses of nonimmigrant professionals (H-4 visa status) must file Form I-765 and the new supplemental Form I-765V. The supplemental Form I765V must be filed concurrently with the Form I-765. 72 See § 3.10 Practice Pointer for more detail on who may be eligible. § 4.25 Adjustment of Status and Consular Processing If the Vermont Service Center approves the I-360 VAWA self-petition, then the self-petitioner proceeds to the final step of the immigration process—obtaining lawful permanent resident (“immigrant” or “green card” status). A permanent resident is someone who has a “green card.” There are two methods for obtaining lawful permanent residence based upon an approved VAWA self-petition: (1) adjustment of status and (2) consular processing. Adjustment of status is a process for changing one’s immigration or undocumented status to the status of lawful permanent resident. It is done in the United States through an application filed with the USCIS. If the selfpetitioner will obtain an “immigrant visa” (which converts to permanent residency) through adjustment of status, the USCIS will retain the approval notice. Consular processing is done abroad through a U.S. consulate. If the self-petitioner will obtain a visa through consular processing, the USCIS sends the approval notice to the National Visa Center of the Department of State. 73

After a certain period of time (three to five years), depending on whether the abuser was a U.S. citizen or permanent resident, a VAWA self-petitioner who has become a permanent resident may apply for naturalization to U.S. citizenship if she meets all the eligibility requirements. This last step of pursuing U.S. citizenship is voluntary, and a permanent resident may choose to remain a 71

Id. Id. 73 8 CFR § 204.2(c)(3)(i). 72

4-31

Chapter 4

In general, adjustment of status is preferable to consular processing, particularly since any denial may be reviewed by an immigration judge in removal proceedings, which is not the case for denials of immigrant visas occurring through consular processing. Almost all VAWA selfpetitioners who are present in the United States should be able to adjust status. Please see Chapter 5 for a detailed discussion of the Adjustment of Status process and Chapter 8 for a detailed discussion of Consular Processing.

permanent resident without ever pursuing citizenship. However, becoming a U.S. citizen is the most secure status for any foreign-born person in the United States. In addition to being able to vote, U.S. citizens can petition for more family members than LPRs can (for example, parents and siblings), they can travel and live outside the United States and not lose their ability to return, qualify for certain government jobs, and more. § 4.26 Notice of Intent to Deny If the Vermont Service Center does not approve the self-petition, it will send the self-petitioner a Notice of Intent to Deny (NOID), setting forth the reasons for the intended denial. (See sample NOID at Appendix 4-R). The notice will also give the self-petitioner additional time to respond with necessary facts and documents before a final decision is made. A sample response to a NOID is attached at Appendix 4-V. If the VSC nonetheless denies the self-petition, you can file a motion to reopen/reconsider, appeal to the Administrative Appeals Office (AAO), or file a new I-360. In general, it is almost always preferable to file a motion to reopen/reconsider. While more expensive, this option is preferable because—unlike the VAWA Unit at the VSC—the AAO is not trained on VAWA, and its handling of those cases has been known to be slow and extremely unpredictable. The regulations at 8 CFR § 103.3(a)(2)(iii) allow self-petitioners to treat a motion to reopen or reconsider as an appeal to the Vermont Service Center to render a new, favorable decision rather than forwarding the case to the AAO. 74 Motions to reopen should be used when you are supplying new information. Motions to reconsider should be used when you believe you have satisfied the law’s requirements and VSC has misapplied the law and/or evidentiary standards. The motion must be filed on Form I-290B. It must be filed within 30 calendar days after service of the decision. If the decision is mailed, the form must be filed within 33 days. The current fee is $675. A fee waiver may be requested; however, the motion is not considered properly filed unless and until the fee waiver request is granted or the fee is properly paid. Note, the fee is waived if the underlying application was fee exempt, the fee was waived, or it was eligible for a fee waiver. 75

Chapter 4

A Form I-360 denial may still be appealed even if the motion to reopen or reconsider is denied. 76

This section was adapted from an article by Ellen Kemp at the National Immigration Project of the National Lawyers Guild. The article appeared in the December 2005/January 2006 edition of the ASISTA newsletter, which can be downloaded for free at www.asistahelp.org. 75 USCIS Policy Memorandum, “Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9 (AFM Update AD11-26),” PM-602-0011.1, March 13, 2011, available at www.uscis.gov/USCIS/Laws/Memoranda/2011/March/Fee WaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf. 76 See 8 CFR § 103.3 for a discussion of appeals and how an appeal may first be treated as a motion. See 8 CFR § 103.5 for more information on motions. 74

4-32

Tab Position 1

Immigrant Legal Resource Center May 2014

§ 4.27 Special Concerns for Advocates Who Are Not Attorneys or BIA Accredited Representatives As noted elsewhere, gaining lawful permanent resident status (a green card) through VAWA selfpetitioning is a two-step process. In the first step, the applicant files a self-petition, and if it is approved, she is granted permission to remain in the United States (“deferred action”) and is eligible for work authorization and certain public benefits. In the second step, she files to upgrade her status to lawful permanent residence. Certain self-petitioners are eligible to file both steps together in a “one-step” adjustment process. Although many battered immigrants justifiably focus on the VAWA self-petition and its benefits as the way to escape an abusive situation, lawful permanent residence is both the official purpose of the family visa petitioning process and a status which provides permanent and greater protection for the self-petitioner and her children.

Tab Position 1

VAWA Manual March 2017

At times, advocates at shelters and other agencies may provide the only or most effective assistance to battered immigrants in many communities. However, the second stage of the process, adjustment of status, must only be completed with the assistance of an attorney or BIA accredited representative. Adjustment of status representation involves in-depth investigation and analysis of a client’s admissibility to the United States, as well as maintenance and monitoring of the client’s case over many years. Mistakes in representation may cause a client to lose her chance at gaining lawful permanent resident status or even to be put into removal proceedings and deported. For more information on becoming a BIA-accredited representative if you are not an attorney, Catholic Legal Immigration Network, Inc. (CLINIC) has lots of resources and support for nonprofit organizations seeking BIA recognition. Some information can be found on their website at https://cliniclegal.org/resources/toolkit-bia-recogition-accreditation. In addition, Unit 13 of the ILRC Guide for Immigration Advocates contains a useful overview on applying for BIA recognition and individual accreditation. What, then, should agencies and individuals who help clients through the first step of the selfpetitioning process do to ensure that those clients get adequate representation through the second, more critical step? First, they can explain the full process to their clients, including: 1. Whether the client is eligible to adjust status immediately (because the abuser is a U.S. citizen or her priority date is current based on the abuser’s I-130 petition) or whether she must wait several years to do so;

3. That the client will need assistance in determining whether she is admissible to the United States, and whether she needs to apply for waivers of any grounds of inadmissibility;

4-33

Chapter 4

2. That how many years she must wait for an “immigrant visa” and permanent residency is determined by the State Department’s “Visa Bulletin,” and that USCIS will not tell her to apply for adjustment of status when her visa petition becomes “current” or if she is able to apply early. It is her responsibility to find out when her visa petition becomes “current” or when she can apply earlier using the “Dates for Filing Family-Sponsored Visa Applications” chart combined with the USCIS chart;

4. That someone who is found to be inadmissible may be put into removal proceedings and possibly deported; 5. That the client must work with an immigration expert to prepare her case for adjustment of status. Second, the advocate should help the client find an attorney or BIA accredited representative to represent her during the adjustment process, and the advocate should make sure the client is able to make appointments and work effectively with that person. We recommend that agencies that help battered immigrants to self-petition work to establish referral relationships well in advance with immigration experts who can represent their clients in adjustment proceedings. Some immigration experts may have special VAWA funding or otherwise be able to represent VAWA clients for no or low fees. Because VAWA enables a self-petitioner to get a work permit upon approval of the self-petition, many clients may not need free services as urgently at this point as during the first stage. Note that in some cases, many years will elapse between filing the selfpetition and adjustment, and immigration experts with whom you have developed relationships may have moved or gone out of business. We recommend that, where possible, you build relationships with established non-profit immigration service agencies like Catholic Charities, Legal Services, Legal Aid, or International Institutes.

Chapter 4

If it is impossible or unworkable to immediately refer a client to an immigration expert, it is possible to reduce the risks of denial or removal by doing the following. First, a shelter or other agency may do a preliminary (and not determinative) screening to determine whether the client will have any problems showing that she is admissible by completing with the client the “VAWA Adjustment of Status Red Flag Checklist” at Appendix 4-U. However, it is essential to recognize that without accessing criminal or immigration records, this screening is not adequate to send the client through the adjustment process without further review. Second, an advocate may explain to the client how to keep track of her petition’s progress on the waiting list for an immigrant visa, and the need to find an immigration expert to help her when her petition becomes current. You should explain how the Visa Bulletin works, how to find her priority date and country, and how to obtain the Visa Bulletin regularly. Ideally, you should stay in touch with the client over the years to monitor whether she is keeping track of the Visa Bulletin or has made any progress toward finding someone to represent her.

4-34

Tab Position 1

Immigrant Legal Resource Center May 2014

CHAPTER 4 THE VAWA SELF-PETITIONING PROCESS

Tab Position 1

VAWA Manual March 2017

INDEX OF APPENDICES VAWA Document-Gathering Guide

Appendix 4-B

Form I-360

Appendix 4-C

Sample VAWA Self-Petitioning Cover Letter

Appendix 4-D

Form G-28

Appendix 4-E

Yates, Associate Director, Operations, USCIS Mem/HQ70/5.5, March 4, 2004

Appendix 4-F

Sample Fee Waiver Requests

Appendix 4-G

Sample Self-Petitioner Declaration

Appendix 4-H

Pearson, Executive Associate Commissioner, Office of Field Operations, INS Mem. HQADN/70/8, January 2, 2002

Appendix 4-I

INS Memorandum, May 6, 1997, from the Office of Programs, regarding Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues

Appendix 4-J

Sample Receipt Notice

Appendix 4-K

Sample Prima Facie Determination Notice

Appendix 4-L

Sample Notice of Action/Request for Evidence

Appendix 4-M

Sample VAWA Approval Notice and Initial Grant of Deferred Action

Appendix 4-N

Yates, Director, Operations, USCIS Mem. HQOPRD 70/8.1/8.2, dated April 8, 2004

Appendix 4-O

Cronin, Acting INS Executive Association Commissioner, INS Mem. HQ/AND/70/6.1IP, dated September 8, 2000

Appendix 4-P

Sample State Department Visa Bulletin

Appendix 4-Q

Form I-765

Appendix 4-R

Sample Notice of Intent to Deny

Appendix 4-S

Form G-639 (FOIA Request)

Appendix 4-T

Virtue, Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA § 384m 96 act.036, May 5, 1997

Appendix 4-U

VAWA Adjustment of Status Red Flag Checklist

Appendix 4-V

Sample Response to Notice of Intent to Deny

Appendix 4-W

Sample Letter Requesting Extension of Prima Facie Determination 4-35

Chapter 4

Appendix 4-A

“Violence Against Women Act (VAWA) Confidentiality Provisions at the Department of Homeland Security” Fact Sheet

Appendix 4-Y

Asista VAWA Good Faith Marriage Amicus Brief

Appendix 4-Z

“Eligibility for Employment Authorization upon Approval of a Violence Against Women Act (VAWA) Self-Petition; and, Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants,” Draft PM-602-XXXX (Dec. 12, 2012)

Chapter 4

Appendix 4-X

4-36

Tab Position 1

Immigrant Legal Resource Center May 2014

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-3

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-4

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-5

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-6

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-7

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-8

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-9

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-10

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-11

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-12

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-13

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-14

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-15

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-16

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-17

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-18

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-19

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-20

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-21

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-22

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-23

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-24

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-25

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-26

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-27

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-28

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-29

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-30

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-31

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-32

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-33

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-34

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-35

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-36

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-37

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-38

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-39

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-40

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-41

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-42

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-43

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-44

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-45

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-46

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-47

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-48

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-49

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-50

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-51

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-52

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-53

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-54

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-55

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-56

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-57

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-58

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-59

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-60

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-61

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-62

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-63

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-64

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-65

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-66

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-67

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-68

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-69

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-70

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-71

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-72

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-73

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-74

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-75

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-76

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-77

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-78

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-A-79

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-A-80

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-3

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-4

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-5

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-6

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-7

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-8

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-9

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-10

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-11

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-12

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-13

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-14

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-15

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-16

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-17

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-B-18

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-B-19

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-C-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-C-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-C-3

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-C-4

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-C-5

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-C-6

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-D-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-D-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-D-3

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-D-4

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-E-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-E-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-E-3

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-E-4

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-E-5

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-E-6

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-E-7

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-F-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-F-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-F-3

Declaration of XXXXX XXXXX In Support of Her Battered-Spouse Application Prima Facie Case I, XXXXX XXXXX, declare under penalty of perjury that the following information is to the best of my knowledge correct: 1. I am 41 years of age. I was born in Guadalajara, Jalisco, Mexico on April 9, 1965. I am currently living in Oakland, California. I married Nelson Smith on September 30, 1988 in Madera, California. 2. My husband is a naturalized United States citizen. I have lived with him in the U.S. since 1986 in various cities throughout California. My husband never filed any immigration papers on my behalf. My husband has been extremely emotionally and physically abusive. We are still married. We are now separated. I have had restraining orders against him to keep him away from me and my children. GOOD FAITH MARRIAGE AND MUTUAL RESIDENCE:

Chapter 4

3. I married my husband in good faith. I met him in the same place I was born, in Jalisco, Mexico, when I was 17 years old. We had lived in the same apartment building. He lived on the top floor. I lived on the bottom floor. We became friends during that time. I first felt friendship towards him, but I knew he wanted more. But at that time, we were committed to other relationships. Then, I had moved away from that apartment. I would hear about him from time to time because we still lived in the same community. Four years later, he started to come around my house to see me and talk to me again. That’s when I knew he was still interested. We were both not seeing other people. We started dating and quickly became a couple. 4. I found out almost immediately after we became a couple that Nelson was a very violent person. He was quick to anger, an alcoholic, extremely jealous, and brutally abusive. He also was demanding of me sexually. It still causes me a lot of pain to remember how bad he was to me. I still become very emotional when I think about all of the abuse he put me through and the abuse my children had to witness. He was always verbally abusive when he became angry. He would yell, scream, and call me names. When he was jealous, which was often, he would be paranoid and interrogated me constantly about men he thought I was having relations with. Early in our relationship, I had worked at a restaurant in Jalisco. He would even harass the male customers that would come to the restaurant, demanding that they tell him about their relationship with me. He would get their business cards and harass these people, calling them at their offices. He was very controlling of my time. 5. He became physically violent very early on. One time, when he was very drunk, he became angry and started to beat me. He picked me up into the air and threw me across the room. I crashed onto the floor very hard in great pain, shocked and humiliated. I was

Appendix 4-G-1

Tab Position 1

Immigrant Legal Resource Center March 2017

afraid of him and for myself. I wanted to run, get away from him. When I had tried to escape, he picked me up again and threw me into the door. I had never seen such violence. I somehow was able to get outside and run away. I didn’t want to go back.

Tab Position 1

VAWA Manual March 2017

6. I started to try to hide from him. I had very bad back pain then. Sometimes it would get so bad that I couldn’t walk. After he had thrown me and beaten me, the back pain worsened. It was hard for me to work with the terrible back pain. After I hid from him, he started to pay my younger brothers for information about where I was. When he couldn’t get what he wanted he became violent and would harass, threaten, and beat up my family members to get information about where I was hiding. I ended up going to the hospital for my back pain because it was severe. The doctors told me I needed an operation. I don’t know how Nelson found me, but he found me at the hospital. When he went there he tried to force me to have sex with him even though I was in pain and we were in a public place. It was frightening and humiliating. He demanded that I leave the hospital and go with him because he didn’t want to be alone anymore. So even though I was still very sick, still in pain, and I needed to have an operation, I left with him because I was afraid that he would continue to hurt my family and me if he didn’t get his way. Either way he said that if I didn’t leave, he would take me out of the hospital by force. I stayed with him despite his abuse both because I hoped that he would change and because I was just afraid to leave him, afraid of what he would do to me and to my family. Before we came to the U.S., before we got married, he told me our life would be different in the U.S. He promised that he would be different. He also promised that he would find a specialist that would help me with my back pain.

8. Around 1986 when we were living in Long Beach, our roommates called the police because he had been drunk and was beating me. Around 1989, while we were living in Madera, I had to call the police because he was beating and choking me. I had red marks all around my neck. I got a restraining order in Madera with the help of my sister. 9. Around 1990, I was forced to go to a homeless shelter in North Hollywood, where I stayed for three months with my children, because my husband had gone off with another woman and abandoned us. In 1991, we got back together again. He promised that he would stop drinking, that he wanted to change. At this time, I had one daughter with him. He also threatened that he could take her away from me if I ever tried to leave him. I continued in the relationship because of his threats, abuse, and for fear that he would take

Appendix 4-G-2

Chapter 4

7. My husband came to the U.S. first. Then I came afterwards. We started to live together in the U.S. around 1986. We married two years later. His violence continued. It increased in severity. He continued to be jealous and to drink, to control everything that I did. He started to take drugs and this would make the abuse worse. He would try to force me to have sex. He would force me to have sex. When he became violent he would hit me in my face with a closed fist. He would pull my hair and strike me in my stomach. Throughout this he would be severely verbally abusive. He would get jealous all of the time and the drinking and drugs made it more violent. I couldn’t stop it sometimes when he tried to make me have sex with him because he would beat me if I didn’t.

my daughter away. I hoped that he would change somehow, although I didn’t believe he would ever change. 10. There were times when we were separated, because of his violence. But he would force himself into my home usually on the weekends when he was drunk and he would rape me. My two younger children that I had with him were conceived as the result of rape. 11. When he would beat me, my children had to witness the abuse. Sometimes my son would want to defend me. My husband would yell, scream at him, and call him names if he tried to step in to protect me or come to my aid. There were many times that my children, especially my son, would be the victim of horrible verbal and mental abuse because of this. One time, I remember that my daughter witnessed when my husband got angry with me and threw a fork at my face. I started to bleed terribly, the blood running down my cheek. My daughter burst out in tears out of fear and because she had to see me going through this terrible abuse. I believe that there were many times when my children felt as much emotional pain as I did. 12. He is gone from our lives now. I want to get a new restraining order against him. I’ve had two before, one in Oakland and another in Madera, California. I am always afraid that he will somehow get back into my life through his threats and violence. I want to move forward with my life without having to fear him anymore. I want to rebuild my life with my children. GOOD MORAL CHARACTER 13. I have never been arrested by the police or Immigration. I have never misrepresented myself to the Immigration.

Chapter 4

14. I am submitting this declaration and attached evidence as a preliminary application. I plan on submitting a more detailed declaration regarding the marriage, the abuse, and the extreme hardship if I am deported. In addition, I will submit other supporting documents. Executed in ________________ on ___________________ _______________________________ Signature International Institute of the East Bay

Appendix 4-G-3

Tab Position 1

Immigrant Legal Resource Center March 2017

Declaration in support of Application for VAWA I, [client name], make this declaration in support of my VAWA application:

Tab Position 1

VAWA Manual March 2017

1. I was born on [date] in [city], [state] and [country of birth]. 2. I came to the United States [on/in Month Day], [YEAR]. I am now living in [City], California. I am self-petitioning under the Violence Against Women Act because I was subjected to abuse by my [U.S. citizen/Lawful Permanent Resident] spouse, [AbuserFirst] [AbuserMiddle] [AbuserLast1 AbuserLast2]. 3. I first met [AbuserFirst] [when/where/details]. 4. [Courtship details.] 5. I moved in with [AbuserFirst] [when/where]. [Details.] 6. I married [AbuserFirst] on [Month Day, YEAR], in [City, State, Country], in good faith. [Details of the wedding.] 7. Things were going well until [details]. 8. I was subjected to abuse by [AbuserFirst]. Things took a turn for the worse when [details]. Every two weeks he came home on the weekend drunk, and slapped me across the face. 9. I am a person of good moral character. I have never committed a crime in this country OR I was arrested on [Month Day, YEAR] in [City, State] for crime. RRR.

Chapter 4

Appendix 4-G-4

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-G-5

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-G-6

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-G-7

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-G-8

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-G-9

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-G-10

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-G-11

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-G-12

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-G-13

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-H-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-H-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-H-3

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-I-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-I-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-I-3

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-I-4

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-I-5

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-I-6

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-I-7

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-I-8

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-I-9

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-I-10

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-J-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-K-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-K-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-L-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-L-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-M-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-M-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-N-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-N-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-O-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-O-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-P-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-P-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-P-3

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-P-4

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-P-5

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-P-6

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-P-7

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-P-8

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-P-9

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Q-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Q-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-R-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-R-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-S-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-S-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-S-3

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-S-4

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-T-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-T-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-T-3

VAWA Red Flag Situationsfor Adjustment of Status

Tab Position 1

VAWA Manual March 2017

Try hard to remember if you have had any of these problems, because the Immigration Service may already know or find out, and you and the person helping you need to know whether you might have a problem before you apply. These things DO NOT necessarily mean you can’t apply for a green card, it just means that you need to talk with an immigration expert about them before you send papers to the Citizenship & Immigration Service (CIS). Check the appropriate box if you have had any of the following problems:          

   

IF YOU CHECKED ANY OF THE ABOVE BOXES, YOU MUST TALK ABOUT IT WITH AN IMMIGRATION EXPERT!

Appendix 4-U-1

Chapter 4

 

You suffer from a communicable disease. You are not able to show the CIS that you have been vaccinated against communicable diseases. You have a behavior related to mental or physical disorder which may pose a danger to yourself or others or are likely to have such a behavior in the future. You are addicted to, or abuse drugs. You have, in any way, helped to bring non-citizens illegally into the U.S. You have given false information to gain an immigration benefit such as a visa or have used false documents such as a false green card. You falsely claimed to be a U.S. citizen knowing it was not true. You entered the United States illegally. You have been in the United States illegally for more than 180 days. You are likely to become primarily dependent on welfare or other public benefits in the U.S. You have been arrested (including by INS, ICE or DHS) You have been deported or removed from the U.S., or ordered deported or removed You have been convicted of a crime. You have engaged in prostitution within the last ten years. You are a member or former member of the Communist party or other Totalitarian party. You participated in the persecution of others on the count of race, religion, national origin, or political opinion.

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-V-1

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-V-2

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-W-1

Violence Against Women Act (VAWA) Confidentiality Provisions at DHS The Department of Homeland Security (DHS) and its components are committed to ensuring full compliance with the Violence Against Women Act (VAWA) and Department of Justice Reauthorization Act of 2005, Pub L. 109–162, 119 Stat. 2960 (2006). VAWA directly impacts the work of DHS and its components in several important ways: •

•

•

Tab Position 1

VAWA Manual March 2017

VAWA’s confidentiality provisions generally prohibit disclosure to a third-party of any information relating to an alien who is an applicant for relief under VAWA, subject to certain, limited exceptions. See 8 U.S.C. § 1367 (a)(2) & (b). VAWA’s confidentiality provisions prohibit DHS from using information solely from a spouse or parent who has battered the alien or subjected the alien to extreme cruelty, including any live-in family members of the alleged abuser, as the basis for arresting and charging an alien with removability, unless the alien has been convicted of certain serious crimes. See 8 U.S.C. § 1367 (a)(1). VAWA’s confidentiality provisions require certification that the confidentiality provisions have been complied with when enforcement actions leading to a removal proceeding are taken at specified locations, such as domestic violence shelters, rape crisis centers, or courthouses. See 8 U.S.C. § 1229(e).

A clear, consistent means of reporting alleged violations by DHS employees of VAWA’s confidentiality provisions serves the interests of both DHS and the public. DHS has therefore established procedures for reporting alleged violations. Following these procedures will allow DHS to investigate and address complaints. Reporting a Violation of the VAWA Confidentiality Provisions Complaints alleging a violation of the VAWA confidentiality provisions by a DHS employee should be submitted in writing to the Office for Civil Rights and Civil Liberties (CRCL). CRCL is statutorily obligated to review and assess information concerning abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion by DHS employees and officials. See 6 U.S.C. § 345 and 42 U.S.C. § 2000ee-1.

•

•

Contact information: Full name, date of birth, alien registration number (A-number if applicable), phone number, mailing address, and e-mail address if available. If you are writing on behalf of someone else, please also provide your contact information, including organization name, if any. A written description of the specific circumstances: Date, time and location; name(s) and contact information of any witnesses; and name, job title, agency or component, and

Appendix 4-X-1

Chapter 4

To send a complaint to CRCL, you may download and use an optional complaint form [www.dhs.gov/xlibrary/assets/crcl-complaint-submission-form-english.pdf] (PDF, 7 pages - 212 KB) if you choose. Using the form will help ensure that CRCL gets the relevant information. If you prefer, you can simply share with us the following information, in any written format:

•

•

contact information (if available) of the employee(s) alleged to have committed the violation, or the relationship of the alleged violation to a DHS program or activity. Relevant documents: Copies of any paperwork related to the complaint or its circumstances, such as NTAs and warrants; and copies of any pending VAWA, T-visa or U-visa applications filed with DHS. A summary of other steps taken, if any, to resolve this complaint: For example, steps could include communications with a DHS component agency regarding your complaint, or letters written to the DHS Office of the Inspector General.

Complaints may be filed on behalf of someone else. If you are writing on behalf of someone else and wish to receive information which relates to that person or his complaint, you must provide express written consent from that individual authorizing DHS to share information with you about the complaint. Complaints should be submitted in writing via e-mail, fax, or standard mail to: U.S. Department of Homeland Security Office for Civil Rights and Civil Liberties Compliance Branch 245 Murray Lane, SW Building 410, Mail Stop #0190 Washington, D.C. 20528

Chapter 4

Phone: (202) 401-1474 Toll Free: (866) 644-8360 E-mail: [email protected] Fax: (202) 401-4708 Local TTY: (202) 401-0470 Toll Free TTY: (866) 644-8361 Complaints are accepted in languages other than English. For additional information about CRCL’s roles and responsibilities, visit the ,Office of Civil Rights & Civil Liberties online [www.dhs.gov/about-office-civil-rights-and-civil-liberties], or e-mail [[email protected]] or call us. CRCL will initially refer a complaint to the DHS Office of the Inspector General. The complaint may later be further referred to the relevant DHS component. Privacy Act Statement: A federal law called the Privacy Act says we must explain how we protect your information while processing your complaint. CRCL may disclose certain information from your complaint if we are required by law to do so or if there is no privacy impact. For example, we send reports to Congress every three months about complaints submitted by the public. Those reports describe the types of complaints, but do not include personal information. • •

Read past reports www.dhs.gov/xabout/structure/gc_1266873528670.shtm Learn more about the Privacy Act www.pueblo.gsa.gov

Last Published Date: July 23, 2012 Appendix 4-X-2

Tab Position 1

Immigrant Legal Resource Center March 2017

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-3

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-4

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-5

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-6

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-7

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-8

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-9

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-10

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-11

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-12

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-13

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-14

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-15

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-16

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-17

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-18

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-19

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-20

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-21

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-22

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-23

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-24

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-25

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-26

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Y-27

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Y-28

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Z-1

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Z-2

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Z-3

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Z-4

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Z-5

Tab Position 1

Chapter 4

Immigrant Legal Resource Center March 2017

Appendix 4-Z-6

Tab Position 1

VAWA Manual March 2017

Chapter 4

Appendix 4-Z-7

Chapter 4

March 2017

Tab Position 1

=Immigrant Legal Resource Center

CHAPTER 5 ADJUSTMENT OF STATUS FOR VAWA SELF-PETITIONERS

Tab Position 1

VAWA Manual March 2017

This chapter includes: § 5.1 § 5.2 § 5.3 § 5.4 § 5.5 § 5.6 § 5.7 § 5.8 § 5.9 § 5.10 § 5.11 § 5.12 § 5.13 § 5.14

Introduction ........................................................................................................ 5-1 When Will a Lawful Permanent Resident Visa Be Available? .......................... 5-2 Adjustment of Status for VAWA Self-Petitioners: Adjustment Requirements .................................................................................. 5-5 When Should a Self-Petitioner File an Application for Adjustment of Status? ............................................................................................................ 5-6 VAWA, Aging Out, and the Child Status Protection Act ................................ 5-10 Where to File the Adjustment Application for Self-Petitioners Who Have Never Been in Removal Proceedings...................................................... 5-14 Adjustment Applications for Self-Petitioners in Removal Proceedings .......... 5-15 Adjustment of Status for Derivative Beneficiaries ........................................... 5-17 Applying for Adjustment of Status .................................................................. 5-18 The Contents of the Adjustment Application Packet ....................................... 5-22 Filing Fees and Requests for Fee Waivers for Adjustment Applications Filed with USCIS ............................................................................................. 5-25 USCIS Interview Process ................................................................................. 5-25 If USCIS Denies Adjustment of Status ............................................................ 5-27 Special Cases: Adjustment for Abused Spouses and Children of Principal Applicants under CAA, HRIFA, and NACARA .............................. 5-27

§ 5.1

Introduction

The approval of a VAWA self-petition is the first step in the immigration process. Once the selfpetition is approved, the self-petitioner may then proceed to the second step of the process, that is, obtaining lawful permanent residence based upon the approved self-petition. There are two means of accomplishing this second step: (1) consular processing, or (2) adjustment of status. Consular processing is a means of obtaining lawful permanent residence at a U.S. consulate abroad. In contrast, adjustment of status allows an individual to obtain lawful permanent resident status in the United States by filing an application with the USCIS.

5-1

Chapter 5

Because of relaxed requirements for VAWA adjustment of status, most self-petitioners and their derivatives will be able to adjust their status to lawful permanent resident, thereby avoiding the expense and uncertainty of going abroad for consular processing, as well as the damage that could be caused by disruption of support services. Nonetheless, there will be cases in which either the principal self-petitioner or his or her derivatives will need to consular process. For example, the self-petitioner may have filed the self-petition from outside the United States or may be living outside the United States. Or the self-petitioner may have entered the United States on a K fiancé visa, but married someone other than the U.S. citizen who filed the K visa petition. Fiancés are

allowed to adjust status only on the basis of a marriage to the U.S. citizen who filed the K visa petition. 1 Or the self-petitioner might be in the United States, but might have children living outside the United States. In that case, the self-petitioner could apply for adjustment of status, but his or her derivative beneficiaries would have to obtain residence through consular processing. For these reasons, it is important to understand the consular process as well as the adjustment of status process. This chapter will discuss adjustment of status for VAWA self-petitioners and their derivatives. Chapter 8 will discuss consular processing for those persons. PRACTICE POINTER: Terminology. Sometimes you will see other terms used for “lawful permanent residence.” These might include “lawful permanent resident visa or status,” “LPR visa or status,” “immigrant visa or status,” or “green card.” These terms are basically synonymous. § 5.2

When Will a Lawful Permanent Resident Visa Be Available?

How soon a VAWA self-petitioner will be able to obtain a lawful permanent resident visa depends on whether the self-petitioner is an “immediate relative” or falls under one of the preference categories, explained in Chapter 4. Immediate relatives for self-petitioning purposes are the spouses and children (unmarried and under 21) of U.S. citizens and parents of U.S. citizens who are 21 or older. 2 There is no wait for an immigrant visa for immediate relatives, because they are not subject to the annual limits, or “quotas,” for family-based immigration. 3 Spouses and children of lawful permanent residents, however, as well as sons and daughters of U.S. citizens who are 21 years old or older or who are married, fall under the family preference quota categories 4 and must wait until a visa is available for them. The waiting period for a visa under the family preference categories begins on the date the petition requesting family-based immigration is properly filed. 5 This is known as the “priority date.” For self-petitioners on whose behalf an abuser has already filed an I-130 relative visa petition, the priority date will be the date the I-130 was filed, since self-petitioners can recapture an old priority date. 6 Where the I-360 self-petition is the first petition filed, however, the priority date will be the date on which the Vermont Service Center receives the self-petition. 7 When the individual’s priority date is “current,” that means that there is an immigrant visa available for the individual. 8 To estimate how long it will take for a priority date to become current, refer to the

INA § 245(d). INA § 201(b)(2)(A)(i). 3 INA § 201(b). 4 INA § 203(a)(1) [first family preference: unmarried sons and daughters of U.S. citizens], § 203(a)(2) [second family preference: spouses and unmarried sons and daughters of lawful permanent residents], and § 203(a)(3) [third family preference: married sons and daughters of U.S. citizens]. 5 8 CFR § 204.1(c). 6 8 CFR § 204.2(h)(2); see, Aleinikoff, Executive Associate Commissioner, Office of Programs, INS Mem. HQ 204-P, April 16, 1996, at 2-3 (Appendix 3-A). 7 8 CFR §§ 204.1(c), 245.1(g)(2). 8 8 CFR § 245.1 1

Chapter 5

2

5-2

Tab Position 1

Immigrant Legal Resource Center March 2017

current month’s Visa Bulletin, published by the Department of State at http://travel.state.gov. A sample Visa Bulletin is included at Appendix 4-P in Chapter 4. Example 1: Julia, a citizen of Argentina, is married to Augustin, a lawful permanent resident. On July 30, 2013, she mails to the Vermont Service Center a self-petition based on abuse inflicted on her by Augustin. Her priority date is August 2, 2013, the day the self-petition was received by the Vermont Service Center. Julia falls under the second family-based immigration preference category, because she is the spouse of a lawful permanent resident. The self-petition is approved on November 1, 2013, but Julia was not able to obtain a lawful permanent resident visa at that time, because there was a waiting period of about three years under the second preference. This means that her priority date was not “current” for another three years. She had to wait until her priority date became current before she could file an application for adjustment of status. During that wait, however, the Vermont Service Center granted her deferred action status and employment authorization. (After October 2016, she might be able to file her adjustment application a few months earlier, if USCIS designates use of the “filing date” chart.)

Tab Position 1

VAWA Manual March 2017

Very rarely, the 2-A Preference Category (spouses and children of permanent residents) may become “current,” meaning that all priority dates are considered current and visas are available for all qualified applicants in the 2-A Preference Category. This is not typical and has occurred in recent years only in 2014. It is more usual to have a wait of several years for a priority date to become current. It is important to check the current month’s Visa Bulletin to be sure of current wait times. Example 2: Now assume that there is a four-year wait for a priority date to become current, but Augustin filed a relative visa petition on Form I-130 for Julia in March, three years ago. That petition had not yet been adjudicated when Julia files her self-petition in September, three years ago. Even though Julia will obtain permanent residence through her self-petition rather than the relative visa petition filed by Augustin, she is able to “recapture” the priority date of Augustin’s petition, so that she has the earlier priority date of March, rather than September, three years ago. This means that her priority date will become current six months earlier, allowing her to receive her permanent resident visa earlier. PRACTICE POINTER: Safeguarding I-130 Priority Dates for Recapture and Use in I-360 Adjustment or Consular Process. A self-petitioner’s ability to recapture the priority date of a previously-approved I-130 may be cut if the I-130 is “terminated” under INA 203(g) for “abandonment of the visa application process” by failing to “apply for an immigrant visa within one year following notification of the availability of a visa number.” This may occur when USCIS approves the I-130 and sends it on to the NVC and/or subsequently the U.S. Consulate abroad and the beneficiary’s priority date is current. If no action is taken related to the visa application process, the NVC or the Consulate may “terminate” the petition, which means the I130 beneficiary will lose the I-130 priority date. The receipt date of the I-360 will then become the new priority date. This is true whether the beneficiary will be consular processing abroad or adjusting status in the U.S.

Chapter 5

5-3

It is recommended that the client or advocate contact the NVC or Consulate every six months with documentation of steps taken toward immigrant visa or adjustment of status processing. This could include, for example, receipt notices for the I-360, submission of I-864W, and/or civil documents if consular processing, and receipt notices or ASC or interview notices if adjusting status. It appears that the NVC and/or Consulates may be issuing “auto-termination” letters if one year has passed since the priority date has become current and an interview has been scheduled or the process begun with the NVC. In that case, simply contact the NVC or Consulate with a letter and documentation regarding steps taken in the case and indicate that the beneficiary is still planning on applying for an immigrant visa or adjustment of status. If there are any extenuating factors as to why the process has taken so long, add those and document these factors as carefully as possible. Sometimes the NVC or the Consulate will send the beneficiary and/or her representative a form letter to fill out and return. A sample abeyance request letter is available on the ASISTA website, at http://bit.ly/ASISTAAbeyanceSample. Example 3: Frank is married to Angela, a U.S. citizen. She is abusive to Frank, and he files a VAWA self-petition. Because Frank is the spouse of a U.S. citizen, he is an “immediate relative.” He can obtain permanent resident status, through either adjustment of status or consular processing, as soon as the Vermont Service Center approves his selfpetition. Sometimes the immigration status of the abusive spouse or parent will change. For example, an abusive spouse who is a lawful permanent resident may naturalize and become a U.S. citizen. In that case, the self-petitioner’s application category will be reclassified. 9 The self-petitioner should notify in writing the Vermont Service Center or the local USCIS office, if her adjustment application is already pending there. Some USCIS offices have their own forms for notifying USCIS of an LPR petitioner’s naturalization. Example 4: After Julia files her self-petition, her husband Augustin naturalizes, so that his status is changed from LPR to U.S. citizen. Julia is now an immediate relative and has no waiting period for her immigrant visa. If she has not yet filed her self-petition, she should file it as an immediate relative. If she has already filed a self-petition as a spouse under the second preference, she should notify the Vermont Service Center in writing or, if her adjustment application is already pending with a local USCIS office, she should notify that office in writing. Divorce from the abuser or the abuser’s loss of permanent resident status after the self-petition is filed does not adversely affect either approval of the self-petition or adjustment of status or consular process based on an approved self-petition. 10

INA § 204(a)(1)(B)(v)(II); 8 CFR § 204.2(h). INA § 204(a)(1)(B)(v)(I). Also, the self-petition may still be filed at any time within two years of the divorce or the abuser’s loss of permanent residency if the termination of the marriage or loss or residency was related to domestic violence. INA § 204(a)(1)(A)(iii)(II)(aa)(CC), INA 204 § (a)(1)(B)(ii)(II)(aa)(CC).

9

Chapter 5

10

5-4

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 5.3

Adjustment of Status for VAWA Self-Petitioners: Adjustment Requirements

VAWA self-petitioners are eligible for adjustment under special provisions that are less rigorous than those applied to other immigrants. In this chapter, we will focus on VAWA adjustment requirements and will cover the general adjustment requirements only briefly. 11

Tab Position 1

VAWA Manual March 2017

The applicant for VAWA adjustment of status must satisfy the following requirements: •

The Vermont Service Center must have approved the applicant’s I-360 VAWA selfpetition, or the applicant must be a VAWA self-petitioner’s derivative beneficiary (the child of someone who has an approved I-360 VAWA self-petition). 12

•

There must be a visa currently available for the adjustment applicant. 13 This means that either the applicant is an immediate relative (or the derivative of an immediate relative) or, if the applicant falls under one of the family-based preference categories, the priority date is current.

•

The adjustment applicant, whether a principal or derivative beneficiary, must be admissible under INA § 212. 14 This means that the applicant must not fall under any of the INA § 212 inadmissibility grounds or, if the applicant does fall under one of those grounds, he or she must be eligible for a waiver of that ground. In Chapters 6 and 7, which address inadmissibility grounds and waivers of inadmissibility, we will see that there are special exceptions from and waivers of certain inadmissibility grounds for VAWA self-petitioners.

Note that several of the requirements for general adjustment of status, including the “bars” to adjustment under INA § 245(c) simply do not apply to VAWA self-petitioners adjusting under INA § 245(a). Thus: •

VAWA self-petitioners need not have been inspected or admitted to the United States. 15 This means that self-petitioners who entered the United States without inspection (sometimes called “EWIs”—”entry without inspection,” sometimes referred to as “preset without admission or parole”) are eligible for VAWA adjustment. Moreover, an April 2008 memorandum from USCIS interprets this exemption from the “inspection and admission or parole” requirement of INA § 245(a) as also waiving the inadmissibility ground of being present without authorization or parole under INA § 212(a)(6)(A). 16 We

Many excellent resources explain general adjustment of status. These include the Immigrant Legal Resource Center, Inc., A Guide for Immigration Advocates and Families & Immigration: A Practical Guide; Charles Wheeler, Immigration Law and the Family (AILA 2017); and Ignatius and Stickney, Immigration Law and the Family. 12 INA § 245(a). 13 Id. 14 Id. 15 Id. 16 Michael J. Aytes, Assoc. Dir. Dom. Opers., re: Adjustment of Status for VAWA self-petitioner who is present without inspection (April 11, 2008), at 2. See at Appendix 5-C. 11

Chapter 5

5-5

will discuss this inadmissibility ground in more detail later in this chapter and at § 6.22 in Chapter 6 of this manual. •

Having worked without authorization does not make a VAWA self-petitioner ineligible for adjustment. 17

•

Having overstayed nonimmigrant status or having violated the terms of nonimmigrant status does not make a VAWA self-petitioner ineligible for adjustment. 18

•

Having been admitted as a nonimmigrant under the categories “D” [crewmember], “C” [alien in transit without a visa], or “S” [government witness] does not disqualify a VAWA self-petitioner from adjustment. 19

•

Having been admitted under the visa waiver program is not a bar to VAWA adjustment. 20

•

VAWA self-petitioners do not pay the $1,000 penalty fee for adjustment required under INA § 245(i). Example: Regina is a citizen of Mexico, married to Clyde, an LPR. Clyde goes to the United States on August 1, 2016, with the couple’s children, leaving Regina behind. Regina, frantic about her children, crosses the border into the United States without inspection on August 30, 2016, and works without authorization after her entry. Regina files a VAWA self-petition on November 1, 2016. The Vermont Service Center grants the self-petition, and grants Regina deferred action status and employment authorization because Regina’s priority date was not yet current when she filed her VAWA selfpetition. Regina worried that, when she does apply for adjustment, having entered the United States without inspection and having worked without authorization will prevent her from adjusting status or will require her to pay a penalty fee. You tell her that, even though those acts might have barred her from adjustment under the general adjustment requirements, they do not bar her from adjusting as a VAWA self-petitioner. She is not required to pay any adjustment penalty fee. [While Regina may also be inadmissible under INA § 212(a)(6)(A) because she was present without authorization or parole, an April 2008 USCIS memorandum explains that this will not bar her from adjustment of status.] 21 § 5.4

When Should a Self-Petitioner File an Application for Adjustment of Status?

VAWA self-petitioners who fall under the preference categories cannot file their applications for adjustment until their priority dates are current. A self-petitioning immediate relative who is in the United States and who is not in removal proceedings, however, has a choice of when to file the application for adjustment of status. The adjustment application may be attached to the selfpetition itself when the self-petition is filed with the Vermont Service Center. This is sometimes INA § 245(c). Id. 19 Id. 20 Id. 21 See Aytes memorandum, supra n. 16. 17

Chapter 5

18

5-6

Tab Position 1

Immigrant Legal Resource Center March 2017

referred to as a “one-step” application. A sample cover letter for a VAWA “one-step” is attached at Appendix 4-A. Alternatively, the self-petitioner may wait to apply for adjustment until the Vermont Service Center has granted the self-petition.

Tab Position 1

VAWA Manual March 2017

Prior to the Violence against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), 22 the principal reason for filing the adjustment application with the self-petition was that the adjustment applicant is eligible for employment authorization, regardless of any economic need for employment. 23 In contrast, VAWA self-petitioners who were not ready to apply to adjust status (because they had priority dates that were not yet current or had issues that made them ineligible for adjustment) were eligible for employment authorization only upon showing an economic need for employment. VAWA 2005 provided, however, that all selfpetitioners are eligible for employment authorization based upon their approved self-petitions alone. 24 Because the VSC may take some time to approve an I-360, however, persons eligible to adjust may prefer a one-step application, since they are eligible to receive an EAD upon filing the adjustment application and need not wait for its approval. PRACTICE POINTER: Final Action Dates, Filing Dates, and Eligibility to File for Adjustment. The November 2015 Department of State Visa Bulletin heralded an important change that affects when a visa beneficiary under the preference categories, including VAWA self-petitioners, may start consular processing or file an application for adjustment of status, if eligible to adjust. Prior to November 2015, adjustment applicants could file only when the pertinent date on the Visa Bulletin was after the applicant’s priority date. This is the date on which the priority date becomes “current,” or in other words, an immigrant visa number is actually available for a particular applicant. Beginning in November 2015, however, all applicants who are consular processing and some applicants adjusting status, can begin the process before their priority date actually becomes current, though they still will not be finally approved for LPR status until their priority date is current and a visa number available. If USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, adjustment applicants will be allowed to file early. The revised Visa Bulletin contains two family preference charts with differing priority dates. Chart A for family sponsored preferences shows dates designated as the “final action date,” which is the same as the old Visa Bulletin chart reflecting when the priority date is actually “current” and a visa number available. The second chart, Chart B, shows later dates, designated as “filing dates.” In order for an adjustment applicant to file her I-485 application earlier using the second, “filing date” chart, advocates must check the USCIS website for that month to determine whether USCIS will accept an adjustment application filed using the “filing date” chart B, at www.uscis.gov/visabulletininfo. Thus, advocates must check monthly to see which date, the “final action” or “filing” date, may be used. If USCIS designates use of the filing date for a particular month, the effect would be to allow beneficiaries to file their adjustment applications earlier than the date on which their priority date Violence against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960. 23 8 CFR § 274a.12(c)(9). 24 VAWA 2005, § 814(b), adding INA § 204(a)(1)(K). 22

Chapter 5

5-7

actually becomes current, which would allow for receipt of work and travel authorization through the adjustment application much sooner than otherwise possible. For Example: Juana who is from Guatemala, and is the abused spouse of an LPR, filed her 2nd preference VAWA self-petition on November 1, 2015. November 1, 2015 is Juana’s “priority date.” The April 2017 Visa Bulletin Chart A shows a final action date of June 8, 2015, for beneficiaries in the 2A family-based preference (spouses and unmarried children of LPRs) in the “all chargeability” category. Using the final action priority date, Juana cannot yet file for adjustment of status, because only self-petitions filed on or before June 8, 2018 have “current” priority dates. However, the April 2017 Visa Bulletin Chart B reflects a filing date of November 22, 2015 for the 2A preference category. Juana might be able to file her adjustment application now, since she filed her petition on November 1, 2015, before the date listed on Chart B: November 22, 2015. Juana must first check the USCIS website to see if USCIS will accept an application for adjustment filed under Chart B. If USCIS says yes, use the “filing date” Chart B, Juana can file early and receive work and travel authorization through her adjustment application, but will not be interviewed for adjustment nor become an LPR until the “final action” Chart A date for the 2A preference reaches November 1, 2015, and Juana’s priority date is then “current.” If USCIS states adjustment applicants can use only the “final action” chart (Chart A), however, she must wait to file and should keep checking both the Visa Bulletin charts and the USCIS website every month. When USCIS indicates that beneficiaries may use the filing dates, the National Benefits Center (NBC) will generally hold the I-485 adjustment application at the NBC until the “final action date” is reached. Important Caveat: Filing for adjustment under the “filing date” on Chart B will not prevent the aging out of a derivative VAWA beneficiary, nor will it “freeze” the age of a non-VAWA immediate relative beneficiary or a preference beneficiary for CSPA purposes. PRACTICE TIP: What to Do If an I-485 Adjustment Application Was Filed with a Previously Filed I-130 Relative Visa Petition. In some cases, the abuser will have filed Form I-130, Petition for Alien Relative, and the victim will have filed an I-485 adjustment application based upon that I-130. Theoretically, the victim could elect to proceed on the I-130, if it has not been withdrawn, denied, or revoked. 25 If the victim does elect to do this, however, he or she must submit an affidavit of support from the I-130 petitioner, 26 which could be awkward or even dangerous for the victim. A preferable option is to request that the USCIS substitute an I-360 self-petition for the I-130 Relative Visa Petition. This is known as a “conversion request.” The self-petitioner will be able to retain the priority date established by the filing of the I-130 petition for purposes of obtaining a visa based on the new self-petition, 27 and, as mentioned above, self-petitioners are not required to Aleinikoff, Executive Associate Commissioner, Office of Programs, INS Mem. HQ 204-P, April 16, 1996, at 2-3 (Appendix 3-A). 26 INA § 212(a)(4)(C). 27 8 CFR § 204.2(h)(2).

Chapter 5

25

5-8

Tab Position 1

Immigrant Legal Resource Center March 2017

present the I-864 affidavit of support. Instead, VAWA self-petitioners must now file Form I864W, Intending Immigrant’s Affidavit of Support Exemption, a one-page form, to demonstrate that they are not required to file the affidavit of support. 28

Tab Position 1

VAWA Manual March 2017

If you have a client who has already filed an I-485 based upon the abuser’s I-130, here are suggested steps for a conversion request. 29 Either before filing the self-petition or once the selfpetition is filed, write to the local USCIS district office, informing them that the client is a victim of domestic abuse and that a self-petition has been filed and asking USCIS to hold the I-485 in abeyance as a matter of discretion pending the Vermont Service Center’s adjudication of the selfpetition. Provide evidence of filing the self-petition within 30 days of the conversion request. If USCIS does not receive this information within 30 days, it may make a decision on the I-130 and underlying adjustment application. It is recommended that you quote the special provisions of 8 USC § 1367 in the conversion request. These provisions prohibit the immigration authorities from making adverse findings on admissibility or deportability using information furnished solely by the person’s abuser, trafficker, or perpetrator of crime, unless the person has been convicted of certain crimes. The provision also prohibits disclosure of information concerning VAWA self-petitioners and other immigrant victims to anyone other than specified authorized individuals. Under this provision, the USCIS should not be able to revoke the self-petitioner’s I-485, even if the abuser revokes the I130 relative visa petition. 30 A sample abeyance request letter is available on the ASISTA website, at http://bit.ly/ASISTAAbeyanceSample. After the Vermont Service Center approves the self-petition, you can then write the USCIS district office, with a copy of the approval notice, asking that the applicant’s case be adjudicated or reopened if already denied, for consideration of the application for adjustment of status based upon the approved I-360 self-petition. If the victim receives notice of an adjustment interview before a self-petition has been filed, one approach is to file a self-petition immediately and send a letter as described above to the USCIS district office, asking that the interview be postponed pending adjudication of the self-petition. If the victim does not receive written confirmation that the adjustment interview is rescheduled, however, the victim must appear at the interview in order to avoid having the adjustment application denied. In the interview, the applicant should request a rescheduling of the interview in order to allow the applicant to file a self-petition and to obtain a response from the Vermont Service Center on the self-petition. USCIS general practice seems to be granting thirty days after the interview for filing a self-petition in this situation, but this practice varies between districts.

Form I-864W is included as Appendix 5-F to this chapter. See generally, “Notes and Practice Pointers from USCIS VAWA, U, and T Stakeholder Events 2016,” at www.ilrc.org/sites/default/files/resources/2016_uscis_practice_pointers_final_5.pdf, at 25. 30 See, Aleinikoff, supra note 23. 28 29

Chapter 5

5-9

§ 5.5

VAWA, Aging Out, and the Child Status Protection Act

A common issue in family-based immigration is a child’s “aging-out,” that is, a child’s attaining 21 years of age so that he or she no longer meets the immigration definition of “child.” Where meeting that definition is a requirement for a visa category or for derivative status, aging out can, at worst, preclude the person’s immigration. Under both VAWA and the Child Status Protection Act (CSPA), Congress has tried to minimize the adverse effects of aging out. This section will describe those provisions. Under VAWA, self-petitioning children and VAWA derivative children who were under 21 when the self-petition was filed, attaining 21 will not prevent immigration. It may, however, delay immigration, since turning 21 may change the applicant’s preference category and, therefore, the date on which a visa will be available for the applicant. For example, a self-petitioning child of a lawful permanent resident, upon turning 21, will “age out” of the 2A preference category and will be reclassified under the family preference category 2B (adult, unmarried sons and daughters of lawful permanent residents). INA § 204(a)(1)(D)(i)(I). Upon reclassification, the self-petitioner retains the original priority date, INA § 204(a)(1)(D)(i)(I), and is eligible for deferred action and employment authorization, INA § 204(a)(1)(D)(i)(II). Derivative beneficiaries of VAWA selfpetitioners have a similar protection. Upon turning 21, they are deemed to be self-petitioners in their own right, with the priority date assigned to the self-petition. INA § 204(a)(1)(D)(i)(III). They are also eligible for deferred action and employment authorization. INA § 204(a)(1)(D)(i)(IV). While VAWA protects against aging out of eligibility for the visa, the aged-out self-petitioner or derivative may face delays in obtaining residence due to his or her reclassified status. Some protection against this are available under the Child Status Protection Act of 2002 (CSPA), 31 which contains special provisions for calculating age for purposes of “aging out.” VAWA 2005 clarified that the CSPA extends to VAWA self-petitioners and derivatives and that nothing in the CSPA limits or denies VAWA’s aging-out protections. 32 In a guidance memorandum, USCIS instructs that officers adjudicating Form I-360 should first examine whether the child will benefit under the CSPA. If the CSPA does not allow an individual who is over 21 to remain a child for immigration purposes, then the USCIS officer should review the VAWA age-out provisions to determine whether the individual may benefit under those provisions. 33 A caveat here that the CSPA is complex. In this chapter, we address only the provisions of the CSPA that would likely affect a VAWA self-petitioner or his or her derivative beneficiaries. 34 Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002). VAWA 2005, § 805(b), amending INA § 201(f) (for immediate relatives of USCs and their derivatives) and § 203(h) (for self-petitioners in the second preference and their derivatives). 33 William R. Yates, Assoc. Dir. Opers., USCIS, HQOPRD 40/6.1.1, Re: “Age-Out Protections Afforded Battered Children Pursuant to the Child Status Protection Act and the Victims of Trafficking and Violence Protection Act (Aug. 17, 2004). This memorandum is attached as Appendix 5-G to this chapter. 34 For more detailed coverage of the CSPA, see Lourdes Martinez, “The Child Status protection Act (CSPA) & Derivative Beneficiaries Recapturing Priority Dates after Scialabba: Practice Advisory,” (ILRC Oct. 2014), at www.ilrc.org/sites/default/files/resources/cspapracticeadvisory_oct2014.pdf; Mary Kenney, “Practice Advisory: the Child Status Protection Act,” 31

Chapter 5

32

5-10

Tab Position 1

Immigrant Legal Resource Center March 2017

The calculation used to determine a beneficiary’s age under the CSPA depends on the individual’s non-preference or preference category. For children of U.S. citizens who filed a petition for the child before the child turned 21, the child will remain an immediate relative, and thus not subject to the preference quota and resulting waiting period, as long has the beneficiary does not marry. 35 In the VAWA context, if an abused child of a USC self-petitions before the child turns 21, the child will not move from the immediate relative category to the first preference upon turning 21, but will instead remain an immediate relative, thus allowing the self-petitioner to adjust without waiting. Similarly, where an abused spouse of a USC who self-petitions and includes his or her minor child as a derivative beneficiary, the child will not only have the preVAWA 2005 benefit of not aging out of derivative eligibility, but in addition, under the CPSA, will not move from the immediate relative category to any preference category upon turning 21.

Tab Position 1

VAWA Manual March 2017

The CSPA’s age calculation for children of LPRs and for derivatives of VAWA self-petitioners are more complicated. In determining whether a beneficiary has aged out, the person’s age is considered to be the age as of the date the beneficiary’s priority date becomes current (or, for derivative beneficiaries, the age on which the beneficiary’s parent’s priority date becomes current), less the number of days that the petition was pending before adjudication. 36 In addition, to take advantage of Child Status Protection Act benefits, the beneficiary must “seek to acquire” LPR status within one year of the priority date becoming current. 37 Both USCIS and the Board of Immigration Appeals have given guidance on what the term “seeking to acquire status” means. According to the USCIS, it includes submitting an application for adjustment of status or an immigrant visa, as well as filing Form I-824, Application for Action on an Approved Application or Petition. 38 The BIA has determined that “sought to acquire” is broader than “filed” and may include acts other than filing an application. 39 Thus, an individual may satisfy the “sought to acquire” requirement by either filing an adjustment application or showing that there were extraordinary circumstances preventing filing within the one-year period. 40 However, merely contacting an attorney about initiating the process for obtaining a visa does not meet the requirement. 41 Example: In March 2008, Ernesto, the abused son of an LPR, filed an I-360 self-petition. At the time, Ernesto was 18 and fell under the family 2A preference category. USCIS approved the visa petition in November 2008, and the 2A priority date became current in

5-11

Chapter 5

www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/child_status_protection_act_fin al.pdf (American Immigration Council Feb. 2015); Charles Wheeler, AILA’s Focus on the Child Status Protection Act (2013). 35 INA § 201(f). 36 INA § 203(h). 37 Id. 38 Donald Neufield, “Revised Guidance for the Child Status Protection Act (CSPA)” (May 6, 2008), at 4, available at www.asistahelp.org/documents/resources/Revised_Guidance_for_the_Child_Stat_CF81A698F 5AC1.pdf. 39 In re Murillo, No. A99252007 , 2010 WL 5888675 (BIA 10.6/2010); In re Castillo-Bonilla, No. A98282359, 2008 WL 4146759 (BIA 8/20/2008); In re Kim, No. A77-828-503, 2004 WL 187298 (BIA 12/20/04). 40 Matter of O. Vazquez, 25 I&N Dec. 817, 821-822 (BIA 2012). 41 Id.

March 2010, when Ernesto was 21. Under the law as it existed prior to the CSPA, Ernesto had “aged out” and moved from the family 2A category to the family 2B category, with a resulting longer wait for his priority date to become current. Under the CSPA, however, Ernesto’s age for purposes of determining his preference category would be deemed to be his age on the date the priority date became current (21), minus the time USCIS took to adjudicate the I-360 petition (8 months), so that Ernesto’s “adjusted age” would be calculated to be 20. This allows him to remain under the family 2A preference category for purposes of determining when his priority date becomes current. In order to take advantage of this provision, however, Ernesto must “seek to acquire” the visa within one year of the priority date becoming current. Example: Now assume that Ernesto is not the principal self-petitioner, but is instead the son of Maria, the abused wife of an LPR. Maria files her self-petition in March 2008, when Ernesto is 18. The other dates given in the prior example remain the same. The calculation of Ernesto’s age for purpose of retaining derivative status works the same way as the calculation for retaining the 2A preference category. Thus, Ernesto remains a derivative beneficiary under Maria’s self-petition (and may use her priority date), even though his chronological age is over 21. He still must “seek to acquire” the visa within one year of the priority date becoming current, however. PRACTICE POINTER: Calculating Age under the CSPA When an I-130 Was Filed Earlier for the Self-Petitioner. As noted above, if the abuser files an I-130 for a self-petitioner, the priority date for a subsequently filed self-petition is that assigned to the I-130. Because the calculation of age under the CSPA depends on the date a visa petition was filed (an immediate relative’s age is frozen by the filing of the visa petition, and a 2A preference beneficiary’s age is calculated by using the amount of time it took USCIS to adjudicate the visa petition), a question arises as to which petition—the I-130 or the subsequent I-360—should be used to make this calculation. Using the I-130 as the operative petition will generally have a more favorable result for the beneficiary. The INA does not require the beneficiary to gain LPR status through the petition that freezes his or her age. 42 Thus, advocates can argue that the earlier petition should be used to calculate a child’s age. 43

Chapter 5

Example: Toula is the daughter of an abusive USC and is 24 years old. Her father filed a relative visa petition for her when she was 19, and USCIS approved it 20 months later. Toula did not adjust on the basis of that petition, however. Under a special provision in VAWA, she can self-petition up to the age of 25, if the abuse was one central reason for failing to self-petition before age 21. If Toula self-petitions now, at age 24, she will fall under the first family preference, unless her adjusted age under the CSPA would be 21. The advocate should argue that Toula’s age was “frozen” at the time her father filed the I-130 for her, at age 19, and thus she remains an immediate relative for purposes of the CSPA.

42 43

Charles Wheeler, AILA’s Focus on the Child Status Protection Act” (AILA 2014), at 99, 102-103. Id. 5-12

Tab Position 1

Immigrant Legal Resource Center March 2017

Example: Gwen is 20 and the daughter of an abusive LPR who filed an I-130 for her two years ago. It was approved 18 months later, and the 2A priority date will become current in approximately one year, after Gwen turns 21. Let’s assume that the Vermont Service Center will approve the self-petition in 6 months, and that Gwen will be 23 when her priority date becomes current. Under the CSPA, her adjusted age (age on date priority date becomes current less amount of time to adjudicate application) will be 22 using the I-360 as the operative petition. She will not age out of eligibility to adjust, but will move from the 2A to the 2B category, resulting in a longer wait for permanent residence. However, if the operative petition is the I-130 rather than the I-360, we can reduce Gwen’s age of 21 and some months by the 18 months INS took to adjudicate the I-130, making Gwen’s adjusted age under 21 and allowing her to remain in the 2A preference category.

Tab Position 1

VAWA Manual March 2017

For more information on the CSPA and its application in VAWA cases, see Charles Wheeler, AILA’s Focus on the Child Status Protection Act, Chapter 8: The CSPA and VAWA (www.aila.org, 2014). The Child Status Protection Act applies to visa petitions, applications for adjustment of status, and immigrant visa applications pending on August 6, 2002, the effective date of the act. 44 It also applies to visa petitions approved before August 6, 2002, if the beneficiary aged out on or after that date. For cases in which an adjustment of status or immigrant visa application was filed before August 6, 2002, the CSPA applies as long as there has been no final determination of the application before August 6, 2002. The BIA has indicated in an unpublished decision that an administrative denial of adjustment is not final for CSPA purposes if the applicant renews the application in removal proceedings. 45 If you represent a self-petitioner or derivative beneficiary who is about to turn 21 and whose priority date is current or will be current prior to the individual turning 21, and if you are not sure that your client will be protected under the Child Status Protection Act from changing to a lower preference category, consider requesting that the adjudication of the self-petition be expedited. As long as the individual’s priority date is current or will be current before the individual turns 21, the Vermont Service Center, local USCIS offices, and consular offices have been willing to work to adjudicate the case and issue the visa before the individual turns 21, to avoid the delay in obtaining a visa that would otherwise occur. However, expedited processing will not allow issuance of a visa prior to the priority date becoming current. To request expedited processing of a self-petition or application for adjustment of status, send a cover letter with the self-petition or application for adjustment, explaining the need for expedited processing, and also mark the self-petition or application itself in red with the words “Expedited processing requested.” The letter can also be sent after the self-petition or application has been submitted. For self-petitions, you may also wish to call the Vermont Service Center hotline and alert the Center to the request for expedited processing. The Vermont Service Center may be able to notify the local USCIS office directly when the self-petition has been approved. We

45

Child Status Protection Act, § 6. In re Ki Na Kim, No. A78-706-954 (BIA 6/7/2006). 5-13

Chapter 5

44

recommend that you also follow up with the local USCIS office that will adjudicate the adjustment application. Despite the age calculation provisions of the CSPA, some individuals will age out. For individuals aging out of the 2A preference category, the CSPA provides an alternate benefit, under which the beneficiary retains the priority date of the principal beneficiary and the beneficiary’s status is automatically converted to the appropriate category without the need to file a new visa petition. 46 This alternate benefit is available, however, only to sons and daughters of LPRs and not to derivative beneficiaries in the other family preferences, the employment preferences, or the diversity preferences. 47 This alternative benefit is not likely to affect VAWA self-petitioners and their derivatives, however, since, as described at the beginning of this section. VAWA contains specific provisions for conversion of status for aged-out beneficiaries. § 5.6

Where to File the Adjustment Application for Self-Petitioners Who Have Never Been in Removal Proceedings

VAWA applications for adjustment of status are filed with the USCIS Vermont Service Center, unless the applicant is in removal proceedings. (We will discuss filing adjustment applications for persons in removal proceedings in the next subsection.) VAWA self-petitioners who are immediate relatives or who have a current priority date, sometimes based upon an earlier-filed I-130, are immediately eligible to adjust status and may file their adjustment applications together with the I-360 self-petition to the Vermont Service Center. Self-petitioners whose priority dates are not yet current also file their adjustment applications with the Vermont Service Center, but cannot do so until their priority date becomes current or, where USCIS has authorized use of the Visa Bulletin’s “Filing Date Chart,” until they have a current filing date. The Vermont Service Center will adjudicate any fee waiver request filed with the applications and, following adjudication of the self-petition, will forward the adjustment application to the National Benefits Center, which will schedule interviews and forward the file to the local USCIS district in which the self-petitioner resides. The mailing address for the Vermont Service Center is: USCIS Vermont Service Center Attn: CRU 75 South Welden Street St. Albans, Vermont 05479-0001 PRACTICE POINTER: Filing the VAWA Adjustment of Status Application. Although I-485 adjustment applications are filed with the Vermont Service Center, either together with the I-360 self-petition or later, the VSC does not actually adjudicate the I-485s. Instead, the VSC forwards the I-485s to the National Benefits Center (NBC), which conducts name and fingerprint checks CSPA § 3, codified at INA §203(h)(3). Scialabba v. Cuellar de Osorio, __ U.S. ___, 134 S. Ct. 2191 (2014). See also Lourdes Martinez, “The Child Status Protection Act (CSPA) & Derivative Beneficiaries Recapturing Priority Dates after Scialabba: Practice Advisory,” (ILRC Oct. 2014), supra n. 34.

46

Chapter 5

47

5-14

Tab Position 1

Immigrant Legal Resource Center March 2017

and issues RFEs (Requests for Evidence) as needed, then distributes the application to the district office for the applicant’s place of residence. The applicant may be required to attend a USCIS interview at that district office. § 5.7

Tab Position 1

VAWA Manual March 2017

Adjustment Applications for Self-Petitioners in Removal Proceedings

Persons who are currently in removal proceedings or who have a final order of removal, deportation, or exclusion that has not been effected by a departure from the United States may apply for adjustment of status only as a form of relief in the removal, deportation, or exclusion proceedings. 48 In the case of a prior order, the applicant must file a motion to reopen the proceedings before the immigration court in order to apply for adjustment. However, because only USCIS has jurisdiction over the underlying I-360 VAWA self-petition, the adjustment application cannot be filed with the immigration court until USCIS approves the I-360. We address removal proceedings and relief from removal in Chapter 10 of this manual. In general, however, applications for adjustment of status filed before the immigration judge contain the same documents and are assembled in the same way as applications for adjustment filed before USCIS. As we will see in Chapter 10, however, there are some special rules for filing applications for relief from removal, including motions to reopen and adjustment applications, and advocates should be careful to check the Immigration Court Practice Manual and any local rules for any special instructions. PRACTICE POINTER: Treatment of Statutory Bars to Relief under VAWA. The Immigration and Nationality Act (INA) contains certain bars to specified forms of immigration relief, including adjustment of status. The three principal types of bars under current law are (1) ineligibility for relief for a specified period of time for having overstayed a grant of voluntary departure, 49 (2) ineligibility for ten years for having been removed in absentia, 50 and (3) being subject to reinstatement. 51 Congress provided some measure of relief from these bars for VAWA self-petitioners in VAWA 2005. While a detailed discussion of these bars is beyond the scope of this chapter, we provide the following summary. Relief for Overstaying Voluntary Departure: In general, persons who fail to timely depart under an order of voluntary departure are ineligible for ten years for certain forms of relief, including adjustment of status and cancellation of removal, and may also incur civil penalties. 52 Applicants for VAWA adjustment and VAWA cancellation of removal or suspension of deportation, however, will not incur the bar on relief and civil penalties for failure to timely depart, if the abuse they suffered was at least one central reason for the overstay. 53

8 CFR § 245.2(a). INA § 240B(d). 50 INA § 240(b)(7). 51 INA § 241(a)(5). 52 INA § 240B(d)(1). 53 VAWA 2005, § 812, adding INA § 240B(d)(2). 48 49

Chapter 5

5-15

Even where the individual cannot show a connection between the failure to voluntary depart and the abuse, the individual may be able to successfully argue that he or she is not subject to the voluntary departure overstay bar. This could occur, for example, if certain required notices were not given at the time voluntary departure was granted. 54 Moreover, the period of ineligibility is ten years; persons applying for relief more than ten years after their failure to voluntarily depart should no longer be subject to the bar, even if they have never left the United States. The BIA has also determined that, although it had no authority to apply a general equitable exception to the penalty for failure to depart voluntarily, a respondent has not voluntarily failed to depart the United States when, through no fault of her own, she was unaware of the voluntary departure order or was physically unable to depart within the time granted. 55 The American Immigration Council has produced two highly-recommended practice advisories on voluntary departure: (1) www.americanimmigrationcouncil.org/practice_advisory/voluntary-departure-automatictermination-and-harsh-consequences-failing-depart and (2) www.legalactioncenter.org/practiceadvisory-topics. If the individual’s grant of voluntary departure has not yet expired, the Supreme Court has determined that, in order to protect the statutory right to file one motion to reopen, the individual must be permitted to withdraw the request for voluntary departure. 56 Relief for In Absentia Removal Orders: Persons who fail to appear for removal proceedings after receiving required notices may be ordered removed in absentia. 57 A further consequence of an in absentia removal order is that the individual is ineligible for certain forms of relief, including adjustment of status and cancellation of removal, for ten years after the date of the final order of removal, unless he or she can show that failure to appear was because of exceptional circumstances. 58 The INA provides for rescission of in absentia orders upon a motion to reopen filed within 180 days and showing that the failure to appear was due to exceptional circumstances, 59 or through a motion to reopen filed at any time, if the individual shows that he or she did not receive notice or was in federal or state custody and the failure to appear was not through his or her fault. 60 The American Immigration Council also provides very helpful practice advisories on in absentia removal, at www.americanimmigrationcouncil.org/practice_advisory/rescinding-absentia-order-removal. VAWA 2005 defines the term “exceptional circumstances” for purposes of a motion to reopen in absentia orders and for the purpose of eligibility for relief after an in absentia order. Under that definition, “exceptional circumstances” include battery or extreme cruelty to the immigrant or any child or parent of the immigrant, as well as serious illness of the immigrant. 61 This

INA § 240B(d)(3). Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007). 56 Dada v. Mukasey, 554 U.S. 1, 19021 (2008). 57 INA § 240(b)(5). 58 INA § 240(b)(7), 59 INA § 240(b)(5)(C)(i). 60 INA § 240(b)(5)(C)(ii). 61 INA § 240(e)(1). 54

Chapter 5

55

5-16

Tab Position 1

Immigrant Legal Resource Center March 2017

amendment specifically applies to failure to appear occurring before, on, or after the VAWA 2005 enactment date of January 5, 2006. 62 Reinstatement of Removal: Under INA § 241(a)(5), there are two consequences for entering the United States unlawfully after a final order of removal, deportation, or exclusion. First, the old removal order may be reinstated. Second, the individual is not eligible for and may not apply to the immigration judge for any relief under the INA, with certain limited exceptions.

Tab Position 1

VAWA Manual March 2017

While VAWA 2005 did not specifically address reinstatement for VAWA self-petitioners, it did encourage the Department of Homeland Security to grant advance permission to reapply on Form I-212 to VAWA self-petitioners and applicants for VAWA cancellation or suspension. 63 We discuss reinstatement and defenses to it for VAWA self-petitioners in more detail in Chapter 10, § 10.5 of this manual. § 5.8

Adjustment of Status for Derivative Beneficiaries

VAWA self-petitioners may include their derivative beneficiaries in the self-petition. For selfpetitioners in both the immediate relative and second family preference categories, derivative beneficiaries include unmarried children under 21, 64 as well as children who turn 21 after the selfpetition was filed. 65 Under special VAWA provisions, derivative children of VAWA self-petitioners do not lose their eligibility to obtain permanent residence when they turn 21, as long as the self-petition was filed before they turned 21. Instead, their status is automatically converted from derivative into a visa petition principal beneficiary in the first, second, or third family-based preference categories, and they can apply for residence once there is an immigrant visa immediately available in the appropriate category. 66 The self-petitioner does not need to file a separate I-130 or I-360 for these derivative beneficiaries. 67 Instead, each derivative beneficiary files a separate I-485 and supporting documents. VAWA 2005 clarifies that derivatives of VAWA self-petitioners are considered VAWA selfpetitioners themselves upon turning 21. 68 Among other things, this means that VAWA derivatives may adjust status regardless of whether the principal VAWA self-petitioner ever adjusts. Moreover, derivative children who turn 21 adjust status under the regular adjustment provisions

VAWA 2005, § 813(a). VAWA 2005, § 813(b). 64 INA §§ 204(a)(1)(A)(iii) [spouses of USCs], (iv) [children of USCs], (B)(ii) [spouses of LPRs], (iii) [children of LPRs]. Note that the children of self-petitioning spouses of USCs may immigrate as derivative beneficiaries of their self-petitioning parents, even though the spouses and children of immediate relatives immigrating under the normal family cannot immigrate derivatively. 65 INA § 204(a)(1)(D)(i)(III). 66 INA § 204(a)(1)(D)(i)(I & III). 67 Id. 68 VAWA 2005, § 805(a), amending INA § 204(a)(1)(D). 62 63

Chapter 5

5-17

of INA § 245(a) as VAWA self-petitioners. 69 They are also eligible for deferred action status and employment authorization while waiting for an immigrant visa. 70 As noted in § 5.5 of this chapter, derivative beneficiaries may also benefit from the Child Status Protection Act. § 5.9

Applying for Adjustment of Status

The application for adjustment of status is made on Form I-485. See Appendix 5-D for a sample Form I-485. Refer to the USCIS website at www.uscis.gov to ensure that you are using a current or acceptable edition of the form. Completing the Form I-485 Note: It is a good idea to refer to Form I-485 when reading this section on completing the form. Part 1: Information about You (the Applicant) The VAWA self-petitioner or derivative becomes the applicant on an I-485 application. Part 1 requires background information on the applicant, including name, address, date, and country of birth, and social security and alien registration numbers (A-numbers). Include only social security numbers obtained lawfully by the petitioner from the Social Security Administration, not fictitious or “borrowed” ones. The A-number, or alien registration number, refers to the number assigned to LPRs, persons placed into removal proceedings (or prior deportation or exclusion proceedings), and persons who have otherwise come to the attention of the immigration authorities, such as through the filing of a VAWA self-petition, DACA or asylum application or an application for an employment authorization document based on another immigration status, for example. Refer to the I-360 approval notice or other documents from the Vermont Service Center, which should note the Anumber assigned to the self-petitioner. The A-number consists of the letter A, followed by eight or nine numbers. If the A-number is an older one, with only eight numbers, USCIS has instructed that a “0” (zero) should be added at the beginning, so that the number has nine digits. As with the VAWA self-petition on Form I-360, the applicant may choose to use a “safe” address on Form I-485.

Chapter 5

In answering “date of last arrival,” refer to the applicant’s I-94 entry document, if any. Since mid2013, the I-94 has been automated, and may be retrieved at https://i94.cbp.dhs.gov/I94/#/home/. Otherwise, enter the date the applicant entered the United States, either legally or illegally. If the applicant has an I-94, enter the I-94 number. Otherwise, put “none.” If the applicant entered the United States legally and is in current nonimmigrant status, enter the nonimmigrant classification in response to the request for “current USCIS status.” If the applicant entered legally, but has overstayed his or her authorized stay, note that, for example, “B-2 overstay.” If the applicant was paroled into the country pursuant to INA § 212(d)(5), enter that information. If the applicant

69 70

Id. INA § 204(a)(1)(D)(i)(II) & (IV). 5-18

Tab Position 1

Immigrant Legal Resource Center March 2017

entered the country without inspection and admission, write “entered without inspection” or “EWI.” PRACTICE POINTER: EWIs and INA § 212(a)(6)(A). The questions on Form I-485 raise the question of the inadmissibility ground of being present without authorization or parole under INA § 212(a)(6)(A). Prior to April 2008, this inadmissibility ground was a critical concern for VAWA self-petitioners. Even though they were exempt from the “inspection and admission or parole” requirement for adjustment under INA § 245(a), many self-petitioners could not overcome the INA § 212(a)(6)(A) inadmissibility ground. In a welcome resolution to this problem, USCIS issued a memorandum on April 11, 2008, stating that USCIS interprets the INA § 245(a) exemption of VAWA self-petitioners from the inspection and admission or parole requirement as effectively waiving inadmissibility under INA § 212(a)(6)(A) for beneficiaries of VAWA selfpetitions. 71 That memorandum is attached as Appendix 5-C to this chapter. We discuss the INA § 212(a)(6)(A) inadmissibility ground in more detail in Chapter 6 at § 6.22 of this manual.

Tab Position 1

VAWA Manual March 2017

Part 2: Application Type For principal VAWA self-petitioners who are applicants, check box “a” for persons seeking adjustment based on an I-360 self-petition. Check box “b” if the applicant is a derivative beneficiary who will be deriving status through the adjustment of a self-petitioning parent. Part 3: Processing Information Section A of Part 3 requires further biographical information relating to the applicant and the applicant’s family members. Enter the applicant’s precise place of birth, current occupation (if any), and mother’s and father’s first names. The parents’ names should match those on the applicant’s birth certificate. Enter the name of the applicant as it appears on the I-94; if no I-94 was issued, enter “none.” Enter the place of last admission, which should be recorded on the I-94. If the applicant entered illegally, put the approximate place of entry, such as “near El Paso.” Indicate whether the applicant was inspected and, if so, his or her status at last admission. If the applicant entered with a nonimmigrant visa, enter the visa number appearing on the visa in the applicant’s passport. This is not the same as the serial number placed on the I-94 form. Indicate the U.S. consulate that issued the visa and the date of issuance, both of which will appear on the visa. Enter the applicant’s gender and marital status. “Single” means never married. If the applicant was previously married, indicate “widowed” or “divorced.” If the applicant has ever applied for permanent resident status and been granted it, give the date and place of filing. The applicant might have once been an LPR and abandoned that status or been deported. If the applicant once applied but was denied LPR status, provide the date and place of filing. Section B of Part 3 asks for the name, date, and country of birth, and A-number of the applicant’s spouse and children, regardless of age and whether they are married. Indicate whether the applicant’s children will apply for adjustment concurrently with the applicant. Remember to list

5-19

Chapter 5

Michael L. Aytes, Assoc. Dir. Dom. Opers., USCIS, Re: “Adjustment of status for VAWA self-petitioner who is present without inspection,” April 11, 2008, at 2. 71

all of the applicant’s children, whether they are biological, adopted, step-, legitimate, or illegitimate children and whether they are living abroad or in the United States. In Section C of Part 3, list all present and past memberships in any organization since the applicant turned 16 years of age. This includes all clubs, associations, political and non-political organizations, church memberships, and military service. List the name, location, and nature of the organization, as well as the applicant’s dates of membership. Membership in a Communist or anarchist organization will raise the issue of inadmissibility under INA § 212(a)(3)(D). In such a case, the applicant’s membership should be examined closely to see whether it falls under any of the exceptions to or waivers of inadmissibility included at INA § 212(a)(3)(D). Membership in certain other organizations could give rise to a concern about participation in or material support to terrorism, and the inadmissibility ground under INA § 212(a)(3)(B). The questions in Section C of Part 3 are aimed at determining whether any ground of inadmissibility might apply to the applicant. Answering in the affirmative does not necessarily mean that the applicant is inadmissible, but it will require further explanation. If the explanation is short, it can be made on Form I-485 itself. Longer explanations must be made on a separate sheet of paper and attached to Form I-485. Remember that there are certain exceptions to certain grounds of inadmissibility for VAWA applicants, and, even if there is no exception and the individual is inadmissible, there may be a waiver of the inadmissibility ground for which he or she can apply. There are a number of special waivers for VAWA self-petitioners. Inadmissibility grounds and waivers are covered in Chapters 6 and 7. Question number 1 asks whether the applicant has ever knowingly committed any crime of moral turpitude or a drug-related offense for which he or she was not arrested, whether he or she has ever been arrested, cited, charged, indicted, fined, or imprisoned for violation of any law or ordinance, excluding traffic violations, or has been granted a pardon, clemency, or diplomatic immunity for a crime. These questions raise the issue of inadmissibility under the criminal inadmissibility grounds. 72 List all arrests and violations of any law or ordinance (excluding traffic violations). The arrest must be stated, even if the charges were dismissed, the conviction was expunged or vacated, or the individual was a juvenile at the time. However, no one should say “yes” to knowingly committing any crime of moral turpitude or a drug-related offense for which he or she was not arrested, as stating “yes” requires a knowing and intelligent formal admission to each and every element of the offense in question.

Chapter 5

Convictions of certain crimes involving theft, fraud, drugs, prostitution, or violence may make the applicant inadmissible, and a criminal record must be carefully analyzed to determine whether it supports a criminal inadmissibility ground. Even if the applicant is inadmissible under a criminal ground, remember that there are both general and VAWA-specific waivers for criminal inadmissibility grounds, except for most drug offenses. 73 See Chapters 6 and 7 of this manual for further information on the criminal inadmissibility grounds and possible waivers of those grounds.

72 73

INA § 212(a)(2). INA § 212(h). 5-20

Tab Position 1

Immigrant Legal Resource Center March 2017

Question number 2 asks for information regarding past or potential receipt of public assistance from any source, including federal, state, city, and county agencies. The public charge ground of inadmissibility under INA § 212(a)(4) does not apply to VAWA self-petitioners. 74 However, the questions should still be answered. List only benefits received by the applicant himself or herself. You do not have to indicate benefits received by the applicant’s household members. Indicate on a separate piece of paper what benefits were received and explain the reasons for their receipt.

Tab Position 1

VAWA Manual March 2017

Question number 8 asks whether the applicant has ever been excluded, deported, or removed from the United States and whether the applicant is currently in removal, exclusion, or deportation proceedings. Applicants who have received a final order of deportation, exclusion, or removal that was executed by their subsequent departure from the United States are inadmissible to the United States for a certain period of time (five years for orders issued upon the immigrant’s arrival, ten years for deportation, exclusion, or removal orders) 75 and must request advance permission if they wish to reapply for admission prior to expiration of that time period. This permission is requested on Form I-212, covered in more detail in Chapter 7. A second result of being in removal proceedings or having a prior order is that this determines the self-petitioner’s forum for applying for adjustment. As mentioned earlier in this chapter, VAWA self-petitioners who are currently in proceedings must apply for adjustment before the immigration court. Similarly, VAWA self-petitioners who have received a final order of deportation, exclusion, or removal that has not been executed by the individual’s departing the United States will need to file a motion to reopen the proceedings. We discuss relief in removal proceedings in Chapter 10 of this manual. Question number 9 asks if the applicant has received a final order for violating civil document fraud pursuant to INA § 274C. This raises the issue of inadmissibility under INA § 212(a)(6)(F), but a person is not inadmissibility under this ground unless there exists a civil court order finding the person committed document fraud. There are waivers of this inadmissibility ground available for certain applicants. 76 Question 9 also asks whether the applicant, “by fraud or willful misrepresentation of a material fact, ever sought to procure, or procured, a visa, other documentation, entry into the United States, or any other immigration benefit.” This alludes to the fraud ground of inadmissibility under INA § 212(a)(6)(C)(i). The question covers applicants who misrepresented a material fact to a consular official or immigration agent. A “material fact” is one that would have made the applicant inadmissible if he or she had told the truth or that kept the official from learning information that might have led to a determination of inadmissibility. 77 The question also covers use of false documents at the time of admission, application for a visa, or application for any other immigration benefit. It does not cover false statements or documents used to obtain a job, since the statements are not being made to a government official, though it might apply to false statements made on an I-9 form for employment purposes. The INA provides both a general waiver and a special waiver for VAWA self-petitioners of the INA § 212(a)(6)(C)(i) INA § 212(a)(4)(C)(i)(III). INA § 212(a)(9)(A). 76 INA § 212(d)(12). 77 Matter of S & BC, 9 I&N Dec. 436 (BIA 1960); Kungys v. INS, 485 U.S. 759 (1988). 74 75

Chapter 5

5-21

inadmissibility ground, 78 discussed in Chapters 6 and 7. As noted in those chapters, however, there is only a very limited waiver for the INA § 212(a)(6)(C)(ii) inadmissibility ground of false claims to U.S. citizenship. Part 4: Accommodations for Individuals with Disabilities and/or Impairments Part 4 of Form I-485 asks for information about the applicant’s physical or other disabilities that might require an accommodation. Part 5: Signature The applicant must sign the I-485. Part 5 contains two particular notices. Under the first of these, the applicant acknowledges that he must register with USCIS and provide notice of any changes in address. The second applies to males between 18 and 26 years of age. By signing it, the applicant acknowledges that fling he applicant authorizes USCIS to provide registration information to the Selective Service. Part 5 contains two signature options. The first is for persons who speak English. The second is for persons to whom the form has been translated into another language. Under the second option, the interpreter must also sign. Part 6: Preparer’s Signature Anyone who assists in preparing the I-485, whether or not a separate G-28 (Notice of Appearance as Representative) is filed, should also sign the application at the end of the form. If you are an attorney or accredited representative, you should sign the form. If you are not, but work for an agency that has attorneys or accredited representatives on staff, one of them should sign the form after reviewing it. § 5.10 The Contents of the Adjustment Application Packet The complete adjustment packet for a VAWA self-petitioner and each derivative is made up of the documents listed below. Remember that for persons applying for adjustment as a form of relief from removal, there are special procedures for filing the application. These special provisions are addressed in Chapter 10 of this manual. 1. Index of the contents of the packet; 2. Counsel’s Form G-28, if applying before USCIS, or Form EOIR 28, if applying before the immigration judge; 3. Form I-485, adjustment application (make sure to consult the USCIS forms page on their website at www.uscis.gov to ensure you are using a currently acceptable version of the form);

Chapter 5

4. Adjustment application fee. As of this writing, the application fee is $1,140 ($750 for persons 13 or younger who are filing with the application of at least one parent) or request for fee waiver on Form I-912;

78

INA § 212(i). 5-22

Tab Position 1

Immigrant Legal Resource Center March 2017

5. Form G-325A, biographic information form (not required for persons under 14) [see sample G-325A form at Appendix 5-E]; 6. Biometrics fee of $85.00 or a fee waiver request. Any fee waiver request may include a request to waive fees for both the I-485 and biometrics. Biometrics are required for persons between the ages of 14 and 79. USCIS will send the petitioner a notice to appear for a biometrics appointment;

Tab Position 1

VAWA Manual March 2017

7. Two passport-style photographs, taken within the 30 previous days; 8. Either the I-360 application (for a one-step application) with all supporting documents, or a notice of approval of the I-360—if the applicant is a derivative a copy of either document referencing the principal; 9. Form I-693, medical examination report by USCIS-approved civil surgeon (including a vaccination report on USCIS vaccination report form)—though the current procedure recommended by USCIS at this writing is to wait to obtain the medical examination until receipt of the adjustment interview notice, and bring this document in its sealed envelope to the adjustment interview; 10. Copy of passport, with page bearing non-immigrant visa, if any, and Form I-94 (entrydeparture form), if any; 11. Copy of birth certificate, with translation; 12. Form I-864W, Intending Immigrant’s Affidavit of Support Exemption. See Appendix 5-F; § 804 of VAWA 2013 specifically exempts approved VAWA self-petitioners from the public charge grounds of inadmissibility; nevertheless Form I-864W should still be filed to show the self-petitioner’s exemption from the affidavit of support requirement; 13. For derivatives, copies of evidence of the appropriate family relationship to the principal VAWA self-petitioner, with translation; 14. If the applicant falls under a waivable ground of inadmissibility, Form I-212, Application for Permission to Reapply for Admission to the United States, or I-601, Application for Waiver of Grounds of Excludability, with supporting documents and fee ($930 as of this writing) or request for fee waiver; 15. If employment authorization has not already been granted by the Vermont Service Center, Form I-765, Application for Employment Authorization (no additional fee required). 16. Form I-131 request for advance parole, which will then be included as part of the Employment Authorization Document and allows for travel while the adjustment application is pending (no additional fee required). However, travel may or may not be advisable for a particular client due to prior or current removal, deportation, or exclusion proceedings.

5-23

Chapter 5

Three USCIS central filing locations, known as “lockboxes,” have instituted a process for advising applicants that USCIS has accepted the application. To initiate this optional process, the applicant must include Form G-1145, E-Notification of Application/Petition Acceptance, with the

application. A copy of this form is included as Appendix 5-H. The Vermont Service Center does not appear to have this e-mail notification system as of this writing, however. If the applicant’s derivative children are not in the United States and applying with the applicant, the applicant may file Form I-824, Applicant for Action on an Approved Application or Petition, with the adjustment application. When the I-485 is approved, the Vermont Service Center will send the Form I-824 to the National Visa Center for consular processing. 79 If the applicant must travel while the adjustment is pending but before it is granted, the applicant should file Form I-131, Application for Advance Parole. There is no additional fee for the Application for Advance Parole for adjustment applicants while the I-485 is still pending. If the applicant departs the United States while the adjustment application is pending and has not obtained advance parole, the adjustment application will be deemed abandoned. Prior to 2012, leaving the United States, even under advance parole, would trigger the unlawful presence inadmissibility grounds. However, the BIA has now determined that a temporary departure from the United States pursuant to a grant of advance parole does not constitute a departure within the meaning of the unlawful presence inadmissibility grounds and thus does not trigger those grounds. 80 Nonetheless, advocates should review clients’ cases carefully before they depart under advance parole for any other inadmissibility grounds that might be triggered by departure or might arise upon seeking re-admission to the United States. See Chapters 6 and 7 for more information on the unlawful presence inadmissibility grounds and possible waivers. As noted above, derivative beneficiaries must present documents establishing the derivative relationship. Where the derivative relationship is through the mother, the derivative’s birth certificate will normally establish the relationship. If the derivative relationship is through the father, however, additional documents must be presented to establish that the derivative meets the definition of “child” found at INA § 101(b). These documents will normally include the parents’ marriage certificate, if the derivative was born in wedlock, or, if the derivative was born out of wedlock, evidence that the father legitimated the derivative before the derivative’s 18th birthday or that there was a bona-fide parent-child relationship between the father and the derivative. 81 PRACTICE TIP: Notating Application to Ensure Forwarding to VAWA Unit. To ensure that the adjustment application is properly routed to the VAWA Unit of the Vermont Service Center, an immediate relative self-petitioner who files Form I-485 with the VAWA self-petition should write in large red letters on the application: “VAWA Adjustment Application.” Similarly, on the Form I-765 application for employment authorization, write in large red letters the regulation under which the application is submitted (8 CFR § 274a.12(c)(9)) and words to this effect: “VAWA adjustment: applicant immediately eligible for employment authorization.” If this is not done, the application may be mistakenly routed to an incorrect unit at the Vermont Service Center, resulting in long delays in adjudication.

“Notes and Practice Pointers from USCIS VAWA, U, and T Stakeholder Events 2016,” at www.ilrc.org/sites/default/files/resources/2016_uscis_practice_pointers_final_5.pdf, at 25. 80 Matter of Arrabally and Yerrabelly, 25 I N Dec. 771 (BIA 2012). 81 INA § 101(b)(1)(C) and (D).

Chapter 5

79

5-24

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 5.11 Filing Fees and Requests for Fee Waivers for Adjustment Applications Filed with USCIS As of this writing, the filing fees for adjustment and related applications are those listed above. Because USCIS fees change from time to time, advocates should check the USCIS’ on-line schedule of fees. 82

Tab Position 1

VAWA Manual March 2017

Waivers of fees for VAWA adjustment applications, biometrics, employment authorization petitions, and applications for advance permission to reapply and for waivers of inadmissibility are available for those who are unable to pay. 83 Applications for fee waivers are filed on Form I912. A copy of this form is included as Appendix 5-B. The form asks detailed questions about the applicant’s income, assets, and expenses. The applicant should attach documentation of his financial status, including income tax returns, W-2 forms or wage statements, proof of disability, rent receipts, and other evidence of living arrangements, expenses, and medical and other expenditures. In the alternative to the I-912, an income and expense statement with a short declaration is also usually sufficient for fee waivers requested at the VSC for VAWA applicants. For applicants in removal proceedings who must file their applications for adjustment before the immigration judge, there are special filing provisions, including provisions for fee waivers, which we address in Chapter 10. § 5.12 USCIS Interview Process After the adjustment application is filed, USCIS will send the applicant a notice to appear at an Application Support Center to have his or her biometrics (fingerprints) taken. USCIS will also schedule an adjustment interview. From time to time, USCIS delays in scheduling adjustment interviews has resulted in the need to update certain information, especially medical exams. For this reason, the current USCIS policy is to recommend the medical exam not be filed with the adjustment package, but rather on the date of the adjustment interview directly with the USCIS district office. Before filing the adjustment application, the advocate should check with the local USCIS district office to see whether there are any special filing instructions. In the past, USCIS issued statements extending the validity of medical examinations, due to backlogs in cases. However, USCIS announced that, beginning June 1, 2014, applicants must submit Form I-693 to USCIS within one year of the medical examination. Form I-693 is then valid for one year from the date it is submitted to USCIS. 84 The form may be submitted by mail with the I-485 filing, by mail after the I-485 filing, or in person at the interview. In general, it is advisable to schedule the medical examination as close as possible to the interview to ensure it will still be valid.

The list of forms and applicable filing fees is found on the USCIS website, at www.uscis.gov. 8 CFR §§ 3.8(C) [waiver of fees by the BIA], 3.24 [waiver of fees by the immigration judge], 103.7(c) [waiver of fees by USCIS]. 84 Available at www.uscis.gov/news/alerts/uscis-issues-new-policy-form-i-693-report-medicalexamination-and-vaccination-record. 82 83

Chapter 5

5-25

At the interview, the USCIS officer will go over the information on the application to confirm that it is accurate. The officer will usually concentrate on the applicant’s admissibility. The applicant should bring the originals of any documents submitted. For helpful materials to prepare your client for her VAWA adjustment interview, sample questions and checklists are included in Appendix 5-I. The examiner should not review the merits of the I-360 self-petition. The legacy INS and USCIS issued guidance 85 for cases in which a local immigration officer receives new information, not available to the Vermont Service Center at the time the self-petition was approved, that leads the officer to reasonably believe that a self-petition approval should be revoked. In such a case, the officer must write a memorandum to his or her local Supervisory District Adjudications Officer. If that officer concurs, he or she must sign the memorandum and forward it to the Vermont Service Center’s VAWA Unit. A VAWA Unit supervisor will review the memorandum and file, make a decision whether to institute revocation proceedings or to reaffirm the self-petition, and notify the district office accordingly. Equally importantly, the guidance emphasizes the provisions of IIRIRA § 384 [8 USC § 1367]. 8 USC § 1367 contains two major requirements for protection of information concerning abused immigrants. First, immigration authorities 86 may not permit information pertaining to a beneficiary of a VAWA self-petition, application for VAWA cancellation, or application for T or U visa to be used by or disclosed to anyone other than sworn department, bureau, or agency officers or employees and then only for legitimate department, bureau, or agency purposes. Second, immigration authorities may not make an adverse determination of admissibility or deportability regarding an immigrant using information furnished solely by certain individuals, unless the immigrant has been convicted of a crime listed in the criminal inadmissibility or deportation grounds. The specified individuals are abusive spouses and parents and members of the spouse’s or parent’s family who reside in the same household as the immigrant and have abused the immigrant or the immigrant’s child, and the perpetrator of crime or trafficking against a U or T visa applicant, a certified victim of trafficking in persons, an applicant for VAWA suspension or cancellation, or a VAWA self-petitioner.

Williams, Executive Associate Commissioner, Office of Field Operations, INS Mem. HQADN/70/9, Aug. 5, 2002, Subject: Revocation of VAWA-Based Self-Petitions (I-360s) [reprinted at 79 Interpreter Releases 1208 (August 12, 2002); USCIS Policy Memorandum 602-0022, subject: Revocation of VAWABased Self-Petitions (Forms I-360); AFM Update AD10-49 (December 15, 2010). This memorandum is attached as Appendix 5-A to this chapter. 86 Section 1367’s requirements are imposed specifically on the Attorney General and officials and employees of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, and officials and employees of the Department of Homeland Security or Department of State, including their agencies or bureaus. 8 USC § 1367(a).

Chapter 5

85

5-26

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 5.13 If USCIS Denies Adjustment of Status There is no appeal from USCIS’ denial of an application for adjustment of status. 87 However, applicants other than arriving immigrants may renew their applications for adjustment in removal proceedings as a form of relief from removal. 88

Tab Position 1

VAWA Manual March 2017

VAWA self-petitioners who are not eligible to adjust status in the United States may be able to obtain permanent resident status through consular processing, discussed in Chapter 8. § 5.14 Special Cases: Adjustment for Abused Spouses and Children of Principal Applicants under CAA, HRIFA, and NACARA In recent years, Congress has enacted several pieces of legislation providing special adjustment procedures for nationals of specific countries. These include the Nicaraguan and Central American Relief Act (NACARA), 89 the Haitian Refugee Immigrant Fairness Act (HRIFA), 90 and the Cuban Adjustment Act of 1966 (CAA). 91 In VAWA 2005, Congress recognized that abused spouses and children of principal applicants for relief under § 202 of NACARA, HRIFA, and CAA may incur the same problems as abused spouses and children of LPRs and USCs, that is, they may be forced to decide whether to remain in an abusive situation in order to obtain immigration benefits or to leave and seek safety. Earlier statutes provided remedies for these abused spouses and children, and VAWA 2005 expanded those remedies. These provisions are quite complex and have been subject to a number of amendments. The following gives a summary of relief under the CAA, HRIFA, and NACARA, and some suggestions for sources of further information. Relief for Abused Spouses and Children under the Cuban Adjustment Act of 1966 (CAA) Under the CAA, Cuban nationals who have been admitted or paroled into the United States and have been physically present for one year may apply to adjust status to permanent resident, although adjustment of the abused spouse or child cannot precede that of the qualifying Cuban principal. 92 The statute also provides for the adjustment of status of derivative spouses and children of principal applicants. VAWA 2000 provided that derivative spouses and children may adjust status without demonstrating current residence with the principal applicant, where the derivative has been battered or subjected to extreme cruelty by the principal applicant. 93 These amendments were effective as if included in the original VAWA 1994. VAWA 2005 provided that a spouse of a 8 CFR § 245.2(a)(5)(ii). Id. 89 Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1995), as amended by Pub. L. No. 105-139, 111 Stat. 2644 (Dec. 2, 1997); 8 CFR §§ 240.60–240.70. 90 Pub. L. No. 105-277, 112 Stat. 2681 (1998). 91 Pub. L. 89-732 (1966), 8 USC 1255 note. 92 USCIS, Policy Memorandum 602-0110, “VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children” (July 29, 2016), available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/2016-0729-PM-602-0110-VAWAAmendments-CAA.pdf, at 3. 93 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, § 1509. 87 88

Chapter 5

5-27

Cuban eligible for relief under the Cuban Adjustment Act will continue to be treated as a spouse for two years after the Cuban principal’s death, if the applicant lived with the principal, or for two years after the later of termination of the marriage, if there is a connection between the termination of the marriage and the abuse and the applicant lived with the Cuban principal. This amendment takes effect as if included in the enactment of VAWA 2000. 94 There is no deadline for applications for adjustment under the CAA. The “any credible evidence” standard and the VAWA confidentiality provisions apply to adjustment by abused spouses and children under the CAA. 95 Relief for Abused Family Members under the Haitian Refugee Immigrant Fairness Act (HRIFA) Under HRIFA, Haitian nationals who had been present in the United States since on or before December 31, 1995, could adjust status to permanent residence if they were otherwise inadmissible and met certain other requirements. The application deadline for principal applicants was March 31, 2000 (with an extended period until June 19, 2001, to reopen based on changes in the LIFE Act Amendments of 2000). 96 The statute also allowed adjustment of derivative spouses, children, and sons and daughters, provided they met certain requirements, including presence since December 1, 1995. There is no deadline for applications by these derivatives. VAWA 2000 amended the HRIFA provisions for derivatives by providing that abused spouses and children of principal applicants may apply for adjustment of status, even if they have not been physically present in the United States since December 1, 1995. 97 In addition, under VAWA 2005, abused spouses, children, and sons and daughters of persons who adjust to LPR status or who are eligible for classification under HRIFA may apply for HRIFA adjustment to LPR status. Thus, an abused spouse, child, or son or daughter may apply for HRIFA adjustment on his or her own even if the principal applicant did not actually adjust under that statute. This change is also effective as if included in VAWA 2000. 98 VAWA 2005 Motions to Reopen for Relief under CAA and HRIFA The VAWA exceptions to time and number limits on motions to reopen (discussed in Chapter 10) also apply to motions for relief as an abused spouse or child under the Cuban Adjustment Act and HRIFA. 99 Relief for Abused Family Members of Nicaraguan and Cuban Principal Applicants under the Nicaraguan and Central American Relief Act (NACARA) § 202 Section 202 of NACARA allowed eligible Nicaraguans and Cubans to adjust status to permanent residence if they had been continuously present in the United States since December 1, 1995, were otherwise admissible, and met certain other requirements. The application deadline for § 202 was March 31, 2000. VAWA 2000 amended the provision to allow abused spouses and VAWA 2005, § 823. USCIS Policy Memo, supra n. 94, at 3. 96 Legal Immigration and Family Equity (LIFE) Act, Pub. L. No. 106-553, 114 Stat. 2762 (Dec. 21, 2000), and Life Act Amendments of 2000, Pub. L. No. 106-554, 114 Stat. 2763 (Dec. 21, 2000). 97 Victims of Trafficking and Violence Protection act of 2000, Pub. L. 106-386, § 1511. 98 VAWA 2005, § 824. 99 VAWA 2005, § 814(a). 94

Chapter 5

95

5-28

Tab Position 1

Immigrant Legal Resource Center March 2017

children of principal Nicaraguan and Cuban adjustment applicants to apply for adjustment, even if they had not been physically present in the United States since December 1, 1995. 100 Moreover, under VAWA 2005, abused Nicaraguan and Cuban spouses and children of persons who adjusted status under NACARA or who were eligible for such adjustment could apply for adjustment under NACARA 202(d)(1) on their own during the 18 months following the enactment of VAWA 2005. This provision was also effective as if included in VAWA 2000. 101

Tab Position 1

VAWA Manual March 2017

Relief for Family Members of Salvadoran and Guatemalan Principal Applicants under the Nicaraguan and Central American Relief Act (NACARA) § 203 Under NACARA § 203, nationals of El Salvador, Guatemala, and former republics of the U.S.S.R. may apply for cancellation of removal or suspension of deportation (resulting in permanent residence) upon showing continuous presence in the United States since a certain date and meeting certain other requirements. Dependent spouses, children, and unmarried sons and daughters may also apply for NACARA § 203 benefits, though they entered at a later date. VAWA 2000 provided relief for abused spouses and children of principal applicants by eliminating the requirement that the derivative be residing with the principal applicant. 102 For more information on these country-specific forms of relief, see the following USCIS fact sheets: • • •

Cuban Refugee Adjustment Act: www.uscis.gov/green-card/other-ways-get-greencard/green-card-cuban-native-or-citizen; NACARA Sec. 203: www.uscis.gov/uscis-tags/unassigned/nacara-203-eligibility-applyuscis; HRIFA: www.uscis.gov/green-card/other-ways-get-green-card/green-card-haitianrefugee

Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, § 1510(a). VAWA 2005, § 815. 102 VAWA 2000, § 1510(b). 100

5-29

Chapter 5

101

CHAPTER 5 ADJUSTMENT OF STATUS FOR VAWA SELF-PETITIONERS

Chapter 5

INDEX OF APPENDICES Appendix 5-A

USCIS, Policy Memorandum 602-0022, Subject: Revocation of VAWABased Self-Petitions (Forms I-360), AFM Update AD10-49 (December 15, 2010)

Appendix 5-B

Form I-912 Request for Fee Waiver

Appendix 5-C

Michael L. Aytes, Assoc. Dir. Dom. Opers, USCIS, re “Adjustment of status for VAWA self-petitioner who is present without inspection,’ April 11, 2008

Appendix 5-D

Adjustment Cover Letter

Appendix 5-E

Form G-325

Appendix 5-F

Form I-864W, Intending Immigrant’s Affidavit of Support Exemption

Appendix 5-G

William R. Yates, Assoc. Dir. For Opers., USCIS, Re: Age-Out Protections Afforded Battered Children Pursuant to the Child Status Protection Act and the Victims of Trafficking and Violence Protection Act,” HQOPRD 70/6.1.1 (August 17, 2004)

Appendix 5-H

Form G-1145 E-Notification of Application/Petition Acceptance

Appendix 5-I

Adjustment Interview Preparation Materials

Appendix 5-J

Form I-485

5-30

Tab Position 1

Immigrant Legal Resource Center March 2017

Chapter 5

Appendix 5-A-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-A-2

Chapter 5

Appendix 5-A-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-A-4

Chapter 5

Appendix 5-A-5

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-B-1

Chapter 5

Appendix 5-B-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-B-3

Chapter 5

Appendix 5-B-4

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-B-5

Chapter 5

Appendix 5-B-6

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-B-7

Chapter 5

Appendix 5-B-8

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-B-9

Chapter 5

Appendix 5-B-10

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-B-11

Chapter 5

Appendix 5-B-12

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-C-1

Chapter 5

Appendix 5-C-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-C-3

Chapter 5

Appendix 5-D-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-D-2

Chapter 5

Appendix 5-D-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-D-4

Chapter 5

Appendix 5-D-5

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-D-6

Chapter 5

Appendix 5-D-7

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-D-8

Chapter 5

Appendix 5-D-9

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-D-10

Chapter 5

Appendix 5-D-11

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-D-12

Chapter 5

Appendix 5-D-13

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-E-1

Chapter 5

Appendix 5-E-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-F-1

Chapter 5

Appendix 5-F-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-F-3

Chapter 5

Appendix 5-F-4

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-F-5

Chapter 5

Appendix 5-G-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-G-2

Chapter 5

Appendix 5-G-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-G-4

Chapter 5

Appendix 5-H-1

Tab Position 1

VAWA Manual March 2017

APPENDIX 5-I ICWC’S GUIDE TO PREPARING FOR A VAWA ADJUSTMENT INTERVIEW

Chapter 5

Things to prep with the client: 1. Explain what the interview will be like – described below. a. How to get there: Ask client how she plans to arrive at CIS and print map if needed. b. Promptness: Remind clients to arrive at CIS approximately 30 minutes before their scheduled appointment time so that they have time to pass through security at the front door (sometimes there can be a line). c. Security: Leave behind any pocketknives, nail scissors, or anything else that can be considered a “weapon.” Currently CIS is allowing cell phones with cameras into the building, but not a camera without a phone. d. Purpose of the interview: the objective of the adjustment interview is for the CIS examiner to make sure all of the information on the form is correct and to decide if the applicant is admissible as a lawful permanent resident. It is important to go over the inadmissibility related questions on the I-485 with your client when you prepare the application and again before the interview. In addition, be sure to screen for any false claims to U.S. Citizenship or unlawful presence bars (those ones aren’t always triggered by the questions on the form). To determine admissibility, the examiner will review the application and supporting documents and in particular will ask about any entries and exits, any arrests, and whether the applicant ever committed fraud (lied to get a visa or used false documents or lied to enter the U.S.). The interview also serves as an opportunity for the applicant and her attorney to update any information that might have changed. Let clients know that the interview may be recorded and that they must be truthful in answering all questions, and should ask for clarification if they don’t understand a question. e. VAWA Questions: Tell her that although the USCIS office with expertise in domestic violence has already approved the VAWA case, the officers in San Francisco want to feel like they have some role in the process, so they might ask questions about the marriage and the abuse. The applicant should not be worried about it, because the VAWA application was already approved. She should just answer questions as best she can. Explain that although you are an attorney you will probably not interrupt the officer if she is asking inappropriate questions, because that can make the officer mad. It has been our experience that officers frequently ask inappropriate questions but then they approve the case anyway. What you will do is write everything down so that if the officer tries to deny the case, you will go to the officer’s supervisor. So the applicant shouldn’t feel that you’re just leaving her alone – you’re just waiting for the right moment to make the argument.

Appendix 5-I-1

Tab Position 1

Immigrant Legal Resource Center March 2017

f.

Appendix 5-I-2

Chapter 5

Approval: i. Explain that most officers don’t approve the application on the spot, but that they usually get approved within a week or two after the interview. Sometimes the officer will want additional information that we’ll have to get for her. That might delay things a little, but not too much. ii. If the application for adjustment is approved at the interview, the examiner should provide a form letter to that effect. If the application is left pending for further review (this seems to be more and more common as many examiners are not very familiar with VAWA and so like to check with supervisors before issuing the final approval), the should also provide a form letter to that effect. Once the application is approved, CIS will send a “Welcome Notice” indicating that the adjustment has been approved. If the client indicated that they could receive mail at their home address, CIS should send the notice to both the client and the attorney. Shortly after this (within 30 days, but often less) the actual green card should arrive. If the application is denied, the client will be referred to immigration court and will have the opportunity to renew the adjustment application there and to apply for any other forms of relief such as VAWA Cancellation of Removal. g. Interpreter: Explain that if she wants to do the interview in her native language (not English) she needs to bring an interpreter 2. Review Forms for content and give her copies of the following: a. I-360, pages 2 and 4. i. Highlight on page 2 Date of Arrival ii. Highlight on page 4: Date/place married; When did you live with (spouse)?; Last address that you lived together and date last lived there. iii. Go over these questions on the form and tell her to review them (if she can) at home too. b. I-485, all pages, including any explanations for yes answers i. Go over all the questions on the form and tell her to review them (if she can) at home too. ii. Revise I-485 if missing or incorrect information at time of signing 1. e.g., I didn’t press my client about whether he was a member of a union when I recorded his answer to “Are you a member of any organizations” as “no,” so I’m submitting a new page with his union information filled in. 2. Make copy for file + client and keep original in file for interview. c. G-325 i. Go over all the questions on the form and tell her to review them (if she can) at home too. ii. Revise G-325 if missing or incorrect information at time of signing 1. Make copy for file + client and keep original in file for interview.

Tab Position 1

VAWA Manual March 2017

d. Her Declaration i. Go over her declaration to be sure everything is as she remembered it. Highlight the parts that are most important, including: 1. Worst incident of physical or mental abuse 2. How she decided to leave abuser 3. When she left abuser e. G-28 i. If you were not the attorney of record when the I-485 was submitted, be sure to bring a G-28 form to the interview. f. Form I-601 i. If any grounds of inadmissibility (except INA 212(a)(6)(a) present without admission or parole aka EWI) apply to your client and you haven’t already submitted an I-601 waiver, you should prepare one now. The most common reason an I-601 is needed is for some sort of fraud at entry. For the fraud waiver, you have to show that the client and/or her U.S. Citizen or Lawful Permanent Resident spouse, parents, or children will suffer extreme hardship (in practice it is usually the client and her U.S. Citizen children). This form now needs to be filed by mail with the Vermont Service Center with a fee waiver request (be sure to include a copy of the I-485 receipt notice so that the files get connected eventually). Other common inadmissibility problems are the unlawful presence bars and those waivers are complicated, so check if your client has entered the U.S. more than once (unless she always entered lawfully and never overstayed). 3. With her permission, do a mini-mock interview on the I-485 questions. Don’t be generous, but don’t be extra harsh. Warn her that interviewers are specifically told not to be gentle and kind, so if her interviewer seems to be a little harsh, that’s how they act so they don’t seem too kind. Things for attorney to take along:

Chapter 5

1. Copy of the file. Know it fairly well so that if the officer can’t find something you can show her in your copy where it is. 2. Any amendments to any forms that may be needed 3. Copy of new cards since filing: a. Social Security Card b. EAD c. Driver’s License 4. Copy of the April 11, 2008 212(a)(6)(A) memo in case she’s not informed. 5. Your ID and bar card. 6. Interpreter (if needed) Things for the applicant to bring: 1. Her interview notice copy 2. EAD

Appendix 5-I-3

Tab Position 1

Immigrant Legal Resource Center March 2017

3. Passport a. Expired and Current b. Any they have used to enter the U.S. 4. Any I-94 entry documents they may have received upon entry 5. Any California ID or driver’s license 6. Social Security Card 7. Original Marriage Certificate 8. Original divorce certificate, if there is one a. If you have not already submitted a copy of a final divorce decree, you should bring any evidence of the current status of any divorce proceedings to the interview. If the applicant has not started divorce proceedings, that is fine, just let her know that the examiner might want her to explain why she hasn’t filed for divorce. This is an issue mostly so that the examiner can make sure that the I-360 was not filed more than 2 years after the divorce became final. 9. Certified copy of any arrest record if not submitted in original application 10. Interpreter (if needed) 11. Medical exam (if needed) a. If no I-693 medical exam was submitted with the I-485 application, be sure to have the client arrange for and bring the sealed results of the medical exam to the interview.

Tab Position 1

VAWA Manual March 2017

How the interview may go:

Appendix 5-I-4

Chapter 5

1. Report in in Room 160, where you’ll be told which floor the interview will be on, and which waiting area to sit in. 2. Listen for the applicant’s name and go to whoever calls it. 3. The officer will lead you to her office. 4. Remain standing. 5. She will tell the applicant to remain standing, raise her right hand, and ask if she swears to tell the truth. The correct answer is “yes.”  6. If you have an interpreter, she will also need to be sworn in. The officer will make a big deal of needing to bring in another chair. The officer may prefer to use the AT&T interpreter, which is generally pretty convenient anyway and the interpretations are generally reliable. 7. Then you can sit down. You should have your ID and bar card out, and your client should have her passport, work permit and any other ID out. Wait for the officer to ask for them, then put them on her desk in front of you. 8. She will shuffle papers around for a bit. I don’t interrupt her – I just wait for her to start asking questions. 9. She should confirm that this is a VAWA-based adjustment of status interview. If she seems to be proceeding like it’s a regular AOS interview, point out to her that it’s VAWA. 10. She will probably go through the questions on the I-360 and I-485 first. If the client struggles, ask the officer if it’s OK for you to help. Do whatever she says it OK.

Chapter 5

11. She shouldn’t, but probably will, ask questions about the marriage, and the abuse. If your client is obviously distraught, gently remind the officer that all of the information is in the VAWA application and ask if it’s possible to limit the interview to questions on the forms? Realize that she has the right to ask whatever she wants, though. All immigration applications are discretionary, and the applicant has the burden of proof to show that she’s eligible. 12. Common VAWA AOS interview questions: - Is your address 3543 18th Street, San Francisco? - When did you come to the U.S.? - How did you come? - Where did you last live with your spouse? - When did you last live with your spouse? - Why did you move out? - When you called the police, did you say you wanted to press charges? If not, why not? - Are you still married to your spouse? If you are, why are you? - Why didn’t your spouse apply for you to get papers? - All the yes/no questions. [*See document “Officer Ung Interview Questions” for complete interview]

Appendix 5-I-5

Tab Position 1

Immigrant Legal Resource Center March 2017

Tab Position 1

VAWA Manual March 2017

Checklist for VAWA AOS interviews Name of Client: _________________________________

Case No. __________

Documents Required for Interview THERE IS AN ADDITIONAL CHECKLIST AT THE END OF THIS DOCUMENT TO BE GIVEN TO THE CLIENT LISTING THE DOCUMENTS THEY NEED TO TAKE TO THE INTERVIEW



Original Appointment Notice



Original I-360 Approval Notice



Original Birth certificate with translation



Original Marriage certificate with translation



Divorce Decree



Valid Passport



Valid photo I.D.



Current Employment Authorization Card



Fingerprint Appointment Proof



Certified Court Disposition for all arrests with relevant Penal Code Sections



Birth certificates for USC children



Advance Parole Documents/I-94’s

Chapter 5

Appendix 5-I-6

Review Following Areas with Client

 I-485 Form Review entire I-485 application — is information correct especially regarding admissibility — amend as necessary Areas that need amendment ___________________________________________ __________________________________________________________________ __________________________________________________________________ Reason for amendment ______________________________________________ _________________________________________________________________ (take amendment to interview)



Arrests or Convictions (dates and outcome) By USCIS ________________________________________________________ _________________________________________________________________ By Police _________________________________________________________ _________________________________________________________________



Medical examination When completed? __________________________________________________ Any conditions present? _____________________________________________

 First entry into the U.S. Date: __________________ Manner of entry: ________________________________________________ Place of entry: __________________________________________________  Any exits after April 1, 1997? Yes No Date: ____________________ Manner of reentry: _______________________________________________ Place of re-entry: ________________________________________________ Circumstances of entries and exits: __________________________________ _______________________________________________________________ _______________________________________________________________

Chapter 5



Where is the abusive spouse? ______________________________________________________________ _

 Has client divorced? Yes No If yes, give details and client needs copy of divorce decree: __________________________________________________________________ Appendix 5-I-7

Tab Position 1

Immigrant Legal Resource Center March 2017

 Were there any derivatives included in the I-360? Yes No If yes, please list all derivatives, their ages, their location and if they have applied for adjustment ____________________________________________ _______________________________________________________________ _______________________________________________________________  Do we need to file Form I-824? Yes No _______________________________________________________________  Review VAWA Self-petition and ask client to be familiar with it.

Chapter 5

Appendix 5-I-8

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Immigrant Legal Resource Center March 2017

Chapter 5

DOCUMENTS REQUIRED FOR THE INTERVIEW/DOCUMENTOS PARA LA ENTREVISTA



Original Appointment Notice/Citatorio de la entrevista en original



Original I-360 Approval Notice/Citatorio de la aprobación en original



Original Birth certificate with translation/Acta de nacimiento en original con la traducción



Original Marriage certificate with translation/Acta de matrimonio en original con la traducción



Divorce Decree/Orden de divorcio



Valid Passport/Pasaporte vigente



Valid photo I.D./Identificación con foto vigente



Current Employment Authorization Card/Tarjeta de autorización de empleo



Fingerprint Appointment Proof/Comprobación de que sacó las huellas



Certified Court Disposition for all arrests with relevant Penal Code Sections/Historiales certificados de la corte criminal por cada arresto, junto con una copia de la ley penal que corresponde



Birth certificates for USC children/Los actas de nacimiento para todos los niños nacidos en los EEUU



Advance Parole Documents/I-94’s/Documentos de “Advance Parole”

September 19, 2014

Appendix 5-I-9

Questions and Answers to Prepare for Adjustment of Status Interview at the Los Angeles District Office

Tab Position 1

VAWA Manual March 2017

1. What sorts of questions will the immigration officer ask the applicant? USCIS has appointed special VAWA trained officers to conduct adjustment of status interviews. However, every immigration officer is different. Generally, the officer asks basic questions like the applicant's name, marital status, current address, then reviews Form I-485 itself and asks questions that are the same or similar to those on the form (please review with the applicant all questions on the form especially those on Page 3). The officer will want to know about date and manner of first entry, last entry, information about any arrests/convictions, and whether the applicant has any children. Some officers specifically ask the applicant if they are divorced from the abuser. 2. What can I do to prepare the applicant for the interview? To prepare the applicant, we recommend that you review the entire I-485 packet with the applicant and determine whether there are any changes that must be explained at the time of the interview. I would prepare the applicant to explain any of the changes to the form and to provide the explanation when the officer asks that particular question. Although the officers are prohibited from re adjudicating the underlying VAWA self-petition you should ask the applicant to be familiar with their declaration and what was filed with the I-360. 3. How long does the adjustment of status interview take? It varies, usually between 5-20 minutes. It depends on the immigration officer and whether there are special issues that need to be addressed. 4. Should I meet with the applicant before the interview and review with her? Yes, see question number 2 above. 5. What type of evidence of financial independence should the applicant bring in to the interview? Generally, the applicant does not have to bring any documents showing financial independence. However, if the applicant is employed it does not hurt to bring a verification of employment letter.

Chapter 5

Appendix 5-I-10

6. In addition to evidence of financial independence, the notice lists a number of other things that should be brought to the interview. What else should the applicant bring? The interview notice used for VAWA battered spouse cases is the same notice used in regular family-based adjustment cases and lists many items that do not apply to the applicant’s case. The applicant should bring the original interview notice; proof that the applicant was fingerprinted; a valid form of identification with photograph (this may include a valid passport, a valid employment authorization card, consular I.D. card or a valid driver’s license); the original I-360 approval notice; her original birth certificate; her children’s original birth certificates, if applicable; her original marriage certificate; divorce decrees, if applicable; her most recent employment authorization card; the passport used to enter the United States with the I-94 card and a valid passport. If the applicant’s case is approved on the day of the appointment, the officer may stamp the passport with temporary evidence of permanent resident status. Therefore the valid passport is recommended, but not required. Lastly, if the applicant has ever been arrested, a certified court disposition must be provided for each arrest. 7. Should the applicant bring the medical exam to the interview? Generally, the medical exam is filed with the application to adjust status. Please confirm that there were no conditions present that would make the applicant inadmissible. However, if the medical exam was not initially filed with the I-485, Application to Adjust Status, the applicant MUST provide a completed and sealed medical exam on the day of the interview. Generally, instructions about where to go to complete the medical exam are included with the applicant’s interview notice. The applicant must go to one of the designated civil surgeons on the list. If the applicant did not receive a copy of the list with the appointment notice, a complete list is available on the U.S. Citizenship & Immigration Services (USCIS) website at www.uscis.gov . The doctor’s office will give the applicant a sealed envelope that must remain sealed until the interview when it is handed to the officer. The applicant may ask the doctor to give her a copy of the exam results.

Chapter 5

8. Is adjustment of status for VAWA cases nearly always granted? If so, when do we get the decision? We have not had a VAWA adjustment of status case denied. Generally, the worst that may happen is that the fingerprints may have not cleared by the interview date or if the officer needs an additional document or some other unforeseen delay. Assuming all requirements are met, you will get a decision on the spot. If approved on the spot, the officer will stamp the applicant’s passport with temporary evidence of permanent resident status. The officer will tell you that it takes about 3-12 months to get the green card in the mail. In reality, the waiting time is less. Makes sure to note the Officer’s name and ask her how you can contact her if you do not get a decision on the case in three months.

Appendix 5-I-11

Tab Position 1

Immigrant Legal Resource Center March 2017

9. Are there any other recommendations or advice? Please make sure that you and the applicant arrive to the interview on time. Allow an extra 45 minutes to go through the security check. There is often a separate line for people with appointments.

Tab Position 1

VAWA Manual March 2017

As soon as you arrive to the interview room, you will have to check-in by turning in the applicant’s original appointment notice. Please mark “VAWA” in red on the top of the notice. This ensures that the interview will be conducted by a VAWA trained officer. The security officer in the room may take the appointment notice and turn it in for you or may instruct you to check-in with one of the officers at the counter. Once the applicant has checked-in, it will be a matter of time before the applicant is called for the interview. Please note that UCSIS is starting to implement the Customer Identity Verification (CIV) system. Under CIV, the officer will take a photo of each applicant and print the index fingers of both hands prior to the adjustment interview. Please remember that you or the applicant do not have to provide any documents or information that officer does not ask for. Everyone has a different style, but we generally wait to be asked for documents and information before providing it. Also, please note that the questions will be asked mostly of the client, not of the attorney, so only interject if you need to clarify something or the client does not remember and you are trying to help. Let the client know that she will be the one who will be answering the questions. The applicant should always ask for clarification if she does not understand the question. If the applicant is not sure of the answer she is about to give, she should state that she does not know and not try to guess. If the client does not speak English, it is the client’s responsibility to take an interpreter with her. If your interpreter is not going with you, please make sure to give her a copy of the appointment notice so that she is allowed to enter the building. It is important to make sure that the interpreter is fluent in English and the language she is interpreting. Also, the interpreter must be warned beforehand to faithfully interpret what is being said and to not add her own comments. 10/30/2013

Chapter 5

Appendix 5-I-12

4/10/13 VAWA AOS Interview questions from Officer Ung [No questions about GFM or abuse (yay)] -

Chapter 5

-

-

Where do you live? How long have you lived there? Who do you live with? How many times have you been to the US? When did you come to the US? When you came, how and where? Since (date of entry), have you ever left the US? What is your current occupation? Where do you work? When did you start working there? What did you do for work before that? What are your mother and father’s first names? How many times have you been married? Are you still married? When did you separate? When did you last see or talk to (abuser)? What is your (wife/husband)’s name? What is your daughter’s name? Are you separated (informally) or legally separated? - Nobody has filed for anything? Do you have any other children (out of wedlock, step) Does your (abuser) have any other children? Names/DOB/location? Have you ever been a member of a union or other organization in the US or your home country? How old were you when you left (home country)? [this was a male applicant, so these might not be asked normally] Were you a member of the military in (home country)? Did you get any military or weapons training? Have you ever committed any illegal activity for which you were not arrested? Have you ever been arrested? - (For applicant’s arrest) What did the police say you were arrested for? - What were you charged with? - Did you get probation? Any other problems with the police or courts? Are you now on probation? Do you have any outstanding tickets? Have you received public assistance? Have you been or procured a prostitute within the past 10 years? [All the GMC, alien smuggling, terrorism, communism questions from I-485] Were you involved in any terrorist organizations, even back in (home country)?

Appendix 5-I-13

Tab Position 1

Immigrant Legal Resource Center March 2017

-

-

Have you ever used any other names? [Officer had record of voluntary removal with false name the applicant gave when he was processed for VR. He gave a Mexican-sounding name and said he was from Mexico, to avoid removal to much more distant home country]. Did you show any false documents when you entered the US? Do you have any disabilities or impairments?

Chapter 5

Appendix 5-I-14

Tab Position 1

VAWA Manual March 2017

Como Preparar para mi entrevista con Inmigracion? Repase lo siguiente, que me dio la abogada: 1. La carta de Inmigración con información de la entrevista 2. Formulario I-485 3. Formulario G-325 4. Formulario I-360 5. Declaración del caso de VAWA Llevar a la entrevista conmigo: 1. Permiso de Trabajo 2. Pasaportes (todos los que tiene) 3. Tarjetas blancas (I-94) que recibió en inspección en la entrada 4. Identificación o licencia de California 5. Tarjeta de Seguro Social 6. Acta de nacimiento original 7. Acta de matrimonio original 8. Acta de divorcio original 9. Por todos mis arrestos: record de la corte (completo y certificado)

Chapter 5

Que más debo saber? • Llegue por lo menos 30 minutos antes de la hora de su cita: o A las ___:____ AM/PM o El día ______________________________

Appendix 5-I-15

Tab Position 1

Immigrant Legal Resource Center March 2017

Chapter 5

Appendix 5-J-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-J-2

Chapter 5

Appendix 5-J-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-J-4

Chapter 5

Appendix 5-J-5

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 5

Immigrant Legal Resource Center March 2017

Appendix 5-J-6

CHAPTER 6 INADMISSIBILITY GROUNDS FOR VAWA SELF-PETITIONERS

This chapter includes: § 6.1 § 6.2 § 6.3 § 6.4 § 6.5 § 6.6 § 6.7 § 6.8 § 6.9 § 6.10 § 6.11 § 6.12 § 6.13 § 6.14 § 6.15 § 6.16 § 6.17 § 6.18 § 6.19 § 6.20 § 6.21 § 6.22 § 6.23 § 6.24 § 6.25 § 6.26 § 6.27 § 6.28 § 6.29 § 6.30 § 6.31 § 6.32 § 6.33 § 6.34 § 6.35 § 6.36 § 6.37

Overview .................................................................................................................. 6-2 Health-Related Grounds ........................................................................................... 6-3 Health-Related Grounds: Communicable Diseases .................................................. 6-4 Health Related Grounds: Lack of Vaccination ......................................................... 6-4 Health-Related Grounds: Physical or Mental Disorders ........................................... 6-5 Health-Related Grounds: Drug Abusers or Addicts ................................................. 6-5 Criminal Grounds: Overview.................................................................................... 6-6 Some Definitions: “Conviction,” “Admission,” and “Sentence”.............................. 6-8 Crimes Involving Moral Turpitude ......................................................................... 6-12 Multiple Criminal Convictions ............................................................................... 6-15 Controlled Substance Violations ............................................................................ 6-15 Traffickers in Controlled Substances ...................................................................... 6-16 Prostitution and Commercialized Vice ................................................................... 6-17 Immunity from Prosecution .................................................................................... 6-17 Particularly Serious Violations of Religious Freedom ........................................... 6-18 Significant Traffickers in Persons........................................................................... 6-18 Aggravated Felonies ............................................................................................... 6-19 212(h) Waivers for Criminal Conduct for Immigrants ........................................... 6-19 National Security Grounds...................................................................................... 6-21 Public Charge.......................................................................................................... 6-22 Previous Immigration Violations: Overview .......................................................... 6-22 Immigrants Present without Permission or Parole .................................................. 6-23 Failure to Attend Removal Proceedings ................................................................. 6-24 Fraud or Willful Misrepresentation ........................................................................ 6-25 INA § 212(i) Waivers for Fraud or Misrepresentation ........................................... 6-26 False Claim of U.S. Citizenship.............................................................................. 6-27 Stowaways .............................................................................................................. 6-29 Smugglers and Encouragers of Unlawful Entry ..................................................... 6-29 Final Civil Document Fraud Order ......................................................................... 6-29 Foreign Students ..................................................................................................... 6-30 Ineligible for Citizenship ........................................................................................ 6-30 Prior Removal Orders or Periods of Unlawful Presence ........................................ 6-30 Having Previously Been Removed: INA § 212(a)(9)(A) ....................................... 6-30 Unlawful Presence Bars: INA § 212(a)(9)(B) ........................................................ 6-32 Reentering the U.S. without Authorization after Removal or One Year Unlawful Presence: INA § 212(a)(9)(C)................................................................. 6-39 Miscellaneous Grounds .......................................................................................... 6-41 Reinstatement of Prior Removal Order and Consequent Ineligibility for Relief ................................................................................................................. 6-42

6-1

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

§ 6.1

Overview

When a VAWA self-petition has been approved, the self-petitioner and his or her derivatives may move to the second step of the immigration process, that is, actually obtaining lawful permanent resident status. 1 As is explained in other chapters of this manual, this is done by either filing an application for adjustment of status (Chapter 5) with the USCIS in the United States or applying for a permanent resident visa at a U.S. consulate abroad (Chapter 8). The latter is called “consular processing.” In both adjustment of status and consular processing, the self-petitioner must establish that he or she is not inadmissible. This means that he or she does not fall under one or more of the inadmissibility grounds set forth in § 212 of the Immigration and Nationality Act (INA), or that, if he or she does fall under one of those grounds, there is a waiver for which he or she is eligible. In other words, even if a Form I-130 relative visa petition or a Form I-360 VAWA self-petition has been approved, the beneficiary of the petition will not receive lawful permanent status if he or she is inadmissible and not eligible for any waiver. An advocate should ask a series of questions when evaluating whether the client is inadmissible: 1. Does the inadmissibility ground really apply to my client? VAWA self-petitioners are specifically exempted from some of the inadmissibility grounds under certain circumstances. For example, the inadmissibility ground of being likely to become a public charge simply does not apply to VAWA self-petitioners. 2. If the ground of inadmissibility does apply to my client, do the facts show that my client is not inadmissible? In other words, are the facts asserted by USCIS or DHS correct? For example, if the USCIS asserts that my client has been convicted of a crime involving moral turpitude, can I show that the disposition in the client’s criminal case does not meet the definition of “conviction” or that the crime was not one of moral turpitude or that the client falls under an exception to the inadmissibility ground? 3. Even if my client is inadmissible, is there a waiver for which he or she is eligible? Remember that there are a number of special VAWA waivers of inadmissibility grounds. We will mention those waivers in this chapter and will discuss how to apply for them in the next chapter. The ten inadmissibility ground categories are: 1. 2. 3. 4. 5. 6. 7. 8.

Health-related grounds; Criminal-related grounds; National security grounds; Public charge; Labor protection grounds; Fraud or other immigration violations; Documentation requirements; Grounds relating to military service in the United States;

For purposes of this chapter, we use the term “self-petitioner” to refer to both the principal self-petitioner and his or her derivatives. 1

6-2

9. Prior removals or unlawful presence in the United States; 10. Miscellaneous grounds. In turn, each of these categories comprises several grounds. This chapter deals with inadmissibility grounds and specific waivers for VAWA self-petitioning spouses and children of U.S. citizens and permanent residents. It does not cover the special inadmissibility exemptions and waivers for other groups of individuals, such as Special Immigrant Juveniles, for asylees and refugees, or for U and T nonimmigrants. § 6.2

Health-Related Grounds

There are four health-related grounds of inadmissibility. The first excludes persons who “have a communicable disease of public health significance.” 2 The second excludes prospective immigrants who have not been vaccinated against certain diseases. 3 The third relates to physical or mental disorders with associated behavior that poses a threat to the property, safety, or welfare of the applicant or other persons. 4 Finally, the fourth ground excludes drug abusers or addicts. 5 There are waivers available for the first, second, and third health-related grounds, including a special waiver of the communicable disease ground for VAWA self-petitioners. There is no waiver of the drug abuse or addiction ground. Inadmissibility under a health-related ground is usually demonstrated through the medical examination that all intending immigrants must undergo. The medical examination is conducted by a panel physician outside the United States if the person will obtain lawful permanent resident status through consular processing. It is conducted by a civil surgeon in the United States if the person will apply for adjustment of status. These examinations are conducted pursuant to Public Health Service regulations and the Technical Instructions for Medical Examination of Aliens, issued by the Centers for Disease Control and Prevention, a part of the United States Department of Health and Human Services. Thus, in this section, we will sometimes cite to those regulations and technical instructions. 6 If the panel physician or civil surgeon finds that a prospective immigrant falls under the communicable disease, physical or mental disorder, or drug abuse or addiction inadmissibility grounds, he or she will issue a “Class A” medical certificate, noting the condition. 7 The prospective immigrant may appeal this finding to the USCIS. If this is done, a medical review board is convened, and the applicant may bring his or her own medical experts to testify. 8

INA § 212(a)(1)(A)(i). INA § 212(a)(1)(A)(ii). 4 INA § 212(a)(1)(A)(iii). 5 INA § 212(a)(1)(A)(iv). 6 The Center for Disease Control and Prevention’s Technical Instructions for Civil Surgeons (June 1, 2010), can be found at www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions-civilsurgeons.html. 7 42 CFR § 34.2(d). 8 42 CFR § 34.8(a), (c). 2 3

6-3

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

§ 6.3

Health-Related Grounds: Communicable Diseases

Under the first health-related ground, persons are inadmissible if they have “a communicable disease of public health significance,” as determined by the Secretary of the Department of Health and Human Services (DHHS), 9 through its Centers for Disease Control and Prevention (CDC). The CDC considers the following diseases to be communicable and of public health significance: active tuberculosis, infectious leprosy, gonorrhea, and the infectious stage of syphilis. 10 Several of these diseases may be treated, following which the applicant may be admissible. 11 There is a special waiver of the communicable disease ground for VAWA self-petitioners, if the applicant demonstrates that he or she merits a favorable exercise of discretion. 12 There is no requirement of a qualifying relative or hardship. In addition, there is a general waiver of the communicable disease ground for individuals who are parents, spouses, or unmarried sons or daughters of U.S. citizens (USCs), lawful permanent residents (LPRs), or immigrant visa recipients. 13 § 6.4

Health Related Grounds: Lack of Vaccination

Intending immigrants must present evidence that they have received required vaccinations. At the time of writing this manual, the required vaccinations are those against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, haemophilus influenzae type B (Hib), hepatitis A and B, rotavirus, meningococcal disease, varicella, pneumococcal disease, and seasonal influenza, and any other vaccinations recommended by the Advisory Commission for Immunization Practices. 14 There are three waivers available for prospective immigrants who are inadmissible because they cannot present proof of vaccinations. Under these, the vaccination requirement may be waived if: (1) the immigrant receives the vaccination; (2) a civil surgeon or panel physician certifies that the vaccination would not be medically appropriate; or (3) the vaccination would be contrary to the

INA § 212(a)(1)(A)(i). 42 CFR § 34.2(b). 11 While HIV was formerly on the list, the Centers for Disease Control removed it from the list effective January 4, 2010. 74 Fed. Reg. 56547 (November 2, 2009) (implementing the United States Leadership against HIV/AIDS, Tuberculosos, and Malaria Reauthroization Act of 2008, Pub. L. No. 110-293, 122 Stat. 2918 (July 30, 2008). USCIS has issued a memorandum implementing this change. Memorandum from Lori Scialabba, Assoc. Dir., Refugee, Asylum and International Opers. Directorate, USCIS, Nov. 24, 2009, re: Public Law 110-293. 42 CFR 34/2(b), and Inadmissibility due to Human Immonodeficiancy Vius (HIV) Infection. The CDC also removed the diseases of granuloma inguinale, lymphogrnuloma venerum, and chancroid from the list of communicable diseases. 81 Fed. Reg. 4192 (Jan. 26, 2016). 12 INA § 212(g)(1)(C). 13 INA § 212(g)(1)(A), (B). 14 INA § 212(a)(1)(A)(ii); 42 CFR §§ 34.2(d)(2); (l)(2). As of Dec. 14, 2009, the zoster and the HPV vaccine are no longer required. More information on vaccination requirements can be found on the USCIS website at www.uscis.gov/news/questions-and-answers/vaccination-requirements. 9

10

6-4

applicant’s religious or moral beliefs. 15 These waivers will be covered in more detail in the next chapter on waivers. § 6.5

Health-Related Grounds: Physical or Mental Disorders

Persons are inadmissible under the physical or mental disorder ground if they have or had a condition with an associated behavior that poses a threat to the property, safety, or welfare of themselves or others. The presence of physical or mental illness alone does not determine a person’s inadmissibility. Instead, persons will be excluded only “if they have physical or mental disorders with a history of harmful behavior associated with the disorder.” 16 “Harmful behavior” is defined as “an action associated with a mental or physical disorder that is or has caused serious psychological or physical injury or safety (e.g., driving while intoxicated or verbally threatening to kill someone), or major property damage.” 17 If the person no longer has the condition, it does not constitute an inadmissibility ground unless the behavior is likely to recur or the condition is likely to lead to other harmful behavior. 18 A physical or mental disorder with an associated history of harmful behavior will be considered in remission—and, therefore, not likely to recur—if no substance or mental disorder-associated behaviors have occurred for a period of at least 12 months, and the physician determines that 12 months is an acceptable period of time for the individual applicant to demonstrate sustained, full remission. 19 Consular officers are required to refer visa applicants to a doctor if they have either a single drunk driving arrest or conviction within the last five calendar years or two or more arrests or convictions within the past ten years, or any other evidence to suggest an alcohol problem. 20 § 6.6

Health-Related Grounds: Drug Abusers or Addicts

Persons who are determined to be “drug abusers” or “addicts” are inadmissible. 21 The regulations define drug abuse as “current substance use disorder or substance-induced disorder, mild” of a substance listed in Section 202 of the Controlled Substances Act.” 22 “Drug addiction” is defined as “current substance use disorder or substance-induced disorder, moderate or severe, of a substance listed in Section 202 of the Controlled Substances Act.” 23 Section 202 of the Controlled Substances Act lists hundreds of controlled drugs arranged into five “schedules,” which

INA § 212(g)(1). 42 CFR §§ 34.2(d)(2)(1), (2), 34.2(n), 34.2(p). 17 Center for Diesease Control and Prevention, CDC Immigration Requirements: Technical Instructions for Physical and Mental Disorders with Associated Harmful Behavior and Substance-Related Disorders,” at 3, www.cdc.gov/immigrantrefugeehealth/pdf/mental-health-cs-ti.pdf. 18 INA § 212(a)(1)(A)(iii)(II). 19 Technical Instructions, supra n. 17, at 15. 20 9 Foreign Affairs Manual (FAM) 40.11, N11.2(b). 21 INA § 212(a)(1)(A)(iv). 22 42 CFR § 34.2(h). 23 42 CFR § 34.2(i). 15 16

6-5

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

determine the degree of a criminal offense involving a particular drug. 24 For example, marijuana is included on the list in Schedule I, the most severely penalized category. Under the CDC Technical Instructions, determination of whether substance abuse or dependence exists is made by reference to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). 25 Persons who are in full remission under the DSM criteria are not inadmissible. 26 There are no waivers for the drug abuse or addiction inadmissibility ground. Chronic alcoholism is not specifically included as an inadmissibility ground, nor is it included under the definitions of drug user or drug abuser. The Technical Instructions equate “drugs” with “controlled substances” as defined in § 102 of the Controlled Substances Act, and this definition specifically excludes alcoholic beverages and tobacco from its coverage. 27 However, the Technical Instructions do instruct physicians to evaluate prospective immigrants for alcohol abuse as part of the evaluation for mental and physical disorders with associated harmful behavior. 28 Thus, since there is a waiver available for physical or mental disorders inadmissibility ground, a person found inadmissible because of chronic alcoholism may be eligible for a waiver. 29 § 6.7

Criminal Grounds: Overview

Immigrants are inadmissible for having committed or engaged in the following: • • • • • •

Crimes involving moral turpitude; Controlled substance violations; Multiple crimes; Controlled substance trafficking; Prostitution and commercialized vice; Assertion of diplomatic immunity from prosecution for serious crimes;

• •

Particularly serious violations of religious freedom; Significant trafficking in persons.

We discuss each of those grounds below. An arrest or conviction does not necessarily mean that an individual is inadmissible. The advocate must carefully analyze the case to determine the result of a criminal proceeding. Do not rely on the client’s memory. Often people who go through the criminal court system do not understand or are not told what has happened. Also, the client may be embarrassed about criminal problems and may understate what really happened. You must obtain the facts yourself.

21 USC § 812 [§ 202, Controlled Substances Act]. CDC Technical Instructions, supra n. 17, at 22. 26 Id. at 23. 27 21 USC § 802 [§ 102, Controlled Substances Act]. 28 CDC Technical Instructions, supra n. 17, at 14. 29 INA § 212(g). 24 25

6-6

To properly analyze the case, we must see the client’s official criminal records. The USCIS will obtain the person’s complete criminal record by sending the person’s fingerprints to the FBI. The advocate needs to have at least as much information as the USCIS does, in order to prepare a defense. The following records are the most important: 1. A copy of the FBI report. 2. A copy of the case record from the court where the client was convicted. You may have to call the court clerk first to find out what documents and what fees are required to get the record. If the client lives near the court, give the client a letter signed by him or her, requesting the entire file, and ask the client to go get the file. It is very important to get these court documents, because the immigration or FBI record may be wrong or may not include enough detail. In addition, if you or a criminal defense attorney will try to ameliorate the criminal record, you will need a copy of the court papers. 3. A copy of the state or federal criminal statute under which your client was charged or convicted. Find Law (www.findlaw.com) is a free website that contains most federal, state and local laws. In order to analyze the criminal case, we must answer three questions: 1. Is the person really inadmissible because of the offense? For example, was the person really convicted? Or does the offense of which the person was convicted or which he or she admitted meet the elements of the criminal inadmissibility ground? Or might the person fall under the “juvenile” or “petty offense” exceptions to certain of the criminal inadmissibility grounds? 2. If so, can the criminal matter be “ameliorated?” In other words, can the person go back to the criminal court and ask the criminal court to either vacate or modify the criminal conviction in order to reduce or remove the immigration consequences? 3. If the person really is inadmissible and if the criminal matter cannot be ameliorated, then is the person eligible for a waiver under INA § 212(h) (discussed below)? PRACTICE POINTER: Obtaining the FBI Report. You can request a copy of the client’s FBI criminal record from the Federal Bureau of Investigation, Criminal Justice Information Services (CJIS) Division, 1000 Custer Hollow Road, Clarksburg, WV 26301. The following documents are required: an Applicant Information Form, a set of rolled-ink fingerprint impressions placed upon fingerprint cards or forms commonly used by law enforcement agencies, and the fee (currently $18.00) in the form of a certified check or money order, made payable to the Treasury of the United States. You may also pay with a credit card, using the FBI’s credit card payment form. If you would like the record sent to you instead of to the client, you must also include a letter signed by the client, authorizing the FBI to release the record to you. The Application Information Form (available on the FBI website) asks for reason for the request. It is best to check “personal review” instead of specifying that the request is for immigration purposes, as some applicants who have indicated they are seeking the information for immigration purposes have encountered problems obtaining their records. Detailed instructions and the Applicant

6-7

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

Information Form and credit card payment form are available at www.fbi.gov/services/cjis/identity-history-summary-checks. § 6.8

Some Definitions: “Conviction,” “Admission,” and “Sentence”

The criminal inadmissibility grounds use several terms that have special definitions. In this subsection, we will go over those special definitions. What Is a Conviction? Some of the criminal grounds of inadmissibility require that, to be inadmissible, the immigrant must have been convicted. A person is considered to have been convicted if a court has adjudicated him or her guilty or has entered a formal judgment of guilt against him or her. 30 In addition, even if the court has withheld such an adjudication, a person has been convicted for immigration purposes if: (1) the person was found guilty or entered a plea of guilty or nolo contendere, and (2) the judge ordered some form of punishment or restraint on the person’s liberty. 31 The imposition of administrative costs alone may constitute punishment under the statute. 32 Sometimes the client will be arrested, but not convicted. For example, the judge may find the client not guilty. Or the district attorney may decide to “nol pros,” or dismiss, the charges. Moreover, not all dispositions of criminal cases meet the immigration definition of conviction. For example, judicial dispositions of criminal cases that avoid the imposition of punishment or that do not involve a finding or plea of guilt should not constitute a conviction. 33 In addition, convictions that do not require proof of guilt beyond a reasonable doubt or that otherwise do not comport with standard criminal proceedings may not be convictions for immigration purposes. 34 The advocate should examine the criminal court documents carefully to be sure that the disposition is actually a conviction. The advocate should also verify whether the client’s conviction is final, since a non-final conviction is not generally a conviction for immigration purposes. A conviction is not considered final for immigration purposes until the defendant has exhausted his appeal rights. 35 A defendant exhausts his appeal rights when he either (1) files an appeal and the appellate court renders a decision, or (2) allows the time in which to file the appeal to lapse. This applies only to direct appeals, that is, appeals given to a defendant as a right under the state or federal law in question. These laws generally allow an appeal of only one level, usually to a circuit appellate court. Other types of requests for review of a criminal court or appellate court decision, such as collateral attacks through a writ of coram nobis or habeas corpus, do not keep the underlying decision from INA § 101(a)(48). Id. 32 Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008). 33 See, Matter of Grullon, 20 I&N Dec. 12 (BIA 1989); Katherine Brady and Norton Tooby, California Criminal Law and Immigration, Chapter 2, “Disposition that are not Convictions,” at 2-1–2-11. 34 Matter of Eslamizar, 23 I&N Dec. 684 (BIA 2004); Matter of Cuerllar-Gomez, 25 I& N Dec. 850 (BIA 2012). 35 Pino v. Landon, 399 U.S. 901 (1955); Matter of Thomas, 21 I&N Dec. 20, 21 n. (BIA 1995). 30 31

6-8

being final until and unless the collateral attack is decided in the applicant’s favor. 36 If the collateral attack is decided in the applicant’s favor, however, the disposition may cure the inadmissibility ground. A conviction by a court in a foreign country may bring about the same immigration consequences as a conviction inside the United States. 37 To cause inadmissibility, the foreign conviction must be for conduct that would also be considered criminal in the United States. 38 The general rule is that findings of delinquency by a juvenile court are not convictions for immigration purposes. 39 However, if the minor is tried as an adult in criminal court, the conviction will bring immigration consequences. Can a Conviction Be Removed for Immigration Purposes? Because of the severe immigration consequences a criminal conviction may have, advocates should consider whether the conviction can be “ameliorated,” that is, modified so as to reduce or eliminate the immigration consequences. The authority to change or set aside a conviction belongs to the court in which the conviction occurred or to courts reviewing that conviction. The immigration authorities and the immigration court do not have that authority. Prior to the 1996 amendments to the INA, expungements and other means of vacating or ameliorating criminal convictions by criminal and reviewing courts were accepted as removals of convictions for immigration purposes. 40 This rule was changed, however, with the Board of Immigration Appeal’s decision in Matter of Roldan. 41 Roldan’s drug possession conviction had been expunged under a state counterpart of the Federal First Offender Statute [for first time convictions of simple possession of drug offenses]. The BIA held that following the 1996 addition of a definition of “conviction” in the INA, any state action that purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute, such as the one under which Roldan’s conviction was expunged, will be given no effect for immigration purposes. Moreover, vacation of a criminal sentence related solely to rehabilitation or immigration hardship, rather than on the basis of a procedural or substantive defect in the underlying criminal proceedings, will not eliminate the conviction for immigration purposes. 42 This does not mean, however, that persons with criminal convictions should not attempt to have the convictions vacated, set aside, or otherwise ameliorated, if there is a basis under federal or state law for making such a request. It is important to remember that the sort of expungement or vacating of conviction dealt with in Matter of Roldan occurred by operation of law, without Matter of Polanco, 20 I&N Dec. 894 (BIA 1994). Matter of de la Nues, 18 I&N Dec. 140 (BIA 1981). 38 Id.; Lennon v. INS, 527 F.2d 187 (2nd Cir. 1975). 39 Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Reveiro, 18 I&N Dec. 135 (BIA 1981). 40 Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), rev’d, Lujan-Almendariz v. INS, 222 F.3d 278 (9th Cir. 2000), overruled, Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), modified by Matter of Roldan. 41 22 I&N Dec. 512 (BIA 1999). 42 Matter of Pickering, 23 I&N Dec. 621 (BIA 2003); Matter of Marroquin, 23 I&N Dec. 705 (A.G. 2005). 36 37

6-9

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

regard to whether there were flaws in the underlying criminal procedure. The BIA later clarified this point when it held that a conviction vacated because it was legally defective is not a conviction for immigration purposes. 43 Thus, a vacating or setting aside of a conviction because of constitutional or other legal errors in the criminal proceeding, such as inaccurate translation, a failure to advise the accused of his or her rights, failure to advise the accused of the immigration consequences of a guilty plea, other constitutional errors, or the discovery of new evidence casting the accused’s guilt into question, can remove the conviction for immigration purposes. 44 State law may provide specific vehicles for vacating a conviction where the individual did not realize the immigration consequences. For example, § 1473.7 of the California Penal Code, which became effective in January 2017, contains specific provisions for post-conviction relief based upon a prejudicial error damaging the defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, or upon newly discovered evidence of actual innocence. 45 In addition, for convictions that have immigration consequences because of the length of the sentence imposed, a reduction of the sentence may serve to remove or lessen the immigration consequences. For example, in Matter of Song, 46 the respondent was found removable as an aggravated felon on the basis of his conviction for theft, with a sentence of one year in prison. On appeal to the Board of Immigration Appeals (BIA), the respondent presented evidence showing that his criminal sentence had been reduced to 360 days and moved to terminate his removal proceedings, asserting that he was no longer an aggravated felon. The BIA agreed and granted his motion to terminate. The BIA later clarified that the respondent need not show a substantive basis for the reduction in sentence in order for the reduction to have an ameliorative immigration effect. 47 That, said the BIA, was a matter for Congress to decide. 48 PRACTICE POINTER: Expungements of Drug Convictions. While there is generally no remedy for a conviction of a violation of a controlled substance offense, under the Federal First Offender Act (FFOA), expungement will still cure for immigration purposes a first offense of a federal conviction of simple possession of controlled substances. Not all state convictions of simple possession of controlled substances can be cured by an expungement. Within the Ninth Circuit, prior to July 14, 2011, the rule was that expungements under a state statute equivalent to the Federal First Offender’s Act, such as California’s deferred entry of judgment statute, would, like expungements under the FFOA, cure a drug possession conviction for immigration purposes. 49 Matter of Rodriguez-Ruiz, 22 I&N Dec. 1378 (BIA 2000). Id.; Matter of Adamiak, 23 I&N Dec. 878 (BIA 2006). 45 See Rose Cahn, “Practice Advisory: How to Use New California Law Penal Code § 1473.7 to Vacate Legally Invalid Convictions (ILRC 2016), available at www.ilrc.org/sites/default/files/resources/1473.7_practice_advisory.pdf. 46 23 I&N Dec. 173 (BIA 2001). 47 Matter of Cota, 23 I&N Dec. 849 (BIA 2005). 48 Id. 49 Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); see also Matter of Salazar-Regino, 23 I&N Dec. 233 (BIA 2002). 43 44

6-10

In its 2011 decision in Nunez-Reyes v. Holder, 50 however, the Ninth Circuit reversed itself and found that the constitutional guarantee of equal protection did not require treating an expunged state conviction of a drug crime the same as a federal drug conviction expunged under the FFOA. Nonetheless, the court decided to apply its decision only prospectively to immigrants convicted after the publication of its decision, since persons convicted prior to Nunez-Reyes might have relied on that decision in pleading guilty to minor drug crimes in order to avoid immigration consequences of more serious charges. Thus, for persons convicted on or before July 14, 2011, for first-time simple possession of a drug or paraphernalia whose convictions were later expunged, those expungements should still cure a state drug possession conviction for immigration purposes. Note that this is effective only in states within the Ninth Circuit. It does not matter in which state the conviction happened—the VAWA self-petitioner does not have to be convicted in the Ninth Circuit. However, the self-petitioner must be in removal proceedings in the Ninth Circuit or reside in the Ninth Circuit at the time of filing the adjustment application to benefit under this decision. What Is an Admission? Two of the criminal inadmissibility grounds apply to immigrants who admit having committed either a crime or the essential elements of a crime, even though they were never convicted of the crime. For an admission to be valid, the consular official or immigration agent must establish all of the following: 1. The act is considered criminal under the law in force where the act was alleged to have been committed; 2. The person was advised in a clear manner of the essential elements of the alleged crime; 3. The person has clearly admitted conduct constituting the essential elements of the crime; and 4. The admission was made in a free and voluntary manner. 51 Guilty pleas are considered admissions for immigration purposes. 52 However, the admission cannot have a greater effect than the criminal proceeding. 53 Thus, if after the guilty plea, the accused is not convicted, the immigration authorities cannot use the plea as an admission for purposes of inadmissibility. 54 How Is the Phrase “Term of Imprisonment” Defined? Some grounds of inadmissibility and deportability apply only to convictions for which there was a certain sentence, or term of imprisonment. Under the INA, a term of imprisonment includes the period of incarceration or confinement ordered by the court, regardless of any suspension of the imposition or execution of the sentence. 55 This means, for example, that if a person was 646 F.3d 684 (9th Cir. 2011). Matter of J, 21 I&N Dec. 285, 287 (BIA 1957); Matter of K, 7 I&N Dec. 594 (BIA 1957); Matter of GM-, 7 I&N Dec. 40 (BIA 1955); Matter of Winter, 12 I&N Dec. 638 (BIA 1968). 52 Matter of Seda, 17 I&N Dec. 550, 554 (BIA 1980). 53 Id.; Matter of Winter, 12 I&N Dec. 638 (BIA 1967, 1968). 54 Matter of Seda, 17 I&N Dec. at 554. 55 INA § 101(a)(48)(B). 50 51

6-11

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

sentenced to “five years in prison, suspended, upon completion of five years’ probation,” the term of imprisonment is five years, even if the person never served any of that time in prison. It is important to remember that the terms “sentence” and “term of imprisonment” under the INA refer only to incarceration or confinement. They do not include fines, community service, completion of special programs, or probation with no accompanying sentence to incarceration or confinement. § 6.9

Crimes Involving Moral Turpitude

Persons are inadmissible if they are convicted of or admit committing acts that constitute a crime involving moral turpitude (CIMT), other than a purely political offense, or an attempt or conspiracy to commit a CIMT. What Is a Crime Involving Moral Turpitude? A crime involving moral turpitude (CIMT) is one that involves conduct that is “inherently base, vile, or depraved,” and contrary to the private and social duties man owes to his fellow men or to society in general. 56 In determining whether a state or federal offense involves moral turpitude, courts employ a method known as the “categorical approach.” 57 Under this approach, the court determines whether the elements of the statute of conviction, rather than the applicant’s actual conduct, involve moral turpitude.” 58 Thus, under the categorical approach, the court considers only the statutory elements of the offense. The court must presume that the conviction rested upon the least of the acts criminalized under the statute of conviction. 59 In a “narrow range of cases,” where a crime is not categorically a CIMT, the court moves to a second step known as the modified categorical approach. 60 However, use of the modified categorical approach is permitted only if the prior state conviction rests on a divisible statute. 61 A divisible statute is one that “comprises multiple, alternative versions of [a] crime.” 62 More specifically, a criminal statute is divisible only if it (1) lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of “elements,” more than one combination of which could support a conviction, and (2) at least one (but not all)

Navarro-Lopez v. Gonzalez, 503 F. 3d 1063, 1068 (9th Cir. 2007); Matter of Silva-Trevino, 26 I&N Dec. 826, 833 (BIA 2016). 57 Silva-Trevino, 26 I&N Dec. at 827, 830. 58 Descamps v. United States, __ 570 U.S. __, 133 S. Ct. 2276, 2283 (2013); Olivas-Motta v. Holder, 716 F.3d 1199, 2015 (9th Cir. 2012). 59 Moncrieffe v. Holder, ___ U.S. ___, 133 S. Ct. 1678 (2013). 60 Id. See also, Taylor v. United States, 495 U.S. 475 (1990) (first devising the categorical approach); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-87 (2007) (importing the categorical apporach to the immigration context); Matter of Silva-Trevino, 26 I&N Dec. 826 (applying the categorical and modified categorical approach to evaluate crimes of moral turpitude). 61 Descamps, 133 S. Ct. at 2281. 62 Id. at 2284. 56

6-12

of those listed offenses or combinations of disjunctive elements is a “categorical match” to the relevant generic standard. 63 The modified categorical approach permits courts “to consult a limited class of documents” known as the “record of conviction.” 64 The record of conviction includes only the indictment, judgment of conviction, jury instructions, signed guilty plea, plea transcripts, and other comparable judicial records. 65 While it is essential to analyze the individual client’s record and statute of conviction, here are a few rules of thumb in determining whether an offense involves moral turpitude. Crimes that have fraud as an element are considered to involve moral turpitude. 66 Crimes of violence involving intent, such as domestic abuse 67 or rape, 68 also involve moral turpitude. On the other hand, involuntary manslaughter is not a crime of moral turpitude. 69 While simple assault does not involve moral turpitude, 70 an assault with intent to commit a felony involving moral turpitude is a crime of moral turpitude. 71 Some sexual crimes, such as prostitution, are considered crimes of moral turpitude, 72 as are some crimes against property, such as arson, 73 theft, 74 and robbery. 75 However, a conviction of simple DUI or DWI does not ordinarily involve moral turpitude. 76 Immigration law treatises provide lists of offenses that have been determined to be of moral turpitude. 77 These lists are useful for determining how the BIA has ruled on criminal offenses that are similar to your client’s. Always remember, however, that it is the specific statute under which your client was convicted that must be analyzed in determining whether the offense was of moral turpitude. What Is a “Purely Political Offense”? A purely political offense might be one of three types of offenses. First, it could be a baseless, trumped up, or fabricated charge. Second, a purely political offense might consist of an act directly against the state, such as treason, sedition, or espionage, that contains none of the elements of ordinary crimes. Finally, a purely political offense might be a “relative” political Id. at 2281, 2283; Matter of Chairez, 25 I&N Dec. 819, 822 (BIA 2016). Descamps, 133 S. Ct. at 2281. 65 Shepard v. United States, 544 U.S. 13, 26 (2005). 66 Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992); Jordan v. DeGeorge, 341 U.S. 223 (1951). 67 Matter of Tran, 21 I&N Dec. 291 (BIA 1996). 68 Matter of Beato, 10 I&N Dec. 740 (BIA 1964); Matter of Dingena, 11 I&N Dec. 723 (BIA 1966). 69 Matter of Lopez, 13 I&N Dec. 725 (BIA 1971). 70 Matter of Short, 20 I&N Dec. 136 (BIA 1989), Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996). 71 Matter of Logan, 17 I&N Dec. 367 (BIA 1980); Matter of Medina, 15 I&N Dec. 611 (BIA 1976). 72 Matter of Lambert, 11 I&N Dec. 340 (BIA 1965). 73 Matter of S, 3 I&N Dec. 617 (BIA 1949). 74 Matter of de la Nues, 18 I&N Dec. 140 (BIA 1981). 75 Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982); Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992). 76 Matter of Lopez-Meza, 22 I&N Dec. 1188 (BIA 1999). 77 Three excellent treatises of this type are Brady and Tooby, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws (Immigrant Legal Resource Center); Kesselbrenner and Rosenberg, Immigration Law and Crimes (West Group); and Kurzban, Immigration Law Sourcebook. 63 64

6-13

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

offense, that is, one in which a common offense such as murder, assault, or theft is so connected with a political act that the offense is regarded as political. 78 Exemptions The INA contains two exemptions for inadmissibility based upon conviction or admission of a CIMT. The first of these exemptions is for crimes that were committed when the individual was under the age of 18, while the second exempts “petty offenses.” Persons who have committed more than one CIMT, however, cannot claim either of the exemptions. 79 Under the first exemption, a person is not inadmissible if the crime was committed while the immigrant was under age 18 and the person both committed the crime and was released from prison more than five years before applying for a visa, other documentation, or admission to the United States. 80 This provision is different from the rule that findings of juvenile delinquency are not considered convictions for purposes of immigration law. If the person’s offense was adjudicated under juvenile proceedings, then the person has not been convicted of any crime and thus is not inadmissible. On the other hand, if the minor was convicted as if he or she were an adult, then this exemption comes into play. The second exemption, known as the “petty offense” exemption, has two requirements. First, it applies only to CIMTs that have a maximum possible penalty of one year of imprisonment. Second, the person must not have been sentenced to a term of imprisonment of more than six months, regardless of how much time the person actually served. 81 Example: Joe and his brother Sam stole $100 from a store in California. Joe was arrested for the crime and convicted. He was sentenced to four months in jail, suspended upon successful completion of probation. Sam was not arrested, but, overcome by guilt, he admitted his involvement in the crime to the police. Under California law, the maximum sentence for this offense is one year. This is a first offense for both Joe and Sam. Neither Joe nor Sam should be inadmissible. Theft is generally a crime involving moral turpitude, but both Joe and Sam appear to fall under the petty offense exemption. Joe was sentenced to less than six months imprisonment, and the offense of which he was convicted meets the exemption requirement of having a maximum sentence of one year or less. Sam was not convicted, but an admission could be enough to make him inadmissible. The advocate must examine Sam’s “admission” carefully to see whether it meets the elements of an admission for purposes of the criminal inadmissibility grounds. Even if it does, Sam should fall under the exemption since the offense he admits committing carries a maximum sentence of one year or less.

Matter of O’Cealleagh, 23 I&N Dec. 976, 980 (BIA 2006). See Matter of Deanda-Romo, 23 I&N Dec. 597, 598 n. 2 (BIA 2003). 80 INA § 212(a)(2)(A)(ii)(I). 81 INA § 212(a)(2)(A)(ii)(II). 78 79

6-14

§ 6.10 Multiple Criminal Convictions A person convicted of two or more offenses (other than purely political offenses), for which the aggregate sentences to confinement were five years or more, is inadmissible. 82 Under this ground, it is irrelevant whether the convictions occurred in a single trial, whether the offenses arose from a single scheme of misconduct, or whether they involved moral turpitude. 83 Where a person is convicted of two or more crimes in one proceeding and given concurrent sentences, the aggregate sentence is the longer of the two concurrent sentences. 84 For example, if a person is convicted of two counts of theft in the same proceeding and sentenced to two years for one offense and four years for the other, to be served “concurrently” (as opposed to “consecutively”), then the aggregate sentence for immigration purposes is four years. § 6.11 Controlled Substance Violations Of the two grounds of inadmissibility relating to drug crimes, one is for persons who have been convicted or admit commission of drug-related crimes, 85 while the other is for persons believed to be drug traffickers. 86 A person is inadmissible under the first of these grounds if he or she has been convicted of or makes a valid admission of having violated, or having conspired to violate, “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act).” 87 This ground covers virtually every type of drug. The words “any law or regulation … relating to a controlled substance” have been interpreted as broad enough to encompass convictions for being under the influence of drugs 88 and convictions for facilitating the unlawful sale of cocaine. 89 However, the drug involved must be one listed in the federal Controlled Substances Act. Thus, a state drug conviction is not categorically a conviction relating to a controlled substance if the state’s list of controlled substances is broader than the federal list. 90 The INA does not provide any waiver for controlled substance violations. Expungement of a conviction under the Federal First Offender’s Act (FFOA), 91 for first-time offenses of simple possession of a controlled substance may, in limited circumstances, remove the conviction for immigration purposes. Please refer to the Practice Pointer discussion of the FFOA at § 6.8 of this chapter. INA § 212(a)(2)(B). Id. 84 Matter of Aldebesheh, 22 I&N Dec. 983 (BIA 1999). 85 INA § 212(a)(2)(A)(i)(II). 86 INA § 212(a)(2)(C). 87 INA § 212(a)(2)(A)(i)(II). 88 Matter of Esqueda, 20 I&N Dec. 850 (BIA 1994); Matter of Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). 89 Matter of Del Risco, 20 I&N Dec. 109 (BIA 1989). 90 Mellouli v. Lynch, __ U.S. __, 135 S. Ct. 1980, 1990–91 (2015); Moncrieffe v. Holder, __ U.S. __, 133 S. Ct. 1678 (2013); Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1078 (9th Cir. 2007). 91 18 USC § 3607. 82 83

6-15

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

§ 6.12 Traffickers in Controlled Substances No conviction—or even valid admission—is necessary to exclude people believed to be drug traffickers. 92 This ground applies to “[a]ny alien who the consular or immigration officer knows or has reason to believe is or has been an illicit trafficker” in any controlled substance. 93 It also applies to persons who knowingly assist in the trafficking. 94 Example: Joey was arrested for selling marijuana when he was 14 years old and was found guilty in a juvenile court of selling a controlled substance. The general rule is that findings of delinquency by a juvenile court are not convictions for immigration purposes. 95 However, for purposes of the drug trafficking ground of inadmissibility, the immigration adjudicator need have only a “reason to believe” that Joey has sold drugs to find him inadmissible under this ground. Based on his juvenile delinquency finding, he has likely triggered a reason to believe he committed drug trafficking. “Illicit trafficking” refers to unlawful trading or dealing in a controlled substance. 96 An illicit trafficker includes not only persons who smuggle or attempt to smuggle drugs into the United States, but also people who serve as conduits for the drug trade within the United States. 97 A person can be an illicit trafficker even if he or she has committed only one transgression. 98 The drug trafficking inadmissibility ground also makes inadmissible the spouse, son, or daughter of a drug trafficker, if the spouse, son, or daughter has obtained any financial or other benefit from the trafficking within the previous five years, and if he or she knew or reasonably should have known that the benefit was from illicit trafficking. 99 PRACTICE POINTER: Marijuana Presents an Inadmissibility Risk for Noncitizens. States across the country are enacting laws to decriminalize the use of marijuana. As of this manual’s writing (March 2017), 28 states 100 and the District of Columbia have legalized medical marijuana. Eight states 101 and the District of Columbia have legalized recreational marijuana for adults. Noncitizens residing in these states may reasonably think that using marijuana in accordance with state law will not hurt their immigration status, or their prospects for getting lawful status.

INA § 212(a)(2)(C). Id. 94 Id. 95 Matter of Devison, 22 I&N Dec. 1362 (BIA 2000); Matter of Ramirez-Reveiro, 18 I&N Dec. 135 (BIA 1981). 96 Matter of Davis, 20 I&N Dec. 536, 541 (BIA 1992). 97 Matter of R-H-, 7 I&N Dec. 675 (BIA 1958). 98 Matter of Rico, 16 I&N Dec. 181 (BIA 1977). 99 INA § 212(a)(2)(C)(ii). 100 Medical marijuana is legal in Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, as well as the District of Columbia. 101 Recreational marijuana is legal for adults in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington, as well as the District of Columbia. 92 93

6-16

Unfortunately, that is wrong. It is still a federal offense to possess marijuana, and federal law controls for immigration purposes. In particular, a noncitizen who admits to an immigration official that she possessed marijuana can be found inadmissible, denied entry into the United States, or have her application for lawful status or even naturalization denied. This is true even if the conduct was permitted under state law, the person never was convicted of a crime, and the conduct took place in her own home. State laws legalizing marijuana provide many benefits, but unfortunately they also are a trap for unwary immigrants. Believing that they have done nothing wrong, immigrants may readily admit to officials that they possessed marijuana. Noncitizen clients should be warned that marijuana poses a very serious risk to their current or future immigration status, even in states where it is legal, and consult with an attorney before disclosing anything to immigration about marijuana possession or use. § 6.13 Prostitution and Commercialized Vice Unlike the other grounds included under INA § 212(a)(2), prostitution and commercialized vice are not technically “criminal” inadmissibility grounds. They apply even to persons who come from countries where prostitution is legal 102 and presumably also to those who are coming to states of the United States where prostitution is legal. This ground’s three subsections make the following persons inadmissible: 1. Persons who are coming to the United States to engage in prostitution or who have engaged in prostitution within 10 years of the date of application for a visa, adjustment of status, or entry into the United States; 2. Persons who are procurers of prostitutes, or who attempt to procure, or who receive the proceeds of prostitution, or people who have done any of these activities within 10 years of the date of application for a visa, adjustment of status, or entry into the United States; 3. Persons who are coming to the United States to engage in unlawful commercialized vice, whether or not it is related to prostitution. 103 The BIA has determined that solicitation of prostitution on one’s own behalf does not constitute procuring of prostitutes for purposes of this inadmissibility ground. 104 However, solicitation of prostitution can constitute a crime involving moral turpitude. 105 § 6.14 Immunity from Prosecution This inadmissibility ground bars admission into the United States of “any alien … for whom immunity from criminal jurisdiction was exercised with respect to [a serious criminal] offense.” 106 This ground was intended to exclude former foreign diplomats who have escaped 22 CFR § 40.24(c). INA § 212(a)(2)(D). 104 Matter of Gonzalez-Zoquiapan, 24 I&N Dec. 549, 554 (BIA 2008). 105 Id.; see also Rohit v. Holder, 670 F.3d 1085, 1091 (9th Cir. 2012). 106 INA § 212(a)(2)(E). 102 103

6-17

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

punishment for serious traffic offenses. The term “serious crimes,” for purposes of this inadmissibility ground, includes any felony, any crime of violence, or any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another. 107 § 6.15 Particularly Serious Violations of Religious Freedom Foreign government officials who were responsible for or directly carried out particularly severe violations of religious freedom during the previous 24 months, and their spouses and children, are inadmissible. 108 The term “particularly severe violations of religious freedom” includes arbitrary prohibitions on, restrictions of, or punishment for assembling for peaceful religious activities, speaking freely about one’s religious beliefs, changing one’s religious beliefs and affiliation, possession and distribution of religious literature, and raising one’s children in the religious teachings and practices of one’s choice. It also includes any of the following acts if committed on account of an individual’s religious belief or practice: detention, interrogation, imposition of an onerous financial penalty, forced labor, forced mass resettlement, imprisonment, forced religious conversion, beating, torture, mutilation, rape, enslavement, murder, and execution. 109 § 6.16 Significant Traffickers in Persons Under § 111(b) of the Trafficking Victims Protection Act of 2000, the President must prepare a report to Congress publicly identifying foreign persons to be sanctioned under the Act. Any immigrant who is listed in that report, or whom the consular officer or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, is inadmissible. 110 Spouses, sons, and daughters (except unmarried children under 21) of traffickers are also inadmissible, if they have knowingly obtained any financial or other benefit from the trafficker’s illicit activity. 111 The term “severe forms of trafficking in persons” is defined as either (1) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform the commercial sex act is under 18 years of age, or (2) the recruitment, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion, for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery. 112

INA § 101(h). INA § 212(a)(2)(G). 109 22 USC § 6402 [§ 3 of the International Religious Freedom Act of 1998]. 110 INA § 212(a)(2)(H). 111 INA § 212(a)(2)(H)(ii & iii). 112 28 CFR § 1100.25, 66 Fed. Reg. 38513, 38519 (July 24, 2001) (interim rule with request for comments). 107 108

6-18

§ 6.17 Aggravated Felonies There is no inadmissibility ground aimed specifically at aggravated felons, 113 but the INA references them under many other provisions that limit aggravated felons to fewer benefits and procedural protections than other inadmissible immigrants. For example, persons removed from the United States based on a conviction for an aggravated felony are permanently inadmissible, although there is a possible remedy under INA § 212(a)(9)(A). 114 In addition, persons who were admitted to the United States as LPRs and were then convicted of an aggravated felony are ineligible for the INA § 212(h) waivers of the criminal inadmissibility grounds. 115 However, the Board of Immigration Appeals and a number of circuit courts have determined that conviction of an aggravated felony is not a bar to eligibility for the 212(h) waivers for persons who adjusted status to LPR, rather than having been admitted after consular processing. 116 § 6.18 212(h) Waivers for Criminal Conduct for Immigrants Under INA § 212(h), there are both VAWA and general waivers available for immigrants who meet the requirements and who are inadmissible because of the following: (1) crimes of moral turpitude; (2) multiple criminal convictions; (3) prostitution and commercialized vice; (4) immunity from prosecution for serious criminal misconduct; and (5) a single offense of simple possession of 30 grams or less of marijuana. There is no waiver available for controlled substance traffickers or for controlled substance offenses, except for a single offense of simple possession of 30 grams or less of marijuana. We will set out the requirements for the INA § 212(h) waivers here, and will discuss preparing the waiver application in Chapter 7. Waiver for VAWA Self-Petitioners The statute provides a special waiver for VAWA self-petitions. 117 The only statutory requirement for the waiver is that the applicant qualify for classification under INA § 204(a)(1)(A)(iii) or (iv) [abused spouses and children of USCs] or under INA § 204(a)(1)(B)(ii) or (iii) [abused spouses and children of LPRs]. Notably, there is no requirement that refusal to grant adjustment or a visa would cause extreme hardship to a qualifying relative. The waiver is still adjudicated in the

The term “aggravated felony” is defined through a lengthy list of specific offenses at INA § 101(a)(43). Several excellent resources cover aggravated felonies, including Kathy Brady and Norton Tooby, Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Law (ILRC); Dan Kesselbrenner and Lory D. Rosenberg, Immigration Law and Crimes, and the National Immigration Project of the National Lawyers Guild, Immigration Law and Defense, especially Chapter 6. 114 INA § 212(a)(9)(A). 115 INA § 212(h). 116 Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015); see also, e.g., Bracamontes v. Holder, 675 F.3d 380, 386-387 (4th Cir. 2012); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); Papzoglou v. Holder, 725 F.3d 790, 793 (7th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1054 (9th Cir. 2014); Lanier v. Attorney General, 631 F.3d 1363, 1366-67 (11th Cir. 2011). 117 INA § 212(h)(1)(C). 113

6-19

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

discretion of the Attorney General, however, meaning that the favorable factors in the applicant’s case must outweigh the unfavorable factors. 118 General Waivers There are also two general waivers under INA § 212(h). The first of these is available to spouses, parents, sons, or daughters of USCs or LPRs. To obtain such a waiver, the applicant must establish that his or her inadmissibility would result in extreme hardship to the USC or LPR spouse, parent, son, or daughter. 119 The second general waiver applies to any immigrant, if the events resulting in inadmissibility occurred more than 15 years before the person’s application for visa, entry, or adjustment. 120 It also allows the waiver of the prostitution or procuring of prostitutes ground, regardless of the date of the activity. 121 Before the USCIS can grant either of these waivers, it must determine that the immigrant’s admission would not be contrary to U.S. national welfare, safety, or security and that the immigrant has been rehabilitated. 122 Restrictions on Both the General and VAWA § 212(h) Waivers There are several restrictions that apply to both the VAWA and general waivers under INA § 212(h). First, persons who were admitted to the United States as permanent residents are not eligible for the waiver if (1) they have been convicted of an aggravated felony, or (2) they have not resided lawfully and continuously in the United States for seven years prior to the initiation of removal proceedings. 123 However, as noted earlier, the Board of Immigration Appeals and some courts have determined that this provision does not apply to persons who became LPRs through adjustment of status rather than through admission following consular processing. 124 Second, persons who have been convicted of or who admit committing criminal acts involving murder or torture are specifically barred from obtaining an INA § 212(h) waiver. 125 A further restriction was added in 2003, when the Attorney General promulgated a regulation providing that, where an applicant’s crime is violent or dangerous, the Attorney General (and presumably the Department of Homeland Security, after March 1, 2003) will generally not exercise discretion favorably under a 212(h)(2) waiver unless there were extraordinary circumstances. Examples of extraordinary circumstances for this purpose include national security or foreign policy considerations or cases in which denial of the application for adjustment or a visa would result in exceptional or extremely unusual hardship. 126

Matter of Mendez, 21 I&N Dec. (BIA 1996). INA § 212(h)(1)(B). 120 INA § 212(h)(1)(A). 121 Id. 122 Id. 123 INA § 212(h). 124 See cases cited at note 123, supra. 125 Id. 126 8 CFR § 212.7(d). 118 119

6-20

§ 6.19 National Security Grounds The political/national security grounds are divided into five categories: 1. Persons seeking to enter the United States to engage in prejudicial and unlawful activities, including espionage, sabotage, “any unlawful activity,” or the violation or evasion of “any law prohibiting the export from the United States of goods, technology or sensitive information”; 127 2. Persons who have engaged in or are likely to engage in terrorist activity; 128 3. Persons whose admission into the United States would bring about serious foreign policy consequences; 129 4. Members of the Communist or any totalitarian party 130 (this inadmissibility ground applies only to immigrants); 5. Participants in Nazi persecution or genocide. 131 Most of the national security grounds arise only infrequently in the cases of VAWA selfpetitioners. For this reason, we will discuss only one of those grounds—that of membership in a Communist or totalitarian party. Membership in a Communist or Totalitarian Party The Immigration and Nationality Act (INA) bars the admission of immigrant visa applicants who are or have been members of or affiliated with the Communist party or any totalitarian party. 132 In addition, membership must be a “meaningful association” to be the basis of inadmissibility. 133 The term “totalitarian party” means an organization that advocates the establishment in the United States of a one-party system that forcibly suppresses opposition. 134 There are broad exceptions to this inadmissibility ground. One exception is for persons whose membership or affiliation was involuntary, was solely when the person was under 16 years of age, was by operation of law, or was required in order to obtain employment, food rations, or other essentials of living. 135 A second exception applies if the person’s membership ended at least two years before the person applies for a visa (five years for persons who belonged to a Communist or totalitarian party that controlled the government). 136 Finally, the inadmissibility ground may be waived for immigrants who are the spouse, parent, son, daughter, brother, or sister

INA § 212(a)(3)(A). INA § 212(a)(3)(B). 129 INA § 212(a)(3)(C). 130 INA § 212(a)(3)(D). 131 INA § 212(a)(3)(E). 132 INA § 212(a)(3)(D)(i). This inadmissibility ground does not apply to non-immigrant applicants. Id. 133 Matter of Rusin, 20 I&N Dec. 128 (BIA 1989). 134 INA § 101(a)(47). 135 INA § 212(a)(3)(D)(ii). 136 INA § 212(a)(3)(D)(iii). 127 128

6-21

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

of a USC or LPR, in order to assure family unity, or when it is otherwise in the public interest, as long as the immigrant is not a threat to U.S. security. 137 § 6.20 Public Charge Prior to the Violence against Women Reauthorization Act of 2013 (VAWA 2013), 138 VAWA self-petitioners were subject to the public charge ground of inadmissibility. That ground bars admission to anyone who, “in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status,” is likely to become a public charge. 139 Important special VAWA provisions, however, exempted VAWA self-petitioners from filing an affidavit of support 140 and prohibited the USCIS from considering for public charge purposes any benefits a self-petitioner received because of his or her status as an abused immigrant. 141 VAWA self-petitioners were still required to present some evidence that they will not become a public charge. VAWA 2013 exempted VAWA self-petitioners, applicants for U nonimmigrant status, and “qualified aliens” from the public charge ground of inadmissibility. 142 Thus, VAWA selfpetitioners should not need to present any evidence of employment or a job offer. Until we are advised otherwise, VAWA self-petitioners should continue to file Form I-864W to establish that they are exempt from the Form I-864 affidavit of support requirements that typically apply to those who need to show they are subject to the public charge inadmissibility ground. § 6.21 Previous Immigration Violations: Overview INA § 212(a)(6) covers certain immigration-related misconduct. These grounds of inadmissibility apply to the following categories of immigrants: • • • • • • • •

Persons present in the United States without being lawfully admitted or paroled; Persons who fail to attend removal proceedings; Persons who engage in fraud or misrepresentation; Persons who falsely claim United States citizenship; Stowaways; Smugglers; Persons who have been found to have committed civil document fraud under INA § 274C; and Foreign students who study at public institutions.

INA § 212(a)(3)(D)(iv). Pub. L. 113-4, 127 Stat. 54 (March 7, 2013). 139 INA § 212(a)(4)(A). 140 INA § 212(a)(4)(C)(i). 141 INA § 212(s). 142 Section 894, VAWA 2013, supra n. 145. 137 138

6-22

§ 6.22 Immigrants Present without Permission or Parole This ground of inadmissibility applies to immigrants who are present in the United States without being admitted or paroled or who arrive at a place other than a designated port of entry. 143 This ground took effect on April 1, 1997. 144 It does not apply to persons who leave the United States for consular processing, as they will not then be present in the United States. 145 In a memorandum of April 11, 2008, USCIS issued an important interpretation concerning INA § 212(a)(6)(A). In that memorandum, USCIS interprets the exemption of VAWA self-petitioners from the inspection and admission or parole requirement for adjustment under INA § 245(a) as effectively waiving inadmissibility under INA § 212(a)(6)(A) for beneficiaries of VAWA selfpetitions. 146 That memorandum is attached as Appendix 5-C to this manual. Thus, although the INA provides two exceptions to the INA § 212(a)(6)(A) inadmissibility ground, VAWA selfpetitioners may rely on the USCIS April 2008 memorandum, rather than specifically asserting that one of the two statutory exceptions apply. 147 We include the following description of the two exceptions, because the INA § 212(a)(6)(A) inadmissibility ground is also a ground of removal, and self-petitioners may possibly need to assert the exceptions in that context. Which of the two exceptions applies depends on when the self-petitioner entered the United States. Under the first exception, a self-petitioner who entered before April 1, 1997, need show only status as a VAWA self-petitioner. 148 The second exception deals with self-petitioners who entered on or after April 1, 1997. These persons must meet the additional requirement of showing a substantial connection between the entry without inspection and battery or extreme cruelty inflicted on the applicant or upon the applicant’s child. This includes battery or extreme cruelty inflicted on the applicant by a spouse, parent, or member of the spouse or parent’s family residing in the same household with the applicant. It also includes battery or extreme cruelty inflicted on the applicant’s child by one of those persons, if the spouse or parent consented to or acquiesced in the battery or extreme cruelty and the applicant did not participate in the battery or extreme cruelty. 149

INA § 212(a)(6)(A). Section 309(a), Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [hereinafter “IIRIRA”]; see also Lori Scialabba, Assoc. Dir. Refugees, Asylum, and Int’l Opers. Directorate, USCIS, et al., “Section 212(a)(6) of the Immigration and Nationality Act, Illegal Entrants and Immigration Violators, HQ 70/21.1, AD07-18, March 3, 2009, at 8, available at www.uscis.gov/USCIS/Laws/Memoranda/Static_F iles_Memoranda/2009/section212_a_6_immi_natl_act_illegal_violators.pdf. 145 Scialabba memorandum, supra n. 151, at 8. 146 Michael L. Aytes, Assoc. Dir. Dom. Opers., USCIS, Re: “Adjustment of status for VAWA selfpetitioner who is present without inspection,” April 11, 2008, at 2. 147 See also Scialabba memorandum, supra n. 151, at 9. 148 Section 301(c)(2), IIRIRA. “(2) Transition for Battered Spouse or Child Provision. The requirements of subclauses (II) and (III) of § 212(a)(6)(A)(ii) of the Immigration and Nationality Act, as inserted by paragraph (1), shall not apply to an alien who demonstrate that the alien first arrived in the United States before the title III-A effective date (described in § 309(a) of this division [Sec. 309(a) of IIRIRA].” The “title III-A effective date” is “the first day of the first month beginning more than 180 days after the date of the enactment of this Act” [enacted Sept. 30, 1996]. Section 309(a), IIRIRA. 149 INA § 212(a)(6)(A)(ii)(II). 143 144

6-23

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

§ 6.23 Failure to Attend Removal Proceedings Another bar to admissibility applies to persons who without reasonable cause fail to attend their removal proceedings. 150 They are inadmissible for a period of five years following their subsequent departure or removal from the United States. 151 The inadmissibility ground of failure to attend a removal proceeding applies only to immigrants who failed to attend removal proceedings—it does not apply to immigrants who failed to attend deportation or exclusion proceedings. In other words, the ground applies only to immigrants who fail to attend proceedings that were initiated on or after April 1, 1997, and who were served with the Form I-862 Notice to Appear. Moreover, under the language of the statute, this ground does not apply unless the person departed from the United States after failing to attend the removal hearing. 152 Failure to attend removal proceedings also carries other consequences. First, persons who fail to attend removal proceedings after receiving notice may be ordered removed in absentia. 153 Moreover, under INA § 240(b)(7), an individual is ineligible for ten years for certain forms of relief, where the person (1) has received oral notice of the time and place of proceedings and the consequences of failing to appear, (2) fails to appear for less than “exceptional circumstances,” and (3) is ordered deported in absentia. The affected forms of relief are cancellation of removal, voluntary departure, adjustment of status, change of status, and registry. 154 Please see the Practice Pointer on Treatment of Statutory Bars to Relief, in Chapter 5 following § 5.7, for additional information on the consequences of in absentia removal. Under the statute’s terms, persons who establish “reasonable cause” for their failure to attend the removal proceeding are not inadmissible” under INA § 212(a)(6)(B). “Reasonable cause” is something that is within the individual’s reasonable control. 155 It is something less than the “exceptional circumstances” that would justify a failure to appear for removal proceedings for purposes of rescission of in absentia removal orders 156 and overcoming the INA § 240(b)(7) bar to relief resulting from failure to attend removal proceedings. 157 The INA defines “exceptional circumstances” for those purposes to include battery or extreme cruelty to the immigrant or any child or parent of the immigrant. 158 Thus, since the domestic abuse a VAWA self-petitioner or her child experienced would constitute exceptional circumstances, it should also satisfy the “reasonable cause” standard for purposes of INA § 212(a)(6)(B). INA § 212(a)(6)(B). Scialabba memorandum, supra n. 151, at 12. 152 INA § 212(a)(6)(B); Scialabba memorandum, supra n. 151, at 12. 153 INA § 240(b)(5). The Board of Immigration Appeals has provided guidance for determining when an in absentia order may properly be entered. Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). If an in absentia order has been ordered improperly, then the respondent may file a motion to reopen the removal proceedings. INA § 240(b)(5)(C). Such a motion to reopen stays the respondent’s deportation. Id. 154 INA § 240(b)(7). See also Scialabba memorandum, supra n. 151, on the notice requirement. 155 Scialabba memorandum, supra n. 151, at 13. 156 INA § 240(b)(5)(C)(i). 157 INA § 240(b)(7).; Scialabba memorandum, supra n. 151, at 13. 158 The Violence against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960, § 813(a), amending INA § 240(e)(1). 150 151

6-24

§ 6.24 Fraud or Willful Misrepresentation A person is inadmissible if he or she commits fraud or willfully misrepresents a material fact in attempting to obtain, or in obtaining, a visa, other documentation, admission into the United States, or other benefit under the INA. 159 “Other documentation” refers to documents required at the time of the immigrant’s admission to the United States, such as reentry permits, border crossing cards, U.S. Coast Guard identity cards, or U.S. passports. 160 “Other benefit” includes, among other things, adjustment of status applications, all visa petitions, requests for extension of stay, change of nonimmigrant classification, requests for employment authorization, and voluntary departure requests. 161 For the misrepresentation to be willful, intent to deceive is not necessary. It is sufficient that the person made the false statement deliberately and voluntarily and that he knew the statement was false. 162 Persons who are mentally incompetent and small children who are incapable of independently forming an intent to defraud should not be deemed inadmissible for material misrepresentations. 163 Only misrepresentations of material facts will make a person inadmissible. In this context, a misrepresentation will be found to be material if: (1) the person was inadmissible on the true facts, or (2) the misrepresentation tended to shut off a line of inquiry that was relevant to the applicant’s eligibility, and (3) the line of inquiry might have resulted in a proper determination that he or she not be admitted. 164 When the true facts would not have made the applicant inadmissible, but it has been established that the misrepresentation tended to cut off a relevant line of inquiry, the applicant has the burden of persuasion and production to show that the inquiry would not have resulted in a proper determination that he or she was inadmissible. 165 Under this ground, only misrepresentations to U.S. officials (generally a consular or immigration officer) are the basis of inadmissibility. 166 Therefore, buying documents from a private individual does not make an immigrant inadmissible under the ground of procuring a document by fraud or misrepresentation. Nor does using false documents to procure an entry into the United States make an immigrant inadmissible, unless they are presented to a U.S. official. 167 The possession, making, purchase, or use of false immigration documents, however, could subject the individual to criminal prosecution or to a civil order of document fraud and, therefore, to inadmissibility for

INA § 240(a)(6)(C). 9 FAM NN 7.1 and 7.2. to 22 CFR § 40.63; Scialabba memorandum, supra n. 151, at 17. 161 Scialabba memorandum, supra n. 151, at at 18. 162 Matter of Tijam, 22 I&N Dec. 408 (BIA 1998); Scialabba memorandum, supra n. 151, at 16-20. 163 Scialabba memorandum, supra n. 151, at 22. 164 Matter of Ng, 17 I&N Dec. 536 (BIA 1980); Matter of S and B-C-, 9 I&N Dec. 436 (AG 1960); 9 FAM N. 6.1 to 22 CFR § 40.63; Scialabba memorandum, supra n. 151, at 19-20. 165 Matter of Tijam, 22 I&N Dec. 408; Scialabba memorandum, supra n. 151, at 19-20. 166 Matter of Y-G-, 20 I&N Dec. 794 (BIA 1994); 9 FAM NN 4.3 & 7.1 to 22 CFR § 40.63; Scialabba memorandum, supra n. 151, at 20. 167 Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991); Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984). 159 160

6-25

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

either conviction or admission of a crime of moral turpitude 168 or for a final civil order of document fraud. 169 A timely retraction of a misrepresentation may sometimes prevent it from being considered a basis for inadmissibility. 170 A retraction should be made at the first opportunity. Example: Estella immigrated through her U.S. citizen husband. During her adjustment interview, she told two lies to the USCIS examiner. First, she told the officer that she had no other relatives living in the United States. Second, she told the officer that she had never been arrested or convicted, when in fact she had been arrested for and convicted of theft and sentenced to a year’s imprisonment. Is Estella inadmissible under the “willful misrepresentation of material fact” ground? The first lie may not be material. The fact that Estella has other relatives in the United States would likely not have made any difference in the outcome of her adjustment application. While it was a lie, it was not material and therefore was not visa fraud. The second lie, however, was material. If the officer had known that Estella had been convicted of theft, he might have determined that she was inadmissible under the criminal inadmissibility grounds. Estella’s lie made a difference in the outcome of her case and is therefore material. Estella may, however, be eligible for the INA § 212(i) waiver of the misrepresentation inadmissibility ground. Read on. § 6.25 INA § 212(i) Waivers for Fraud or Misrepresentation INA § 212(i) contains both general and VAWA-specific waivers for the fraud or misrepresentation inadmissibility ground. We will set out the requirements for those waivers here and go into more detail about preparing the application in the next chapter. The VAWA-specific waiver provides that persons with approved VAWA self-petitions are eligible for the waiver if they demonstrate extreme hardship to themselves or to their USC, LPR, or “qualified alien” parent or child. 171 The term “qualified alien” includes LPRs, asylees, refugees, persons paroled into the country for at least one year, immigrants granted withholding of deportation or removal, immigrants granted conditional entry under INA § 203(a)(7) as it existed prior to April 1, 1980, and Cuban and Haitian entrants. 172 The term also includes abused immigrants or the parents of abused children, if they have an approved VAWA self-petition or application for VAWA cancellation of removal or if they have a pending petition for one of those types of relief that sets forth a prima facie case of eligibility. 173 We will discuss the terms “extreme hardship” and the other requirements for this waiver in more detail in the next chapter.

INA § 212(a)(2)(A)(i)(I). INA § 212(a)(6)(F). 170 9 FAM 40.63, N.4.6; Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973); Valadez-Munoz v. Holder, 623 F.3d 1304, 1309-10 (9th Cir. 2010); Scialabba memorandum, supra n. 151, at 21-22. 171 INA § 212(i). 172 8 USC § 1641(b). 173 8 USC § 1641(c). 168 169

6-26

In order to qualify for the general fraud or misrepresentation ground waiver, the applicant must establish that his or her USC or LPR spouse or parent would suffer extreme hardship if the immigrant were denied admission. 174 Thus, the range of persons whose hardship is considered is much narrower than the range for the VAWA misrepresentation waiver. § 6.26 False Claim of U.S. Citizenship An immigrant who, on or after September 30, 1996, 175 falsely represents himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other federal or state law is inadmissible. 176 This would include false claims of citizenship to an immigration officer for purposes of gaining admission to the United States, but could also include false claims of citizenship to a state official in order to gain certain benefits. It does not matter that the statement is not made under oath. 177 However, USCIS policy highlights specific requirements for a determination that the inadmissibility ground applies. First, U.S. citizenship must have been material to the purpose or benefit sought. 178 Second, the applicant must have known that the statement was false. 179 Third, the applicant must have had the capacity to knowingly make a false statement. 180 USCIS officers should consider all relevant factors in determining whether the applicant had this capacity, including age, level of education, background, mental capacity, level of understanding, ability to appreciate the difference between truth and falsity, and other relevant circumstances. 181 The fact that the applicant was under age 18 when he or she made the statement is not in itself sufficient to establish lack of capacity. The officer should evaluate whether the under-age applicant had the maturity and judgment to understand and appreciate the nature and consequences of his or her actions, due to age or cognitive impairment, at the time the false claim was made. 182 A client who has made a false claim to U.S. citizenship prior to September 30, 1996, will not be subject to the severe permanent bar under INA § 212(a)(6)(C)(ii), but may be subject to the regular inadmissibility ground for misrepresentation, under INA § 212(a)(6)(C)(i), if the misrepresentation is material and willful and made for the purpose of a benefit under the INA. As noted above, there is a special VAWA waiver for general misrepresentations under INA § 212(a)(6)(C)(i). There is a narrow waiver for certain false claims of U.S. citizenship. This waiver applies only to individuals who (1) are children of USC parents (or former USC parents), including adopted children; (2) resided in the United States before the age of 16; and (3) reasonably believed they

INA § 212(i). IIRIRA § 344(a). 176 INA § 212(a)(6)(C)(ii). 177 USCIS Policy Manual: False Claims to U.S. Citizenship, at 2.B.1., available at www.uscis.gov/policymanual/Print/PolicyManual-Volume8-PartK.html. 178 Id. at 2.E. 179 Id. at 2.D.1. 180 Id. at 2.D.4. 181 Id. 182 Id. 174 175

6-27

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

were U.S. citizens. 183 The law is retroactive to the date of IIRIRA’s enactment, September 30, 1996. 184 PRACTICE POINTER: Arguments on Behalf of Clients Who May Have Falsely Claimed Citizenship. With only a very limited waiver, the consequences of a false claim to U.S. citizenship are severe. Advocates should analyze the facts of a self-petitioner’s case carefully to determine whether the facts actually show that the self-petitioner made a false claim to U.S. citizenship and, if so, whether it was for a “purpose or benefit” under the law and was made knowingly. Here are some ideas that might help. First, did the applicant claimed to be a non-citizen U.S. national rather than a U.S. citizen. Falsely claiming to be a U.S. non-citizen national does not violate the inadmissibility ground for false claims of U.S. citizenship. 185 This may have occurred if the client checked the box “citizen or national” on the version of Form I-9 used before April 3, 1999. In that case, USCIS policy is to place the burden on the applicant to demonstrate that the applicant understands the difference between a citizen and a national. 186 The April 3, 1999, and later versions of Form I-9 clearly distinguish between the two categories, so that there is no need to demonstrate an understanding of the difference between them. 187 Second, advocates report that some cases have been successfully resolved when the selfpetitioner is able to show that the false claim to U.S. citizenship was part of the abuse and control. For example, if the abuser coerced the self-petitioner to say that she was a U.S. citizen or to show false documentation of citizenship, that may not be deemed to be a false claim to U.S. citizenship because it was involuntary on the self-petitioner’s part. Finally, did the client make a retraction that was voluntary and without delay? See Matter of Namio, 14 I&N De. 412, 414 (BIA 1973). 188 If the client does appear inadmissible for having made a false claim to U.S. citizenship, then the advocate should consider other forms of relief. These could include a U visa for which this admissibility ground can be waived (although the U visa and U adjustment of status is granted in the exercise of discretion, requiring a balancing of the false claim and any other negative discretionary factors with the favorable factors in the client’s case). In addition, under certain circumstances, the false claim to citizenship will not bar VAWA cancellation of removal. While being deportable for falsely claiming U.S. citizenship will make an individual ineligible for VAWA cancellation, being inadmissible under that ground may not disqualify an individual from VAWA cancellation of removal. Please see Chapter 11, § 11.10 of this manual for more information on the effect of a false claim to U.S. citizenship on eligibility for VAWA cancellation. INA § 212(a)(6)(C)(ii)(II). Sec. 201(b)(3), Child Citizenship Act of 2000, Pub. L. No. 106-395, Act of Oct. 30, 2000, 114 Stat. 1631. 185 USCIS Policy Manual, supra n. 179, at 2.B.4. 186 Id. 187 Id. 188 Id. at 28. 183 184

6-28

§ 6.27 Stowaways Stowaways are inadmissible. There is no specific waiver available for this ground of inadmissibility. 189 § 6.28 Smugglers and Encouragers of Unlawful Entry Persons are inadmissible if they have at any time knowingly encouraged, induced, assisted, abetted or aided any other immigrant to enter the United States illegally. 190 There is no requirement that the smuggling have been for gain. Individuals who qualified for Family Unity (a program to allow admission of spouses and children of persons granted legalization, or amnesty, under the Immigration Reform and Control Act of 1986) and who are applying for either Family Unity or an immigrant visa under the immediate relative or the second preference family visa provisions of the INA are not subject to this ground. 191 There is a waiver for persons who have smuggled immediate family members. This waiver is available to (1) LPRs who are returning from a visit abroad, and (2) applicants for permanent residence who are immediate relatives of U.S. citizens or fall under the family-based immigration preferences. Even for these individuals, the waiver is available only if the immigrant they encouraged or assisted to enter illegally was, at the time of the smuggling, their “spouse, parent, son or daughter (and no other individual).” These waivers may be granted for humanitarian purposes, to assure family unity, and when it is in the public interest. 192 § 6.29 Final Civil Document Fraud Order An immigrant is inadmissible if he or she is subject to a final order for violation of INA § 274C, which authorizes civil penalties for making or using false documents or using documents issued to other persons, for purposes of satisfying any requirement imposed by the INA. 193 Many of these activities are also prohibited under criminal statutes and may be punished criminally. However, to impose civil penalties under INA § 274C, an administrative law judge (ALJ) must determine by only a preponderance of evidence that the violations have been committed. There is no administrative appeal from an order by an ALJ under this section, and the order becomes final unless the Attorney General vacates or modifies it within 30 days of the decision. Once the order becomes final, the affected person has 45 days to file a petition for review of the order with a federal court of appeals. 194 There is a waiver for this ground of inadmissibility. The waiver is available only to the following: (1) lawful permanent residents who temporarily left the country voluntarily and are otherwise admissible, and (2) immigrants seeking admission or adjustment based on immediate relative or family-preference petitions. For both categories, the applicants must not have been previously n

INA § 212(a)(6)(D). INA § 212(a)(6)(E). 191 INA § 212(a)(6)(E)(ii). 192 INA § 212(d)(11). 193 INA § 212(a)(6)(F). 194 INA § 274C. 189 190

6-29

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

fined under INA § 274C and must have committed the offense to assist, aid, or support only the immigrant’s spouse or child. 195 § 6.30 Foreign Students Foreign students who attend public schools in violation of the restrictions of INA § 214(l) 196 are inadmissible for a period of five years from the date of the violation. 197 This provision is not retroactive, and applies only to students who obtain (or extend) F-1 student status after November 29, 1996. 198 There is no waiver of the five-year bar. § 6.31 Ineligible for Citizenship Immigrants are inadmissible if they are “ineligible to citizenship.” 199 The term “ineligible to citizenship,” refers to immigrants who are permanently barred from becoming U.S. citizens because of laws relating to military service. 200 In addition, any person who has left or remained outside the United States to avoid or evade military training or service in a time of war or a period of national emergency is inadmissible. 201 This does not apply to a person who was a nonimmigrant at the time of departure and seeks to reenter the United States as a nonimmigrant. 202 § 6.32 Prior Removal Orders or Periods of Unlawful Presence Under this section, persons are inadmissible based on certain immigration violations. The section is divided into three categories: 1. Immigrants previously excluded, deported, or removed (INA § 212(a)(9)(A)); 2. Immigrants who have been unlawfully present in the United States for specified periods of time and now seek re-admission (INA § 212(a)(9)(B)): and 3. Immigrants who enter or attempt to enter the United States unlawfully after having previously been unlawfully present in the United States for one year or after having been ordered removed (INA § 212(a)(9)(C)). 203 We discuss each of these categories below. § 6.33 Having Previously Been Removed: INA § 212(a)(9)(A) Persons who have been ordered removed are inadmissible for a certain period of time. The length of the inadmissibility period depends upon the section of law under which the person was ordered INA § 212(d)(12). INA § 212(a)(6)(g). 197 Id. 198 IIRIRA § 346. 199 INA § 212(a)(8)(A). 200 INA §§ 101(a)(19). 201 INA § 212(a)(8)(B). 202 Id. 203 INA § 212(a)(9). 195 196

6-30

removed and upon the person’s immigration history. Persons ordered removed upon arrival in the United States, under INA § 235(b) expedited removal proceedings, or INA § 240 removal proceedings initiated upon arrival, are inadmissible for five years after the removal. 204 They are inadmissible for twenty years after a second removal, and forever in the case of an immigrant convicted of an aggravated felony. 205 Persons ordered deported or removed or who departed the United States under an order of deportation or removal are inadmissible for ten years. 206 They are also inadmissible for twenty years after a second removal, and forever if they were convicted of an aggravated felony. 207 A person who is inadmissible under this ground must reside outside the United States for the required period (five, ten, or twenty years) before seeking admission again. 208 This ground of inadmissibility took effect on April 1, 1997, 209 but the new rules apply retroactively, so that immigrants who were subject to the prior five-year bar based on a deportation must now wait ten years. 210 Not every person who has been apprehended by the INS or ICE will be subject to this inadmissibility ground. First, this ground of inadmissibility does not apply to persons who received a final order but who have not subsequently left the United States. 211 Those persons may be able to adjust their status before the immigration judge if they are successful in reopening their proceedings. In addition, a person who was granted voluntary departure by either the INS, the ICE, or an immigration judge and who left the United States on his or her own by the specified date is not subject to this inadmissibility ground. 212 However, persons who leave the United States at their own expense after an immigration judge has entered a deportation or removal order against them are considered to have self-deported or self-removed and are subject to this ground. 213 Example: Both Henri and Francine were placed in removal proceedings. Henri was found removable by the immigration judge and he did not appeal that decision, so that his order of removal is final. He has not left the United States. Francine, on the other hand, was found removable and was physically removed from the country. Henri is not subject to the INA § 212(a)(9)(A) inadmissibility ground, because he has not left the United States. Francine is subject to this inadmissibility ground, because she left the United States after an order of removal.

INA § 212(a)(9)(A). Id. 206 Id. 207 Id. 208 INA § 212(a)(9)(A). 209 IIRIRA § 309(a). 210 Cable, DOS, No. 98-State-060539 (April 4, 1998), reprinted in 75 Interpreter Releases 791-794, 792 (May 12, 1997). 211 Crocetti, Assoc. Comm. INS, Memo HQ 5015.12, 96 Act .034 (May 1, 1997), reprinted in 74 Interpreter Releases 791-94, 792 (May 12, 1997). 212 Id. at 792. 213 8 CFR § 241.7. 204 205

6-31

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

To ameliorate the harshness of this inadmissibility ground, the immigration authorities are authorized to waive inadmissibility by granting, not a waiver, but a “consent [for the alien] to reapply” for admission. 214 If the person has entered the United States already, he or she may still request consent to reenter. 215 If granted, the consent is retroactive to before the reentry. 216 VAWA 2005 strengthened advance permission to reapply for admission as a form of relief from the INA § 212(a)(9)(A) inadmissibility ground. In that law, Congress encouraged the Secretary of Homeland Security, the Attorney General, and the Secretary of State to particularly consider exercising their discretionary authority favorably in adjudicating forms I-212 in the cases of VAWA self-petitioners, applicants for VAWA cancellation or suspension, and T and U nonimmigrants. 217 Advocates should investigate whether a VAWA self-petitioner with a prior removal order has reentered the United States unlawfully after the removal order. If so, the client may be subject to reinstatement of the earlier removal order under INA § 241(a)(5). A person whose removal order is reinstated is not eligible for adjustment or any other form of relief (except for withholding of removal under INA § 241(b)(3) or relief under the Convention against Torture). 218 However, the VAWA provisions should provide relief from reinstatement for VAWA self-petitioners. Please see § 10.7 of this manual for more information on reinstatement and VAWA relief from reinstatement. We will go into more detail on the I-212 application in the next chapter. § 6.34 Unlawful Presence Bars: INA § 212(a)(9)(B) An individual may be inadmissible under INA § 212(a)(9)(B)(i) if the individual has accrued unlawful presence of a certain duration and subsequently departs the United States without a grant of advance parole. A person may accrue unlawful presence through either (a) entering the United States and remaining unlawfully or (b) entering the United States lawfully as a nonimmigrant and overstaying the period of authorized stay. 219 There is a special exception from unlawful status for VAWA self-petitioners from INA § 212(a)(9)(B)(i), as well as a general waiver. We explain the exception and the waiver below. Because of the exception, many if not most VAWA self-petitioners will not be inadmissible under this ground. Inadmissibility under INA § 212(a)(9)(B)(i) is of a limited duration. The length of the inadmissibility period depends upon the length of the unlawful presence. Persons who are unlawfully present in the United States after April 1, 1997, for more than 180 days but less than one year and who then voluntarily depart the United States before commencement of removal proceedings are inadmissible for a period of three years after their departure. 220 Persons who are INA § 212(a)(9)(A)(iii); 8 CFR § 212.2. 8 CFR § 212.2(e) & (f). 216 8 CFR § 212.2(i). 217 VAWA 2005, § 813(b). 218 INA § 241(a)(5). 219 INA § 212(a)(9)(B)(ii). 220 INA § 212(a)(9)(B)(i)(I). 214 215

6-32

unlawfully present after April 1, 1997, for one year or more and who depart are inadmissible for ten years after their departure. 221 The three-year bar provisions apply only to persons who voluntarily depart the United States before the commencement of removal proceedings. Removal proceedings begin with the filing of a Notice to Appear with the immigration court following service of the NTA on the immigrant. 222 If removal proceedings have begun, the person will not be subject to the three-year bar, although he or she may be subject to the ten-year bar. 223 This means that persons who leave the United States under voluntary departure granted by an immigration judge will not be subject to the threeyear bar and will be subject to the ten-year bar only if they accumulated a year or more of unlawful presence. “Voluntarily departed” includes voluntary departure granted by the immigration judge, as well as voluntary departure granted by the INS or ICE prior to the initiation of proceedings. It also applies to persons who simply left the United States on their own initiative. 224 In contrast, the ten-year bar applies regardless of whether the person departed before or after commencement of removal proceedings. It also does not matter for the ten-year bar whether the person departed voluntarily or under removal. By the terms of the statute, the ten-year bar may be triggered by a departure or removal that is not voluntary. PRACTICE POINTER: Matter of Arrabally and Yerrabelly—departure under advance parole does not trigger unlawful presence ground. To be inadmissible under INA §§ 212(a)(9)(B) and 212(a)(9)(C)(i), the individual must “trigger” the inadmissibility ground by departing the United States after accruing the unlawful presence. Prior to the BIA’s decision in Matter of Arrabally and Yerrabelly, 225 even a departure under advance parole, that is, with advance authorization to return, triggered the unlawful presence bars. In the very significant Arrabally and Yerrabelly decision, however, the BIA determined that departure under advance parole is NOT a departure that triggers the unlawful presence grounds. PRACTICE POINTER: Evaluating a VAWA Self-Petitioner’s Case for Inadmissibility under INA § 212(a)(9)(B). If it appears that a VAWA self-petitioner has been unlawfully present in the INA § 212(a)(9)(B)(i)(II). See Department of State, Cable 98-State-060539 (April 4, 1998), concerning “P.L. 104-208 Update No. 36: § 212(a)(9)(A)-(C), § 212(a)(6)(A) and (B),” reprinted at 75 Interpreter Releases 543 (April 20, 1998). 222 8 CFR § 1003.14; Donald Neufeld, Acting Assoc. Dir., Domestic Operations Directorate, USCIS, Lori Scialabba, Acting Assoc. Dir., Refugee, Asylum, and International Operartions Directorate USCIS, and Pearl Chang, Acting Chief Office of Policy and Strategy, USCIS, “Consolidation of Guidance Concerning Unlawful Presence for Purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” May 6, 2009, at 14 [hereinafter “Unlawful Presence Memorandum”], at 14. Available at www.uscis.gov/sites/defau lt/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF. 223 Neufeld Unlawful Presence Memorandum, supra n. 236, at 14. 224 Id. 225 Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Although the Neufeld Unlawful Presence Memorandum, supra n. 236, at 16, states that even departure under advance parole will trigger unlawful presence inadmissibility, this rule was set aside by the BIA in Matter of Arrabally and Yerrabelly. 221

6-33

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

United States, the advocate evaluating the case for inadmissibility under INA § 212(a)(9)(B)(i) should make a series of inquiries. The advocate should first determine whether the client has departed the United States after accruing the unlawful presence and, if so, whether that departure was under a grant of advance parole. If the client has not departed, or has departed under a grant of advance parole, the INA § 212(a)(9)(B) inadmissibility ground will not have been “triggered” and the client will not be inadmissible under that ground. If the client has departed without a grant of advance parole, the advocate should then examine the case to see whether the client is exempt from the inadmissibility ground, under the special exception for VAWA self-petitioners, explained below. If he or she is not exempt, then the advocate must examine the facts to see whether the periods of stay actually qualify as unlawful presence. There are several special rules, set out below, for calculating unlawful presence. Finally, even if the VAWA self-petitioner does appear to be inadmissible based upon unlawful presence, the advocate must look at the case to see whether the self-petitioner is eligible for the general waiver of that ground. We examine these inquiries below. INA § 212(a)(9)(B) and VAWA Self-Petitioners Many, if not most, VAWA self-petitioners will not be subject to the INA § 212(a)(9)(B) unlawful presence ground for two reasons. First, VAWA self-petitioners, unlike applicants for permanent residence who are not VAWA self-petitioners, may adjust their status regardless of being in unlawful status and thus will not need to depart the United States for consular processing, which would trigger the INA § 212(a)(9)(B) departure bar. Moreover, as noted above, under Matter of Arrabally and Yerrabelly, a departure under advance parole will not trigger the voluntary departure bar for anyone. Second, under the VAWA exception to the unlawful presence inadmissibility ground, a VAWA self-petitioner is not subject to the unlawful presence inadmissibility ground if he or she can show a substantial connection between the violation of the person’s nonimmigrant visa and the abuse he or she suffered. 226 Until issuance of USCIS’ May 2009 memorandum consolidating its unlawful presence guidance, advocates were concerned about the VAWA exception. This was because, on its face, the exception appeared to apply only to persons whose status was unlawful because they had overstayed a visa and did not appear to apply to persons who entered without authorization. However, in the May 2009 memorandum, USCIS described the exception as applying if the VAWA self-petitioner “can establish a substantial connection between the abuse suffered, the unlawful presence, and his or her departure from the United States.” 227 Under this interpretation, the exception would apply to VAWA self-petitioners who had entered unlawfully and could show a connection between the unlawful presence and the abuse. Example: Mayelle, from Nicaragua, entered the United States without authorization. After two months, she met and married August, a U.S. citizen. August becomes physically and emotionally abusive to Mayelle and forces her to give him her passport. Without a travel document, she cannot obtain a plane ticket and by the time she obtains a 226 227

INA § 212(a)(6)(A)(ii); INA § 212(a)(9)(B)(iii)(IV). Neufeld Unlawful Presence Memorandum, supra n. 236, at 32. 6-34

replacement travel document, she has been in the United States unlawfully for seven months. She leaves in order to escape the abuse and does not seek advance parole. She self-petitions under VAWA from abroad and will obtain her visa through consular processing. She has triggered unlawful presence by departing the United States and would be inadmissible under INA § 212(a)(9)(B)(i)(I). However, she should be able to show a substantial connection between at least a portion of her unlawful presence and August’s abuse, since his confiscation of her passport prevented her from leaving before accruing more than six months unlawful presence. Under USCIS’s interpretation, she is exempt from the INA § 212(a)(9)(B) inadmissibility ground. Some self-petitioners may not be able to show the required connection between the violation and the unlawful presence and thus will not qualify for the VAWA exception. For example, a selfpetitioner may have become unlawfully present for more than one year prior to meeting his or her spouse. In this situation, it might not be possible to show the required connection. The advocate should carefully analyze the situation to verify that the client has really acquired unlawful presence in a sufficient amount to meet the elements of the inadmissibility ground and, if so, whether a waiver is available. Because of the unusual wording of the unlawful presence exceptions, advocates contend that there is a second possible exception, which applies to self-petitioners who entered before April 1, 1997. Under this exception, self-petitioners who entered before April 1, 1997, are completely exempt from the unlawful presence inadmissibility ground. 228 This is a broader exception, because it provides that the unlawful presence ground simply does not apply to VAWA selfpetitioners who entered before April1, 1997. Determining Unlawful Presence Not all periods of unlawful status will result in accrual of unlawful presence for purposes of INA § 212(a)(9)(B). 229 USCIS, the BIA, and federal courts have set out specific rules for calculating unlawful presence. As noted above, to be inadmissible under INA § 212(a)(9)(B), the individual must have departed the United States following accrual of the unlawful presence. 230 If the individual has accrued unlawful presence, but has not departed thereafter, he or she will not have triggered the inadmissibility ground. This unlawful presence exception at INA § 212(a)(9)(B)(iii)(IV) is defined in terms of the VAWA exception to unlawful presence, found at INA § 212(a)(6)(A)(ii). That provision was included in the INA by IIRIRA and contained a special provision for persons arriving before April 1, 1997. IIRIRA § 301(c)(2) provided that: “(2) Transition for Battered Spouse or Child Provision. The requirements of subclauses (II) and (III) of section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, as inserted by paragraph (1), shall not apply to an alien who demonstrate that the alien first arrived in the United States before the title III-A effective date (described in section 309(a) of this division [Sec. 309(a) of IIRIRA].” As so described in Sec. 309(a) of IIRIRA, the “title III-A effective date” is “the first day of the first month beginning more than 180 days after the date of the enactment of this Act [enacted Sept. 30, 1996].” The effective date of the INA § 212(a)(9)(B)(iii)(IV) exception is thus determined by the effective date of the INA § 212(a)(6)(ii) exception. 229 Neufeld Unlawful Presence Memorandum, supra n. 236, at 19. 230 Id. at 16; Matter of Rodarte-Roman, 23 I&N Dec. 905 (BIA 2006). 228

6-35

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

The statute recognizes a number of exceptions to the accrual of unlawful presence for purposes of INA § 212(a)(9)(B). Under these exceptions: a. No period of time in which the noncitizen is under 18 years of age is counted as unlawful presence. 231 b. Applicants for asylum do not accrue unlawful presence during the pendency of the application, provided they do not work without authorization. 232 c. Immigrants who are the beneficiaries of Family Unity status (a temporary status allowing family members of persons granted amnesty under INA § 245 while the family members waited for a permanent visa) do not accrue unlawful presence during the authorized period. 233 d. As we saw earlier, battered spouses and children are excepted if they can show a substantial connection between the abuse and the unlawful presence. 234 e. Victims of a severe form of trafficking in persons are excepted if the trafficking was at least one central reason for the unlawful presence. 235 f.

For nonimmigrants or parolees who have made a timely, non-frivolous application for an extension of stay or change of status, the accrual of unlawful presence is tolled during the pendency of the application. While the statute limits the tolling period to 120 days, 236 DHS by policy extends the tolling period to cover the entire pendency of the application. 237 However, the applicant cannot have worked without authorization. 238

In addition, USCIS has set forth the following guidance in determining unlawful presence for purposes of INA § 212(a)(9)(B): g. Periods of “unlawful presence” in the United States are not counted in the aggregate; instead, each period is counted separately. Thus, this bar does not apply to a person with multiple periods of “unlawful presence” if no single period exceeded 180 days. 239 h. For persons who entered with a nonimmigrant visa and then violated the terms of the visa, such as by working without authorization, unlawful presence begins to accrue the day after USCIS denies an application for an immigration benefit, where USCIS has discovered an immigration violation while adjudicating the application, or, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, the day after the immigration judge’s order. 240 INA § 212(a)(9)(B)(iii)(I), Neufeld Unlawful Presence Memorandum, supra n. 236, at 13. INA § 212(a)(9)(B)(iii)(II). 233 INA § 212(a)(9)(B)(iii)(III). 234 INA § 212(a)(9)(B)(iii)(IV). 235 INA § 212(a)(9)(B)(iii)(V). 236 INA § 212(a)(9)(B)(iv). 237 Neufeld Unlawful Presence Memorandum, supra n. 236, at 33. 238 INA § 212(a)(9)(B)(iv). 239 Neufeld Unlawful Presence Memorandum, supra n. 236, at 13. 240 Id. at 25. 231 232

6-36

i.

For nonimmigrants admitted for duration of status (D/S), such as students, unlawful presence begins to accrue on the day after USCIS denies a request for immigration benefits, if USCIS has discovered a nonimmigrant status violation while adjudicating the request, or, if an immigration judge makes a determination of nonimmigrant status violation in exclusion, deportation, or removal proceedings, the day after the immigration judge’s order. 241

j.

No period of time prior to April 1, 1997, [the effective date of IIRIRA] counts as unlawful presence. 242

For purposes of the INA § 212(a)(9)(B) unlawful presence inadmissibility grounds, the USCIS deems the following classes of persons to be present in the United States pursuant to a period of authorized stay: •

Persons with properly filed applications for adjustment of status under INA §§ 245(a) or 245(i), including immigrants who in removal proceedings renew adjustment applications that were denied by the immigration authorities, but not including immigrants who first apply for adjustment when in removal proceedings; 243

•

Immigrants admitted to the United States as refugees under INA § 207, 244 and their derivatives for whom Form I-730, Asylee/Refugee Relative Petition has been filed; 245

•

Immigrants granted asylum under INA § 208; 246

•

Immigrants granted withholding of deportation/removal under INA § 241(b)(3) or its predecessor, INA § 243(h); 247

•

Immigrants granted relief under the Convention Against Torture; 248

•

Immigrants under a current grant of deferred enforced departure (DED) pursuant to an order issued by the President; 249

•

Immigrants under a current grant of temporary protected status (TPS); 250

•

Persons under a grant of parole under INA § 212(d)(5), during the validity of the parole status; 251

•

Immigrants granted a stay of removal, during the validity of the stay; 252

241

Id. IIRIRA § 301(b)(3); Neufeld Unlawful Presence Memorandum, supra n. 236, at 14, 21. 243 Neufeld Unlawful Presence Memorandum, supra n. 236, at 33. 244 Id. at 26. 245 Id. at 31. 246 Id. at 26. 247 Id. at 42. 248 Id. at 43. 249 Id. at 42, 43. 250 Id. at 22, 27, 38. 251 Id. at 22, 28. 252 Id. at 42. 242

6-37

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

•

Cuban/Haitian entrants under Public Law 99-603 § 202(b); 253

•

Immigrants granted voluntary departure, during the period of time allowed; 254

•

Immigrants who have filed an application for legalization under either of the two amnesty programs, though excluding “late amnesty” applicants; 255

•

Immigrants who have filed a bona fide asylum application, and their derivatives, during the pendency of the application, provided the immigrant did not work without authorization; 256

•

Persons who have applied for registry under INA § 249, during the application period, including removal proceedings and BIA appeal; 257

•

Immigrants who have been granted Family Unity, during the authorized period (Family Unity is a program to grant admission and visas to spouses and children of persons granted legalization, or amnesty, under the Immigration Reform and Control Act of 1986); 258

•

Applicants for relief pursuant to the Nicaraguan Adjustment and Central American Relief Act (NACARA) or the Haitian Refugees and Immigrants Fairness Act (HRIFA) filed before USCIS; 259

•

Conditional resident immigrants whose status has been terminated by USCIS but who have appealed that determination administratively, through the appeals process; 260

•

Persons in deferred action status. 261

The following persons are not considered to be in a period of authorized stay under this ground: •

Immigrants under an order of supervision (pending removal); 262

•

Immigrants in removal or deportation proceedings, unless found to be not deportable (if I-94 expires while in proceedings, unlawful presence begins on date of deportation order; if granted relief from deportation by an immigration judge, unlawful presence ends on date of order); 263

•

Immigrants present pursuant to pending federal court litigation. 264

Id. at 33. Id. at 39. 255 Id. at 38. 256 INA § 212(a)(9)(B)(iii)(II); Neufeld Unlawful Presence Memorandum, supra n. 236, at 26, 29. 257 Neufeld Unlawful Presence Memorandum, supra n. 236, at 33. 258 Id. at 31, 38. 259 INA § 212(a)(9)(B)(iii)(III); Neufeld Unlawful Presence Memorandum, supra n. 236, at 34. 260 Neufeld Unlawful Presence Memorandum, supra n. 236, at 24. 261 Id. at 42. 262 Id. at 46. 263 Id. at 43. 264 Id. 253 254

6-38

INA § 212(a)(9)(B)(v) Waiver for Unlawful Presence Section 212(a)(9)(B)(v) of the INA provides a general waiver for the unlawful presence bars if refusing admission to the immigrant would result in extreme hardship to a USC or LPR spouse or parent. The waiver is not available based on extreme hardship to a USC or LPR child, however. We will go into more detail on the INA § 212(a)(9)(B)(v) waiver in Chapter 7. PRACTICE POINTER: Unlawful Presence and INA § 212(a)(9)(B). In a July 2006 letter, 265 former USCIS Chief Counsel Robert Divine clarified that the unlawful presence inadmissibility period begins to run with the initial departure from the United States that triggers the bar and continues to run even if the immigrant subsequently returns to the United States pursuant to a grant of parole under 8 USC § 212(d)(5). This means that if an immigrant triggered a three-year bar period of inadmissibility by leaving the United States, the immigrant would no longer be inadmissible three years after the departure date, even if the immigrant had been in the United States during the inadmissibility period. The letter notes that the DOS Visa Office concurs with this analysis. § 6.35 Reentering the U.S. without Authorization after Removal or One Year Unlawful Presence: INA § 212(a)(9)(C) Section 212(a)(9)(C) of the INA is a sort of super-inadmissibility ground. It makes an individual inadmissible if the person has reentered or attempted to reenter the United States unlawfully AFTER EITHER (1) accruing an aggregate of one year unlawful presence OR (2) having been removed. It is known as the “permanent bar” because it renders an individual permanently inadmissible. While there is no general waiver, an individual may apply for readmission after having resided outside the United States for ten years. Moreover, there is a special VAWA waiver. Entering or Attempting to Reenter without Authorization Following One Year of Unlawful Presence: INA § 212(a)(9)(C)(I) Section 212(a)(9)(C)(I) of the INA, like INA § 212(a)(9)(B), concerns unlawful presence. Some of the same rules for calculating unlawful presence apply to both sections. Thus, USCIS applies the same definition of unlawful presence to both INA § 212(a)(9)(B) and INA § 212(a)(9)(C), that is, an immigrant may accrue unlawful presence through either overstaying an authorized period of stay or through being present without admission or parole. 266 In addition, both sections’ applicability stems from the IIRIRA effective date. Thus, INA § 212(a)(9)(C), by definition, applies to persons who enter or attempt to enter illegally on or after April 1, 1998. 267 Unlawful presence accruing prior to April 1, 1997, does not count for purposes of INA § 212(a)(9)(C)(i). 268

Available at www.immigrantrefugeecenter.com/wp-content/uploads/2016/07/Letter-dated-July-142006.pdf. 266 Id. at 11. 267 Id. at 16, 21. 268 Id. at 15. 265

6-39

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

However, there are significant differences in calculation of unlawful presence between INA § 212(a)(9)(B) and INA 212(a)(9)(C). First, in contrast to the three- and ten-year bars for unlawful presence, the one-year period of unlawful presence for purposes of INA § 212(a)(9)(C) requires only an “aggregate period” of one year or more. 269 Thus, if several periods of unlawful presence taken together equal one year, the person falls under this inadmissibility ground. Second, USCIS has determined that the statutory exceptions to unlawful presence at INA § 212(a)(9)(B)(iii) and (iv) do not apply to INA § 212(a)(9)(C) unlawful presence. 270 This means, for example, that a minor, who does not accrue unlawful presence for purposes of INA § 212(a)(9)(B), does accrue it for purposes of INA § 212(a)(9)(C). Nonetheless, the non-statutory policies for calculation of unlawful presence for purposes of INA § 212(a)(9)(B) set out in § 6.34 above generally apply to INA § 212(a)(9)(C) as well. 271 In addition, USCIS, by policy, does not consider unlawful presence to accrue during the pendency of a timely-filed, non-frivolous application for extension or change of non-immigrant or parolee status, as long as the individual has not worked without authorization. 272 Reentering or Attempting to Reenter after Removal: INA § 212(a)(9)(C)(II) A similar ground of inadmissibility applies to a person who has been ordered removed under any provision of law and who then enters or attempts to reenter the United States without authorization. 273 This covers persons who were ordered removed, deported, or excluded at any time and who entered or attempted to reenter the United States unlawfully on or after April 1, 1997. 274 VAWA-Specific Waiver for the INA § 212(a)(9)(C) Inadmissibility Ground There is a special waiver of the INA § 212(a)(9)(C) inadmissibility ground for VAWA selfpetitioners, if there is a connection between the abuse the self-petitioner suffered and the selfpetitioner’s (a) removal, (b) departure from the United States, (c) reentry or reentries into the United States, or (d) attempted reentry into the United States. 275 The USCIS interprets the waiver to apply where there is a connection between the abuse suffered, the unlawful presence and departure, or the applicant’s removal, and the subsequent unlawful entry/entries or attempted reentry/reentries. 276 We will discuss that waiver in more detail in the next chapter. Example: Suzy, from Nicaragua, entered the United States unlawfully. She met her husband, Ben, some three years later. By that time, she had accrued three years of unlawful status. After marriage, Ben becomes abusive and, to gain some respite, Suzy returns home to Nicaragua. She does not apply for advance parole. She returned to the United States unlawfully nine months later without inspection. Because she departed after Id. at 14. Id. at 28-29. 271 Id. at 33-46. 272 Id. at 35. 273 INA § 212(a)(9)(C)(i)(II). 274 Neufeld Unlawful Presence Memorandum, supra n. 236, at 15. 275 VAWA 2005, § 813(b). 276 Neufeld Unlawful Presence Memorandum, supra n. 236, at 50. 269 270

6-40

accruing more than six months unlawful presence, Suzy has triggered the INA § 212(a)(9)(B) unlawful presence inadmissibility ground. By returning unlawfully after accruing a year of unlawful presence in the United States, however, she has also become inadmissible under INA § 212(a)(9)(C)’s permanent bar. If Suzy can show a substantial connection between her unlawful presence and Ben’s abuse, she will be exempt from the INA § 212(a)(9)(B) inadmissibility ground. If she cannot show that exception, then she is inadmissible unless she qualifies for the INA § 212(a)(9)(B)(v) waiver. Turning to the INA § 212(a)(9)(C) permanent bar, if Suzy can show a connection between Ben’s abuse towards her and her departure from the United States, reentry to the United States or reentry to the United States, then she may be eligible for the special VAWA waiver of INA § 212(a)(9)(C)(i)(I). Relief from Inadmissibility under INA § 212(a)(9)(C) through Advance Permission to Reapply for Admission VAWA self-petitioners who do not meet the requirements of the VAWA-specific waiver of INA § 212(a)(9)(C) may be able to obtain relief under Advance Permission to Reapply for Admission. Although persons who are inadmissible under INA § 212(a)(9)(C) are permanently inadmissible, once ten years have elapsed since their last departure from the United States, the immigration authorities may consider a request for advance permission to reapply for admission. 277 VAWA 2005 strengthened advance permission to reapply as a form of relief from the INA § 212(a)(9)(C) inadmissibility ground as well as for the INA § 212(a)(9)(A) inadmissibility ground of having been previously removed (discussed at § 6.33 of this chapter). In VAWA 2005, Congress encouraged the Secretary of Homeland Security, the Attorney General, and the Secretary of State to particularly consider exercising their discretionary authority favorably in adjudicating form I212 in the cases of VAWA self-petitioners, applicants for VAWA cancellation or suspension, and T and U nonimmigrants. 278 The BIA has emphasized, however, that the immigration authorities may not grant advance permission to reapply until the ten years specified in INA § 212(a)(9)(C) have elapsed. 279 § 6.36 Miscellaneous Grounds The “miscellaneous” inadmissibility grounds concern practicing polygamists, 280 guardians required to accompany excluded immigrants, 281 international child abductors, 282 “unlawful INA § 212(a)(9)(C)(ii). See also Michael Aytes, Acting Dep. Dir., USCIS, memorandum re: “Adjudicating Forms I-212 for aliens Inadmissible Under Section 212(a)(9)(C) or Subject to Reinstatement Under Section 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007). 278 VAWA 2005, § 813(b). 279 Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006). See also Matter of Briones, 24 I&N Dec. 355 (BIA 2007). 280 INA § 212(a)(10)(A). 281 INA § 212(a)(10)(B). 282 INA § 212(a)(10)(C). 277

6-41

Chapter 6

VAWA Manual March 2017

Chapter 6

Immigrant Legal Resource Center March 2017

voters,” 283 and former citizens who renounced their citizenship in order to avoid taxation. 284 Because these grounds arise only infrequently in VAWA self-petition cases, this chapter will not provide an in-depth analysis of them. § 6.37 Reinstatement of Prior Removal Order and Consequent Ineligibility for Relief Reinstatement of removal is not an inadmissibility ground, but since a person subject to it will be unable to obtain a visa, we have included it in our discussion here. Under INA § 241(a)(5), if an immigrant has reentered the United States illegally after having been removed or having departed voluntarily under an order of removal, the prior order of removal is reinstated from its original date and the individual is not entitled to a new hearing before the immigration judge. 285 As can be seen, the elements of reinstatement are the same as those for the inadmissibility ground of reentering the United States unlawfully after having been removed, found at INA § 212(a)(9)(C)(i)(II). In addition to reinstatement of the old removal order, a noncitizen subject to reinstatement is ineligible and may not apply for any relief under the INA. There are limited exceptions to this rule, however. Thus, the immigrant may apply for withholding of removal under INA § 241(b)(3) or under the Convention Against Torture. 286 In addition, persons eligible for relief under the Haitian Refugee and Immigrant Fairness Act (HRIFA) and the Nicaraguan Adjustment and Central American Relief Act may apply for relief under those acts, despite being subject to reinstatement. 287 We go into more detail on determining whether an individual is subject to reinstatement and on VAWA relief from reinstatement in Chapter 10 at § 10.6 of this manual.

INA § 212(a)(10)(D). INA § 212(a)(10)(E). 285 Matter of W.C.B., 24 I&N Dec. 118 (BIA 2007). 286 The United States’ obligation to withhold removal of a person to a place where he or she would be subect to torture are set out at 8 CFR § 208.16–18. 287 8 CFR § 241.8(d). 283 284

6-42

CHAPTER 7 WAIVERS OF INADMISSIBILITY FOR VAWA SELF-PETITIONERS

Tab Position 1

VAWA Manual March 2017

This chapter includes:

§ 7.10 § 7.11

Overview ............................................................................................................ 7-1 The Exercise of Discretion ................................................................................. 7-1 Extreme Hardship: Definitions ........................................................................... 7-3 Documenting Extreme Hardship and Favorable Discretionary Factors ............. 7-6 INA § 212(g) Waivers for Health-Related Grounds .......................................... 7-8 INA § 212(h) Waivers for Criminal Conduct................................................... 7-10 INA § 212(i) Waivers for Fraud or Misrepresentation ..................................... 7-11 INA § 212(a)(9)(B)(v) Waivers for Unlawful Presence ................................... 7-13 INA § 212(a)(9)(C) Waiver for Reentering the United States without Authorization Following Immigration Violations ............................................ 7-14 Strategy and Procedure for Waiver Applications ............................................. 7-14 Form I-212 Consent to Reapply for Admission ............................................... 7-17

§ 7.1

Overview

In the previous chapter, we discussed the various grounds of inadmissibility under § 212 of the Immigration and Nationality Act (INA) and mentioned the exceptions and waivers that are available for some of those grounds for VAWA self-petitioners. In this chapter, we focus on five specific waivers and their application to VAWA self-petitioners. These waivers are: (1) the INA § 212(g) waiver for certain health-related grounds; (2) the INA § 212(h) waiver for criminal conduct; (3) the INA § 212(i) waiver for fraud or misrepresentation; (4) the INA § 212(a)(9)(B)(v) waiver for unlawful presence, and (5) the INA § 212(a)(9)(C)(iii) waiver of unlawful entry after previous immigration violations. In addition, this chapter will address requests for permission to reenter after a formal deportation or removal order. There are special inadmissibility exceptions and waivers for other groups of individuals, including persons applying for Special Immigrant Juvenile Status and for U and T nonimmigrant visas. We will not cover those exceptions and waivers in this chapter. 1 Before looking at the five waivers mentioned above, we must first examine two important concepts in waiver applications: the exercise of discretion and the concept of extreme hardship. § 7.2

The Exercise of Discretion

Waivers of inadmissibility are granted in the exercise of discretion. This means that, even if the visa applicant meets all of the statutory requirements for the waiver, the agency adjudicating the For more information, the Immigrant Legal Resource Center has manuals available on all of these topics at www.ilrc.org.

1

7-1

Chapter 7

§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 § 7.9

Chapter 7

waiver may deny the waiver if it believes that the applicant does not merit it. The agency adjudicating the waiver will be the U.S. Citizenship and Immigration Services (USCIS), if the applicant is either applying for an immigrant visa at a U.S. consulate abroad or adjusting status in the United States; or the immigration judge, if the applicant is in removal proceedings. The exercise of discretion requires a weighing of all of the positive and negative factors in the applicant’s case to determine whether the totality of the evidence indicates that the person merits a favorable exercise of discretion. 2 Because of the important role of discretion in an application for a waiver of inadmissibility, advocates should view a favorable showing of discretionary factors as another requirement for the waiver application. The Board of Immigration Appeals (BIA) has listed the sorts of discretionary factors that should be considered in determining whether a favorable exercise of discretion is warranted in a particular case. These factors include: Favorable considerations: • • • • • • • • •

Family ties within the United States; Residence of long duration in the United States, particularly when starting at a young age; Hardship that would result if permanent residence is denied; Service in the U.S. armed forces; Employment history; Property or business ties; Value and service to the community; Genuine rehabilitation; and Other evidence of good character. 3

Negative considerations: • • • •

The nature and underlying circumstances of the grounds of inadmissibility or deportability; The presence of additional significant violations of U.S. immigration laws; Any criminal record (and its nature, recency, and seriousness); and Any other evidence of bad character or undesirability as a permanent resident. 4

USCIS applies the same factors in determining whether to grant adjustment in the exercise of discretion. 5

Matter of A-M-, 25 I&N Dec. 66, 76 (BIA 2009). Matter of Mendez, 21 I&N Dec. 296 (BIA 1996) (in deciding waiver applications under INA § 212(h), the BIA will consider the factors it set forth in Matter of Marin, 16 I&N Dec. 591 (BIA 1978)). See also, Matter of M-L-M-A-, 26 I&N Dec. 360, 363 (BIA 2014) (noting favorable discretionary factors in a VAWA cancellation case of 20 years’ residence, six U.S. citizen children and LPR parents, hardship upon removal, absence of criminal record, and absence of employment without authorization). 4 Matter of Mendez, 21 I&N Dec. 296. 5 USCIS Policy Manual, Vol. 7, Ch. 9.B.2, available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume7-PartA-Chapter9.html. 2 3

7-2

Tab Position 1

Immigrant Legal Resource Center March 2017

In general, the more serious the reason for the waiver application, the more positive factors must be shown to convince the USCIS or immigration judge to exercise discretion favorably. § 7.3

Tab Position 1

VAWA Manual March 2017

Extreme Hardship: Definitions

“Extreme hardship” does not have a fixed definition. Instead, the elements to establish extreme hardship depend on the facts and circumstances of each case. 6 In general, extreme hardship means something more than the ordinary hardship one would suffer in being separated from a spouse, children, and other loved ones, or from a country and lifestyle to which one had become accustomed. 7 Successful applicants must generally demonstrate something out of the ordinary, such as a specific medical hardship, loss of special educational opportunities, or inability to provide for oneself and one’s family in the home country. The BIA has also stated that the following factors, taken alone, should not be considered to qualify as extreme hardship: birth of U.S. citizen children, 8 significant reduction in standard of living, 9 and lower quality medical or educational facilities in the native country. 10 Difficulty in readjusting to life in the native country, taken alone, is also insufficient to establish extreme hardship. Where the applicant has “strongly embraced and deeply immersed himself in the social and cultural life of the United States,” however, the emotional and psychological impact of readjustment must be considered in assessing hardship. 11 When analyzing a claim of extreme hardship, USCIS or the immigration judge must consider all of the hardship factors cumulatively. Thus, even though a particular factor might not in itself rise to the level of extreme hardship, two or more hardship factors, taken together, might rise to that level. 12 For this reason, it is very important to document all the hardship factors in the client’s case.

Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999). See Matter of Cervantes, 22 I&N Dec. 560 at 10; Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). 8 Matter of Pilch, 21 I&N Dec. 627; Matter of L-O-G-, 21 I&N Dec. 381. 9 Matter of L-O-G-, 21 I&N Dec. 413. 10 Matter of Correa, 19 I&N Dec. 130 (BIA 1984); Matter of Pilch, 21 I&N Dec. 627; Matter of Kim, 15 I&N Dec. 88 (BIA 1974). 11 Matter of O-J-O-, 21 I&N Dec. 381. 12 Matter of Pilch, 21 I&N Dec. 627; Matter of L-O-G-, 21 I&N Dec. 413; Matter of Ige, 20 I&N Dec. 880 (BIA 1994), Matter of O-J-O-, 21 I&N Dec. 381. See also Paul W. Virtue, INS General Counsel, 6 7

7-3

Chapter 7

Extreme hardship is a statutory requirement for the VAWA waiver of the fraud or misrepresentation inadmissibility ground, and it is also a requirement for several other general waivers of inadmissibility. It may arise in any waiver application, however, because, as seen in the preceding subsection, hardship caused by denial of permanent residence to an applicant can be a favorable discretionary factor. Extreme hardship is also an element of an application for VAWA suspension of deportation and VAWA cancellation of removal, covered in a Chapter 11 of this manual. For these reasons, it is important to examine the term “extreme hardship” and consider ways to document it.

Chapter 7

For purposes of determining whether extreme hardship exists in a VAWA-related application, legacy Immigration and Naturalization Service (INS), USCIS, and the Executive Office for Immigration Review (EOIR) set out special hardship factors to be considered, reflecting the special issues involved in a domestic abuse situation. The INS’ guidance was issued in the form of a memorandum concerning VAWA self-petitions. 13 The EOIR’s guidance was issued in the form of regulations, setting out factors to be considered in assessing extreme hardship for purposes of VAWA cancellation and suspension applications. 14 Although these factors were not provided specifically for VAWA waivers of inadmissibility, extreme hardship factors enumerated for purposes of one type of relief may be helpful in considering other types of relief that also require a showing of extreme hardship. 15 The hardship factors identified for consideration in VAWA cases are: •

The nature and extent of the physical or psychological consequences of abuse;

•

The impact of loss of access to the United States courts and criminal justice system, including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations, and prosecution of court orders regarding child support, maintenance, child custody, and visitation;

•

The likelihood that the batterer’s family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant’s child(ren);

•

The applicant’s needs and/or the needs of the applicant’s child(ren) for social, medical, mental health or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country;

•

The existence of laws and social practices in the home country that punish the applicant or the applicant’s child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household; and

•

The abuser’s ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant’s child(ren) from future abuse. 16

The INS memorandum also indicated some additional hardship factors to be considered in VAWA applications. These are: linguistic or cultural factors that make securing employment in the home country difficult, additional factors relevant to conditions in the home country, and any other economic factors in the United States or abroad. Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 4 (October 16, 1998) [Virtue October 1998 memo]. 13 Virtue October 1998 memo, supra n. 12. Prior to the 2000 VAWA amendments, VAWA self-petitions had to show that removal would cause the self-petitioner or qualifying family members’ extreme hardship. That requirement was deleted in the 2000 VAWA amendments. 14 8 CFR §§ 240.20(c) [VAWA cancellation] and 240.58(c) [VAWA suspension]. 15 Matter of Cervantes, 22 I&N Dec. 560. 16 8 CFR § 240.58(c). 7-4

Tab Position 1

Immigrant Legal Resource Center March 2017

Experts note that child custody disputes and protection orders are compelling hardship factors. A grant of custody is meaningless if the parent is deported; the abusive parent would then be free to reopen the custody decision without challenge. 17 A protection order is of little use abroad if the abuser travels back and forth to the victim’s homeland. 18 Experts also relate that the effect on children of domestic violence in the household is a significant hardship factor. 19

Tab Position 1

VAWA Manual March 2017

Other extreme hardship factors enumerated by the BIA under traditional suspension of deportation cases could also be applicable to applications for VAWA waivers of inadmissibility. These include the following:

• • •

The age of the applicant, both at entry and at the time of application for relief; The age of the qualifying relatives; The applicant’s length of residence in the United States over the statutory minimum; The applicant’s family ties, both in the United States and abroad; The health of the applicant and qualifying relatives; The applicant’s financial status and occupation; The applicant’s ties to the community; The economic and political conditions in the home country; Any disruption of educational opportunities; Any adverse psychological impact of deportation; Linguistic or cultural factors that make securing employment in the home country difficult; Additional factors relevant to conditions in the home country; The applicant’s involvement and position in the local community; and The applicant’s immigration history. 20

Advocates should not feel limited to the above list of factors, but should include all factors that are relevant to the particular case. For example, former BIA board member Lory Rosenberg has given a useful list of factors that might establish extreme hardship to children and of the types of evidence that might be presented to demonstrate that hardship. These include:

Gail Pendleton and Ann Block, “Applications for Immigration Status under the Violence against Women Act,” in AILA, I Immigration and Naturalization Law Handbook 436, 457 (2001-2002). Available at www.asistahelp.org/documents/filelibrary/documents/Applications_for_Immigration_Status_28B7E6E4EF 924.pdf. 18 Id. 19 Id. 20 See INS v. Wang, 450 U.S. 139 (1982); Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001); Matter of Cervantes, 22 I&N Dec. 560; Matter of O-J-O-, 21 I&N Dec. 381; Matter of Pilch, 21 I&N Dec. 627; Matter of L-O-G-, 21 I&N Dec. 413; Matter of Anderson, 16 I&N Dec. 596. See also, Virtue October 1998 memorandum, supra n. 11, and Aleinikoff, INS Executive Assoc. Comm’r, Office of Programs, Memorandum HQ 204-P, re: Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents, at 9-10 (April 16, 1996), available at www.asistahelp.org/documents/resources/Aleinikoff__41696_E0AF4A06EEB57.pdf. 17

7-5

Chapter 7

• • • • • • • • • • •

• • • •

Chapter 7

• • •

A professional evaluation of the children’s language capabilities; Individual medical and psychological reports by expert witnesses indicating the potential impact of relocation to a foreign country on the children’s development and ability to flourish; Authoritative documentation indicating the similarities and differences between the school systems in the United States and the foreign country; Recognized sociological studies reflecting the ability of U.S. citizen children to adapt to different cultures and countries; Economic studies indicating the likely employment prospects for the respondent and the resulting effect on the children’s standard of living; Reports regarding the anticipated ease or difficulty of later adjustment to U.S. social and educational standards, should the children wish to return when they reach college age; and Any information concerning the children’s ability to maintain contacts with their aunts, uncles, grandparents, friends, teachers, or other influential figures in the United States. 21 § 7.4

Documenting Extreme Hardship and Favorable Discretionary Factors

The following list gives examples of ways to document extreme hardship and favorable discretionary factors. Remember, however, that each case must be analyzed individually to determine what factors exist in the case and the best way of documenting those factors. •

Declarations, statements, or letters from the applicant, his or her qualifying relatives, and other persons who can attest to the hardship that will result from denial of permanent residence to the applicant.

•

Evidence of any problems in the applicant’s or family member’s physical, mental, and emotional health, including the treating physician’s or other health care professional’s diagnosis, the current or anticipated treatment, and an indication of whether treatment would be available in the applicant’s home country. It is especially important to document physical, mental, or emotional problems arising from the abuse and the need for treatment of those problems. Evidence on these points should include copies of medical records and a letter or report from the treating physician or other health care professional. The availability of treatment in the home country may be demonstrated by statements from physicians, other medical personnel, or other knowledgeable persons who are familiar with the country’s medical care conditions. Reports from governmental, international, and non-governmental organizations (NGOs) concerning the country’s economic and development status can also be very helpful. 22

Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) (Rosenberg, former BIA board member, concurring and dissenting). 22 Good sources for these government, international, and non-governmental organizations include the U.S. State Department’s Country Reports on Human Rights Practices, at www.state.gov/j/drl/rls/hrrpt/, Religious Freedom Reports, at www.state.gov/j/drl/rls/irf/, and Trafficking in Persons Reports, at www.state.gov/j/tip/rls/tiprpt/; the Canadian Refugee Review Board country information reports, at 21

7-6

Tab Position 1

Immigrant Legal Resource Center March 2017

Titles, deeds, or other evidence of the applicant’s or qualifying relative’s ownership of real or personal property in the United States.

•

Evidence of the applicant’s or qualifying relative’s family ties in the United States and comparative lack of family ties abroad. This evidence should also indicate the closeness of the relationship between the applicant or qualifying relative and the family members in the United States. This can be done through attaching a list of the family members in the United States, together with birth or marriage certificates showing the family relationship and statements describing how frequently the family members see each other, whether they rely on each other and for what, and other indications of the closeness of the relationship.

•

Evidence of children’s educational level and achievements and the quality of the education they would receive in the applicant’s country. Include copies of the children’s report cards, letters from teachers describing the children’s progress and the anticipated effect of departure on that progress, and statements from persons familiar with the educational system in the applicant’s home country.

•

If the applicant or his or her qualifying relatives do not speak the language of the applicant’s home country, present evidence on that point. This can be done through statements from the applicant or the applicant’s parent or qualifying relatives.

•

If the applicant’s home country is less developed than the United States, present evidence of the unequal development. This can be done from reports from the U.S. Department of State, the United Nations, and NGOs and by newspaper articles concerning the country’s development, both economic and otherwise.

•

Evidence of any current dangerous or difficult conditions in the applicant’s home country, such as ongoing civil unrest or war, drought, or famine. Newspaper and magazine articles, as well as reports from entities such as the governmental, international, and non-governmental organizations listed at Footnote 22 are useful for this purpose.

•

Any evidence of danger to the self-petitioner or his or her family members from the abuser or his family. This can be shown through the self-petitioner’s statement and statements of other persons who are aware of this danger.

•

Any evidence that the laws in the self-petitioner’s country are not likely to protect him or her against future abuse, and evidence of the self-petitioner’s need for the assistance of U.S. courts in obtaining protection, child support and alimony, and child custody.

•

Evidence of the applicant’s community service, devotion to children and family, work ethic, participation in church, school, or community events or projects, and any other actions indicative of good character and ties to the community.

www.irb-cisr.gc.ca/Eng/ResRec/NdpCnd/Pages/index.aspx; the Australian Refugee Review Tribunal’s country information reports, at www.mrt-rrt.gov.au/Conduct-of-reviews/Countryinformation.aspx; the UNHCR database, at www.refworld.org; and reports from non-governmental organizations such as Amnesty International and Human Rights Watch. The Center for Gender and Refugee Studies also maintains an excellent research and data collection, accessible at http://cgrs.uchastings.edu/. 7-7

Chapter 7

•

Tab Position 1

VAWA Manual March 2017

Always remember that it is the cumulative effect of the evidence that matters. Therefore, in your cover letter to USCIS or memorandum to the immigration judge, it is important to present a narrative of the case that clearly shows how the different pieces of evidence relate to each other and how their aggregate effect rises to the level of extreme hardship, even where any one single piece would not be sufficient to meet that standard.

Chapter 7

§ 7.5

INA § 212(g) Waivers for Health-Related Grounds

Some of the health-related grounds of inadmissibility have VAWA-specific waivers, and some do not. Below is a discussion of each. Waivers for Communicable Disease of Public Health Significance INA § 212(g)(1) provides a waiver for persons who are inadmissible because of having a communicable disease of public health significance. There are both general and VAWA-specific waivers. Under the general waiver, USCIS or the immigration judge may waive this inadmissibility ground in his or her discretion for an individual who is the parent, spouse, or unmarried son or daughter of a United States citizen (USC), lawful permanent resident (LPR), or immigrant visa recipient. 23 In contrast, the VAWA waiver requires only that the visa applicant qualify as a VAWA self-petitioner. 24 There is no statutory requirement of any qualifying relative for the VAWA waiver. Waivers for Physical or Mental Disorders with Associated Harmful Behavior The inadmissibility ground of having a physical or mental disorder with associated harmful behavior may be waived, upon such conditions as the Attorney General (and now the Department of Homeland Security) may set. 25 There is no special VAWA waiver for this inadmissibility ground, but VAWA self-petitioners may apply under the general waiver provision. Waivers of the Vaccination Requirement There are three waivers available for persons deemed inadmissible because they cannot present proof of vaccinations. The vaccination requirement may be waived if (1) the immigrant is vaccinated against a disease for which he or she failed to present documentation of previous vaccination, 26 (2) a civil surgeon or panel physician certifies that the vaccination would not be medically appropriate, 27 or (3) the vaccination would be contrary to the applicant’s religious or moral beliefs. 28 There is no VAWA-specific waiver. Instead, VAWA self-petitioners may waive this requirement under any of the three waivers generally available. Under the first waiver, if the applicant presents documentation showing that all immunizations have been obtained, he or she is no longer inadmissible.

INA § 212(g)(1)(A) and (B). INA § 212(g)(1)(C). 25 INA § 212(g)(3). 26 INA § 212(g)(2)(A). 27 INA § 212(g)(2)(B). 28 INA § 212(g)(2)(C). 23 24

7-8

Tab Position 1

Immigrant Legal Resource Center March 2017

For the second waiver, a vaccination is considered to be “not medically appropriate” in the following circumstances: (1) the vaccine is not age appropriate, because it is not recommended for the applicant’s age group; (2) there is a contraindication against the vaccine (for example, pregnancy, allergy, or hypersensitivity to the vaccine); (3) the person has taken the initial vaccine, but is unable to complete the entire series within a reasonable period of time (for example, the recommended series of hepatitis vaccines may take as long as six months to complete); and (4) the medical examination is not being performed during the flu season (this will apply only to the influenza vaccine, as it is generally given only during the fall season). 29 The first two of these waiver grounds (for subsequent vaccination or medical certificate) are treated as blanket waivers. 31 In these cases, no waiver application form is required, and the applicant does not have to pay an application fee. 32 The prospective immigrant’s vaccination history, or a finding that a vaccination is not medically appropriate, is noted by the civil surgeon on the applicant’s medical examination report (Form I-693). 33 Under the third waiver of the vaccination inadmissibility ground, the vaccination requirement may be waived if the vaccination would be contrary to the prospective immigrant’s moral or religious beliefs. 34 In these cases, there is no “blanket” waiver, and each waiver application must be adjudicated on a case-by-case basis. 35 This means that the applicant must file the standard waiver form (Form I-601) and pay the corresponding fee. To qualify for a moral/religious waiver under INA § 212(g)(2)(C), the applicant must show that: (1) he or she is opposed to vaccinations in any form; (2) the objection is based on religious belief or moral convictions (whether or not as a member of a recognized religion); and (3) the religious belief or moral conviction (whether or not as part of a “mainstream” religion) is sincere. 36 The applicant need not be an active member of any particular denomination to qualify for the waiver. 37 This means, for example, that if an individual is a vegetarian for moral reasons, and those reasons preclude him or her from receiving the vaccinations, he or she should be eligible for the waiver.

USCIS Policy Manual, Vol. 8.B, Ch. 9.B.1 and 2, available at www.uscis.gov/policymanual/Print/PolicyManual-Volume8-PartB-Chapter9.html. 30 Id. at Ch. 9.B.3. 31 USCIS Policy Manual, Vol. 9.C, Ch. 3.A., available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartC-Chapter3.html. 32 Id. 33 Id. at Ch. 3.B. 34 INA § 212(g)(2)(C). 35 USCIS Policy Manual, Vol. 9.C, Ch. 3.E, available at www.uscis.gov/policymanual/HTML/PolicyManual-Volume9-PartC-Chapter3.html. 36 Id.at Ch. 3.E.2. 37 Id. 29

7-9

Chapter 7

USCIS may also grant a blanket waiver if there is a shortage of the vaccine. 30

Tab Position 1

VAWA Manual March 2017

§ 7.6

INA § 212(h) Waivers for Criminal Conduct

While there is a general waiver available for some of the crimes-related inadmissibility grounds, there is also a VAWA-specific one available to approved VAWA self-petitioners. What Criminal Inadmissibility Grounds Does INA § 212(h) Waive? INA § 212(h) provides three separate waivers of criminal grounds for immigrants. Each of those will waive the following criminal inadmissibility grounds:

Chapter 7

• • • • •

Crimes of moral turpitude; Multiple criminal convictions; Prostitution and commercialized vice; Immunity from prosecution for serious criminal misconduct; and A single offense of simple possession of 30 grams or less of marijuana.

These waivers do not waive inadmissibility based on substance abuse offenses, other than a single offense of simple possession of 30 grams or less of marijuana, nor do they waive inadmissibility based on trafficking in controlled substances, trafficking in persons, or engaging in particularly severe violations of religious freedom. What Are the Eligibility Requirements for the INA § 212(h) Waivers? Under the three INA § 212(h) waivers, the criminal inadmissibility grounds listed above may be waived for: •

Persons who are inadmissible under only the prostitution or commercialized vice grounds of inadmissibility or because of activities occurring more than fifteen years ago, if the person’s admission would not be contrary to U.S. welfare or security and if the person has been rehabilitated; 38

•

Persons who are the spouse, parent, son, or daughter of a USC or LPR, if is established to the adjudicator’s satisfaction that refusing admission to the applicant would result in extreme hardship to the USC or LPR relative; 39 and

•

Persons who have qualified as VAWA self-petitioners. Note that there are no further statutory requirements for VAWA self-petitioners.

The following additional requirements apply to each of the INA § 212(h) waivers:

38 39

•

USCIS or the immigration judge must have consented to the person’s applying or reapplying for a visa, admission to the United States, or adjustment of status;

•

The person cannot have been convicted of or admitted committing murder, torture, or an attempt or conspiracy to commit those crimes; and

INA § 212(h)(1)(A). INA § 212(h)(1)(B). 7-10

Tab Position 1

Immigrant Legal Resource Center March 2017

•

LPRs are ineligible for INA § 212(h) waivers if (1) they have been convicted of an aggravated felony, or (2) they have not resided lawfully and continuously in the United States for seven years prior to the initiation of removal proceedings. 40

Tab Position 1

VAWA Manual March 2017

Remember that INA § 212(h) waivers are granted in the exercise of discretion. Thus, in addition to the requirements set forth above, the applicant must present evidence showing that the positive factors in his or her case outweigh the negative factors. 41 For “violent or dangerous” crimes, discretion will not be exercised favorably unless there are extraordinary circumstances, such as issues of national security or foreign policy or exceptional and extremely unusual hardship. 42

A sample Form I-601 Application for INA § 212(h) waiver is attached as Appendix 7-A. § 7.7

INA § 212(i) Waivers for Fraud or Misrepresentation

Inadmissibility under INA § 212(a)(6)(C)(i), due to general fraud or misrepresentation, may be waived under INA § 212(i). There are both general and VAWA-specific waivers under this provision. The General Waiver To qualify for the general waiver, the applicant must establish that his or her USC or LPR spouse or parent would suffer extreme hardship if the applicant is not allowed to immigrate permanently to the United States or adjust to a permanent resident. 43 The waiver is available based only on extreme hardship to a parent or spouse, not to the applicant himself or herself or to the applicant’s USC or LPR child.

The Board and a number of circuit courts have determined that conviction of an aggravated felony is not a bar to eligibility for the INA § 212(h) waiver for persons who adjusted to LPR status, rather than having been admitted after consular processing. Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015); see also, e.g., Bracamontes v. Holder, 675 F.3d 380, 386-387 (4th Cir. 2012); Martinez v. Mukasey, 519 F.3d 532, 546 (5th Cir. 2008); Papzoglou v. Holder, 725 F.3d 790, 793 (7th Cir. 2014); Negrete-Ramirez v. Holder, 741 F.3d 1047, 1054 (9th Cir. 2014); Lanier v. Attorney General, 631 F.3d 1363, 1366-67 (11th Cir. 2011). 41 Matter of Mendez, 21 I&N Dec. 296 (BIA 1996). 42 8 CFR§ 212.7(d). 43 INA § 212(i). 40

7-11

Chapter 7

Example: Eva has a conviction for shoplifting and also a conviction for simple possession of 20 grams of marijuana. She is married to John, an LPR who was abusive to her. She filed a self-petition, which was approved. Now her priority date is current, and she would like to file her application to adjust status. Her convictions make her inadmissible under INA § 212(a)(2)(A)(i)(I) [a single crime of moral turpitude] and INA § 212(a)(2)(A)(i)(II) [a violation of a controlled substance law]. Both of these inadmissibility grounds are waivable under INA § 212(h), if Eva meets the requirements. She should be able to meet the requirements under INA § 212(h)(1)(C), the VAWA selfpetitioner waiver. She must show that she meets the statutory requirement of being a VAWA self-petitioner. She should also present evidence of positive discretionary factors, to convince the USCIS to exercise discretion favorably.

Chapter 7

The VAWA-Specific Waiver In contrast, VAWA self-petitioners are eligible for a waiver of the INA § 212(i) general fraud or misrepresentation inadmissibility ground if they demonstrate extreme hardship to themselves or to their USC, LPR, or “qualified alien” parent or child. The term “qualified alien” includes LPRs, asylees, refugees, persons paroled into the country for at least one year, applicants granted withholding of deportation or removal, applicants granted conditional entry under former INA § 203(a)(7) as it existed prior to April 1, 1980, and Cuban and Haitian entrants. 44 The term also includes abused immigrants or the parents of abused children, if they have an approved VAWA self-petition or application for VAWA cancellation of removal or if they have a pending petition for one of those types of relief that sets forth a prima facie case of eligibility. 45 As with other waivers, the INA § 212(i) waiver is granted or denied in the exercise of discretion. As part of the discretionary determination, the USCIS or immigration judge may consider the nature of the applicant’s fraud or misrepresentation. 46 Example: Marcos entered the United States with a false passport and green card. He married Josephine, a USC, who was abusive to him during the relationship. Marcos and Josephine have a daughter, Ann, who is 10 and lives with Marcos. Ann was born in the United States. She was severely affected by the abuse she witnessed in the home and is undergoing counseling to overcome the effects of her experiences. She is also very close to her half-brother, Jim, who is 14. Jim is the son of Josephine and Josephine’s former husband. Marcos filed a VAWA self-petition, which was approved. Now he would like to file his application for adjustment of status. His use of a false passport and green card makes him inadmissible under INA § 212(a)(6)(C)(i) [fraud or willful misrepresentation of a material fact], but he may be eligible for the VAWA-specific waiver of this inadmissibility ground. He must show that refusal of permanent residence to him would cause extreme hardship to himself or to a USC, LPR, or “qualifying alien” parent or child. Marcos can claim hardship arising from his own possible separation from his daughter. He may also assert hardship resulting from the nature and extent of the physical or psychological consequences of the abuse he suffered. He may also bring out the hardship that Ann, a USC through birth in the United States, would suffer if she were prevented from continuing her counseling by having to leave the United States with Marcos, and the effect on Ann of separation from her half-brother Jim. Since Ann is of school age, Marcos may also assert the hardship that would result from her having to move from a school where she is adjusted to a new school system in another country. The mere fact that Marcos must make a decision to either leave Ann here and be separated from her or take her with him, separating her from relatives and familiar things in the United States, is a hardship factor in itself. Marcos may even be able to claim hardship to Jim, who meets the definition of Marcos’ child under INA § 101(b)(1)(B), although Marcos may need to establish that the stepparent/stepchild relationship continues to exist. 8 USC § 1641(b). 8 USC § 1641(c). 46 Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999); Matter of Tijam, 22 I&N Dec. 408 (BIA 1998). 44 45

7-12

Tab Position 1

Immigrant Legal Resource Center March 2017

Each of these hardship factors must be documented, through Marcos’ own declaration and perhaps Ann’s declaration, letters or reports from Ann’s counselor and teachers, evidence of Marcos’ rehabilitation, evidence of the abuse Marcos suffered, and letters or statements from friends, relatives, and other persons who can attest to the hardship that would result if Marcos were not granted permanent residence.

Practitioners should note that INA § 212(i) will not waive the inadmissibility ground of having made a false claim to U.S. citizenship on or after September 30, 1996, although there is an exception to that ground of inadmissibility for persons whose parents are or were U.S. citizens, who resided permanently in the United States prior to age 16, and who reasonably believed themselves to be U.S. citizens. 47 Please also refer to Chapter 6, § 6.26 of this manual for considerations in determining whether an applicant has made a knowing and false claim to U.S. citizenship. § 7.8

INA § 212(a)(9)(B)(v) Waivers for Unlawful Presence

In addition to general waivers that are available for the unlawful presence inadmissibility ground, otherwise known as the 3-year and10-year bars, there are also VAWA-specific exceptions available to approved self-petitioners. As noted in Chapter 6, the INA § 212(a)(9)(B) will not apply to most VAWA self-petitioners. For example, the bars may not apply to VAWA selfpetitioners who entered the United States before April 1, 1997. 48 Additionally, they do not apply to VAWA self-petitioners who entered the United States on or after April 1, 1997, if there was a substantial connection between abuse suffered by the self-petitioner and violation of the terms of the self-petitioner’s nonimmigrant visa. 49 It is important to understand the difference between an exception to the inadmissibility ground and a waiver. Because the 3-year and 10-year unlawful presence bars do not apply in the cases described above, a waiver application is not necessary. You simply need to show the adjudicator that the VAWA self-petitioner falls under an exception and, therefore, does not trigger the inadmissibility ground. Finally, the 3-year and 10-year unlawful presence bars will also not be triggered upon departure under advance parole. 50 For VAWA self-petitioners who do not meet the requirements of the VAWA-specific exception and therefore trigger this inadmissibility ground, USCIS or the immigration judge may waive it under the general waiver if refusing permanent residence would result in extreme hardship to a

INA § 212(a)(6)(C)(ii)(II). IRAIRA § 301(a)(2). See Chapter 6, § 6.34 of this manual. 49 INA § 212(a)(9)(B)(iii)(IV). 50 To be inadmissible under INA §§ 212(a)(9)(B), the individual must “trigger” the inadmissibility ground by departing the United States after accruing the unlawful presence. In the very significant Arrabally and Yerrabelly decision, the BIA determined that departure under advance parole is NOT a departure that triggers the unlawful presence grounds. Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). 47 48

7-13

Chapter 7

Marcos must also submit evidence to convince the USCIS to exercise discretion favorably. This should include evidence of Marcos’ good character, outside the use of the false passport and visa, any evidence of community service he performs, evidence of his employment in the United States, etc.

Tab Position 1

VAWA Manual March 2017

USC or LPR spouse or parent. 51 The general waiver is not available based on extreme hardship to the applicant himself or herself or to his or her USC or LPR child.

Chapter 7

§ 7.9

INA § 212(a)(9)(C) Waiver for Reentering the United States without Authorization Following Immigration Violations

Under INA § 212(a)(9)(C), the so-called “Permanent Bar,” persons are inadmissible if they reenter the United States without authorization after having accrued one year of unlawful presence or after having been removed. There is a special waiver of this inadmissibility ground for VAWA self-petitioners under INA § 212(a)(9)(C)(iii). To be eligible for the waiver, the selfpetitioner must show a connection between the abuse the self-petitioner suffered and the selfpetitioner’s (a) removal, (b) departure from the United States, (c) reentry or reentries into the United States, or (d) attempted reentry into the United States. Under USCIS interpretation, the waiver applies where there is a connection between the abuse suffered, the unlawful presence and departure or the applicant’s removal, and the subsequent unlawful actual or attempted entry or entries. 52 The VAWA self-petitioner must also convince USCIS to exercise discretion favorably. The immigration authorities have not yet issued regulations giving guidance on how they will interpret the “connection” requirement for this waiver. Example: Eleanor entered the United States without authorization on April 1, 2010, when she was 20. One year later, she met and married Hector, a USC. Hector became abusive during the marriage. To escape the abuse, Eleanor returned home to Mexico in April 2014, and stayed there for several months. Then she again entered the United States without authorization. She filed a VAWA self-petition, which was approved, and would now like to apply for adjustment of status. If she were not a VAWA self-petitioner, Eleanor would be permanently inadmissible under INA § 212(a)(9)(C) and could not file an application for permission to reapply for admission until ten years after her last departure. Because she is a VAWA self-petitioner, however, she may be eligible for the special INA § 212(a)(9)(C)(iii) waiver. Eleanor should be able to argue that her departure was substantially connected to the abuse. The statute does not appear to require that she also show that her reentry was connected to the abuse. § 7.10 Strategy and Procedure for Waiver Applications The INA § 212(h), § 212(i), § 212(g), and § 212 (a)(9)(B)(v) waivers are made on Form I-601 and should be supported by documentary and photographic evidence. They are filed as follows: 53

INA § 212(a)(9)(B)(v). Donald Neufeld, Acting Assoc. Dir., Domestic Operations Directorate, USCIS, Lori Scialabba, Acting Assoc. Dir., Refugee, Asylum, and International Operations Directorate USCIS, and Pearl Chang, Acting Chief Office of Policy and Strategy, USCIS, “Consolidation of Guidance Concerning Unlawful Presence for Purposes of sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” May 6, 2009, at 50. Available at www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesi gn_AFM.PDF. 53 If you are filing an I-601 waiver with USCIS, you must follow the instructions on the agency’s website at www.uscis.gov/i-601. 51 52

7-14

Tab Position 1

Immigrant Legal Resource Center March 2017

•

A VAWA self-petitioner applying for an immigrant visa at a U.S. consulate abroad or for an adjustment of status with USCIS must file the I-601 waiver with the Vermont Service Center;

•

If in removal proceedings, with the immigration court; 54

•

General applicants applying for consular processing file the I-601 waiver with USCIS through its Phoenix lockbox. Please see Chapter 8, on consular processing, for new provisions on applying for waivers of inadmissibility prior to departing the United States for the consular interview. 55

According to USCIS policy, a VAWA self-petitioner is eligible for adjustment of status under INA § 245(a) regardless of unlawful entry, and USCIS also considers inadmissibility under INA § 212(a)(6)(A)(i) waived for a beneficiary of an approved VAWA self-petition. Because inadmissibility under INA § 212(a)(6)(A)(i) ends when the self-petitioner leaves the United States, he or she need not submit any special documentation with an immigrant visa application that is based on an approved VAWA self-petition. Also, because VAWA self-petitioners are exempt from the INA § 212(a)(9)(B)(i) (3-year or 10year bar) inadmissibility ground if they establish a substantial connection between the battery or extreme cruelty that is the basis for the VAWA claim and the violation of prior nonimmigrant admission, VAWA self-petitioners who meet that requirement need not file Form I-601. Instead, submit evidence of the substantial connection with the Form I-485 adjustment application. If your client cannot establish a substantial connection, but meets the requirements for the INA § 212(a)(9)(B)(i) waiver, then you may file Form I-601 on her behalf. The waiver may be granted if a qualifying U.S. citizen or lawful permanent resident relative (spouse or parent) would experience extreme hardship if the self-petitioner were denied admission. The waiver application consists of the application form itself, together with the filing fee ($ 930 at this writing in March 2017). In addition, the applicant should attach documentation to establish If you are filing an I-601 waiver in immigration court, you must follow the “Instructions for Submitting Certain Applications in Immigration Court and for Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services,” last revised on September 5, 2013, found at www.uscis.gov/sites/default/files/files/article/PreOrderInstr.pdf. Advocates should also check the Immigration Court Practice Manual, at www.justice.gov/eoir/vll/OCIJpracmanual/ocij_page1.htm, and any local immigration court rules for any special content or format requirements. 55 See, generally, Provisional Unlawful Presence Waivers, at www.uscis.gov/family/family-uscitizens/provisional-waiver/provisional-unlawful-presence-waivers; see also, Dept. of State Cable 98-State060539 (April 4, 1998), concerning P.L. 104-208 Update No. 36: § 212(a)(9)(A)–(C), § 212(a)(6)(A) and (B), reprinted at 75 Interpreter Releases 543 (April 20, 1998). 54

7-15

Chapter 7

PRACTICE POINTER: When to File a Form I-601 for Previous Immigration Violations. According to the Instructions for Application for Waiver of Grounds of Inadmissibility that accompany the Form I-601, you should file Form I-601 to seek a waiver only if the VAWA selfpetitioner is inadmissible under INA § 212(a)(9)(C)(i). An approved VAWA self-petitioner does not need to file a waiver on Form I-601 if she is inadmissible under INA § 212(a)(6)(A)(i) or INA § 212(a)(9)(B)(i).

Tab Position 1

VAWA Manual March 2017

Chapter 7

the statutory requirements and documentation to convince the adjudicator that a favorable exercise of discretion is warranted. The application should be indexed and consecutively paginated. PRACTICE POINTER: Fee Waivers Available for VAWA Self-Petitioners. VAWA selfpetitioners may have any filing fee waived based on inability to pay for any filing associated with the VAWA request. This includes the self-petition itself as well as Form I-485 adjustment applications, Form I-601 waiver applications, and Form I-212 requests for advance permission to reapply. 56 Currently the filing fee waiver request can submitted on Form I-912 or in the form of a written statement. The applicant may also submit additional documentation to prove inability to pay. The I-601 application should contain the items listed below. If the I-601 is filed with an adjustment application, it should be referenced in the index to the I-485 packet. •

Counsel’s form G-28 (if applying to USCIS) or EOIR-28 (if applying before the immigration judge.)

•

Form I-601. If you need additional space to complete answers, attach a continuation sheet, indicate the item number, give the answer, and sign and date each continuation sheet.

•

Check or money order for the fee, or, if requesting a fee waiver, Form I-912, with supporting documentation to show inability to pay.

•

An index to the application.

•

Evidence to establish statutory requirements: o

For VAWA-specific waivers, status as a VAWA self-petitioner is a statutory requirement, which should be established with a copy of the VAWA self-petition approval notice or, if filing a one-step application, with a notation that the applicant is simultaneously submitting a self-petition.

o

For the INA § 212(i) (misrepresentation) and § 212(a)(9)(B) (unlawful presence) waivers, extreme hardship to the applicant or to a qualifying relative is a statutory requirement, which should be established as discussed earlier in this chapter.

o

For the INA § 212(i) and § 212(a)(9)(B) waivers, if the applicant claims extreme hardship to a qualifying relative, he or she must establish the qualifying family relationship to that relative and the relative’s status as a UCS, LPR, or “qualified alien.” The relationship may be established by submitting birth and marriage certificates or, if those are unavailable, secondary evidence such as baptismal records or affidavits. These must be accompanied by a translation into English if they are in a foreign language. If the relative is a USC, that status may be

USCIS Policy Memorandum: Fee Waiver Guidelines as Established by the Final Rule of the USCIS Fee Schedule; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.9, AFM Update AD11-26 (March 13, 2011), at 4, available at www.uscis.gov/sites/default/files/USCIS/Laws/Mem oranda/2011/March/FeeWaiverGuidelines_Established_by_the_Final%20Rule_USCISFeeSchedule.pdf. 56

7-16

Tab Position 1

Immigrant Legal Resource Center March 2017

o

For the INA § 212(a)(9)(C)(ii) waiver, a substantial connection between the abuse and the applicant’s removal, departure, reentry, or attempted reentry is a statutory requirement, which should be established through, for example, the applicant’s statement and statements of witnesses and documents showing chronology of events.

•

Evidence of favorable discretionary factors.

•

Evidence to neutralize or overcome negative discretionary factors.

•

Color copies of relevant photographs—pictures are worth a thousand words!

Please refer to § 7.4 of this chapter for suggestions on documenting hardship and favorable discretionary factors. Other tips from USCIS on presenting a successful waiver application: • • • •

Read the instructions to the form! Paginate the entire application, and include the page numbers on the index to the application. Provide a summary of the case, via a cover letter, explaining how the evidence presented relates to the case and establishes the waiver requirements. Where submitting voluminous information, such as country conditions or long police reports, highlight the relevant sections. § 7.11 Form I-212 Consent to Reapply for Admission

Persons who have departed or been removed from the United States after a deportation or removal order or after one year, in the aggregate, of unlawful presence, are inadmissible. 57 These grounds of inadmissibility do not apply to persons who have not triggered the inadmissibility ground by leaving the United States. To ameliorate the harshness of the inadmissibility ground for prior deportation or removal orders, Congress authorized the immigration authorities to waive inadmissibility by granting, not a

57

INA §§ 212(a)(9)(A); 212(a)(9)(C). 7-17

Chapter 7

established by the relative’s birth certificate showing birth in the United States or birth abroad to a USC parent, a naturalization certificate, a certificate of citizenship, a passport, or other evidence of citizenship or naturalization. If the relative is an LPR or other “qualified alien,” that status may be shown by immigration documents verifying the status. If those documents are unavailable, secondary evidence may be submitted. In addition, if the applicant cannot obtain these documents, the applicant may ask the USCIS to assist by searching its files for evidence of a qualifying relative’s status. On copies of permanent resident cards and naturalization certificates, draw a line in red diagonally across the document and write in above the diagonal red line “For immigration agency use only.”

Tab Position 1

VAWA Manual March 2017

Chapter 7

waiver, but a “consent to reapply” (Form I-212) for admission. 58 If the applicant has already reentered the United States, he or she may still request the USCIS’ consent to reenter. 59 If granted, the consent is deemed to date back to before the reentry. 60 VAWA 2005 61 strengthened advance permission to reapply for admission as a form of relief from the INA §§ 212(a)(9)(A) (prior removal) and 212(a)(9)(C) (unlawful reentry after prior removal or unlawful presence) inadmissibility grounds. In VAWA 2005, Congress encouraged the Secretary of Homeland Security, the Attorney General, and the Secretary of State to particularly consider exercising their discretionary authority favorably in adjudicating forms I-212 in the cases of VAWA self-petitioners, applicants for VAWA cancellation or suspension, and T and U nonimmigrants. 62 Preliminary considerations: •

INA § 212(a)(9)(A) is a temporary period of inadmissibility for three or ten years. If the person has remained outside the United States for that period of time, then the person is no longer inadmissible.

•

Before seeking advance permission to reapply for a client subject to the INA § 212(a)(9)(C) inadmissibility ground, the advocate should carefully evaluate the case, using the analysis described in Chapter 6, to make sure that the client is truly inadmissible. If the client is inadmissible, the advocate should check to see whether the client meets the requirements of having remained outside the United States for the three or ten years since accruing the inadmissibility ground.

PRACTICE POINTER: Reinstatement Issues. A person who is inadmissible under INA § 212(a)(9)(C)(i)(II) for having reentered the United States unlawfully following a removal order may also be subject to reinstatement, under INA § 241(a)(5). Under reinstatement, the person’s original removal order is reinstated, and there are very limited means of relief. Special provisions apply for VAWA self-petitioners, however. Please see Chapter 10, § 10.7 of this manual for fuller information on VAWA relief from reinstatement. Eligibility Considerations There is no requirement of extreme hardship to any specific family member for Form I-212. Rather, USCIS or the immigration judge will consider the following factors: • • • • •

The applicant’s moral character; The need for the applicant’s services in the United States; Whether the applicant was ignorant of the fact that he or she was deported; The length of time the applicant had been in the United States; The reason the applicant was originally deported;

INA § 212(a)(9)(A)(iii). 8 CFR § 212.2(e). 60 8 CFR § 212.2(i); Matter of Ducret, 15 I&N Dec. 620 (BIA 1976). 61 Violence against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (VAWA 2005). 62 VAWA 2005, supra n. 59, § 813(b). 58 59

7-18

Tab Position 1

Immigrant Legal Resource Center March 2017

• • • • •

Hardships resulting from the deportation; Recency of the deportation or removal order; Evidence of reformation and rehabilitation; The applicant’s family responsibilities and ties in the United States; The existence of an approved immigrant visa petition for the applicant. 63

Tab Position 1

VAWA Manual March 2017

USCIS or the immigration judge will balance the positive and negative factors. The negative factors to be considered include: Repeated and significant immigration violations; and The fact that the applicant is inadmissible based on other grounds for which there is no waiver. 64

Strategy and Procedure Application for consent to reapply is made on Form I-212 (Application for Permission to Reapply for Admission Into the United States After Deportation or Removal). A VAWA self-petitioner seeking permanent residence through adjustment of status must file the application with the Vermont Service Center. 65 If the self-petitioner is applying for adjustment before the immigration judge, however, he or she must file the Form I-212 with the immigration court. 66 A person applying for permanent residence at a U.S. consulate must file the application as directed by the National Visa Center. The applicant should attach the following supporting documents and the filing fee ($930 as of this writing in March 2017) or fee waiver request to Form I-212: 1. Immigrant visa approval notice; 2. Proof of status of and relationship to USC or LPR family members in the United States; 3. A copy of the final deportation or removal order; 4. Proof of current and prior employment; 5. Proof of filing federal and state taxes; 6. Medical records or doctor’s statement demonstrating any health-related problems; 7. Results of FBI fingerprint check; 8. Affidavits from the applicant, the applicant’s family members, and any other person who can vouch for the applicant’s good moral character and the hardship that would be suffered if the application is denied; and 9. Any other evidence of positive equities in the case.

Matter of Tin, 14 I&N Dec. 371 (Reg’l. Commr. 1971); Matter of Lee, 17 I&N Dec. 275 (BIA 1978). Id. 65 Direct Filing Addresses for Form I-212, www.uscis.gov/forms/direct-filing-addresses-form-i-212application-permission-reapply-admission-united-states-after-deportation-or-removal. 66 Id. 63 64

7-19

Chapter 7

• •

Counsel should also attach Form G-28 (if filing with USCIS) or Form EOIR 28 (if filing with the immigration judge). The suggestions given above for documenting hardship and favorable discretionary factors and for compiling and organizing the I-601 waiver application also apply to the I-212 application. A sample Form I-212 application and packet is attached as Appendix 7-B.

Chapter 7

A denial of a Form I-212 application is appealable to the USCIS Associate Commissioner for Examinations, 67 unless filed in conjunction with an adjustment application in removal proceedings, in which case the denial is appealable to the BIA. 68

67 68

8 CFR § 103.1(f)(3)(iii)(E). 8 CFR § 3.1(b). 7-20

Tab Position 1

Immigrant Legal Resource Center March 2017

CHAPTER 7 WAIVERS OF INADMISSIBILITY FOR VAWA SELF-PETITIONERS

Tab Position 1

VAWA Manual March 2017

INDEX OF APPENDICES Form I-601

Appendix 7-B

Response to Request for Evidence on I-601 Provisional Waiver Application. NOTE: This sample concerns an application for a provisional waiver of the unlawful presence inadmissibility grounds. While VAWA self-petitioners will usually not need a waiver of these grounds, the sample provides a general example of how to assemble documents to support a waiver application.

7-21

Chapter 7

Appendix 7-A

Chapter 7

Tab Position 1

=

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-A-1

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-A-2

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-A-3

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-A-4

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-A-5

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-A-6

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-A-7

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-A-8

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-A-9

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-A-10

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-A-11

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-A-12

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-A-13

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-B-1

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-B-2

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-B-3

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-B-4

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-B-5

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-B-6

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-B-7

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-B-8

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-B-9

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-B-10

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-B-11

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-B-12

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-B-13

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-B-14

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-C-1

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-C-2

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-C-3

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-C-4

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-C-5

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-C-6

Tab Position 1

Chapter 7

Immigrant Legal Resource Center March 2017

Appendix 7-C-7

Tab Position 1

VAWA Manual March 2017

Chapter 7

Appendix 7-C-8

Chapter 7

March 2017

Tab Position 1

=Immigrant Legal Resource Center

CHAPTER 8 CONSULAR PROCESSING FOR VAWA SELF-PETITIONERS

Tab Position 1

VAWA Manual March 2017

This chapter includes: § 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 § 8.7 § 8.8 § 8.9 § 8.10 § 8.11 § 8.12

Introduction ........................................................................................................ 8-1 Overview of Consular Processing ...................................................................... 8-2 Step I: Establishing Email Correspondence and a Point of Contact................... 8-6 Step II: Paying the Fees ...................................................................................... 8-6 Step III: Submitting the On-Line Application for an Immigrant Visa, the Affidavit of Support and the Civil Documents ............................................. 8-8 Step IV: Preparing for the Consular Interview ................................................. 8-10 Step V: The Consular Interview ....................................................................... 8-13 Final Step: Once the Consulate Grants the Immigrant Visa............................. 8-14 Consular Processing for Derivative Beneficiaries ............................................ 8-15 Review of Visa Denials .................................................................................... 8-17 What Can Happen at the Border? ..................................................................... 8-18 Conclusion ........................................................................................................ 8-19

Introduction

There are two processes for obtaining lawful permanent residence in the United States based upon an approved VAWA self-petition. These are (1) adjustment of status (discussed in Chapter 5) and (2) consular processing. For persons physically present in the United States, adjustment of status is generally preferred over consular processing and should be recommended to clients because of the lower cost and comparative convenience of adjustment and because of the greater opportunities for administrative and judicial review. In addition, departing the United States may trigger inadmissibility under INA § 212(a)(9)(B), the three-year and ten-year unlawful presence bars, although many self-petitioners should not be subject to these bars, as there is an exception to these grounds for certain VAWA applicants. The special VAWA adjustment provisions give most self-petitioners and their derivatives eligibility to adjust status in the United States. Remember that VAWA self-petitioners who entered the United States without inspection are not barred from adjusting status under INA § 245(a). 1 However, some applicants may need or prefer to obtain permanent residence through consular processing abroad. For example, the self-petitioner may be residing outside the United States. Or the self-petitioner may have derivative family members residing abroad who will have to obtain permanent residence through consular processing. 2 Note that most consulates have very little See Chapter 5 for a discussion on who is eligible to adjust status in the United States. Note that a VAWA self-petitioner may adjust in the United States and any derivative outside the United States may subsequently undergo consular processing separately as a “follow to join” derivative beneficiary.

1 2

8-1

Chapter 8

§ 8.1

experience with VAWA cases, since the vast majority of VAWA applicants adjust status in the United States, so the consular officers may be unfamiliar with the VAWA exceptions and special waivers related to grounds of inadmissibility. Consular processing is controlled to a large extent by the U.S. State Department (DOS) and is performed by the National Visa Center (NVC) and immigrant visa sections at U.S. consulates. 3 The process consists of the exchange of a series of instructions, notices, and forms between the NVC or the consulate and the applicant and concludes with a visa interview at the consulate and ultimately, the inspection and admission of the new immigrant to the United States as a lawful permanent resident by Customs and Border Protection (CBP) at the border or airport. § 8.2 A.

Overview of Consular Processing

Finding the Rules

Chapter 8

The State Department and National Visa Center’s “Immigrant Visa Process” webpage (referred to as the “Immigrant Visa Process main page” in this chapter) provides instructions to take you through the entire consular processing process. 4 These online instructions are very important, since forms and most documents must now be submitted electronically. In addition, each consulate occasionally has slightly different requirements, so it is important to also check for this through the Immigrant Visa Process main page. Otherwise, the requirements for consular processing are found in four places. There are two different relevant statutes, Title 8 of the Immigration and Nationality Act (INA) and Title 22 (foreign affairs) of the United States Code. Next, there are State Department regulations, found at Title 22 of the Code of Federal Regulations (CFR). Finally, the Foreign Affairs Manual, or FAM, expands upon the information contained in the regulations. 9 FAM-e covers visas and is the revised, reorganized, and renumbered replacement of the prior “legacy” Volume 9 of the FAM. 5 Legacy Volume 9 was keyed to the State Department regulations found at 22 CFR, but that is no longer the case. 9 FAM-e was inaugurated on November 18, 2015 and is now the “authoritative source for visa guidance” according to the State Department. 6 The FAM is heavily relied upon by consular officers in making their decisions.

INA §§ 221, 222. It is found online at http://travel.state.gov/content/visas/english/immigrate/immigrantprocess/approved/contact.html. 5 Available at https://fam.state.gov/Fam/FAM.aspx?ID=09FAM. 6 U.S. Department of State, Visa Bulletin, December, 2015. Archived “legacy” 9 FAM provisions may also often be located via internet search engines, but should be checked against the current 9 FAM-e provisions. DOS states that only the language and organization of 9 FAM was altered, not substance or guidance, by the 2015 reorganization. DOS merged the former interpretive and procedural notes, along with appendices, and a new citation system was initiated, similar to the citation system used in other volumes of the Foreign Affairs Manual and Foreign Affairs Handbook. Finally, DOS also has provided “crosswalk” excel tables correlating old citations with new, so that users can match new sections with former locations in the legacy FAM and vice versa.” The crosswalk tables are provided as excel documents and are found at https://fam.state.gov/Fam/FAM.aspx?ID=09FAM. 3 4

8-2

Tab Position 1

Immigrant Legal Resource Center March 2017

PRACTICE POINTER: Government Websites. The statutes and rules governing USCIS, ICE, and CBP within the United States may be found on the USCIS website, at www.uscis.gov. In addition, Title 22 of the U.S. Code may be found at various URLs, including: www.law.cornell.edu/uscode/text/22. Title 22 of the Code of Federal Regulations (CFR) may be found at the Government Publishing Office website at: www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR. The specific website for the FAM is https://fam.state.gov/.

Tab Position 1

VAWA Manual March 2017

Note that sometimes the regulations and the FAM may be slightly out of date, with respect to fee amounts, statutory or judicial changes, so it is important to cross-check with all the government websites. B.

Overview of Consular Processing Steps

When the Vermont Service Center (VSC) approves an I-360 for a VAWA self-petitioner who has indicated that he or she will consular process, it will send the notification of approval on Form I797 to the self-petitioner and forward the approved self-petition to the National Visa Center (NVC). 7 The NVC is responsible for centralized file storage and for preliminary immigrant visa processing. 8

Beginning with the October, 2015 State Department visa bulletin, there is a two-tiered chart system, with one chart indicating “Dates for Filing” (Chart B) and the second chart “Final Action Dates” (Chart A). Chart A “Final Action Dates” reflects actual current priority dates. Chart B, “Dates for Filing,” indicates the priority dates when the National Visa Center will begin accepting fees and applications for particular preference categories. Example: Sally, a native of New Zealand and the abused spouse of an LPR is presently living abroad. She filed a VAWA self-petition which was received by USCIS on November 15, 2015 (her priority date). This month, the visa bulletin indicates in Chart B 8 CFR § 204.2(c)(3). 9 FAM 504.1, 504.4. 9 9 FAM 504.4. Note that the processing overview set out in the FAM do not yet reflect that most communications, notices and documents from the NVC are provided on the NVC and related DOS websites online and by email to the applicant and her representative. 10 The Visa Bulletin can be found online at: https://travel.state.gov/content/visas/en/law-andpolicy/bulletin.html. 7 8

8-3

Chapter 8

If the petitioner is an immediate relative, or has a current priority date, the NVC will commence the process upon receiving the notice of approval of the I-360 from the VSC. In contrast, if the self-petitioner is in a preference category with a backlog, the NVC stores the approved I-360 petition and sends the intending immigrant a notice informing him or her that further notices will be sent once the priority date is close to becoming current and there soon will be a visa immediately available. 9 However, these notices sometimes do not get sent, or go astray as the beneficiary may have moved without notifying the NVC. It is therefore very important that the beneficiary check the State Department’s visa bulletin 10 regularly to determine whether the priority date is in fact current, and if it is, to notify the NVC and request that immigrant visa processing begin.

that for the 2A preference category, which includes spouses of LPRs, “Dates for Filing” is currently at November 22, 2015. This date is past Sally’s “priority date” of November 15th, 2015. That means that Sally can pay the fees for her immigrant visa application and submit the electronic form as well as her required documents to the NVC. However, Chart A, “Final Action Dates” indicates that 2A priority dates are “current” only for those whose actual priority date is June 8, 2015 or earlier. This means that although Sally can and should file everything in advance, she will not be able to have an interview scheduled with the U.S. Consulate in New Zealand until her November 15, 2015 priority date is “current” which means a visa then will be “immediately available” to her.

Chapter 8

The NVC will generally complete the following preliminary processing steps: 1) it will collect the designation of agent form; 2) it will collect the required immigrant visa processing fees and any required affidavit of support fee; 11 3) it will collect the visa application forms for the selfpetitioner and any derivatives, the I-864W “Request for Exemption for Intending Immigrant’s Affidavit of Support” form, and all the required civil documentation; and 4) it will forward all documents collected to the appropriate U.S. consulate for the final interview with the visa applicant. In the case of VAWA self-petitioners who are consular processing, the I-864W exemption form is required in lieu of the affidavit of support form. All initial communication from the NVC is by letter or email, with the initial instruction letter providing the relevant URLs (websites) for the forms and continued instructions online. The applicant should receive: •

A cover letter with the NVC case number and name of the self-petitioner or derivative beneficiary/immigrant visa applicant, payment, and communications instructions. The cover letter will also direct the self-petitioner to choose an “agent” on Form DS-261 if a representative did not submit a G-28 Notice of Entry of Appearance as Attorney or Accredited Representative with the visa petition. If a G-28 is on file, the representative will be contacted directly as the “agent” unless a Form DS-261 is filed designating a different person.

•

Immigrant Visa Fee Invoice for the self-petitioner and each derivative beneficiary with the NVC Case Number and Invoice I.D. Number needed for paying the fee invoice online and for submitting the immigrant visa applications. The Immigrant Visa (IV) fee must be paid for each visa applicant.

•

Affidavit of Support Fee Invoice with the same NVC Case Number and a different Invoice I.D. Number for the self-petitioner and/or derivatives.

•

A web address or internet address to the Immigrant Visa Process main page which sets out all the instructions for the Immigrant Visa Applicant, with a list of documents that must be gathered.

As of this writing, May 2017, the NVC collects its “affidavit of support fee” for review of the I-864W exemption form for the self-petitioner, although there is no fee for this form if filed as part of an adjustment of status application. 11

8-4

Tab Position 1

Immigrant Legal Resource Center March 2017

C.

•

A web address or internet address to pay fees and submit the immigrant visa (IV) electronic application(s) online.

•

When the fees are paid, a Receipt and a Document Cover Sheet button is available which allows for the printing and or emailing of these items. The Document Cover Sheet is necessary to include later with all documents submitted.

•

When the Immigrant Visa application (DS-260) is electronically signed and submitted, a confirmation notice button will appear for printing and/or emailing this notice which is necessary for the visa interview. A copy of the DS-260 form which was submitted may also be printed. Contacting the National Visa Center

Selecting Which Consulate

The visa applicant may elect to consular process at either the consulate in the country where he or she resides or last resided 12 or the consulate in the country where he or she is physically present and will be able to remain throughout the processing stage. 13 In addition, the State Department may direct the consulate having jurisdiction over the country of the applicant’s citizenship or nationality to accept the applicant’s case for visa processing. 14 Finally, any other consulate may accept jurisdiction of the case if the applicant is currently residing in the United States and establishes that hardship would occur if he or she were forced to return to the country of last residence for consular processing. 15 Some cases are referred to as “homeless” cases, that is, ones in which the beneficiary’s country of nationality or last foreign residence is not within the consular jurisdiction of any U.S. immigrant visa issuing post. 16 At this writing, examples of

22 CFR § 42.61(a), 9 FAM 504.4-8. 22 CFR § 42.61(a), 9 FAM 504.4-8(C). 14 9 FAM 504.4-8 (B). 15 22 CFR. § 42.61(a), 9 FAM 504.4-8(D). 16 The list of countries whose nationals are considered “homeless” are listed in 9 FAM 504.4-8(E)(1)(b). 12 13

8-5

Chapter 8

For information on the status of an approved I-360 petition that is pending at the NVC awaiting consular processing or at any stage of the process, you may email the NVC at [email protected] or call the NVC automated voice center at (603) 334-0700. You may also fax a letter to the NVC at (603) 334-0791. The address is National Visa Center, Attn: WC, 32 Rochester Avenue, Portsmouth, New Hampshire 03801-2909. Representatives with G-28s on file can also inquire about clients’ cases via email, at [email protected]. Inquiries should be limited to one case per email and should contain the case or receipt number as the subject heading of the email. All inquiries should also include the names and dates of birth of the VAWA self-petitioner and any derivative applicant, the representative of record and the NVC Case Number, which is the reference number the NVC assigns to all cases—and which often, but not always, begins with three letters corresponding to the consulate where the applicant will be interviewed. For example, the letters “ISL” correspond to cases going to Islamabad, Pakistan; and “JAK” corresponds to Jakarta, Indonesia. Thus, looking at the NVC Case Number is one easy way to verify that NVC has the correct consulate early on. D.

Tab Position 1

VAWA Manual March 2017

“homeless” countries are Eritrea, Iran, Libya, Somalia, Syria, South Sudan, and the Sudan. 17 For homeless cases, the State Department will designate alternate consulates for immigrant visa processing, depending upon the visa applicant’s physical location at the time that he or she begins consular processing. 18 The posts that presently usually process homeless cases for the listed countries are also listed in the FAM. 19 § 8.3

Step I: Establishing Email Correspondence and a Point of Contact

The applicant will first be asked to do the following two things: 20 1. Designate an email address through which to communicate with NVC. This can be done either by the self-petitioner or by the representative, by sending an initial email to NVC at [email protected]. Make sure to include the following information in the email: all email addresses to which NVC should send the correspondence; the self-petitioner’s full name, email address, and date of birth; and the name, email address, and postal address of the attorney of record, if applicable. NVC will proceed to correspond with the applicant and/or her representative by sending emails to the email address from which the message came and every other email address included in the message.

Chapter 8

2. Designate a point of contact for all correspondence from the NVC by going on to the Immigrant Visa Process main page and submitting the online DS-261, Choice of Address and Agent form. The self-petitioner can chose to be this person; however, she can also designate anyone else if she prefers. This does not have to be an attorney or other representative, but can be a family member or a friend. Whoever is designated, however, should be able to correspond with NVC via email, because this is the method of communication the agency prefers. Therefore, if an email address is provided to NVC to communicate with the agent of choice, NVC will send all correspondence by email and not hard mail. § 8.4

Step II: Paying the Fees

Several months or even a year before the self-petitioner’s visa number becomes current, the NVC should send or email an Instruction Packet with an Immigrant Visa Fee Invoice and an Affidavit of Support Fee Invoice, which are the consular processing fees. 21 As of May 2017, the Immigrant Visa Processing fee is $205 for VAWA applicants. The Affidavit of Support fee invoice should not apply to VAWA self-petitioners. However, practitioners currently report that the NVC is requiring the Affidavit of Support fee bill be paid for “NVC review” of the I-864W exemption form, which is required for self-petitioners. The fee invoices contain a unique invoice number for each case (same number for principal and derivatives) and instruct the visa applicant to pay the

9 FAM 504.4-8(E)(1)(b). 9 FAM 504.4-8(E)(3); 504.4-8(E)(1)(b). 19 9 FAM 504.4-8(E)(1)(b). 20 The webpage with these instructions can be accessed by going to the Immigrant Visa Process main page and clicking on the “Begin National Visa Center (NVC) Processing” link under the section titled “After Your Petition is Approved.” 21 9 FAM 504.4-2(B), 9 FAM 504.4-3, FAM 504.4-5(B).3, 4. 17 18

8-6

Tab Position 1

Immigrant Legal Resource Center March 2017

fees online through a U.S. bank checking or savings account. 22 As of this writing (May 2017) prior instructions for alternative methods of payment have been removed, and if an applicant or her agent cannot pay online, the NVC must be contacted directly to make alternative payment arrangements. 23

Tab Position 1

VAWA Manual March 2017

PRACTICE POINTER: The I-864W Form and Filing Fee. As of this writing, advocates are reporting that a self-petitioner who is residing in the U.S. but undergoing consular processing (and as a result filing the I-360 in the U.S. and processing through the NVC), will be required to pay the Affidavit of Support Fee Invoice for NVC “review” of the I-864W. 24 This is being required by the NVC even though VAWA applicants are not required to file affidavits of support and by extension, should not be required to pay the affidavit of support fee. 25 The same is true if derivative children abroad are “following to join” through consular processing, after the selfpetitioner has adjusted status in the United States. Only one “affidavit of support fee” is required by the NVC for all derivatives, if all are included on the same I-864W form. If, however, the selfpetitioner files from outside the U.S., no fee will be required by the consulate for review of the I864W for either the self-petitioner or her derivatives.

To pay online, access the “Immigrant Visa Invoice Payment Center” link on the “Pay Fees” page tab found on the NVC Immigrant Visa Process main page listed above. 23 Id. 24 Available at www.uscis.gov/i-864w; https://travel.state.gov/content/visas/en/immigrate/immigrantprocess/documents/support/i-864-frequently-asked-questions.html. 25 Advocacy efforts may result in a change of this NVC fee for I-864W “review” requirement, so be sure to check for current practice. The DOS regulations require a fee for an “affidavit of support” but do not list the I-864W exemption request form. 22 CFR § 22.1. 26 22 CFR § 22.1. 22

8-7

Chapter 8

PRACTICE TIP: Request NVC Processing without the I-864W if Applicant Cannot Pay NVC “Review” Fee. According to procedures laid out in the FAM, there may be another way to overcome this obstacle. According to a “note” in 9 FAM 504.4-5(B)(2)(b) Incomplete Cases or Cases Lacking Documentation: “If an I-864W is required, NVC will request it one time. If the form is not submitted, the case will be scheduled for an interview and the applicant should be required to complete the form at the time of the interview.” In addition, as noted in the Practice Pointer, no fee will be charged by the consulate for review of the I-864W by the consulate, only for “domestic review” in the United States. 26 Thus, the representative or applicant may request the NVC to schedule the consular interview and forward the case to the consulate without the I864W and without the fee. Be aware that this course of action will likely cause some delay and may also require advocacy with the NVC. In the meantime, advocates in DC are advocating with the NVC and DOS to remedy this situation. Caveat: while the language of the FAM appears to allow this consular alternative, as of this writing, we do not yet have the benefit of experience for this suggested alternative. Advocates with clients preparing for consular processing should check the ASISTA website for further developments on this issue.

Chapter 8

§ 8.5

Step III: Submitting the On-Line Application for an Immigrant Visa, the Affidavit of Support and the Civil Documents

Once fees are processed by the NVC, the applicant should download and print or email the Document Cover Sheet, which will need to be returned to the NVC along with the I-864W request for exemption from affidavit of support and civil documents. The representative and the applicant must submit the Online Immigrant Visa and Alien Registration Application Form DS260, and all the necessary supporting documentation, referred to as the “civil documents.” How, when and which documents are required may vary slightly by consular post. For example, some consular posts require the applicant to either send or scan and email original or certified copies of civil document and police certificates to the NVC for pre-screening. These usually include a copy of a valid, unexpired passport biographic page (valid for at least six months past the anticipated immigrant visa interview date), a certified copy of the applicant’s birth certificate, a certified copy of the applicant’s marriage certificate; a certified copy of any prior marriage and divorce decrees, a certified copy of birth certificates of derivatives; photos; police clearance letters; certified copies of military records; and certified copies of conviction records. The FAM should be consulted with regard to whether a particular document from a certain source is deemed acceptable. 27 Financial documents required may include IRS transcripts from the petitioner and any joint sponsor. The consulate will require the applicant to bring the original documents for all copies submitted, which will be returned to the applicant at the consular interview or subsequently through the courier designated for pick-up of the immigrant visa package. If the documents are not submitted electronically, we highly recommend sending documents by certified mail, return receipt requested or courier, and keeping a copy of each document sent with proof of delivery. Not all consulates require police clearances, but for those that do, such clearances can take substantial time to obtain, but also can “expire,” so timing the request for the certificate with the likely date of the consular interview will be important for some applicants. In addition, certain consulates have their own specific requirements for documentation, so the country specific requirements should always be checked through the links provided on the NVC Immigrant Visa Process “Submit Documents to the NVC” page. The instructions from the NVC will list the web address of the Immigrant Visa Process main page, where all the specific instructions are outlined. The applicant must follow those instructions carefully. After the Immigrant Visa fee is paid and the Immigrant Visa application is submitted, the next step is to prepare the Affidavit of Support exemption form, and gather supporting financial documents and civil documents to submit together to the NVC. An Affidavit of Support Form I-864 is usually required for those who consular process, but VAWA self-petitioners and their derivatives should substitute Form I-864W, Intending Immigrant’s Affidavit of Support Exemption, in lieu of Form I-864, and it is advisable to reference in the email or hard mail cover letter that the applicant is a VAWA self-petitioner or derivative and thus not required to submit

Enter country and click on search under “Document Finder” section in “Collect Supporting Documents” page on NVC Immigrant Visa Process main page or go to State Department “Reciprocity and Civil Documents by Country” page at https://travel.state.gov/content/visas/en/fees/reciprocity-by-country.

27

8-8

Tab Position 1

Immigrant Legal Resource Center March 2017

Form I-864 nor pay the Affidavit of Support fee, though as of this writing, the NVC is requiring the fee for “I-864W review.” 28 The Immigrant Visa and Alien Registration application on Form DS-260 must be submitted online for all applicants. The form requests standard biographical data on the visa applicant, and like the questions on the Form I-485 adjustment of status applications, the questions on Form DS260 also address questions of inadmissibility and must be answered carefully. The form also requests information on present address, address where the applicant will reside in the United States, intended port of entry, affirmation that the individual is not inadmissible, and whether the applicant has ever lived in the United States or been refused a visa or admission to the United States.

Tab Position 1

VAWA Manual March 2017

PRACTICE TIP: While all the questions under “Security and Background Information” on the DS-260 form relate to grounds of inadmissibility, the question “Do you have documentation to establish that you have received vaccinations in accordance with U.S. law?” should be answered “yes” if the applicant plans to obtain all necessary vaccines by the time of the consular interview, either from his or her own doctor or at the time of the medical exam with the panel physician. Where to Find Forms

Electronic Filing Electronic filing is becoming a requirement by more and more consulates. This means that in addition to submitting online versions of forms DS-261 and DS-260, required by all consulates at this writing, certain consulates also require the other “civil documents” be scanned and submitted via e-mail to [email protected]. Whether or not electronic processing is required in a particular case depends on the consulate that will receive the application and the visa category

As mentioned previously, while the NVC is currently requiring the affidavit of support fee be paid for I864W “review,” this requirement does not appear correct per the regulations or statute, and advocates are working on this issue as of this writing (May, 2017). 29 You can access that file by going directly to this website: http://travel.state.gov/content/dam/visas/DS260%20Exemplar.pdf. 30 Available at https://ceac.state.gov/ceac/. 31 Note that the redacted DS-260 in Appendix 8-A is that of a visa applicant who has never been in the U.S., additional questions will likely “pop-up” on the form for those who have been in the U.S. previously. 28

8-9

Chapter 8

The DS-260 is not accessible in print form until the electronic application has been completed or partially completed. After completion, but prior to signature, the form may be printed, scanned, and emailed for review, or the applicant can review it online. A DOS “exemplar” form is available online in PDF format but is already somewhat out of date. 29 To complete forms online, the applicant or his or her representative must visit the Consular Electronic Application Center (CEAC) website and follow the directions on the website. 30 A sample redacted DS-260 from 2017 is attached as Appendix 8-A. 31 Note that the DS-260 is often updated with additional questions, and those who have visited the U.S. previously will likely have additional questions related to inadmissibility posed by the electronic form. Worksheets in English and Spanish to assist advocates in the preparation of the DS-260 are attached as Appendices 8-B and 8-C.

involved. It is very important, therefore, to follow the instructions online at the “Submit Documents to NVC” tab of the Immigrant Visa Process main page. § 8.6

Step IV: Preparing for the Consular Interview

Once the applicant submits everything required online or by mail to the NVC, the NVC will schedule an appointment for the applicant with a consular officer and will send an appointment letter to everyone involved (self-petitioner/applicant and agent/attorney of record) approximately one month before the interview date. At that time, the NVC will also forward the I-360 petition and complete immigrant visa application file to the designated consular post, along with electronic data that is entered into the consular office’s computer filing system. 32 If all was filed electronically, the NVC will send electronic copies to the consulate and archive the physical file at the National Records Center (NRC). In either case, NVC will no longer be in charge of the case. All subsequent inquiries must be directed to the consulate. The consulate will request background reports from other government agencies and request an immigrant visa number from the State Department. NVC will send a set of documents called the Appointment Package for Immigrant Visa Applicants to the intending immigrant or his or her representative. Although there will be some variance among consulates, this packet usually consists of the following: Immigrant Visa Appointment Letter, indicating the visa appointment date and time.

•

Information on steps to take to prepare for the interview, including scheduling a medical examination, registering with a courier service, gathering original documents and copies including updated financial documents and updated police certificates, and visiting the particular embassy or consulate’s website for consulate specific instructions. To accomplish all these steps, the applicant is referred to the website at https://travel.state.gov/content/visas/en/immigrate/immigrant-process/interview.html.

•

A list and additional information regarding documents the applicant must bring to the interview, photograph requirements, and other supplemental information. Again, there may be additional, consulate-specific instructions that apply at the consular post where the applicant will be interviewed. You and your client can download those instructions by going online to the “Prepare for the Interview” link under the “Interview” section at the Immigrant Visa Process main page.

Chapter 8

•

The panel physician with whom the medical examination must be scheduled will review the applicant’s medical history, including whether the applicant has had certain diseases or been diagnosed with certain medical conditions that could trigger an inadmissibility ground. You can also see the instructions—including a country-specific list of panel physicians—by going to the Medical Examination webpage, which you can access through the “Prepare for the Interview” link under the “Interview” section at the Immigrant Visa Process main page. For consular processing cases, the applicant collects the required documents and takes them to the consular interview. The instructions advise taking both the original and a copy of all required documents to the interview. As a practical matter, it is a good idea to take a complete copy of the Department of State cable, No. 00-State-238959, entitled “IV Reform: First Steps on January One,” (Dec. 19, 2000), reprinted in 89 Interpreter Releases 13 (Jan. 3, 2001). 32

8-10

Tab Position 1

Immigrant Legal Resource Center March 2017

underlying visa petition and any original documents that were part of that petition, in the event that the consular officer has questions about the visa petition. All official documents must be certified by the issuing authority. 33 Primary documentation, for example of birth or marriage, would be a certificate from a government agency that maintains official records. The FAM should be consulted with regard to whether a particular document from a certain source is deemed acceptable. 34 If such a document is unobtainable in the issuing country, the applicant may be allowed to submit other satisfactory evidence in its place. 35

Tab Position 1

VAWA Manual March 2017

Submitting Fingerprints at Application Support Centers (ASCs) Many U.S. consulates (including Ciudad Juarez as of this manual’s writing) require a fingerprinting appointment to be scheduled at an Application Support Center (ASC) prior to the visa interview. Follow the NVC and consulate’s online instructions to schedule the appointment at least a week in advance of the interview. Registering with a Courier Service

Translating Documents All documents not written in English must be completely translated, word-by-word, into English. However, in practice most consulates will accept summary translations of birth, marriage, divorce, and death certificates. The translations should bear a certificate of accuracy, in which the translator certifies that he or she reads and writes both languages fluently, that he or she has translated the document into English, and that the translation is true and complete, to the best of the translator’s ability. The translator should sign and date the certificate. Completing the Medical Examination Consulates have different procedures and requirements for satisfying the medical examination. In all cases, however, each applicant for an immigrant visa must have the examination conducted by a designated doctor, called a panel physician, located in the country where the interview takes place. 36 The applicant must complete a medical examination, along with any required vaccinations, before the interview with the consulate. In some countries the exam needs to be scheduled 14 days or more prior to the interview in order that the physician can complete all required lab tests. Once the visa interview appointment date has been received, the applicant 22 CFR § 42.65(b). Enter country and click on search under “Document Finder” section in “Collect Supporting Documents” page on NVC Immigrant Visa Process main page or go to State Department “Reciprocity and Civil Documents by Country” page at https://travel.state.gov/content/visas/en/fees/reciprocity-by-country. 35 22 CFR § 42.65(d). 36 22 CFR § 40.11. 33 34

8-11

Chapter 8

Some consulates also require that an immigrant visa applicant register in advance at a courier service designated by the consulate (DHL in Ciudad Juarez) prior to attending the visa interview, in order to receive delivery of the applicant’s passport and approved immigrant visa after the visa is approved. The applicant usually has a choice of courier locations to choose from. The applicant will not return to the consulate after the interview, but rather will pick up these documents at the designated courier office.

should immediately schedule the medical examination online or by telephone or email, following the instructions and timeline provided for the particular consulate. These instructions are found on the “Medical Examination” page link in the “Preparing for the Interview” section under “Schedule and Complete a Medical Examination.” Currently visa applicants are required to bring copies of prior medical records, immunization records and prior chest x-rays to the medical appointment, along with the applicant’s passport, identity card, laissez-passer, or travel document. The applicant will receive the results of the medical exam in a sealed envelope to take to the consulate or increasingly, the panel physician will submit the results directly to the consulate. Young children ages 2–14 should plan to schedule the medical exam at least four days prior to the interview, unless even more time is indicated by the consulate, because a TB skin test will be required and results take 72 hours to obtain.

Chapter 8

Vaccination requirements are an important part of the examination. A visa applicant who has had some or all of the required vaccinations should bring a copy of his or her vaccination records to the medical examination. The vaccinations currently required, based on age of the applicant, can be located on the Centers for Disease Control webpage. 37 The panel physician, if satisfied with the record, may note the vaccination history in the medical examination report. For more information on the health grounds of inadmissibility, please see Chapter 6 on the inadmissibility grounds and Chapter 7 on waivers of the grounds of inadmissibility. Medical examinations for consular processing are conducted by panel physicians pursuant to Public Health Service regulations and the Technical Instructions for Medical Examination of Aliens, issued by the Centers for Disease Control and Prevention, a part of the U.S. Department of Health and Human Services. 38 If a panel physician finds that a prospective immigrant falls under an inadmissibility ground related to communicable diseases, physical or mental disorder, or drug abuse or addiction, he or she will issue a “Class A” medical certificate, noting the condition. 39 The applicant may appeal this finding to the USCIS. If this is done, a medical review board is convened, and the applicant may bring his or her own medical experts to testify. 40 Medical examiners will issue “Class B” notifications when the applicant is found to have other permanent physical or mental abnormalities, disease, or disabilities. The aim of Class B notifications is to assist the USCIS or the U.S. Consulate in determining whether the immigrant is likely to become a public charge. These notifications detail the degree to which the immigrant is “incapable of normal physical activities” and “the likelihood that, because of the condition, the applicant will require extensive medical care or institutionalization.” 41 PRACTICE POINTER: Preparing for the Medical Exam. At the medical exam, the physician may ask your client about past drug use, DUI convictions, gang involvement and acts of domestic violence. Certain tattoos may lead to a determination of gang involvement and “danger” to others. The current CDC vaccinations chart for panel physicians is located at: www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/vaccination-panel-technical-instructions.html#tbl1. 38 22 CFR § 42.66(b). The Center for Disease Control and Prevention’s Technical Instructions for Medical Examination of Aliens [“CDC Technical Instructions”] may be found at www.cdc.gov. 39 42 CFR § 34.2(d). 40 42 CFR § 34.8(a), (c). 41 42 CFR § 34.4(c). 37

8-12

Tab Position 1

Immigrant Legal Resource Center March 2017

Admission of drug use, including marijuana even if legal in the jurisdiction where used and even one time for experimental reasons, or testing positive for a drug at the time of the exam, may lead to a finding of inadmissibility either as a drug abuser or as one who has admitted to the violation of a law related to controlled substances. A finding of drug abuse presently results in inadmissibility for one year since last use, and often a requirement to submit to random testing and take drug classes prior to reapplying for the immigrant visa. A DUI conviction will also likely result in a finding of inadmissibility for “danger to self or others” for at least one year, at least in some consular jurisdictions, such as Ciudad Juarez at present writing. Similarly, an arrest for domestic violence may have the same result. These latter two issues are waivable for selfpetitioners through the USCIS Vermont Service Center, with review by the U.S. Public Health Service, but the process is complicated. You should discuss these issues with your clients before they go to see the panel physician. § 8.7

Tab Position 1

VAWA Manual March 2017

Step V: The Consular Interview

If the applicant is inadmissible for a ground that is waivable, the consular office will instruct the applicant to submit the waiver application by mail to the USCIS Vermont Service Center. The consulate will not issue a visa to the applicant unless and until the USCIS grants the waiver. PRACTICE POINTER: Waiver Applications during Consular Processing. Waiver applications can cause considerable delay in the visa process. For most applicants, there is no mechanism for submitting waivers in advance of the consular interview, with the exception of the Provisional Waiver for the “3/10 bars” for unlawful presence. 44 If you believe your client will need a waiver of inadmissibility, it is advisable to prepare the application in advance and have it ready to file with USCIS, so that at least there is no additional delay for preparation of the application. Also advise your clients who are in this situation that they may need to wait several months for the waiver to be adjudicated by the USCIS (6–8 months at the time of this writing). This is time the applicant needs to expect to spend outside the United States. Also, remember to check if your

22 CFR § 42.62(a). 22 CFR § 42.67(a)(2). 44 Many VAWA applicants will qualify for the VAWA “exception” to the “3/10 bars” for unlawful presence and will as a result not require a waiver. However, since the qualification for the exception will itself require a decision by a consular officer, those clients who will possibly be subject to the 3/10 year bar may want to adjust status in the U.S. if presently residing in the United States. 42 43

8-13

Chapter 8

The visa applicant must appear personally for a consular interview. 42 During the interview the U.S. consular official will confirm the information contained in the DS-260 application, screen for any applicable ground of inadmissibility and waiver eligibility, review the supporting documents that are required to be submitted, and confirm that the medical exam does not reveal any health-related problem that could either prevent approval or require a waiver. The officer will question the applicant and ask the applicant to sign the application under oath. 43

VAWA self-petitioner qualifies for an “exception” to the ground of inadmissibility or for a special VAWA waiver provision. 45 If USCIS approves the inadmissibility waiver, the applicant schedules another interview and returns to the consulate with the approval notice. Some consulates require that the applicant pay another visa processing fee. If the visa is refused on a ground that may be overcome by the submission of additional evidence, the consular officer will keep the file open for a certain period of time, usually one year. 46 Once the applicant has obtained the necessary documentation, the case will be reconsidered. 47 If no action is taken on the case for one year after the interview, the case is usually closed. 48 The applicant may re-open the case within one year of its closure by demonstrating that the failure to act was due to circumstances beyond his or her control. 49 If the consular officer requests information or documentation that you believe is inappropriate or unnecessary, communicate directly with the U.S. consular post, by email, fax, or telephone. The same is true in situations where the consulate has indicated an intention to deny the application. Put your concerns in writing and cite the regulations, Foreign Affairs Manual sections, or State Department cables that support your position.

Chapter 8

§ 8.8

Final Step: Once the Consulate Grants the Immigrant Visa

When the consular post grants the visa, the post gives the visa holder a sealed envelope that contains the immigrant visa itself, all the forms and supporting documents relating to the visa petition and application, any consular notes regarding possible ineligibility for the visa, and any grant of a waiver of inadmissibility, if applicable. 50 The immigrant visa is valid for entry into the United States for six months from the date of issuance by the consulate, 51 except that the validity period will be shorter for a child who will turn 21 within six months of the visa’s issuance. For those persons, the visa will expire the day before the child’s twenty-first birthday, 52 unless the consulate has taken into account the relevant Child Status Protection Act (CSPA) provisions (See § 8.9 below). The visa holder must not open the envelope. Instead, the visa holder delivers the sealed envelope to Customs and Border Protection (CBP) when he or she presents himself or herself for inspection at the port of entry. (See § 8.11 below, on entry procedures). PRACTICE POINTER: Immigrant Fees. The visa holder must also pay a USCIS Immigrant Fee after receiving the immigrant visa, before entering the United States. If this fee is not paid, the person will not receive an alien registration card (green card). VAWA self-petitioners are eligible INA § 212(i) [visa fraud], § 212(g) [health], § 212(h) [crimes], and § 212(a)(9)(C) [“permanent” unlawful presence bar] all provide special provisions and more generous requirements for waivers of inadmissibility for VAWA self-petitioners. 46 22 CFR § 42.81(b). 47 22 CFR § 42.81(e). 48 22 CFR § 42.83(b). 49 22 CFR § 42.83(c), (d). 50 9 FAM 504.10. 51 INA § 221(c). 52 22 CFR § 42.72(d). 45

8-14

Tab Position 1

Immigrant Legal Resource Center March 2017

for a waiver of this fee. 53 Generally, however, the visa holder must go online to the USCIS ELIS (Electronic Immigration System), to pay the fee, which at this writing is $220. If the visa holder fails to pay the fee or fails to obtain a fee waiver prior to entering the United States, she or he will receive an RFE and may still pay the fee after entry. CBP will still admit the person as an LPR and it will not impact her status as a permanent resident, but the new immigrant will not receive her “green card” until the fee is paid. Visit the USCIS website at www.uscis.gov/forms/uscisimmigrant-fee for an explanation of the process and for detailed instructions. § 8.9

Tab Position 1

VAWA Manual March 2017

Consular Processing for Derivative Beneficiaries

A derivative beneficiary may also obtain lawful permanent residence through consular processing. For a self-petitioner, derivative beneficiaries would be his or her unmarried children who were under 21 at the time the self-petition was filed. As noted in Chapter 3, turning 21 after the self-petition is filed does not make VAWA derivative children ineligible for a visa. 54 Turning 21 may increase the length of time the derivative must wait for a visa to become available, however, and advocates should do a Child Status Protection Act (CSPA) calculation to see whether the derivative’s adjusted age under the CSPA remains under 21. Please see the discussion of the Child Status Protection Act in Chapter 5 at § 5.5 of this manual.

If expedited consular processing is needed for a client, the advocate should take several steps. First, ask that the Vermont Service Center to send a cable to the NVC and the consular post, informing them that the self-petition has been approved and of the need for expedited processing. Second, notify the NVC directly of the self-petition approval and need for expedited processing. The NVC should send initial instructions to the self-petitioner, but further processing will generally be done directly between the self-petitioner or his or her representative and the consulate. Third, contact the consular post directly about the approval and the need for expedited processing. This can be done by email, telephone, or fax. The websites of U.S. embassies and consulates around the world, with contact information, can be reached from http://usembassy.state.gov/. The American Immigration Lawyers Association (AILA) also publishes a listing of consular posts’ telephone and email contact information. There are four basic scenarios under which a derivative beneficiary may obtain permanent resident status, summarized in the chart set out below.

8 CFR § 103.7(b)1\(1)(i)(D); 8 CFR § 103.7(c)(3)(xviii). INA § 204(a)(1)(D)(i)(III). 55 Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002). 53 54

8-15

Chapter 8

PRACTICE POINTER: Requesting Expedited Processing. During the VAWA self-petitioning process, advocates should determine whether the principal or derivative beneficiary is in danger of “aging out” by turning 21. The problem of “aging out” has been ameliorated considerably by the Child Status Protection Act of 2002, providing special rules for calculating whether or not a person has “aged out.” 55 Please see the discussion of expedited processing found in Chapter 5 at § 5.5 of this manual. If the CSPA will not cure an age-out situation, however, or if there is some other emergency need, the advocate should request that the consular processing be expedited.

We discussed the adjustment of both the principal and derivative in Chapter 5. In this section, we will discuss how the derivative beneficiary may obtain his or her immigrant visa through consular processing. In cases of a derivative beneficiary under the age of 21, the derivative beneficiary’s eligibility for an immigrant visa will depend on the granting of a visa to the principal beneficiary (the self-petitioner). 56 VISA PROCESSING SCENARIOS FOR DERIVATIVE BENEFICIARIES

Chapter 8

1. Principal adjusts, derivative adjusts 2. Principal consular processes, derivative consular processes • Accompanying principal (together with principal or within six months after principal immigrates) • Following to join principal (immigrating more than six months after principal immigrates) 3. Principal adjusts, derivative consular processes 4. Principal consular processes, derivative adjusts Under the second scenario, if the self-petitioner and the derivative beneficiary go through consular processing together, a DS-260 Immigrant Visa and Alien Registration Application must be filed for each derivative beneficiary, as well as for the principal self-petitioner. The derivative beneficiaries may attend the interview with the principal and apply for their visas at that time. If the derivative beneficiary appears to be inadmissible under one of the inadmissibility grounds, he or she may apply for a waiver of that ground. If the derivative is found inadmissible, this will not keep the principal and other derivative beneficiaries from being granted an immigrant visa. The term “accompanying” is defined as immigrating with the principal beneficiary or within six months after the principal beneficiary immigrates. 57 The term “following-to-join” is defined as immigrating more than six months after the principal beneficiary immigrates. 58 If the derivative beneficiary will immigrate after the principal beneficiary, either within six months or later, the consular officer will informally evaluate the derivative family member’s qualifying relationship to the principal and the derivative’s own admissibility, so that he or she may follow the principal visa applicant at a later date. 59 The family relationship between the principal and derivative beneficiaries must have existed before the principal beneficiary is admitted to the United States as an immigrant, 60 except that a child born after the principal visa holder entered the United States as an immigrant, but of a marriage that took place before he or she obtained the visa, may also immigrate derivatively. 61 After the self-petitioner’s derivative child turns 21, that “child” becomes a self-petitioner in his or her own right, and can adjust status or consular process on her own regardless of the status of the principal selfpetitioner, as long as the child was under 21 and unmarried at the time of the principal self-petitioner’s VAWA filing or approval. See Chapter 3. 57 22 CFR § 40.1(a)(1). 58 Id. 59 22 CFR § 42.68; 9 FAM 503.3-2(D)(a)(1). 60 22 CFR § 42.53, 9 FAM 503.3-2(D)(a)(1),(b). 61 9 FAM 503.3-2(D)(b). 56

8-16

Tab Position 1

Immigrant Legal Resource Center March 2017

Under the third scenario, if the principal visa applicant has adjusted status in the United States, and the derivative beneficiary is abroad, USCIS will forward either Form I-181, Memorandum of Creation of Record of Lawful Permanent Residence, or Form I-824, Application for Action on an Approved Application or Petition, to the appropriate consulate. 62 These forms allow the consulate to begin immigrant visa processing for the derivative beneficiaries.

Tab Position 1

VAWA Manual March 2017

PRACTICE POINTER: Form I-824 and Commencement of Derivatives’ Consular Processing. Form I-824, Application for Action on an Approved Application of Petition, is the formal vehicle for notifying a consulate that a principal visa beneficiary has adjusted status and requesting consular visa processing for the principal’s derivatives. Advocates report success in filing Form I824 with the Vermont Service Center, which will adjudicate the form and, if it is granted, send a notice of approval to the principal and a notice to the National Visa Center, which in turn will forward the notice to the consulate. The consulate will then begin the visa process.

In addition to the supporting documents normally required for an immigrant visa, evidence of the relationship between the principal (self-petitioner) and derivative beneficiaries must be presented to the consulate. This is normally done by the principal beneficiary/self-petitioner in his or her own visa interview. 65 § 8.10 Review of Visa Denials When a consular officer refuses an immigrant visa, he completes Form DS-194, Refusal Letter and Refusal Worksheet. 66 The consul gives the applicant a copy of the form and advises the applicant of the basis for the refusal and of any statutory provisions for administrative relief. 67 There is much less review of a consular officer’s refusal to grant a visa than there is of the USCIS’s denial of adjustment of status. The regulations provide that if permanent residence is refused on a ground that cannot be overcome by the presentation of additional evidence, the consular officer who has refused the visa must send the file to the principal consular officer or a 9 FAM 502.1-1(C)(2). See State Department Cable, No. 98-State-51612 (Feb. 27, 1998), reprinted in 75 Interpreter Releases 330 (March 8, 1998); 9 FAM 502.1-1(C)(3). 64 9 FAM 502.1-1(C)(2). 65 22 CFR § 42.68, 9 FAM 502.1-1(C)(1). 66 9 FAM 504.11-3(A)(1). 67 22 CFR § 42.81(b); 9 FAM 504.11-3(A)(1). 62 63

8-17

Chapter 8

Advocates also recommend directly requesting consulates to initiate immigrant visa processing for derivative beneficiaries. 63 To do this, the advocate should file Form I-824 as indicated in the preceding paragraph, but should also contact the consulate directly to provide the information to begin the visa process even before the consulate receives any notification from the USCIS. The advocate should send the following documents to the consulate: a cover letter explaining how the principal beneficiary obtained permanent residence and asking that visa processing be initiated for the derivative, a copy of the I-551 permanent resident card or the notice of approval of the principal beneficiary’s adjustment of status, and evidence of the relationship between the principal beneficiary and the derivative beneficiary. Be sure to also check the FAM for any additional or changed requirements. 64

designated alternate, who must review the decision without delay. 68 If the principal consular officer or alternate does not agree with the decision to refuse permanent residence, that officer must either: (1) refer the case to the State Department for an advisory opinion or (2) assume responsibility for final action on the case and issue a new decision. 69 An applicant who believes that the refusal was erroneous may seek intervention from officials at the State Department Visa Office in Washington, DC by requesting an advisory opinion. The State Department prefers for this request to be sent by email at: [email protected]. To request an advisory opinion, the lawyer or accredited representative should include the following information: 1. 2. 3. 4.

Full name of the visa applicant, date and place of birth and nationality; Consular post and name of consular officer, if known, and post file number, if available; Type and date of visa application; and Summary of the facts, statute, and regulation in question, and the legal basis for arguing that the post made a legal error.

Chapter 8

Note that when a case involves factual interpretations as well as legal matters, the consular officers have great discretion. Nevertheless, most consular officers will agree to follow the Visa Office’s recommendation to grant a visa. Consular officers are legally required to follow the legal conclusions of the Visa Office. § 8.11 What Can Happen at the Border? When the visa holder arrives at the U.S. port of entry, a Customs and Border Protection (CBP) inspector may question him or her again, under oath, regarding both the qualifying family relationship and the visa holder’s own admissibility as an immigrant. 70 This means that the visa holder must establish both that he or she is admissible under the INA § 212 inadmissibility grounds and that he or she remains eligible for the visa. For example, if the visa holder is entering the United States as a derivative child under VAWA, then he or she must still be unmarried at the time of actual entry to the United States, not just at the time the visa is granted by the consulate. If the inspector is satisfied that the visa holder is both eligible for the visa and admissible, the inspector will place the Form I-551 stamp in the visa holder’s passport. This serves as temporary evidence of permanent residence. The stamp is usually valid for six months, during which time the new immigrant should receive his or her I-551 Permanent Resident card (green card) in the mail. If the green card is not received within the time stamped in the passport, the local USCIS office with jurisdiction over the new immigrant’s residence will extend the stamp. If the CBP inspector is not satisfied that the visa holder is both eligible for the visa and admissible to the United States, the inspector may refer the visa holder for deferred inspection. The visa holder may be given the opportunity to produce additional evidence to overcome the appearance of inadmissibility. 71 If the visa holder is unable to overcome the CBP’s belief that he or she is inadmissible, however, he or she will be placed into removal proceedings, although he or she may 9 FAM 504.11-3(A)(2), (3). Id. 70 INA § 235. 71 INA § 235.2(b)(3) and (c). 68 69

8-18

Tab Position 1

Immigrant Legal Resource Center March 2017

first be given the opportunity to withdraw the application for admission and leave the United States. If the CBP charges the visa holder with inadmissibility for either lack of valid documents, under INA § 212(a)(7)(A), or for fraud or willful misrepresentation of a material fact, under INA § 212(a)(6)(C), then the visa holder may be placed in expedited removal proceedings. In those proceedings, the CBP determines admissibility and the visa holder may be removed on the CBP’s finding without a hearing before an immigration judge. 72 If the CBP charges the visa holder with inadmissibility on any other ground, however, the visa holder will be given a removal hearing before the immigration judge. 73

Tab Position 1

VAWA Manual March 2017

§ 8.12 Conclusion As an advocate, you can help the client anticipate problems, assemble all necessary documentation, and seek resolutions of any problems before the client arrives at the border. If all goes smoothly, your client will be admitted to the United States to start a new life as a lawful permanent resident.

Chapter 8

72 73

INA § 235(b)(1). INA § 240. 8-19

CHAPTER 8 CONSULAR PROCESSING FOR VAWA SELF-PETITIONERS INDEX OF APPENDICES Sample DS-260

Appendix 8-B

DS-260 Worksheet (English)

Appendix 8-C

DS-260 Worksheet (Spanish)

Chapter 8

Appendix 8-A

8-20

Tab Position 1

Immigrant Legal Resource Center March 2017

Tab Position 1

VAWA Manual March 2017

Chapter 8

Appendix 8-A-1

Tab Position 1

Chapter 8

Immigrant Legal Resource Center March 2017

Appendix 8-A-2

Tab Position 1

VAWA Manual March 2017

Chapter 8

Appendix 8-A-3

Tab Position 1

Chapter 8

Immigrant Legal Resource Center March 2017

Appendix 8-A-4

Tab Position 1

VAWA Manual March 2017

Chapter 8

Appendix 8-A-5

Tab Position 1

Chapter 8

Immigrant Legal Resource Center March 2017

Appendix 8-A-6

Tab Position 1

VAWA Manual March 2017

Chapter 8

Appendix 8-A-7

Tab Position 1

Chapter 8

Immigrant Legal Resource Center March 2017

Appendix 8-A-8

Tab Position 1

VAWA Manual March 2017

Chapter 8

Appendix 8-A-9

Tab Position 1

Chapter 8

Immigrant Legal Resource Center March 2017

Appendix 8-A-10

Tab Position 1

VAWA Manual March 2017

Chapter 8

Appendix 8-A-11

Tab Position 1

Chapter 8

Immigrant Legal Resource Center March 2017

Appendix 8-A-12

Tab Position 1

VAWA Manual March 2017

Chapter 8

Appendix 8-A-13

Tab Position 1

Chapter 8

Immigrant Legal Resource Center March 2017

Appendix 8-A-14

APPENDIX 8-B WORKSHEET: Information for Your Immigrant Visa Application Form (DS-260)

Tab Position 1

VAWA Manual March 2017

Personal and Biographic Information: Complete name: (First, middle, last): Other names that you have used: Gender: Current telephone number: Work telephone number (if have) Cell number (if have) Email (if have)

Chapter 8

Civil status (married, divorced, single): Date of birth: City of birth: State of birth Country of birth: Nationality: Identification -- passport: Passport number: Country that issued passport: Date issued: Date expires: Do you have any other nationality: Yes No Your other country of nationality: Do you have a passport from another country: Yes No Passport number: Country that issued Passport: Addresses: Current address: City: State: Zip code/postal code: _ Country: Date began living at this address:

Appendix 8-B-1

Have you lived at any other address since you were 16 years old? Yes Previous address (1): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address:

Chapter 8

Previous address (2): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address: Previous address (3): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address: Previous address (4): City: State: Zip code/postal code: Country: Date began living at this address: Date stopped living at this address: Is your current address the same as your mailing address: Yes No If you use another address for mailing, provide it below: Mailing address: City: State: Zip code/postal code: Country:

Appendix 8-B-2

No

Tab Position 1

Immigrant Legal Resource Center March 2017

At what address in the U.S. do you plan to live? Name of the person living at this address presently (best if relative or friend): Address: City: State: Zip code/postal code: Telephone number: Do you want your permanent resident card sent to this address? Yes No

Tab Position 1

VAWA Manual March 2017

Name of contact person in the U.S. for you: Address of this person in the U.S.: City: State: Zip code/postal code: Telephone number:

Chapter 8

Family Information: Father: Last names of father: First and middle names of father: Birthdate: City of birth: State of birth: Country of birth: Father living or deceased? If deceased, year of death: Mother: Last names of mother when born (single/”maiden” names): First and middle names of mother: Birthdate: City of birth: State of birth: Country of birth: Mother living or deceased? If deceased, year of death: Your marriages: Date of marriage: Place of marriage – city, state, country: Las names of your spouse: First and middle names of spouse:

Appendix 8-B-3

Birthdate: City of birth: State of birth: Country of birth: Will your spouse immigrate with you? Yes No If no, will your spouse immigrate later? Yes No

Chapter 8

Do you have a former spouse? Yes No If you have a former spouse, provide the following information: Complete name of ex-spouse (1): Birthdate: Marriage date: How marriage was terminated (divorce or death of spouse) Country where marriage was terminated: Date marriage was terminated: Complete name of ex-spouse (2): Birthdate: Marriage date: How marriage was terminated (divorce or death of spouse) Country where marriage was terminated: Date marriage was terminated: Your children: Do you have children? Yes No How many do you have? Complete name of child (1): Date of birth: City of birth: State of birth: Country of birth: Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you? Complete name of child (2): Date of birth:

Appendix 8-B-4

Tab Position 1

Immigrant Legal Resource Center March 2017

City of birth: State of birth: Country of birth: Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you?

Complete name of child (4): Date of birth: City of birth: State of birth: Country of birth: Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you? VISITS TO THE U.S. Information about your prior visits to the U.S. Have you visited the U.S. before: Yes No

Appendix 8-B-5

Chapter 8

Complete name of child (3): Date of birth: City of birth: State of birth: Country of birth: Does the child live with you: Yes No If no, what is the child’s address? City: State: Zip code/postal code: Country: Is this child immigrating to the U.S. with you? If not, is the child immigrating later to join you?

Tab Position 1

VAWA Manual March 2017

If you have been in the U.S., were you provided an immigration registration number? Did the Dept. of Homeland Security issue you a number? Yes No If you have such a number, please provide it (begins with “A”): Provide information about all your visits to the U.S.: Date arrived (1): How many days/months/years did you remain in the U.S.? Date arrived (2): How many days/months/years did you remain in the U.S.? Date arrived (3): How many days/months/years did you remain in the U.S.? Other visits?

Chapter 8

Have you received a visa from the U.S. previously? Yes No Date when you were issued the visa: Type of visa (student/tourist/work, etc. – F-1, B-2, H-1B, H-2A etc.) Visa number (provide a copy of your visa) If your answer is yes to the following questions, please explain below: Has your U.S. visa ever been lost or stolen Yes No Has your U.S. visa ever been cancelled or revoked: Yes No Have you ever been denied a visa to the U.S. or ever been denied entry to the U.S. or had to withdraw your application to enter the U.S. at an airport or other land or sea port of entry/inspection point in the U.S.? Yes no Have you ever decided to withdraw your application to enter the U.S. after arriving at the border or a U.S. airport? Yes No If you said “yes” to any of these questions, please explain below with as much detail as possible: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Work, education and training information: Current job (position or title you hold): Do you have other jobs? If so, list all: What work do you plan on doing in the U.S.?

Appendix 8-B-6

Tab Position 1

Immigrant Legal Resource Center March 2017

Before your present job, did you have a previous job?: Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 1): ________________________________________________________________ Address of your employment: City: State: Zip code/postal code: Country Telephone: Your title or position: Last name of your supervisor: First name of your supervisor: Date you started working at this job: Date you left this job:

Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 3): ________________________________________________________________ Address of your employment: City: State: Zip code/postal code: Country: Telephone: Your title or position: Last name of your supervisor:

Appendix 8-B-7

Chapter 8

Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 2): ________________________________________________________________ Address of your employment: City: State: Zip code/postal code: Country Telephone: Your title or position: Last name of your supervisor: First name of your supervisor: Date you started working at this job: Date you left this job:

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Immigrant Legal Resource Center March 2017

First name of your supervisor: Date you started working at this job: Date you left this job:

Chapter 8

Name of the company or office or business where you work now, or your last employment if you are presently unemployed: (Job 4): ________________________________________________________________ Address of your employment: City: State: Zip code/postal code: Country Telephone: Your title or position: Last name of your supervisor: First name of your supervisor: Date you started working at this job: Date you left this job: EDUCATION: Have you attended secondary school or higher? Yes No Number of secondary or higher schools you have attended: Name of school (1): Address of School: City: State: Zip code/Postal code: Country: Course of study: Degree or diploma: Date began studies at this school: Date ended studies at this school: Name of school (2): Address of School: City: State: Zip code/Postal code: Country: Course of study: Degree or diploma:

Appendix 8-B-8

Date began studies at this school: Date ended studies at this school:

Tab Position 1

VAWA Manual March 2017

Name of school (3): Address of School: City: State: Zip code/Postal code: Country: Course of study: Degree or diploma: Date began studies at this school: Date ended studies at this school:

Information regarding petitioner: Your relationship with the person who filed this visa petition for you (my father, mother, spouse, adult son/daughter, sibling): Complete name of this person: Where does this person live presently? Address: City: State: Country: Telephone: Cell phone: Email: IMPORTANT QUESTIONS REGARDING NATIONAL SECURITY AND DISQUALIFICATIONS (GROUNDS OF “INADMISSIBLITY” TO IMMIGRATE TO THE UNITED STATES: Information related to security and other information about you – respond “yes” or “no” and if the response is “yes” please explain below:

Appendix 8-B-9

Chapter 8

MILITARY SERVICE: Have you served in the military: yes no For what country: Division/department of military: Your position or military rank: Your military specialization: Date your service began: Date your service ended:

• Do you have a communicable disease of public health significance such as tuberculosis (TB) or any other disease? • Have you received the required vaccinations in your country? Yes No Which ones? __________________________________________________________________ • Do you have documentation of your vaccinations? • Do you have a mental or physical disorder that poses or is likely to pose a threat to the safety or welfare of yourself or others? • Have you ever been arrested for DUI or domestic violence or being involved with a gang? • Have you ever been a drug abuser or drug addict?

Chapter 8

• Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar action? •Have you ever violated, or conspired to violate, any law related to drugs or controlled substances? • Are you the spouse, son or daughter of an individual who has violated any controlled substance trafficking law, and have knowingly benefitted from the trafficking activities in the past 5 years? • Are you coming to the United States to engage in prostitution or unlawful commercialized vice or have you been engaged in prostitution or procuring prostitutes within the past 10 years? • Have you ever been involved in or plan to be involved in, money laundering? • Have you ever committed or conspired to commit, a human trafficking offense inside or outside the U.S.? • Have you ever knowingly aided, abetted, assisted or colluded with someone who has been identified by the President of the United States as a person who plays a significant role in the severe form of trafficking in persons? • Are you the spouse, son or daughter of an individual who has committed or conspired to commit, a human trafficking offense inside or outside the U.S., and have you knowingly benefitted from the trafficking activities in the past 5 years?

• Do you seek to engage in espionage, sabotage, export control violations or any other illegal activity while in the U.S.? Appendix 8-B-10

Tab Position 1

Immigrant Legal Resource Center March 2017

• Do you seek to engage in terrorist activities while in the U.S. or have you ever engaged in terrorist activities?

Tab Position 1

VAWA Manual March 2017

• Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist organizations? • Are you a member or representative of a terrorist organization? • Have you ever ordered, incited, committed, assisted or otherwise participated in genocide? • Have you ever ordered, incited, committed, assisted or otherwise participated in torture? • Have you committed, ordered, incited, assisted or otherwise participated in extrajudicial killings, political killings, or other acts of violence? • Have you ever engaged in the recruitment or use of child soldiers?

• Are you a member of or affiliated with the Communist or other totalitarian party? • Have you ever directly or indirectly assisted or supported any of the groups in Columbia known as the Revolutionary Armed Forces of Columbia (FARC), National Liberation Army (ELN), or United Self-defense Forces of Columbia (AUC)? • Have you ever, through abuse of governmental or Political position converted for personal gain, confiscated or expropriated property in a foreign nation to which a United States National had claim of ownership? • Are you the spouse, minor child, or agent of an individual who has through abuse of governmental or Political position converted for personal gain, confiscated or expropriated property in a foreign nation to which a United States National had claim of ownership? • Have you ever been directly involved in the establishment or enforcement of population controls forcing a woman to undergo an abortion against her free choice or a man or a woman to undergo sterilization against his or her free choice?

Appendix 8-B-11

Chapter 8

• have you, while serving as a government official, been responsible for or directly carried out at any time, particularly severe violations of religious freedom?

• Have you ever disclosed or trafficked in confidential U.S. business information obtained in connection with U.S. participation in the Chemical Weapons Convention? • Are you the spouse, minor child, or agent of an individual who has disclosed or trafficked in confidential U.S. business information obtained in connection with U.S. participation in the Chemical Weapons Convention? • Have you ever sought to obtain yourself, or to assist others to obtain a visa, entry into the U.S., or any other U.S. benefit by fraud, or willful misrepresentation or other unlawful means? (Did you lie to obtain a visa or entry into the U.S. or lie to obtain any other Immigration benefit or status or help someone else to do so?) • Have you ever been subject to removal or exclusion or deportation proceedings in the U.S.?

Chapter 8

• Have you failed to appear at a removal or deportation hearing in the last 5 years? • Have you ever overstayed the time allocated to you by an Immigration officer or violated the terms of your visa in any other manner? • Are you subject to a civil penalty pursuant to INA 274C? • Have you been ordered deported from the U.S. in the last 5 years? • Have you been ordered deported from the U.S. in the last 10 years? • Have you been ordered deported from the U.S. a second time in the last 20 years? • Have you ever been convicted of an aggravated felony and ordered deported from the U.S.? • Have you ever been unlawfully present in the U.S. for more than 180 days (but less than one Year) and have you voluntarily left the U.S. in the last 3 years? • Have you been unlawfully present in the U.S. for more than one year, or more than one year in the aggregate at any time during the last ten years? • Have you ever withheld custody of a U.S. Citizen child outside the U.S. from a person granted legal custody by a U.S. Court?

Appendix 8-B-12

Tab Position 1

Immigrant Legal Resource Center March 2017

• Have you every intentionally assisted another person in withholding custody of a U.S. Citizen child outside the U.S. from a person granted legal custody by a U.S. Court?

Tab Position 1

VAWA Manual March 2017

• have you voted in the U.S. in violation of any law or regulation? • Have you ever renounced U.S. citizenship for the purpose of avoiding taxation? • Have you attended a public elementary School or a public secondary School on student (F) status after November 20, 1996 without reimbursing the school? • Do you seek to enter the U.S. for the purpose of performing skilled or unskilled labor but have not yet received a labor certificate from the Dept. of Labor? • ¿Are you a graduate of a foreign medical School seeking to perform medical services in the U.S. but have not yet passed the National Board of Medical Examiners examination or its equivalent?

• Are you permanently ineligible for U.S. citizenship? • Have you ever departed the U.S. in order to evade military service during a time of war? • Are you coming to the U.S. to practice polygamy? • Are you a former Exchange visitor (J) who has not yet fulfilled the two0-year foreign residence requirement? • Has the Secretary of Homeland Security of the United States ever determined that you knowingly made a frivolous application for Asylum? • Are you likely to become a public charge after you are admitted to the United States? If your answer is yes to one of the previous questions, explain below: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________

Appendix 8-B-13

Chapter 8

• Are you a health care worker seeking to perform such work in the U.S. but have not yet received certification from the Commission on Graduates of Foreign Nursing Schools or from an equivalent approved independent credentialing organization?

Social Security Number Information: Have you applied for a social security number from the U.S. in the past? Do you want the Social Security Administration to issue you a Social Security number and a card?

Chapter 8

Do you authorize disclosure of information from this form to the Department of Homeland Security, the Social Security Administration, and such other U.S. Government agencies as may be required for the purposes of assigning you a social security number (SSN) and issuing you a Social Security card and do you authorize the Social Security Administration to share your SSN with the Department of Homeland Security?

Appendix 8-B-14

Tab Position 1

Immigrant Legal Resource Center March 2017

APPENDIX 8-C Documento de trabajo: Información para su aplicación de visa de inmigrante (DS-260) DOS

Tab Position 1

VAWA Manual March 2017

Información Personal y Biográfica: Nombres y apellidos completos: Otros nombres y/o apellidos usados; Sexo: Teléfono corriente: Teléfono de su trabajo: (si lo tiene) Celular: (si lo tiene) Correo electrónico (si lo tiene):

Identificación como pasaporte: Numero de pasaporte: País del pasaporte: Fecha cuando le dio el pasaporte Fecha cuando se vence el pasaporte Tiene otra nacionalidad aparte de: Si o No Su otro país de nacionalidad: ¿Tiene pasaporte de su otro país? Si o No Numero de pasaporte: Direcciones: Su dirección corriente: Ciudad: Estado: Código postal: _ País: ¿Empezando en esta dirección en qué fecha? Appendix 8-C-1

Chapter 8

Estado civil (casada, divorciada, soltera): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: Nacionalidad:

¿Ha vivido en cualquier otra dirección desde que cumple 16 años? Si o No Dirección anterior (1): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha:

Chapter 8

Dirección anterior (2): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha: Dirección anterior (3): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha: Dirección anterior (4): Ciudad: Estado: Código Postal: _ País: Empezando viviendo allí en cual fecha: Vivía allí hasta cual fecha: ¿Es su dirección para correos lo mismo de su dirección actual? Si o no Si tiene otra dirección para correo, delo abajo: Dirección por correos: Ciudad: Estado: Código Postal: _ País:

Appendix 8-C-2

Tab Position 1

Immigrant Legal Resource Center March 2017

¿En que dirección en los EEUU donde tiene planes vivir? Nombre de la persona viviendo ahorita en esta dirección (debe ser su pariente o amigo): Dirección: Ciudad: Estado: Código Postal: Teléfono: ¿Quiere que le enviaran su tarjeta de Residencia Permanente a esta dirección?

Tab Position 1

VAWA Manual March 2017

Nombre de persona en los EEUU como contacto personal: Dirección de este persona en los EEUU: Ciudad: Estado: Código Postal: _ Teléfono:

Chapter 8

Información de su familia: De su papa: Apellidos de su papa: Nombres de su papa: Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Ya vive su papa? Si no, año en que falleció: De su mama: Apellidos de mama cuando nació (de soltera): Nombres de su mama: Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Ya vive su mama? Si no, año en que falleció: Sus matrimonios: Fecha de matrimonio de Ud.: Lugar de matrimonio de Ud. – Ciudad, estado, país: Apellidos de su esposo/a: Nombres de su esposo/a:

Appendix 8-C-3

Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Su esposo/a va a inmigrar con Ud.? Si o No ¿Si no, va a inmigrar más luego? Si o No

Chapter 8

¿Tiene esposo/a anterior? Si o no Si lo tuvo, de la información siguiente: Nombre de esposo/a anterior (1): Fecha de nacimiento: Fecha de matrimonio: Como termino el matrimonio (divorcio o se murió esposo/a) País donde se terminó el matrimonio Fecha cuando termino el matrimonio Esposo/a anterior (2): Fecha de nacimiento: Fecha de matrimonio: Como termino el matrimonio (divorcio o se murió esposo/a) País donde se terminó el matrimonio Fecha cuando termino el matrimonio Sus niños: ¿Tiene Ud. Niños? ¿Cuantos niños tiene?: Nombre de niño (1): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.? Si no, ¿dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.? Nombre de niño/a (2): Fecha de nacimiento:

Appendix 8-C-4

Tab Position 1

Immigrant Legal Resource Center March 2017

Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.? ¿Si no, dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.?

Nombre de niño/a (4): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.? ¿Si no, dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? Si no ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.? si no VIAJES A LOS EEUU: Información de sus visitas anteriores a los EEUU: ¿Ha estado Ud. en los EEUU anteriormente? si no Appendix 8-C-5

Chapter 8

Nombre de niño/a (3): Fecha de nacimiento: Ciudad de nacimiento: Estado de nacimiento: País de nacimiento: ¿Vive el niño/la niña con Ud.? ¿Si no, dirección del niño/niña? Ciudad: Estado: Código postal: País: ¿Está inmigrando a los EEUU este niño con Ud.? ¿Está inmigrando a los EEUU este niño más luego para juntarse con Ud.?

Tab Position 1

VAWA Manual March 2017

¿Si ha estado en los EEUU, le dio un numero de registración la migra? ¿O sea el Departamento de Seguridad del País le dio número? si no Si le dio número, dílo: (empieza con “A”): Provee información de todas sus visitas a los EEUU: Fecha llego (1): Cuantos años/meses/días se quedó en los EEUU? Fecha llego (2): Cuantos años/meses/días se quedó en los EEUU? Fecha llego (3): Cuantos años/meses/días se quedó en los EEUU? ¿Otras visitas?

Chapter 8

¿Ha recibido una visa a los EEUU anteriormente? Fecha cuando le dio la visa: _ Clase de Visa: Numero de visa: (deme una copia) Si la respuesta es sí al siguiente, favor de explicar abajo: ¿Ha estado robada o perdida cualquier visa a los EEUU? si no ¿Ha estado cancelada o revocada cualquier visa a los EEUU? si no ¿Le negaron a Ud. una visa a los EEUU o una entrada o tuvo que retirar su aplicación de entrada a los EEUU en el aeropuerto u otro punto de inspección? si no ¿Alguna vez le negaron entrar a los EEUU cuando llego Ud. en la frontera o aeropuerto? si no ¿Alguna vez decidió Ud. quitar su aplicación entrar a los EEUU después de llegar en la frontera o aeropuerto? si no Si dijo si a cualquier se estas preguntas, favor de explicar que paso con detalles: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Información de trabajo, educación y entrenamiento: Trabajo corriente (posición o titilo de Ud.): ¿Tiene otros trabajos?: (Lista todos) ¿Trabajo tiene planes hacer en los EEUU?: ¿Antes de su trabajo corriente, tuvo otro trabajo?

Appendix 8-C-6

Tab Position 1

Immigrant Legal Resource Center March 2017

Nombre de patrón/compañía donde trabaja ahora, o su último empleo si está desempleado ahora (Empleo) (1): ________________________________________________________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a: Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha:

Nombre de patrón/compañía donde trabajo anteriormente (empleo (3)): _______________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a: Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha:

Appendix 8-C-7

Chapter 8

Nombre de patrón/compañía donde trabajo anteriormente (empleo (2)): _______________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a: Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha:

Tab Position 1

VAWA Manual March 2017

Nombre de patrón/compañía donde trabajo anteriormente (empleo (4)): _______________________ Dirección de su trabajo: Ciudad: Estado: Código postal: País: Teléfono: Titulo o posición de Ud.: Apellidos de su Supervisor/a: Nombres de su Supervisor/a: Trabajo allí empezando en qué fecha: Trabajo allí hasta que fecha:

Chapter 8

ESTUDIOS: ¿Ha asistido a cualquier escuela al nivel secundaria o más arriba? Número de escuelas secundaria o más arriba asistió Ud.: Nombre de la escuela (1): Dirección de la escuela: Ciudad: Estado: Código Postal: País: Curso de estudio: Degrado o Diploma: Asistió empezando en la fecha: Hasta tal fecha: Nombre de la escuela segunda (2): Dirección de la escuela: Ciudad: Estado: Código Postal: País: Curso de estudio: Degrado o Diploma: Asistió empezando en la fecha: Hasta tal fecha:

Appendix 8-C-8

Tab Position 1

Immigrant Legal Resource Center March 2017

Nombre de la escuela (3): Dirección de la escuela: Ciudad: Estado: Código Postal: País: Curso de estudio: Degrado o Diploma: Asistió empezando en la fecha: Hasta tal fecha:

Tab Position 1

VAWA Manual March 2017

SERVICIO MILITAR: ¿Hizo servicio en el militar? ¿Para qué país? División/departamento del militar: Su position o rango militar: Especialidad militar: Su servicio empezó en cual fecha: Hasta la fecha que termino:

PREGUNTAS IMPORTANTES DE SEGURIDAD Y DISCALIFICACIONES DE INMIGRAR: Información de seguridad y otra información de Ud. – responde “si” o “no” – si la respuesta es “si” favor de explicar su respuesta abajo: • ¿Tiene enfermedad contagiosa como TB u otra enfermedad? si no • ¿Recibió vacunas ya en su país? si no ¿cuales?_____________________________________ Appendix 8-C-9

Chapter 8

La Persona que Entrego su Petición: Mi relación a la persona que me hizo esta petición de visa: (es mi papa, mama, esposo/a, niño adulto, hermano/a): Apellidos y nombres completos de este persona: Donde viva esta persona ahora: Dirección: Ciudad: Estado: País: Teléfono: Celular: Correo electrónico:

• ¿Tiene documento comprobando sus vacunas? si no • ¿Tiene un trastorno mental o físico que puede ser una amenaza a la seguridad de Ud. sí mismo o a otros? si no • ¿Ha estado detenido por la policia por DUI o violencia domestica o por un asunto relacionado a pandillas? si no • ¿Esta Ud. ahora abusando drogas o tiene adicción a drogas o ha abusado drogas en el pasado? si no • ¿Ha estado Ud. arrestado o convicto de cualquier delito o felonía u ofensa en el pasado, incluyendo si después recibió perdón, amnistía u otra acción similar? si no

Chapter 8

• ¿Alguna vez ha violado, o participando en una conspiración para violar, cualquier ley relacionada con sustancias controladas (drogas)? si no • ¿Está Ud. el cónyuge, hijo o hija de un individuo que ha violado las leyes del tráfico de sustancias controladas (drogas), y han beneficiado a sabiendas de las actividades de tráfico en los últimos cinco años? si no • ¿Va a venir Ud. a los Estados Unidos a participar en la prostitución o ilegal comercializado vicio o ha estado involucrado en la prostitución o prostitutas contratante dentro de los últimos 10 años? si no • ¿Alguna vez ha estado Ud. involucrado en, o qué buscan participar en, el lavado de dinero? si no • ¿Alguna vez ha cometido Ud. o conspirado cometer un delito de trata de personas en los Estados Unidos o fuera de los Estados Unidos? si no • ¿Alguna vez ha ayudado, asistido o conspirado con un individuo que ha sido identificado por el Presidente de los Estados Unidos como una persona que desempeña un papel importante en una forma grave de trata de personas? si no •¿Eres el cónyuge, hijo o hija de un individuo que ha cometido o conspirado para cometer un delito de trata de personas en los Estados Unidos o fuera de los Estados Unidos y que tiene dentro de los últimos cinco años, se benefició con conocimiento de las actividades de tráfico? si no

• ¿Se busca realizar espionaje, sabotaje, violaciones de control de exportación, o cualquier otra actividad ilegal, mientras que en los Estados Unidos? si no

Appendix 8-C-10

Tab Position 1

Immigrant Legal Resource Center March 2017

• ¿Busca usted a participar en actividades terroristas, mientras estará en los Estados Unidos o ha participado en actividades terroristas? si no

Tab Position 1

VAWA Manual March 2017

• ¿Tiene la intención de proporcionar asistencia financiera o de otro tipo de apoyo a terroristas u organizaciones terroristas, o ya ha hecho asunto así? si no • ¿Es usted un miembro o representante de una organización terrorista? si no • ¿Alguna vez ordenado, incitado, cometido, ayudado o participado Ud. de otro modo en el genocidio? si no • ¿Alguna vez ha cometido, ordenado, incitado, ayudado o participado Ud. de otro modo en la tortura? si no • ¿Ha cometido, ordenado, incitado, ayudado o participado Ud. de otro modo en las ejecuciones extrajudiciales, homicidios políticos, u otros actos de violencia? si no • ¿Alguna vez ha participado Ud. en el reclutamiento de o el uso de niños soldados? si no

• ¿Es usted miembro o afiliado a la partida comunista u otro partido totalitario?

si no

• ¿Alguna vez ha ayudado o apoyado cualquiera de los grupos en Columbia conocidos como las Fuerzas Armadas Revolucionarias de Colombia (FARC), Ejército de Liberación Nacional (ELN), o Fuerzas de Autodefensas Unidas de Colombia (AUC), directa o indirectamente? si no • ¿Alguna vez, a través de abuso de posición gubernamental o política convertida, para obtener beneficios personales, confiscados o bienes expropiados propiedad en un país extranjero al que un ciudadano estadounidense tenía reclamo de propiedad? si no • ¿Está Ud. el cónyuge, hijo menor de edad, o agente de un individuo quien por abuso de posición gubernamental o política convertida para obtener beneficios personales, confiscados o bienes expropiados en un país extranjero, al que un ciudadano estadounidense tenía una reclamación de propiedad? si no • ¿Alguna vez ha estado Ud. involucrado directamente en el establecimiento o la ejecución de los controles de población obligar a una mujer a someterse a un aborto en

Appendix 8-C-11

Chapter 8

• ¿Mientras que actúa Ud. como un funcionario del gobierno, ha estado responsable Ud. o directamente llevado a cabo, en cualquier momento, violaciones graves de la libertad religiosa? si no

contra de su libre elección o un hombre o una mujer a someterse a la esterilización en contra de su libre elección? si no • ¿Alguna vez ha revelado Ud. o traficado con la información comercial confidencial EE.UU. obtenido en relación con la participación EE.UU. en la Convención sobre las armas químicas? si no • ¿Está Ud. el cónyuge, hijo menor de edad, o agente de un individuo que ha revelado o traficado con la información comercial confidencial EE.UU. obtenido en relación con la participación EE.UU. en la Convención sobre las armas químicas? si no • ¿Alguna vez ha tratado Ud. de obtener o ha ayudado a otros a obtener una visa, la entrada en los Estados Unidos, o cualquier otro beneficio de inmigración de Estados Unidos por fraude o falsificación intencional u otros medios ilegales? si no

Chapter 8

•¿Alguna vez ha sido objeto de una audiencia de expulsión o deportación? si no • ¿Faltό una audiencia sobre si Ud. era deportable o inadmisible en los ultimos cinco años? si no • ¿Alguna vez ha estado Ud. ilegalmente, sobrepasado la cantidad de tiempo otorgado por un funcionario de inmigración o de otra manera violado los términos de una visa de EE.UU.? si no • ¿Está sujeto a una pena civil bajo INA 274C? si no • ¿Se le ha ordenado deportado de los EE.UU. durante los últimos cinco años? si no • ¿Se le ha ordenado deportado de los EE.UU. durante los últimos diez años? si no • ¿Se le ha ordenado deportado los EE.UU. por segunda vez en los últimos 20 años? si no • ¿Alguna vez ha sido condenado por un delito grave y se ha ordenado deportado de los EE.UU.? si no • ¿Alguna vez ha estado ilegalmente en los EE.UU. por más de 180 días (pero no más de un año) y se han salido voluntariamente los EE.UU. en los últimos tres años? si no • ¿Alguna vez ha estado ilegalmente en los EE.UU. durante más de un año o más de un año en el agregado en cualquier momento durante los últimos 10 años? si no

Appendix 8-C-12

Tab Position 1

Immigrant Legal Resource Center March 2017

• ¿Alguna vez ha quitado la custodia de un niño ciudadano de EE.UU. fuera de los Estados Unidos de una persona que haya obtenido la custodia legal de un tribunal de EE.UU.? si no

Tab Position 1

VAWA Manual March 2017

• ¿Alguna vez ha ayudado de forma intencionada a otra persona en la retención de custodia de un niño ciudadano de EE.UU. fuera de los Estados Unidos de una persona que haya obtenido la custodia legal de un tribunal de EE.UU.? si no • ¿Ha votado en los Estados Unidos en violación de cualquier ley o regulación? si no • ¿Alguna vez ha renunciado a la ciudadanía estadounidense para el fin de eludir impuestos? si no • ¿Ha asistido a una escuela primaria pública o una escuela secundaria pública en el estado de estudiante (F) después del 30 de noviembre de 1996 sin reembolsar a la escuela? si no

• ¿Es usted un graduado de una escuela de medicina extranjeros que buscan llevar a cabo los servicios médicos en los Estados Unidos, pero aún no han pasado el examen de la Junta Nacional de Examinadores Médicos o su equivalente? si no • ¿Es usted un trabajador de la salud que buscan para efectuar dicho trabajo en los Estados Unidos, pero todavía no ha recibido la certificación de la Comisión de Graduados de Escuelas Extranjeras de Enfermería o de un equivalente aprobado organización de acreditación independiente? si no • ¿Está permanentemente inelegible para la ciudadanía EE.UU.? si no • ¿Alguna vez salir de Estados Unidos con el fin de evadir el servicio militar durante un tiempo de guerra? si no • ¿Viene a los EE.UU. para practicar la poligamia?

si no

• ¿Es usted un antiguo visitante de intercambio (J) que todavía no ha cumplido el requisito de residencia en el extranjero de dos años? si no

Appendix 8-C-13

Chapter 8

• ¿Qué buscan entrar a los Estados Unidos con el propósito de llevar a cabo la mano de obra calificada o no, pero aún no han sido certificados por el Secretario del Trabajo? si no

• ¿Ha determinado el Secretario de Seguridad Nacional de los Estados Unidos que a sabiendas presentó Ud. una solicitud de asilo frívola? si no • ¿Es probable que convertirse en una carga pública después de ser admitido en los Estados Unidos? si no

Chapter 8

Si su respuesta es sí a cualquiera de las preguntas anteriores, explique a continuación: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ Información Número de Seguro Social ¿Ha solicitado Ud. un número de Seguridad Social de los EEUU en el pasado? Si No ¿Quieres que la Administración de la Seguridad Social para emitir un número de Seguro Social y una tarjeta? Si No ¿Autoriza a la divulgación de información de este formulario al Departamento de Seguridad Nacional, la Administración de Seguridad Social, y los demás organismos del gobierno de Estados Unidos que puedan ser necesarios para los fines de que la asignación de un número de Seguro Social (SSN) y la emisión de su Seguridad Social tarjeta y es lo que autoriza a la Administración de Seguridad Social para compartir su SSN con el Departamento de Seguridad Nacional? Si No

Appendix 8-C-14

Tab Position 1

Immigrant Legal Resource Center March 2017

CHAPTER 9 CONDITIONAL PERMANENT RESIDENCE AND ABUSED IMMIGRANTS

Tab Position 1

VAWA Manual March 2017

This chapter includes: § 9.1 § 9.2 § 9.3 § 9.4 § 9.5 § 9.6 § 9.7 § 9.8 § 9.9 § 9.10 § 9.11 § 9.12

Introduction ........................................................................................................ 9-1 What Is Conditional Resident Status? ................................................................ 9-2 Termination of Conditional Status by USCIS during the Two-Year Conditional Period.............................................................................................. 9-6 Removing Conditional Status through a Joint Petition ...................................... 9-7 Grounds and Procedure for Removing Conditional Status through a Waiver .............................................................................................. 9-11 Petitions and Waivers Filed for Children ......................................................... 9-21 USCIS Interview .............................................................................................. 9-22 Approval of the I-751 Petition.......................................................................... 9-24 Denial and Review in Removal Proceedings ................................................... 9-24 Filing a VAWA Self-Petition in Lieu of Proceeding with an Application for a Waiver of the Joint Petition Requirement ................................................ 9-25 USCIS Notice Requirements ............................................................................ 9-25 Conclusion ........................................................................................................ 9-25

§ 9.1

Introduction

In Chapter 4, we discussed the process for self-petitioning under VAWA. This process was included in the immigration laws to give abused spouses and children a means of obtaining permanent residence on their own, without having to rely on the abuser to petition for them and without having to remain in an abusive relationship while awaiting their immigrant visas.

Example: Elvia, a citizen of Egypt, marries Ron, a U.S. citizen, in 2012. Ron files an I130 Petition for Alien Relative on Elvia’s behalf, and the USCIS approves Ron’s petition, as well as Elvia’s application for adjustment of status in 2013. Because the marriage is less than two years old when Elvia obtains her permanent residence, she obtains 1 2

INA § 216. INA §§ 216(c) and (d). 9-1

Chapter 9

We must also consider another situation that can impact abused spouses. This is the two-year conditional status granted to persons who obtain immigrant status based on a marriage that is less than two years old when they obtain permanent residence. 1 The general rule is that both spouses must file a joint petition to remove the condition within two years after the foreign spouse obtains conditional residence. 2 This requirement of a joint petition to remove the condition gives rise to problems where domestic abuse exists. This is because the requirement can cause an abused spouse to remain in the abusive situation, rather than leave and risk the abuser’s refusal to sign the joint petition.

conditional permanent residence, rather than full permanent residence. After the marriage, Ron becomes abusive to Elvia, but she continues to live with him and does not report the abuse, because he threatens that, if she leaves or goes to the police, he will not join in the joint petition to remove the condition and she will be deported. To prevent this sort of situation, the immigration laws provide special waivers of the joint petition requirement. In this chapter, we will discuss conditional residence and the waivers of the joint petition requirement as they apply to abused spouses. § 9.2

What Is Conditional Resident Status?

Certain people who immigrate through a visa petition filed by their spouse within two years of the date that they marry are conditional residents. Conditional residence is a status that was created by the Immigration Marriage Fraud Amendment Act (IMFA) passed by Congress in 1986, in response to the former INS’ claims that large numbers of people were becoming permanent residents by committing marriage fraud. It is a two-year “testing period” before a person who immigrates through a spouse can become a full-fledged lawful permanent resident (LPR). 3 The two-year period of conditional residence begins on the date that conditional residence is granted. Therefore, people are conditional residents if they either (1) enter the United States with an immigrant visa after consular processing within two years of marrying the person who filed the I130 for them or (2) have an adjustment of status application finally approved in the United States within two years of marrying the person who filed the I-130 for them. 4 Conditional status is also imposed on the conditional resident spouse’s sons and daughters if they obtained immigrant visas based on the parent’s marriage to a U.S. citizen or permanent resident. 5

Chapter 9

During the two-year conditional residence period, these individuals have the same rights, privileges, and responsibilities as other permanent residents. 6 They can work and travel in and out of the United States; they can petition relatives such as adult sons and daughters; and they can count the time they spend as conditional residents toward the residence requirements for U.S. citizenship. 7 A conditional resident will be issued a permanent resident card (Form I-551) that appears similar to the “green cards” issued to other permanent residents. However, the cards differ in two important respects. First, to indicate the bearer’s conditional resident status, the classification code on the front, or photo side, of the conditional resident’s card is marked “CR” rather than “IR.” Alternatively, it could be marked “C21” (or “C22” for a child) in the unlikely event that the recipient entered under the second preference family visa category through a lawful permanent resident spouse. Second, a conditional resident’s card has an expiration date of two years from the date of issuance. But, unlike full lawful permanent residents whose residence is indefinite unless and until rescinded, regardless of when their card expires, conditional residence itself actually expires on the date the card expires if the conditional resident takes no further action. Since INA § 216(a)(l). INA § 216(h)(1). 5 INA § 216(h)(1). 6 8 CFR § 216.1. 7 8 CFR § 216.1. 3 4

9-2

Tab Position 1

Immigrant Legal Resource Center March 2017

conditional permanent resident status is valid for only a two-year period as reflected on the green card, the conditional resident must, therefore, apply to have this condition on her status lifted. Generally, a conditional resident who is still married to his or her petitioning spouse must submit a joint petition on Form I-751 (signed by both spouses) within the 90-day window prior to the end of the two-year period, to have USCIS remove the conditional basis of the residence. If he or she does not submit this petition or USCIS doesn’t receive it before the card expires, the conditional resident’s status will be automatically terminated and he or she risks being placed in removal proceedings. Alternatively, there is a waiver of the joint filing requirements for conditional residents who are unable to file a joint petition due to divorce, annulment, battery or extreme cruelty at the hands of the spouse, or for those who otherwise cannot file jointly but who would suffer extreme hardship if their petition to lift the conditions on their status were denied. 8

Tab Position 1

VAWA Manual March 2017

Example: In Elvia’s case, Elvia need not remain with her abusive husband. Instead, she can apply for a waiver of the joint petition requirement without his assistance based upon the abuse he has inflicted on her. If the waiver is granted, the conditions on Elvia’s status will be removed, and she will have full permanent resident status. The requirements for the joint petition and the waivers are discussed in §§ 9.4 and 9.5 below. If the USCIS grants this petition or a waiver and removes the conditional status, the conditional resident spouse is accorded full lawful permanent resident (LPR) status. 9 Furthermore, as explained in more detail below in § 9.3, under certain circumstances the USCIS may terminate conditional residency during the two-year period. For example, USCIS can terminate the conditional status if it discovers that the marriage was dissolved or annulled or if it determines that the marriage was entered into fraudulently. 10 If the USCIS terminates the conditional status during the two-year period or if USCIS denies the couple’s joint petition to remove the condition or the conditional resident’s application for a waiver, the conditional resident loses lawful immigration status and becomes subject to removal. 11 Who Is Subject to Conditional Residence?

As explained in § 9.2 above, the conditional residence provision affects only noncitizens who are admitted as immigrants on or after November 10, 1986, pursuant to a visa petition based on

INA § 216(c)(4). INA § 216(c)(3)(B). 10 INA § 216(b)(1). 11 Id. 12 8 CFR § 216.1. 8 9

9-3

Chapter 9

Not all noncitizen spouses are subject to conditional residence. Most importantly for advocates assisting survivors of domestic abuse, approved VAWA self-petitioners are not subject to conditional permanent residence. 12 If they receive permanent residency or LPR status based on an approved VAWA self-petition, it will not be conditional permanent residency. Therefore, the I751 waiver for battery or extreme cruelty is intended only for immigrant spouses who obtained their LPR status through a regular I-130 petition filed by their U.S. citizen or LPR spouse and who suffered battery or extreme cruelty during the two years of conditional residence.

marriage, and whose marriage occurred less than two years before they either were admitted to the United States after consular processing or adjusted status in the United States. 13 In addition, the law applies only to noncitizen spouses who are the direct beneficiaries of an immigrant petition. 14 In other words, it affects beneficiaries of immediate relative petitions that are based on marriage to a USC and, in some limited cases, of second preference petitions that are based on marriage to an LPR. It does not affect persons who enter the United States through derivative means, such as noncitizens who are accompanying or following to join a family member who has been granted an employment-based immigrant visa. Similarly, it does not apply to the noncitizen spouse of a third preference immigrant (a person immigrating as a married son or daughter of a USC), nor to the noncitizen spouse of a fourth preference immigrant (a person immigrating as a brother or sister of a USC). Example: Sami, from Lebanon, marries Ahmed, also from Lebanon. Ahmed’s father is a USC who files an I-130 Petition for Alien Relative on Ahmed’s behalf. This petition would thus fall under the third preference category for married sons and daughters of USCs (category F3 on the State Department’s Visa Bulletin). When Ahmed’s priority date is current, he obtains permanent residence. Sami also obtains permanent residence as a derivative beneficiary under Ahmed’s father’s petition. Sami obtains full permanent residence, not conditional residence even if she has been married to Ahmed for less than two years. While she is immigrating based upon her marriage to Ahmed, she is not the direct beneficiary of a visa petition based upon a marriage and therefore not subject to the conditional residence requirement.

Chapter 9

As a practical matter, only spouses of USCs and their children are subject to conditional permanent residence. This is because of the long delays for immigrant visas under the preference categories. For example, as of April 2017, the second preference visa 2A category (spouses and children of LPRs) was backlogged approximately 22 months. This means that spouses of LPRs will most likely have been married more than two years by the time they are eligible for an immigrant visa, especially if the backlog continues to increase in the future. These spouses and their children would thus enter as full permanent residents rather than as conditional permanent residents. Because visas issued by U.S. consulates are valid for six months, it might be possible for a person who has been granted an immediate relative or second preference immigrant visa within two years of the marriage date to time his or her admission to the United States so that the admission occurs at least two years after the marriage date. Remember that the person is subject to conditional residence only if he or she is admitted to the United States after consular processing within two years of the marriage. Therefore, if the second anniversary of the marriage happens after the issuance of an immigrant visa but prior to the noncitizen’s application for admission to the United States, this person should not be subject to conditional residence. The regulations specify that when a person is not subject to conditional residence but the visa classification on the person’s immigrant visa so indicates, the visa shall be corrected and the noncitizen shall be admitted to the United States as a lawful permanent resident without conditions. 15 The individual INA § 216(h)(1). INA § 216(h)(1). 15 8 CFR § 235.11(b). 13 14

9-4

Tab Position 1

Immigrant Legal Resource Center March 2017

should inform the CBP inspector at the border or port of entry that he or she is seeking admission as a permanent resident without conditions, because the marriage occurred more than two years earlier.

Tab Position 1

VAWA Manual March 2017

Example: Maria, from Italy, marries Vladimir, a USC, in April 2016. She obtains an immigrant visa at a U.S. consulate in December 2017, and the consulate notes that she is subject to conditional permanent residence. Maria has six months to enter the U.S. with her immigrant visa and does not come to the United States on her immigrant visa until May 2018. Her marriage is more than two years old at the time she obtains permanent residence, and she should be admitted to the United States as a full permanent resident. Similarly, noncitizens who marry U.S. citizens but who have delayed filing their immediate relative petitions may be well advised to further postpone actually receiving their visas until after the two years have passed. Alternatively, if the beneficiary will adjust status in the United States and USCIS schedules the adjustment interview within two years of the marriage, the beneficiary may request that it be rescheduled. The decision to grant such a request is within USCIS’ discretion and depends on the reasons supplied. If the only reason for rescheduling the interview is to avoid the conditional residence requirements, USCIS is likely to deny the request. Children Affected The law also affects noncitizen children who immigrate to the United States within two years of the parent’s marriage. Like their immigrating parent, these children are admitted to the United States as conditional residents and will need to petition at the end of two years for removal of the condition. 16

If the noncitizen parent is married to an LPR, the noncitizen’s children may immigrate as derivatives, either at the same time as the parent or later. 18 Because of the current delay in priority dates, most spouses of LPRs will likely not receive immigrant status until the marriage is more than two years old. Thus, as a practical matter, children immigrating through the marriage a INA §§ 216(a)(1); (h)(2). INA § 101(b)(1)(B). 18 INA § 204(d). 16 17

9-5

Chapter 9

Whether the children enter as conditional residents depends on how and when they immigrate. If the noncitizen parent immigrates based on marriage to a U.S. citizen, the noncitizen’s children cannot enter with derivative status as “accompanying or following to join” the parent, because the immigration laws do not provide for derivative beneficiaries of immediate relatives. Thus, the noncitizen’s children may immigrate in one of three possible ways. First, the citizen can adopt the children if they are under 16 and have resided with the adopting parent for at least two years. In this case, the child would enter with no conditions, since the child would immigrate based on a direct relationship with the adoptive parent. Second, the citizen can file a stepparent petition on behalf of his or her stepchildren, if the marriage occurred before the children turned 18. 17 In this case, if the child immigrates before the marriage is two years old, the child would be subject to conditional permanent residence. As a third alternative, after the noncitizen parent becomes a conditional resident, he or she can file second preference visa petitions on behalf of his or her sons and daughters. In this case, the child also enters with no conditions, since the child is entering based on his or her direct relationship to a lawful permanent resident parent.

parent to an LPR will usually enter as full permanent residents, rather than as conditional residents. Some dependent children who acquire immigrant status through their parents’ marriages are not subject to the conditional residence requirements because the parent is not an “alien spouse” as defined in the statute. 19 For example, if the noncitizen parent marries a USC but acquires LPR status by a means other than the marriage (e.g., he or she immigrates on an employment-based visa), the parent does not fall within the category of “alien spouse” and is therefore not subject to conditional residency. The U.S. citizen spouse in such a marriage could file a stepparent petition for the noncitizen spouse’s children. Even though the children would gain immigrant status based on the parent’s marriage to a citizen that took place within two years of the immigrant parent’s entry to the United States, the children would not be considered “alien sons or daughters” because the parent does not meet the definition of an “alien spouse.” Sons and daughters who immigrate as conditional residents must follow requirements similar to those their noncitizen parents must follow to remove the conditional status after the two-year period. 20 If the noncitizen parent’s status is terminated during these two years based on divorce, annulment, or a determination by the USCIS that the marriage is fraudulent, the conditional resident status of the children will also terminate.

Chapter 9

§ 9.3

Termination of Conditional Status by USCIS during the Two-Year Conditional Period

The USCIS may terminate an individual’s conditional status at any time during the two-year conditional period if it determines that (1) the person entered the qualifying marriage to procure an immigrant visa; (2) the qualifying marriage has been judicially annulled, dissolved, or terminated, other than through the death of a spouse; or (3) a fee or other consideration was given for filing the immigrant visa petition, other than fees to an attorney for preparing the petition. 21 Before making such a finding, USCIS must send a formal written notice to the conditional resident notifying him or her of the agency’s intention to terminate the status. 22 Before actually terminating conditional status, the USCIS must give a conditional resident a chance to review and rebut the reasons for which status is being terminated. 23 During this time, the conditional resident status continues, with all the rights, privileges, and responsibilities that come with it. 24 If USCIS terminates the conditional status based on damaging information that the noncitizen cannot reasonably be expected to know, then USCIS must provide him or her an opportunity to review and rebut the evidence on which it is relying. 25 Note that termination of the condition by USCIS differs from a conditional resident’s simple failure to file a joint application or a waiver before the end of the waiting period. When nothing is filed, conditional residency terminates automatically. Furthermore, USCIS is not required to send INA § 216(h)(1). 8 CFR § 216.4(a)(2). 21 INA § 216(b)(1). 22 8 CFR § 216.3(a). 23 Id. 24 Id. 25 Id. 19 20

9-6

Tab Position 1

Immigrant Legal Resource Center March 2017

the person notice prior to terminating conditional residence if the basis for the termination is a failure to file a timely petition (I-751). 26 When USCIS issues the notice of termination, the noncitizen immediately loses all rights and privileges that accompany LPR status, such as permission to reside and work in the United States. In most cases, USCIS will refer the case to ICE with a Notice to Appear (NTA), which initiates removal proceedings, close to the same time it issues the termination notice, 27 because termination of conditional permanent residence is a ground for deportation. 28 No special procedure exists for administratively appealing a decision to terminate conditional resident status, but the noncitizen may ask an immigration judge to review the decision in a removal hearing. 29

Tab Position 1

VAWA Manual March 2017

At the removal hearing, ICE has the burden of proving by a preponderance of the evidence that the immigrant respondent is not entitled to conditional resident status. 30 This is a lower burden of proof than in other removal proceedings based upon deportation grounds, where ICE must prove that the respondent is deportable by clear and convincing evidence. Upon receiving the notice of termination, the conditional resident may also file a waiver application on Form I-751. 31 Waiver applications may be filed either before or after the two-year conditional residence period has expired, 32 although the better course of action is to file them prior to expiration of the conditional period where possible. Even if removal proceedings have been commenced, the court should continue proceedings to give USCIS time to adjudicate the waiver application if the conditional resident appears to be eligible for a waiver. 33 If USCIS grants the waiver, the conditions on the immigrant’s permanent resident status will be removed effective on the second anniversary of the immigrant’s admission for permanent residence. 34 § 9.4

Removing Conditional Status through a Joint Petition

As stated earlier, conditional residents must file a Petition to Remove the Conditions on Residence (Form I-751) with USCIS in order to remove conditional status and become “fullfledged” lawful permanent residents. 35 If the conditional resident is still lawfully married to the USC or LPR spouse, and if that spouse agrees to cooperate in completing the petition, then the couple will file Form I-751 as a joint petition.

See INA §§ 216(a)(2)(C), 216(c)(2)(A), and 8 CFR § 216.4(a)(6). Id. 28 INA § 237(a)(1)(D). 29 8 CFR § 216.3(a). 30 INA § 216(b)(2); 8 CFR § 216.3(a). 31 Letter, Edward Skerrett, Chief, Immigrant Branch, INS Adjudications, HQ 216-C (Dec. 10, 1991), reprinted in 70 Interpreter Releases 272 (March 1, 1993). 32 Matter of Mendes, 20 I&N Dec. 833 (BIA 1994); Matter of Anderson, 20 I&N Dec. 888 (BIA 1994); Matter of Tee, 20 I&N Dec. 949 (BIA 1995); Matter of Stowers, 22 I&N Dec. 605 (BIA 1999). 33 Matter of Mendes, 20 I&N Dec. at 840. 34 INA § 216(c)(3)(B). 35 INA § 216(c)(1)(A). 26 27

9-7

Chapter 9

When filing Form I-751 as a joint petition to remove the conditions, the conditional resident will check box “1.a” in Part 3 of Form I-751, and sign in Part 7. The spouse will sign in Part 8 of the form. On the Form I-751, both spouses must declare under penalty of perjury that (1) they were

married in accordance with the laws in the jurisdiction where the marriage took place, and (2) they did not enter into the marriage to procure an immigration benefit. According to the regulations, the USCIS must approve a jointly-filed petition if it determines that all of the following conditions are met: 36 • • • •

The qualifying marriage was legal in the place where it took place; The qualifying marriage has not been legally annulled or terminated; The qualifying marriage was not entered into for the purpose of procuring permanent residence status for the immigrant spouse; or No fee was paid in connection with the filing of the petition (other than legal fees paid to a lawyer).

USCIS may send the couple an interview notice. If the conditional resident received proper notice and fails to appear with his or her spouse at a required interview without good cause, his or her status will be terminated at the second anniversary of the CLPR’s lawful admission for permanent residence or following the interview date, whichever is later. 37 Failure to file the petition or failure to comply with the interview requirements will lead to automatic termination of conditional resident status and the initiation of removal proceedings. 38 In removal proceedings, the noncitizen will bear the burden of proof to establish that he or she has complied with the prerequisites for having the condition removed. 39 The immigration judge is authorized to stay removal proceedings to allow the conditional resident to file the joint petition. 40 Time Window for Filing and Late Filing The petition must be filed in the 90-day period before the two-year anniversary of the date that the new immigrant spouse received conditional residency. 41 “Filed” means the petition was actually received by USCIS by the deadline date, not simply postmarked by the deadline. To determine when to file the joint petition, count two years from the date that the conditional resident spouse received conditional residency. (This date is listed as the expiration date of the Conditional Resident Card, I-551.) Then count backwards 90 days. The petition must be filed within this 90 day “window” before conditional residency expires. If the joint petition is filed too soon, it will be rejected, and the applicant will both lose the filing fee and possibly find out too late to refile the petition on time.

Chapter 9

Example: Diego married Frida, a U.S. citizen, on July 10, 2015. He entered the United States with his immigrant visa on August 1, 2016. The two-year anniversary of Diego’s receiving conditional residency is August 1, 2018. Diego and Frida must file (and USCIS must receive) the joint petition between May 3, 2018 and July 31, 2018. USCIS Memorandum, Acting Associate Director, Donald Neufeld, “I-751 Filed Prior to Termination of Marriage,” April 3, 2009, included as Appendix 9-E; INA § 216(d)(a)(A). 37 See INA § 216(c)(2)(A). Note, however, that many conditional residents filing joint petitions with their spouses are not required to attend an interview. USCIS reserves the right to require an interview, but does not always do so. 38 8 CFR § 216.4(a)(6). 39 INA § 216(c)(2)(B); 8 CFR § 216.4(a)(6). 40 INA § 216(d)(2)(C). 41 INA § 216(d)(2)(A), 8 CFR § 216.4. 36

9-8

Tab Position 1

Immigrant Legal Resource Center March 2017

A late joint petition will not be accepted by USCIS unless you show that there was “good cause” for the late filing and that the length of the delay was reasonable. 42 Applicants filing untimely petitions are required to submit a separate statement explaining the reason for the late filing and they should submit any available additional supporting evidence. 43 USCIS will evaluate the applicant’s explanation and supporting documentation according to the length of time the application was untimely filed. The regulations do not define “good cause,” but according to USCIS guidance on this matter, some examples of what constitutes good cause may include: • • • • •

Hospitalization Long term illness Death of a family member Legal or financial problem Caring for someone

• • • •

Tab Position 1

VAWA Manual March 2017

Bereavement Serious family emergency Work commitment Family member on active duty with the U.S. military 44

USCIS has been relatively reasonable in accepting late filed I-751 applications if a reasonable explanation is provided. If the USCIS is unable to determine whether the failure to timely file was due to good cause, it may issue a request for further evidence (RFE). Furthermore, if the issue is still inconclusive after the applicant responds to the RFE, the USCIS Service Center where the petition was filed may forward the file to the local USCIS office for an interview. It is important to provide a strong explanation for untimely filing of a joint petition, because USCIS will deny the petition for failure to comply with the filing requirements if it determines that the explanation and corroborating evidence do not establish good cause. WARNING: Risks of Filing Late. Even though there are provisions for late filing of the I-751, the conditional resident who does not file within the two-year period must remember that he or she is no longer in lawful status and is in danger of being placed in removal proceedings.

Extension of Status While Petition Is Pending Filing of the joint petition or waiver automatically extends conditional residence status for one year. Thus, any conditional resident who has filed a Form I-751 remains a conditional resident 8 CFR § 216.4(a)(6). USCIS Interim Policy Memorandum, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions,” December 23, 2012, included as Appendix 9-G. 44 Id. 45 8 CFR § 216.4(a)(6). However, if the ICE Office of the Chief Counsel (OCC) does not wish to join a joint motion to terminate, it might agree to “non-opp” or not oppose the immigrant’s motion. In the alternative, the immigration judge could grant the motion to terminate, even over the objection of the OCC. 42 43

9-9

Chapter 9

In the past, USCIS has often accepted late petitions that were submitted within a few days or weeks after the deadline. When a joint petition or waiver is filed several months late, however, the USCIS will scrutinize the reasons for the delay more carefully. If jurisdiction has already vested with the immigration judge (which occurs when the NTA is filed with the Office of the Immigration Judge), the immigrant can ask the judge to continue the proceedings until USCIS makes a decision. If USCIS approves the joint petition or waiver application, the immigration judge can terminate the proceedings, ideally upon a joint motion filed by the immigrant and the ICE Office of the Chief Counsel. 45

until a decision is made on his or her Form I-751. At least in some regions, USCIS takes well over a year to adjudicate the petitions and, therefore, USCIS will extend conditional residence beyond the one-year period. Documentation of the first year of extended status, for travel or employment purposes, is provided in the form of the receipt notice for the I-751. After one year, the conditional resident should schedule an InfoPass appointment to request an “I-551 stamp” (temporary evidence of lawful permanent residence) in his or her passport, as proof that the conditional residency is still valid. Eligibility to Naturalize Typically, conditional residents are eligible to file for naturalization three years after their date of adjustment of status or admission as a conditional resident if they married a U.S. citizen and are still married, or five years after their admission date if they married a permanent resident. 46 If the conditional resident has held this status for at least three years, during which time he or she has been married to a U.S. citizen spouse (for example, if USCIS takes longer than a year to adjudicate the I-751), the conditional resident is eligible to apply for naturalization even if the I751 joint petition is still pending. The time spent in conditional resident status counts towards the time a permanent resident must accrue to qualify for naturalization. However, there is one caveat: the conditional resident must successfully remove the conditions on his or her residence before the naturalization application may be approved. Therefore, even though a person may file their application for naturalization while the I-751 is pending, U.S. citizenship will not be granted until the I-751 is approved. Sometimes the joint petition is approved at the same time as the naturalization application. 47

Chapter 9

There are special VAWA provisions for abused spouses of U.S. citizens to naturalize if an I-751 waiver was approved. 48 USCIS clarified in an interoffice memorandum that abused spouses who obtain lawful permanent residence with an approved I-751 waiver based on battery or extreme cruelty are eligible to naturalize after three years even if they are no longer married to or living with the abusive spouse. 49 One issue that comes up in these cases is that the I-751 waiver approval notice may not indicate on which bases (e.g., divorce, battery, etc.) the waiver was granted. In those cases, the attorney may have to advocate on the client’s behalf to be allowed to naturalize under the policy clarified in this memorandum. PRACTICE POINTER: Failing Marriages. A joint petition cannot be denied solely because the spouses are separated or have initiated the legal termination of their marriage. 50 The legal requirement is still whether the marriage was both valid legally and “bona fide at its inception,”

INA § 216(e). INA § 216(e). See also, Yates, Associate Director, Operations, Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the INA, January 27, 2005, included as Appendix 9-F; and Volume 12, Part G, Chapter 5 of the USCIS Policy Manual, available at www.uscis.gov/policymanual. 48 INA § 319(a). 49 INA § 319(a); See Yates, Associate Director, Operations, Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the INA, January 27, 2005 at Appendix 9-F. 50 USCIS Memorandum, Acting Associate Director, Donald Neufeld, “I-751 Filed Prior to Termination of Marriage,” April 3, 2009, included here as Appendix 9-E. 46 47

9-10

Tab Position 1

Immigrant Legal Resource Center March 2017

i.e., not entered into for immigration purposes only. 51 The parties’ conduct after they enter the marriage should affect the USCIS’ decision only if it bears on the parties’ state of mind at the time they were married. 52 Therefore, if the marriage is no longer viable but the couple is still legally married, a separate statement explaining this should be included with the petition.

Tab Position 1

VAWA Manual March 2017

PRACTICE POINTER: Marriages in Divorce Proceedings. In cases where the couple is still married—and therefore files a joint I-751—but are legally separated or in divorce or annulment proceedings the USCIS may issue a Request for Evidence (RFE) with an 87-day response period asking the conditional resident to provide a copy of the final divorce decree or annulment. The applicant should also request that the USCIS treat the jointly filed I-751 petition as a waiver petition. This is important because it will help the applicant avoid having to file an entirely new I751 waiver with new fees. In the case where the applicant does not have the final divorce decree or annulment by the 87-day deadline, it is important to respond to the RFE nevertheless, and provide an explanation with evidence, such as documentation showing where the couple is in the process of divorce proceedings. For example, in California, there is a 6-month waiting period in order for a court to finalize a divorce. If the conditional resident applicant fails to respond to the RFE or to provide the requested information to the satisfaction of the USCIS adjudicating officer, the examiner will determine whether there is sufficient evidence of a good-faith marriage to adjudicate the petition as is. If so, USCIS will then either approve or deny the joint petition based on that evidence. If the petition is being adjudicated at a USCIS Service Center, it is likely that the Service Center will forward the file to the local USCIS office for an interview. The local office will then conduct an interview to determine whether or not the four facts listed in the regulations at have been established; and if so, the petition should be approved. See the following section on waivers based on divorce or annulment for a similar strategy involving filing a waiver application. § 9.5

Grounds and Procedure for Removing Conditional Status through a Waiver

In lieu of the couple’s completing the joint petition, the conditional resident can request that the joint filing requirement be waived, based on one or more of three grounds:

The conditional resident indicates that he or she will be filing Form I-751 as a waiver application and indicates the basis or bases for the waiver by checking boxes 1.d, 1.e, 1.f and/or 1.g in Part 2 of the form. INA § 216(d)(a)(A). Matter of McKee, 17 I&N Dec. 332, 334 (BIA 1980). 53 INA § 216(c)(4); 8 CFR § 216.4(a)(1). 51 52

9-11

Chapter 9

1. the marriage was entered in good faith, but the marriage has been terminated by divorce or annulment; 2. the marriage was entered in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or 3. termination of permanent residence and deportation would result in extreme hardship. 53

Unlike the jointly filed petition, an I-751 based on a waiver can be filed before, during or after the 90-day period before the expiration of conditional residence. 54 There is no deadline. Because the petitioner files for a waiver as an alternative to filing the joint petition, the waiver application normally should be filed within the 90 days preceding the end of the two-year conditional residence period. Sometimes, however, it may be appropriate to file a waiver application before or after the 90-day period. For example, if the parties’ divorce becomes final or the citizen or LPR spouse dies before the 90-day period, USCIS will adjudicate an I-751 filed early and, if approved, the conditions on residence will be removed at that time. 55 On the other hand, the petitioner may file for a waiver after the 90-day period if the parties initially filed a timely joint petition, but the citizen spouse subsequently refuses to cooperate or the parties divorce.

Chapter 9

PRACTICE POINTER: If the U.S. Citizen or Permanent Resident Spouse Dies. A conditional resident whose U.S. citizen or lawful permanent resident spouse died during the two-year period of conditional residence cannot file a joint petition. However, such a person also does not qualify for any of the three waivers outlined at INA § 216(c)(4). 56 Nevertheless, the instructions to Form I-751 refer to filing a waiver if the spouse died. This simply refers to the fact that a conditional resident can petition by himself or herself to have the conditions on his or her residence removed based on the death of the spouse. Therefore, a conditional resident widow or widower must file Form I-751 with box 1.c checked-off, in “Part 3. Basis for Petition” with evidence of his or her spouse’s death. Furthermore, the applicant will still need to prove the bona fides of the marriage under INA § 216(d)(1). However, the petition may be denied only for the same reasons a joint petition could be denied (e.g., fraudulent marriage, payment to petitioning spouse or termination other than death), and USCIS will nearly always grant the waiver without requiring an interview. Although Form I-751 indicates that the conditional resident must elect one of the possible grounds for a waiver, they are not mutually exclusive, and the conditional resident should claim all applicable grounds. This is because, if the conditional resident ends up in removal proceedings, the immigration judge has jurisdiction to review only USCIS’ decisions, and cannot consider a waiver application on a ground raised for the first time before the immigration court. 57 Thus, if the conditional resident applies for a waiver based on less than all of the applicable grounds, and the application is denied and removal proceedings commenced, the immigration judge cannot consider any grounds other than those raised before USCIS. The immigration judge may agree, however, to continue the proceedings in order to allow USCIS to consider additional waiver grounds.

See Matter of Stowers, 22 I&N Dec. 605 (BIA 1999). Also, note that 8 CFR § 216.5 regarding waivers does not mention a filing deadline requirement of 90 days. 55 Id.; Legal opinion of William Cook, INS Acting General Counsel, CO 216-P (Jan. 9, 1990), reprinted in 67 Interpreter Releases 168 (Feb. 5, 1990). 56 See, e.g., INA § 216(c)(4) and Matter of Rose, 25 I&N Dec. 181 (BIA 2010) (holding that a conditional permanent resident under INA § 216(a) who is seeking to remove the conditional basis of that status and who has timely filed the petition and appeared for the interview required under INA § 216(c)(1) does not need a separate § 216(c)(4) hardship waiver if the petitioning spouse died during the two-year conditional period.) 57 Matter of Anderson, 20 I&N Dec. 888, 892 (BIA 1994). 54

9-12

Tab Position 1

Immigrant Legal Resource Center March 2017

The waiver grounds based on battery and extreme cruelty and the petition based on the death of the spouse all require that the applicant prove that the marriage was entered into in good faith. USCIS will consider evidence concerning the amount of commitment each party has shown to the marital relationship. 58 To prove good faith, USCIS suggests submitting evidence showing the following: (1) a sharing of financial assets and liabilities; (2) the length of time the parties cohabited; (3) birth certificates of children born of the marriage; and (4) any other pertinent evidence. 59 This is essentially the same type of proof a noncitizen spouse seeking conditional residence or a VAWA self-petitioner must provide to establish that his or her marriage is bona fide.

Tab Position 1

VAWA Manual March 2017

The best type of evidence shows that the noncitizen spouse truly intended to establish a life together with the USC or LPR spouse. In addition to the documents suggested by USCIS, the petitioners should include evidence such as joint tax returns, insurance policies, health care plans, and evidence that the spouses have jointly purchased land or personal property (such as a car or appliances) and of other joint holdings. Other persuasive evidence could include photographs of the wedding ceremony or of the couple together in different situations. If the parties have taken vacations or traveled together, submit copies of airline tickets or hotel bills. Credit cards on which both spouses have authority to make charges, or joint check-cashing cards are other possibilities. Low-income and battered or abused spouses often have access to fewer “traditional” documents, which requires more thoughtfulness and creativity. Cards, letters, emails and social media postings between the couple and from friends and relatives of the couple may be used. Detailed sworn statements or even simple letters from neighbors, friends, coworkers, employers and teachers of the noncitizen spouse’s children are also often helpful. Letters from restaurant staff, mechanics, shop owners or others who have witnessed the couple together, and perhaps also witnessed the abuse of the noncitizen first hand, may be invaluable as well. Divorce/Annulment Waiver

The USCIS Adjudicator’s Field Manual (AFM), which is being slowly revised and reincarnated as the USCIS “Policy Manual” explains that USCIS does not interpret the “good faith, not at fault” language of the statute to mean the noncitizen is ineligible for that waiver if found “at fault” in divorce proceedings or otherwise in the failure of the marriage. The AFM says: “[T]he decision on whether to grant the waiver belongs to the Service, not to the divorce court judge. Remember that in the worst marriage fraud cases, the parties to the fraud would agree in advance that the alien would file for divorce and that the petitioning spouse would accept fault for the breakdown in the marriage.” The AFM explains that the “at fault” provision relates to compliance 8 CFR § 216.5(e)(2). Id. 60 INA § 216(c)(4)(B). 61 INA § 216(c)(4)(B); 8 CFR § 216.5(e). 58 59

9-13

Chapter 9

The joint petition requirement can be waived if the conditional resident demonstrates that the marriage has ended in either divorce or annulment and that it was entered in good faith. 60 Neither the statute nor the regulations require that the USC or LPR spouse have been at fault in the breakup of the marriage or that the conditional resident have been free from fault, nor is there any requirement that the conditional permanent resident be the one to initiate the divorce or annulment proceedings. 61

with the immigration law requirements for the petition and/or waiver, not who did what in the marriage. 62 Example: Jasper obtained conditional permanent residence based upon his marriage to Mimi, a USC. Jasper and Mimi were in love when they married and intended to remain together permanently. The marriage has not worked out, however, and they were divorced after Mimi filed a petition for divorce. Because the marriage is no longer in existence, Jasper and Mimi cannot file Form I-751 as a joint petition, but Jasper can apply for a waiver of the joint petition requirement on Form I-751 based upon his entering into the marriage in good faith and the marriage having been terminated. It does not matter that Mimi filed the divorce petition. Nor is there any requirement that Jasper show that he was free from fault in the breakup of the marriage, although the USCIS may consider events subsequent to the marriage in determining whether the parties entered into the marriage in good faith.

Chapter 9

If a couple is legally separated or in divorce or annulment proceedings but not yet legally divorced, the conditional resident technically does not yet qualify for the waiver based on termination of marriage, until the marriage is actually terminated by law. USCIS may still approve a joint petition under these circumstances, as described in § 9.5 in this chapter, but if a joint petition is not possible the individual will lose his or her status and all the rights and privileges attached if the conditional residency expires before a waiver application is filed. However, once the waiver is on file, the receipt issued by USCIS automatically “reinstates” and extends the conditional residency status for another year The conditional resident has two choices in this scenario: either file a petition for a waiver while technically ineligible, or wait until the divorce is finalized, temporarily lose permanent residency and then be reinstated after the petition is filed. Individual circumstances differ and should be carefully considered. If the applicant files the waiver timely, and checks the box 1.d in Part 3 of Form I-751, indicating that the basis for the petition is a waiver due to termination of the marriage, USCIS will issue a Request for Evidence (RFE) with an 87-day response period asking the conditional resident to provide a copy of the final divorce decree or annulment. If the conditional resident applicant fails to respond to the RFE (such as because he or she does not have the final divorce decree or annulment by the 87-day deadline), USCIS will deny the petition and refer the case for issuance of a Notice to Appear (NTA) in immigration court. 63 Before the NTA is issued, the applicant should have 30 days to file a Motion to Reconsider with USCIS. Since USCIS has not historically automatically immediately issued an NTA placing a former conditional resident in removal proceedings if the joint petition or waiver is not timely filed, there may be significant additional time to file the waiver. And even if an NTA is filed, continuances may be requested and even administrative closure or termination of proceedings obtained once the waiver is on file with USCIS. Once an NTA is issued, the conditional resident may request review by the immigration judge of any joint petition or waiver denial by USCIS, Adjudicator’s Field Manual, 25.1(h)(2), www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-00-11685/0-0-0-11691.html#0-0-0-469. 63 See Neufeld, USCIS Acting Associate Director, I-751 Filed Prior to Termination of Marriage, Memorandum to Regional, District, Service Center, and Field Office Directors (April 3, 2009) (reprinted as Appendix 9-E). 62

9-14

Tab Position 1

Immigrant Legal Resource Center March 2017

including if the marriage is finally terminated during removal proceedings. 64 In order to avoid having the applicant placed in proceedings, however, it is a best practice to think strategically about the filing of a waiver, taking into consideration the timing involved in both processes (the waiver adjudication and the termination of the marriage), the need for employment authorization and/or travel, and current USCIS practices. Remember that there is no deadline for filing a waiver.

Tab Position 1

VAWA Manual March 2017

Battered Spouse Waiver The 1990 Act added an important option for spouses who have been the victims of spousal abuse. The joint petition requirement may be waived for these spouses if, during the marriage, the immigrant spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her USC or LPR spouse or parent. 65 In other words, the conditional resident spouse may apply under this waiver if either the conditional resident or the conditional resident’s child has been abused by the other spouse. USCIS’ regulations clarify that the battered spouse waiver is available to conditional residents, regardless of their current marital status. 66 In other words, they may still be married and living with the abusing spouse, may be separated, may be divorced, or may be in the process of seeking a divorce. Spouses who are divorced already would normally file for the “divorce or annulment” waiver due to its more relaxed proof requirements. However, if evidence is available to support both the battered spouse and divorce grounds, the waiver should be filed under all applicable grounds. The waiver is available to all spouses affected by the conditional residence requirements, regardless of whether their conditional residence ended before or after Congress created this waiver. Both current and former conditional residents can take advantage of this waiver, so long as they have not departed the United States since the termination of his or her conditional resident status. 67

If the conditional resident alleges physical abuse, he or she may submit any credible and relevant evidence. 70 This may include, but is not limited to, expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency

64

Id. INA § 216(c)(4)(C). 66 8 CFR § 216.5(e)(3)(ii). 67 Id. Note, however, that once the I-751 waiver is filed and the receipt is issued, the CLPR’s status is extended and travel is again possible. 68 8 CFR § 216.5(e)(3)(i). 69 Id. 70 INA § 216(c)(4). 65

9-15

Chapter 9

Acts that constitute battery or extreme cruelty include, but are not limited to, any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. 68 Acts of violence include psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution. 69 See §§ 3.6 and 11.7 for a full discussion.

personnel. 71 The applicant should also submit a detailed declaration, describing the abuse and facts to establish other elements of the waiver requirements. In general, advocates should gather and submit the same sorts of documentation submitted to establish abuse for purposes of a VAWA self-petition. See §§ 3.6 and 11.7. The USCIS regulations incorrectly refer to “extreme cruelty” as “extreme mental cruelty.” 72 Although the regulations provide that waiver applicants alleging extreme mental cruelty must furnish independent evidence from “a professional recognized by the [USCIS] as an expert in the field, 73 defined narrowly as licensed clinical social workers, psychologists, and psychiatrists, 74 the Violence against Women Act of 1994 (VAWA) 75 superseded those regulations. VAWA did this by providing that INS (and now USCIS) must accept any relevant credible evidence submitted with a request for a waiver of the joint petitioning requirement based upon battery or extreme cruelty. 76 Legacy INS determined that this change precluded it from requiring the recommendation of a mental health professional or any other specific form of evidence to support a Form I-751 waiver based on abuse or extreme cruelty. 77 USCIS must keep information contained in the waiver petition or supporting documents in strict confidence. 78 It may not release the information to any party without a court order or the written consent of the immigrant applicant. 79 Information may be released only to the applicant, his or her authorized representative, a USCIS officer, or any state or federal law enforcement agency. 80 Extreme Hardship Waiver The conditional resident spouse may also request a waiver of the joint petition requirement based on “extreme hardship.” 81 Although the statute is silent about whom the extreme hardship must affect, the USCIS has stated that the waiver may be based on hardship either to the conditional permanent resident himself or herself, to children of the marriage, or to a new spouse. 82 The burden on the conditional permanent resident to prove extreme hardship is heavy. Remember that hardship means hardship above and beyond that which a person forced to leave the United States normally suffers. 83 Because the extreme hardship waiver is difficult to prove, you and your client should consider whether she may qualify for the other two types of waivers, that is, the 8 CFR § 216.5(e)(3)(iii). 8 CFR § 216.5(e)(3). 73 8 CFR § 216.5(e)(3)(iv). 74 8 CFR § 216.5(e)(3)(vii). 75 Pub. L. 103-322 (Sept. 13, 1994), amending INA § 216. 76 Id., at § 40702. 77 Memo from Office of Programs, INS, re: Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of US. Citizens or Lawful Permanent Residents (April 16, 1996), at 2 (attached as Appendix 3-A). 78 INA § 216(c)(4); 8 CFR § 216.5(e)(3)(viii). 79 Id. 80 Id. 81 INA § 216(c)(4)(A). 82 “INS Responds to Marriage Fraud Questions,” Question No. 57, reprinted in 67 Interpreter Releases 341 (March 19, 1990). 83 8 CFR § 216.5(e)(1).

Chapter 9

71 72

9-16

Tab Position 1

Immigrant Legal Resource Center March 2017

good faith or the battery/extreme cruelty waivers. Remember, a conditional permanent resident may choose more than one basis and argue them in the alternative. 84 There are two situations in which the extreme hardship waiver is the only option: 1) where the marriage was not bona fide, and 2) where the parties cannot or will not terminate the marriage and there is no basis for a battered spouse waiver.

Tab Position 1

VAWA Manual March 2017

USCIS will consider only hardship that arose after the conditional resident acquired conditional permanent residence status, and despite the regulations not imposing a subsequent time limit, the BIA has construed the statute as only allowing consideration of hardship accrued during the initial two year conditional residence period. The Board further disallowed considering hardship accrued during the extension of residency obtained by filing for one or more waivers. 85 Therefore, as you and your client explore the extreme hardship factors discussed below—family ties in the United States and the home country; how long they have lived in the United States; health and medical needs; economic and political situation in the home country; involvement with their community; etc.—keep in mind that such factors must have arisen after the person became a conditional permanent resident, in order to be considered. For example, USCIS presumably will not consider a preexisting medical problem that requires care and treatment in the United States. Medical problems that developed after the conditional resident entered the United States, however, would be relevant, as would adverse political, social, or economic conditions that have developed in his or her home country since the acquisition of conditional residence. As with all I-751 waiver petitions, the conditional resident should always explain that the marriage was bona fide and give details and documents in support, where this was the case. An applicant should explain why the marriage ended (if it did) or why the relationship became hostile, and why a waiver should be granted. However, the statute does not outright require a good-faith marriage in order to qualify for the extreme hardship waiver. If the marriage was in fact not bona fide, this waiver may be the only viable option for removal of the condition for such a client. 86 In addition there is a risk where a couple jointly files the I-751 petition, and USCIS denies the petition based on a marriage fraud finding. In that case, the conditional resident cannot subsequently file an extreme hardship waiver following the denial, but may instead file a waiver of deportation under INA § 237(a)(1)(H). 87 In potential marriage fraud cases, you should screen 85

9-17

Chapter 9

See Gordon & Mailman § 42.05[3][a]. Matter of Monroe, 20 I&N Dec. 888 (2014); INA § 216(c)(4); See also Matter of Singh, 24 I&N Dec. 331 (BIA 2007); Singh v. Holder, 591 F.3d 1190, (9th Cir. 2010) (extreme hardship period is limited to the 2-year conditional residence period and is not extended by filing waiver. Monroe was a three judge panel decision, and this interpretation of the statute should be challenged if an applicant can only demonstrate hardship accrued after the initial two year period of conditional residency status. 86 See, e.g., Waggoner v. Gonzales, 488 F.3d 632 (5th Cir. 2007), and Singh v. Holder, 591 F.3d 1190 (9th Cir. 2010); see also Matter of Balsillie, 20 I&N Dec. 486(BIA 1992). The Adjudicator’s Field Manual recognizes that the extreme hardship waiver does not require a showing that the marriage was entered into in good faith. See Adjudicator’s Field Manual Ch. 25.1(e)(2); But see Velazquez v. INS, 876 F. Supp. 1071 (D. Minn. 1995) (threshold requirement for extreme hardship waiver is showing that marriage entered into in good faith); Nyonzele v. INS, 83 F.3d 975 (8th Cir. 1996) (BIA did not abuse its discretion in denying extreme hardship waiver when alien failed to show good faith marriage). 87 See, e.g., Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010). 84

your client for eligibility for that waiver as well, before deciding together on a course of action. The Board of Immigration Appeals (BIA), through a number of decisions, has provided guidance on determining extreme hardship. Although this guidance was not provided specifically for the Form I-751 extreme hardship waiver, the BIA has indicated that extreme hardship factors enumerated for purposes of one type of relief may be helpful in considering other types of relief that also require a showing of extreme hardship. 88 Under the BIA’s decisions, “extreme hardship” does not have a fixed definition. Instead, the elements to establish extreme hardship depend on the facts and circumstances of each case. 89 In general, extreme hardship means something more than the ordinary hardship one would suffer in being separated from a spouse, children, and other loved ones, or from a country and lifestyle one had become accustomed to. 90 Successful applicants must generally demonstrate something out of the ordinary, such as a specific medical condition, loss of special educational opportunities, or inability to provide for oneself in the home country. The BIA has also stated that the following factors, taken alone, should not be considered to qualify as extreme hardship: birth of citizen children, 91 significant reduction in standard of living, 92 and lower quality medical or educational facilities in the native country. 93 Similarly, difficulty in re-adjusting to life in the native country, taken alone, is not sufficient to establish extreme hardship. Where the applicant has “strongly embraced and deeply immersed himself in the social and cultural life of the United States,” however, the emotional and psychological impact of readjustment must be considered in assessing hardship. 94 See § 11.9. When analyzing a claim of extreme hardship, USCIS or immigration judge must consider all of the hardship factors cumulatively. Thus, even though a particular factor might not in itself rise to the level of extreme hardship, two or more hardship factors, taken together, might rise to that level. 95 For this reason, it is very important to document all the hardship factors in a client’s case. The BIA has identified the following as factors to consider in evaluating extreme hardship in the context of suspension of deportation.

Chapter 9

• • •

The age of the applicant, both at entry and at the time of application for relief; The age of the qualifying relatives; The applicant’s length of residence in the United States over the statutory minimum;

Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999). Id. at 565. 90 8 CFR § 216.5(e)(1); see also Matter of Cervantes, supra n. 62; Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). 91 Matter of Pilch, supra n. 67; Matter of L-O-G-, supra n. 64. 92 Matter of L-O-G-, supra n. 67. 93 Matter of Correa, 19 I&N Dec. 130 (BIA 1984); Matter of Pilch, supra n. 67; Matter of Kim, 15 I&N Dec. 88 (BIA 1974). 94 Matter of O-J-O-, supra, n. 67, at 385. 95 Matter of Pilch, supra n. 67; Matter of L-O-G-, supra n. 67; Matter of Ige, 20 I&N Dec. 880 (BIA 1994); Matter of O-J-O-, supra n. 67; see Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 4 (October 16, 1998) [reprinted in 76 Interpreter Releases 162 (January 25, 1999)]. 88 89

9-18

Tab Position 1

Immigrant Legal Resource Center March 2017

• • • • • • • • • • •

The applicant’s family ties, both in the United States and abroad; The health of the applicant and qualifying relatives; The applicant’s financial status and occupation; The applicant’s ties to the community; The economic and political conditions in the home country; Any disruption of educational opportunities; Any adverse psychological impact of deportation; Linguistic or cultural factors that make securing employment in the home country difficult; Additional factors relevant to conditions in the home country; The applicant’s involvement and position in the local community; and The applicant’s immigration history. 96

Tab Position 1

VAWA Manual March 2017

Advocates should not feel limited to the above list of factors, but should include all factors that are relevant to the particular case. For purposes of determining whether extreme hardship exists in a VAWA-related application, USCIS and the Executive Office for Immigration Review (EOIR) have set out additional special hardship factors to be considered, reflecting the special issues involved in a domestic abuse situation. 97 These factors are: •

The nature and extent of the physical or psychological consequences of abuse;

•

The impact of loss of access to the United States courts and criminal justice system, including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations, and prosecution of court orders regarding child support, maintenance, child custody, and visitation;

See INS v. Wang, 450 U.S. 139 (1981); Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001); Matter of Cervantes, supra n. 62; Matter of O-J-O-, supra n. 64; Matter of Pilch, supra n. 64; Matter of L-O-G-, supra n. 64; Matter of Anderson, 16 I&N Dec. at 597. See also Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 3-7 (October 16, 1998) [reprinted in 76 Interpreter Releases 162 (January 25, 1999)], and Aleinikoff, INS Executive Associate Commissioner, Office of Programs, Memorandum HQ 204-P, re: Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents, at 9-10 (April 16, 1996) [reprinted at 73 Interpreter Releases 737 (May 24, 1996)]. 97 This guidance was first issued by the INS in the form of a memorandum concerning VAWA selfpetitions. Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 4 (October 16, 1998) [reprinted in 76 Interpreter Releases 162 (January 25, 1999)]. Prior to the 2000 VAWA amendments, VAWA self-petitions had to show that removal would cause the self-petitioner or qualifying family members’ extreme hardship. That requirement was deleted in the 2000 VAWA amendments. The EOIR’s guidance was issued in the form of regulations, setting out factors to be considered in assessing extreme hardship for purposes of VAWA cancellation and suspension applications. 8 CFR §§ 240.20(c) [VAWA cancellation] and 240.58(c) [VAWA suspension]. 96

Chapter 9

9-19

•

The likelihood that the batterer’s family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant’s child(ren);

•

The applicant’s needs and/or the needs of the applicant’s child(ren) for social, medical, mental health or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country;

•

The existence of laws and social practices in the home country that punish the applicant or the applicant’s child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household;

•

The abuser’s ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant’s child(ren) from future abuse;

•

Linguistic or cultural factors that make securing employment in the home country difficult;

•

Conditions in the home country; and

•

Any other economic factors in the United States or abroad. 98

Experts note that child custody disputes and protection orders are compelling hardship factors. A grant of custody may become meaningless if the parent is deported and unable to effectively respond to actions by the abusive parent. 99 Similarly, a protection order is of little use abroad if the abuser travels back and forth to the victim’s homeland. 100 Experts also relate that the effect on children of domestic violence in the household has been considered a significant hardship factor. 101

Chapter 9

Procedures for Filing the Petition The I-751 petition must be filed by mail with the USCIS Service Center that has jurisdiction over the conditional resident’s U.S. residence. 102 The current edition of the form is 12/23/16 and can be obtained by going to the USCIS website at www.uscis.gov/i-751. No previous editions are accepted. The filing fee is currently $595 for the Form I-751 and $85 for the biometrics fee with the I-751 filing. However, the fees can be waived. 103 After the conditional resident has submitted the I-751 petition, either as a joint petition to remove the condition or as an application to waive

8 CFR § 240.58(c). Gail Pendleton and Ann Block, “Applications for Immigration Status under the Violence against Women Act,” in AILA, Immigration and Naturalization Law Handbook 436, 457 (2001-2002). 100 Id. 101 Id. 102 8 CFR § 216.4(a)(3) (when I-751 filed as joint petition to remove condition); 8 CFR § 216.5(c) (when I751 filed as application for waiver of joint petition requirement); www.uscis.gov/i-751, click on “where to file.” 103 Filing fees and fee waiver requirements can change frequently. Make sure to consult the USCIS website at www.uscis.gov for the most current form and filing fee requirements. 98 99

9-20

Tab Position 1

Immigrant Legal Resource Center March 2017

the joint petition requirement, he or she will receive a filing receipt. See Appendix 9-B for sample I-751 materials. Once a conditional resident has filed the I-751, she remains a conditional permanent resident until a decision is made on her I-751 petition. The fee receipt is evidence that her status as a conditional permanent resident has been extended for one year, and it may be used for travel or employment purposes. If after one year, the I-751 has not yet been adjudicated, an InfoPass appointment should be scheduled to request a temporary I-551 stamp to be placed in the conditional resident’s unexpired passport, further extending CLPR status. If the CLPR does not have an unexpired passport, it is possible USCIS might issue an “I-94” card with the same temporary I-551 stamp. 104 However, since I-94s have been converted to a digital process, it is not certain that this is still an option.

Tab Position 1

VAWA Manual March 2017

If the conditional resident is in removal proceedings at the end of the two-year period, the petition nevertheless must be filed with USCIS rather than with the immigration judge as USCIS has sole original jurisdiction over the I-751. In removal proceedings, the immigration judge has authority to review USCIS’ decision regarding the joint petition or the waiver application. 105 § 9.6

Petitions and Waivers Filed for Children

Dependent children of a conditional resident who acquire their legal status concurrently with a parent may be included in the parent’s Form I-751, whether filed as a joint petition or as an application for waiver of the joint petition requirement. It does not matter how old the “child” is at the time the petition is filed. USCIS regulations use the term “children” when referring to the procedures for removing the condition, but the statute refers to “sons and daughters,” 106 a term without a statutory age limitation. Example: John is a citizen of Germany. His mother married a USC when John was 17, and John and his mother immigrated to the United States, both under conditional status, when John was 19. Two years have passed, and John and his mother must file Form I-751 to have the conditions on their residence removed. John is now 21. It does not matter than John is no longer a child; he does not lose his conditional residence or the ability to have the conditions removed when he turns 21.

Yates, Acting Associate Director, Operations, USCIS Mem/HQADN 70/23.12, December 2, 2003 (reprinted as Appendix 9-A). 105 8 CFR § 216.4(d)(2) (denial of joint petition to remove the conditions); 8 CFR § 216.5(f) (denial of application for waiver of joint petition requirement). 106 INA §§ 216(a)(1), (h)(2). 107 8 CFR § 216.4(a)(2). 108 Id. 104

9-21

Chapter 9

However, to be included in the parent’s petition, the child must have been granted conditional resident status within 90 days of the parent being granted the status, 107 because otherwise the child’s eligibility to file for removal of the condition would not begin until after the parent’s eligibility period had expired. A child who entered the United States more than 90 days after the conditional resident parent entered and who thus cannot be included in the petition filed by the parent must file an independent waiver application. 108 The child must establish that the parent’s

marriage is legitimate and has not been terminated, but he or she does not have to establish any hardship. The child’s representative can do this by indicating in the answer to Part 3 on Form I751 why the child could not be included on the parent’s petition and submitting a copy of the parent’s approved petition. Example: Hillary’s mother married a USC when Hillary was 15. Hillary’s mother immigrated to the United States shortly after her marriage, but Hillary waited for four months before immigrating, in order to complete the school year. Hillary cannot be included in her mother’s I-751 petition, because she entered more than 90 days after her mother. Instead, Hillary must file a separate Form I-751, asking for a waiver of the joint petition requirement. Hillary’s advocate should explain why Hillary could not be included on her mother’s I-751 petition and attach a copy of Hillary’s mother’s I-751 and the USCIS’ approval notice. If the parent does not file an I-751 petition, for example, because the parent has died or is unable to file due to illness or disability, or fails to include the child in the parent’s petition, the child must file his or her own I-751 petition for a waiver of the joint filing requirement. 109 The outcome of the child’s petition will normally follow that of the parent’s if the parent has filed an I-751 petition. Where the child files separately because the conditional permanent resident parent has died or for some other reason has not filed an I-751 petition, the child must submit the parent’s death certificate or evidence showing why the parent cannot file the petition, together with some evidence that the marriage was bona fide. 110 Where a conditional permanent resident child applies for a waiver of the joint petition on the basis of abuse by the USC or LPR stepparent, or where a child can show separate extreme hardship upon removal, USCIS will adjudicate the child’s waiver I-751 petition for a waiver independently of the parent’s case. 111 § 9.7

USCIS Interview

Chapter 9

When Form I-751 is filed with a USCIS Service Center, the Service Center Director will review the application to determine whether to schedule or waive an interview. If the director is satisfied that the marriage was not for the purpose of evading the immigration laws, he or she may waive the interview and approve the petition. 112 The interview should be waived if there is sufficient evidence to support the bona fides of the marriage and the other requirements are met. 113 The Service Center Director may also deny an I-751 without an interview if satisfied that the marriage is for the purpose of evading U.S. immigration laws. 114 Where the Service Center Director suspects marriage fraud, the Office of Fraud Detection and National Security (FDNS) will review the file and provide the Service Center Director with a Fraud Verification 109

Id. See Ignatius and Stickney, Immigration Law and the Family, at 5:27 (2016 ed.) 111 Id. at 5:27, 5:40. (Release # 8, 6/10). 112 8 CFR § 216.4(b)(1). 113 Yates, Associate Director, Operations, Revised Interview Waiver Criteria for Form I-751, Memorandum to Regional, District and Service Center Directors (June 24, 2005) (attached as Appendix 9-D). 114 Aytes, Acting Associate Director, Domestic Operations, Delegation of Authority for I-751, Memorandum to Regional, District and Service Center Directors, (January 30, 2006) (attached as Appendix 9-C). 110

9-22

Tab Position 1

Immigrant Legal Resource Center March 2017

Memorandum detailing their findings. 115 If fraud is verified, the Service Center will send a Notice of Intent to Deny (NOID) and an opportunity to rebut the evidence. 116 Upon review of the NOID, if the Service Center Director finds that the case presents substantial and undisputed evidence of marriage fraud, the petition will be denied without an interview.

Tab Position 1

VAWA Manual March 2017

Where fraud is not verified by FDNS, the case may be transferred to the district office having jurisdiction over the conditional resident’s residence for an interview. The regulations also provide for the transfer of a case to the district office for an interview where a waiver of the joint petition requirement has been filed. 117 USCIS policy guidance directs USCIS personnel to also employ the Request for Evidence (RFE) process to request supporting documentation to establish the bona fides of a marriage or eligibility for a requested waiver. 118 In the majority of cases where the spouses filed a joint petition with detailed documentation, the USCIS has waived the interview. On the other hand, in cases where the conditional resident filed a waiver application, the USCIS has been more likely to require a personal interview. In addition, the USCIS conducts interviews in almost all cases where fraud is suspected. 119 Therefore, a conditional resident who receives an interview notice should take additional affidavits or documents to the interview attesting to the bona fides of the marriage and in addition, if he or she applied for a waiver, showing that the waiver grounds have been met. Normally, if the conditional resident—or in the case of a joint petition, either spouse—fails to appear for the interview, USCIS will deny the petition or waiver application, terminate conditional resident status, and start removal proceedings by issuing a Notice to Appear (NTA). 120 USCIS must provide the conditional resident with written notification of and specific reasons for the termination. 121 In many cases, an NTA will accompany the termination notice. The conditional resident can ask USCIS to reconsider the decision to terminate, but bears the burden of showing valid reasons for having failed to comply with the interview requirements. 122 The conditional resident can submit a written request that the interview be rescheduled or waived. 123 USCIS may grant the request if he or she believes there is good cause to do so. In such cases, the notice to terminate and the NTA will be rescinded.

Id. 8 CFR § 216.4(d)(2). 117 8 CFR § 216.5(d). 118 Yates, Associate Director, Operations, Revised Interview Waiver Criteria for Form I-751, Memorandum to Regional, District and Service Center Directors (June 24, 2005) (attached as Appendix 9-D). 119 See Wheeler, Charles, “Until INS Do Us Part: a Guide to IMFA,” 90-3 Immigration Briefings n. 145 (March 1990) (citing statement of M. Shaul, INS Senior Immigration Examiner, AILA Annual Conference, Washington, DC (June 10, 1989)). 120 8 CFR § 216.4(b)(3). 121 Id. 122 Id. 123 Id. 116

9-23

Chapter 9

115

§ 9.8

Approval of the I-751 Petition

If USCIS approves the I-751 petition, the conditional status will be removed. 124 USCIS will send a written notice of the decision to the conditional resident, requiring him or her to report to the appropriate USCIS office for processing to receive a new permanent resident card. 125 At that time, the conditional resident will surrender the I-551 or I-94 that indicates his or her previous status as a conditional resident. 126 § 9.9

Denial and Review in Removal Proceedings

If USCIS denies the joint I-751 petition, it must provide written notice of the decision stating the reasons for the denial. Shortly thereafter, it will also issue a Notice to Appear (NTA). 127 The individual’s conditional resident status will be terminated as of the date of the Service Center or District Director’s written decision. 128 There is no direct appeal available from a USCIS denial of an I-751 petition, but once the individual is in removal proceedings, he or she can ask the immigration judge to review the denial. 129 In these proceedings, ICE bears the burden of proving by a preponderance of the evidence that the couple did not enter into a good faith marriage (i.e., that the marriage was entered into for immigration purposes or that there was an exchanged fee or other consideration for the marriage, etc.) 130 However, in the case of a waiver applicant, the noncitizen bears the burden of proving that the waiver should be approved. 131 Although ICE bears the initial burden of proving that the noncitizen is subject to removal, the noncitizen bears the burden of proving eligibility for any form of discretionary relief from removal for which he or she applies, and that he or she merits a favorable exercise of discretion.

Chapter 9

The immigration judge may only review USCIS’ denial of the joint petition or waiver application. In other words, the immigration judge does not have jurisdiction to consider an I-751 petition or waiver unless it was first filed with and denied by USCIS. 132 Although the regulations make no specific provision for an administrative appeal of a USCIS denial of an I-751 petition, the noncitizen can ask USCIS to certify the case to the Administrative Appeals Unit (AAU). Alternatively, the noncitizen can file either a motion to reopen the case (by alleging that he or she has new facts to present) or a motion to reconsider the denial (by providing valid reasons).

INA § 216(c)(3)(B). 8 CFR § 216.4(d)(1). 126 Id. 127 8 CFR § 216.4(d)(2). See also 8 CFR § 239. 128 8 CFR § 216.4(d)(2). See also 8 CFR § 239. 129 Id. 130 Id. 131 8 CFR § 216.4(b)(3); see also Boluk v. Holder, 642 F.3d 297, 302 (9th Cir. 2011); Matter of Mendes, 20 I&N Dec. 833, 838 (BIA 1994). 132 See, e.g., Matter of Lemhammad, 20 I&N Dec. 316, 322 (BIA 1991). 124 125

9-24

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 9.10 Filing a VAWA Self-Petition in Lieu of Proceeding with an Application for a Waiver of the Joint Petition Requirement In general, a conditional resident in an abusive situation should not file a VAWA self-petition, but should instead continue with the conditional permanent residence process by filing an application for a waiver of the requirement of a joint petition to remove the condition. This is because continuing with the conditional residence process will allow the individual to maintain valid status and employment authorization, as well as to continue the accrual of continuous permanent residence for purposes of naturalization. If USCIS terminates the individual’s conditional residence, however, because of failure to file Form I-751, filing Form I-751 late, or denial of Form I-751 by USCIS, and if it does not appear that the petition will be successful on review, then filing a VAWA self-petition may be an option, 133 if the individual is statutorily eligible. See Chapter 3 for VAWA self-petitioning requirements.

Tab Position 1

VAWA Manual March 2017

§ 9.11 USCIS Notice Requirements USCIS is required to provide notice to affected immigrants concerning the conditional statusrelated requirements. 134 First, at the time the immigrant obtains conditional resident status, USCIS must provide notice “respecting the provisions of this section,” including what the immigrant must do to have the conditional status removed. 135 Then USCIS is required to provide similar notice approximately 90 days before the end of the two-year conditional residence period. 136 However, even if USCIS fails to provide the required notice, it can still terminate a conditional resident’s status and start removal proceedings against him or her. 137 Nor does such failure relieve the conditional resident of the requirement to file the I-751 petition. 138 § 9.12 Conclusion Advocates may see abused spouses in various immigration statuses. It is important to check the client’s documents carefully to determine whether he or she is already a conditional permanent resident or whether he or she is in the posture of beginning the immigration process through a VAWA self-petition or other form of relief.

Chapter 9

The BIA has held that the bar at INA § 245(d) will not prevent conditional residents from adjusting status if the conditional resident status has been terminated. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). Some USCIS offices have, however, questioned whether this decision is applicable when there is no order from an immigration judge terminating conditional residence. 134 INA § 216(a)(2); 8 CFR § 216.2. 135 INA § 216(a)(2)(A). 136 INA § 216(a)(2)(B). 137 INA § 216(b)(2); 8 CFR § 216.2(c). 138 Id. 133

9-25

CHAPTER 9 CONDITIONAL PERMANENT RESIDENCE AND ABUSED IMMIGRANTS INDEX OF APPENDICES Yates, Acting Associate Director, Operations, USCIS Mem/HQADN 70/23.12, December 2, 2003

Appendix 9-B

Form I-751 Materials

Appendix 9-C

Aytes, Acting Associate Director, Domestic Operations, USCIS Mem/HQPRD 70/6.2.8, January 30, 2006

Appendix 9-D

Yates, Associate Director, Operations, USCIS Mem/HQ SCOPS 70/23.12, June 24, 2005

Appendix 9-E

Neufeld, USCIS Acting Associate Director, I-751 Filed Prior to Termination of Marriage, Memorandum to Regional, District, Service Center, and Field Office Directors, April 3, 2009

Appendix 9-F

Yates, Associate Director, Operations, Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the INA, January 27, 2005

Appendix 9-G

USCIS Interim Policy Memorandum, “Revised Guidance Concerning Adjudication of Certain I-751 Petitions,” December 23, 2012.

Chapter 9

Appendix 9-A

9-26

Tab Position 1

Immigrant Legal Resource Center March 2017

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-A-1

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-A-2

APPENDIX 9-B December 13, 2013

Tab Position 1

VAWA Manual March 2017

U.S. Citizenship and Immigration Services California Service Center P.O. Box 10751 Laguna Niguel, CA 92607-1075 RE:

I-751, AMENDED Petition to Remove Conditions on Residence Applicant: XXX, Xxxxx File Number: A XXX XXX XXX Dear USICS Officer: Please find enclosed the Amended I-751, Petition to Remove Conditions on Residence, submitted on behalf of our client, XXXXXX. Although Ms. XX initially filed an I-751 Joint application with her husband, she has had to flee her home. Ms. XX is a victim of battery and extreme cruelty and would like to amend her application to request the I-751 be processed under the waiver provision for battery/extreme mental cruelty. In support of her amended I-751 application, please find: -

If you have any additional questions, please feel free to call us at 408-288-7030. Sincerely, XXXXXXXX Law student working under the supervision of Lynette Parker Associate Clinical Professor of Law

Appendix 9-B-1

Chapter 9

-

Amended Form I-751 2 passport style photographs Form I-912 and supporting document Form G-28 Notice of Appearance for Lynette Parker, Associate Clinical Professor of Law and XXXXXX, law student Copy of Current Permanent Resident Card Copy of I-797 Notice of Action Extending Permanent Residency Documents Establishing Good Faith Marriage Documents Establishing Battery and Extreme Cruelty

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-B-2

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-B-3

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-B-4

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-B-5

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-B-6

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-B-7

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-B-8

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-B-9

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-B-10

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-B-11

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-B-12

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-C-1

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-C-2

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-D-1

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-D-2

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-D-3

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-D-4

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-E-1

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-E-2

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-E-3

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-F-1

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-F-2

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-F-3

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-F-4

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-F-5

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-G-1

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-G-2

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-G-3

Tab Position 1

Chapter 9

Immigrant Legal Resource Center March 2017

Appendix 9-G-4

Tab Position 1

VAWA Manual March 2017

Chapter 9

Appendix 9-G-5

Chapter 9

March 2017

Tab Position 1

=Immigrant Legal Resource Center

CHAPTER 10 OBTAINING RELIEF FOR ABUSED IMMIGRANTS IN REMOVAL PROCEEDINGS

Tab Position 1

VAWA Manual March 2017

This chapter includes: § 10.1 § 10.2 § 10.3 § 10.4 § 10.5 § 10.6 § 10.7 § 10.8 § 10.9 § 10.10

Introduction ...................................................................................................... 10-1 An Overview of Removal Proceedings ............................................................ 10-2 Preliminary Considerations in Removal Proceedings: Prosecutorial Discretion and Motions for Continuance, Termination, and Administrative Closure..................................................................................... 10-3 The Process of Removal Proceedings .............................................................. 10-6 Discovery in Removal Proceedings ................................................................. 10-9 Motions to Reopen Removal Proceedings ..................................................... 10-14 Reinstatement of Prior Removal Order and Consequent Ineligibility for Relief ........................................................................................................ 10-18 Treatment of Statutory Bars to Relief for VAWA Self-Petitioners................ 10-24 Relief for Overstaying Voluntary Departure .................................................. 10-24 Relief for In Absentia Removal ...................................................................... 10-25

§ 10.1 Introduction A non-citizen in the United States may be placed in removal proceedings before the immigration judge if he or she falls under either of the two sets of removal grounds. These are the inadmissibility grounds, 1 which we considered in Chapter 6, and the deportation grounds. 2 Individuals in removal proceedings, including victims of domestic abuse, have a number of things to consider. These include evaluating whether to request that the proceedings be terminated, closed or suspended in some way, determining whether or not and how to defend against the charges of removability, and, even if found removable, whether or not there is any available relief from removal. In this chapter, we will give a brief description of removal proceedings and of the general process of applying for relief from removal before the immigration judge. The requirements and guidance on assembling applications for the major forms of relief for victims of abuse and crime are covered in other chapters of this manual. We address VAWA cancellation of removal in Chapter 11, adjustment of status in Chapter 5, and conditional permanent residence in Chapter 9. An initial caveat: representation of individuals in removal proceedings is a complex process that we cannot fully cover in the course of one chapter. Advocates representing individuals in removal proceedings should receive special training and refer to a good manual on the subject prior to

2

INA § 212, 8 USC § 1182. INA § 237, 8 USC § 1251. 10-1

Chapter 10

1

undertaking representation. 3 Only attorneys and fully accredited Board of Immigration Appeals (BIA) representatives are authorized to handle removal proceedings. § 10.2 An Overview of Removal Proceedings The term “removal proceedings” means proceedings instituted before an immigration judge of the Executive Office for Immigration Review (EOIR), on or after April 1, 1997, for the purpose of determining whether a person is inadmissible under INA § 212 or deportable under INA § 237. 4 In this manual, we will discuss only “full” removal proceedings under INA § 240. It is important to know, however, that there are other types of removal proceedings under the INA. For example, there are special forms of proceedings for persons with certain criminal convictions, 5 for persons suspected of inadmissibility under the security and related grounds, 6 and for immigrants suspected of terrorism. 7 In addition, there are expedited removal proceedings for persons arriving in the United States if they do not have proper entry documents or if Immigration and Customs Enforcement (ICE) believes they are inadmissible because of fraud or misrepresentation. 8 Applying for relief from removal is not possible in most of these other forms of proceedings, although there is a process for converting the expedited removal proceeding to an INA § 240 proceeding, where a person can then apply for such relief. This process is for persons who establish a credible fear of persecution. 9 In addition, an immigrant who reenters the United States unlawfully after having been removed is subject to “reinstatement of removal,” which we will discuss more fully in § 10.7 of this chapter.

There are a number of excellent manuals on removal proceedings, including Inadmissibility and Deportability (ILRC), Removal Defense (ILRC), and Relief from Removal: a Practitioner’s Guide (CLINIC). 4 Prior to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) effective date of April 1, 1997, these proceedings were called “exclusion hearings” for persons charged with being inadmissible (persons at the border or who had not made a technical “entry”), and “deportation hearings” for persons who had entered the United States. After the IIRIRA effective date, both inadmissibility under INA § 212 and deportability under INA § 237 are determined in removal proceedings. 5 INA § 238. 6 INA § 235(c). 7 INA §§ 501 et seq. 8 INA § 235(b)(1). While expedited removal has been applied in the past only to persons either arriving at a port of entry or apprehended within 14 days of arrival and within 100 miles of an international border, in early 2017, President Trump instructed the Secretary of DHS to “take appropriate action to apply, in his sole and unreviewable discretion” INA § 235(b). In a February 20, 2017, memorandum, DHS Secretary Kelly (attached as Appendix 10-K) stated that he would issue a new Notice Designating aliens Subject to Expedited Removal under Section 235(b)(1)(a)(III) of the INA, which “may depart from the limitations set forth in the designation currently in force.” Thus, there is concern that expedited removal, with its reduced procedural protections and availability of relief from removal, may be applied to persons falling under the two designated inadmissibility grounds anywhere in the United States who cannot prove that they have been physically present for at least two years. 9 INA § 235(b)(1).

Chapter 10

3

10-2

Tab Position 1

Immigrant Legal Resource Center March 2017

§ 10.3 Preliminary Considerations in Removal Proceedings: Prosecutorial Discretion and Motions for Continuance, Termination, and Administrative Closure

Tab Position 1

VAWA Manual March 2017

Counsel in removal proceedings have initial strategy options to consider, depending on the relief available to the client and when that relief might become available. An initial decision is whether to proceed with the removal proceedings or to request that they be terminated or suspended in some way. As of the time of this manual’s writing (March 2017), policy memoranda from EOIR, ICE, and USCIS support this type of alternative processing. Clients who have approved or pending VAWA self-petitions or who are eligible to self-petition, and whose priority dates are current, will want to evaluate the best forum for adjudication of their applications to adjust status based on the approved self-petition. Both USCIS and the immigration judge have jurisdiction to adjudicate adjustment applications (although only USCIS may adjudicate the VAWA self-petition itself). Clients in removal proceedings who have an approved VAWA self-petition may either apply for adjustment before the immigration judge or request that proceedings be terminated or administratively closed to allow the applicant to apply for adjustment before USCIS. ICE and USCIS have issued policy memoranda to coordinate and expedite the adjudication of petitions pending before USCIS for respondents in removal proceedings. 10 Under these procedures, ICE will request that USCIS expedite applications or petitions for individuals in removal proceedings and will promptly transfer the A-file to USCIS. USCIS will endeavor to adjudicate the application or petition within 30 days for detained individuals, and within 45 days for non-detained individuals. In addition, where ICE determines that the person appears eligible for relief from removal through the pending application or petition, ICE will move to dismiss the removal proceedings without prejudice. The standard for dismissal without prejudice requires that the respondent have a current priority date, present a completed Form I-485 (Application to Register Permanent Residence or Adjust Status), and be statutorily eligible for adjustment of status. As explained more fully in Chapter 5 of this manual, the requirement that the applicant be statutorily eligible to adjust includes a requirement that the applicant be admissible under INA § 212. While the ICE memorandum states that the immigrant and her counsel have no obligation to request institution of these special procedures, it is advisable to communicate with ICE where the client has a pending petition. 11 Example: ICE filed a Notice to Appear, instituting removal proceedings against Rosa Maria. Rosa Maria is married to an abusive U.S. citizen and files a VAWA self-petition. ICE learns of the pending petition, formally requests that USCIS expedite its processing John Morton, Ass’t Sec. ICE, Memorandum re “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions,” August 20, 2010, attached as Appendix 10-F; USCIS Policy Memorandum re: “Guidance for Coordinating the Adjudication of Applications and Petitions Involving Individuals in Removal Proceedings; Revisions to the Adjudicator’s Field Manual (AFM) New chapter 10.3(i): AFM Update AD 11-16,” PM-a602-0029, Feb. 4, 2011, available at www.hsdl.org/?abstract&did=9264. 11 The American Immigration Council has written a helpful practice advisory on advocating for prosecutorial discretion, available at www.legalactioncenter.org/practice-advisories/prosecutorialdiscretion-how-advocate-your-client. 10

Chapter 10

10-3

of the self-petition, and sends Rosa Maria’s A-file to the Vermont Service Center for use in the adjudication. In addition, ICE determines that Rosa Maria appears statutorily eligible to adjust status as a VAWA self-petitioner and files a motion with the immigration judge, requesting that the proceedings be terminated without prejudice. The immigration judge grants the motion. Rosa Maria then files her application for adjustment of status with the Vermont Service Center. If Rosa Maria’s abusive spouse had been a lawful permanent resident rather than a U.S. citizen, Rosa Maria would not meet the requirement of the ICE policy memorandum that she have a current priority date. Nonetheless, it is likely that ICE would agree to move to dismiss the case without prejudice, because of the deferred action status available to VAWA self-petitioners whose priority dates are not current. A more temporary form of relief is administrative closure, under which removal proceedings are temporarily closed to allow an event outside the control of the parties to occur, for example, adjudication of a VAWA self-petition. Where ICE does not move to terminate without prejudice under the procedure described in the preceding paragraphs, or where the respondent believes it would be more beneficial to administratively close the case, the respondent may move for administrative closure. 12 After a case has been administratively closed, either party may move to recalendar it before the immigration court or to reinstate the appeal before the Board of Immigration Appeals. 13 A memorandum from the Chief Immigration Judge discusses the use of continuances and administrative closure in removal proceedings and encourages immigration judges to utilize administrative closure in appropriate cases, particularly where an underlying petition is involved and where DHS and the respondent agree on the possibility of alternate case resolution. 14 In the case of individuals who are eligible for VAWA cancellation, but not for adjustment as a VAWA self-petitioner, the client will generally choose to proceed with the removal proceedings, since only the immigration judge can adjudicate an application for VAWA cancellation. Unfortunately, some clients will be removable and not eligible for any form of relief, yet may have very sympathetic cases. For example, suppose your client is the abused spouse of an LPR from whom she was divorced two and a half years ago, but she has not filed a self-petition and Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (holding that an immigration judge may administratively close a case, regardless of the objection of one of the parties, and setting out factors to consider in deciding a request for administrative closure); Matter of W-Y-U-, 27 I&N Dec. 17, 20 (BIA 2017) (clarifying that the primary consideration for an immigration judge in determining whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. In considering administrative closure, an immigration judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion). 13 Matter of Avetisyan, 25 I&N Dec. at 695, n. 5. 14 Brian M. O’Leary, Chief Imm. Judge, Executive Office for Immigration Review, “Operating Policies and Procedures Memorandum 13-01: Continuances and Administrative Closure, March 7, 2013, www.justice.gov/eoir/efoia/ocij/oppm13/13-01.pdf; see also Brian M. O’Leary, “Operating Policies and Procedures Memorandum 15-01: Hearing Procedures for Cases Covered by New DHS Priorities and Initiatives, April 6, 2015, www.justice.gov/eoir/pages/attachments/2015/04/07/15-01.pdf.

Chapter 10

12

10-4

Tab Position 1

Immigrant Legal Resource Center March 2017

does not have the three years of physical presence required for the relief of VAWA cancellation of removal. Perhaps the client appears eligible for U nonimmigrant status visa based on the abuse, but cannot obtain the required law enforcement certification. Assuming that the client is removable and not eligible for any form of relief from removal, is there anything to be done for her if she is placed in removal proceedings?

Tab Position 1

VAWA Manual March 2017

Prosecutorial discretion may be an option for clients in these sorts of situations. While not a formal status, prosecutorial discretion reflects a decision by ICE that it will not institute or will not continue with removal proceedings or physical removal. On February 20, 2017, however, DHS Secretary Kelly issued a guidance memorandum revoking a series of DHS memoranda that had set out protocols for prosecutorial discretion and factors to consider in deciding whether to grant prosecutorial discretion. 15 Nonetheless, Secretary Kelly’s memorandum indicates that prosecutorial discretion may still be available on a case-by-case basis. 16 It is almost never advisable for an individual to surrender to ICE in the hopes of receiving prosecutorial discretion. However, for individuals who are already in removal proceedings, there is nothing to be lost in exploring the possibility of prosecutorial discretion with ICE counsel. PRACTICE POINTER: Practicing before the Immigration Court. When practicing before the immigration court, advocates must become familiar with three sets of rules, in addition to the Immigration and Nationality Act (INA) and the regulations implementing the INA. These are the federal regulations governing the immigration courts and immigration judges, 17 EOIR’s Immigration Court Practice Manual, 18 and the local rules of the particular immigration court in which a case is pending. These rules set out required procedures, forms, and deadlines for appearances before the court, filing of documents, applications, and motions with the court, and the process of removal and other proceedings before the court. John Kelly, Secretary, Department of Homeland Security, “Enforcement of the Immigration Laws to Serve the National Interest” (Feb. 20, 2017, available at www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Laws-toServe-the-National-Interest.pdf. Secretary Kelly’s memorandum rescinded, with limited exceptions, all “existing conflicting directives, memoranda, or field guidance regarding the enforcement of our immigration laws and priorities for removal.” Kelly Enforcement Memo, at 2. Secretary Kelly specifically rescinded a November 20, 2014, memorandum from then DHS Secretary Jeh Charles Johnson, entitled “Policies for the apprehension, Detention and Removal of undocumented immigrations.” Secretary Johnson’s memorandum had, in turn, rescinded prior guidance on prosecutorial discretion, including the following: John Morton, Director, U.S. ICE, Memorandum re “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,” June 17, 2011, www.ice.gov/doclib/securecommunities/pdf/prosecutorial-discretion-memo.pdf; John Morton, Director, U.S. ICE, Memorandum re “Prosecutorial Discretion; Certain Victims, Witnesses, and Plaintiffs,” June 17, 2011, www.ice.gov/doclib/foia/prosecutorial-discretion/certain-victims-witnesses-plaintiffs.pdf; Peter S. Vincent, Principal Legal Advisor, U.S. ICE, Memorandum re “Case-by-Case Review of Incoming and Certain Pending Cases,” Nov. 17, 2011, www.ice.gov/doclib/foia/prosecutorial-discretion/case-by-case-reviewincoming-certain-pending-cases-memorandum.pdf. 16 Kelly Enforcement memo, supra n. 22, at 4. 17 8 CFR § 1003.12-47. 18 Available on-line at www.justice.gov/eoir/office-chief-immigration-judge-0. 15

Chapter 10

10-5

§ 10.4 The Process of Removal Proceedings Removal proceedings under INA § 240 commence when ICE files the charging document, known as a Notice to Appear (NTA), on Form I-862, with the immigration court. 19 The NTA either gives the date, time, and location of the first hearing in the proceedings or states that the noncitizen (called “respondent” in these proceedings) will be notified of the date, time, and place of the hearing. 20 It also advises the respondent of the nature of the proceedings and the charges of removability asserted by ICE. 21 The charges will be either deportation grounds under INA § 237 (if the respondent was admitted into the United States) or inadmissibility grounds under INA § 212 (if the respondent is present in the United States or at its borders, but has not been admitted). In order to know what information the government has concerning the respondent, the advocate should use the available means to conduct discovery. We discuss these discovery means in the following section of this chapter. At the first hearing, called a “master calendar hearing,” the immigration judge will ask the respondent to plead to the factual allegations and legal charges of removability listed in the Notice to Appear. 22 If the respondent admits the allegations and concedes the charge, the immigration judge will find that the respondent is removable as charged. 23 If the respondent denies the allegations and charge, the immigration judge will normally set the matter for a longer hearing, called an “individual calendar hearing” or a “merits hearing” to determine inadmissibility or deportability. 24 At that hearing, the party with the burden of proof will present evidence to establish whether the respondent is removable. If the respondent is charged with being inadmissible, then the respondent bears the initial burden of proof to show that he or she is admissible. 25 There is an exception for returning lawful permanent residents, however. For those individuals, even if charged with inadmissibility, the Department of Homeland Security must prove that there are grounds for treating them as applicants for admission. 26 If the respondent is charged with being deportable, ICE bears the initial burden of proof. 27 We concentrate in this chapter on forms of relief from removal, which the respondent requests only after having been found removable. The advocate must not overlook the importance of the initial determination of removability, however. If the respondent successfully defends against the charges of removability, then the proceedings are terminated, and the respondent either returns to his or her previous status or is free to seek any available relief from USCIS. An in-depth study of defending respondents in removal proceedings is beyond the scope of this manual, 28 but, in brief, there are a number of possible ways to defend against the charges of removability. INA § 239(a)(1); 8 CFR § 1239.1. Id. 21 INA § 239(a)(1). 22 8 CFR § 1240.10(c). 23 INA § 240(d); 8 CFR § 1240.10(c). 24 8 CFR § 240.10(d). 25 INA § 240(c)(2). 26 Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). 27 INA § 240(c)(3). 28 See note 3, supra, for suggested manuals on representation of respondents in removal proceedings. 19

Chapter 10

20

10-6

Tab Position 1

Immigrant Legal Resource Center March 2017

For example, at least in removal proceedings based on deportability, where ICE has the burden of proof, the respondent may be able to successfully argue that the evidence ICE presented does not establish removability. It may also be possible to suppress or exclude evidence that has been wrongfully obtained or would be fundamentally unfair, so that ICE is prohibited from presenting that evidence. 29 In addition, it may be possible to dismiss the NTA for non-compliance with the requirements of the Immigration and Nationality Act. The Department of Justice, the Department of Homeland Security, and the Secretary of State are prohibited from making adverse determinations on admissibility or deportability of immigrants using information furnished solely by abusive family members or, for T and U visa applicants, information furnished by the perpetrator of the trafficking or other crime, unless the immigrant has been convicted of certain crimes. 30 If ICE has issued an NTA based on this sort of prohibited information, the respondent may be able to move to dismiss the Notice to Appear and terminate the proceedings.

Tab Position 1

VAWA Manual March 2017

Thus, while it is somewhat common for respondents to admit the factual allegations and concede the charges in the NTA, concentrating their energies on the relief from removal stage of the proceedings, a respondent in removal proceedings should never take this step lightly. Advocates must carefully scrutinize the NTA, assess ICE’s evidence and any rebuttal evidence available to the respondent, evaluate the immigration consequences of the removal ground urged against the respondent, and most importantly, advise the client of this evaluation so that the client may make an informed decision on how to proceed in the case. PRACTICE POINTER: Confidentiality Provisions and Requirement of ICE Certification of Compliance under 8 USC § 1367. 8 USC § 1367 contains two major requirements to protect information concerning abused immigrants. First, immigration authorities 31 may not permit information pertaining to a beneficiary of a VAWA self-petition, application for VAWA cancellation, or application for T or U visa to be used by or disclosed to anyone other than sworn department or agency officers or employees and then only for legitimate department, bureau, or agency purposes. Second, immigration authorities may not make an adverse determination of admissibility or deportability using information furnished solely by certain individuals, unless the noncitizen has been convicted of a crime listed in the criminal inadmissibility or deportation grounds. The specified individuals are abusive spouses and parents; members of the spouse’s or parent’s family who reside in the same household as the immigrant and have abused the immigrant or the immigrant’s child; the perpetrator of the crime or trafficker against a VAWA self-petitioner, a U or T visa applicant; a certified victim of trafficking in persons; or an applicant for VAWA suspension or cancellation. According to ICE, 8 USC § 1367 does not prohibit ICE from arresting or issuing NTAs to immigrants who have applied for benefits under VAWA or the

For more information on suppressing evidence in removal proceedings, see the ILRC manual, Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings available at www.ilrc.org/publications/motions-to-suppress. 30 8 USC § 1367(a). 31 Section 1367’s requirements are imposed specifically on the Attorney General and officials and employees of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, and officials and employees of the Department of Homeland Security or Department of State, including their agencies or bureaus. 8 USC § 1367(a). 29

Chapter 10

10-7

T or U nonimmigrant categories, as long as ICE independently verifies information provided by any prohibited individual. 32 In addition, where an enforcement action leading to a removal proceeding was taken against an immigrant at certain locations, the NTA must include a statement that the provisions of 8 USC § 1367 [IIRIRA § 384] have been complied with. 33 The locations referred to are domestic violence shelters; rape crisis centers; supervised visitation centers; family justice centers; victims services providers; community-based organizations; and courthouses, if the immigrant appears in connection with a protection order case, child custody case, or other civil or criminal case relating to domestic violence, sexual assault, trafficking, or stalking in which the immigrant has been battered or subjected to extreme cruelty or if the immigrant is a victim of trafficking or certain crimes. 34 Advocates contend that, if this certificate of compliance is not contained in an NTA, the respondent may move to strike the NTA. The provision applies to apprehensions occurring on or after February 5, 2006. 35 If removability is not established, the proceeding is terminated. 36 If removability is established, the proceeding will move into a second stage, that is, a determination of whether there is any relief from removal for which the respondent is eligible. 37 The respondent should state all of the forms of relief from removal for which he or she will apply, and the immigration judge will set a date for the filing of the application, as well as a date for another individual calendar hearing, at which the respondent must present evidence to establish his or her eligibility for the applied-for relief. The respondent bears the burden of proof in applications for relief from removal. 38 In this manual, we concentrate on two forms of relief from removal that are particularly applicable to VAWA self-petitioners—adjustment of status, based on an approved VAWA selfpetition, and VAWA cancellation of removal. There are a number of other forms of relief, however. These include cancellation of removal for permanent residents, 39 “regular” (nonVAWA) cancellation of removal for non-LPRs, 40 asylum, 41 withholding of removal, 42 relief under the Convention Against Torture, 43 registry, 44 and voluntary departure. 45 We discuss voluntary departure at the end of this chapter. See John P. Torres, Office of Detention and Removal Operations, U.S. Immigration and Customs Enforcement, re Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005 (Jan. 22, 2007), at 3, www.ice.gov/doclib/foia/prosecutorial-discretion/vawa2005.pdf. This memorandum is found at Appendix 10-G of this manual. 33 INA § 239(e)(1); 8 USC § 1229(e). 34 INA § 239(e)(2). 35 See John P. Torres, supra n. 44, at 4. 36 INA § 240(c)(1). 37 8 CFR § 1240.11. 38 INA § 240(c)(4). 39 INA § 240A(a).(a)(1). 40 INA § 240A(b)(1).(b)(1). 41 INA § 208. 42 INA § 241(b)(3). 43 8 CFR §§ 1208.16, 1208.17. 44 INA § 249.

Chapter 10

32

10-8

Tab Position 1

Immigrant Legal Resource Center March 2017

PRACTICE POINTER: Who Has Jurisdiction over Relief from Removal? An initial question is who—USCIS or the immigration judge—is authorized to adjudicate the applications for relief? USCIS and the immigration judge each have exclusive authority over certain applications, while other applications may be decided by either USCIS or the immigration judge. In regard to exclusive authority, only USCIS may adjudicate visa petitions, including VAWA self-petitions, applications for T and U visas, and initial applications to remove conditions on residence. Thus, a respondent in removal proceedings must still file a VAWA self-petition with the Vermont Service Center. On the other hand, only the immigration judge may decide an application for VAWA cancellation of removal, withholding of removal, and relief under the Convention against Torture.

Tab Position 1

VAWA Manual March 2017

Other forms of relief may initially be applied for before USCIS, unless removal proceedings have commenced. These include asylum, adjustment of status, and relief under the Nicaraguan and Central American Relief Act (NACARA), the Haitian Refugee and Immigrant Fairness Act (HRIFA), and the Cuban Adjustment Act (CAA). If USCIS denies these applications, then the immigration judge may review the denial. If removal proceedings are commenced before USCIS grants relief, however, then the application must be made to the immigration judge, unless the immigration judge terminates or administratively closes the removal proceedings to allow continued processing before USCIS. In addition, the immigration judge may review USCIS denials of petitions to remove conditions for persons in conditional resident status. 46 At the individual calendar hearing on the merits of the applications for relief, the respondent may present his or her own testimony, the testimony of witnesses, expert testimony, and documentary evidence to support the claim for relief. The ICE counsel may cross-examine the respondent’s witnesses and may present testimony and other evidence on behalf of the government. The respondent may cross-examine any government witnesses and may object to evidence presented by the government. Following the individual calendar hearing, or merits hearing, the immigration judge will render a decision. Both the respondent and the government may appeal the decision by filing a notice of appeal to the BIA within thirty calendar days following the immigration judge’s decision. 47 If the BIA rules against the respondent, the respondent may file a petition for review of the Board’s decision in the United States Court of Appeals for the judicial circuit in which the removal proceedings took place. 48 The petition for review must be filed no later than thirty days following the date of the BIA decision. 49 § 10.5 Discovery in Removal Proceedings The advocate will need to collect information from various sources in order to accurately analyze the client’s case for the purpose of both removability and eligibility for relief from removal. These sources are the Department of Homeland Security’s “A-file,” the immigration court’s

INA § 240B. INA § 216(c)(3)(D). 47 8 CFR § 1003.38. 48 INA § 242(b)(2). 49 INA § 242(b)(1). 45 46

Chapter 10

10-9

record of proceedings (ROP), and, for clients with criminal records, the FBI and the court or courts in which the criminal proceedings were heard and reviewed. The DHS A-file will contain all of the Department’s records on the respondent. These might refer to prior immigration violations or removal proceedings and will likely include a Form I-213, Record of Deportable Alien, ICE’s report of its investigation of the case. The file may also include a statement by the client. If the client has a criminal record, the file will likely include copies of the documents from the arrest and criminal court proceedings. The most common way of obtaining the A-file is through a Freedom of Information Act request. However, the advocate may also be able to obtain the A-file contents through a motion for discovery pursuant to the Ninth Circuit’s decision in Dent v. Holder. 50 The advocate may obtain copies of the client’s immigration records through a Freedom of Information Act/Privacy Act (FOIA) request. 51 An initial question in regards to FOIA is to which DHS agency the request should be sent. Although DHS is working on digitizing its records, that project does not appear to be complete as of this writing (March 2017). With the division of immigration functions among several Department of Homeland Security (DHS) agencies, a client’s A-file may be with U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), or Customs and Border Protection (CBP), or may even be with the DHS Office of Biometric Identity Management (formerly US-VISIT) or the Transportation Security Administration. DHS regulations provide that a FOIA request should be made to the component agency within DHS that maintains the records. 52 A list of the FOIA officers for USCIS, ICE, and CBP, as well as the DHS’s FOIA Contact Officer, is available at www.dhs.gov/xfoia/Copy_of_editorial_0318.shtm. In addition, USCIS, ICE, and CBP each maintain FOIA websites that provide instructions on how to file FOIA requests. Those websites are: USCIS: www.uscis.gov/about-us/freedom-information-and-privacy-act-foia/uscisfreedom-information-act-and-privacy-act. USCIS provides three tracks for FOIA requests. Track I is for simple requests of only one or a few documents and can be responded to quickly. Track II is for more complex inquiries that will require additional time to search the records. Track III is for requests for individuals who are currently in removal proceedings and need a quick response. Requesters must submit a notice to Appear or hearing notice for Track III requests, and that track does not apply to cases in which removal proceedings have been completed or cases pending before the BIA. The website posts average processing times and provides a feature for checking the status of the request on-line. ICE: www.ice.gov/foia/overview. ICE provides an on-line request option, and it is possible to check the status of the request online.

Chapter 10

CBP: www.cbp.gov/site-policy-notices/foia/faq-foia. The website provides both an online option, at https://foiaonline.regulations.gov/foia/action/public/home, and a mailing option, and it is possible to check the status of the request on-line. 627 F.3d 365 (9th Cir. 2010). 5 USC § 552. For helpful explanations of the FOIA application process, see www.dhs.gov/steps-file-foia. 52 6 CFR § 5.3(a)(1). 50 51

10-10

Tab Position 1

Immigrant Legal Resource Center March 2017

If the advocate is unsure which DHS component maintains the records in question, then the advocate may send the request to the DHS’s FOIA Contact Officer. This is also the appropriate place to send a FOIA request for the Office of Biometric Identity Management. The request can be done by mail, to Privacy Office, U.S. Department of Homeland Security, 245 Murray Lane SW STOP-0655, or on-line, at www.dhs.gov/dhs-foia-request-submission-form, or via fax to (202) 343-4011. The Privacy Office will forward the request to the DHS component(s) that it determines to be most likely to maintain the records that are sought. There is even a mobile app for filing the FOIA request to DHS. The American Immigration Council provides a very helpful practice advisory, FOIA for Immigration Lawyers (February 2017), at www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/practice_advisory_foi a_for_immigration_lawyers.pdf.

Tab Position 1

VAWA Manual March 2017

While it can take some time to receive a response to a FOIA request, there are some things the advocate can do to increase the speed of the response. For one thing, DHS and its agencies will generally be able to respond more quickly to specific information. While the advocate will often need a full copy of the client’s A-file, if the advocate can limit the request, that may speed up the response. DHS agencies are authorized to contact the requester to ask whether the request could be made more specific. In addition, advocates can use the special tracks listed above for USCIS FOIA requests. The advocate may also need to request information from the Department of State concerning, for example, applications for tourist or other types of visa, from the Department of State. The Department maintains a FOIA website at https://foia.state.gov/Request/Submit.aspx. Advocates should check the specific FOIA websites of the DHS components, as well as the instructions to Form G-639, Freedom of Information Act/Privacy Act Request, to ensure that the FOIA request includes all required documents. The different agencies change their FOIA procedures from time to time, so that it is necessary to check the websites frequently. In general, the FOIA request will consist of: •

Form G-639, or a letter including the required information (“Notice to Appear” track requests appear to require Form G-639);

•

A statement (1) verifying the requester’s (the client’s) identity and (2) certifying the requester’s (the client’s) agreement that his or her records may be released to the advocate. 53 This must contain the client’s full name, current address, and date and place of birth. It must be signed by the client and either notarized or, in lieu of notarization, submitted under penalty of perjury pursuant to 28 USC § 1726. 54

•

Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.

PRACTICE POINTER: Place of Birth on Form G-639. Providing the applicant’s place of birth, as requested in Form G-639, may provide evidence of alienage for purposes of removal proceedings. Thus, practitioners advise using language such as the following in response to the question for place of birth: “ICE asserts that I was born in X.”

54

6 CFR § 5.21(d) and (f). Id. 10-11

Chapter 10

53

For minors, a verification of guardianship must also be submitted. 55 For “Notice to Appear” track requests, the request should also include a letter asking that the request be placed on that track and the required document to demonstrate that the requester is currently in removal proceedings. A FOIA request is considered to be an agreement to pay fees up to $25.00, unless the requester seeks a fee waiver. 56 DHS’s policy is not to charge when assessed fees are under $14.00, however. 57 To facilitate processing for FOIA requests sent by mail, advocates recommend marking the outside of the envelope and the FOIA request itself with FREEDOM OF INFORMATION ACT REQUEST in red. If the “Notice to Appear” track is requested, that should also be marked in red on the envelope and the application itself. After receipt of the FOIA request, the agency will send an acknowledgment of the request, with a reference number. Once the processing is completed, the agency will send a copy of the requested documents, often on CD-ROM or a notification of how to access the information on-line. Some pages may be omitted under security or privacy exceptions, and some pages may be redacted to omit certain information. If there are security or privacy exceptions that preclude providing a copy of the file, the agency will notify the requester. The requester may appeal the decision not to provide a copy or the decision to omit or redact portions of the file. The appeal must be to the Appeals Officer of the DHS component from which the information was sought, and must be postmarked or transmitted within 90 days of the component’s response. 58 Instructions for determining the appropriate officer to whom the appeal should be submitted are provided at 6 CFR § 5.8(a)(1). In addition to filing a FOIA request, advocates within the Ninth Circuit may consider filing a motion for discovery under Dent v. Holder. 59 There, the United States Court of Appeals for the Ninth Circuit found that 8 USC § 1229(c)(2)(B) 60 was a mandatory access law that requires the government to give a respondent in removal proceedings access to any visa or document pertaining to the individual’s admission or presence in the United States. The right to access is not conditioned on the filing of a FOIA request or even on the respondent’s request for documents. The American Immigration Council provides a helpful practice advisory on filing discovery motions under Dent v. Holder. 61 The EOIR regulations also provide a limited means of discovery. Under those regulations, the immigration judge has authority to order depositions of witnesses who are not “reasonably

6 CFR § 5.21(e). 6 CFR § 5.3(c). 57 6 CFR § 5.11(d)(4), (5). 58 6 CFR § 5.8(a)(1). 59 627 F.3d 365 (9th Cir. 2010). 60 8 USC § 1229(c)(2)(B) provides that, in meeting the immigrant’s burden of proof, “the alien shall have access to the alien's visa or other entry document, if any, and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien's admission or presence in the United States.” 61 See www.legalactioncenter.org/sites/default/files/dent_practice_advisory_6-8-12.pdf. 55

Chapter 10

56

10-12

Tab Position 1

Immigrant Legal Resource Center March 2017

available” at the time and place of the hearing and whose testimony is essential. 62 The regulations also give the immigration judge authority to issue subpoenas requiring the attendance of witnesses and subpoenas duces tecum for the production of books, papers, and other documentary evidence. In an application for a subpoena or subpoena duces tecum, the applicant must state in writing or at the proceeding what he or she expects to prove by the witnesses or documentary evidence, and show affirmatively that he or she has made diligent effort without success to produce the same. 63 Filing a motion for the immigration judge’s issuance of a subpoena duces tecum for documents can be especially important given the long delays in getting documents in response to FOIA requests.

Tab Position 1

VAWA Manual March 2017

The advocate must also review the Record of Proceedings maintained by the immigration court on the client’s case. For cases currently before the immigration court, the advocate need not file a FOIA/PA request, but instead will be allowed to review the file upon filing an EOIR-28 (Notice of Appearance as Counsel of Record) with the immigration court. 64 Each immigration court has its own process for allowing review of the Record of Proceedings, and the advocate should check the local immigration court rules and call the court to ascertain the process. The Executive Office for Immigration Review does, however, provide instructions on filing a FOIA request with the EOIR, 65 should that be needed. PRACTICE POINTER: Filing Applications in Removal Proceeding. In April 2005, The Executive Office for Immigration Review (EOIR) issued special instructions for filing applications for asylum, withholding of removal, adjustment of status, cancellation of removal, suspension of deportation, and certain waivers of inadmissibility, among other types of relief, before the immigration judge. This procedure is designed to simplify the process for paying filing fees and obtaining fingerprints, photographs, and background checks for applications in removal proceedings. There are two sets of instructions—one for applications for asylum and withholding, and one for the remaining forms of relief. 66 For applications for adjustment of status, cancellation of removal, suspension of deportation, and waivers of inadmissibility such as the I-601 waivers discussed in Chapter 7, the applicant must file a complete copy of any such application(s) with the immigration judge and must serve a copy of this packet to ICE. Additionally, before the immigration judge can adjudicate the application, the applicant must send the following five items to the USCIS Texas Service Center: 1. A clear copy of the entire application form(s) you are filing with the immigration court (do not send any attachments, but only send the form); 2. The appropriate application fee, or the immigration judge’s order granting your fee waiver; 8 CFR § 1003.35 (a). 8 CFR § 1003.35(b). 64 Immigration Court Practice Manual, §§ 1.6(c), 12.2(a). 65 The instructions are available on-line at www.justice.gov/eoir/foia-facts. 66 See the “Instructions for Submitting Certain Applications in Immigration Court and for Providing Biometric and Biographic Information to U.S. Citizenship and Immigration Services,” last revised on September 5, 2013, www.uscis.gov/sites/default/files/files/article/PreOrderInstr.pdf, and attached as Appendix 10-F. It is also always a good idea to check the USCIS website for any new revisions of the form. 62 63

Chapter 10

10-13

3. 4. 5.

The biometrics fee or the immigration judge’s order granting a fee waiver; A copy of Form EOIR 28; Form G-28 (to allow the Service Center to speak with counsel should that be necessary); and 6. A copy of the instructions themselves. The Texas Service Center will then send the applicant a notice with a receipt number and instructions to appear for collection of biometrics. USCIS will provide the applicant with a notice showing that the applicant has complied with the instructions, which the applicant must then file with the immigration court within the time specified by the court. Applicants who cannot pay the filing fees for applications for removal may request a fee waiver from the immigration court. The applicant should file a written request for waiver of the fees, accompanied by an affidavit or unsworn declaration made pursuant to 28 USC § 1746. The affidavit or declaration must show that the person is incapable of paying the fee because he or she is indigent. 67 Some immigration courts, such as the San Francisco court, have their own fee waiver request form. The order granting the fee waive must be sent to the Texas Service Center with the rest of the items on the list provided above. § 10.6 Motions to Reopen Removal Proceedings If a final administrative order of removal or deportation has been issued, 68 then the respondent must file a motion to reopen the proceedings in order to apply for relief from removal. 69 Example: Winston is a citizen of England. He entered the United States on a student visa, but dropped out of school and began working. He was placed in removal proceedings several years ago and received a final order of deportation. He appealed to the BIA, which upheld the immigration judge’s deportation order. Winston did not leave and, two years ago, met and married Rebecca, a U.S. citizen. Rebecca was abusive, and Winston filed a VAWA self-petition, which was granted by the Vermont Service Center. Winston cannot apply for adjustment of status with USCIS. Instead, he must file a motion to reopen his removal proceedings for the purpose of applying for adjustment as a form of relief from removal. If Winston had never been in removal proceedings, however, he would be able to apply for adjustment by filing the application with USCIS. PRACTICE POINTER: Exception for Applicants for U and T Visas. There are special provisions for applicants for U and for T visas who have been in removal proceedings. For a U visa applicant with a final order issued by DHS, such as an expedited removal order, approval of the petition for U nonimmigrant status cancels the expedited removal order by operation of law as of the date of the grant. For removal orders issued by the immigration judge or BIA, however, the beneficiary must seek cancellation of the order by filing a motion to reopen 8 CFR § 3.24; Immigration Court Practice Manual, § 3.4(d)(1). An administrative order becomes final upon a determination by the BIA or where the time to seek review with the BIA has lapsed. INA § 101(a)(47). 69 INA § 240(c)(6) (motions to reopen); 8 CFR §§ 1003.2 (motions to reopen before the BIA) and 1003.23 (motions to reopen before the immigration court). 67

Chapter 10

68

10-14

Tab Position 1

Immigrant Legal Resource Center March 2017

and terminate the proceedings. DHS counsel may agree, as a matter of discretion, to join in the motion, to overcome the time and numerical limitations for motions to reopen. 70 Procedures for T visa applicants differ from those for U visa applicants. For T visa applicants, a final order of removal is deemed canceled by operation of law as of the date the T visa application is approved. 71 Thus, there does not seem to be any need to file a motion to reopen for T visa beneficiaries. In addition, while there is no automatic stay upon filing the application for a T visa, if USCIS determines that a T visa application is “bona fide,” a final order of removal, deportation, or exclusion will be automatically stayed while the application is pending. 72

Tab Position 1

VAWA Manual March 2017

The motion to reopen is filed with the last administrative body to have jurisdiction over the proceedings. 73 This would be either the immigration court or, if the person appealed the immigration court’s decision, the BIA. There are limitations on the timing and number of motions to reopen filed with the immigration court and BIA, but those limitations are relaxed for VAWA self-petitioners. 74 In general, a motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal, 75 and an individual may file only one motion to reopen. 76 There is a special provision, however, for abused immigrants seeking to reopen proceedings to apply for VAWA adjustment or for VAWA cancellation of removal. 77 Under that provision, applicants may file one additional motion to reopen for the purpose of applying for adjustment of status based upon a VAWA selfpetition or VAWA cancellation of removal. 78 The motion must be filed within one year after the final order of removal, but even this time limit may be waived for an individual who demonstrates “extraordinary circumstances or extreme hardship to the alien’s child.” 79 The VAWA 2005 amendment to the reopening provision resolved a serious problem, because the pre-VAWA 2005 the reopening provision allowed an extended period for filing the motion only in cases where the immigrant had been ordered removed in absentia and therefore did not provide relief to a large number of self-petitioners. 80 For a discussion on how to handle orders of removal in absentia, please see § 10.8 below. VAWA 2005 also added the important protection of an automatic stay of removal upon filing of a motion to reopen. 81 Under that provision, filing a motion to reopen with an accompanying 8 CFR § 214.14(c)(5)(i). 8 CFR § 214.11(d)(9). 72 Id. 73 8 CFR §§ 1003.2(a) (motions to reopen before the BIA), 1003.23(b) (motions to reopen before the immigration court). 74 INA § 240(c)(6). 75 INA § 240(c)(6)(C). 76 INA § 240(c)(6)(A). 77 We will discuss VAWA cancellation of removal in Chapter 11 of this manual. 78 § 825(a), Violence against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Pub. L. 109-162, 119 Stat. 2960, amending INA § 240(c)(7). 79 INA § 240(c)(7)(C)(iv). 80 The INA provides separate exceptions to the ordinary 90-day deadline for filing motions to reopen for asylum applicants, INA § 240(C)(7)(c)(ii), and persons found removable in absentia, INA § 240(b)(5)(C). 81 INA § 240(c)(7)(C)(iv). 70 71

Chapter 10

10-15

application for VAWA adjustment or VAWA cancellation stays removal of “qualified aliens” pending final disposition of the motion, including all appeals. 8 USC § 1641(c)(1)(B) defines “qualified alien” as someone who has an approved VAWA self-petition, a pending VAWA selfpetition setting forth a prima facie case for eligibility, an approved application for VAWA suspension of deportation or VAWA cancellation of removal, or a pending suspension or cancellation application that sets forth a prima facie case for eligibility. See Appendices 10-A, 10-B, 10-C, 10-D for sample motions to reopen. PRACTICE POINTER: Documenting the Automatic Stay of Removal upon Filing a Motion to Reopen. Although the VAWA 2005 stay in automatic, the client will need some documentation of it in the event he or she comes into contact with ICE. The advocate should include in the motion to reopen a specific reference to the INA § 240(c)(7)(C)(iv) automatic stay and attach evidence that the applicant is a “qualified alien” under 8 USC § 1641(c)(1)(B). This will normally be a copy of the approval notice for a VAWA self-petition, the self-petition itself (with a receipt for filing or mail receipt), or an application for VAWA cancellation or removal (also with evidence of having been filed). The advocate may also want to request that the Board or immigration court include a reference to the stay in an order granting the motion to reopen. While the motion is pending, provide the client with a copy of the motion to reopen, evidence of eligibility as a “qualified alien,” and evidence of having mailed or filed the motion, together with a letter that the client can show to ICE should the client come into contact with ICE, explaining the stay provision and why the client is qualified. Also instruct the client to call you or to have someone else call you immediately if ICE makes any attempt to remove him or her. In addition, VAWA 2005 clarified that there is no deadline for filing motions to reopen deportation or exclusion proceedings to apply for VAWA adjustment or VAWA suspension of deportation. 82 The automatic stay provisions described above for VAWA cancellation applications do not appear to apply to applications to reopen deportation or exclusion proceedings, and advocates should include a motion for stay of deportation or exclusion with motions to reopen in those cases. Even with the special VAWA 2005 reopening provision, some people may fall outside the applicable time and number limits. However, they may be able to obtain the agreement of ICE trial counsel to join in a motion to reopen. A jointly filed motion to reopen creates an exception to the time and number restrictions. 83 Legacy INS issued two guidance memoranda pertaining to joint motions to reopen removal proceedings. 84 In the second of those memoranda, the INS General Counsel states that the INS (and now presumably ICE) may join in a motion to reopen (or a motion to the BIA to remand) for consideration of adjustment of status if adjustment was not available to the respondent at the former hearing, the respondent is statutorily eligible for adjustment, and the respondent merits a favorable exercise of discretion. 85 As mentioned earlier, VAWA 2005, § 825. 8 CFR § 1003.2(c)(3)(iii). 84 Office of the General Counsel, Re Motions to Reopen Policy REVISED (Dec. 23, 1997), and Bo Cooper, General Counsel, Re: Motions to Reopen for Consideration of Adjustment of Status (May 17, 2001), 82

Chapter 10

83

www.asistahelp.org/documents/resources/CIS_memo_on_M_to_R_for_adjustment_6CB73CEEEFCC6.pdf. 85

Bo Cooper, supra note 94 at 1.

10-16

Tab Position 1

Immigrant Legal Resource Center March 2017

in § 10.3 of this chapter, joining in motions to reopen is one form of prosecutorial discretion available to ICE. If ICE will not join in the motion to reopen, the respondent may request that the immigration court or the BIA reopen the case sua sponte, 86 although such motions are granted only rarely. 87

Tab Position 1

VAWA Manual March 2017

There are specific content requirements for the motion to reopen. It must state new facts to be provided in the reopened proceeding and must be supported by documentary evidence. The new evidence must be material and must not have been available or discoverable at the time of the earlier hearing. 88 In addition, a motion to reopen for the purposes of applying for discretionary relief will not be granted if the immigrant’s right to apply for the relief was fully explained to him or her and an opportunity to apply for the relief was afforded at the former hearing, unless the relief is sought on the basis of circumstances arising after the hearing. 89 One additional point to note is that motions to reopen are granted in the exercise of discretion. 90 PRACTICE POINTER: Contents of the Motion to Reopen. The motion to reopen packet will generally contain: •

The motion itself, which must explain why the new evidence is material and why it was not available and could not have been discovered and presented at the earlier proceeding.

•

A statement (may be contained in the motion itself) of whether the validity of the exclusion, deportation, or removal order has been or is the subject of any judicial proceeding and, if so, the nature and date of the proceeding, the court in which the proceeding took place or is pending, and the result or status of the proceeding. 91

•

Evidence through affidavits or other documentation of the new facts to be established.

•

The filing fee of $110.00 92 or a request for waiver of the filing fee. 93

•

Complete applications for all forms of relief the movant seeks, including all supporting documentation. It is a good idea to highlight important parts of the supporting documentation. In the case of adjustment of status, should the applicant need a waiver of inadmissibility, the waiver application should also be included, with its supporting documents. The movant need not pay the filing fees for the applications for relief. If the motion to reopen is granted, the movant will then pay those filing fees or request a fee waiver.

8 CFR § 1103.2(a). Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). 88 INA § 240(c)(7)(B). 89 8 CFR § 1003.2(c) (BIA); 8 CFR § 1003.23(b)(3) (Immigration Court). 90 8 CFR § 1003.2(b)(1) (BIA); 8 CFR § 1003.23 (Immigration Court). 91 8 CFR § 1003.2(e) (BIA); 8 CFR § 1003.23 (b)(1)(i) (Immigration Court). 92 The list of EOIR fees is found at 8 CFR § 1103.7. 93 For motions to reopen filed with the Board, payment is made by check or money order payable to the Executive Office for Immigration Review and sent directly to the Board with the motion. 8 CFR §1003.8(a)(4). The immigration court, however, does not accept fees, and payment must be made to the Department of Homeland Security, which returns a receipt for the payment. 8 CFR § 1003.7(a)(3). 86 87

Chapter 10

10-17

•

Evidence to establish that the movant merits the favorable exercise of discretion. This could include, for example, evidence of hardship to the movant or his or her family members if the motion to reopen were not granted, particularly USC or LPR family members, evidence of good moral character on the movant’s part, and evidence of the movant’s ties and contributions to the community. Because applications for adjustment, cancellation of removal, and asylum are also discretionary remedies, the evidence submitted in support of those applications can also be used to support a favorable exercise of discretion on the motion to reopen.

•

Proof of service on the ICE Office of the District Counsel for the district in which the case was completed before the immigration judge. 94

•

A copy of the underlying order.

•

Counsel’s notice of appearance, if movant is represented, on Form EOIR-28, if filing with the immigration court; or Form EOIR-27, if filing with the BIA.

•

A request for oral argument, should movant desire it (very infrequently granted).

It is crucial to follow the requirements set out in the Code of Federal Regulations, the BIA or Immigration Court Practice Manual, and local immigration court rules. For example, the BIA Practice Manual lists the BIA’s preferred order of documents in a motion to reopen. 95 PRACTICE POINTER: The Post-Departure Bar. By regulation, the movant’s departure from the United States after the motion to reopen or reconsider is filed constitutes a withdrawal of the motion, and persons outside the United States may not file a motion to reopen or reconsider. 96 Advocates argue, however, and some courts have agreed, that this provision is no longer valid, following changes to the immigration laws Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). 97 The American Immigration Council has provided a helpful explanation of these arguments and a listing of the decisions of federal courts on the issue. 98 § 10.7 Reinstatement of Prior Removal Order and Consequent Ineligibility for Relief Under reinstatement of removal, 99 there are two consequences for entering the United States unlawfully after a final order of removal, deportation, or exclusion. First, the old removal order is 8 CFR § 1003.2(g)(l) (BIA); 8 CFR § 1003.23(b)(ii) (Immigration Court). BIA Practice Manual, 3.3(c)(i)(B) (Motions). 96 8 CFR § 1003.2(d) (BIA); 8 CFR § 1003.23(b)(l) (Immigration Court). 97 Pub. L. No. 103-208, 110 Stat. 2009 (Sept. 30, 1996). 98 See www.americanimmigrationcouncil.org/practice_advisory/departure-bar-motions-reopen-andreconsider-legal-overview-and-related-issues. 99 INA § 241(a)(5). “Reinstatement of removal orders against aliens illegally reentering.-If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry.” 94

Chapter 10

95

10-18

Tab Position 1

Immigrant Legal Resource Center March 2017

reinstated, that is, ICE may simply remove the individual from the United States after an administrative process rather than a hearing before the immigration judge. Second, the individual is not eligible for and may not apply for any relief under the INA, with certain limited exceptions discussed below. An individual subject to reinstatement has no right to a hearing before an immigration judge, other than on the limited forms of available relief. 100

Tab Position 1

VAWA Manual March 2017

Although reinstatement remains a complex matter, there are special provisions that can provide relief to VAWA self-petitioners subject to reinstatement. The law on reinstatement continues to develop, so it is important that advocates stay up-to-date in this area. One way to keep current is to join the VAWA Updates listserv by contacting [email protected]. Determining Whether the Client Is Subject to Reinstatement Before filing an application for adjustment for a VAWA self-petitioner, the advocate must determine whether the client is subject to reinstatement. An advocate may use the following steps of inquiry for purposes of this determination: 1. Does the client have a prior final order of removal, exclusion, or deportation? This would include removal, exclusion, or deportation orders by an immigration judge, the BIA, the INS or DHS. For example, an expedited removal order by DHS may trigger reinstatement of removal. The advocate should ask the client about any prior contact with immigration and ask to see any documents the client has, but the advocate may also need to do additional investigation. If the advocate has the client’s A-number, the advocate can call the Executive Office for Immigration Review case information line, at 1-800-898-7180, to determine the current status of any proceedings before the immigration court or BIA. The advocate may also file a Freedom of Information Act request with the Executive Office for Immigration Review and with the Department of Homeland Security. An FBI report may also contain information concerning prior immigration proceedings. If the client has no prior removal, deportation, or exclusion order, then the client cannot be subject to reinstatement. 2. If the client does have a prior removal, deportation, or exclusion order, has the client departed the United States after that order? If not, the client cannot be subject to reinstatement.

Matter of W-C-B-,24 I&N Dec. 118 (BIA 2007) (upholding the immigration judge’s decision to terminate removal proceedings as improvidently begun and noting that all federal circuit courts of appeal that have considered the issue have determined that an immigrant subject to reinstatement is not entitled to a hearing before an immigration judge). 100

Chapter 10

10-19

3. If the client has a prior removal, deportation, or exclusion order and has subsequently departed the United States, has the client returned to the United States illegally? If not, the client cannot be subject to reinstatement. Moreover, if the individual is outside the United States, then the individual will not be subject to reinstatement and may proceed to obtain a visa through consular processing (see Chapter 8 of this manual). 101 PRACTICE POINTER: Filing Self-Petitions for Persons Subject to Reinstatement of Removal. While the statute provides that a noncitizen who is subject to reinstatement is ineligible for any relief under the statute (other than withholding, NACARA, and HRIFA), as a practical matter, the Vermont Service Center considers VAWA self-petitions to be adjudicative determinations that are not status-related and has approved VAWA self-petitions and granted deferred action and employment authorization regardless of whether the self-petitioner is reinstateable. 102 Advocates caution, however, that even though the Vermont Service Center has declined to report individuals for removal, there is always a risk. As always, the advocate must inform the client of the risks and benefits and allow the client to make the decision on whether to file the self-petition. Reinstatement and Adjustment for the VAWA Self-Petitioner Because the Vermont Service Center generally adjudicates self-petitions regardless of whether the self-petitioner is reinstateable, the issue of reinstatement will generally arise at the adjustment stage rather than at the self-petitioning stage. Advocates note that ICE does not always seek to reinstate. In addition, a client in removal proceedings will have already come to the attention of DHS, and applying for adjustment is unlikely to create further risk of reinstatement. Moreover, advocates report successful adjustment of VAWA self-petitioners who appear reinstateable, through use of an application for advance permission to reply for admission. We explain that method below, together with some possible alternative approaches for VAWA self-petitioners. Advance Permission to Reapply (Form I-212) as a Means to Address Reinstatement for VAWA Self-Petitioners As discussed in Chapter 7, reentering the United States unlawfully after a removal or deportation has two immigration consequences—it makes the individual inadmissible under INA § 212(a)(9)(C)(i)(II), the so-called “permanent bar” (prior removal plus subsequent unlawful reentry); and it subjects the individual to reinstatement under INA § 241(a)(5). For VAWA selfpetitioners, the permanent bar may be waived through a VAWA-specific waiver under INA § 212(a)(9)(C)(iii), which is requested on Form I-601. But even if such a waiver is granted, the person would still be subject to the reinstatement of a removal order. However, filing this Form I-601 waiver application coupled with a Form I-212 Application for Permission to Reapply for Permission to Reenter the United States after Removal or Deportation has successfully allowed VAWA self-petitioners to overcome the reinstatement of an old removal If a person is outside the United States after a prior removal, deportation or exclusion order, however, they may be subject to one of the unlawful presence bars. See Chapter 6 and Chapter 7 regarding inadmissibility and waivers. 102 Federal Bar Association Immigration Law Section CLE, Memphis, TN, May 18, 2012, Notes from the VAWA Sessions.

Chapter 10

101

10-20

Tab Position 1

Immigrant Legal Resource Center March 2017

order. The I-601 waiver will pardon the permanent bar, while a nunc pro tunc (“now for then”) I212 application for advance permission to reapply for admission may “cure” the unlawful reentry, thus removing one of the requirements for reinstatement.

Tab Position 1

VAWA Manual March 2017

PRACTICE POINTER: What to Do before Filing for Adjustment for a Reinstateable Client. Before filing an adjustment application with the strategy laid out above for a reinstateable VAWA self-petitioner, advocates should consult with Gail Pendleton, Co-Director of ASISTA, at [email protected], who is in discussion with USCIS headquarters about VAWA adjustment and reinstatement. Here is a little background. Prior to its 2004 decision in Gonzalez v. DHS, 103 the U.S. Court of Appeals for the Ninth Circuit provided a means of relief from inadmissibility under INA § 212(a)(9)(C) and reinstatement, at least for individuals residing within the Ninth Circuit. 104 This relief occurred if the adjustment applicant filed Form I-212, Application for Permission to Reapply for Admission to the United States after Deportation or Removal, with the adjustment application. By doing this, the applicant was deemed to request permission to reapply “nunc pro tunc,” that is, as if the form had been filed before the last unlawful entry. 105 If DHS granted the I212 application, then the prior order of removal was “cured,” and the individual was no longer inadmissible under INA § 212(a)(9)(C). 106 Moreover, the individual did not appear to be reinstateable if the advance permission to reapply was granted, since a successful I-212 application “cured” the unlawful reentry that was a requirement for reinstatement. The BIA, in Matter of Torres-Garcia, and some federal circuits specifically rejected the Ninth Circuit’s view on inadmissibility under INA § 212(a)(9)(C), finding that an individual may not apply for advance permission through Form I-212 until the individual has lived outside the United States for ten years. 107 In December 2007, the Ninth Circuit reversed itself, in Gonzalez v. DHS, 108 deferring to the BIA’s interpretation of INA § 212(a)(9)(C) as set forth in Matter of Torres-Garcia. Thus, an individual who is inadmissible under INA § 212(a)(9)(C) is unable to use an application for advance permission to reapply as a means of curing an old unlawful entry for INA § 212(a)(9)(C) purposes until the person has been outside the United States for ten years.

Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007). Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004). 105 8 CFR § 212.2(i)(2). (i) Retroactive approval. (1) If the alien filed Form I-212 when seeking admission at a port of entry, the approval of the Form I-212 shall be retroactive to either: (i) The date on which the alien embarked or reembarked at a place outside the United States; or (ii) The date on which the alien attempted to be admitted from foreign contiguous territory. (2) If the alien filed Form I-212 in conjunction with an application for adjustment of status under § 245 of the Act, the approval of Form I-212 shall be retroactive to the date on which the alien embarked or reembarked at a place outside the United States. 106 Id.; Acosta v. Gonzalez, 439 F.3d 550 (9th Cir. 2006). 107 Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006); Matter of Briones, 24 I&N Dec. 355 (BIA 2007). 108 Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007). 103 104

Chapter 10

10-21

However, neither Torres-Garcia nor Gonzalez v. DHS concerned VAWA self-petitioners. TorresGarcia did not mention reinstatement, but dealt only with whether the nunc pro tunc regulation would allow a grant of advance permission to “cure” inadmissibility under the permanent bar at INA § 212(a)(9)(C) earlier than ten years following the individual’s removal from the United States. VAWA self-petitioners, however, do not need this relief if they can meet the requirements for the special VAWA waiver of the permanent bar under INA § 212(a)(9)(C)(iii). There is no requirement that VAWA self-petitioners seeking that waiver wait ten years. What Does This Mean for VAWA Self-Petitioners Who Are Subject to Reinstatement? In short, Matter of Torres-Garcia and Gonzalez v. DHS do not appear to preclude use of the VAWA INA § 212(a)(9)(C)(iii) waiver of the permanent bar and the I-212 advance permission to reapply to avoid reinstatement for VAWA self-petitioners. Thus, a VAWA self-petitioner could follow the strategy described above and file Form I-601 to waive the permanent bar, coupled with Form I-212 to “cure” the unlawful reentry, removing one of the requirements for reinstatement. This reasoning is buttressed by Congress’s encouragement, in VAWA 2005, to the Secretary of Homeland Security, the Attorney General, and the Secretary of State to particularly consider exercising their discretionary authority favorably in adjudicating forms I-212 in the cases of VAWA self-petitioners and applicants for VAWA cancellation or VAWA suspension, as well as for applications for T and U nonimmigrants. 109 Other Possible Approaches for VAWA Self-Petitioners Who Are Subject to Reinstatement Reinstateable self-petitioners may also evaluate whether a U nonimmigrant visa might be a preferable alternative to adjustment of status through a VAWA self-petition. Expedited removal orders (done by INS or DHS) are deemed automatically canceled by operation of law as of the date USCIS approves the U nonimmigrant status; and individuals with exclusion, deportation, and removal orders from immigration judges may seek cancellation of the orders through motions to reopen and terminate proceedings. 110 The cancellation of a prior removal order would remove one of the requirements for reinstatement. Furthermore, inadmissibility based on prior removal orders and unlawful reentries into the United States after a removal order may be waived for U nonimmigrant applicants. Therefore, individuals subject to reinstatement may still be able to obtain U nonimmigrant status. When considering this route, advocates should consult with Gail Pendleton, Co-Director at ASISTA, at [email protected], concerning the feasibility of the application. For more information, see ILRC’s The U Visa Manual, available at www.ilrc.org/publications. Finally, DHS may issue additional guidance on reinstatement for VAWA self-petitioners at some point in the future. The Vermont Service Center has indicated that it will renew deferred action status and employment authorization indefinitely. Relief from Reinstatement outside the VAWA Self-Petitioning Context

Chapter 10

Even someone subject to reinstatement may apply for withholding of removal under INA § 241(b)(3) and for relief under the Convention against Torture. If an individual whose prior order of removal has been reinstated under this section expresses a fear of returning to the country 109 110

VAWA 2005, Pub. L. 109-162, 119 Stat. 2960, § 813(b). 8 CFR § 214.14(c)(5)(i). 10-22

Tab Position 1

Immigrant Legal Resource Center March 2017

designated in that order, the immigrant shall be immediately referred to an asylum officer for an interview to determine whether the individual has a reasonable fear of persecution or torture pursuant to 8 CFR § 1208.31. 111 As noted earlier, applicants for HRIFA and NACARA benefits are also exempt from reinstatement.

Tab Position 1

VAWA Manual March 2017

The Reinstatement Process In response to the Ninth Circuit’s decision in Gonzalez v. DHS, USCIS issued guidance on the process for adjudicating Form I-212 for persons subject to reinstatement. 112 Under that guidance, if the person’s prior removal order is reinstated either prior to filing Form I-212 or at the time Form I-212 is adjudicated, the adjudicator should deny Form I-212, and the denial order should include mention of reinstatement. The guidance also specifies that VAWA self-petitioners who have made an unlawful reentry following a prior removal order are subject to reinstatement. 113 Notably, although the language of the reinstatement statute does not seem to allow for discretion as to whether or not to reinstate, the guidance refers to cases in which “ICE chooses not to reinstate the removal order.” 114 Reinstatement proceedings begin with issuance of a Notice of Intent to Reinstate the prior removal, deportation, or exclusion order, on Form I-871. The individual may check a box on the form indicating that he or she wishes to contest the determination. If this box is checked, the individual may make a written or oral statement before the ICE or other immigration agent adjudicating the reinstatement. The agent is authorized to consider only three issues: whether individual is the subject of a prior removal or deportation order, whether the individual is in fact the person who was previously removed, and whether the immigrant unlawfully reentered the United States. 115 There are limited forms of relief for which an immigrant subject to reinstatement may apply. Thus, the immigrant may apply for withholding of removal under INA § 241(b)(3) or under the Convention against Torture. 116 In addition, persons eligible for relief under the Haitian Refugee and Immigrant Fairness Act (HRIFA) and the Nicaraguan Adjustment and Central American Relief Act (NACARA) may apply for relief under those acts, despite being subject to reinstatement. 117 The Supreme Court has determined that applying reinstatement where the illegal reentry occurred before IIRIRA’s effective date (April 1, 1997) is not impermissibly retroactive where the respondent did not take affirmative steps to adjust status or obtain other relief from removal 8 CFR § 241.8(e). Michael Aytes, Acting Assoc. Dir. for Opers., Memorandum re:, “Adjudicating Forms I-212 for Aliens Inadmissible under § 212(a)(9)(c) or Subject to Reinstatement under § 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007), May 19, 2009, www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/AD2%20Memo-Adjudicating%20Forms%20I212_051909.pdf, attached as Appendix 10-H. 113 Id. at 6, n. 5. 114 Id. at 6. 115 8 CFR § 241.8(a). 116 The United States’ obligation to withhold removal of a person to a place where he or she would be subject to torture are set out at 8 CFR § 208.16–18. 117 8 CFR § 241.8(d). 111 112

Chapter 10

10-23

before that date. 118 Later decisions by federal circuit courts have found reinstatement to be impermissibly retroactive, in violation of due process, when applied to persons who had taken such affirmative steps. 119 Reinstatement is a final order of removal, reviewable by the federal circuit courts through a petition for review. 120 Advocates should thus be ready to evaluate reinstatement orders and, where a reviewable question exists, be ready to file a petition for review within the thirty-day statutory deadline. 121 The American Immigration Council has provided helpful practice advisories on reinstatement 122 and on the Gonzalez decision and its consequences. 123 § 10.8 Treatment of Statutory Bars to Relief for VAWA Self-Petitioners In addition to reinstatement of removal, the Immigration and Nationality Act contains certain bars to specified forms of immigration relief, including adjustment of status. We will discuss two principal bars in this subsection: (1) ineligibility for relief for a specified period of time for having overstayed a grant of voluntary departure, 124 and (2) ineligibility for ten years for having been removed in absentia. 125 § 10.9 Relief for Overstaying Voluntary Departure In general, persons who fail to timely depart under an order of voluntary departure are ineligible for ten years for certain forms of relief, including adjustment of status and cancellation of removal, and may also incur civil penalties. 126 Applicants for VAWA adjustment and VAWA cancellation of removal or suspension of deportation, however, will not incur the bar on relief and civil penalties for failure to timely depart, if the abuse they suffered was at least one central reason for the overstay. 127 Even outside the VAWA context, the movant may be able to successfully argue that he or she is not subject to the voluntary departure overstay bar. This could occur, for example, if certain Fernandez-Vargas v. Gonzalez, 548 U.S. 30 (2006). Ixcot v. Holder, 646 F.3d 1202, 1209 (9th Cir. 2011); Valdez-Sanchez v. Gonzalez, 485 F.3d 1084, 109091 (10th Cir. 2007). See also American Immigration Council Practice Advisory, Reinstatement of Removal (April 29, 2013), available at www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/re instatement_of_removal_4-29-13_fin.pdf. 120 Ixcot v. Holder, 646 F.3d 1202, 1206 (9th Cir. 2011). 121 See § 10.4 of this chapter for more information on filing petitions for review with the federal circuit courts. See also, American Immigration Council Practice Advisory: How to File a Petition for Review (February 28, 2011), available at www.ca9.uscourts.gov/guides/how_to_file_petition.php. 122 American Immigration Council Practice Advisory, Reinstatement of Removal, supra n. 133. 123 American Immigration Council, Duran-Gonzalez Q & A: Considerations for § 245(i)/I-212 applicants after the Ninth Circuit Overturned Perez-Gonzalez (Dec. 19, 2007), available at www.americanimmigrationcouncil.org/sites/default/files/other_litigation_documents/duranq-a.pdf. 124 INA § 240B(d). 125 INA § 240(b)(7). 126 INA § 240B(d)(1). 127 INA S 240B(d)(2). 118

Chapter 10

119

10-24

Tab Position 1

Immigrant Legal Resource Center March 2017

required notices were not given at the time voluntary departure was granted. 128 Moreover, the period of ineligibility is ten years; persons applying for relief more than ten years after their failure to voluntarily depart should no longer be subject to the bar, even if they have never left the United States.

Tab Position 1

VAWA Manual March 2017

In addition, the Supreme Court has determined that an immigrant must be permitted an opportunity to withdraw a motion for voluntary departure, provided the request is made before expiration of the departure period. 129 The American Immigration Council provides a helpful practice advisory on voluntary departure, giving detailed information on possible defenses to imposition of the voluntary departure overstay penalties. 130 The BIA has issued two decisions in non-VAWA cases that provide some relief for individuals faced with the failure-to-voluntarily-depart bar. These may also be helpful to VAWA selfpetitioners and applicants for cancellation of removal who cannot show a connection between the failure to voluntarily depart and the abuse suffered. First, in Matter of Diaz-Ruacho, 131 the BIA found that, where the recipient of voluntary departure did not file the required voluntary departure bond so as to fully comply with the requirements of voluntary departure, he or she is not subject to the bar under INA § 240B(d)(1). Second, in Matter of Zmijewska, 132 the BIA determined that, although it had no authority to apply a general equitable exception to the penalty for failure to depart voluntarily, the respondent had not voluntarily failed to depart the United States when, through no fault of her own, she was unaware of the voluntary departure order or was physically unable to depart within the time granted. In both Matter of Diaz-Ruacho and Matter of Zmijewska, the failure to timely depart did not bar the applicant from relief. § 10.10 Relief for In Absentia Removal Persons who fail to appear for removal proceedings after receiving required notices may be removed in absentia. 133 A further consequence of an in absentia removal order is that the individual is ineligible for certain forms of relief, including adjustment of status and cancellation of removal, for ten years after the date of the final order of removal, unless he or she can show that failure to appear was because of exceptional circumstances. 134 The INA provides for rescission of in absentia orders upon a motion to reopen filed within 180 days, showing that the failure to appear was due to exceptional circumstances, 135 or through a motion to reopen filed at any time, if the individual shows that he or she did not receive notice or was in federal or state

INA S 240B(d)(3). Dada v. Mukasey, 554 U.S. 1, 5 (2008). 130 The practice advisory, entitled Voluntary Departure; Automatic Termination and the Harsh Consequences of Failing to Depart, is available at www.americanimmigrationcouncil.org/practice_advisor y/voluntary-departure-automatic-termination-and-harsh-consequences-failing-depart. 131 Matter of Diaz-Ruacho, 24 I&N Dec. 47 (BIA 2006). 132 Matter of Zmijewska, 24 I&N Dec. 87 (BIA 2007). 133 INA § 240(b)(5). 134 INA § 240(b)(7). 135 INA § 240(b)(5)(C)(i). 128 129

Chapter 10

10-25

custody and the failure to appear was not through his or her fault. 136 The American Immigration Council provides a helpful practice advisory on in absentia removal. 137 VAWA 2005 defines the term “exceptional circumstances” for purposes of a motion to reopen in absentia orders and for the purpose of eligibility for relief after an in absentia order. Under that definition, “exceptional circumstances” include battery or extreme cruelty to the immigrant or any child or parent of the immigrant, as well as serious illness of the immigrant. 138 This amendment specifically applies to failure to appear occurring before, on, or after the VAWA 2005 enactment date of January 5, 2006. 139 A sample motion to reopen following in absentia removal is attached as Appendix A.

INA § 240(b)(5)(C)(ii). American Immigration Council, “Rescinding an In Absentia Order of Removal” (March 2010), www.americanimmigrationcouncil.org/practice_advisory/rescinding-absentia-order-removal. 138 INA § 240(e)(1). 139 VAWA 2005, § 813(a). 136

Chapter 10

137

10-26

Tab Position 1

Immigrant Legal Resource Center March 2017

CHAPTER 10 OBTAINING RELIEF FOR ABUSED IMMIGRANTS IN REMOVAL PROCEEDINGS

Tab Position 1

VAWA Manual March 2017

INDEX OF APPENDICES Appendix 10-A

Sample Motion to Reopen Following In Absentia Removal

Appendix 10-B

Sample Motion to Reopen for Adjustment based on VAWA Self-Petition

Appendix 10-C

Sample Motion to Reopen for Continuance and/or Administrative Closure for VAWA I-360 Adjudication

Appendix 10-D

Sample Motion to Recalendar and Terminate Proceedings

Appendix 10-E

Sample Immigration Court Order Terminating Proceedings Without Prejudice.

Appendix 10-F

Instructions for Submitting Certain Applications in Immigration Court

Appendix 10-G

John P. Torres, Office of Detention and Removal Operations, U.S. Immigration and Customs Enforcement, re “Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005” (Jan. 22, 2007)

Appendix 10-H

Michael Aytes, Acting Assoc. Dir. for Opers., Memorandum re “Adjudicating Forms I-212 for aliens inadmissible under section 212(a)(9)(c) or Subject to Reinstatement under section 241(a)(5) of the Immigration and Nationality Act in light of Gonzalez v. DHS, 508 F.3d 1227 (9th Cir. 2007)” (May 19, 2009)

Appendix 10-I

John Morton, Asst. Sec. ICE, “Guidance Regarding the Handling of Removal Proceedings of Aliens with Pending or Approved Applications or Petitions” (August 20, 2010)

Appendix 10-J

USCIS Policy Memorandum, re “Guidance for Coordinating the Adjudication of Applications and Petitions Involving Individuals in Removal Proceedings; Revisions to the Adjudicator’s Field Manual (AFM) New Chapter 10.3(i): AFM Update AD 11-16” (February 4, 2011)

Appendix 10-K

John Kelly, Secretary of Homeland Security, Memorandum re “Enforcement of the Immigration Laws to Serve the National Interest” (Feb. 20, 2017)

Chapter 10

10-27

Chapter 10

Tab Position 1

=

Chapter 10

Appendix 10-A-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-A-2

Chapter 10

Appendix 10-A-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-A-4

Chapter 10

Appendix 10-A-5

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-B-1

Chapter 10

Appendix 10-B-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-B-3

Chapter 10

Appendix 10-B-4

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-B-5

Chapter 10

Appendix 10-B-6

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-B-7

Chapter 10

Appendix 10-B-8

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-B-9

Chapter 10

Appendix 10-B-10

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-B-11

Chapter 10

Appendix 10-B-12

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-B-13

Chapter 10

Appendix 10-C-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-C-2

Chapter 10

Appendix 10-C-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-D-1

Chapter 10

Appendix 10-D-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-D-3

Chapter 10

Appendix 10-E-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-F-1

Chapter 10

Appendix 10-F-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-F-3

Chapter 10

Appendix 10-F-4

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-G-1

Chapter 10

Appendix 10-G-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-G-3

Chapter 10

Appendix 10-G-4

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-G-5

Chapter 10

Appendix 10-H-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-H-2

Chapter 10

Appendix 10-H-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-H-4

Chapter 10

Appendix 10-H-5

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-H-6

Chapter 10

Appendix 10-H-7

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-I-1

Chapter 10

Appendix 10-I-2

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-I-3

Chapter 10

Appendix 10-J-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-J-2

Chapter 10

Appendix 10-J-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-J-4

Chapter 10

Appendix 10-K-1

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-K-2

Chapter 10

Appendix 10-K-3

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-K-4

Chapter 10

Appendix 10-K-5

Tab Position 1

VAWA Manual March 2017

Tab Position 1

Chapter 10

Immigrant Legal Resource Center March 2017

Appendix 10-K-6

CHAPTER 11 VAWA CANCELLATION OF REMOVAL

This chapter includes: § 11.1 § 11.2 § 11.3 § 11.4 § 11.5 § 11.6 § 11.7 § 11.8 § 11.9 § 11.10 § 11.11 § 11.12 § 11.13 § 11.14 § 11.15 § 11.16 § 11.17

Introduction to Cancellation of Removal ......................................................... 11-1 A Comparison of VAWA Self-Petitions with VAWA Suspension and VAWA Cancellation ........................................................................................ 11-2 The Difference between VAWA Cancellation and VAWA Suspension ......... 11-3 Persons Eligible to Apply for VAWA Cancellation of Removal or Suspension of Deportation ............................................................................... 11-4 Requirements for Cancellation of Removal or Suspension of Deportation: Overview ..................................................................................... 11-5 Establishing the Family Relationship ............................................................... 11-6 Battery or Extreme Cruelty .............................................................................. 11-8 Three Years Continuous Physical Presence ................................................... 11-11 Extreme Hardship ........................................................................................... 11-12 Ineligibility under Certain Inadmissibility and Deportability Bars ................ 11-14 Good Moral Character .................................................................................... 11-17 Discretion ....................................................................................................... 11-19 Documentation and the “Any Credible Evidence” Standard.......................... 11-20 The Contents of the Application .................................................................... 11-21 The Effect of a Grant of VAWA Suspension or Cancellation: Permanent Residence ..................................................................................... 11-26 Parole of the Child or Parent of a VAWA Suspension or Cancellation Grantee ...................................................................................... 11-27 Denials and Appeals ....................................................................................... 11-29

§ 11.1 Introduction to Cancellation of Removal The Violence Against Women Act of 1994 1 provided two principal ways for abused spouses and children of U.S. citizens and lawful permanent residents to obtain permanent resident status. The first of these two important types of relief is self-petitioning under INA § 204, which we discussed in detail in Chapters 3 and 4 of this manual. In this chapter, we will discuss the second avenue of relief—VAWA cancellation of removal 2 and its predecessor, VAWA suspension of deportation. 3

Violence against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902-1955 (hereinafter “VAWA”). INA § 240A(b)(2). 3 Former INA § 244(a)(3), repealed by IIRIRA § 208(a)(8), Division C of the Omnibus Appropriations Act of 1996 [H.R. 3610], Pub. L. No. 104-208, 110 Stat. 3009. 1 2

11-1

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

A grant of VAWA cancellation of removal or VAWA suspension of deportation cancels the deportation or removal of an applicant who would otherwise be deportable or removable and grants the applicant lawful permanent residence (often referred to as a green card). The application may be made only in proceedings in an immigration court before the immigration judge, as a form of relief from deportation or removal. 4 § 11.2 A Comparison of VAWA Self-Petitions with VAWA Suspension and VAWA Cancellation Both VAWA self-petitions and applications for VAWA cancellation or suspension lead to LPR status for the abused immigrant. In most cases, VAWA self-petitions have less onerous requirements, since a self-petitioner does not have to show the VAWA suspension/cancellation requirements of three years’ continuous presence in the United States and extreme hardship resulting from departure. Because of the wording of the VAWA cancellation statute, 5 however, some abused immigrants will be eligible only for VAWA cancellation or suspension and will not be eligible to self-petition. Here are some examples: •

Parents of abused children of USCs and LPRs who are not married to the abuser are not eligible to self-petition under VAWA, but are eligible for VAWA cancellation or suspension. 6

•

Spouses of USCs and LPRs who were divorced more than two years ago, or whose USC or LPR abusive spouse or parent lost status more than two years ago, are no longer eligible to self-petition under VAWA, but can still apply for VAWA cancellation or suspension. 7

8 CFR §§ 1240.20(b), 1240.11(a)(1). Occasionally, a client who has never been placed in removal proceedings and who is not eligible to self-petition may ask whether he or she should ask to be placed in removal proceedings, in order to be able to apply for VAWA cancellation. This is a risky and traumatic step because if the application for cancellation is not successful, the abused immigrant may be ordered removed. Therefore, it should be undertaken only when the applicant has a very strong case and has been fully advised so as to be able to make an informed decision. 5 Under INA § 240B(b)(2)(A)(i), the Attorney General may grant VAWA cancellation of removal to: cancel removal to “an alien who is inadmissible or deportable from the United States if the alien demonstrates that(i) (I) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (or is the parent of a child of a United States citizen and the child has been battered or subjected to extreme cruelty by such citizen parent); (II) the alien has been battered or subjected to extreme cruelty by a spouse or parent who is or was a lawful permanent resident (or is the parent of a child of an alien who is or was a lawful permanent resident and the child has been battered or subjected to extreme cruelty by such permanent resident parent); or (III) the alien has been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen’s or lawful permanent resident’s bigamy. 6 See Lopez-Birrueta v. Holder, 633 F.3d 1211 (9th Cir. 2011) (recognizing that non-abused non-spouses of children abused by the USC or LPR spouse are eligible to apply for VAWA cancellation). 7 Paul Virtue, INS Office of Programs, Memo: Supplemental Guidance on Battered Alien Self-Petitioning and Related Issues, May 6, 1997, www.asistahelp.org/documents/resources/Virtue_Memo_97pdf_53DC84 4

11-2

•

An individual who is eligible to self-petition or who has an approved VAWA selfpetition, but is placed in removal proceedings before his or her priority date becomes current, may be eligible for VAWA cancellation or suspension. In such a case, an approved VAWA self-petition will lend credence to the cancellation or suspension claim, but will not allow the applicant to adjust status based on the self-petition until the priority date becomes current.

•

Abused sons and daughters of USCs or LPRs who do not file the self-petition before they turn 21 or before 25, if the abuse was at least one central reason for the delay in filing, 8 are no longer eligible to self-petition, but may be eligible for VAWA cancellation or suspension.

If an applicant for VAWA cancellation (called a “respondent” in removal proceedings) is also eligible to self-petition, it is recommended that he or she file a VAWA self-petition with the Vermont Service Center, even after commencement of removal proceedings. If the respondent is an immediate relative, the immigration judge may continue the proceedings or administratively close proceedings to allow adjudication of the self-petition. Even if the applicant is not an immediate relative and will have to wait some time for a current priority date, the advocate can argue that an approved VAWA self-petition establishes many of the elements of VAWA suspension or cancellation and that the government has conceded those elements by its grant of the self-petition. The advocate may also consider asking the ICE Associate District Counsel to jointly move the immigration court to terminate the proceedings, to allow the respondent to self-petition with USCIS. If the self-petition is approved, an immediate relative self-petitioner could immediately adjust status with USCIS, and a preference category self-petitioner could obtain deferred action status until his or her priority date is current. § 11.3 The Difference between VAWA Cancellation and VAWA Suspension Suspension of deportation and cancellation of removal are essentially counterpart forms of relief. Suspension of deportation was a form of relief available in deportation proceedings, one process through which individuals were removed prior to 1997. Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 9 deportation proceedings were replaced with removal proceedings. Cancellation of removal is the counterpart in removal proceedings to suspension of deportation.

D782445.pdf, [“It is important to note, however, that some individuals who are ineligible for status pursuant to the self-petitioning provisions will be eligible for cancellation (e.g., where the marriage has been terminated.”) This memorandum is also found at Appendix 4-I. 8 Under VAWA 2005, children of USCs may file their self-petition prior to age 25, if the abuse was at least one central reason for the filing delay. The Battered Immigrant women Protection Act of 2000, div. B [Violence against Women Act of 2000], Pub. L. No. 106-386, 114 Stat. 464 (VAWA 2005), § 805(c), amending INA § 204(a)(1)(D). 9 Division C of the Omnibus Appropriations Act of 1996 [H.R. 3610], Pub. L. No. 104-208, 110 Stat. 3009 (IIRIRA). 11-3

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

There were more than one form of suspension of deportation, and there are also more than one form of cancellation of removal. Traditional suspension provided relief for certain long-term residents in deportation proceedings who could demonstrate seven years continuous physical presence, good moral character, and extreme hardship to themselves or their USC or LPR immediate family members. 10 VAWA special rule suspension offered relief from deportation under a more generous standard for the abused spouses, sons, and daughters of USCs or LPRs and for the noncitizen parents of abused children of USCs or LPRs. 11 While otherwise paralleling regular suspension, VAWA suspension required that the applicant demonstrate only three years continuous physical presence and that the immigration judge consider “any credible evidence” in determining eligibility. 12 IIRIRA replaced suspension of deportation with cancellation of removal Part B. 13 Similarly, VAWA suspension of deportation was replaced with special rule cancellation of removal for battered spouses and children of USCs and LPRs. 14 For traditional cancellation of removal, an applicant must demonstrate ten years’ continuous physical presence, good moral character, and exceptional and extremely unusual hardship to the applicant’s USC or LPR spouse, parent, or child. 15 For battered spouses and children, however, the requirements remain essentially those required for VAWA suspension of deportation. Thus, abused spouses and children must establish the following: (1) three years of physical presence in the United States, (2) good moral character during that time, (3) that they are not inadmissible under certain inadmissibility grounds or deportable under certain deportation grounds and have not been convicted of an aggravated felony, and (4) that the removal of the applicant would result in extreme hardship to the applicant, the applicant’s child, or the applicant’s parent. 16 Moreover, VAWA cancellation is granted in the exercise of discretion, so that the applicant must also convince the immigration judge that he or she merits the relief. Although VAWA cancellation of removal has replaced VAWA suspension of deportation for most applicants, suspension may still be available to persons who were placed into proceedings prior to IIRIRA’s April 1, 1997, effective date. 17 As a practical matter, however, most persons applying for VAWA suspension of deportation will have already filed those applications. § 11.4 Persons Eligible to Apply for VAWA Cancellation of Removal or Suspension of Deportation The following persons are eligible to apply for VAWA cancellation and suspension: •

Abused spouses of USCs and LPRs; 18

•

Abused sons and daughters of USCs and LPRs; 19

Former INA § 244(a), repealed by IIRIRA § 308(a)(8). INA § 244(a)(3), repealed by IIRIRA § 308(a)(8). 12 Id. 13 INA § 240A(b)(1). 14 INA § 240A(b)(2). 15 INA § 240A(b)(1). 16 INA § 240A(b)(2). 17 IIRIRA § 309(c). 18 Former INA § 244(a)(3) [suspension], INA § 240A(b)(2)(A)(i)(II & III) [cancellation]. 10 11

11-4

•

Abused “intended spouses” of USCs or LPRs. The term “intended spouse,” added by VAWA 2000, 20 means a person who believed that he or she married a USC or LPR and went through a marriage ceremony, but whose marriage is not legitimate solely because of the USC’s or LPR’s bigamy; 21

•

Non-abused parents of abused children of USCs or LPRs, even if not married to the abuser, regardless of the child’s status; 22 Example: Maria has lived in the United States with John, a lawful permanent resident, in the United States for the past four years. They have never married, but have a child, Nate, who is three years old and a USC through birth in the United States. John has abused Nate both physically and emotionally. If placed in removal proceedings, Maria may apply for cancellation of removal, even though she is not married to John and even though she has not been abused herself, because she is the mother of a child (Nate) who has been abused by a USC or LPR father (John).

Note that because the definition of “intended spouse” requires that a marriage ceremony have been performed, it does not cover common law marriages. Common law marriages may, however, be valid marriages for immigration purposes if the relationship constitutes a marriage under the law of the state where he parties are domiciled. 23 § 11.5 Requirements for Cancellation of Removal or Suspension of Deportation: Overview An applicant for VAWA cancellation of removal must establish that he or she: •

Has been battered by or suffered extreme cruelty from the USC or LPR abuser, or is the parent of a child who has suffered such abuse; 24

•

Has been continuously physically present in the United States for three years before applying; 25

•

Would suffer extreme hardship, or that his or her child or parent would suffer extreme hardship, if the applicant were removed; 26

•

Has been a person of good moral character during the period of physical presence; 27

•

Is not inadmissible under INA § 212(a)(2) [crimes] or (a)(3) [security and terrorism grounds] or deportable under INA § 237(a)(1)(G) [marriage fraud], (2) [crimes], (3)

Former INA § 244(a)(3) [suspension], INA § 240A(b)(2)(A)(i)(II & III) [cancellation]. VAWA 2000, supra n. 9. 21 INA § 240A(b)(2)(A)(i)(III). 22 Former INA § 244(a)(3) [suspension], INA § 240A(b)(2)(A)(i)(II & III) [cancellation]. 23 Matter of Garcia, 16 I&N Dec. 623 (BIA 1978). 24 INA § 240A(b)(2)(A)(i). 25 INA § 240A(b)(2)(A)(ii). 26 INA § 240A(b)(2)(A)(v). 27 INA § 240A(b)(2)(A)(iii). 19 20

11-5

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

[failure to register, falsification of documents, and false claim to U.S. citizenship], or (4) [security and terrorism grounds]; 28 •

Has not been convicted of an aggravated felony under INA § 101(a)(43); and

•

Merits a favorable exercise of discretion. 29

The requirements for VAWA suspension of deportation are essentially the same as those listed above for VAWA cancellation of removal. 30 § 11.6 Establishing the Family Relationship Only applicants who can establish the required qualifying family relationship will be eligible for VAWA cancellation of removal. Abused Spouses of USCs and LPRs An abused spouse applying for VAWA suspension or cancellation need not be currently married to the abuser. 31 Thus, neither death of the abuser nor divorce is a bar to cancellation or suspension, and there is no requirement that the application be filed within a particular period after termination of a marriage or the abuser’s death. Example: Zoe, a USC, married Martin in 2007, and they were divorced in 2013. Zoe was abusive to Martin during the marriage. Martin can self-petition only up to two years after his divorce, but there is no deadline for filing an application for cancellation of removal. Thus, if Martin is placed in removal proceedings, he can apply for cancellation of removal, regardless of the length of time that has elapsed since his divorce. There is no statutory requirement that an applicant for cancellation or suspension demonstrate a good faith marriage. Nonetheless, it is important to document a good faith marriage, since a finding of having entered a fraudulent marriage might make it difficult to establish the requirement of good moral character and would be a negative discretionary factor. Abused Sons and Daughters of USCs and LPRs An applicant for VAWA cancellation or suspension who has been abused by a parent need not be under 21 to qualify for VAWA cancellation. This is because the statute speaks in terms of an applicant who has been abused by a spouse or parent, 32 rather than referring to the term “child,” defined as someone who is under 21 and unmarried. 33 In other words, the statute states that the applicant must be abused by a “spouse or parent,” not that the applicant be a child. This is in contrast to the requirements for a VAWA self-petition, under which a self-petitioner whose application is based upon abuse by a parent must be a child (under 21 and unmarried) at the time of application unless the abuse was at least one central reason for the delay in filing, in which case the individual may self-petition up to age 25. INA § 240A(b)(2)(A)(iv). Id. 30 Former INA § 244(a)(3), repealed by IIRIRA § 308(a)(8). 31 Virtue memorandum of May 6, 1997, supra n. 8. 32 INA § 240A(b)(2)(A)(i). 33 INA § 101(b). 28 29

11-6

Example: Alejandra is a citizen of Spain and the daughter of Michael, a USC who was abusive to her during her childhood. Michael never filed any visa petition for Alejandra. Alejandra is now 26. She can no longer self-petition, as she would have had to file a selfpetition prior to her 21st birthday (or 25th birthday if the abuse was one central reason for the delay in self-petitioning). If she is placed in removal proceedings, however, she can apply for cancellation of removal, even though she is over 21 and even over the extended age of 25. Parents of a Child Who Has Been Abused by a USC or LPR Parent An important feature of VAWA cancellation and suspension is that the parent of a child who has been abused by a USC or LPR parent may apply for cancellation or suspension, even if the parent was not married to the abuser USC or LPR parent. For this type of case, the abused child must meet the definition of “child” under INA § 101(b)(1), that is, the abused child must be unmarried and under 21 years of age. Example: Winnie is a citizen of Zimbabwe and is married to Cesar, a USC. Cesar has never been abusive to Winnie, but was abusive to their son, Arnold, now 20. If Winnie is placed in removal proceedings, she can apply for cancellation of removal, even though she has not been abused herself, because she has a child (Arnold) who was abused by a USC or LPR parent (Cesar). Once Arnold turns 21 or gets married, however, Winnie will no longer be able to file an application for cancellation, since Arnold would no longer be a child. The Immigration Definition of a “Child” The definition of the term “child” under the immigration laws includes all of the following: •

Children born in wedlock;

•

Stepchildren, if the marriage creating the relationship occurred before the child turned 18;

•

Children born out of wedlock [but if immigrating through the father, they must show either legitimation before age 18 and while in the custody of the legitimating parent, or a bona-fide parent-child relationship]; and

•

Children adopted before age 16 who have been in the legal custody of and resided with the adopting parent(s) for at least two years, except that the two years of legal custody and residence are not required if the child was battered or subjected to extreme cruelty by the adopting parent or a family member of the adopting parent residing in the same household. 34 The term also includes a natural sibling of a child adopted under 16, if the sibling was adopted by the same adopting parent while under the age of 18. 35

The terms “parent,” “father,” or “mother” are defined in terms of the definition of child. 36 Close examination should be given to a case in which a stepson or stepdaughter considers applying for VAWA cancellation based upon abuse by a USC or LPR stepparent. For INA § 101(b)(1)(E)(i). INA § 101(b)(1)(E)(ii). 36 INA § 101(b)(2). 34 35

11-7

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

stepchildren, termination of the marriage between the parent and stepparent by death or divorce generally terminates the stepchild/parent relationship, unless that relationship continues after the marriage is terminated. 37 A continued relationship in an abusive situation would clearly be difficult or even dangerous. VAWA 2000’s provision that divorce after filing a VAWA selfpetition will not negatively affect eligibility to self-petition 38 may be helpful in such a situation. No “Derivative Beneficiaries” under VAWA Cancellation or Suspension: Parole of Children and Parents There are no “derivative beneficiaries” for purposes of VAWA cancellation of removal or suspension of deportation. This means that children cannot be included in a grant of VAWA cancellation or suspension to their parent. This is so even in the case of a person applying as the parent of an abused child. Under the VAWA 2000 amendments, however, the immigration authorities are required to parole the grantee’s children and, for a child grantee, the grantee’s parent, into the United States. 39 The parole status will last until adjudication of the parolee’s application for adjustment of status. 40 Parole for family members is discussed in more detail in § 11.16 of this chapter. In addition, it may be possible to obtain permanent residence or other relief for the child of a person eligible to apply for VAWA cancellation or removal in one of the following ways: •

A parent who is eligible to self-petition should do so, so that the child can be included as a derivative. The parent could ask the immigration judge to continue, administratively close, or possibly terminate the proceedings pending the Vermont Service Center’s decision on the self-petition.

•

A child who is in proceedings and independently meets the requirements for VAWA cancellation or suspension should file a separate application. The immigration judge could then consolidate the child’s case with the parent’s.

•

If the child is not in proceedings, and if the child meets the requirements for VAWA cancellation or suspension, and if self-petitioning is not an option, the advocate and parent might consider asking ICE to place the child in proceedings to allow him or her to file an application for VAWA cancellation or suspension. This should be done only after careful consideration, because of the risks inherent in removal proceedings.

Residence with the Abuser The applicant is not required to have resided with the abuser. § 11.7 Battery or Extreme Cruelty The applicant for VAWA suspension or cancellation must show that he or she “has been battered or has been the subject of extreme cruelty” perpetrated by the immigrant’s spouse or parent, or Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981). INA §§ 204(a)(1)(A)(vi) (spouses and children of USCs) and 204(a)(1)(B)(v)(1) (spouses and children of LPRs). 39 INA § 240A(b)(4). 40 Id. 37 38

11-8

that he or she is the parent of an abused child. 41 The “battery or extreme cruelty” requirement for VAWA cancellation or suspension is the same as that requirement for VAWA self-petitioning. The term covers a broad range of acts and behaviors, including physical, sexual, and psychological acts, as well as economic coercion. The regulatory definition of the phrase “battery or extreme cruelty” for purposes of VAWA selfpetitioning should be equally relevant to VAWA cancellation and suspension applications. Under that definition, the phrase includes, but is not limited to, “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.” 42 The Ninth Circuit has noted that the term “battery or extreme cruelty” does not necessarily require a level of violence that results or threatens to result in physical or mental injury.” 43 Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution, are also included in the definition. 44 Other abusive acts that may not initially appear violent but are part of an overall pattern of violence are also part of the definition. 45 Violence against another person or thing may be considered abuse if it can be established that the act was deliberately used to perpetrate extreme cruelty against the victim. 46 Several INS memoranda provide further guidance on the term “battery or extreme cruelty.” These emphasize that there is no exhaustive list of acts that constitute “battery or extreme cruelty,” and the definition of battery provided in the regulations is a flexible one that should be applied to claims of extreme cruelty as well as to claims of physical abuse. 47 The abuse must rise to a certain level of severity, however, to constitute battery or extreme cruelty. 48 A person who has suffered no physical abuse may still be able to establish extreme cruelty. 49 Examples of abuse that may constitute extreme cruelty include social isolation of the victim, accusations of infidelity, incessantly calling, writing, or contacting the victim, stalking the victim, interrogating friends and family members, threats, economic abuse, not allowing the victim to have a job, controlling all money in the family, threatening to take away children, intimidation, hiding or destroying important papers, and degrading or denigrating the victim. 50

INA § 240A(b)(2)(A)(i). 8 CFR §§ 204.2(c)(vi) [abused spouses], 204.2(e)(vi) [abused children]. 43 Lopez-Birrueta v. Holder, 633 F.3d 1211, 1216-1217 (9th Cir. 2011). 44 Id. 45 Id. 46 Id. 47 Aleinikoff, Executive Associate Commissioner, Office of Programs, INS Memo HQ 204-P, April 16, 1996, at 9-10, re: Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents, www.asistahelp.org/documents/filelibrary/docu ments/Aleinikoff__41696_1B42EBEED3605.pdf. 48 Id. 49 Id. 50 See Gail Pendleton and Ann Block, “Applications for Immigration Status under the Violence against Women Act,” I Immigration and Naturalization Handbook 436, 441 (AILA 2001-2002), www.asistahelp.org/documents/filelibrary/documents/applications_for_immigration_status_28b7e6e4ef924 .pdf. This article is also attached as Appendix 3-B. 41 42

11-9

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

PRACTICE POINTER: Extreme Cruelty—a Discretionary or Non-Discretionary Determination? The federal circuit courts of appeal are split on an important issue involving “extreme cruelty” for purposes of VAWA cancellation. This issue is whether the determination of a claim of extreme cruelty is a question of law or mixed question of law and fact, which are reviewable by the circuit courts, or a discretionary determination, which is not reviewable except in the case of abuse of discretion. 51 Because the applicant may have limited reviewability on appeal, it is critical to make the strongest case possible for VAWA cancellation at the initial stage, that is, before the immigration judge. PRACTICE POINTER: Evidence of Extreme Cruelty. A determination of whether extreme cruelty has occurred focuses on evidence that addresses how the abuser’s conduct affected the self-petitioner’s quality of life and ability to function. For this reason, the evidence must show what the abuser did and how the self-petitioner felt as a result of the abuser’s actions or behavior. The fact that the relationship between the abuser and the victim has improved is not relevant, as the statutory standard looks to past harm (whether the applicant “has been” subjected to battery or extreme cruelty”). 52 In Hernandez v. Ashcroft, 53 the U.S. Court of Appeals for the Ninth Circuit also addressed extreme cruelty in the context of VAWA cancellation or suspension. At the time of Ms. Hernandez’ application, the law required that the battery or extreme cruelty must have taken place in the United States. (After the VAWA 2000 amendments, this is no longer a requirement.) Ms. Hernandez argued that her husband’s actions in calling her from Mexico while she was in the United States and promising that he would not hurt her if she returned to him were an integral stage in the cycle of domestic violence and thus constituted extreme cruelty. The Court agreed, describing the cycle of violence in abusive relationships as consisting of a tension-building phase, followed by acute battery of the victim, and finally by a contrite phase where the batterer’s use of promises and gifts increases the battered woman’s hope that violence has occurred for the last time. The Court also noted that while a relationship may have infrequent episodes of violence, abusive behavior does not occur as a series of discrete events, but rather pervades the entire relationship.

8 USC § 1252(a)(2)(B). The Ninth Circuit has determined that the element of extreme cruelty raises a question of law, Hernandez v. Ashcroft, 345 F.3d 824, 828 (9th Cir. 2003), while most other circuits have found that a determination on extreme cruelty is a non-reviewable discretionary decision (unless it raises a constitutional question or question of law or is the result of an abuse of discretion). See Johnson v. U.S. Att’y Gen., 602 F.3d 508, 510-11 (3rd Cir. 2010); Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); Ramdane v. Mukasey, 296 Fed. Appx. 440, 442 (6th Cir. 2008) (citing Valenzuela Alcantar v. INS, 309 F.3d 946, 949 (6th Cir.2002)): Stepanovic v. Filip, 554 F.3d 673, 675 (7th Cir. 2009); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005); Bedoya-Melendez v. U.S. Atty. Gen., 680 F.3d 1321, 1324– 25 (11th Cir. 2012). See also, Rosario v. Holder, 627 F.3d 58, 62 (2nd Cir. 2010) (“We ask whether the BIA is expressing legal doctrine or whether it is engaged in the fact-finding and factor-balancing that are at the core of its discretion”). 52 Lopez-Birrueta, 633 F.3d at 1217. 53 345 F.3d 824 (9th Cir. 2003). 51

11-10

The Hernandez Court also made two other very important observations. First, it noted the language in the VAWA regulations, at 8 CFR § 204.2(c)(1)(vi), which provides in part that “other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are part of an overall pattern of violence.” The Court found that this language protected women like Ms. Hernandez against manipulative tactics aimed at ensuring the batterer’s dominance and control. Second, in response to the DHS’ argument that the Court should give deference to the BIA’s interpretation of extreme cruelty in its decision in Ms. Hernandez’ case, the Court responded that there was no indication that the BIA intended to issue an interpretation of extreme cruelty in this case, since the BIA did not designate the decision as a precedent one. § 11.8 Three Years Continuous Physical Presence The applicant for VAWA cancellation or suspension must show three years of continuous physical presence in the United States immediately preceding the date of application. 54 Several of the requirements for accrual of continuous presence are relaxed for applicants for VAWA cancellation and suspension. First, issuance of a Notice to Appear (the charging document in a removal proceeding) does not stop continuous physical presence from accruing, as it does in non-VAWA cancellation cases. 55 Commission of a criminal offense that makes the applicant inadmissible or deportable, or of an offense under the security and related deportation grounds, however, does stop the accrual of continuous physical presence. 56 Example: Eric, a citizen of Norway, came to the United States on January 15, four years ago, and has not left the country since that date. Two years ago, in June, he married Eugenia, an LPR, who was abusive to him. Eugenia never filed an I-130 relative visa petition for Eric. Eric was stopped in December two years ago by ICE, which filed a Notice to Appear with the immigration court, placing Eric into removal proceedings based upon having overstayed his nonimmigrant authorized stay. Eric’s first removal hearing was held on January 30 of the current year. Even though Eric had not accrued three years of continuous presence at the time the Notice to Appear was issued, he had accrued it by the time of his removal hearing, and thus met the physical presence requirements for VAWA cancellation of removal. If prior to his removal proceeding, however, Eric had committed a criminal offense that made him inadmissible or deportable, he would not be able to meet the physical presence requirements, because he could not accrue any time towards physical presence after the date he committed that criminal offense. Second, the rule that continuous physical presence is “interrupted,” or ended, by a single absence of 90 days or more and by aggregate absences of 180 days or more 57 is considerably relaxed for applicants for VAWA cancellation or suspension. An absence from the United States does not prevent the applicant from maintaining continuous physical presence if there is a connection INA § 240A(b)(2)(A)(ii). INA §§ 240A(b)(2)(A)(ii) and 240A(d)(2). 56 INA § 240A(d)(1). 57 INA § 240A(d)(2). 54 55

11-11

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

between the absence and the abuse. 58 The absence does not count towards accrual of the required three years continuous presence, however. 59 Example: Luisa, a citizen of Peru, came to the United States on September 25, five years ago, and married Xavier, a lawful permanent resident, the next year. Xavier became very abusive to Luisa and to Luisa’s son, Enrique. To escape the abuse at least temporarily, Luisa took Enrique back to Peru on several occasions. The last visit to Peru was six months ago. Added together, the periods of absence total 250 days. Excluding those 250 days, Luisa has still been in the United States for the required three years. Luisa has now been placed in removal proceedings. She should be able to argue that her absences from the United States were connected to the abuse she suffered, so that those absences cannot count toward the 90- or 180-day absence periods that would interrupt the three years of continuous physical presence she needs to qualify for VAWA cancellation of removal. § 11.9 Extreme Hardship The applicant for cancellation of removal must show that his or her removal would result in extreme hardship to himself or herself or to his or her child or parent. There is no definitive test for determining whether extreme hardship exists. Each case must be examined individually with regard to the applicant’s particular facts and circumstances. 60 Executive Office for Immigration Review (EOIR) regulations list factors to be considered in assessing extreme hardship in VAWA cancellation and suspension applications. 61 These factors are: •

The nature and extent of the physical or psychological consequences of abuse;

•

The impact of loss of access to the United States courts and criminal justice system, including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations, and prosecution of court orders regarding child support, maintenance, child custody, and visitation;

•

The likelihood that the batterer’s family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant’s child(ren);

•

The applicant’s needs and/or needs of the applicant’s child(ren) for social, medical, mental health or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country;

INA § 240A(b)(2)(B). Id. 60 Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 4 (October 16, 1998), and cases cited therein, available at www.asistahelp.org/en/access_the_clearinghouse/vawa/. This memorandum is also found at Appendix 11-B. 61 8 CFR §§ 1240.20(c) [VAWA cancellation] and 1240.58(c) [VAWA suspension]. 58 59

11-12

•

The existence of laws and social practices in the home country that punish the applicant or the applicant’s child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household; and

•

The abuser’s ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant’s child(ren) from future abuse. 62

Other extreme hardship factors enumerated by the BIA under traditional suspension of deportation cases could also be applicable to VAWA cancellation cases. These include the following: • • • • • • • • • • • •

The age of the applicant, both at entry and at the time of application for relief; The age of the qualifying relatives; The applicant’s length of residence in the United States over the statutory minimum; The applicant’s family ties, both in the United States and abroad; The health of the applicant and qualifying relatives; The applicant’s financial status and occupation; The applicant’s ties to the community; The economic and political conditions in the home country; Any disruption of educational opportunities; Any adverse psychological impact of deportation; The applicant’s involvement and position in the local community; and The applicant’s immigration history. 63

Experts note that child custody disputes and protection orders are compelling hardship factors. A grant of custody is meaningless if the parent is deported; an abusive parent remaining in the United States would then be free to reopen the custody decision without challenge. 64 Similarly, a protection order is of little use abroad, if the abuser travels back and forth to the victim’s homeland. 65 Experts also note that the effect on children of domestic violence in the household is another important factor to consider. 66

8 CFR § 1240.58(c). See Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001); INS v. Wang, 450 U.S. 139 (1982); Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996); Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). See also, Virtue memorandum of October 16, 1998), supra n. 65, and Aleinikoff memorandum of April 16, 1996, supra n. 50. 64 Gail Pendleton and Ann Block, “Applications for Immigration Status under the Violence against Women Act,” supra n. 52. 65 Id. 66 Id. 62 63

11-13

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

It is important to remember that the hardship factors in an applicant’s case must be considered cumulatively. Thus, even though a particular factor might not in itself rise to the level of extreme hardship, two or more hardship factors, taken together, might rise to that level. 67 Example: Ionas is the parent of Carola, age 6, whose mother is Pavla, a U.S. citizen. Pavla was abusive to Carola, and Ionas has taken Carola and moved out of the family home. Ionas is in removal proceedings and has asked you to represent him. You believe that he may be eligible for cancellation of removal, based upon Pavla’s abuse of Carola. You ask Ionas about hardship factors in his case. He tells you that he has a good job here as a speech therapist and that he is afraid that he will not be able to work in his field in his home country. He also tells you that Carola is very well adjusted in her school and that he is concerned about the effect that a move to his home country would have on her, particularly given the abuse she has suffered. He also tells you that his father, who has been living in the United States with Ionas but has no lawful immigration status, is elderly and relies upon Ionas for many things. In preparing the cancellation application, you will not rely on only one of these hardship factors. Instead, you will document all of them and argue to the immigration judge that, even if the judge does not believe that any of the factors taken alone demonstrate extreme hardship, when taken together, they rise to at least the level of extreme hardship. Note the range of persons—the applicant, the applicant’s child, and the applicant’s parent— whose hardship is considered in determining whether extreme hardship exists in a VAWA cancellation or suspension case. Thus, in the example given above, Ionas may assert the hardship to himself, his daughter Carola, and his father, even though the father has no legal status in the United States. As can be seen, some of the hardship factors examined in adjudicating a VAWA cancellation case involve conditions, including laws and law enforcement practices, in the applicant’s home country. To obtain information on specific laws and conditions in other countries, it is helpful to review country reports from governmental and non-governmental organizations such as the U.S. State Department, Human Rights Watch, Amnesty International, and the United Nations High Commissioner for Refugees. Affidavits from experts who have knowledge of the home country, including family members, women’s groups, and lawyers in the home country, can also be effective. Major newspapers such as the New York Times and the Washington Post are also good sources of information. There are excellent web sites accessing foreign law and political and social conditions, such as www.findlaw.com. You can also contact the Library of Congress’ Law Division, at 202-707-5065 (fax: 202-707-1820), and ask to have certified copies of foreign laws sent to you. § 11.10 Ineligibility under Certain Inadmissibility and Deportability Bars A person is not eligible for VAWA suspension or cancellation if he or she is inadmissible or deportable under certain sections of the INA. 68 These sections are: Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); see, Virtue memorandum of October 16, 1998, supra n. 65. 68 INA § 240A(b)(2)(A)(iv). 67

11-14

•

§ 212(a)(2): criminal inadmissibility grounds, including: o

conviction or admitting commission of crimes of moral turpitude (other than (a) petty offenses 69 and (b) crimes committed while the noncitizen was under age 18 years of age and where the noncitizen was released from confinement for the offense at least five years before applying for a visa or admission);

o

conviction or admitting commission of drug offenses;

o

conviction of 2 or more offenses for which the aggregate sentences to confinement were 5 years or more;

o

controlled substance trafficking;

o

prostitution and commercialized vice;

o

assertion of immunity from prosecution by immigrants involved in serious criminal activity;

o

engaging in particularly severe violations of religious freedom by foreign government officials; and

o

significant trafficking in persons.

•

§ 212(a)(3): security and related inadmissibility grounds;

•

§ 237(a)(1)(G): marriage fraud;

•

§ 237(a)(2): criminal deportability grounds, including: o

conviction of one crime of moral turpitude within five years of admission;

o

conviction of multiple crimes of moral turpitude;

o

conviction of an aggravated felony (as defined at INA § 101(a)(43);

o

high speed flight from immigration checkpoint;

o

conviction of controlled substance offenses (other than a single offense of simple possession of 30 grams or less of marijuana);

o

being or having been a drug abuser or addict;

o

conviction of firearms offense;

o

conviction of a domestic violence, stalking, or child abuse crime; and

o

determination by the court issuing a protection order that the individual has engaged in conduct that violates the portion of the order that protects against

The petty offense exception, found at INA § 212(a)(2)(A)(ii)(II), applies to an offense for which the maximum penalty does not exceed one year and, if convicted, the immigrant was sentenced to no more than six months of imprisonment. Note that even if an offense or conviction falls within the petty offense exception for INA § 212, it may still be a crime involving moral turpitude for which a sentence of one year may be imposed, making the person ineligible for cancellation under INA § 237(a)(2)(A)(i). Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011).

69

11-15

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

credible threats of violence, repeated harassment, or bodily injury to the protected person or persons. •

§ 237(a)(3): failure to register, document fraud, and falsely claiming U.S. citizenship; and

•

§ 237(a)(4): security and related deportability grounds.

Thus, falling under one of the ineligibility grounds is a serious obstacle in a VAWA cancellation or suspension claim. The waiver of criminal inadmissibility grounds under INA § 212(h) is not available to waive the criminal ineligibility bars to cancellation of removal. 70 Advocates will want to examine the facts of the client’s case closely, to see if it is possible to argue that the ineligibility ground in question does not really exist in the client’s case. Note that the ineligibility grounds do not include the false claim to U.S. citizenship inadmissibility ground, although they preclude eligibility for persons deportable for a false claim to U.S. citizenship. Because of this, it may be possible to argue, for applicants who were not admitted to the United States under some sort of visa, that the applicant is inadmissible only on this basis, which would not bar VAWA cancellation, and not deportable. The arguments suggested in Chapter 6 regarding inadmissibility for false claim to U.S. citizenship may also be of assistance in arguing that the client does not fall under the deportation ground of false claim to U.S. citizenship. There is a special waiver for ineligibility based on the deportation ground of conviction of domestic violence and stalking 71 and violations of domestic violence protection orders, 72 for persons who have been subjected to domestic abuse. The requirements for this waiver are: • •

that the applicant was not the primary perpetrator of violence in the relationship, and either (a) the applicant was acting in self-defense, (b) the applicant violated a protection order intended to protect the applicant, or (c) the crime in question did not result in serious bodily injury and there was a connection between the crime and the abuse. 73

There is an exception, based on this waiver, from ineligibility for cancellation for abused noncitizens. 74 Example: Mari is a citizen of New Caledonia. She came to the United States on a student visa seven years ago and, six years ago, married a lawful permanent resident, Carl. Carl has been abusive. On one occasion, Carl struck Mari and Mari struck back. Carl was not seriously injured. A neighbor called the police, and both Carl and Mari were arrested. Both pled guilty to domestic violence. Mari is now in removal proceedings. Her conviction for domestic violence will make her ineligible for cancellation of removal under INA § 240A(b)(2)(A)(iv), unless she qualifies for the INA § 237(a)(2)(A)(7) Matter of Bustamante, 25 I&N Dec. 564 (BIA 2011); Matter of Y-N-P-, 26 I&N Dec. 101 (BIA 2012); see also Garcia-Mendez v. Lynch, 788 F.3d 1058, 1063 (9th Cir. 2015) (deferring to the Board’s decision in Matter of Y-N-P-). 71 INA § 237(a)(2)(E)(i). 72 INA § 237(a)(2)(E)(ii). 73 INA § 237(a)(7). 74 INA § 240A(b)(5), added by § 813(c) of the Violence against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960. 70

11-16

waiver. She appears to qualify for the waiver. She meets the first requirement of not having been the primary aggressor in the relationship, since she was only striking back. She also meets the second requirement on two bases—she was acting in self-defense and Carl was not seriously injured. § 11.11 Good Moral Character The applicant for VAWA cancellation of removal must show that he or she has been a person of good moral character for the three years preceding the date of application. 75 Because VAWA cancellation of removal is a continuing application, a potential bar to good moral character committed more than three years prior to the entry of a final administrative order should not be considered in determining whether the cancellation applicant is barred from establishing good moral character. 76 The INA does not define good moral character. Instead, INA § 101(f) states that a person is not of good moral character if he or she is or was: •

a habitual drunkard;

•

engaged in prostitution within the last ten years before filing the application;

•

a person who is coming to the United States to practice polygamy; 77

•

engaged in any other commercial vice, whether or not related to prostitution;

•

involved in smuggling people into the United States;

•

convicted of or admits to committing acts of moral turpitude, other than (1) purely political crimes and (2) petty offenses or crimes committed when the immigrant was under 18 years of age at commission and was released from confinement for the offense more than five years before applying for a visa or admission;

•

convicted of two or more offenses for which the aggregate sentences to confinement were five years or more;

INA § 240A(b)(2)(A)(iii). Matter of M-L-M-A, 26 I&N Dec. 360 (BIA 2014). See also Matter of Garcia, 24 I&N Dec. 179 (BIA 2007) and Matter of Ortega-Cabrera, 23 I&N Dec. 179 (BIA 2005). 77 The inclusion of practicing polygamy in the list of statutory bars to good moral character is the result of an amendment in VAWA 2005. Prior to VAWA 2005, INA § 101(f)(3) barred a finding of good moral character for persons described in INA § 212(a)(9)(A), referring to inadmissibility because of a prior removal. This provision appeared to be a drafting error following the enactment of the Immigration Act of 1990. When INA § 101(f)(3) was originally written, INA § 212(a)(9)(A) referred to immigrants who were coming to the United States to practice polygamy. ImmAct 90 renumbered the polygamy provision as INA § 212(a)(10), and INA § 212(a)(9)(A) was changed to read as it does now. Section 822 of VAWA 2005 corrects this drafting error by replacing the reference to INA § 212(a)(9)(A) in INA § 101(f) with § 212(a)(10)(A), referring to practicing polygamists. Thus, a prior removal is no longer a statutory bar to good moral character. This applies to all immigrants, not just victims of abuse or crime, and is effective as if included in § 603(a)(1)(of the Immigration Act of 1990. 75 76

11-17

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

•

convicted of or admits to violating laws relating to controlled substances (except for a single offense of simple possession of 30 grams or less of marijuana);

•

earning income derived principally from illegal gambling;

•

convicted of two or more gambling offense;

•

one who has given false testimony for the purposes of obtaining an immigration benefit;

•

incarcerated for an aggregate period of 180 days or more as a result of conviction; or

•

convicted of an aggravated felony, as defined in INA § 101(a)(43), where the conviction was entered on or after November 29, 1990 (except for conviction of murder, which is a bar to good moral character regardless of date of conviction).

The general rule is that a person who falls under one of these statutory bars lacks good moral character. 78 This rule is eased somewhat for applicants for VAWA cancellation or suspension. 79 Under this provision, an act or conviction that does not make the applicant ineligible for VAWA cancellation or suspension will not bar a finding that the applicant is of good moral character, if the act or conviction was connected to the abuse and if the immigration judge determines that a waiver is otherwise warranted. 80 As a practical matter, however, many of the acts or convictions that prevent an applicant from establishing good moral character will also make the applicant ineligible for VAWA cancellation or suspension under the ineligibility grounds discussed above. In a memorandum of January 19, 2005, USCIS provided guidance on the exception to the good moral character requirement for VAWA self-petitioners. 81 Although that exception is not identical to the waiver of the good moral character requirement for VAWA cancellation applicants, described in the preceding paragraph, and although a USCIS memorandum is not binding on immigration judges, an immigration judge deciding a VAWA cancellation application may consider the USCIS memorandum to be persuasive. The memorandum is discussed in more detail in Chapter 3 of this manual and appears as an appendix to that chapter. Under the VAWA self-petitioning exception for good moral character, USCIS may find that a self-petitioner is of good moral character even if he or she falls under one of the statutory bars in INA § 101(f), if (1) the disqualifying act or conviction is waivable for inadmissibility or deportability purposes and (2) the disqualifying act or conviction is connected to the abuse suffered by the self-petitioner. Thus, both the VAWA cancellation good moral character waiver and the VAWA self-petitioning exception for good moral character require a showing of a connection between the disqualifying act and the abuse. The USCIS memorandum specifically addresses this connection requirement, defining “connected to” as requiring a showing that the abuse experienced by the self-petitioner INA§ 101(f). INA § 240A(b)(2)(C). 80 Id. 81 William R. Yates, Ass. Dir. Opers. USCIS, Memo re: Determinations of Good Moral Character in VAWA-Based Self-Petitions (Jan. 19, 2005), www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%2019982008/2005/gmc_011905.pdf. This memorandum is also found at Appendix 3-C. 78 79

11-18

“compelled or coerced” the self-petitioner to commit the act or crime that precludes good moral character. “In other words, the evidence should establish that the self-petitioner would not have committed the act or crime in the absence of the battering or extreme cruelty.” 82 VAWA selfpetitioners need not show that the act or conviction occurred during the marriage to the USC or LPR abuser, however. Example: Catherine is a victim of domestic abuse inflicted by her LPR husband. She lived in the United States for the last four years. She has been convicted of prostitution and tells you that her husband forced her to engage in prostitution. She was placed in removal proceedings based upon her unlawful status in the United States. You examine her case to see whether she can establish good moral character for purposes of VAWA cancellation. You know that engaging in prostitution within ten years before filing the application is a bar to establishing good moral character under INA § 101(f). Under the VAWA good moral character provision, however, the immigration judge can still find Catherine to be of good moral character if you can establish that Catherine’s having engaged in prostitution is connected to the abuse she suffered and if the immigration judge determines that the waiver is otherwise warranted. PRACTICE POINTER: Good Moral Character and Statutory Bars to Cancellation. Criminal convictions can be both a statutory bar to cancellation and a bar to proving good moral character for VAWA cancellation. Unfortunately, even if the applicant can show a connection between the abuse and the conduct that prevents good moral character, that will waive only the good moral character bar and not the statutory bar to cancellation. In addition to demonstrating the absence of a statutory bar to good moral character or eligibility for a waiver of such a bar, the applicant must also present sufficient information to allow the adjudicator to conclude that he or she is a person of good moral character. The applicant should state in his or her declaration that he or she is of good moral character. In addition, the application form (Form EOIR-42B) instructs the applicant to submit police records from each jurisdiction where the applicant has lived for six months or more during the past three years. The instructions also recommend that the applicant submit statements from witnesses, including the applicant’s employer, who can knowledgeably attest to the applicant’s good moral character. Children under 14 years of age are presumed to be of good moral character and do not need to submit the police reports. § 11.12 Discretion VAWA cancellation of removal, like waivers of inadmissibility grounds, is granted in the exercise of discretion. 83 This means that, even if the applicant satisfies all of the statutory requirements for VAWA cancellation, the immigration judge may deny cancellation if he or she believes that the applicant does not merit it. As discussed in § 7.2 of this manual, the exercise of discretion requires a weighing of all of the positive and negative factors in the applicant’s case to 82 83

Id. at 3. Matter of A-M-, 25 I&N Dec. 66, 76 (BIA 2009). 11-19

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

determine whether the totality of the evidence indicates that the person merits a favorable exercise of discretion. 84 Discretion can play a critical role in adjudicating a VAWA cancellation application, and advocates should view a favorable showing of discretionary factors as another requirement for VAWA cancellation. The Board of Immigration Appeals (BIA) has considered the following as positive discretionary factors for purposes of VAWA cancellation: long residence in the United States, family members in the United States, employment history, hardship to the respondent and her family should she be removed, the absence of a criminal record, and expressions of remorse for wrongdoing. 85 On the other hand, the BIA has considered the following as negative discretionary factors for purposes of VAWA cancellation: the circumstances underlying a respondent’s removability, failure to file income taxes, convictions, and false testimony. 86 In addition, the Board considers an applicant’s separation from an abusive relationship and remarriage to a non-abusive spouse as negative discretionary factors because they may indicate less need for cancellation and thus not further Congress’ purpose of enabling noncitizens to leave an abusive relationship. 87 Moreover, having already obtained lawful permanent residence through a VAWA self-petition is a negative discretionary factor that weighs heavily against a grant of cancellation. 88 It is important that advocates look closely at the client’s case to discover all possible favorable discretionary factors and present them in the VAWA cancellation application. At the same time, it is critical to present any mitigating circumstances for negative discretionary factors and to argue that the cumulative effect of positive equities outweighs any negative ones. For suggestions on documenting discretionary factors, please see § 7.2 of this manual. § 11.13 Documentation and the “Any Credible Evidence” Standard An application for VAWA suspension or cancellation of removal must contain evidence to support each of the eligibility requirements, or “elements.” Advocates should try to obtain primary source documents, such as birth certificates, naturalization certificates, permanent resident cards, and other official records, because these are generally accorded greater weight. 89 It is important to remember, however, that there is a special evidentiary standard for VAWA selfpetitions and applications for VAWA suspension or cancellation. This standard is called the “any credible evidence standard.” 90 The standard was implemented in recognition of the difficulties abused family members may have in obtaining documentation. 91 Under the standard, the adjudicator must consider any credible evidence relevant to the application. 92 Thus, if primary evidence is not available, secondary evidence, such as declarations, is acceptable to make out the elements of the claim. Advocates using secondary evidence, however, should document their attempts to obtain primary source evidence and explain why they were unable to do so. 84

Id. Id. at 78; Matter of M-L-M-A-, 26 I&N Dec. 360, 363 (BIA 2014). 86 Matter of A-M-, 25 I&N Dec. at 78; Matter of M-L-M-A-, 26 I&N Dec. at 363. 87 Matter of A-M-, 25 I&N Dec. at 78; Matter of M-L-M-A-, 26 I&N Dec. at 363. 88 Matter of A-M-, 25 I&N Dec. at 78; Matter of M-L-M-A-, 26 I&N Dec. at 363. 89 Virtue October 16, 1998, memorandum, supra n. 65, at 5. 90 INA § 240A(b)(2)(D). 91 See Virtue October 16, 1998, memorandum, supra n. 65, at 5. 92 Id. 85

11-20

§ 11.14 The Contents of the Application The application for cancellation of removal or suspension of deportation must comply with the content and format instructions in the Executive Office for Immigration Review’s Immigration Court Practice Manual. 93 It must also be timely filed, that is, filed by the deadlines set out in the practice manual or given by the immigration judge. 94 The immigration judge may require the application to be filed in open court. If it is filed by mail, advocates should retain proof of having mailed the application. If the application is sent by U.S. Mail, it should be sent return receipt requested. A copy of the application must be served on the ICE trial counsel, 95 and the practice manual lists the required contents of the proof of service 96 and contains a sample form. PRACTICE POINTER: Advocates should familiarize themselves and be sure to comply with the requirements of the Executive Office for Immigration Review’s Immigration Court Practice Manual. The immigration court may reject documents and applications that do not comply with the manual’s content, format, or timing requirements. The application should be paginated consecutively and should contain the forms and documents listed below. The list follows the order preferred by the immigration court. 97 If the applicant cannot obtain any of the listed documents, then other credible evidence should be submitted in their place. All documents not written in English must be translated into English and contain a translator’s certificate that meets the requirements set out in the practice manual. 98 The application must also comply with any local operating rules of the immigration court in which the proceedings are held. A sample application is attached as Appendix 11-A to this chapter. •

Form EOIR 28, Notice of Appearance of Counsel, if appropriate.

•

Cover page (the practice manual contains a sample).

•

A completed Form EOIR-42B, Application for Cancellation of Removal and Adjustment of Status for Certain Non-Permanent Residents.

•

An index or table of contents, listing each document (exhibit) contained in the application and the page at which it appears. The index or table of contents will be very similar to that used for a VAWA self-petition. It should organize the contents according to the element that the particular document satisfies. For example, there should be an index subheading for “good moral character,” and documents presented to show good moral character should be listed under that subheading. Exhibits, numbered by letter. These should include:

The Immigration Court Practice Manual is available at www.justice.gov/eoir/office-chief-immigrationjudge-0. 94 Immigration Court Practice Manual, § 3.1(b). 95 Id. at § 3.2. 96 Id. at § 3.2(e). 97 Id. at § 3.3(c). 98 Id. at § 3.3(a). 93

11-21

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

•

•

The applicant’s detailed declaration. This is the single most important part of the application. It is an opportunity to show how sympathetic the applicant’s case is, as well as to establish credibility through a detailed description of events and to set out the theory of the applicant’s case. The declaration should include the applicant’s personal knowledge on each element of the claim. This would include the marriage or other qualifying relationship to the abuser, the abuser’s status, the battery or extreme cruelty, three years’ continuous presence, extreme hardship, good moral character, and discretionary factors. Evidence of the qualifying relationship to the abuser. For an abused spouse, the marriage certificate and evidence of termination of all prior divorces by each spouse should be included. For an abused intended spouse whose marriage to the abuser is invalid solely because of the abuser’s bigamy, the applicant’s declaration should set out these facts, as well as the applicant’s good faith in entering into the marriage. For an abused common law spouse, the applicant should present evidence to establish that the marriage meets the definition of common law marriage under the law of the state where the relationship existed. It is also helpful to include a copy of the state law to show that common law marriage is recognized in the applicant’s state. For a son or daughter abused by a USC or LPR mother, a copy of the birth certificate, showing the abuser as mother, should be submitted. For a son or daughter born in wedlock who was abused by a USC or LPR father, a copy of the birth certificate and a copy of the parent’s marriage certificate should be submitted. For a son or daughter born out of wedlock who was abused by a USC or LPR father, the applicant should submit a copy of his or her birth certificate and documents to show either: (a) legitimation by the father before the son or daughter reached the age of 18 and while in the legitimating parent’s custody, or (b) that the father had a bona-fide parentchild relationship with the person. 99 Examples of documents to show a bona-fide parentchild relationship include statements from the self-petitioner, his or her mother, and other relatives or witnesses concerning the relationship between the father and child, evidence of payment of child support, evidence that the father and child exchanged gifts, photographs, or other mementos, evidence that the father and child did things together, and evidence that the father held the child out as his own. For an applicant who is the parent of a child abused by a USC or LPR parent, but is not married to the abusive parent, the evidence of relationship should include the child’s birth certificate, showing both parents’ names. If the birth certificate shows only the mother’s name, then evidence must be presented to establish the child’s paternity. If the child was born out of wedlock, then evidence must also be presented to show the requirements of INA § 101(b) (legitimation or a bona-fide parent child relationship).

99

INA § 101(b)(1)(C & D). 11-22

For an adopted child, evidence should be submitted to establish that the child was adopted before reaching the age of 16 or that the child is a natural sibling of a child adopted under 16 and was adopted by the same parents before age 18. 100 If the abuser is the applicant’s step-parent, the applicant should submit his or her birth certificate, together with evidence to show that the marriage creating the relationship of step-parent and step-child occurred before the step-child turned 18. For step-children, termination of the marriage between the parent and step-parent generally terminates the step-parent/step-child relationship, unless the step-parent and step-child continue their relationship after the termination. 101 It may be difficult to show that the relationship has continued in a case involving domestic abuse. However, the VAWA amendments of 2000, providing that divorce after filing a self-petition will not negatively affect eligibility to self-petition, may modify this general rule. 102 •

Evidence of the abuser’s USC or LPR status. Where the abuser is a U.S. citizen by birth, that status is proved by the abuser’s birth certificate showing birth within the United States or its possessions. It could also be established by a certificate of citizenship or a birth certificate showing birth abroad to two United States citizen parents or to one United States citizen who meets the residential requirements to convey citizenship upon his or her children. 103 The status of an abuser who is a naturalized United States citizen is shown by the abuser’s naturalization certificate. The status of an abuser who is a lawful permanent resident is shown by the abuser’s permanent resident card. This evidence will very likely be the most difficult for the applicant to obtain, as it is the evidence most completely under the abuser’s control. Government records establishing immigration status will generally not be released to persons other than the party to whom they pertain. Applicants who are experiencing problems obtaining this evidence may want to request assistance from the ICE Associate District Counsel. In doing so, the applicant or advocate should refer to the immigration regulations governing VAWA selfpetitions, which provide that, if the self-petitioner is unable to present primary or secondary evidence of the abuser’s status, the advocate may ask the immigration authorities to attempt to electronically verify the abuser’s citizenship or immigration status from information contained in immigration computerized records and other records. 104 Other evidence that might be sufficient to establish the abuser’s status could be the abuser’s employment records, such as the I-9 form and copies of the abuser’s immigration documents maintained by the employer, although privacy requirements may make these difficult for the applicant to obtain.

INA § 101(b)(1)(E). Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981). 102 INA §§ 204(a)(1)(A)(vi) (spouses and children of USCs) and 204(a)(1)(B)(v)(1) (spouses and children of LPRs). 103 See, INA § 301 et seq., defining United States citizens at birth. 104 8 CFR § 204.1(g)(3). 100 101

11-23

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

•

Evidence of the applicant’s physical presence in the United States for the past three years. This evidence may include the applicant’s own declaration; the declarations of friends, relatives, neighbors, or employers who know of the applicant’s presence in the United States; tax records; sales receipts; rental receipts and leases; employment records and paycheck stubs; bills; medical records; and children’s school records. The evidence should bear a date and refer to the applicant or the applicant’s child.

•

Evidence of good moral character. According to the instructions to Form EOIR 42B, applicants 14 years of age and older must provide a police clearance letter from each jurisdiction where they have resided for six months or more during the preceding three years. The instructions also recommend submitting statements from witnesses and the applicant’s employer, and further recommend that the employer’s statement include information regarding the nature and duration of employment and earnings. If the applicant has done an act or has a conviction that would prevent him or her from establishing good moral character under INA § 101(f) but that might be waivable under INA § 240A(b)(2)(C), then evidence should be submitted to establish a connection between the abuse and the act or conviction, as well as factors meriting a favorable exercise of discretion. The applicant’s own declaration is crucial in establishing good moral character. If there are no convictions or acts that would establish a statutory or discretionary bar to good moral character, then the applicant may simply state that he or she has never been arrested. A letter or statement from relatives, friends, clergy, or employers attesting to the applicant’s good moral character is also important. If there is a statutory or discretionary bar to establishing good moral character, the applicant may use the declaration to explain the circumstances and the connection between the offense and the abuse.

•

Evidence of good faith marriage. While a good faith marriage is not an element of cancellation and suspension, it is still important to show that the applicant entered into the marriage in good faith to overcome any possibility of a finding of marriage fraud, which could make the applicant ineligible for cancellation or suspension. “Good faith” here means that the applicant married the abuser for the principal purpose of sharing a life together and not solely to obtain an immigration benefit.

PRACTICE POINTER: Examples of Documentation of a Good Faith Marriage • • • • • • • • •

The self-petitioner’s own detailed declaration; Deeds to property or leases showing both spouses’ names; Bank accounts in both spouses’ names or showing one spouse as the beneficiary of the other; Vehicle registration in both spouses’ names; Wills indicating that the parties are married; Credit card, utility, and other bills in both spouses’ names; Jointly filed income tax returns; Insurance policies showing one spouse as the beneficiary of the other; Birth certificates of children born of the marriage;

11-24

• • •

Evidence of courtship, such as letters and photographs of the couple; Evidence of the marriage ceremony, such as photographs and invitations; and Declarations from relatives or friends.

•

Evidence of battery or extreme cruelty. Please see the Practice Pointer below for examples of types of evidence that might be used to establish battery or extreme cruelty.

•

Documents to establish extreme hardship. The evidence submitted to establish extreme hardship will depend upon the particular hardship factors of the individual case. Examples of possible types of evidence are listed in the Practice Pointer below.

•

Evidence of favorable discretionary factors and evidence to minimize negative discretionary factors. For suggestions on documenting discretionary factors, see §§ 7.2 and 7.4 of this manual.

PRACTICE POINTER: Examples of Documentation of Battery or Extreme Cruelty • • • • • • • • • •

The applicant’s own detailed declaration; Statements or letters from family members, friends, or other witnesses of the abuse and its effect on the applicant and on his or her children; Copies of temporary and final protective orders; Shelter records and other evidence that the victim sought shelter or protection; Counseling records and reports; Medical records documenting the abuse; Photographs of a visibly injured victim or property damage, supported by affidavits; Police reports; Letters from clergy or counselors to whom the abuse was reported; and School records reflecting the abuse.

PRACTICE POINTER: Examples of Documentation of Extreme Hardship •

The applicant’s detailed declaration;

•

Statements from the applicant’s children and other qualifying relatives, describing the effect that the abuse has had and that the applicant’s departure would have on them;

•

Medical records showing any disability or illness of the applicant or children requiring special treatment and, if applicable, evidence to show the lack or reduced extent of medical care available in the applicant’s home country;

•

Academic records, particularly statements from teachers indicating the impact that departure would have on a child’s academic progress and, if appropriate, evidence of the comparative lack of educational opportunity in the applicant’s home country;

•

If applicable, evidence that the applicant or his or her children do not speak the language of the home country;

11-25

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

•

Information from the applicant’s country showing that it is difficult to obtain protection against domestic abuse in that country;

•

Statements from relatives, friends, and school teachers to establish the ties of the applicant and children to the United States;

•

Birth certificates, evidence of immigration status, and statements from relatives to establish the relationship between the applicant and children and their relatives living in the United States and, if applicable, the comparative lack of family relationships in the applicant’s home country;

•

Statements from witnesses concerning the likelihood that the applicant or his or her derivatives would be subject to abuse or retaliation upon return to the home country;

•

Documentation of the abuser’s ability to travel to the home country and the abuser’s level of contact with the applicant’s friends and family there;

•

Expert affidavits from domestic violence counselors and psychologists or other counselors showing the effect that departure from the country would have on the applicant, his or her child(ren), and his or her parent(s);

•

Background country information and/or statements from experts concerning laws, social practices, or customs that might subject the applicant or his or her derivatives to ostracism, abuse, or other negative treatment upon return to his or her country. § 11.15 The Effect of a Grant of VAWA Suspension or Cancellation: Permanent Residence

If cancellation of removal is granted, the applicant’s status will be adjusted to that of lawful permanent resident, provided that there are visas available under the 4,000 annual limit, or “cap,” on cancellation adjustments. 105 After the cap has been reached in a fiscal year, decisions to grant or deny cancellation to non-detained applicants who meet the statutory eligibility requirements must be reserved until a grant becomes available under a subsequent year’s cap. 106 This means that applicants are placed on a sort of waiting list until a cancellation number is available for them. In order to reserve cancellation grants for persons who need them most, applications for cancellation will be denied if the applicant is granted asylum or adjustment of status. 107 In contrast, Congress exempted VAWA suspension applicants—those who received a charging document (order to show cause) before April 1, 1997—from the 4,000 cap. 108 Because there is no annual cap for suspension applicants, a person granted suspension will be immediately considered a lawful permanent resident. INA § 240A(e). 8 CFR § 1240.21(c)(1). See also Brian M. O’Leary, Chief Immigration Judge, Operating Policies and Procedures Memorandum 12-01: Handling Applications for Suspension/Cancellation in Non-Detained Cases once Numbers are no Longer Available in a Fiscal Year. Feb. 3, 2012, www.justice.gov/eoir/efoia/ocij/oppm12/12-01.pdf. 107 8 CFR § 1240.21(c)(2). 108 INA § 240A(e)(3)(B). 105 106

11-26

§ 11.16 Parole of the Child or Parent of a VAWA Suspension or Cancellation Grantee A second effect of a grant of VAWA suspension or cancellation is that it provides a means of family reunification. Prior to the Battered Immigrant Women Protection Act of 2000, a person granted suspension or cancellation could not immediately obtain lawful immigration status for his or her children or parents. The grantee could file a second preference family-based immigrant petition for his or her children, but there were long waits until priority dates became current. In the meantime, family members were separated or lived in undocumented status. The 2000 VAWA amendments provide a means for families traumatized by domestic abuse to stay together. Under these provisions, the government is required to grant parole to the grantee’s child or, if the grantee is a child, parent. 109 This parole status lasts until adjudication of the parolee’s application for adjustment of status. 110 This presumably means that the parole will last until the grantee files a relative visa petition for the paroled child or parent and the child or parent’s priority date becomes current. In the case of a grantee who is a child and whose parent is paroled into the United States under this provision, the parent’s parole will last many years, because the child cannot file a relative visa petition for the parent until the child both naturalizes and turns 21 years of age. The paroled child or parent may apply for employment authorization. 111 When the paroled child or parent applies for adjustment of status, the relative visa petition filed on his or her behalf is treated as a VAWA self-petition for adjustment purposes. 112 This means that certain bars to general adjustment of status, including entry without admission or inspection, unauthorized employment, unlawful status, and entry as a crewmember or in transit, do not preclude adjustment. There is no requirement of a penalty fee. 113 Because the parole is designed to last only until the paroled relative can adjust status based on a relative visa petition, it is crucial that the VAWA cancellation beneficiary file the I-130 relative visa petition promptly. The filing of the petition establishes the paroled relative’s priority date and thus begins the process through which the priority date will become current, at which time the relative may file an application to adjust status. It is especially important to file relative visa petitions for children before they turn 21, to take advantage of the shorter time delays under the family 2A preference category and to increase the possibility that, even if the child turns 21, he or she may be able to take advantage of the Child Status Protection Act provisions. For more on the Child Status Protection Act, please see § 5.5 of this manual. For derivative children of parents who were granted VAWA cancellation, the parent can file the I-130 immediately upon receiving the grant of VAWA cancellation. For children granted cancellation who are bringing in their parents or siblings, however, there will be a much longer wait, since the children must actually become U.S. citizens before they can file I-130s for their parents and siblings. INA § 240A(b)(4)(A). INA § 240A(b)(4)(B). 111 8 CFR § 274a.12(c)(11) [employment authorization for persons paroled into the United States]. 112 INA § 240A(b)(2)(4)(B). 113 INA §§ 240A(b)(2)(4)(B) and 245(a), (c). 109 110

11-27

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

PRACTICE POINTER: Filing the Request for Parole for Children or Parents of Person Granted VAWA Cancellation. At this writing (May 2017), an application for parole is made on Form I-131. At the time this manual is being written, the application should be sent to USCIS, PO Box 66086, Dallas, Texas, 75266. If expedited attention is needed because, for example, a child is about to turn 21, the application should be sent to USCIS, Attention: HP, 2501 South State Highway 121 Business, Louisville, Texas, 75061. If no response is received within thirty days, advocates may contact USCIS by mail, at U.S. Citizenship and Immigration Services, Humanitarian Affairs Branch, 20 Massachusetts Avenue, NW, Third Floor, HABMail 2100, Washington, DC 20529. For derivative children and parents who are already inside the United States, advocates should inquire at the local district office of Customs and Border Protection to determine the local procedure for obtaining parole for VAWA cancellation grantees. Because local offices are not always familiar with VAWA cancellation parole for derivatives, it is helpful to give the local office a cover letter explaining the provision and attach a copy of the statute. Historically, the procedure to request for parole for children or parents of a VAWA cancellation grantee has changed numerous times. Therefore, the procedure described here may no longer be accurate by the time you are seeking parole for a client’s family member. Therefore, advocates should be sure to check for updates, as USCIS may issue further instructions on where to file parole requests for derivatives VAWA cancellation grantees. The VAWA cancellation parole application is filed by the cancellation grantee parent or child. It should be consecutively paginated and include the following documents: 114

114

•

A cover letter, explaining the need for the parole and citing specifically to the statutory authority for parole of children and parents of VAWA cancellation grantees;

•

An index to the application, showing page numbers;

•

Form G-28 (Notice of Appearance as Counsel), if appropriate;

•

Form I-131 (Application for Travel Document);

•

Form I-134 (Affidavit of Support), with attached income tax returns and bank statement of the person signing the affidavit (can be the cancellation grantee or another person);

•

Evidence to establish the relationship between the principal grantee and the parole beneficiary (usually a birth certificate), with translation;

•

A copy of the judge’s order granting the VAWA cancellation or suspension;

•

A copy of the biographical page of the beneficiary’s passport or, if it is not available, an explanation of why it is not available and another government-issued identity document that establishes the beneficiary’s citizenship;

•

A copy of the VAWA cancellation grantee’s official identity documents;

See Instructions for Form I-131 at www.uscis.gov/i-131. 11-28

•

A copy of Form I-134 sponsor’s official identity documents and evidence of his or her citizenship or U.S. immigration status (such as a copy of a U.S. passport, lawful permanent resident card, or birth certificate);

•

Two photographs of the parole beneficiary taken within the last 30 days and meeting the requirements in the form instructions; and

•

A check or money order for the filing fee (currently $575, payable to the Department of Homeland Security) or a request for waiver of the fee. 115

Parole applicants inside the United States must also submit biometric information and pay the additional $85 biometrics fee or obtain a fee waiver. USCIS will notify the parole applicant of where to go to obtain the biometric report. Applicants outside the United States may also be required to provide a biometric report, but do not need to pay the biometric fee. 116 IMPORTANT: At least under current interpretation, a paroled child must obtain the grant of parole and enter the United States before he or she turns 21, and the paroled parent must obtain parole and enter the United States before his or her child granted VAWA suspension or cancellation turns 21. This interpretation may change in the future. The advocate should write in large letters and highlight “Age-Out Case” on the envelope and on the application itself. In addition, the advocate should follow up with the Humanitarian Assistance Branch and may need to communicate directly with the U.S. consulate in the country where the relative resides. It is also important to provide information and instructions directly to the relative abroad and, if the relative is a child, to the child’s custodians or guardians. These measures will help ensure that the relative enters by the age-out date. Advocates report that the Parole and Humanitarian Branch and consulates have been helpful in expediting age-out cases. An initial grant of parole for VAWA cancellation derivatives will normally be for a period of one year. Requests for extensions of the parole are filed with the local district office of Customs and Border Protection. The request for extension should include a cover letter, explaining the history and status of the case, Form I-131 (the application for parole), Form I-134 (affidavit of support), copies of the immigration judge’s order granting cancellation, evidence of the derivative’s relationship to the VAWA cancellation beneficiary, the initial parole documents, and any prior extensions of parole, and the filing fee or request for fee waiver. § 11.17 Denials and Appeals If the immigration judge denies the application for VAWA cancellation or suspension, the applicant may appeal to the BIA, 117 by filing Form EOIR-26, Notice of Appeal, with the BIA within thirty calendar days after the immigration judge’s oral decision or the mailing of the immigration judge’s written decision. 118 If the BIA upholds the immigration judge’s decision, the noncitizen may file a petition for judicial review with the U.S. Circuit Court of Appeals having USCIS provides guidance on fee waivers at www.uscis.gov/feewaiver. Special Instructions for Form I-131, www.uscis.gov/i-131. 117 8 CFR § 1003.38(a). 118 8 CFR § 1003.38(b). 115 116

11-29

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

jurisdiction over the place where the removal proceedings were held. 119 The petition must be filed with and actually received by the court within thirty days of the BIA’s decision. 120

119 120

8 USC § 1252(b). 8 USC § 1252(b)(1). 11-30

CHAPTER 11 VAWA CANCELLATION OF REMOVAL INDEX OF APPENDICES Appendix 11-A

Sample VAWA cancellation application

Appendix 11-B

Paul W. Virtue, INS General Counsel, Memorandum HQ 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children (Oct. 16, 1998)

11-31

Chapter 11

VAWA Manual March 2017

Chapter 11

=

Appendix 11-A-1

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-2

Appendix 11-A-3

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-4

Appendix 11-A-5

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-6

Appendix 11-A-7

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-8

Appendix 11-A-9

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-10

Appendix 11-A-11

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-12

Appendix 11-A-13

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-14

Appendix 11-A-15

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-16

Appendix 11-A-17

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-18

Appendix 11-A-19

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-20

Appendix 11-A-21

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-22

Appendix 11-A-23

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-24

Appendix 11-A-25

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-26

Appendix 11-A-27

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-28

Appendix 11-A-29

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-30

Appendix 11-A-31

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-32

Appendix 11-A-33

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-34

Appendix 11-A-35

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-A-36

Appendix 11-B-1

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-B-2

Appendix 11-B-3

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-B-4

Appendix 11-B-5

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-B-6

Appendix 11-B-7

Chapter 11

VAWA Manual March 2017

Chapter 11

Immigrant Legal Resource Center March 2017

Appendix 11-B-8

Attorney of the Day Service ILRC Technical Assistance

Since 1979, the ILRC has provided a unique, nationwide consultation service called Attorney of the Day (AOD), in which your immigration case questions are answered by our expert staff attorneys. We offer consultations on several aspects of immigration law to attorneys, employees of nonprofit organizations, public defenders, and other practitioners that assist immigrants. There are two options available:

Contract Service

This option allows you to secure an on-going contract with us for a lower rate than the one-time consultation fee. You can create an individual or group contract so that members of your organization have access to this service. To begin the process, we obtain a signed contract and collect an initial deposit. Each time you contact us with a question, we will deduct the pro-rated charge from this deposit. You will be billed when your account falls below $50.

One-Time Consultation

This option allows you to ask questions on a one-time basis. Payment must be made by VISA, MasterCard, or American Express. Please have your credit card information handy when you contact us. There is a minimum charge of 1/10 hour. All charges will be prorated. AOD consultation hours are Monday through Thursday between 10:00 am and 3:00 pm Pacific time. Inquiries will be answered within two business days, excluding Fridays. Questions can be sent to [email protected]. For more information, please visit https://www.ilrc.org/technical-assistance or call 415255-9499.

Reprint Permissions To reprint any of the information contained in an ILRC publication, please see our Reprint Permissions Policy available on our website at: https://www.ilrc.org/publications/reprint-permissions The following are guidelines for ILRC materials to appear in printed or electronic* format: All materials produced or published by the ILRC are protected by copyright. By submitting a request form, you agree to abide by our copyright restrictions and requirements. *For access to ILRC materials on intranets or public websites, ILRC will only allow for hyperlinking to the electronic materials already available on ILRC’s website, and grantee will specifically state that the ILRC material is available only for internal use and not for commercial use or mass distribution. For materials to appear in printed, electronic, or audio format, you may be granted a one-time usage license to copy and distribute the materials. You may not modify, delete or add any text, images or audio to the materials without express permission from the ILRC. All materials must be copied or distributed in whole, not in part. If the materials are to appear within another medium, or as a shortened version of the original, ILRC must review the particular usage before it can grant permission. All materials must be used in conjunction with the following credit line: Reprinted from [insert name of the original material] with permission of the Immigrant Legal Resource Center, San Francisco, CA, 415-255-9499; www.ilrc.org.

Subscribe to ILRC Listservs The ILRC maintains several e-mail listservs that address developments within specific areas of immigration law. We welcome you to join one or all of them. To do so, follow these instructions for each hotline, and YOU must self-subscribe to the ones of your choosing. You can join the listservs by visiting https://www.ilrc.org/subscribe, then select “Subscribe” and complete the simple form as instructed. There are eight lists to choose from: Education @ ILRC Want to stay informed about ILRC training opportunities and recent publication releases? This listserv will be dedicated to keeping you updated about our unique and timely educational resources. Famvisa Family immigration topics and updates, including legal developments and practitioner materials pertaining to accessing and applying the benefits of 245(i) through the LIFE Act. SIJS (Special Immigrant Juvenile Status) Immigrant children’s rights advocacy and policy updates. NACARA (Nicaraguan Adjustment & Central American Relief Act) Network of advocates, pro bono attorneys, and nonprofit agencies who are working directly with clients in the adjustment process.

ESSENTIAL ILRC PUBLICATIONS

The U Visa: Obtaining Status for Immigrant Victims of Crime This manual will guide you through the entire process of handling an immigration case for a U nonimmigrant applicant—from eligibility screening through adjustment of status to assisting eligible family members. In addition to providing a thorough explanation of the requirements and process, it includes numerous sample materials to help you in handling your client’s case, such as immigration forms you will need, sample checklists, declarations, receipt notices and other correspondence you can expect to receive from USCIS, motions to submit to the immigration court, and more.

Representing Survivors of Human Trafficking: A Promising Practice Handbook. This handbook contains lessons learned and promising practice tips in the context of a team-based approach to serving human trafficking survivors. It is based on years of experience representing survivors of human trafficking acquired by the authors, national experts Lynette M. Parker, Cindy Liou, and Ivy Lee. These lessons and tips focus on the experiences of the San Francisco Bay region, but may have applicability to other regions of the United States. The objective of this handbook is to assist advocates for survivors of human trafficking, attorneys and non-attorneys, who are critical to the successful stabilization of those who have been victimized by human trafficking. Essentials of Asylum Law The second edition of this comprehensive survey of the basic elements of asylum law now includes a thorough overview of asylum procedure, complete with practice tips for preparing and presenting an asylum claim. This publication is intended for advocates who want to understand the law and are new to representing asylum clients, as well as for seasoned practitioners needing a thorough review of current standards. Families & Immigration: A Practical Guide This guide provides a comprehensive overview of family immigration law, with clearly worded explanations about each topic, including sample applications, declarations, waivers, and charts. It reaches all aspects of family-sponsored immigration and provides an understanding of qualifications for who can file and how to submit a family-based visa petition. It also offers practical advice on how to engage your client to bring forth necessary information to allow you to more effectively assist them through the petition process. To receive information on new publications: Sign up for our Education Listserve at www.ilrc.org/subscribe