Immigration Options for Abused Immigrants

by Heather Poole, Esq. ©2004

 

Note:  “Non citizen” as cited in this article refers to immigrants who are not legal permanent residents and have not obtained U.S. citizenship.

 

Under the Violence Against Women Act, amended by the Victims of Trafficking and Violence Protection Act of 2001, abused immigrants now have practical, legal means of obtaining lawful immigration status or a green card without their abuser’s consent and often, knowledge.

 

 

 

Under U.S. immigration law, non-citizens may obtain legal immigration status and a green card by marrying a U.S. citizen (USC).  The USC must, however under the normal course, petition the Immigration and Naturalization Service (INS) for an immigrant visa accompanied by a green card application for his/her non-citizen spouse based on the marriage.  This process leads to the non-immigrant’s attainment of a green card.  When the relationship turns abusive, however, this process provides one of the most abusive ways an abuser can exercise control over the non-citizen, by holding the non-citizen’s tentative immigration status over her. 

 

A commonality in almost all non-citizen abusive marriages is this threat of deportation, often in the form of the abusive U.S. citizen or LPR spouse threatening to withdraw his/her sponsorship of the non-citizen’s visa petition, to not file at all, or contact INS and lie about her in an attempt to have her deported.  Often, non-citizens are given the ultimatum that they either tell no one about the abuse and thereby, let is continue, or else face deportation.  This threat of deportation, a form of severe psychological abuse, can be more terrifying to a non-citizen than even the worst physical abuse imaginable. Many non-citizens have children and family members in the U.S. who rely on them and many fear returning to the country they escaped, for fear of societal reprisal, inescapable poverty, and/or persecution.  When working with these abuse survivors, an attorney or legal assistant must also remember that the non-citizen survivor has often built a new life in the U.S. out of little. But, as we all know, domestic violence cuts across all social and economic barriers.  Even business executives, artists, and fashion designers, who may have the economic means to escape an abusive relationship, often stay for this same fear of being deported, if they leave their abusive spouse.

 

 

The Violence Against Women Act (VAWA), passed into law in 1994 and amended in 2001, provides hope for abuse survivors.  Abused non-citizens who are married to a U.S. citizen or who divorced their abuser in the past two years may now petition on their own for an immigrant visa and green card application, without the abuser’s knowledge or consent.  In this confidential process, INS agents are legally bound to refrain from contacting the abuser and telling him/her anything of the abused non-citizen’s attempts to obtain a green card under VAWA.  The process can often be completed within a year for those married to U.S. citizens.  Further, there is no appearance in front of a judge required (the process is paper driven) by the non-citizen spouse and the abused non-citizen may leave her abuser at any time, without harm to her immigration status.

 

Those married to legal permanent residents also qualify for this VAWA protection but the actual attainment of a green card could take much longer due to the backlogs of those qualifying for visas in this category.  The good news is that these survivors are still protected from deportation (unless they commit a crime, etc.) if the immigrant visa is approved, even though they do not yet qualify to file the green card application.  This is how it works.  Those married to U.S. citizens always have immediate eligibility for a visa but Congress only allows a certain number of visas for those married to LPRs to be released every year, thus creating a backlog due to the limited supply compared with the high demand.  A priority date system has been established based on the date of filing for the visa, to allot eligible visas and to allow these non-citizen survivors to apply for the green card by filing an application to adjust to Permanent Resident.  Non-citizen survivors who are married to LPRs who obtain an approved visa but are still awaiting their priority number to become “current” so they can apply for a green card, will obtain a notice from INS granting the survivor “deferred action status.”  This status gives the non-citizen the ability to apply for public benefits and work authorization, and is extendable until the time the non-citizen is eligible to apply for a green card.

 

To obtain a green card under VAWA as an abused spouse, the non-citizen must show that: (1) s/he has suffered extreme cruelty from her U.S. citizen or legal permanent resident spouse (LPR); (2) s/he entered into a valid, bona fide marriage with a U.S. citizen or LPR (i.e., for non-immigration related purposes); and (3) is a person of strong moral character (no criminal background is the best way to show this).  The previous 4th factor, a showing that the battered spouse will suffer extreme hardship if forced to return to his/her home country, is no longer required, although it is still applicable to a showing of extreme cruelty and is often essential to make a strong case of abuse.

 

 

 

Probably, one of the most common non-citizen abuse survivors you will run across who is not married to her abuser and the abuser, himself, may not even have valid immigration status.  The non-citizen is likely to be undocumented herself in this situation. 

 

 

Regardless of the non-citizen or abuser’s status, the non-citizen may obtain legal immigration status through the new U visa, which allows the non-citizen to eventually obtain a green card.  To be eligible for the U visa, the non-citizen must have suffered substantial physical or mental abuse resulting from criminal activity that violated a U.S. or local state law including rape or domestic violence.  The non-citizen must possess information concerning the crime and have a certificate or other affirmation signed by a designated official that s/he has been helpful, is being helpful, or is likely to be helpful to an investigation or prosecution of the criminal activity.  For example, this certificate could be signed by a police officer investigating a domestic violence, assault, or rape report, or a judge issuing a permanent restraining order.

 

The only hitch with this visa is that it is not yet being issued because no regulations explaining its scope have been released to date.  However, interim relief may be available for those who would squarely qualify for the U.  You should advise the non-citizen to consult with an immigration attorney knowledgeable on VAWA to best determine if she should expose herself to INS if she is currently undocumented in an attempt to gain interim relief.

 

The T visa may offer a solution to those who do not want to risk exposing their lack of immigration status to INS but who would otherwise qualify for immigration relief as a victim of crime.  The T visa, which is currently available and being issued, is specifically designed for certain human trafficking victims who cooperate with law enforcement against those responsible for their enslavement.  The statute allows victims to remain in the United States if it is determined that such victims could suffer, “extreme hardship involving unusual and severe harm” if returned to their home countries. After three years in T status, victims of human trafficking may apply for permanent residency (green cards).  In addition, subject to some limitations, the regulation allows survivors to apply for valid nonimmigrant status for their spouses and children and victims under the age of 21 may apply for non-immigrant status for their parents.

 

 

This is not a good idea.  First, if the non-citizen has overstayed her visa, entered the country without being inspected by an Immigration officer, or is otherwise, without lawful immigration status, if she leaves the country with her kids, she may be barred from re-entering the U.S. for 3 or 10 years upon attempted re-entry.   Under U.S. immigration law, any person who overstays their visa or is unlawfully present in the U.S. without a visa 6 months or more is subject to a 3-year bar of re-entry.  If the non-citizen is in the U.S. a year or more without lawful immigration status, she will be barred from re-entering the U.S. for 10 years, even if her other kids are in the U.S.

 

 

The good news is that abused spouses are exempt from the 3 and 10 year bars for unlawful presence although it is always wise for an abused spouse to bring documentation (a copy of the statute indicating this) with her before leaving for a trip abroad as some consulates and border agents are more likely to recognize this tenet of the law than others.   However, if the abused spouse does not have an approved abused spouse visa petition by the time she leaves the country, she does not have this special protection against the bars to re-entry.  Thus, the danger is high for many abused spouses who flee the U.S. without first protecting their immigration status.

 

 

The other major problem with fleeing the U.S. with the kids is the possibility that the abuser will retaliate against the abused non-citizen by calling the police and having a warrant issued for the non-citizen, claiming s/he kidnapped the children, even if there is an existing joint or sole custody provision favorable to the abused non-citizen.  If the non-citizen ever wants to re-enter the U.S. or ever obtain a green card, a charge of kidnapping would likely be fatal to her efforts.  Further, if she flees to a country that is a signatory of The Hague Convention treaty on international kidnapping, she and the children could be extradited to the U.S. with cooperation by the country she fled to. 

 

 

The abused non-citizen has options.  S/he does not have to continue to live with the threat of physical, financial or psychological harm from an intimate partner because of fear of being deported.  The above just skims the surface of the expanded relief available to abused non-citizens.  Options now even exist for those divorced from their abuser and those misled into bigamous marriages.  Further, even if VAWA doesn’t provide an answer for the particulars of an abused non-citizen’s circumstances, other long-existing provisions of U.S. immigration law may.  Urge the non-citizen to seek immigration advice of a lawyer, not a notario or paralegal. 

 

If you would like to learn more about VAWA relief for abused non-citizens, the National Immigration Project, run by the National Lawyers Guild and offers list servs attorneys and advocates may join for updates on domestic violence immigration issues.  Our firm also highlights frequently asked questions by abused immigrants on our website,www.humanrightsattorney.com.

 

 

Attorney Heather L. Poole practices immigration and domestic violence law in Pasadena, California.  She is a published immigration author and member of the American Immigration Lawyers Association (AILA).  Heather focuses much of her time on abused immigrant cases and is an active member of the National Network on Behalf of Battered Immigrant Women, a community advisory board member of the Los Angeles Commission on Assaults Against Women – San Gabriel Valley Region, and an active participant in LACBA’s Barrister Domestic Violence Project.  She can be reached at 626.432.4550 or heather@humanrightsattorney.com.