Violence Against Women Act (VAWA)

Requirements, Qualifications and Important Information

The Violence Against Women Act, or VAWA, was created so that victims of substantial physical, mental or emotional abuse, also known as “domestic violence”, can “self-petition” to either become Legal Permanent Residents (LPRs), to have the conditions of their residency removed, or to cancel the removal proceedings they are under if they experienced abuse at the hands of a US citizen or LPR.

Domestic Violence in Immigration Law

Domestic violence includes, but is not limited to, physical harm, forced sexual relations, psychological or emotional abuse, tactics of isolation in which the abuser may do things such as unreasonably control where the spouse or child goes or with whom they speak, intimidation, economic abuse in which support is withheld, immigration related abuse in which the abuser threatens to refuse to file immigration forms or to call immigration authorities to get the victim removed if they report abuse. Domestic violence is especially threatening for immigrants because the abuser can hold their immigration status over them as another method of intimidation. Victims of domestic violence often find it very difficult to leave their abuser and this is made even more difficult when the victim is subject to immigration proceedings and is fearful of deportation.

Applying for the Green Card as a Domestic Abuse Victim

Under normal circumstances, a spouse needs to begin the immigration proceedings for the nonimmigrant spouse or the children of the nonimmigrant spouse. When the spouse or child of a US citizen or LPR is being abused, though, he or she may petition for changes to their immigration status without the knowledge or permission of the abusive spouse or parent. This ability is especially important because there are times when the US citizen or LPR spouse will use the power he or she has over the immigration process as an additional means of threatening or abusing the nonimmigrant. In situations where a nonimmigrant is being abused by a US citizen or LPR, he or she may self-apply for immigrant status without the abusive spouse, crime perpetrator or family member being informed by taking advantage of the rights provided by VAWA.

In the event that an abused person has divorced their abusive spouse, there is a two year window in which a VAWA related claim can be filed as long as the divorce was related to the fact that abuse was taking place. The same two year window exists if the abusive spouse has passed away and immigration proceedings had not begun or had not been completed at the time of death. The victim of abuse does not lose his or her ability to apply for legal resident status through VAWA just because the abusive spouse has passed away.

Applying in Immigration Court as a Domestic Abuse Victim

Additionally, if a victim of violence is faced with removal, he or she can petition for a cancellation of removal based on a VAWA claim. In these situations, an immigration judge can waive deportation and grant LPR status. In order to qualify for a cancellation of removal, the victim must have been given conditional permanent resident status based on his or her marriage to the US citizen. This status applies for four years. After the third year, the conditions can be removed as long as the immigrant qualifies for legal permanent status. In the situation that the person has been the victim of abuse and faces removal between the third and fourth year, he or she can make a VAWA claim and have their removal cancelled if the VAWA claim is valid.
Children of an abusive US citizen or LPR parent are also capable of filing a VAWA claim and benefit from all of the potential options that a VAWA claim provides as long as the child is either under 21 years of age and unmarried or under 25 years of age and can prove that the reason a claim was not made before the age of 21 was that abuse existed. Child abuse includes, but is not limited to, physical abuse which is any injury that did not occur by accident, including excessive or unreasonable punishment, physical neglect which can include failure to provide shelter, food, medical care or supervision, sexual abuse, and emotional abuse which could include threats, or withholding love, support or guidance.

Self-petitioned VAWA claims are filed by using Form I-360. A number of pieces of evidence must be filed along with the I-360m in order to prove that the victim of violence qualifies for a VAWA claim, including evidence of the abuse at the hands of the US citizen or LPR spouse or parent. In order to receive a waiver to remove the conditions on permanent residence, a victim of abuse must file a Form I-751. In order to file for a cancellation of removal under the VAWA statute, a request must be made in immigration court.

Those filing a VAWA claim may remarry if they have already received a divorce from their abuser, but if he or she is relying on the VAWA claim for their immigration status, they must wait until the VAWA claim is processed to get remarried. Otherwise, the ability to file a VAWA claim is lost.

It is very important to consult with an immigration expert or an immigration attorney prior to filing any VAWA related claim in order to avoid deportation due to being out of status and lacking the proper qualifications for filing a VAWA claim.

Case Status Update: Lopez-Birrueta v. Holder / 9th Cir / 02/14/2011
Petitioner Lopez-Birrueta appealed the decision by the lower courts that the level of abuse experienced by her children at the hands of their father who is a legal permanent resident of the United States did not rise to the level of battery or extreme cruelty and therefore did not qualify her for cancellation of removal. The Immigration Judge ruled that although the children had been hit with tree branches among other things and that this testimony was credible, it did not reach the level of battery or extreme cruelty required by the law to avoid removal under a VAWA claim. While Lopez-Birrueta never married the father of her children and therefore cannot claim to be the spouse for her VAWA claim, she can qualify for a VAWA claim as the parent of children of a US citizen or Legal Permanent Resident abuser as Campos, the father and abuser, is an LPR.
In this case, it is found that Campos battered Lopez-Birrueta’s children and that, therefore, she qualified for a VAWA claim. Specifically, VAWA was created to remove the barriers for women to leave abusive relationships and, in this case, an abusive situation was ruled to exist.

Additional websites:
http://www.asistahelp.org/en/access_the_clearinghouse/vawa/
http://www.cpvisa.com/ADVISORIES/Domestic_Violence.pdf