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BATTERED SPOUSES

     Bibicheff & Associates, P.C., a well-known New York State law firm, is proud of helping to the victims of domestic violence. Hundreds of our clients who became victims of abuse and cruelty of US citizen spouses, parents or children or permanent resident spouses and parents could obtain Green Cards and eventually became US citizens. You do need silently suffer from abuse in order to be legalized in the United States as the United States Government is on your side and is ready to protect you.

     In the traditional family-based immigration process aliens must rely on their U.S. citizen or lawful permanent resident relatives to file immigrant petitions on their behalf. Knowing that their foreign relatives depend on their immigrant petitions, U.S. sponsors (US citizens and permanent residents) could become abusive and cruel toward their foreign relatives (children, step-children, spouses and parents).

     Congress first addressed this problem in 1990 by creating a battered spouse waiver for US conditional residents who otherwise had to file a Joint Petition to Remove Conditions of Residence together with their abusive spouses. However, this cured only part of the domestic violence problem as many US citizen spouses and parents failed to file immigrant petitions for their noncitizen relatives at first place and used their control of the immigration process as a weapon of abuse and manipulation.

     Thus, in the 1994 US Congress enacted Violence Against Women Act (VAWA) that created two ways for victims of domestic violence to gain a legal status without their abusers’ help : “VAWA self-petitioning” and “VAWA suspension of deportation.” Under 1994 VAWA, Spouses and children of US citizens or lawful permanent residents may file immigrant petitions on their own if they were battered or subjected to extreme cruelty by their US citizen or permanent resident spouses or parents.

     In 2005, US Congress allowed also to parents of abusive US citizens to file immigrant self-petitions. In addition, persons who are or used to be the spouses of abusive US citizens or US lawful permanent residents are also eligible to file self-petitions within two years of their divorce if one of the reasons of divorce was abuse or extreme cruelty of US citizen or permanent resident spouse. They and spouses who are parents whose child was abused by US citizen or lawful permanent resident spouse became also eligible for a special cancellation of removal and getting Green Card through proceedings in the US immigration Court.

      While waiting for adjudication of their self-petitions, VAWA applicants can get permission to work (Employment Authorization Document) and are eligible to receive certain federal public benefits that many noncitizens cannot get.

In order to obtain an immigrant visa, a self-petitioner needs to fulfill the following requirements:

1.   a) She or he shall be an abused parent, child, step-child, or spouse of an abusive U.S. citizen (USC), or

       b) She or he shall be an abused child, step-child, or spouse of an abusive U.S. permanent resident (LPR), or

        c) She or he shall be a non-abused spouse of an abusive US citizen (USC) or permanent resident (LPR) whose child was abused by USC or LPR

2.   If a self-petitioner is a spouse of USC or LPR, she or he shall demonstrate that she or he entered into the marriage with USC or LPR in a good faith;

3.   She or he has resided in the United States with the U.S. citizen or permanent resident abuser;

4.   She or he presently resides in the United States;

5.   She or he has been battered and subjected of extreme cruelty perpetrated by the U.S. citizen spouse/parent/ or child or permanent resident spouse/or parent;

6.   She or he is a person of good moral character and has not committed aggravated felony;

Note: If the USC or permanent resident was deported from the United States because of the abuse, the abused spouse or child may self-petition within two years of the deportation.

     Extreme cruelty is a broad concept for immigration purposes, covering any kind of abuse designed to exert power, manipulation and control over the victim. It includes psychological, emotional and economic abuse, coercion, threats (to anyone or anything the victim cares about), intimidation, degradation, social isolation, possessiveness, manipulating and using immigration status, and harming children, family members and pets.

The following factors are considered for adjudication of VAWA cancellation and self-petition:

• The need for access to courts and to the criminal justice system in the United States;
• The victim’s need for and use of services or domestic victim support systems in the United States and victim’s ability to obtain similar services in his/her home country;
• The lack of laws or enforcement of laws in the victim’s home country that protect victims of domestic violence, and the likelihood the abuser will follow the victim back (or already is there) to the victim’s home country;
• The likelihood people in the victim’s home country (including his/her relatives or their community) will harm the victim;
• The abuse the victim suffered was very severe or longstanding;
• Laws, social mores, and customs in the victim’s home country that penalize or ostracize women who challenge the subordination of women, who are divorced, or who have adopted “Western” values; and
• The application of all the above factors to the children.

Some Aliens are Eligible for U and T Visas

     The two new visas US Congress created in 2000 are for certain victims of crimes. Neither the status of the victim nor the abuser is relevant for either visa. Thus, the U visa in particular should prove helpful to domestic violence survivors whose abusers are undocumented or are not their spouses or parents.

Accessing the criminal justice system in the United States is essential to both visas.

The U Visa

     Victims of domestic violence, trafficking victims, nannies subjected to abuse from their employers, and victims of rape in the workplace are eligible for U visas.

     To qualify for a U visa, victims must show that they have suffered “substantial physical or mental abuse” in the United States. In addition, judges and detectives who have authority to investigate crimes should provide certificates to aliens who are qualifying victims of crimes and have been, are being, or are likely to be helpful in further investigation or prosecution of crime.

The T Visa

     The T visas for victims of trafficking for sex or labor require the involvement of federal law enforcement. If federal law enforcement is not helpful, the criminal or family court system may provide “secondary” evidence. Such evidence may include findings or documents that show the alien is a victim of such trafficking and that either the requests by federal law enforcement were not reasonable, or that the victim did, in fact, comply with such requests.

     In addition, T visa applicant must show extreme hardship involving unusual and severe harm if he or she is removed to his/her home country.

Gender-Based Persecution

     A victim of domestic violence seeking asylum in the United States must show that she fears persecution in her home country because she has been or is likely to be subjected to severe domestic violence if she is forced to return there. In most cases, the asylum claim is based on past abuse and extreme cruelty and fleeing to the U.S. was the victim’s final desperate attempt to save her life and/or lives of her children. As usually gender-based asylum claims are considered in the US Immigration Courts, it is virtually impossible to win an asylum claim based on domestic violence without the help of an experienced immigration attorney.

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