§ 10.4 Remedies

• Library: Rights of Foreign Nationals (OSBar) (2020 Ed.)

§ 10.4 REMEDIES

Survivors of domestic violence often qualify for one or more immigration benefits. Each form of relief has specific restrictions and benefits. Sometimes the client will want to pursue more than one form of relief at the same time. The most common benefits available for crime survivors are a VAWA self-petition (see § 10.4-1), a U nonimmigrant visa (see § 10.4-2 to § 10.4-2(b)), a T nonimmigrant visa (see § 10.4-3 to § 10.4-3(b)), and asylum (see § 10.4-4). All of these application processes are confidential. 8 USC § 1367(a)(2); 8 CFR § 1208.6. The Department of Homeland Security (DHS) may not release information about these applications without the victim's consent. 8 CFR § 1208.6(a). Additionally, DHS may not make unfavorable immigration decisions based solely on information provided by a spouse, parent, or other family member who resided in the same household as the immigrant and who is abusive toward the immigrant or the immigrant's child. 8 USC § 1367(a)(1).

PRACTICE TIP: The attorney should plan to spend more time with a client in this situation than is typical with clients in other types of cases. The extra time is critical to establishing trust in the relationship with the client for them to feel comfortable opening up to the attorney. Limiting meetings to two-hour sessions is also helpful, because the topic can be very draining for both the client and the attorney.

§ 10.4-1 Violence Against Women Act of 1994

The Violence Against Women Act of 1994 (VAWA) created the right for abused spouses and children to bypass the normal family visa process and self-petition for their own immigration status.

NOTE: VAWA was amended by the Battered Immigrant Women Protection Act of 2000, as part of the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) (Pub L 106-386, 114 Stat 1464). VAWA was also amended by the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) (Pub L 109-162, 119 Stat 2960) and the Violence Against Women Reauthorization Act of 2013 (VAWA 2013) (Pub L 113-4, 127 Stat 54).

NOTE: VAWA expired amid political disagreements in early 2019. See Am Bar Ass'n, Violence Against Women Act Reauthorization Threatened (May 16, 2019), < www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/may2019/vawa_update >. However, the expiration affects only the grant programs; the parts of VAWA discussed in this chapter remain effective.

Bypassing the normal family visa process took away the power and control that an abuser exercised over his or her spouse's or children's immigration status. Sadly, many abusive spouses and parents intentionally keep their spouses and children in unlawful status to ensure their vulnerability and dependence.

A VAWA self-petition is available to those who would otherwise have the ability to immigrate through the family visa process. This includes

• abused spouses of U.S. citizens and lawful permanent residents (LPRs) and their minor derivative children (8 USC § 1154(a)(1)(A)(iii), (B)(ii));
• nonabused spouses of U.S. citizens and LPRs, if their child was abused by the U.S. citizen or LPR, and their minor derivative children (8 USC § 1154(a)(1)(A)(iii), (B)(ii));
• abused children of U.S. citizens and LPRs, including their children as derivatives (8 USC § 1154(a)(1)(A)(iv), (B)(iii)); and
• abused parents of U.S. citizen sons and daughters, without the ability to include derivatives (8 USC § 1154(a)(1)(A)(vii)).

In addition to showing the family relationship, the INA requires that an applicant establish a number of other criteria:

• Present or past immigration status of the abuser, subject to certain exceptions. 8 USC § 1154(a)(1)(A)(iii)(II)(aa)(CC)(bbb), (A)(iv), (A)(vii), (B)(ii)(II)(aa)(CC)(aaa), (B)(iii).

• If relevant, that a legal marriage was entered into in "good faith." 8 USC § 1154(a)(1)(A)(iii)(I)(aa), (B)(ii)(I)(aa). There are exceptions for a bigamous marriage if the abuser was at fault. 8 USC § 1154(a)(1)(A)(iii)(II)(aa)(BB), (B)(ii)(II)(aa)(BB). In the case of divorce or death, the self-petitioner must petition within two years. 8 USC § 1154(a)(1)(A)(iii)(II)(aa)(CC), (B)(ii)(II)(aa)(CC).

• Joint residence with the abuser, and residence in the United States, with certain exceptions. 8 USC § 1154(a)(1)(A)(iii)(II)(dd), (A)(v), (B)(ii)(II)(dd), (B)(iv).

• "[G]ood moral character." 8 USC § 1154(a)(1)(A)(iii)(II)(bb), (A)(iv), (B)(ii)(II)(bb), (B)(iii).

• That the spouse, parent, or child was subj ect to battery or extreme mental cruelty. 8 USC § 1154(a)(1)(A)(iii)(I)(bb), (B)(ii)(I)(bb).

A self-petitioner and his or her derivatives have the ability to apply for work authorization documents once deferred action is granted; however, the process to receive employment authorization can be slow. 8 USC § 1154(a)(1)(K). Derivative children do not "age out" when they turn 21.

An approved self-petition is accompanied by a grant of deferred action. Deferred action is a status that the...