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VA WA

The VAWA Manual

Immigration Relief for Abused Immigrants

Catholic Legal Immigration Network, Inc. & Immigrant Legal Resource Center

The VAWA Manual

2002 Edition

Written by Catholic Legal Immigration Network, Inc. Immigrant Legal Resource Center San Francisco, California

Funded by a grant from The California Endowment

Copyright 2002 Catholic Legal Immigration Network, Inc. 564 Market Street, Suite 416 San Francisco, CA 94104 415.362.8677 www.cliniclegal.org Immigrant Legal Resource Center 1663 Mission Street, Suite 602 San Francisco, CA 94103 415.255.9499 www.ilrc.org

VAWA Manual August 2002

ACKNOWLEDGMENTS

This manual is the result of collaboration between two immigration law resource centers: the Catholic Legal Immigration Network's Northern California Regional Office (CLINIC) and the Immigrant Legal Resource Center (ILRC). CLINIC Senior Attorney Evangeline Abriel wrote Chapter 12 and, with other CLINIC attorneys, Chapters 5 through 10. Lauren Gilbert, formerly a CLINIC staff attorney and now a Visiting Professor at St. Thomas University School of Law in Miami, wrote Chapter 13. ILRC staff attorneys Susan Bowyer and Sally Kinoshita authored or helped complete the first four chapters. We learned a great deal from one another in the process and are grateful for the opportunity to have worked together. As noted below, the National Organization for Women Legal Defense and Education Fund (NOWLDEF) generously permitted its comprehensive review of public benefits for battered immigrants to be used as Chapter 14. The California Endowment provided the support to CLINIC and ILRC to produce this manual, as well as to work with non-profit and government agencies in California's Central Valley to increase and improve battered immigrants' access to immigration and other relief and services. We are grateful to program officers Lyn Alvarez and Karen Kurasaki for recognizing the significant degree to which individual and public health are served by helping battered immigrants access legal status and public benefits, including by publication of this practitioner's manual. The VAWA Manual describes immigration practice that has significantly benefited from the work of many dedicated individuals and organizations, several of whom have graciously permitted their excellent materials to be included in this manual. AYUDA, Inc. pioneered a comprehensive approach to serving the needs of battered immigrant women and their children, including domestic violence intervention and counseling, immigration relief, and civil and criminal remedies. AYUDA's manual, Assisting Battered Immigrants and Their Children to File Immigration Claims Under the Violence Against Women Act, is based on the organization's significant experience serving battered immigrants. AYUDA has permitted us to include materials they created on domestic violence and civil and criminal remedies in the appendix of this manual. We would particularly like to thank Anya Sykes of AYUDA for facilitating our use of these materials. The National Organization for Women Legal Defense and Education Fund (NOWLDEF) is the national authority on public benefits for battered immigrant women. NOWLDEF permitted us to include three articles in this manual, "Overcoming Cultural Barriers in Working With Immigrant Battered Women," "Steps to Obtain a Social Security Number for an Undocumented Immigrant and/or Child," and "Public Benefits Access for Battered Immigrant Women and Children". The latter article is so comprehensive and definitive that it serves as the public benefits chapter. We would particularly like to thank Janice Kagayutan for facilitating our use of these materials. The Domestic Abuse Intervention Project of Minnesota Program Development, Inc. developed the graphic, "Power and Control Wheel" which was adapted by the Family Violence i

VAWA Manual August 2002

Prevention Fund to reflect additional issues faced by abused immigrants. That graphic was translated into Spanish by the International Institute of the East Bay. These graphics are among the most widely used resources in the service of abused immigrants. We would like to thank each of these organizations for permission to use them. The Migrant Clinicians Network developed guidelines which should be followed by any advocate working with battered immigrants, included in "Working With the Abused Farmworker Woman," which they permitted us to include in the Appendix. We extend thanks to Stephanie Freedman for arranging for this permission. Rosa Fregoso of Legal Aid Foundation of Los Angeles created the guidelines for a client declaration included in the Appendix of Chapter 2 as part of a comprehensive VAWA practice manual, and has generously permitted its translation by International Institute of the East Bay, and use by ILRC and users of this manual. Carmen Reyes-Yosiff, an immigration attorney currently in private practice and former Managing Attorney of the International Institute of the East Bay (IIEB) and Patricia Aguirre, Paralegal at IIEB created materials included in the Appendix to help advocates and clients gather documentation, and provided much of the information included in Chapter 2 on working with battered immigrant clients. Matt Adams from the Northwest Immigrant Rights Project in Granger, Washington allowed us to use sample motions to reopen from their office. Lynette Parker, Attorney from the East San Jose Community Center allowed us to use sample VAWA Cancellation of Removal materials. Several leading immigration and domestic violence experts reviewed and contributed to the manual. Gail Pendleton, Associate Director of the National Lawyer's Guild National Immigration Project reviewed Chapters 3,4, 6, 7, 10 and 12. Charles Wheeler, CLINIC Director of Training and Technical Support, and Lauren Gilbert reviewed Chapter 5, 6, 7, 8, 9, 10, and 12. Lyn Kirkconnell, Co-Director of Immigration and Refugee Services, Catholic Charities Diocese of Stockton, California, reviewed and contributed to Chapter 2. Most of these groups and individuals work together in the National Network on Behalf of Battered Immigrant Women. Information about joining this network is listed in the Appendix. ILRC urges our readers to join this network to work to empower battered immigrant women to speak for themselves, and thereby change policies, practices, and attitudes that harm them. In addition, the National Immigration Project of the National Lawyers Guild maintains two listserves, "VAWA Updates" and "VAWA Experts" which help advocates understand and share information about this dynamic field of immigration practice. Information about subscribing to these listserves is included in the Appendix. ILRC is indebted to all of the participants in the Network and its listserves for their role in developing and understanding immigration relief for battered immigrants.

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Table of Contents

Chapter 1 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 INTRODUCTION

Introduction to Immigration Relief for Abused Noncitizen Spouses and Children........... 1-1 How to use this Manual...................................................................................................... 1-2 Contents of the Manual ...................................................................................................... 1-4 Dynamics of Domestic Violence........................................................................................ 1-5 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 .................................................. 1-8 Civil and Criminal Law Options for Abused Spouses and Children ................................. 1-9

Chapter 2 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8

INITIAL DISCUSSION WITH CLIENTS

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........................................................................................ 2-11 Talking About Advantages and Disadvantages of Applying for VAWA ........................ 2-14 Getting The Client Started On Gathering Documentation ............................................... 2-16 Next Steps ........................................................................................................................ 2-19

Chapter 3

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

3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3.13 3.14

Introduction ........................................................................................................................ 3-1 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 Where to File the Adjustment Application ......................................................... 3-4 Marriage Issues .................................................................................................................. 3-5 Abuse Issues ­ the LPR or USC Abused the Self-petitioner During their Marriage ......... 3-8 Residence Issues............................................................................................................... 3-10 The Self-Petitioner is a Person of Good Moral Character................................................ 3-11 VAWA Exceptions for the Bars to Good Moral Character.............................................. 3-13 Children of the Self-Petitioner may Qualify for Derivative Status .................................. 3-16 Requirements for VAWA Self-Petitioning Children ....................................................... 3-18 The Self-Petitioner is the Child of the Abuser ................................................................. 3-18 The Abuser is (or was) a LPR or USC ............................................................................. 3-20 The LPR or USC abused the Self-Petitioning Child ........................................................ 3-20

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3.15 The self-petitioning child is residing in the U.S. at the time the self-petition is filed, or, if filing from abroad, meets certain requirements ............................................................... 3-21 3.16 The self-petitioning child lives or lived with the abusive LPR or USC parent................ 3-21 3.17 The Child is a Person of Good Moral Character .............................................................. 3-21 3.18 Derivative Children .......................................................................................................... 3-22

Chapter 4 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 4.17 4.18 4.19 4.20 4.21 4.22 4.23 4.24 4.25 4.26 4.27

THE VAWA SELF-PETITIONING PROCESS

Introduction to the Self-Petitioning Process....................................................................... 4-2 Completing the Self-Petition.............................................................................................. 4-2 Filling out the I-360............................................................................................................ 4-2 Documenting the Requirements for the I-360.................................................................... 4-4 A Detailed Cover Letter with an Index of the Documentation .......................................... 4-5 Notice of Entry of Appearance by the Attorney or BIA-Accredited Representative......... 4-6 INS Filing Fee Amount ...................................................................................................... 4-7 The Self-Petitioner's Detailed Declaration or Affidavit .................................................... 4-7 Proof that the Abuser is (or was) a Lawful Permanent Resident or United States Citizen 4-8 Proof that the Self-Petitioner is (or was) Married to the LPR or USC............................... 4-9 Proof that the Self-Petitioner Suffered Battery or Extreme Cruelty ................................ 4-10 Proof that the Marriage or Intended Marriage was in Good Faith ................................... 4-11 Proof that the Self-Petitioner Resided with the Abuser ................................................... 4-12 Proof that the Self-Petitioner has Good Moral Character ................................................ 4-12 Evidence of the Self-Petitioner's Current Residence ....................................................... 4-13 Documenting Eligibility for a VAWA Self-Petition for a Child ..................................... 4-14 Filing the completed I-360 packet.................................................................................... 4-16 Prima Facie Eligibility ..................................................................................................... 4-17 Notice of Action/Request for Evidence ........................................................................... 4-18 Deferred Action................................................................................................................ 4-18 Preference Categories for Family-Based Immigration..................................................... 4-19 How the Preference System Works.................................................................................. 4-19 Using the State Department Visa Bulletin to Make an Estimate of when Your Client can Immigrate............................................................................................... 4-20 Employment Authorization .............................................................................................. 4-22 Adjustment of Status ........................................................................................................ 4-23 Notice of Intent to Deny................................................................................................... 4-24 Special Concerns for Advocates who are not Attorneys or Accredited Representatives. 4-25

Chapter 5 5.1 5.2 5.3 5.4

ADJUSTMENT OF STATUS FOR VAWA SELF-PETITIONERS

Introduction ........................................................................................................................ 5-1 When will a lawful permanent resident visa be available? ................................................ 5-2 Adjustment of status for VAWA self-petitioners: Adjustment requirements ................... 5-4 When should a self-petitioner who is an immediate relative file an application for adjustment of status? .......................................................................................................... 5-5

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Where to file the adjustment application............................................................................ 5-6 Adjustment of status for derivative beneficiaries............................................................... 5-8 · Applying for adjustment of status .............................................................................. 5-11 5.7 Completing the Form I-485.............................................................................................. 5-11 5.8 The contents of the adjustment application packet .......................................................... 5-18 5.9 Filing fees......................................................................................................................... 5-19 5.10 Interview process.............................................................................................................. 5-19 5.11 If adjustment of status is denied....................................................................................... 5-22

5.5 5.6

Chapter 6 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

INADMISSIBILITY GROUNDS AND WAIVERS FOR VAWA SELF-PETITIONERS

Overview ............................................................................................................................ 6-2 Health-Related Grounds ..................................................................................................... 6-3 Communicable Diseases .................................................................................................... 6-4 Lack of Vaccination ........................................................................................................... 6-5 Physical or Mental Disorders ............................................................................................. 6-5 Drug Abusers or Addicts.................................................................................................... 6-6 Criminal Grounds ­ Overview ........................................................................................... 6-8 Some Definitions: "Conviction,""Admission," and "Sentence"......................................... 6-9 Crimes Involving Moral Turpitude .................................................................................. 6-13 Multiple Criminal Convictions......................................................................................... 6-16 Controlled Substance Violations...................................................................................... 6-16 Traffickers in Controlled Substances ............................................................................... 6-17 Prostitution and Commercialized Vice ............................................................................ 6-17 Immunity from Prosecution ............................................................................................. 6-18 Particularly Serious Violations of Religious Freedoms .................................................. 6-18 Significant Traffickers in Persons .................................................................................... 6-18 Aggravated Felons............................................................................................................ 6-19 INA § 212(h) Waivers for Criminal Conduct of Immigrants........................................... 6-19 National Security Grounds ............................................................................................... 6-21 Public Charge ................................................................................................................... 6-22 Previous Immigration Violations -- Overview................................................................. 6-25 Aliens Present without Permission or Parole ................................................................... 6-25 Failure to Attend Removal Proceedings........................................................................... 6-26 Fraud or Willful Misrepresentation.................................................................................. 6-26 Waivers for Fraud or Willful Misrepresentation.............................................................. 6-28 False Claim of U.S. Citizenship ....................................................................................... 6-28 Stowaways........................................................................................................................ 6-29 Smugglers and Encouragers of Unlawful Entry............................................................... 6-29 Final Civil Document Fraud Order .................................................................................. 6-30 Foreign Students............................................................................................................... 6-30 Ineligibility for Citizenship .............................................................................................. 6-31 Prior Removal Orders or Periods of Unlawful Presence.................................................. 6-31 Having Been Previously Removed .................................................................................. 6-31 Unlawful Presence Bars ................................................................................................... 6-33

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6.35 Reentering the U.S. Without Authorization ..................................................................... 6-38 6.36 Miscellaneous Grounds .................................................................................................... 6-39 6.37 Reinstatement of Previous Removal Order and Consequent Ineligibility for Benefits ... 6-39 Chapter 7 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 WAIVERS OF INADMISSIBILITY FOR VAWA SELF-PETITIONERS

Overview.......................................................................................................................... 7-1 The Exercise of Discretion............................................................................................... 7-1 Extreme Hardship ............................................................................................................ 7-2 Documenting Extreme Hardship...................................................................................... 7-6 INA § 212(g) Waivers for Health-Related Grounds........................................................ 7-8 § 212(h) Waivers for Criminal Conduct ........................................................................ 7-10 INA § 212(i) Waivers for Fraud or Misrepresentation .................................................. 7-12 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 .......................................................... 7-15 Form I-212 Consent to Reapply for Admission............................................................. 7-16 CONSULAR PROCESSING FOR VAWA SELF-PETITIONERS

Chapter 8 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10

Introduction ........................................................................................................................ 8-1 Overview of the Process..................................................................................................... 8-2 Which Consulate? .............................................................................................................. 8-5 Consular Processing for Derivative Beneficiaries ............................................................. 8-5 The Instruction Package for Immigrant Visa Applicants................................................... 8-7 The Appointment Package for Immigrant Visa Applicants ............................................... 8-8 The Consular Interview .................................................................................................... 8-10 Review of Visa Denials.................................................................................................... 8-10 What Can Happen at the Border?..................................................................................... 8-11 Conclusion........................................................................................................................ 8-12

Chapter 9 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9

CONDITIONAL PERMANENT RESIDENCE AND ABUSED IMMIGRANTS

Introduction ........................................................................................................................ 9-1 Conditional Resident Status ............................................................................................... 9-2 Termination of Conditional Status by the INS During the Two-year Conditional Period. 9-6 Removing Conditional Status through a Joint Petition or Waiver ..................................... 9-7 Petitions and Waivers Filed for Children......................................................................... 9-16 INS Interview ................................................................................................................... 9-17 Approval of the I-751 Petition ......................................................................................... 9-18 Denial and Review in Removal Proceedings ................................................................... 9-19 Filing a VAWA Self-Petition in lieu of Proceeding with an Application for a Waiver of the Joint Petition Requirement ............................................................................................... 9-19 9.10 INS Notice Requirements................................................................................................. 9-20

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9.11 Conclusion........................................................................................................................ 9-20 Chapter 10 CANCELLATION OF REMOVAL FOR ABUSED IMMIGRANTS 10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 10.10 10.11 10.12 10.13 10.14 10.15 10.16 Introduction.................................................................................................................... 10-1 A Comparison of VAWA Self-Petitions with VAWA Suspension and VAWA Cancellation...................................................................................................... 10-2 The Difference Between VAWA Cancellation and VAWA Suspension ...................... 10-2 Persons Eligible to Apply for VAWA Cancellation of Removal or Suspension of Deportation .................................................................................................................... 10-4 Requirements for Cancellation of Removal or Suspension of Deportation ­ Overview10-5 Establishing the Family Relationship ............................................................................ 10-5 Battery or Extreme Cruelty............................................................................................ 10-8 Three Years Continuous Physical Presence................................................................... 10-9 Extreme Hardship ........................................................................................................ 10-10 Ineligibility under Certain Inadmissibility and Deportability Bars ............................. 10-13 Good Moral Character ................................................................................................. 10-14 Applying for VAWA Suspension or Cancellation ­ The Forum-Proceedings before the Immigration Judge ................................................................................................. 10-16 Documentation and the "Any Credible Evidence" Standard....................................... 10-18 The Contents of the Application .................................................................................. 10-19 The Effect of a Grant of VAWA Suspension or Cancellation..................................... 10-23 Denials, Appeals, and Motions to Reopen................................................................... 10-25 SPECIAL IMMIGRANT JUVENILE STATUS FOR CHILDREN UNDER JUVENILE COURT JURISDICTION

Chapter 11

11.1 Introduction and Overview............................................................................................... 11-1 11.2 Who is Eligible to Become a Permanent Resident Through "Special Immigrant Juvenile" Status? ............................................................................................................................ 11-1 11.3 What Are the Benefits of Applying For Special Immigrant Juvenile Status? ................. 11-5 11.4 What Are the Risks of Applying? .................................................................................... 11-6 11.5 Who Should Apply? ......................................................................................................... 11-6 11.6 What is the Application Procedure?................................................................................. 11-7 11.7 Talking with the Child Applicant and Child's Attorney About SIJS............................... 11-8 11.8 Original Parents, and Maybe Siblings, Cannot Benefit Through Grant of SIJS to Child 11-8 11.9 Children in INS Actual or Constructive Custody............................................................. 11-9 Chapter 12 12.1 12.2 12.3 12.4 12.5 12.6 12.7 U AND T NON-IMMIGRANT VISAS

Overview .......................................................................................................................... 12-1 T Nonimmigrant Visas ­ Requirements for T Nonimmigrant Status .............................. 12-2 The Application Process for T Nonimmigrant Visas ....................................................... 12-7 Admission of the T-1 Nonimmigrant's Immediate Family Members............................ 12-10 Adjustment of Status from T Nonimmigrant to Lawful Permanent Residence ............. 12-11 U Nonimmigrant Visas................................................................................................... 12-12 Conclusions .................................................................................................................... 12-17

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Chapter 13 GENDER-BASED ASYLUM Introduction With an article, written by Lauren Gilbert, entitled "Crossing the Private/Public Divide: Asylum Claims Based on Domestic Violence"

Chapter 14 PUBLIC BENEFITS FOR BATTERED IMMIGRANTS: ELIGIBILITY AND ADVOCACY Introduction With an article, written by NOW Legal Defense and Education Fund, entitled "Public Benefits Access for Battered Immigrant Women and Children"

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CHAPTER 1 INTRODUCTION

Contents 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Introduction to Immigration Relief for Abused Noncitizen Spouses and Children........... 1-1 How to use this Manual...................................................................................................... 1-2 Contents of the Manual ...................................................................................................... 1-4 Dynamics of Domestic Violence........................................................................................ 1-5 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 .................................................. 1-8 Civil and Criminal Law Options for Abused Spouses and Children ................................. 1-9

§ 1.1 INTRODUCTION TO IMMIGRATION RELIEF FOR ABUSED NONCITIZEN SPOUSES AND CHILDREN The Violence Against Women1 Act, enacted in 1994 and amended in 1996 and 2000, addresses a widespread problem: some abused noncitizens stay in abusive relationships because their abusive spouse holds a vital key to their 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 their immediate 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 Medi-Cal 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 the INS 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 provision, an abused spouse or child of a USC or LPR can selfpetition for lawful status in the U.S. Once a self-petition is approved, the self-petitioner will not be deported, will be qualified to work legally in the U.S. and receive pretty much the same government aid that lawful LPRs do. Under an additional provision, special rules make it easier

1

Although husbands and fathers are sometimes the victims of domestic violence, the title of the Violence Against Women Act reflects the gender of participants in the majority of domestic violence cases. This manual generally attempts to avoid gender-specific language, but where such language is used, it similarly uses female pronouns for victims, and conversely, male pronouns for abusers.

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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 U.S. This introductory chapter provides a brief overview of self-petitioning and cancellation of removal, and later chapters explain them in detail. In addition, this chapter introduces, and later chapters explain in detail, other types of immigration relief, including asylum, U and T visas, and Special Immigrant Juvenile Status that may also benefit some abused non-citizens. 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. People who are victims of domestic violence, and who may not have immigration documents, are very hard to reach out to. 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. It may be useful to emphasize to potential beneficiaries that VAWA was improved in 2000, so that now is a good time to consider applying. The Appendix to this manual contains outreach flyers, in English and Spanish, that highlight VAWA's main benefits and requirements. We strongly encourage any agency that serves immigrants or potential victims of domestic violence to distribute these flyers to potential VAWA beneficiaries. Feel free to add local information and to put the information on the flyers on your own letterhead. 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 what they have been through. 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 public 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 and paralegals. Private attorneys handling VAWA cases may also find this manual useful. This manual guides you through the entire process of handling an immigration case with a battered 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.

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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 nature and scope of domestic violence, the legal requirements, and ways in which they can help make their cases as strong as possible. Because potential beneficiaries of VAWA relief face at least two sets of major challenges -- as undocumented immigrants and as victims of domestic violence ­ this manual contains significant information about special considerations involved in working with clients to both respect their difficult circumstances and involve them as much as possible in the preparation of their cases. Please see particularly the discussion of working with clients in Chapter 2. Supporting a client's involvement in the preparation of her case is not just more efficient for a legal worker. 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 not to 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. The appendix to this manual, therefore, contains materials in English and Spanish that facilitate VAWA applicants' participation in their cases, including descriptions of VAWA's requirements and process, and checklists of documents that a client can gather. We encourage you to use these appendices as much as possible. Feel free to copy them on to your own letterhead and make any changes you feel are necessary. 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 INS office in Vermont that handles VAWA self-petitioning cases is well trained and fair. However, some VAWA policy is set at other levels of INS, and local INS offices handle VAWA cases at later stages, and even the Vermont office sometimes makes mistakes. We strongly encourage you to investigate challenging the INS's interpretation of any legal requirement that is not grounded in the Immigration and Nationality Act (INA). ILRC's legal staff would be happy to discuss any ideas you have about INS interpretations or conduct that you think is unfair or wrong. 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 changes constantly and can be complex. Further research must be done on issues not discussed in this manual or new developments in the field. We recommend that advocates regularly consult the website of the National Immigration Project of the National Lawyers Guild (NIPNLG) at www.nationalimmigrationproject.org (click on Domestic Violence) for information on new developments in VAWA law and procedure. We also recommend that advocates

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subscribe to the "VAWA Updates" listserve. To do so, send an e-mail to Sandy Lin at [email protected]

§1.3 CONTENTS OF THE MANUAL This manual contains 14 chapters and an extensive appendix. The following subjects are covered in detail: · Chapter 2 discusses issues involved in working with immigrants who are battered, and includes a sample explanation of 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 through which someone with an approved immigrant visa (like an approved VAWA self-petitioner) becomes a LPR, and which takes place in the U.S. · 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 discusses waivers of the grounds of inadmissibility available to VAWA selfpetitioners and other battered immigrants. · Chapter 8 describes "Consular processing," the process outside of the U.S. through which someone with an approved immigrant visa (like an approved VAWA self-petitioner) becomes a 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 become a LPR without the cooperation of the abusive spouse. · Chapter 10 details Cancellation of Removal, the procedure for domestic violence victims in deportation proceedings to apply for LPR status. · Chapter 11 describes Special Immigrant Juvenile Status, which permits abused, neglected and abandoned children who are dependents of U.S or state juvenile courts or agencies to apply for LPR status. · Chapter 12 discusses "U" non-immigrant visas, available for certain victims of crime, and "T" non-immigrant visas for victims of trafficking in persons. · Chapter 13 discusses asylum law and the Convention Against Torture as they apply to people who have been persecuted on the basis of their gender, and related grounds. · Chapter 14 describes the public benefits, like Temporary Assistance to Needy Families and Food Stamps, that are available to some abused noncitizens. The appendix to this manual includes many items an advocate needs to educate potential clients about immigration relief for battered immigrants and help a client submit an effective application for immigration relief, including application forms, model applications and documentation, copies of INS notices, statutes, and INS memoranda interpreting VAWA (see Index of Appendices). It also includes excellent materials on important issues not discussed in 1-4

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detail in the text of the manual, including the dynamics of domestic violence, family and criminal law remedies for victims of domestic violence, and helping clients develop safety plans. § 1.4 THE DYNAMICS OF DOMESTIC VIOLENCE According to experts, domestic violence manifests itself in a continuous cycle of three stages: tension building, acute or abusive, and honeymoon. Children, whether directly abused or indirectly as witnesses, are profoundly impacted by domestic violence. And while domestic violence crosses all race, class and cultural lines, immigrants face more, and higher hurdles than other domestic violence victims in getting the services and resources they need to escape the violence. Chapter 2 includes useful information about interviewing, explaining VAWA to, and working on VAWA cases with clients who have been abused. Appendices 4 through 8 include comprehensive materials on the nature of domestic abuse and working with abused clients.2 We urge you to thoroughly review these materials so that you can: · · · · · Refer clients to appropriate services, Understand the different challenges they will face working with clients, Adequately assess and demonstrate to the INS the domestic violence experienced by the client. Ensure the safety and confidentiality of your clients and their files Develop safety plans with clients

Advocates should also research and develop a list of services and range of legal options available to domestic violence victims in their communities. Please see list of resources at Appendix 14. § 1.5 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. 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 selfpetition (if they also meet the self-petitioning requirements described below in § 1.6): 1. 2. 3. An abused spouse of a USC or LPR;3 An abused "intended" spouse of a USC or LPR, whose good faith marriage to the abuser was not legally valid due to bigamy by the abusing spouse;4 An abused child of a USC or LPR (a "child" is defined as unmarried and under 21 years of age);5

Appendix materials reprinted with permission of AYUDA, Inc., National Organization for Women Legal Defense and Education Fund and the Migrant Clinician's Network.

3 4 5

2

INA § 204(a)(1)(A)(iii) (spouse of USC) and INA § 204(a)(1)(B)(ii) (spouse of LPR). INA § 101(50); Id. INA § 204(a)(1)(A)(iv) (child of USC) and INA § 204 (a)(1)(B)(iii) (child of LPR).

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4.

A non-abused spouse of a USC or LPR whose child is abused.6

Note: A non-abused child of an abused spouse or child qualifies for VAWA if he is listed on the abused spouse or child's self-petition.7 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.

§ 1.6 OVERVIEW OF SELF-PETITIONING: SELF-PETITIONING REQUIREMENTS A person who qualifies as a spouse or child according to the definitions listed above in § 1.5 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 self-petitioner, the abuse could have happened at any time.)8 Note: The self-petitioner does not have to be married to the abuser at the time of filing the petition, if the marriage was dissolved because of the abuse within the two years before she files the petition.9 The applicant may be considered to have been abused for the purposes of VAWA relief if the USC or LPR spouse (or parent)10: · · · · · · · · · Threatened to beat or terrorize her Hit, punched, slapped, kicked, or hurt her in any way Emotionally abused her, such as insulted her at home or in public Forced her to have sex when she did not want to Threatened to take her children away or hurt them Threatened to deport her or turn her into the INS, as part of a larger pattern of control and abuse Controlled where she went, what she can do, and who she can see Forcibly detained her Engaged in a pattern of behavior that would not appear abusive if considered individually.

2.

6 7 8 9

INS § 204(a)(1)(A)(iii) (spouse of USC) and INA § 204(a)(1)(B)(ii) (spouse of LPR). 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).

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).

10

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).

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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.11 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 employee of the U.S. government or uniformed services, or the abuse occurred in the U.S.12 The applicant got married in "good faith."13 The applicant has good moral character. Basically, this means that she did not commit certain crimes or immigration offenses.14 The abuser must be a USC or LPR. However, if the abuser was deported because of the abuse, the abused spouse or child may self-petition within two years of the deportation.15

4.

5. 6.

7.

Note: If a parent qualifies, then her children listed on her self-petition (unmarried, under 21, including adopted and step-children) also qualify, even if they have not suffered any form of abuse. 16 When a child turns 21, he will not lose VAWA benefits, including eligibility to apply for an immigrant visa. Instead, the INS will just change his visa category from that of an "unmarried child" to one for an "unmarried son or daughter."

§ 1.7 OVERVIEW OF SELF-PETITIONING: PROCESS AND BENEFITS Unlike most family-based immigration, a VAWA self-petitioner may be eligible for work authorization and certain public benefits, and protected from deportation during the waiting period before she adjusts status to 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. 1. The self-petition is filed with a specially-designated INS VAWA office, on form I-360, with documentation to prove how the self-petitioner meets the self-petitioning requirements. INS can correspond with a self-petitioner's designated representative so her abuser will not find out that she petitioned. If the self-petition is apparently approvable, INS will send the self-petitioner (or her representative) a Notice of Prima Facie Eligibility within about a month. The selfpetitioner may use this notice as evidence of "qualified alien" status to obtain government

2.

11 12 13 14 15 16

INA § 204(a)(1)(A)(iii)(II)(dd) (spouse of USC); INA § 204(a)(1)(B)(ii)(II)(dd) (spouse of LPR). 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). INA § 204(a)(1)(A)(iii)(II)(bb) (spouse of USC); INA § 204(a)(1)(B)(ii)(II)(bb) (spouse of LPR). INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb) (USC abuser); INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa) (LPR abuser). INA § 204(a)(1)(A)(iii) (child of abused spouse of USC); INA § 204(a)(1)(B)(i) (child of abused spouse of LPR).

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aid like Medi-Cal and Cal-Works (and with some additional requirements, Food Stamps and other benefits). 3. If the INS approves the self-petition, about 3-6 months after it was filed, the INS will send the self-petitioner a Notice of Deferred Action. Deferred Action means the INS knows the self-petitioner is in the U.S., and has determined that it will not try to deport her. With the Notice of Deferred Action, the self-petitioner can apply for work authorization from the INS. The self-petitioner may "adjust status" to LPR status when her immigrant visa becomes available. This may be immediately for spouses and children of USCs, or take several years for spouses and children of LPRs.

4.

§ 1.8 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 described in Chapters 9 through 13. Briefly, those procedures include: Battered Spouse Waiver of Joint Petition for Removal of Conditional Residence. (Chapter 9) 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 condition near the end of the two-year period. Instead of enduring the harmful relationship and hoping her/his 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. VAWA Cancellation of Removal (Chapter 10) 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 U.S. for at least three years; removal from the U.S. would cause extreme hardship to the non-citizen, or his child or parent.

Special Immigrant Juvenile Status (Chapter 11) Children who are in, or are eligible for long-term foster care may petition for an immigrant visa as a Special Immigrant Juvenile. Under this program, the 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 before the child comes of age under state law and is no longer in foster care, generally by the child's 18th birthday.

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Crime Victim U Visas (Chapter 12) 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 new "U" visa categories were created for victims of crimes, including domestic violence, who are willing to help in a criminal investigation or prosecution of perpetrators of crime. Asylum for Domestic Violence (Chapter 13) 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 INS rules on domestic violence cases have made asylum for some victims of domestic violence a stronger possibility for obtaining protection and legal status.

§ 1.9 CIVIL AND CRIMINAL LAW OPTIONS FOR ABUSED SPOUSES AND CHILDREN The primary goal of domestic violence advocates, immigration service providers, social workers and other advocates is to ensure that clients who have endured domestic violence and their children are safe and secure, both in the short and long term. Certain civil and criminal laws provide clients and their advocates with powerful tools to enhance their safety and security, including civil protection orders, custody arrangements, mandatory counseling for batterers, police intervention and criminal prosecution for a range of domestic violence offenses. We are experts in immigration law and procedure, not family or criminal law. We have, therefore, included in the appendix comprehensive materials produced by AYUDA, Inc. on these subjects. We urge you to thoroughly review the materials in Appendix 15.

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CHAPTER 2 INITIAL DISCUSSIONS WITH CLIENTS1

Contents 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........................................................................................ 2-11 Talking About Advantages and Disadvantages of Applying for VAWA ........................ 2-14 Getting The Client Started On Gathering Documentation ............................................... 2-16 Next Steps ........................................................................................................................ 2-19

§ 2.1 OVERVIEW OF WORKING WITH CLIENTS TO COMPLETE THE SELF-PETITION Interviewing a client about potential eligibility for self-petitioning under VAWA is like two very different interviews at once ­ one about eligibility for an immigration benefit, and the other about the nature and degree of domestic violence the client has endured. Both interviews 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 to the INS 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 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

1

Much of the information provided in this chapter is based on interviews with Carmen Reyes-Yosiff, Managing Attorney, International Institute of the East Bay, Oakland, CA and Lyn Kirkconnell, Co-director of Immigration and Refugee Services, Catholic Charities, Stockton, CA.

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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 afraid if I do he'll get my kids because I won't have a green card"), she may feel respected and included. In addition to basic immigration law information, you must interview your client about the nature and degree of abuse she has endured. Potential beneficiaries of VAWA relief face at least two sets of major challenges -- as undocumented immigrants and as victims of domestic violence ­ which will affect, and be affected by, how you work with them. For more information on barriers faced by battered noncitizens and strategies for overcoming those barriers, please see materials prepared by the National Organization for Women Legal Defense and Education Fund (NOWLDEF) and the Migrant Clinician's Network, at Appendices 4 and 5. This chapter includes suggestions from experts who work with immigrant victims of domestic violence. Following their suggestions -- such as allotting significantly more time for a VAWA interview than for a typical immigration interview ­ may make your interviews more effective at gathering important information. They may also make her feel more respected and acknowledged as an active agent for change in her circumstances. Although some clients who have experienced domestic violence may not be emotionally ready to take an active role in their cases, those who are ready 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. § 2.2 TIPS ON INTERVIEWING FROM IMMIGRATION AND DOMESTIC VIOLENCE EXPERTS2 Before the Interview · 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.

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, each of which is included in Appendix 1.

2

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·

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. 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 U.S. Familiarize yourself with the dynamics of the domestic violence, including the power and control framework and the cycle of violence. (Please see articles in Appendices 4 and 5, "power and control wheel" at Appendix 6 and "cycle of violence" chart at Appendix 7). Recognize that those 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. Domestic violence 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. Find out local resources like shelters, counseling, crisis lines, special police Domestic Violence units, legal services for TROs, divorce, and child custody. Find out specific contact people and their availability, if possible. 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 INS is legally prevented from sharing information about a VAWA application with an abusive spouse, or anyone except another INS officer.3 Ask the client how she would like you to contact her ­ for example through a friend, without identifying yourself, etc.

· ·

3

Please see materials describing this standard at Appendix 5, including "Battered Spouses and Children Confidentiality Fact Sheet" prepared by NOWLDEF, text of IIRIRA § 384, and May 5, 1997 Memorandum from INS Acting Executive Associate Commissioner Paul Virtue, "Non-Disclosure and Other Prohibitions Relating to Battered Immigrants: IIRIRA § 384").

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· · ·

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 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. Please see discussion of how to explain VAWA selfpetitioning to clients below at § 2.4. 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 INS on her own. Realize you will not get all the information you need in the first interview. 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.

·

·

· · ·

· · · · · ·

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· ·

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 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? Ask: Did your husband tell you he would call INS 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? Show your client the "power and control wheel," "cycle of violence" and "Myths and Facts of Intimate Partner Violence" handouts (in her own language if possible: see English and Spanish versions at Appendices 6 and 7) 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 develop a safety plan if she has not already done so.4 Help your client access any other services she may need, including domestic violence counseling, shelter, social services, and protection through civil and or criminal legal

· · · ·

See Appendix 6 for Safety Plan materials, including a memorandum prepared by NOWLDEF for advocates and clients and safety plan checklists (in English and Spanish) prepared for clients by the Migrant Clinicians Network.

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systems.5 Give her specific referrals, preferably to someone with whom you have spoken already. · 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 INTERPRETER6 If your client is less than fluent in English, it is critical that you have a competent interpreter. Your client may also be illiterate 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, technically, be nothing more than a voice box. Otherwise, you risk creating distance and mistrust between you and your client. Here are some simple rules of thumb which 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. 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.

· · ·

5

See Appendix 7 for referral information, Appendix 8 for information about civil and criminal protection prepared by AYUDA, Inc., and Chapter 14 for information about public benefits available to abused noncitizens.

6

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

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·

Do not talk in English to 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 which 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 critical information and the client's own feelings about, and perception of, the facts being lost. 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.

·

·

·

§ 2.4 EXPLAINING VAWA TO CLIENTS As in any client relationship, there are several important elements that one must cover 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.7 Explaining the requirements 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 that any other topics will seem unimportant and frustrating. 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. Third, she needs to understand the VAWA process so that she feels confident working her way through it and so that she can

In many cases, it may be most appropriate for someone else with both VAWA training and a relationship with the abused spouse or child ­ like a counselor at a shelter -- to explain VAWA to her and help her make a preliminary determination whether she is eligible to apply. A "Preliminary Screening And Referral Sheet" is included in Appendix 2 of this manual. 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 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.

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prepare well for each step. Fourth, you must communicate that you and your client 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 she 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 TIP: Many immigration advocates have their own intake forms or client information questionnaires that can be completed during the interview described in this chapter. Sample VAWA intake forms are included in Appendix 2. Non-immigration advocates who only want to do 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.

As you read about VAWA's requirements and process in Chapters 3 and 4, you may develop your own approach to explaining it to clients. The following explanation may also be helpful. "You may have heard that there's a new law called VAWA (for the Violence Against Women Act) that gives immigrants who have been abused by a U.S. citizen or permanent resident spouse (or parent) permission to live and work in the U.S. and get some help like food stamps and welfare. We'll talk about that today, and whether it can help you, and if it can, whether you want to work together with me to apply for VAWA. Our whole meeting today will last about ______ [time you have scheduled] to give you time to talk about your situation, decide what you want to do, and start working on your case if that makes sense. "First, I want to tell you about the purpose of the law, what the rules are and how to apply for it because you and I are a team on this and we both need to know the same information. We'll work together to decide if you qualify, and if you want to apply. If you decide to apply, we'll work together on your case. I also want you to understand that everything we talk about today is confidential. I can't share it with anyone who is not working on the case with me, and when we send your application to the INS, they can't share your information with anyone else either.

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"You've been through a lot, and I want you to know that I will work hard with you. We'll be partners in this case, finding out answers to things, making decisions, filling out forms and collecting documents together. We will not do anything that you do not understand, or do not think makes sense. "As you may know, U.S. citizens and permanent residents (green card holders) can file immigration papers for their spouses and children. Sometimes, when a U.S. citizen or permanent resident is abusing his8 spouse or child, he won't file those papers, or even if he does he'll threaten to stop the process of helping you get your permanent residence. VAWA lets that abused spouse or child file immigration papers for herself. The law only helps spouses and children of U.S. citizens or permanent residents because they were the only ones who could have had immigrant papers filed for them in the first place. It only helps immigrants who can show they were abused, because otherwise their spouse or parent should have filed the papers for them. "Now that you know the basic idea of the law, let's talk in more detail about whether your situation is covered by VAWA. I'm giving you a list of the legal requirements so you can note them as we go along. [Give the client one of the self-help flyers in Appendix 1. The requirements are listed on the back page.] "First, remember that VAWA helps spouses and children of U.S. citizens or permanent residents, although the law may allow some people who have been divorced or whose abusers have lost their status to apply. "a) Do you think your spouse (or parent) is a U.S. citizen or permanent resident? (If yes, move on to question 2.) If not, is it because your spouse has been removed (deported) or put into removal proceedings? VAWA allows a spouse to file her own immigration papers if her permanent resident spouse was removed (deported) within the past two years because of the abuse. Was your spouse removed or put into removal proceedings within the past two years because of his abuse of you or your children? "b) Are you married to, or the child of a U.S. citizen or permanent resident? (If yes, move on to question 2. If not, is it because you are divorced? VAWA allows a spouse to file her immigration papers even if she has gotten divorced from a U.S. citizen or permanent resident within the past two years, if the divorce was connected somehow to the abuse. This is important for abused spouses who need to get out of a dangerous situation. Is there a connection between your divorce and the abuse you have suffered? Was your divorce within the past two years? "c) To qualify for VAWA self-petitioning, your marriage had to be a legal, good faith marriage. This means that it was legal according to the laws where you were married, and that when you got married, you intended to live together as husband and wife. One of the main ways a marriage would not be valid is if you did not have a wedding and file marriage papers. Do you think your marriage was good in this way? Another way it would not be valid is if either you or

8

If the client is a man and the abuser a woman, substitute appropriate pronoun.

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your spouse did not get a proper divorce from another person before you were married to each other. Do you think you and your spouse took care of all that properly? [If she does not think her spouse properly dissolved other marriages, examine with her the possibility that she is an "intended spouse." See Chapter 3.) Also, as you probably know, the Immigration Service will not let someone immigrate if his or her marriage to a U.S. citizen or permanent resident was just to get immigration papers. The INS calls any other kind of marriage a "good faith marriage," and it's fine to immigrate then. Was your marriage a "good faith" marriage?" [Give the client a copy of the "power and control wheel", which can be copied from Appendix 6. If her native language is Spanish, give her a copy of the Spanish-language version to help ensure that she fully understands the words and concepts involved.] "Second, VAWA is meant to help people who have been, in the words of the law itself, "battered or subjected to extreme cruelty," which basically means your spouse has mistreated you in some serious way. This doesn't only mean that a person has been hit by her spouse or parent. There are many different kinds of abuse. I've given you something called a "power and control wheel" that describes many things that people who have thought of as abuse, or in the INS's words, "battery or extreme cruelty." Let's take a look at each of the areas on it, starting with the top and working our way around. If any of these things, or anything else we talk about, makes you think of something that has happened to you, please tell me about it. You don't have to give it a name, or tell me in any special way, or hurry. But I would like for you to tell me not only what happened, but how it made you feel." [State each of the items on the power and control wheel and permit the client to talk about whether a certain thing has happened in her relationship to the U.S. citizen or Lawful Permanent Resident. It is important that you follow the advice from domestic violence experts listed in § 2.2 to ensure that you build a trusting relationship and help your client feel both comforted and respected.]

PRACTICE TIP: Because the discussion of battery and extreme cruelty may be traumatic, advocates may choose to bring it up toward the end of the interview after the basic intake information has been gathered and the remainder of the self-petitioning requirements have been covered.

"One of VAWA's main purposes is to help spouses and children who may be in dangerous situations to get the legal status and benefits they need to get away from that dangerous situation. VAWA has certain limitations that make it harder to get for some people who are safely far away from the abuser. The next questions will be about those limitations.

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"Third, VAWA only helps people who were abused in the ways we just discussed during the marriage. Did the abuse we just talked about take place during your marriage to the spouse (or parent) who abused you? "Fourth, VAWA is only available to people who lived with the abuser at some time. Did you live with _______ at some time? "Fifth, VAWA self-petitioners have to show that they have what the immigration laws call "good moral character". Good moral character doesn't mean you are extremely good ­ just that you haven't done certain things the INS considers bad moral character. All those things are on the list I am giving you. [Give the client the GMC red flag checklist (which is the second page of the VAWA Self-Petitioning Preliminary Screening sheet at Appendix 2.] We'll go over this list together in a moment. But first I want to point out that I ask every one of my clients these questions, and that it's to protect you and help you prevent any problems in your application. If you need to answer one of these questions "yes," that does not mean you can't apply for VAWA. It just means we [or, if you are not an immigration expert, "an immigration expert"] need to look into the issue more and figure out how to explain it or balance it out with other good things you have done. [Go over checklist together.] [The following issue should only be covered if the client is not living in the U.S.] "Sixth, VAWA is mostly only for people who have lived in the United States. [If necessary, see Chapter 3 to analyze the occasional case where a client is not living in the U.S.]

§ 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 two of VAWA's most significant benefits: when and how a VAWA applicant gets 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. Please see Chapter 4 for a discussion of how to prepare your client if your office will not maintain her case after the initial application and grant of Deferred Action.

PRACTICE TIP: It is both useful and empowering to give your client a written description of the VAWA process (if your client can read). A flow chart of the process, in Spanish and English, is included in Appendix 16.

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The following sample explanation may be useful in combination with a written one. "Before filing a self-petition to get permission to live and work in the U.S. under VAWA, you have to decide whether you meet all the requirements. We've done that, and you do! Then you need to decide whether you want to go ahead and apply. To help you make that decision, I'll give you an overview of what the application process and benefits are. In a few minutes we'll also talk about some of the disadvantages of applying, and then we'll talk about whether you want to apply. Then we'll talk about what each of us needs to do next to get the process started and we'll set up a date for our next appointment. I'm just going to go over the outline I'm giving you to let you know how to self-petition under VAWA, how and when you can get government assistance (public benefits) and a work permit, and how and when you can apply to get a green card. "The first step in the process is to complete a form called a self-petition. It is INS form number I-360. [You may show the client a copy.] The form itself is pretty simple, and we can fill it out today [or say which other day] if you decide to apply for VAWA. One of the important things about the application is that you do not have to give the INS your home address. You can use our address here, or some other safe address. The INS permits this because they do not want you to worry that your spouse will find out that you have applied."

PRACTICE TIP. Some clients whose abusers are US citizens can also apply for employment authorization at this point. Please add this to your explanation if appropriate. See the discussion of applying for employment authorization in Chapter 4.

[In the following section, you will talk with the client about gathering documentation. Some clients will be able to gather documents on their own, and others may be able to help identify which documents might be available and how you can work together to get them. Others are not in circumstances that make it easy for them to get adequate documentation. They may not be living at home, and if they are, they may be in danger or at least in a precarious situation. Or they may not emotionally be ready to take on such responsibility. Your office needs to determine how much you can do to help clients gather the necessary documents, attend sessions with domestic violence counselors and/or write declarations. While it is preferable to help build a client's confidence and skills, and to demonstrate your respect for her contributions, you need to be sensitive to how much support each client needs. The following model explanation is directed at clients who can do some of the work themselves. You should, during the course of the interview, determine how much you think the client needs her hand held during this process and adapt your explanation accordingly.] "You also have to send along with the VAWA self-petition proof that you qualify for every one of the requirements we talked about. This means when we send your application to the Immigration Service we'll send along documents like birth and marriage certificates, letters,

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police reports, and explain how they show that you qualify for VAWA. For example, to prove that you qualify for VAWA because you are married to a lawful permanent resident, we would send your marriage certificate, and, if possible, a copy of his green card showing that he is a lawful permanent resident. In a few minutes, we'll look over a list of the kinds of documents that can be sent to the INS, and you can tell me which of them we can get for your application. We'll work together to get these documents. If you think you can get some, I'll give you instructions about where to go and how to get them. The most important document you can send is your own statement about how you meet the requirements ­ especially that you have been abused and how it made you feel. We'll get you started working on that today and you can write it and bring it in when we meet next time. "It costs $130 to file the self-petition with the INS [plus $120 for employment authorization for self-petitioners whose abusers are USCs]. If you can't get the money, I can help you ask the INS to let you file for free with a letter asking for a "fee waiver." But that might make them take a bit longer to file it. Do you think you can get $130, or should we work on a fee waiver letter later today? "A few weeks after you send in your self-petition, you'll get a notice from the INS that they've received it. [Show client a sample. See Appendix 17] That notice may be sent anywhere you think is safe and easy. As you'll see when we work on the self-petition form, you don't have to give the INS your home address if you don't want your spouse to know you are doing this. You can use a friend's address, or you can use our address here. "If the self-petition and documents we send to the INS show that you meet all the requirements, in another few weeks the INS will send you another notice. It's called a "Notice of Prima Facie Eligibility," although you don't have to worry about the complicated legal names on documents you get from INS. [Show client a sample. See Appendix 18] This means that if everything you say in your self-petition is true, you will be approved for VAWA. Just as important, you can take that notice to the government offices that provide free medical care or welfare [your state's version of TANF] and sign up for those things right away. Sometimes it's not that easy, but they should sign you up for free medical care or welfare if you qualify, and if they don't, I'll help you convince them to do it. If you need food stamps, you can also get them when the INS finds you prima facie eligible for VAWA. However for food stamps, we'll also have to work together to show that you meet two other requirements: that you are living apart from your abuser and that your need for food stamps is connected to the abuse you've suffered. "If the INS can't decide whether you meet the requirements for VAWA because we haven't sent in enough proof of one or more of them, INS will send another notice asking for more proof. [Show client a sample. See Appendix 19.] Then you and I can work together to find and send them what they need. "It takes the INS about four to nine months after you first send in your self-petition to decide if you will be approved for VAWA. If they decide to deny your application, we can still work to convince them to approve it. If they approve your application, the INS will give you a kind of immigration status called "deferred action," which means the INS won't deport you and you can continue to get public benefits like food stamps, free medical care and welfare. You can 2-13

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also apply for employment authorization so you can work legally. Deferred action lasts right up to when you get your green card. It's an important benefit: people who are not VAWA applicants and who are waiting for immigrant visas do not have any protection from deportation while they wait. Maybe even more important, you'll be eligible for work authorization and we'll work together to apply for a work authorization card. [Show client a sample VAWA Approval Notice and Initial Grant of Deferred Action, included at Appendices 20 and 21.] "The next step is that you apply for a green card. Applicants who are married to U.S. citizens can apply right away if they meet the requirements for getting a green card ­ in fact, they can send in their green card application with their VAWA petition. Applicants who are married to permanent residents have to wait a lot longer for a visa that lets them apply. Right now, the wait for a green card for someone from Mexico who is married to a permanent resident is about seven years. It could be even longer in the future. But remember that while you wait for a green card, we can work together to get extensions of your deferred action status and employment authorization so you can't be deported, you can work legally and get benefits. [If it is not your office's policy to represent clients through the adjustment process, you should explain that to the client and make sure she understands the process and where to go for assistance. Please see Chapter 3 for more information on this.] "When you apply for a green card, you have to show the INS that you meet the requirements for immigrating to the U.S. as a permanent resident. You'll have to go to an interview with an INS officer and answer questions about your green card application. If all goes well, you'll get a green card, and later, you can apply to become a U.S. citizen."

§ 2.6 TALKING ABOUT ADVANTAGES AND DISADVANTAGES OF APPLYING FOR VAWA If your client has already decided that she wants to self-petition -- if you've determined together that she's eligible, you don't 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 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. You might begin a conversation about advantages and disadvantages like this: "Now that we have thought through the requirements for self-petitioning together and discovered that you can apply if you want to, let's talk about whether you want to apply. Why do you want to self-petition? Do you have any concerns about self-petitioning? If so, what are they? If, after we've talked about them, you still aren't sure what you want to do, I can tell you some of the reasons other people have for self-petitioning or not."

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Some of the reasons people choose to, 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 INS and all of its officers are legally prevented from sharing information about a self-petition with anyone except other INS officers. [See NOWLDEF "Battered Spouses and Children Confidentiality Fact Sheet" at Appendix 9.] Moreover, the INS specifically permits a self-petitioner to list on the petition an address other than her residence with the abuser. 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. 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 INS or the police. It is very important that you tell all of your battered non-citizen clients that the VAWA office does not generally put people who fail to qualify for VAWA, or whose applications reveal that they are deportable, into deportation proceedings at the self-petitioning stage. However, anyone with criminal or serious immigration violations must consult with an immigration expert before filing a self-petition anyway, 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 good moral character above and in Chapter 2, and grounds of inadmissibility in Chapter 7. Some abused spouses or children are concerned that information they provide in their self-petitions may get their abusers in trouble with the INS or law enforcement. Although VAWA provides self-petitioners with some economic independence so that if a spouse or parent were imprisoned or deported they would have some resources to support themselves, this is still a common and legitimate concern for many people. In addition, some potential self-petitioners 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 document gathering to prepare a winnable case.

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PRACTICE TIP: 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 the weight to give 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, or make them feel alone at a time when many battered immigrants feel particularly isolated. 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. (Recall that, on average, an abused spouse returns to the abuser seven times ­ generally during the "honeymoon phase" of the domestic violence cycle -- before leaving permanently. See Appendices 4 through 8 for more information about the dynamics of domestic violence.) The following discussion assumes that the client can write a declaration and gather documents by herself with guidance from the advocate, and should be tailored to fit the capacity of each client.

PRACTICE TIP: Staff of domestic violence shelters, as well as social workers and case workers from various government and non-profit service agencies, may be able to help clients get some of the documents they need. Often, someone with a government or non-profit agency referred the client to the advocate in the first place and has an interest in helping her. Advocates should cultivate relationships with local organizations and agencies that work with immigrant victims of domestic violence, both to get referrals from them and to get assistance for clients in documenting their cases. In some cases, agency staff can facilitate getting documents from that agency. For example, a police officer who investigated a client's case can help the client get a police clearance letter. Domestic violence counselors at a shelter can help the client draft her declaration. In other cases, a sympathetic case worker may just be willing to do the legwork to help a client pick up needed documents.

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The advocate should remind the client that each VAWA requirement must be shown with some kind of document and that now 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 checklist for VAWA requirements included in Appendix 3, 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. 9 Different checklists, including ones in Spanish and English, are included in this Appendix to serve the needs of different advocates and clients. Advocates whose clients may not be able to gather all of the documents should complete their own checklist with the client so that the client understands that she is not alone in the task. 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 Appendix also includes 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 22) Model letters requesting birth, marriage, divorce, and death records, copies of restraining orders and court records which can either be from the client herself, or, with the client's authorization letter, from you. (Appendix 23) Model requests for police clearance letter which can either be from the client herself, or, with the client's authorization letter, from you.. (Appendix 24) Model request for police reports of domestic violence incident. (Appendix 25) Model request for copy of restraining order. (Appendix 26) Guidelines for client declarations (in English and Spanish). (Appendix 27) Model client declarations about domestic violence (in English and Spanish) which show the advocate and client the declaration format and the types and degree of detail necessary in the declaration. (Appendix 28) Guidelines for a letter of support from social service providers (in English and Spanish). (Appendix 29) Guidelines, and model letters for clients to obtain criminal records (if necessary). (Appendix 30)

Client's Declaration. The advocate should tell the client that her declaration is the most important documentary evidence in a VAWA case. Explain that in the declaration she will use her own words to describe 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

The Immigrant Legal Resource Center expects to produce a packet in late 2002 with detailed instructions about gathering each of the documents listed in these checklists. Please contact ILRC to receive lists of new publications.

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Declarations" (see Appendix 27).10 The advocate should show the client the "power and control wheel" that they first reviewed when they determined that the client was eligible to apply for VAWA. If time permits, they can have a more in-depth discussion about several particular incidents or types of abuse the client has suffered to help her both recall the incidents in a safe atmosphere and help her bring out sufficient details to make the declaration come to life for the reader. Explain to the client that she needs to 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. Describe the courtship before they married. Details about the marriage proposal and wedding day. If children, when were they born?

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 · · · · · · HOW and WHEN spouse began abusive behavior; How long into marriage did spouse's behavior change? Was behavior change sudden or gradual? Focus on FIRST, WORST, and LAST incidents; Include both PHYSICAL and PSYCHOLOGICAL abuse. Was substance abuse involved? What led up to the incidents? Did applicant call the police? If not, why not? If police were called, was abuser arrested? If not, why not? Did the applicant go to a doctor or hospital? Did applicant get a restraining order? If so, when? Did anyone witness the violence? Describe any sexual abuse. Describe any verbal abuse, including insults.

· ·

· · · · · ·

10

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.

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· · ·

Describe any abuse based on economic power. Describe any effect on children. Describe any threats by the abuser to turn the applicant into the INS or have her deported.

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.11

§ 2.8 NEXT STEPS Many VAWA practitioners recommend scheduling three interviews with a client to complete the following tasks: First Interview: The advocate explains self-petitioning, determines whether the client meets the requirements for VAWA self-petitioning, helps the client decide whether to selfpetition, 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 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 advocate can send it off. The advocate and client should continue to meet periodically to: · · · · discuss notices sent by the INS ensure that the client gets any needed public benefits, apply for work authorization, apply for extensions of deferred action status and work authorization.

11

See discussion in Chapter 3 on good moral character. Also see good moral character preliminary screening sheet which is the second page of the VAWA Self-Petitioning Preliminary Screening Sheet at Appendix 2.

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

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CHAPTER 3 REQUIREMENTS FOR SELF­PETITIONING UNDER THE VIOLENCE AGAINST WOMEN ACT (VAWA)

Contents 3.1 3.2 3.3 3.4 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 Introduction ........................................................................................................................ 3-1 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 Where to File the Adjustment Application ......................................................... 3-4 Marriage Issues .................................................................................................................. 3-5 Abuse Issues ­ the LPR or USC Abused the Self-petitioner During their Marriage ......... 3-8 Residence Issues............................................................................................................... 3-10 The Self-Petitioner is a Person of Good Moral Character................................................ 3-11 VAWA Exceptions for the Bars to Good Moral Character.............................................. 3-13 Children of the Self-Petitioner may Qualify for Derivative Status .................................. 3-16 Requirements for VAWA Self-Petitioning Children ....................................................... 3-18 The Self-Petitioner is the Child of the Abuser ................................................................. 3-18 The Abuser is (or was) a LPR or USC ............................................................................. 3-20 The LPR or USC abused the Self-Petitioning Child ........................................................ 3-20 The self-petitioning child is residing in the U.S. at the time the self-petition is filed, or, if filing from abroad, meets certain requirements ............................................................... 3-21 The self-petitioning child lives or lived with the abusive LPR or USC parent................ 3-21 The Child is a Person of Good Moral Character .............................................................. 3-21 Derivative Children .......................................................................................................... 3-22

§ 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

1

Violence Against Women Act of 1994, Pub.L.No. 103-322, 108 Stat. 1902-1955 (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 §§ 1501-1513. This manual incorporates both laws.

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men sometimes are the victims of domestic violence and women sometimes the abusers. The VAWA immigration provisions benefit both abused husbands and wives.2 VAWA also protects children abused by a USC or 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.

PRACTICE TIP: VAWA self-petitions 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 LPR or USC 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 an LPR or USC; 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. VAWA self-petitioners must meet additional requirements that do not apply to regular marriage petitions. For example, they must prove 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 LPR or USC spouse and the VAWA requirements as they apply to children who are abused by a LPR or USC parent. Chapter 4 describes how to document that a self-petitioner has met the requirements and the procedure for filing a VAWA case.

PRACTICE TIP: Getting the Word Out. The self-petitioning provisions of VAWA can help a lot of people escape abusive situations and obtain the medical and other supportive benefits that they and their children need. However, in order to benefit from VAWA, people first have to learn that it exists. Immigrant advocates have an urgent task of informing potential selfpetitioners and domestic service providers about the availability of this relief. Flyers which explain the basics of VAWA are included in Appendix 1. Please contact the ILRC at (415) 2559499 for additional outreach materials.

Unfortunately, the VAWA provisions at this time do not protect victims of domestic violence in lesbian and gay relationships, because VAWA requires a legally valid marriage or a reasonable belief that there was one. For information on relief available to victims of domestic violence in same sex partnerships, see Chapter 12 for a discussion of U visas.

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§ 3.2 WHO CAN SELF-PETITION UNDER VAWA VAWA allows certain abused spouses and children to self-petition for permanent residency in the United States. The following persons are eligible to self-petition under VAWA: · · · · 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 where the abused spouse's child is abused. Also includes their children as derivatives, even if the children are not related to the USC or LPR abuser.5 Abused "intended spouses" of bigamist USCs and LPRs, including their children as derivatives, whether or not the children are abused and whether or not the children are related to the abusive USC or LPR.6 The term "intended spouse" is discussed in further detail in § 3.5 Abused children of USCs or LPRs, including their children as derivatives.7

·

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

§ 3.3 REQUIREMENTS FOR VAWA SELF-PETITIONING SPOUSES The self-petitioning spouse must prove: 1) 2) Status of the abuser: The abuser is (or was) a USC or LPR (see § 3.4); Marriage issues a) The self-petitioner is (or was) legally married to the LPR or USC abuser (see §3.5); b) The marriage that forms the basis of the self-petition was a "good faith" marriage8 (see § 3.5); Abuse Issues: The LPR or USC abused the self-petitioner during their marriage9 (see § 3.6);

3)

3 4 5 6 7

INA § 204(a)(1)(A)(iii). INA § 204(a)(1)(B)(ii). Id. Id.

INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents].

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].

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4)

5)

Residence Issues a) The self-petitioner lived with the abuser10 (see § 3.7 ); and b) The self-petitioner is either residing in the United States, or if living abroad, was subjected to abuse by the LPR or USC spouse in the U.S., or the LPR or USC spouse is an employee of the U.S. government or armed forces11 (see § 3.7); and The self-petitioner is a person of good moral character12 (see § 3.8).

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). NOTE that a showing of extreme hardship is no longer required.13

§ 3.4 STATUS OF THE ABUSER ­ THE ABUSER IS (OR WAS) A UNITED STATES CITIZEN OR LAWFUL PERMANENT RESIDENT Self-petitioners will qualify for VAWA only if they are or were married to a United States Citizen (USC) or a Lawful Permanent Resident (LPR).14 The special rules for this requirement are: · · The abuse may have occurred before the abuser became a USC or LPR. If the abuser loses or renounces 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 loses or renounces his U.S. citizenship.15 If the abuser loses his lawful immigration status and the loss of status was due to an incident of domestic violence, the victim may still qualify to self-petition. That self-

·

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

9

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]. INA § 204(a)(1)(A)(v) [spouses of U.S. citizens]; INA § 204(a)(1)(B)(iv) [spouses of lawful permanent residents].

11 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]. This requirement was eliminated by VAWA 2000. Battered Immigrant Women Protection Act of 2000 [VAWA 2000], Pub.L.No. 106-386, 114 Stat. 1464, § 1501. 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. INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb).

13

14

15

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petition, however, must be filed within two years of the date the abuser loses his lawful immigration status.16 · If the abuser loses immigration status for any other reason after the self-petition is filed, that loss of status will not affect the self-petitioner's case for self-petitioning or adjustment of status purposes.17

Example: Carmen was married to Kevin, an LPR. Kevin physically and mentally abused Carmen during the marriage. Carmen leaves Kevin and files a self-petition in February, 2001. After the self-petition is filed, Carmen calls the police for protection during an incident of domestic violence. The police arrest Kevin and notify the INS. The INS places him in removal proceedings, based upon a prior aggravated felony conviction, and he is ordered removed on October 15, 2001. His loss of LPR status does not affect Carmen's self-petition since the selfpetition was filed before the loss of 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, 2003, if she can show that Kevin's loss of LPR status was due to an incident of domestic abuse. Carmen should argue to the INS 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 TIP: Naturalization of the Abusive LPR Spouse or Parent. If an abusive LPR spouse or parent naturalizes, a pending self-petition will automatically be reclassified as selfpetition 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 the self-petitioner will be immediately eligible to adjust her status to that of a lawful permanent resident.

§ 3.5 MARRIAGE ISSUES 1. The self-petitioner is (or was) legally married to the LPR or USC 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 from places where they are recognized. Even if the self-petitioner divorces the abuser, she is not necessarily precluded from self-petitioning under VAWA.19

16 17 18 19

INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa). INA § 204(a)(1)(A)(vi); INA § 204(a)(1)(B)(v)(I). INA § 204(a)(a)(B)(v)(II).

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

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Effect of termination of the marriage or remarriage The following are exceptions to the spousal relationship requirement and do not preclude an abused spouse from self-petitioning under VAWA. a. 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.20

A final divorce decree must be provided. However, the Service will not require that the divorce decree specifically state that the termination of the marriage was due to domestic violence.21 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."22 Note: The above 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. Example: Jim was married to Eva, a USC, on June 15, 1998. During the marriage, Eva subjected him to such mental cruelty that he moved out of the house on June 15, 1999. He later obtained a "no fault" divorce, on June 15, 2000, based upon having lived separate and apart from Eva for the requisite period of time. Jim may file a self-petition before June 14, 2002, 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. b. If the marriage was terminated for any reason after the self-petition was filed, that termination will not affect the self-petition.23 If the abusive spouse is a USC and dies, the self-petition can be filed within two years of his death.24 This provision does NOT apply to the spouses of abusive LPRs.

c.

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

Anderson, Executive Associate Commissioner, Office of Policy and Planning, INS Mem/HQADN/70/8, January 2, 2002. Id.

22

23

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]. INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa).

24

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Example: Kui was married to Feng, a United States citizen, on April 15, 1999. During the marriage, Feng subjected Kui to physical and mental abuse. Feng died on April 15, 2000. Kui can file a self-petition before April 14, 2002. However, if Feng were a LPR, Kui unfortunately would not be eligible to self-petition under VAWA. d. If the marriage was not valid because a prior or concurrent marriage of the abuser's was not legally terminated, but the self-petitioner believed the marriage was valid and can demonstrate that a marriage ceremony was performed, a self-petition may nevertheless be filed. This is referred to as an "intended marriage."

Example: Yoko married Jose, a USC, in a large wedding ceremony in front of all of their family and friends. However, Jose never told Yoko that he never terminated his previous marriage and still 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." e. If the self-petitioner remarries after the approval of the self-petition, the selfpetition will not be revoked.25

Example: Susan was married to John, a USC, on January 2, 1998. During the marriage, John was abusive to Susan, and the couple was divorced on January 1, 2001. Susan files a selfpetition on July 1, 2001 and attaches evidence showing that the divorce was connected to the abuse. The self-petition is approved on October 1, 2001. Susan remarries on October 15, 2001. 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. 2. 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.26 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.

25

INA § 204(a)(1)(g).

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 than a 50% likelihood that the alleged facts occurred. However, if the marriage took place during the self-petitioner's exclusion, deportation, or removal proceeding or any appeals from that proceeding, the self self-petitioner must meet a higher standard of proof. In such a case, the INS 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 person 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).

26

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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.27 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.28 Note: 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.29

§ 3.6 ABUSE ISSUES ­ THE LPR OR USC ABUSED THE SELF-PETITIONER DURING THEIR MARRIAGE 1. Definition of Abuse 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 LPR or USC spouse or parent.30 The definition of the abuse covered under the INS regulations and guidance is flexible and broad enough to encompass physical, sexual, and psychological acts, as well as economic coercion.31 They may include: · · · · · · · · · · Threats to beat or terrorize her; 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, or forced prostitution; Threats to take her children away or hurt them; Threats to deport her or turn her into the INS; Controlling where she goes, what she can do, and whom she can see; Forcibly detaining her; Engaging in a pattern of acts that alone would not normally constitute abuse; Threats or committed acts of violence against a third person or thing in order to scare or pacify her.

27

Lutwak v. U.S., 344 U.S. 604, 611 (1953); Bark v. INS, 511 F.2d 1200 (9th Cir. 1975); Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1 (BIA 1983); Matter of McKee, 17 I&N Dec. 332 (BIA 1980). 8 CFR § 204.2(c)(1)(ix). INA § 204(a)(2)(A)(ii).

28

29

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].

31

30

8 CFR § 204.2(c)(1)(vi) [abused spouses]; 8 CFR § 204.2(e)(.

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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. Her husband refused to file a visa petition for her even though Reni was eligible as an immediate relative. Based on this abuse, Reni may qualify as a VAWA self-petitioner. 2. Extreme Cruelty Abusive acts that may not initially appear violent but are part of an overall pattern of violence are also part of the definition of abuse. A person who has suffered no physical abuse may still be eligible to self-petition.32 The abuse must rise to a certain level of severity, however, to constitute battery or extreme cruelty.33 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.34 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.35 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.36 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.37

PRACTICE TIP: 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 selfpetitioner's declaration. The national INS 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 contact the National Immigration Project of the National Lawyers Guild (NIPNLG) at (617) 227-9727, or click on the domestic violence option at the

32

Id.

33

Aleinkoff, Executive Associate Commissioner, Office of Programs, INS Mem/HQ 204-P, April 16, 1996, at 9-10 [reprinted as Appendix 68]. Id.

34

35

See, Gail Pendleton and Ann Block, Applications for Immigration Status under the Violence Against Women Act, 2001 AILA Annual Meeting materials, Vol. II, 436, at 441. Id. Id.

36

37

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NIPNLG website, www.nationalimmigrationproject.org. NIPNLG also has detailed training materials available on VAWA.

Example: Annette came to the U.S. 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 a family visa petition, but he never filed it. For the past year, Greg has been isolating Annette from her friends and family. He controls all the finances 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 INS and have her deported. Upon hearing Greg's yelling, Annette's cherished dog, "Baby," ran into the room. Greg kicked him 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.

§ 3.7 RESIDENCE ISSUES 1. The self-petitioner lived with the LPR/USC abuser.

Under current law, the self-petitioner must have resided at some point with the abuser, either inside or outside the United States.38 There is no specified amount of time the selfpetitioner must have lived with the abuser. Additionally, there is no requirement that the selfpetitioner be residing currently with the abuser in the U.S. at the time the self-petition is filed. Thus, a self-petitioner can qualify even if she or he only 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. 2. The self-petitioner is either residing in the United States, or if living abroad, was subjected to abuse by the LPR or USC spouse in the U.S. or the LPR or USC spouse is an employee of the U.S. government or armed forces.

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].

38

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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 U.S. to file the petition.39 A self-petitioner who recently moved to the U.S. can qualify. Eligible noncitizens 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.40

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. 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.

§ 3.8 THE SELF-PETITIONER IS A PERSON OF GOOD MORAL CHARACTER VAWA self-petitioners must establish that they are of good moral character.41 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 he or she is or was: · · · · · 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 and (2) petty offenses or crimes committed both when the alien was under 18 years of age and more than five years before applying for a visa or admission;

39

Prior to the Battered Immigrant Protection Act of 2000, the law required the self-petitioner to both presently reside in the United States AND have resided with the abuser in the United States. 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].

40

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].

41

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· · · · · · ·

convicted of two or more offenses for which the aggregate sentences to confinement were five years or more; convicted of, or has admitted, 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 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 bar to good moral character regardless of the date of conviction).42

The self-petitioner must demonstrate good moral character for the past three years 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.

42

INA § 101(f).

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§ 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 INS 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 Attorney General finds that the act or conviction was connected to the abuse suffered by the self-petitioner. The good moral character exception for VAWA self-petitioners was added to the Immigration and Nationality Act by VAWA 2000. The INS has not yet issued regulations to implement this provision, and there are still some questions as to how the exception will be interpreted. For example, we do not know yet how the INS will interpret the phrase "the act of conviction is waivable with respect to the petitioner" under the inadmissibility or deportation grounds. The chart below shows the good moral character statutory bars and the waivers of the INA § 212 inadmissibility grounds and the INA § 237 deportability grounds that may be available for purposes of the good moral character exception for VAWA self-petitioners. This chart is a rough guide only. Advocates must examine the facts of the individual self-petitioner's case closely to determine whether the act or conviction in question is waivable with respect to the self-petitioner.

PRACTICE TIP: Using the Good Moral Character Exception Chart The left hand column of the Good Moral Character Exception Chart lists the statutory bars to good moral character found at INA § 101(f). The right hand column lists waivers available under the INA§ 212 inadmissibility grounds and the INA § 237 deportability grounds.

To use the chart, go down the left hand column to see whether one of the statutory bars to good moral character exists in your client's case. Then go to the corresponding section in the right hand column to see whether there is a waiver that applies to the particular act or conviction. This is not the end of the inquiry. Even if a waiver is available under the chart, the selfpetitioner must still show that the act or conviction was connected to the abuse he or she suffered. Depending on the INS' interpretation of the good moral character exception, the selfpetitioner may also have to show that he or she is eligible for and merits the waiver.

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GOOD MORAL CHARACTER FOR VAWA SELF-PETITIONERS AND APPLICANTS FOR CANCELLATION OF REMOVAL43

INA § 101(f) Is or was a habitual drunkard Waiver available? Possibly - INA §212(g)(3) may waive §212(a)(1)(A)(iii) Yes - INA § 212(h) waives § 212(a)(2)(D) Yes - INA §212(d)(11) - if spouse, parent, son or daughter only involved No - no immigrant waiver for INA §212(a)(10)(A) Yes - INA § 212(h) waives § 212(a)(2)(A)(i)(I) Yes - INA § 212(h) waives § 212(a)(2)(B)

Engaged in prostitution within last ten years Is or was involved in the smuggling of persons under INA § 212(a)(6)(E) Was or is a practicing polygamist

Crimes of moral turpitude

Multiple crimes with aggregate sentence of five or more years Has violated laws relating to controlled substances (except for single offense of 30 grams or less marijuana possession) Earns income from illegal gambling or has been convicted of two or more gambling offenses

No ­ no immigrant waiver for substance abuse offenses other than single offenses of simple possession of 30 grams or less of marijuana Possibly - INA §212(h) waives §212(a)(2)(D) [unlawful commercialized vice] and §212(a)(2)(A)(i)(I) and (B) [crimes involving moral turpitude and 2 or more offenses with aggregate sentence of 5 years] Possibly - INA §212(i) [fraud and willful misrepresentations of material fact] and INA §237(a)(1)(H) [deportability because of inadmissibility under INA §212(i)], except for false claims to citizenship. Small waiver for innocent false claims to citizenship also exists, at INA §212(a)(6)(C)(ii)(II). Possibly ­ INA § 212(h) waives and 212(a)(2)(A)(i)(I) and (B) [crimes involving moral turpitude and multiple crimes with aggregate sentence of 5 years] No waiver available.

Has given false testimony for purposes of obtaining immigration benefits.

Has been incarcerated for 180 days or more as a result of a conviction

Has been convicted at any time of aggravated felony listed in INA §101(a)(43)

43

Chart prepared by Lauren Gilbert, Attorney, Catholic Legal Immigration Network, Inc.

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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 8 months. On one occasion, when her husband was absent from home for several days without leaving food or money with which to buy food, Catherine goes to the grocery store and shoplifts some food. She is arrested, convicted of theft, and sentenced to two years probation (she is not given any sentence to incarceration). She then files a VAWA self-petition. After researching the issue, Catherine's advocate concludes that the offense of theft as set forth in the state criminal statute is a crime involving moral turpitude (CIMT) and that the conviction for theft places 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 checks the chart reproduced above and sees 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 INS 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 section 212(a)(2) 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.44 An abused immigrant who was forced to engage in 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.45

PRACTICE TIP: Demonstrating Good Moral Character. In addition to demonstrating the 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 INS to conclude that he

44 45

8 CFR § 204.2(c)(1)(vii). Id.

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or she is a person of good moral character. The applicant's affidavit is primary evidence of his or her good moral character.46 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.47 The INS 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.48

§ 3.10 CHILDREN OF THE SELF-PETITIONER MAY QUALIFY FOR DERIVATIVE STATUS Children of the abused spouse who are unmarried and under age 21 qualify for derivative status.49 A self-petitioning spouse 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 has been abused. A derivative child of a self-petitioner will not "age out" by turning 21, and instead will automatically be considered a petitioner for the preference category for unmarried sons and daughters and will retain the parent's original selfpetition date as his priority date.50 Similarly, if the child of a USC abuser marries, he will automatically be considered a petitioner for third preference.51 No new petition need be filed.52 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 Action" status (see discussion of "Process" below) and employment authorization, and were put on a list to receive a second preference immigrant visa when it becomes available in about four years. When Ann turns 21, the INS 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 U.S. until it is available.

46 47 48 49

8 CFR § 204.2(e)(2)(v) [self-petitioning children]. Id. Id.

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]. INA § 204(a)(1)(D)(III). Id. Id.

50 51 52

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PRACTICE TIP: Other Immigration Options for Abused Spouses Conditional Residence: If your client is a conditional resident, 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/his 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 well be eligible for the new "U" visa created in 2000.53 The U visa benefits victims of serious crimes who are willing to help in a criminal investigation or prosecution of perpetrators of crime. This visa is in no way limited to domestic violence crimes committed by lawful LPR or USC spouses. There are no requirements as to who the perpetrator must be: he or she could be a stranger or a relative, a citizen or an undocumented worker. The offense could involve sexual attack, physical attack, kidnapping, incest, or many other types of serious offenses. The "U" visa provides temporary status and can lead to permanent residency. As of this writing, there are no regulations on how to apply for a U visa. The INS has issued guidance on "interim relief" for noncitizens who are eligible for U visas, and INS offices should be granting deferred action or parole, allowing for work authorization and preventing removal. (Note that another new visa, the "T" visa, is available to persons who were victims of human trafficking for sex or labor. See INA § 101(a)(15)(T).) See Chapter 12 for a detailed discussion of U and T visas. Cancellation of Removal for Domestic Violence under VAWA: Abused spouses and children who are in removal proceedings and have lived in the United States for three years may be eligible for VAWA cancellation of removal. VAWA cancellation, like self-petitioning, leads to permanent residence status. See Chapter 10 for a detailed discussion of VAWA Cancellation of Removal. 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 INS rules on domestic violence cases have made asylum a possibility for obtaining protection and legal status for some victims of domestic abuse. Chapter 13 briefly addresses this topic, but advocates must also consult with experts in gender-based asylum law, including NIPNLP at www.nationalimmigrationproject.org (click on "Domestic Violence" option) and the Center for Gender and Refugee Studies at http://www.uchastings.edu/cgrs/.

53

See INA § 101(a)(15)(U).

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§ 3.11 REQUIREMENTS FOR VAWA SELF-PETITIONING CHILDREN In order to self-petition under VAWA, a child of an LPR or USC must prove that: · · · · · · He or she meets the definition the "child;" that is, that he or she is unmarried, under 21, and has a qualifying relationship to the abuser (see § 3.11 ); The abuser is (or was) an LPR or USC54 (see § 3.12); The LPR or USC abused the self-petitioning child55 (see § 3.13); The self-petitioning child is residing in the U.S. at the time the self-petition is filed, or if filing from abroad meets certain requirements56 (see § 3.14); The self-petitioning child lives or lived with the LPR or USC parent (see § 3.15); and The self-petitioning child is a person of good moral character57 (see § 3.16).

NOTE that a child who was not abused may qualify as a derivative beneficiary of an abused parent's VAWA self-petition; see discussion in § 3.9. NOTE that a showing of extreme hardship is no longer required.

§ 3.12 THE SELF-PETITIONER IS THE CHILD OF THE ABUSER Who is a "child?" The self-petitioning child must be unmarried and under 21 years of age when the selfpetition is filed, in addition to having a qualifying "parent/child" relationship with the LPR or USC abuser.58 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; adopted children, 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; and children born out of wedlock, if legitimated or acknowledged by the father.

54

INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. Id.

55 56

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].

INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents].

58

57

Under INA § 101(b), the term "child" means a person who is unmarried and under the age of 21.

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The self-petitioning child does not have to be in the abuser's legal custody, nor will changes in parental rights or legal custody affect the status of the child's self-petition.59 Note: The self-petitioning child does not have to be the child of a self-petitioning spouse.

PRACTICE TIP: "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) if the self-petition is filed or approved before the child turns 21.60 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.61 Although it will take these selfpetitioners longer to get their immigrant visas, they will maintain deferred action status and eligibility for work authorization during the entire waiting period.62

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 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 selfpetition is adjudicated, he is 21. Charlie's self-petition will not be denied because 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.

59 60

8 CFR § 204.2(e)(1)(ii).

INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii)[children or lawful permanent residents]. INA § 204(a)(1)(D)(i)(I)-(II). Id.

61 62

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PRACTICE TIP: 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.63 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 self-petition, the LPR abuser must naturalize, thus converting the son or daughter to the third preference category, or the married son or daughter might divorce, 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.64

§ 3.13 THE ABUSER IS (OR WAS) A LPR OR USC 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 LPR OR USC 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 child. Witnessing domestic violence can also be a form of extreme cruelty. Note: It is no longer required that the abuse occurred while the self-petitioning child lived with the abuser.

63

INA § 204(a)(1)(g).

See, Lauren Gilbert, "Family Violence and U.S. Immigration Law: New Developments," Immigration Briefings (March 2001), at 7.

64

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§ 3.15 THE SELF-PETITIONING CHILD IS RESIDING IN THE U.S. 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 U.S. to file the petition. A self-petitioning child who recently moved to the U.S. can qualify. Furthermore, noncitizen children living abroad can self-petition, where: a. the abusive parent is an employee of the U.S. government or member of the U.S. armed services, or b. the abusive parent subjected the self-petitioning child to battery or extreme cruelty in the United States.65

§ 3.16 THE SELF-PETITIONING CHILD LIVES OR LIVED WITH THE ABUSIVE LPR OR USC PARENT 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 LPR or USC parent includes any period of visitation in the United States.66 Thus a child can qualify even if she or he only lived with the abusive parent for a short time.

§ 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.67 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 INS can consider them in the discretionary balance test for good moral character determination. Care should therefore be exercised in cases of dispositions relating to drug sales or prostitution, which might bar good moral character.

65

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]. INA § 204(a)(1)(A)(iv) [children of U.S. citizens]; INA § 204(a)(1)(B)(iii) [children of lawful permanent residents]. 8 CFR § 204.2(e)(2)(v).

66

67

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§ 3.18 DERIVATIVE CHILDREN Children of an abused spouse 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 VAWA-eligible parent's self-petition.68 Derivative children are not required to have been the victims of abuse, nor do they have to have to have resided in the United States. 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 for preference under the first, second, or third family preference categories, and is eligible for deferred action and work authorization.69 No new petition need be filed.70 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. 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 TIP: Other Immigration Options for Abused Children Special Immigrant Juvenile Status: Some children may not qualify for VAWA, while others may qualify but find another form of relief is better for them. One important form of relief is special immigrant juvenile status, or "SIJS." Children who are under the jurisdiction of a juvenile dependency or delinquency court and eligible for long-term foster care due to abuse, neglect or abandonment may qualify for SIJS.71 There is no requirement that the parent was a LPR or USC, and there is no need to wait for a priority date. However, the entire process needs to be completed while the child remains under the jurisdiction of a juvenile court. For more information, see Chapter 11 for a full discussion of SIJS and Special Immigrant Juvenile Status for Children in the Dependency System, a manual available from the Immigrant Legal Resource Center (415-255-9499) or at www.ilrc.org ($15). U.S. Citizenship: Children of U.S. citizens may already be U.S. citizens because they acquired citizenship at birth in another country from a U.S. citizen parent. 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. Family Visas: A child may also be able to immigrate through a parent, if the parent is a USC or LPR. Please also see Practice Tip: "Other Immigration Relief for Abused Spouses" above.

68

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]. INA § 204(a)(1)(D)(III). Id. INA § 101(a)(27)(J) and 8 CFR § 204.11.

69 70 71

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GOOD MORAL CHARACTER FOR VAWA SELF-PETITIONERS AND APPLICANTS FOR CANCELLATION OF REMOVAL1

INA § 101(f) Is or was a habitual drunkard Waiver available? Possibly - INA §212(g)(3) may waive §212(a)(1)(A)(iii) Yes - INA § 212(h) waives § 212(a)(2)(D) Yes - INA §212(d)(11) - if spouse, parent, son or daughter only involved No - no immigrant waiver for INA §212(a)(10)(A) Yes - INA § 212(h) waives § 212(a)(2)(A)(i)(I) Yes - INA § 212(h) waives § 212(a)(2)(B)

Engaged in prostitution within last ten years Is or was involved in the smuggling of persons under INA § 212(a)(6)(E) Was or is a practicing polygamist

Crimes of moral turpitude

Multiple crimes with aggregate sentence of five or more years Has violated laws relating to controlled substances (except for single offense of 30 grams or less marijuana possession) Earns income from illegal gambling or has been convicted of two or more gambling offenses

No ­ no immigrant waiver for substance abuse offenses other than single offenses of simple possession of 30 grams or less of marijuana Possibly - INA §212(h) waives §212(a)(2)(D) [unlawful commercialized vice] and §212(a)(2)(A)(i)(I) and (B) [crimes involving moral turpitude and 2 or more offenses with aggregate sentence of 5 years] Possibly - INA §212(i) [fraud and willful misrepresentations of material fact] and INA §237(a)(1)(H) [deportability because of inadmissibility under INA §212(i)], except for false claims to citizenship. Small waiver for innocent false claims to citizenship also exists, at INA §212(a)(6)(C)(ii)(II). Possibly ­ INA § 212(h) waives and 212(a)(2)(A)(i)(I) and (B) [crimes involving moral turpitude and multiple crimes with aggregate sentence of 5 years] No waiver available.

Has given false testimony for purposes of obtaining immigration benefits.

Has been incarcerated for 180 days or more as a result of a conviction

Has been convicted at any time of aggravated felony listed in INA §101(a)(43)

1

Chart prepared by Lauren Gilbert, Attorney, Catholic Legal Immigration Network, Inc.

VAWA Manual August 2002

CHAPTER 4 THE VAWA SELF-PETITIONING PROCESS

Contents 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 4.17 4.18 4.19 4.20 4.21 4.22 4.23 4.24 4.25 4.26 4.27 Introduction to the Self-Petitioning Process....................................................................... 4-2 Completing the Self-Petition.............................................................................................. 4-2 Filling out the I-360............................................................................................................ 4-2 Documenting the Requirements for the I-360.................................................................... 4-4 A Detailed Cover Letter with an Index of the Documentation .......................................... 4-5 Notice of Entry of Appearance by the Attorney or BIA-Accredited Representative......... 4-6 INS Filing Fee Amount ...................................................................................................... 4-7 The Self-Petitioner's Detailed Declaration or Affidavit .................................................... 4-7 Proof that the Abuser is (or was) a Lawful Permanent Resident or United States Citizen 4-8 Proof that the Self-Petitioner is (or was) Married to the LPR or USC............................... 4-9 Proof that the Self-Petitioner Suffered Battery or Extreme Cruelty ................................ 4-10 Proof that the Marriage or Intended Marriage was in Good Faith ................................... 4-11 Proof that the Self-Petitioner Resided with the Abuser ................................................... 4-12 Proof that the Self-Petitioner has Good Moral Character ................................................ 4-12 Evidence of the Self-Petitioner's Current Residence ....................................................... 4-13 Documenting Eligibility for a VAWA Self-Petition for a Child ..................................... 4-14 Filing the completed I-360 packet.................................................................................... 4-16 Prima Facie Eligibility ..................................................................................................... 4-17 Notice of Action/Request for Evidence ........................................................................... 4-18 Deferred Action................................................................................................................ 4-18 Preference Categories for Family-Based Immigration..................................................... 4-19 How the Preference System Works.................................................................................. 4-19 Using the State Department Visa Bulletin to Make an Estimate of when Your Client can Immigrate............................................................................................... 4-20 Employment Authorization .............................................................................................. 4-22 Adjustment of Status ........................................................................................................ 4-23 Notice of Intent to Deny................................................................................................... 4-24 Special Concerns for Advocates who are not Attorneys or Accredited Representatives. 4-25

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§ 4.1 INTRODUCTION TO THE SELF-PETITIONING PROCESS Obtaining lawful permanent residence through VAWA self-petitioning is a two-step process: First, the abused spouse or child files the self-petition by mail to the INS. If the petition is approved, the self-petitioner waits for a visa to become available. Second, the approved selfpetitioner applies for adjustment of status to get a "greencard," or lawful permanent resident status. This chapter will discuss 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 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 SELF-PETITION The VAWA self-petition, whether from a self-petitioner living in the U.S. or abroad, is submitted on Form I-360 (although the form may change in the near future). The self-petitioner must also submit documentation showing how she meets the VAWA requirements. This section discusses both of these steps. § 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 blank INS Form I-360 in Appendix 37.) This petition is available at local INS offices, by calling the INS at 1-800-870-3676, or by downloading it from the INS website at www.ins.gov. 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 The petition must be completed in black ink or on a typewriter. (See a sample completed INS Form I-360 in Appendix 38.)

PRACTICE TIP: Using the Correct INS Forms and Filing Fee Amounts Forms sometimes contain incomplete or out of date information, especially about petition fees. To check what the correct fee us for any petition and to get the most current information on forms is from the government website for the INS, which is found at www.ins.gov. You can also call the INS at their new national customer service number for current fee information at 1-800375-5283. There will be some sections of the Form I-360 that are not relevant for a VAWA selfpetition because this form is used for a number of different types of immigration petitions. However, do NOT leave any space blank. If there are sections that do not apply to the selfpetitioner, write "N/A" or "not applicable" if the question doesn't apply. Where the answer to a question is "none," write "none" in that section.

8 § CFR 299.2-4. 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

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Although the Form I-360 is fairly straight-forward, several points can cause confusion for self-petitioners. These include: Part 1: "Information about person or organization filing this petition" This information is what the INS will use to contact or correspond with the self-petitioner. 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 INS an alternative address to send correspondence, and therefore helps prevent the selfpetitioner's spouse or parent from discovering that she has filed a self-petition. Part 2: "Classification requested" Self-petitioners should check the appropriate classification, either (i) or (j). Part 3: "Information about the person this petition is for" If the person entered legally, he or she probably entered with a nonimmigrant visa and obtained an I-94 card at the border upon entry. The I-94 card is a white cardboard card marked I-94. It may be loose or stapled to the passport. You must read the card to answer the bottom part of Part 3. It should indicate the date of arrival, the current nonimmigrant status and whether it is current or expired. If the person entered illegally, write "N/A" for the question about the I-94 number and nonimmigrant status. Part 4: "Processing Information" The question about U.S. Consulates is applicable only to self-petitioners who are outside of the United States. In those cases, the visa will be processed by the U.S. consulate with jurisdiction (legal control) over the area where the self-petitioner resides.2 A petition for adjustment of status can be attached if the self-petitioner is or was married to a US citizen or has a current priority date. Parts 5 and 6: Regarding Amerasians and Special Immigrant Juvenile Court Dependent These parts are not applicable to self-petitioners and should be checked "N/A" in all sections.

2

The INS will send the petition to whatever consulate is named on the application. However, the consulate will not accept the petition unless it believes it has jurisdiction. The INS will forward the visa petition to a consulate, which it believes is the right one, or notify you that another consulate must be found.

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Part 7: "Complete only if filing as a Widow/Widower, a Self-petitioning Spouse of an Abuser, or as a Self-petitioning Child of an Abuser" Complete this section as instructed. Part 8: "Information about the spouse and children of the person this petition is for." 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 INS might doubt they are legally the applicant's children.

§ 4.4 DOCUMENTING THE REQUIREMENTS FOR THE I-360 Attached to the completed Form I-360, the self-petitioner must also send 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 INS is required to accept "any credible evidence" as proof. 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. Using the Any Credible Evidence Standard to Document the Self-Petition Sometimes the client and the advocate cannot obtain evidence to establish a crucial element of the self-petition, such as evidence of the abuser's immigration status. This is especially likely where the abuser has controlled the family records and not allowed the victim to access to those records. In such situations, the INS will attempt to verify the missing information from its records.3 The cover letter to the application should indicate what documentation is missing, describe the self-petitioner's attempts made to obtain the documentation, and indicate that those attempts were unsuccessful. The cover letter should also include all information in the self-petitioner's possession that would assist the INS in its verification efforts. For example, if the self-petition cannot obtain documentation of the abuser's immigration status, he or 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). 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.4 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

3 4

8 CFR § 204.1(g)(3). 8 CFR § 204.2(c)(2)(I) [spouses and intended spouses]; 8 CFR § 204.2(d)(2)(i) [children].

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standard."5 Under it, the INS must consider all credible evidence submitted with the petition before reaching a conclusion.6 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.

PRACTICE TIP: 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 mental health counselor. 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.

The self-petition packet should be paginated consecutively and should contain the information listed below.7 If the self-petitioner or advocate cannot obtain documentation to make out each requirement, she should request verification by the INS, 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 INS examiner more clearly see how the self-petitioner qualifies for VAWA. See Appendix 38 for a sample cover letter. The cover letter should provide a "roadmap" for the INS 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 listing under each of them the documents that prove that the requirement is met. It should list each document contained in the petition and the page at which it appears.

INA § 204(a)(1)(J). Id. 7 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 (also available from the National Lawyers' Guild Website), at 447-448; Lauren Gilbert, Family Violence and U.S. Immigration Law: New Developments, Immigration Briefings (March 2001).

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1.

What to Do if a Petition Was Already Filed for the Self-Petitioner

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.8 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 or ask the INS to withhold adjudication of the I-485 pending resolution of the self-petition.9 If an I-130 Petition for Alien Relative was previously filed by any qualifying relative on the self-petitioner's behalf, the cover letter should reference this fact and, if possible, include documents such as an approval notice, to show the date on which the I-130 petition was filed. The cover letter should also indicate the outcome or status of that I-130. The self-petitioner may therefore be able to "recapture" that priority date and be eligible to adjust status at a sooner time. (See Chapter 5 for more information on Adjustment of Status.) 2. 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 he or 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.

§ 4.6 NOTICE OF ENTRY OF APPEARANCE BY THE ATTORNEY OR BIA-ACCREDITED REPRESENTATIVE If the self-petitioner is being assisted by an attorney or a BIA-accredited representative, the attorney or BIA-accredited representative should submit a Form G-28 signed by the selfpetitioner and the attorney/representative. The form can be downloaded from the INS website at www.ins.gov. The G-28 form authorizes the attorney/representative to represent the client in front of the INS. See Appendix 43 for a blank Form G-28.

Alenikoff, Executive Associate Commissioner, Office of Programs, INS Mem. HQ 204-P, April 16, 1996, at 2-3 [reprinted as Appendix II, 73 Interpreter Releases 737, May 24, 1996]. 9 Id. at 3.

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§ 4.7 INS FILING FEE AMOUNT The petition fee should be paid by check10 or money order, made payable to the INS. The filing fee is currently $130.00.11 The self-petitioner's name and A number (if she has one) should be clearly printed on the check or money order. Requesting a Fee Waiver A self-petitioner who cannot afford the filing fee can apply for a fee waiver.12 The fee waiver request must be in writing and included with the application. More information and sample fee waiver requests are included at Appendices 39 and 40. The fee waiver request should list the self-petitioner's assets and income (if any) and expenses. If possible, also provide evidence of the self-petitioner's 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. 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 MAY cause a delay in the process. Advocates should also be aware that a request for a fee waiver may raise questions at the time of adjustment of status consular processing because of the public charge inadmissibility ground.

§ 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. See Appendix 38 for a sample self-petitioner declaration. The declaration should concentrate on the self-petitioner's detailed description of the abuse he or she suffered. It should describe this abuse in detail and should be organized so as to make the events clear to the reader. The declaration should also include the self-petitioner's statement that she is of good moral character. If there is some issue as to good moral character, the self-petitioner should include an explanation of that issue. For a more detailed discussion on helping your client to draft her declaration, see Chapter 2.

Payment by check can be useful because when the INS cashes the check, the applicant will have the cancelled check as evidence that the application and fee were received by the INS. 11 8 CFR § 103.7(b). 12 8 CFR § 103.7(c).

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§ 4.9 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 United States citizen (USC) by birth, that status is proved by the abuser's birth certificate showing birth within the United States or its possessions, or by a certification of citizenship or a birth certificate showing birth abroad to two USC parents or to one USC who meets the residential requirements necessary to convey citizenship upon his or her children.13 The status of an abuser who is a naturalized USC is shown by the abuser's naturalization certificate. 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 obtain a copy of the abuser's birth certificate. An internet website -- www.vitalcheck.com -- lists many local offices that provide vital statistics throughout the U.S. Sympathetic friends or relatives can also help the applicant in locating the information. The status of an abuser who is a lawful permanent resident (LPR) is shown by the abuser's permanent resident card. If the abuser is an LPR, the self-petitioner can try to find the abuser's "A" number on his lawful permanent resident card ("green card").

PRACTICE TIP: What to do if documentation of the spouse's USC or LPR status cannot be obtained If the applicant is unable to comply, INS will attempt to verify an abuser's status through its computer records.14 However, this process will delay processing of the self-petition, and if the search fails, it may lead to a denial. Most likely, INS will not have records from U.S.-born individuals who have never filed any paperwork with the Service. Therefore, it is in the selfpetitioner's best interest to prove the abuser's legal status or to provide secondary evidence such as declarations, affidavits, school records, medical records, etc. to try to prove his status.

13 14

See, INA § 301 et seq., defining United States citizens at birth.

8 CFR § 204.2(c)(2) (spouse), 8 CFR § 204.2(e)(2)(child).

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PRACTICE TIP: What to do if the abuser lost his status If the abuser lost his citizenship or his lawful permanent resident status because of an incident of domestic violence, the self-petition should include a record of the removal, citizenship revocation, or denaturalization proceedings that indicate the loss of status including the date on which status was lost as well as the connection between the loss of status and the incident of domestic violence. The self-petitioner should also provide affidavits and other evidence showing that the loss of status was due to an incident of domestic violence. This does not mean the abuser must have been deported for a domestic violence incident or conviction, only that the deportation must flow from an incident of domestic violence. The self-petition must also be filed within two years following the loss of status.15

§ 4.10 PROOF THAT THE SELF-PETITIONER IS (OR WAS) MARRIED TO THE LPR OR USC The self-petition should include a copy of the marriage certificate of the marriage between the self-petitioner and the abuser.16 If either spouse had a prior marriage, the selfpetitioner should submit divorce or death certificates to prove the legal termination of the prior marriage(s).17 1. Divorce or Death of the Abuser

If the marriage has terminated, the self-petition application must be filed within two years after divorce or the death of the abuser.18 Only the spouses of abusive USCs can apply after the death of the abuser. The self-petitioner must submit documentation of the death or termination to establish the correct filing date. If the marriage was terminated by divorce, a final divorce decree must be provided. The INS will not require that the divorce decree specifically state that the termination of the marriage was due to domestic violence."19 However, the self-petitioner must "demonstrate that the battering or extreme cruelty led to or caused the divorce."20 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.21

15 16

INA § 204(a)(1)(iii)(II)(CC)(ccc). 8 CFR § 204.2(c)(2)(ii). 17 Id. 18 INA § 204(a)(ii)(II)(CC). 19 Pearson, Executive Associate Commissioner, Office of Field Operations, INS Mem. HQADN/70/8, January 2, 2002 [reprinted as Appendix 36]. 20 Id. 21 Id.

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If the abuser was a USC who died within two years of the filing of the self-petition, the self-petitioner should submit the abuser's death certificate. 2. "Intended Spouses"

If the abuser was a bigamist or polygamist (was actually 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.

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 Find Vital Records. It provides information on how to get records from all 50 states, and the information is updated each year. It is available from any federal government bookstore for $2.50, or it may be ordered from the Government Printing Office website at www.gpo.gov.

§ 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 affidavit. 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 non-exhaustive 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;

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· · ·

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 from witnesses such as friends, relatives or neighbors which support the client's statements, or from shelter workers, police officers, counselors, social workers, medical workers, clergy, and experts on domestic violence. Police reports, police records, criminal court records, complaints; Letters from clergy to whom the abuse was reported; and School records reflecting the abuse.22

PRACTICE TIP: Proving Extreme Cruelty If the abuse suffered by the self-petitioner did not include any physical abuse, but constituted extreme cruelty, it's critically important that the extreme cruelty that the selfpetitioner suffered and felt be well-documented. The INS 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. A corroborating affidavit from a domestic violence counselor is essential for extreme cruelty cases and is extremely helpful in any case.

§ 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. The following is a nonexhaustive list of possible evidence of the self-petitioner's good faith intent:

· · · · · · ·

Birth certificates of children born of 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;

22

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

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Insurance policies showing one spouse as the beneficiary of the other; Evidence of courtship, such as letters and photographs of the couple; Evidence of the marriage ceremony, such as photographs and invitations; Declarations from relatives or friends; and The self-petitioner's own detailed declaration.23

§ 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 U.S., 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 or medical records; Joint checking accounts; Utility or other bills; Tax returns; and The self-petitioner's own declaration.24

Affidavits, declarations or letters from family members, neighbors, friends or other people who know they live together may be sufficient if other records are not available.

§ 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. 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 he or she has never been arrested. A letter or declaration from friends, clergy, or employers attesting to the self-petitioner'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

23 24

See, 8 CFR § 204.2(c)(2)(vii). 8 CFR § 204.2(c)(2)(iii) [self-petitioning spouses]; 8 CFR § 204.2(e)(w)(iii) [self-petitioning children].

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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. 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 §§ 212 or 237 (see Chapter 6). 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 alien's having been battered or subjected to extreme cruelty. 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 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 important to consult an immigration attorney or BIA-accredited representative for help with the case. In addition to making a self-petitioner ineligible for VAWA, some crimes can make a self-petitioner deportable and/or permanently barred from the United States. 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 exception under the VAWA 2000 amendments, then she should submit evidence to establish that the act or conviction would be waivable under INA §§ 212 or 237 and that the act or conviction was connected to the alien's having been battered or subjected to extreme cruelty. This is a complicated legal argument and also should be referred to any immigration attorney or accredited-representative who has experience in these matters. See Chapter 6.

§ 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 self-petitioner lives outside of the United States, that the abuser is an employee of the U.S. government, 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 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 The self-petitioner's own declaration.

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§ 4.16 DOCUMENTING ELIGIBILITY FOR A VAWA SELF-PETITION FOR A CHILD The self-petitioning child must provide documentation showing the parent-child relationship with the abuser. For a self-petitioning child born in wedlock, the child's birth certificate should be submitted, showing the abuser as a parent.25 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.26 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.27 If the child is adopted, copies of the legal adoption before the child turned 16 as well as documentation of two years' physical and legal custody must be submitted. If the child is the stepchild of the abuser, then the child's birth certificate and the marriage certificate of the child's parent and the stepparent, showing that the marriage took place before the stepchild reached 18 years of age, and evidence of legal termination or all prior marriages of either parent, if any, should be submitted.28

PRACTICE TIP: 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. For immigration purposes, this is an "original" document. There are two things to remember about original documents: 1. Do not submit original documents to the INS unless you are told to do so. Instead of sending the original document, the INS generally permits the filing of photocopies instead of original documents with petitions, and the applicant does not need to individually certify the copies.29 The INS views the signing of the petition a certification under penalty or 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

25 26

8 CFR § 204.2(e)(2)(ii). Id. 27 8 CFR § 204.2(d)(iii). 28 8 CFR § 204.2(e)(2)(ii). 29 8 CFR § 204.1(f)(2).

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NOTE: If originals are submitted instead of copies, the INS 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 INS upon request. In addition, you or the client must bring the original document to any interview that has to do with the case. If at all possible, return all original documents to the client and ask her to keep them safe.

PRACTICE TIP: Making Certified Translations of Documents All documents that are not in English must be submitted to the INS with a full English translation made by a person who is competent to translate. Summary translations are no longer accepted. All foreign language documents must be accompanied with a full English translation.30 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. 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.

KEEP A COPY! The INS or the Post Office could lose your package. Never submit any documents to the INS without making a copy for your files. If you are helping someone that you will not represent, make sure that the applicant keeps a copy. Keep the receipt from the certified mail/return receipt requested mailing with the copy. If there is ever a problem, this will be the proof of filing and priority date. Furthermore, because she will later go to an INS interview, make sure the self-petitioner retains a copy of the complete petition.

30

8 CFR § 103.2(b)(3).

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§ 4.17 FILING THE COMPLETED I-360 PACKET All VAWA self-petitioners are adjudicated by specially trained INS officers at the Vermont Service Center.31 The self-petition must be mailed to: Immigration and Naturalization Service Vermont Service Center 75 Lower Weldon Street St. Albans, VT 05479 Mark on the front of the envelope with the self-petition (and all correspondence with the INS) "VAWA" in large red letters. Writing "VAWA" on the envelope will make it easier for the INS to direct the self-petition application to the INS examiners who are specially trained to adjudicate I-360s. Mail the petition certified mail, return receipt requested.

PRACTICE TIP: Clients in Removal Proceedings or Already Ordered Removed Caveat: If you have a client in removal proceedings, an attorney or BIA-accredited representative must represent him or her. If the client is in removal proceedings and appears eligible to self-petition under VAWA, the representative should file the self-petition with the Vermont Service Center as soon as possible. The representative should also talk with the INS Associate District Counsel handling the case about the possibility of ending or postponing the removal proceedings if it is more helpful to the applicant. There are a number of ways in which a case may be ended or postponed. First, the Associate District Counsel might be able to withdraw the Notice to Appear (the charging document for removal proceedings). Second, the Associate District Counsel might join with the self-petitioner's representative in filing a motion to terminate the removal proceedings or a motion to administratively close the removal proceedings to allow the client to apply for adjustment of status before the INS. Finally, the Associate District Counsel might join in filing a motion to continue the removal proceedings until the Vermont Service Center decides the selfpetition. If the Vermont Service Center approves the self-petition, then the client can file an application for adjustment of status with the Immigration Court as a form of relief from removal if she is eligible to adjust status. See Chapter 5 for more information on Adjustment of Status. If the Associate District Counsel will not agree to withdraw the Notice to Appear or join in a motion to terminate or postpone the removal proceedings, then the representative should file a motion for a continuance with the Immigration Court. The motion should request that the removal proceedings be postponed until the Vermont Service Center makes a decision on the

31

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 I, 74 Interpreter Releases 971 (June 16, 1997)].

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self-petition. The representative should attach a copy of the Vermont Service Center's receipt or a copy of the self-petition with certified mail receipts. If the Immigration Judge will not continue the proceedings to wait for the Vermont Service Center's decision, if the Vermont Service Center does not approve the self-petition or if the client is not eligible to self-petition, the client may be eligible for a form of relief from removal known as VAWA cancellation of removal. If granted, VAWA cancellation of removal allows the applicant to gain permanent resident status. For more information on Cancellation or Removal, see Chapter 10. Even if ordered removed, the client should be able to reopen the proceedings at a later date if the Vermont Service Center approves the self-petition or if the client becomes eligible for VAWA cancellation of removal.

§ 4.18 PRIMA FACIE ELIGIBILITY When the INS 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 17 for a sample INS receipt notice.) The receipt date is the same as the priority date if a family based petition has never been filed for the self-petitioner.32 However, if an approvable petition was previously filed on the self-petitioner's behalf, the self-petitioner may recapture that priority date. Within several weeks, the INS will review the self-petition to determine whether it states facts that, if proved true, would lead to approval.33 (See Appendix 18 for a sample INS notice of prima facie eligibility.) If it does, the INS will mail to the self-petitioner (or whoever she listed in the address section) a letter stating that she is "prima facie" eligible under VAWA.34 This is NOT a final approval letter, and self-petitioners must still respond to any requests for additional information from the INS. 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.35 (See the chart prepared by the California Immigrant Welfare Collaborative in Chapter 14 that describes what benefits are available to "qualified aliens," a category which includes VAWA self-petitioners.) If a self-petitioner needs public benefits right away, it may be better to file with the INS just a one-page affidavit stating that she meets the eligibility requirements. Otherwise, INS may discover a problem with the petition and find the person is not prima facie eligible.

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. 33 8 CFR § 204.2(c)(6)(E). 34 Id. 35 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 I, 74 Interpreter Releases 971 (June 16, 1997)].

32

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INS always gives self-petitioners a chance to supplement their self-petitions. If the examiner believes that additional information is needed to adjudicate the case, he or she will issue a Notice of Action/Request for Evidence.

§ 4.19 NOTICE OF ACTION/REQUEST FOR EVIDENCE After sending the "prima facie" letter, the INS will do a more thorough review of the selfpetition and documentation provided. If more documentation is needed, the INS will request it in a "Notice of Action." (See sample Notice of Action/Request for Evidence at Appendix 19. The additional documentation must be sent to the INS within 60 days. If it is not possible to provide the additional documentation within 60 days, you must request an extension that may be granted for up to 60 additional days.

PRACTICE TIP: Contacting the INS about a VAWA Case The Vermont Service Center has made available a VAWA Hotline at (802) 527-4888. This line is for use by advocates, not self-petitioners themselves.

§ 4.20 DEFERRED ACTION If the self-petition is approved, the INS will mail the self-petitioner an Approval Notice (INS Form I-797). (See sample VAWA Approval Notice at Appendix 20. Normally, this includes an "Initial Grant of Deferred Action." This means that although the INS knows the selfpetitioner is present in the U.S. without lawful immigration status, it will not deport her before she can adjust to lawful 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.36 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.37

36 37

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

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§ 4.21 PREFERENCE CATEGORIES FOR FAMILY-BASED IMMIGRATION 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 what preference category she falls. If she is or was the "spouse" or "child" 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 at the INS closest to her residence or by submitting the application along with her I-360 to the Vermont Service Center. Although the Vermont Service Center will not adjudicate the I-485, they can forward it to the INS district office closest to the self-petitioner's residence. Others who can generally migrate through a preference visa petition will fall into one of four categories. These categories are set forth at INA § 201(b). The preference categories 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/she loses eligibility to immigrate. THIRD PREFERENCE: The beneficiary is the married son or daughter, of any age, of a U.S. citizen. (NOTE: Before the Immigration Act of 1990, this was referred to as Fourth Preference.) A third preference beneficiary is a U.S. citizen's "child" who is now married. 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. (NOTE: Before the Immigration Act of 1990, this was referred to as Fifth Preference.)

§ 4.22 HOW THE PREFERENCE SYSTEM WORKS Once the self-petition is approved, an immediate relative may go to step two and apply for immigration. Spouses and children of lawful permanent residents, however, must wait until a visa is available under the preference system before going on to step two. Understanding how the preference system works will help you analyze when to submit the adjustment application. The preference system. 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.

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INS 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 theory goes, 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 that reason, someone from France or Uruguay may be able to immigrate much faster than someone with a similar visa petition from Mexico or the Philippines.

§ 4.23 USING THE STATE DEPARTMENT VISA BULLETIN TO MAKE AN ESTIMATE OF WHEN YOUR CLIENT CAN IMMIGRATE 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: 1. The priority date of the visa petition 2. The country of chargeability 3. The preference category 1. Priority date.

The date that the I-360 petition is filed with the INS 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 to determine when the person can immigrate. The priority date is the date that the INS received the petition and accepted the fee, not the date that the petition was approved. This is only fair, 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. 2. 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.

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3.

Preference category.

This is the category of the visa petition, for example second preference 2A for the immigrating spouse of a lawful permanent resident.

PRACTICE TIP:

How to Read the Visa Bulletin

Look at the copy of a State Department Visa Bulletin in Appendix 42. First, notice the date on the upper right hand corner. This shows the month to which this visa bulletin is pertinent. The State Department issues a new visa bulletin each month and most of the information in the bulletin changes from month to month. So checking the new visa bulletin each month is important. Across the top portion of the bulletin are all the categories of preference visas. Along the left hand side is a list of countries called the "areas of chargeability." The first 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. 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 draw a line down from the relevant preference category and across from country of chargeability you will find a date. That is the priority date of persons from that country, and in that preference category, for whom visas are available now. The rule to reading the Bulletin is: If your client's priority date falls before the date listed, 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. 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.

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PRACTICE TIP: How to Order the State Department Visa Bulletin You can receive the monthly State Department Visa Bulletin. There is no charge. Send your address and a letter requesting the VISA BULLETIN to: Visa Bulletin Visa Office Department of State Washington, D.C. 20522-0113 You can also access the Visa Bulletin on the Internet by going to http://travel.state.gov and can request at the website that the State Department email the Visa Bulletin to you monthly. You can also telephone (202) 663-1541 to hear a recorded message on current priority dates.

PRACTICE TIP: 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 is simply unpredictable), 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. You can only make 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 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.

§ 4.24 EMPLOYMENT AUTHORIZATION Approved self-petitioners also qualify for employment authorization. At this point, the INS also tells the self-petitioner that she may file an I-765 to obtain work authorization (Employment Authorization Document). (See blank INS Form I-765 at Appendix 32.)

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1.

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 fate are eligible for employment authorization based upon their immediate eligibility to adjust status to permanent residence.38 They need not show any need for employment, and they may file their application for employment authorization at the same time as and along with the Form I-360 self-petition and the Form I-485 adjustment of status application. Self-petitioners who fall under the immediate relative category because the abuser is a USC can also file for work authorization at the local INS office. 2. Self-Petitioners who Must Wait until their Priority Dates Becomes Current

Approved self-petitioners who must wait until their priority date becomes current are eligible for employment authorization based upon a grant of deferred action.39 Therefore, selfpetitioners who were abused by an LPR must wait until their self-petition is approved and they are granted deferred action before obtaining employment authorization. At that time, a selfpetitioner can apply for work authorization by submitting Form I-765 to the Vermont Service Center together with the filing fee of $120.00 and a statement that the self-petitioner has an economic necessity for employment authorization. This statement should list the selfpetitioner's assets, income, expenses and dependents.40 The application may be submitted with the I-360 self-petition or may be filed after notification that the self-petition has been approved. Employment authorization granted by the Vermont Service Center is issued in one-year increments, so may need to be renewed annually.41

§ 4.25 ADJUSTMENT OF STATUS If the Vermont Service Center approves the I-360 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 self-petition. These two methods are: (1) adjustment of status and (2) consular processing. Adjustment of status is a process for changing one immigration status, or undocumented status, to the status of lawful permanent resident. It is done in the United States, through an application filed with the INS. Consular processing is a means of obtaining lawful permanent residence at a U.S. consulate abroad. If the self-petitioner will obtain a visa through adjustment of status, the INS will retain the approval notice. If the self-petitioner will obtain a visa through consular processing, the INS sends the approval notice to the National Visa Center of the Department of State.42

8 CFR § 274a.12(c)(9). 8 CFR § 274a.12(c)(14). 40 8 CFR § 274a.12(d). 41 Cronin, Acting Executive Associate Commissioner, Office of Programs, INS Mem. HQ/AND/70/6.1P (Sept. 8, 2000), reprinted in 77 Interpreter Releases, 1432-33 (Oct. 2, 2000). 42 8 CFR § 204.2(3)(i).

39 38

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In general, adjustment of status is preferable to consular processing. Almost all VAWA self-petitioners 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.

§ 4.26 NOTICE OF INTENT TO DENY If the INS does not approve the self-petition, it will send the self-petitioner a Notice of Intent to Deny, setting forth the reasons for the intended denial.43 (See sample INS Intent to Deny at Appendix 33). The Notice will also give the self-petitioner additional time to respond with necessary facts and documents before a final decision is made.44 If the INS denies the self-petition the applicant may file a notice of appeal with the Board of Immigration Appeals (BIA) within 30 days after the date of the final decision to deny.45 Alternatively, the self-petitioner can file a Motion to Reconsider or Reopen with the Vermont Service Center.46 See Appendix 34 for sample Motions to Reopen. There is a fee of $110.00 for these motions,47 but a fee waiver may be requested.48 For information about appeals of denial, contact Gail Pendleton of the National Lawyers Guild's National Immigration Project at [email protected]

PRACTICE TIP: Getting INS to apply VAWA 2000 standards to VAWA cases already filed. The 2000 amendments to VAWA made it apply to more victims of domestic violence and made it easier to meet the self-petitioning requirements. Some people who have already applied may have a better chance of having their self-petitions approved under the new rules. They may wish to try to convince the INS to apply the new rules to their cases. See Pendleton and Block, "Petitions For Immigration Status Under the Violence Against Women Act (VAWA): 2001," on the National Immigration Project website, www.nationalimmigrationproject.org (click on the "domestic violence" option), or contact Gail Pendleton at (617) 227-9727 or [email protected] for suggestions about making this argument.

43 44

8 CFR § 204.2(c)(3)(ii). Id. 45 8 CFR § 3.1(b)(5). 46 8 CFR § 103.5. 47 8 CFR § 103.7(b). 48 8 CFR § 103.7(c).

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§ 4.27 SPECIAL CONCERNS FOR ADVOCATES WHO ARE NOT ATTORNEYS OR ACCREDITED REPRESENTATIVES As noted elsewhere, gaining lawful permanent resident status (a green card) through VAWA self-petitioning 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 U.S. ("deferred action"), and is eligible for work authorization and certain public benefits. In the second step, she files to upgrade, or "adjust" her status to lawful permanent residence. Although many battered immigrants justifiably focus on the 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. 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 U.S., as well as maintenance and monitoring 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. What, then, should agencies and individuals who help clients through the first step of the self-petitioning 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) 2) Whether the client is eligible to adjust status immediately (because the abuser is a U.S. citizen) or whether she must wait several years to do so; That how many years she must wait for a visa is determined by the State Department's "Visa Bulletin," and that it is her responsibility ­ the INS will not tell her to apply for adjustment of status when her visa petition becomes "current." That the client will need assistance in determining whether she is admissible to the U.S., and whether she needs to apply for waivers of any grounds of inadmissibility; That someone who is found to be inadmissible may be put into removal proceedings, and possibly deported; That the client must work with an immigration expert to prepare her case for adjustment of status.

3) 4) 5)

Second, the advocate should help the client find an attorney or BIA Accredited Representative to represent her during the adjustment process, and should make sure the client is able to make appointments with, 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, or may be willing to charge lower fees to a particular agency's clients in return for referrals from that agency. Because VAWA enables a

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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 because in some cases many years will elapse between filing the self-petition and adjustment, 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. 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 44. 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 (see explanation on the following page). Finally, don't give up hope during the period during which your client is waiting for her priority date to become current that an immigration expert may move to your area, or that your client will move to or have better access to a city with more immigration services. 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.

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CHAPTER 5 ADJUSTMENT OF STATUS FOR VAWA SELF-PETITIONERS

Contents Introduction ........................................................................................................................ 5-1 When will a lawful permanent resident visa be available? ................................................ 5-2 Adjustment of status for VAWA self-petitioners: Adjustment requirements ................... 5-4 When should a self-petitioner who is an immediate relative file an application for adjustment of status? .......................................................................................................... 5-5 5.5 Where to file the adjustment application............................................................................ 5-6 5.6 Adjustment of status for derivative beneficiaries............................................................... 5-8 5.7 Applying for adjustment of status .................................................................................... 5-11 · Completing the Form I-485........................................................................................ 5-11 5.8 The contents of the adjustment application packet .......................................................... 5-18 5.9 Filing fees......................................................................................................................... 5-19 5.10 Interview process.............................................................................................................. 5-19 5.11 If adjustment of status is denied....................................................................................... 5-22 5.1 5.2 5.3 5.4

§ 5.1 INTRODUCTION The approval of a VAWA self-petition is the first step in the immigration process. Once the self-petition 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 INS. Because of relaxed requirements for adjustment of status for VAWA self-petitioners, most self-petitioners 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. There will be cases in which either the principal self-petitioner or his or her derivatives will need to consular process, however. 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 United States citizen who filed the K visa petition.1 Or the self-petitioner might be in the United

1

INA § 245(d).

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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 processing process as well as the adjustment process. This chapter will cover adjustment of status for VAWA self-petitioners and their derivatives. The Chapter 8 will discuss consular processing for those persons.

PRACTICE TIP ON 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 synonyms.

§ 5.2 WHEN WILL A LAWFUL PERMANENT RESIDENT VISA BE AVAILABLE? How soon a 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.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 categories4 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 on which the petition requesting family-based immigration is 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 that 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

2 3 4

INA § 201(b)(2)(A)(i). INA § 201(b).

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 [reprinted at 73 Interpreter Releases 737 (May 24, 1996)]. 7 8 CFR §§ 204.1(c), 245.1(g)(2).

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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 current months' Visa Bulletin at http://travel.state.gov. A sample Visa Bulletin is included at Appendix 42. Example 1: Julia, a citizen of Argentina, is married to Augustin, a lawful permanent resident. On August 31, 2001, she mails to the Vermont Service Center a self-petition based on abuse inflicted on her by Augustin. Her priority date is September 2, 2001, the day the selfpetition was received by the Vermont Service Center. Julia falls under the second familybased immigration preference category, because she is the spouse of a lawful permanent resident. The self-petition is approved on November 1, 2001, but Julia cannot obtain a lawful permanent resident visa at that time, because there is a waiting period of about three years under the second preference. This means that her priority date will not become "current" for about three years. She must wait until her priority date becomes current before she can file an application for adjustment of status. During that wait, however, the Vermont Service Center grants her deferred action status and, if she can show economic necessity, employment authorization. Example 2: 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 self-petition. 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 also change.9 Example 3: After Julia files her self-petition, her husband Augustin naturalizes, so that his status is changed from LPR to U.S. citizen. Julia automatically is now an immediate relative and has no waiting period for her immigrant visa.

8 9

8 CFR § 245.1(g).

8 CFR § 204.2(h). See, Lauren Gilbert, "Family Violence and U.S. Immigration Law: New Developments," Immigration Briefings (March 2000), at 13.

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§ 5.3 ADJUSTMENT OF STATUS FOR VAWA SELF-PETITIONERS: ADJUSTMENT REQUIREMENTS VAWA self-petitioners are eligible for special adjustment provisions, which are less rigorous than the adjustment requirements applied to other immigrants. In this chapter, we will focus on VAWA adjustment requirements, and will cover the general adjustment requirements only briefly.10 The applicant for VAWA adjustment of status must satisfy the following requirements: · The Vermont Service Center must have approved the applicant's I-360 self-petition, or the applicant must be a derivative beneficiary (the child of someone who has an approved I-360 self-petition).11 There must be a visa currently available for the applicant.12 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 applicant must be admissible under INA § 212.13 This means that the applicant must not fall under any of the INA § 212 inadmissibility grounds or that, if the applicant does fall under one of those grounds, the applicant must be eligible for a waiver of that ground. As we saw in Chapter 7, there are many special waivers of inadmissibility grounds for VAWA selfpetitioners. Note that several of the requirements for general adjustment of status simply do not apply to VAWA self-petitioners. Thus: VAWA self-petitioners need not have been inspected or admitted to the United States.14 This means that self-petitioners who entered the United States without inspection (sometimes called "EWIs") are eligible for VAWA adjustment. Having worked without authorization does not make a VAWA self-petitioner ineligible for adjustment.15

·

·

· ·

·

Many excellent resources explain adjustment of status. These include the Catholic Legal Immigration Network, Inc., Family-Based Immigration: a Practitioner's Guide; the Immigrant Legal Resource Center, Inc., A Guide for Immigration Advocates; and Ignatius and Stickney, Immigration Law and the Family. 11 INA § 245(a).

12 13

10

Id. Id. Id. INA § 245(c).

14 15

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· ·

Having overstayed nonimmigrant status or having violated the terms of nonimmigrant status does not make a VAWA self-petitioner ineligible for adjustment.16 Having been admitted as a nonimmigrant under the categories "D" [crewmember], "C" [alien in transit without a visa], "J" [exchange visitor], or "S" [government witness] does not disqualify a VAWA self-petitioner from adjustment.17 Having been admitted under the visa waiver program is not a bar to VAWA adjustment.18 VAWA self-petitioners are not required to pay the $1,000 penalty fee for adjustment 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, 2001, 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, 2001, and works without authorization after her entry. Regina files a VAWA self-petition on November 1, 2001. The Vermont Service Center grants the self-petition, and grants Regina deferred action status and employment authorization. Regina's priority date is not yet current, but she is 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. [You warn Regina, however, that her unlawful entry and presence may make her inadmissible under INA § 212(a)(6)(A) (which we will discuss later in this chapter), but advise her that there is a waiver for which she might be eligible.]

· ·

§ 5.4 WHEN SHOULD A SELF-PETITIONER WHO IS AN IMMEDIATE RELATIVE FILE AN APPLICATION FOR ADJUSTMENT OF STATUS? 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. Alternatively, the self-petitioner may wait to apply for adjustment until the Vermont Service Center has granted the self-petition.

16 17 18

Id. Id. Id.

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The principal reason for filing the adjustment application with the self-petition is that an immediate relative is eligible for employment authorization when he or she applies for adjustment.19 Although the Vermont Service Center does not adjudicate the adjustment application,20 it may issue employment authorization, even prior to the adjudication of the selfpetition, for immediate relatives who apply for adjustment. If the Vermont Service Center grants the self-petition, it will forward the I-485 adjustment application on to the local INS office having jurisdiction over the applicant's place of residence, for adjudication of the adjustment application.21 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 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."22

§ 5.5 WHERE TO FILE THE ADJUSTMENT APPLICATION As mentioned in the preceding subsection, a self-petitioning immediate relative may elect to send the adjustment application to the Vermont Service Center along with the self-petition, and the Vermont Service Center will forward it to the local INS district office. Alternatively, a selfpetitioning immediate relative may wait until the Vermont Service Center approves the self-petition and then file the adjustment application with the local INS office. Self-petitioners other than immediate relatives, however, have no choice; they must file their adjustment applications with the local INS district office, together with an approval notice from the Vermont Service Center. There is a special requirement for 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. Those persons may apply for adjustment of status only in the removal, deportation, or exclusion proceedings.23 The term "removal proceedings" means proceedings instituted before the Immigration Judge on or after April 1, 1997, for the purpose of determining whether a person is inadmissible or deportable. "Deportation proceedings" are proceedings begun before April 1, 1997, to determine whether a person is deportable, while "exclusion proceedings" are proceedings begun before April 1, 1997, to determine whether a person is inadmissible.

19 20

8 CFR § 274a.12(c)(9).

Gail Pendleton and Ann Block, "Applications for Immigration Status under the Violence against Women Act," in AILA, I Immigration and Naturalization Law Handbook 436, 448 (2001-2002). 21 8 CFR § 245.2(a).

22

Information supplied by Gail Pendleton, of the National Lawyers' Guild National Immigration Project, on January 29, 2002. Notes of conversation on file with authors. 23 8 CFR § 245.2(a).

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If a final administrative order of removal or deportation has been issued,24 then the individual will need to file a motion to reopen the proceedings in order to apply for adjustment.25 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 deportation proceedings in 1990 and received a final order of deportation. He appealed to the Board of Immigration Appeals, which upheld the Immigration Judge's order of deportation. Winston did not leave and, in 1999, met and married Rebecca, a U.S. citizen. Rebecca was abusive, and Winston filed a self-petition, which was granted by the Vermont Service Center. Winston cannot apply for adjustment of status with the INS. Instead, he must file a motion to reopen his deportation proceedings for the purpose of applying for adjustment as a form of relief from removal. If Winston had never been in deportation, exclusion, or removal proceedings, however, he would be able to apply for adjustment by filing the application with the INS. The motion to reopen is filed with the last administrative body to have jurisdiction over the proceedings.26 This would be either the Immigration Court or, if the person appealed the Immigration Court's decision, the Board of Immigration Appeals. There are limitations on the timing and number of motions to reopen filed with the Immigration Court and Board of Immigration Appeals, but those limitations are relaxed for VAWA self-petitioners.27 For removal orders, if the basis of the motion to reopen is to apply for adjustment of status based upon a VAWA self-petition or to apply for VAWA cancellation of removal (covered in Chapter 10), the motion to reopen must be filed within one year after a final order of removal.28 Even this time limit may be waived for an individual who demonstrates "extraordinary circumstances or extreme hardship to the alien's child."29 There is no time limit for filing a motion to reopen a deportation proceeding in order to apply for adjustment of status or suspension of deportation (we'll cover suspension of deportation in Chapter 10.)30

24

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). 25 8 CFR §§ 3.2 (motions to reopen before the BIA), 3.23 (motions to reopen before the Immigration Court).

26 27 28 29 30

8 CFR §§ 3.2(a) (motions to reopen before the BIA), 3.23(b) (motions to reopen before the Immigration Court). INA § 240(c)(6). INA § 240(c)(6)(C)(iv). Id.

Section 1506(c)(2), title V [Battered Immigrant Women Protection Act of 2000], div. B [Violence against Women Act of 2000], Pub. L. No. 106-386 [Victims of Trafficking and Violence Protection Act of 2000], Act of Oct. 28, 2000, 114 Stat. 1464.

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When preparing a motion to reopen, the advocate must comply with the format and content requirements set out in the BIA and Immigration Court regulations31 and in any local Immigration Court rules. § 5.6 ADJUSTMENT OF STATUS FOR DERIVATIVE BENEFICIARIES VAWA self-petitioners may include their derivative beneficiaries in the self-petition. For self-petitioners in both the immediate relative and second family preference categories, derivative beneficiaries include unmarried children under 21,32 as well as children who turn 21 after the self-petition was filed.33 The self-petitioner will not need to file a separate I-130 or I360 for these derivative beneficiaries.34 Instead, the derivative beneficiaries each file a separate I-485 and required supporting documents. Under special VAWA provisions, derivative children of VAWA self-petitioners do not lose their derivative status when they turn 21, as long as the self-petition was filed before they turned 21. 35 Instead, their status is automatically converted from derivative into a visa petition 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.36 They are eligible for deferred action status and employment authorization while waiting for an immigrant visa.37 Because VAWA derivative beneficiaries who turn 21 are considered to be petitioners in their own right, they should be eligible for the relaxed VAWA adjustment of status rules we have discussed in this chapter. Derivative beneficiaries who are not yet 21 years old, however, may not be eligible for these relaxed provisions. As this chapter is being written, the INS has not yet issued regulations implementing the changes in the law made by VAWA 2000. Advocates hope that the INS will clarify this issue in the regulations and interpret the law to include derivative beneficiaries under the special VAWA adjustment provisions. Should you encounter problems of this nature, you may wish to contact the ILRC, CLINIC, or Gail Pendleton of the National Lawyers' Guild National Immigration Project for assistance.

31 32

8 CFR §§ 3.2(c) [motions to reopen before the BIA] and 3.23 [motions to reopen before the Immigration Court].

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. 33 INA § 204(a)(1)(D)(i)(III).

34 35

Id.

This protection against "aging out" has also been extended to many principal and derivative beneficiaries outside the VAWA context, under the Child Status Protection Act of 2002, Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002).

INA § 204(a)(1)(D)(i)(I & III). See, Ignatius and Stickney, Immigration Law and the Family, at 4-77 (Release #6, 6/2001). 37 INA § 204(a)(1)(D)(i)(II) & (IV).

36

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If it is determined that derivative beneficiaries under 21 cannot take advantage of these special provisions, they may still be able to adjust status under INA § 245(a) and (c) or the special adjustment provisions of INA § 245(i). The requirements for regular adjustment under INA § 245(a) are the following: · · · · · The applicant must have been inspected and admitted or paroled into the United States; The applicant must be eligible for a visa (for a derivative beneficiary of a VAWA selfpetitioner, this means that the person qualifies as a derivative beneficiary); The applicant is admissible to the United States (this means that the applicant does not fall under any of the inadmissibility grounds of INA § 212, or is eligible for a waiver of those grounds); There is a visa number currently available for the applicant (for the derivative of a VAWA self-petitioner, this means that the principal is either an immediate relative or has a current priority date); and The applicant does not fall within a number of prohibitions on adjustment, under Section 245(c) and (d). Those prohibitions, as they pertain to VAWA derivatives, are the following: · · · · · · · The applicant must not have engaged in unauthorized employment; The applicant must have maintained lawful nonimmigrant or parolee status; The applicant must not have been admitted as a crewmember, an alien admitted in transit without a visa, or an S nonimmigrant (witnesses in criminal matters); The applicant must not have been admitted as J exchange visitor, unless he or she is exempt from or has complied with the two-year foreign residency requirement for that type of visa; The applicant must not have been admitted under the visa waiver pilot program; and The applicant must not be deportable under terrorist grounds (237(a)(4)(B)).38

Certain of these requirements -- the requirement of inspection and admission or parole and the requirement of maintaining valid nonimmigrant status and not working without authorization -- are waivable under a special adjustment provision found at INA § 245(i). To be eligible for adjustment of status under INA Section 245(i), the applicant must be, or must have been, the beneficiary of a visa petition39 that was: · filed on or before January 14, 1998, or

38

Immediate relatives of USCs are exempt from the bars of having worked without authorization, having failed to maintain valid nonimmigrant status, and having entered under the visa waiver program. It is not yet clear whether these exemptions extend to derivative beneficiaries of VAWA self-petitioners. The types of visa petition that qualify for Section 245(i) purposes are: the I-130 Petition for Immigrant Relative, the I-140 Immigrant Petition for Alien Worker, the I-360 Petition for Amerasian, Widow, or Special Immigrant, the I-526 Immigrant Petition by Alien Entrepreneur, and an application for labor certification, filed with a state Department of Labor.

39

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·

filed after January 14, 1998, but no later than April 30, 2001, AND the principal beneficiary must have been physically present in the U.S. on December 21, 2000.40

The visa petition must have been approvable at the time it was filed.41 A petition which was "approvable when filed" is one which was filed properly, was not fraudulent, and was one for which the beneficiary had the required family or employment relationship. A denial or withdrawal of the petition, or a subsequent revocation of approval, does not prevent a petition from being "approvable when filed."42 A "beneficiary," for purposes of Section 245(i), includes: · · · · Principal beneficiaries of a visa petition, even those who lose eligibility; Derivative beneficiaries, even those who lose eligibility; Persons who could be derivatives of the principal beneficiary, but who are not identified in the visa petition; After-acquired spouses and children.43

If a person is a beneficiary of a visa petition that meets the Section 245(i) requirements, that person is "grandfathered" for purposes of adjustment under Section 245(i).44 The person need not adjust status on the basis of the visa petition that gave him or her grandfathered status. Instead, he or she may adjust status through a later visa petition. Example: Alexandra, a citizen of Algeria, entered the United States in 1996. She has a daughter, Hekla, who is 10. Both Alexandra and Hekla entered the United States without inspection. Alexandra married George, an LPR, in 1999. George filed an I-130 for Alexandra, but he was so abusive that Alexandra left the family home with Hekla to escape the abuse. Alexandra filed an I-360 self-petition, and it was approved. Alexandra may apply for adjustment of status under the special VAWA adjustment provisions. It does not matter that she entered without inspection or that she has worked without authorization. The question then becomes whether Hekla can adjust status. If it is determined that derivative beneficiaries under 21 cannot use the VAWA adjustment provisions, Hekla must use the non-VAWA adjustment provisions. She cannot meet the INA § 245(a) requirement of having been inspected and admitted or paroled. She may be able to adjust, however, under INA § 245(i). She would have been a derivative beneficiary of the

40 41

INA § 245(i)(1).

Robert L. Bach, Exec. Ass. Comm., INS Office of Policy and Programs, Memorandum HQ 70/23.1-P/HQ 70/8-P (June 10, 1999), at 3, reprinted at 76 Interpreter Releases 1028 (July 2, 1999). 42 Id.

43 44

Id. Id., at 4.

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I-130 that George filed for her mother. Since this was filed before the April 30, 2001, cut-off date, and since Hekla was physically present in the United States on December 21, 2000, she should be able to adjust as a derivative beneficiary under Alexandra's I360 self-petition. The I-130 filed by George has "grandfathered" Hekla for purposes of Section 245(i) adjustment. There is a penalty fee of $1,000.00 for adjustment under Section 245(i), in addition to the regular adjustment filing fee.45 Unmarried persons under 17 years of age are exempt from this penalty fee, however.46 Marriage of derivative beneficiaries who are the sons or daughters of U.S. citizens does not appear to preclude them from derivative status. VAWA derivative beneficiaries who turn 21 are considered petitioners for preference in the first, second, or third-based family preferences categories.47 The third family preference category is for married children of USCs.

§ 5.7 APPLYING FOR ADJUSTMENT OF STATUS The application for adjustment of status is made on INS Form I-485. See Appendix 46 for a sample blank INS Form I-485 and Appendix 47 for a sample completed I-485. 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. 1. Part 1 The self-petitioner becomes the petitioner on an I-485 application. Part 1 requires background information on the petitioner, including name, address, date and country of birth, and social security and alien 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 INS' attention, such as through the filing of a selfpetition. Refer to the I-360 approval notice or other documents from the Vermont Service Center, which should note the A-number assigned to the self-petitioner. The A-number consists of the letter A, followed by eight numbers.

45 46 47

INA § 245(i)(1). Id. INA § 204(a)(1)(D)(i)(II) & (IV).

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In answering "date of last arrival," refer to the petitioner's I-94 entry document, if any. Otherwise, enter the date the petitioner entered the United States, either legally or illegally. If the petitioner has an I-94, enter the I-94 number. Otherwise, put none. If the petitioner entered the United States legally and is in current nonimmigrant status, enter the nonimmigrant classification in response to the request for "current INS status." If the individual entered legally, but has overstayed his or her authorized stay, note that. If the individual was paroled into the country pursuant to INA § 212(d)(5), enter that information. If the petitioner entered the country without inspection and admission, write "entered without inspection" or "EWI."

PRACTICE TIP: INA § 212(a)(6)(A). Questions concerning the manner of the self-petitioner's entry to the United States can raise the issue of inadmissibility under INA § 212(a)(6)(A)(i). That section makes inadmissible any noncitizen who currently is present in the United States after entering without inspection.48 This issue is separate and apart from the general adjustment requirement of having been inspected and admitted or paroled into the United States. VAWA self-petitioners are exempt from this requirement, but may still be inadmissible under INA § 212(a)(6)(A)(i). There are two exceptions to the INA § 212(a)(6)(A) ground for VAWA self-petitioners. Determining which exception 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.49 The section 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.50 Example: Cui entered the United States on March 15, 1997, without inspection, when she was 19 years old. She had been abused by her father in China and fled to the United States to

INA § 212(a)(6)(A)(i). Section 301(c)(2), IIRAIRA. ""(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 IIRAIRA]." 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), IIRAIRA.

49 50

48

INA § 212(a)(6)(A)(ii)(II).

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escape that abuse. In July, 1997, she met Vivec, a United States citizen, and they married in October, 1997. Over the next few months, Vivec was very abusive to Cui. Cui filed a VAWA self-petition, which was granted, and an application for adjustment of status. INA § 212(a)(6)(A) does not apply to Cui, because she arrived in the United States before April 1, 1997. Even if she had entered after April 1, 1997, however, Cui should argue that INA § 212(a)(6)(A) does not apply to her, because her unlawful entry into the United States was done in order to escape (and therefore was arguably substantially connected to) the abuse she suffered in China at the hands of her father. The statute does not appear to require that the abuse connected to the unlawful entry be the same abuse that gives rise to the self-petition. It is not yet clear how the INS will apply INA § 212(a)(6)(A) to VAWA self-petitioners, and the INS' anticipated final regulations may resolve the issue. If you experience or anticipate problems in a VAWA adjustment case because of this inadmissibility ground, you may wish to contact the ILRC, CLINIC, or Gail Pendleton of the National Lawyers Guild's National Immigration Project for assistance.

2. Part 2 For principal applicants, check box "a" for persons seeking adjustment based on an I-360 self-petition. Check box "b" if the petitioner is a derivative beneficiary who will be deriving status through the adjustment of a self-petitioning parent. 3. Part 3 Section A of Part 3 requires further biographical information relating to the petitioner and the petitioner's family members. Enter the petitioner'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 petitioner's birth certificate. Enter the name of the petitioner 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 I94. If the person entered illegally, put the approximate place of entry, such as "near El Paso." Indicate whether the petitioner was inspected and, if so, his or her status at last admission. If the person entered with a nonimmigrant visa, enter the visa number appearing on the visa in the alien'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 person's sex and marital status. "Single" means never married. If the petitioner was previously married, indicate "widowed" or "divorced." If the person had ever applied for permanent resident status and been granted it, give the date and place of filing. The petitioner might have once been an LPR and abandoned that status or been deported. If the petitioner once applied but was denied LPR status, provide the date and place of filing.

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Section B of Part 3 asks for the name, date and country of birth, and A-number of the petitioner's spouse and children, regardless of age and whether they are married. Indicate whether the petitioner's children will apply for adjustment concurrently with the petitioner. Please remember to list all of the petitioner's children, whether they are biological, adopted, step-, illegitimate, or illegitimate children and whether they are living abroad or in the United States. List all present and past memberships in any organization since the petitioner 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 self-petitioner'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 self-petitioner'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). The questions in Section C of Part 3 are aimed at determining whether any ground of inadmissibility might apply to the petitioner. Answering in the affirmative does not necessarily mean that the petitioner 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 even if the individual is inadmissible, there may be a waiver of the inadmissibility ground for which he or she can apply, and there are a number of special waivers for VAWA self-petitioners. Inadmissibility grounds and waivers are covered in Chapters 6 and 7.

PRACTICE TIP: Experts note that several new exceptions to and waivers of inadmissibility grounds for VAWA self-petitioners were introduced into the immigration law in October of 2000, with the Battered Immigrant Women Protection Act. Regulations implementing that Act have not yet been promulgated. Because of this, self-petitioners who may be inadmissible and who are not clearly eligible for one of the new exceptions or waivers may want to consider remaining in deferred action status until the law is clarified. See, Ignatius and Stickney, Immigration Law and the Family, at 4-82 (Release # 6, 6/2001).

Question number 1 asks whether the self-petitioner 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.51 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. Minor

51

INA § 212(a)(2).

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violations will not affect the petitioner's admissibility, but convictions of crimes involving theft, fraud, drugs, prostitution, or violence may make the petitioner inadmissible. Remember that there are both general and VAWA-specific waivers for criminal inadmissibility grounds, except for most drug offenses.52 Question number 2 asks for information regarding past or potential receipt of public assistance from any source, including federal, state, city, and county agencies. List only benefits received by the petitioner himself or herself. You do not have to indicate benefits received by the petitioner's household members. Indicate on a separate piece of paper what benefits were received and explain the reasons for their receipt. Receipt of public benefits may raise the issue of inadmissibility as a public charge under INA § 212(a)(4), but there are important exceptions to be considered. First, under new public charge standards, only receipt of certain cash assistance programs or those used for long-term hospitalization will be considered for purposes of determining whether a petitioner is likely to be a public charge.53 In addition, the INS cannot consider for public charge purposes any benefits a self-petitioner may have received because of his or her status as an abused immigrant.54 Question number 9 asks whether the petitioner has ever been excluded, deported, or removed from the United States and whether the petitioner is currently in removal, exclusion, or deportation proceedings. Petitioners 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 alien's arrival, ten years for deportation, exclusion, or removal orders)55 and must request the Attorney General's consent if they wish to reapply for admission prior to expiration of that time period. This permission is requested on Form I-212 and is 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, petitioners who are currently in proceedings must apply for adjustment before the Immigration Court. Similarly, petitioners who have received a final order of deportation, exclusion, or removal, and have not self-executed that order by leaving the United States, will need to file a motion to reopen the proceedings. Question number 10 asks if the petitioner 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). There are waivers of this inadmissibility ground available for certain petitioners.56

52 53

INA § 212(h).

Memorandum, from Michael A. Pearson, INS Executive Associate Commissioner, Office of Field Operations, May 20, 1999, Subject: Public Charge, published at 64 Fed. Reg. 28689-28693 [reprinted in 76 Interpreter Releases 873-877 (May 28, 1999)]. 54 INA § 212(p).

55 56

INA § 212(a)(9)(A). INA § 212(d)(12).

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Question 10 also asks whether the petitioner, "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 petitioners who misrepresented a material fact to a consular official or INS agent. A "material fact" is one that would have made the individual 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.57 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. The INA provides both a general waiver and a special waiver for VAWA self-petitioners of this inadmissibility ground.58 The petitioner must sign the I-485. Anyone who assists in preparing the I-485, even if a separate G-28 is filed, should also sign the petition 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.

PRACTICE TIP ON EXPEDITED ADJUSTMENT OF STATUS FOR PERSONS ABOUT TO "AGE OUT." For 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. This problem has been considerably ameliorated by the Child Status Protection Act of 2002, Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002), which contains special provisions on "aging out" for principal beneficiaries who are children of USCs or LPRS and for derivative beneficiaries. Under that legislation, if a USC files an I-130 for his or her child while the child is under 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. The requirements for maintaining preference status for children of LPRs are more complicated. For purposes of 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. In addition, the beneficiary may take advantage of this provision only if he or she applies for a visa within one year of the priority date becoming current.

57 58

Matter of S & BC, 9 I & N Dec. 436 (BIA 1960); Kungys v. INS, 108 S. Ct. 1537 (1988). INA § 212(i).

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Example: In 1998, Ernesto, an LPR, files an I-130 Petition for Alien Relative with the INS on behalf of his son, Tomas. At the time, Tomas is 20, and falls under the family 2A preference category. The INS approves the visa petition in 2001, and the 2A priority date becomes current in 2002, when Tomas is 24. Under the law as it existed prior to the Child Status Protection Act, Tomas has "aged out," and moves from the family 2A category to the family 2B category, with a resulting longer wait for the priority date to become current. Under the Child Status Protection Act, however, Tomas' "age" for purposes of determining his preference category would be deemed to be his age on the date the priority date became current (23), minus the time INS took to adjudicate the I-130 petition (3 years), so that Tomas' 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, Tomas must apply for a visa, through adjustment of status or consular processing, within one year of the priority date becoming current. If, however, Ernesto's I-130 had been adjudicated in 2000, Tomas' "age" would be 22 for purposes of determining his preference category. Tomas is chronologically 24 on the date the 2A priority date becomes available, but his petition was pending for only two years, so only two years are deducted from his age at the time the priority date becomes current, so that his "age" is 22. In this case, Tomas moves from the family 2A category to the family 2B category, with a resulting longer wait for his priority date to become current. The INS and State Department have not yet issued guidance explaining exactly how the Child Status Protection Act applies to VAWA self-petitioners and their derivatives. Thus, if you represent either a self-petitioner or a derivative beneficiary who is about to turn 21 and whose priority date is current or will be current prior to the individual turning 21, you should request 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 INS 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 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 INS office directly when the self-petition has been approved. We recommend that you also follow up with the local INS office that will adjudicate the adjustment application.

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§5.8 THE CONTENTS OF THE ADJUSTMENT APPLICATION PACKET The complete adjustment packet for a VAWA self-petitioner is made up of the following documents: a. b. c. d. e. f. g. h. i. j. k. Index of the contents of the packet; Form I-485, adjustment application; Adjustment application fee of $255 ($160 for persons under 14); INS form G-325A, biographic information form (not required for persons under 14); Fingerprint fee of $50.00. Fingerprints are required for persons age 14 and older. INS will send the petitioner a notice to appear for a fingerprint appointment; Four photographs (some INS offices require only two); Either the I-360 application or a notice of approval of the I-360; Form I-693, medical examination report by INS-approved civil surgeon (including a vaccination report on INS vaccination report form); Copy of passport and I-94 (if available); Copy of birth certificate, with translation; Evidence to show that the petitioner will not be a public charge. Even though VAWA self-petitioners do not need to file an I-864 Affidavit of Support,59 they must still establish that they are not likely to become public charges under INA § 212(a)(4). In some INS districts, the INS officers may require submission of the old, non-binding Form I-134 affidavit of support, however; For derivatives, evidence of the appropriate family relationship to the principal petitioner; If the petitioner falls under a waivable ground of inadmissibility, Form I-212 or I-601, Application for Waiver of Grounds of Excludability, with supporting documents and fee ($195); If travel is contemplated before the adjustment is granted, Form I-131, Application for Advance Parole, with the applicable fee ($110); If employment authorization has not already been granted by the Vermont Service Center, Form I-765, Application for Employment Authorization, with the applicable fee ($120).

l. m.

n. o.

Derivative beneficiaries must also 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, 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 or that there was a bona-fide parentchild relationship between the father and the derivative.60

59 60

INA § 212(a)(4)(C). INA § 101(b)(1)(C) and (D).

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§ 5.9 FILING FEES The filing fee for Form I-485 is $255.00. For applicants under 14 years of age, the fee is $160.00. The filing fee for the application for employment authorization, Form I-765, is $120.00. There is also a fingerprinting fee of $50.00 for applicants who are 14 or older. The filing fee for an application for advance parole, Form I-131, is $110.00. These fees are effective as of February 19, 2002.61 Fee waivers are available for those who are unable to pay.62 For applications made to the Service, a petitioner seeking a fee waiver must file an affidavit or unsworn declaration made pursuant to 28 USC § 1746, requesting the fee waiver and stating his or her belief that he or she is entitled to or deserving of the benefit requested and the reasons for his or her inability to pay.63 Documentation that should be submitted to establish the inability to pay the filing fee includes income tax returns, W-2 forms or wage statements, proof of disability, rent receipts and other evidence of living arrangements, proof of living expenses, medical and other expenditures. For applications made to the Immigration Judge, the petitioner 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.64 Some Immigration Courts, such as the San Francisco court, have their own fee waiver request form. For applications made to the Board of Immigration Appeals, the petitioner should file a Form EOIR 26A Appeal Fee Waiver Request.65 That form asks for information concerning the applicant's income and expenses. It also requires the applicant to certify that he or she believes the appeal (or motion) is valid and that he or she is unable to pay the filing costs due to poverty.

§5.10 INTERVIEW PROCESS After the adjustment application is filed, the INS will send the applicant a notice to appear at an Application Support Center to have his or her fingerprints taken. The INS will also schedule an adjustment interview. At the time of publication of this manual, the INS is taking a year or longer from the date of filing to schedule adjustment interviews in most parts of the country. Many documents will have to be updated at that point, especially financial documents, offers of employment and

61 62

The list of forms and applicable filing fees is found at 8 CFR § 103.7(b).

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 the INS]. 63 8 CFR § 103.7(c)(1).

64 65

8 CFR § 3.24. 8 CFR § 3.8(c).

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medical exams. Before filing the adjustment application, the advocate should check with the local INS district office to see whether there are any special filing instructions. Some INS offices allow the petitioners to bring the medical report with them to the interview, to avoid expiration of the validity of a report obtained long before the interview. At the interview, the INS officer will go over the information on the application to confirm that it is accurate. The officer will usually concentrate on the petitioner's admissibility. The applicant should bring the originals of any document submitted. The examiner should not review the merits of the I-360 self-petition. The INS has issued guidance66 for cases in which a local INS 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 INS office accordingly. Equally importantly, the INS guidance emphasizes the provisions of IIRAIRA § 384, prohibiting Department of Justice employees, including the INS, from making an adverse determination of admissibility or deportability using information provided solely by the abuser. Any such information must be independently corroborated by an unrelated source before the INS may take adverse action based on it.67 Moreover, Department of Justice employees, including the INS, may not disclose to anyone other than Department of Justice personnel, for legitimate Department purposes, any information relating to a beneficiary of a VAWA self-petition.68 We recommend that, if you experience problems with a local INS office concerning revocation of approved self-petitions or inappropriate use or disclosure of information regarding a VAWA self-petitioner, you contact Gail Pendleton of the National Lawyer's Guild Immigration Law Project for assistance.

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).

67 68

66

Id. Id.

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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.69 If the victim does elect to do this, however, he or she must submit an affidavit of support from the I-130 petitioner,70 which could be awkward or even dangerous for the victim. A preferable option is to request that the INS substitute an I-360 self-petition for the I-130 Relative Visa Petition. 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,71 and, as mentioned above, self-petitioners are not required to present the I-864 affidavit of support. If you have a client who has already filed an I-485 based upon the abuser's I-130, here are some suggested steps. Once the self-petition is filed, write to the local INS district office, informing them that the client is a victim of domestic abuse and that a self-petition has been filed and asking the Service to hold the I-485 in abeyance pending the Vermont Service Center's adjudication of the self-petition. It is also recommended that you quote to the special provision found at Section 384(a)(1) of the Illegal Immigration and Immigrant Responsibility Act [IIRIRA]. This provision prohibits the INS and Immigration Courts from making an adverse finding on admissibility or deportability using information furnished solely by the person's abusive spouse or parent, unless the person has been convicted of certain crimes. The provision also prohibits the Attorney General from disclosing any information concerning self-petitioners, applicants for VAWA cancellation or suspension, or certain other relief. Under this provision, the INS should not be able to revoke the self-petitioner's I-485, even if the abuser revokes the I130 relative visa petition.72 After the Vermont Service Center approves the self-petition, you can then write the INS district office, asking that the applicant's case be reopened for consideration of the application for adjustment of status. 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 INS district office, asking that the interview be postponed pending adjudication of the self-petition.

69

Aleinikoff, Executive Associate Commissioner, Office of Programs, INS Mem. HQ 204-P, April 16, 1996, at 2-3 [reprinted at 73 Interpreter Releases 737 (May 24, 1996)]; see, Ignatius and Stickney, Immigration Law and the Family, at 4-61 (Release # 6, 6/2001). 70 INA § 212(a)(4)(C).

71 72

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 [reprinted at 73 Interpreter Releases 737 (May 24, 1996)].

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§ 5.11 IF ADJUSTMENT OF STATUS IS DENIED There is no appeal from the INS' denial of an application for adjustment of status.73 However, petitioners other than arriving aliens may renew their applications for adjustment in removal proceedings as a form of relief from removal.74 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.

73 74

8 CFR § 245.2(a)(5)(ii). Id.

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CHAPTER 6 INADMISSIBILITY GROUNDS AND WAIVERS FOR VAWA SELF-PETITIONERS

Contents 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 Communicable Diseases .................................................................................................... 6-4 Lack of Vaccination ........................................................................................................... 6-5 Physical or Mental Disorders ............................................................................................. 6-5 Drug Abusers or Addicts.................................................................................................... 6-6 Criminal Grounds ­ Overview ........................................................................................... 6-8 Some Definitions: "Conviction,""Admission," and "Sentence"......................................... 6-9 Crimes Involving Moral Turpitude .................................................................................. 6-13 Multiple Criminal Convictions......................................................................................... 6-16 Controlled Substance Violations...................................................................................... 6-16 Traffickers in Controlled Substances ............................................................................... 6-17 Prostitution and Commercialized Vice ............................................................................ 6-17 Immunity from Prosecution ............................................................................................. 6-18 Particularly Serious Violations of Religious Freedoms .................................................. 6-18 Significant Traffickers in Persons .................................................................................... 6-18 Aggravated Felons............................................................................................................ 6-19 INA § 212(h) Waivers for Criminal Conduct of Immigrants........................................... 6-19 National Security Grounds ............................................................................................... 6-21 Public Charge ................................................................................................................... 6-22 Previous Immigration Violations -- Overview................................................................. 6-25 Aliens Present without Permission or Parole ................................................................... 6-25 Failure to Attend Removal Proceedings........................................................................... 6-26 Fraud or Wilful Misrepresentation................................................................................... 6-26 Waivers for Fraud or Wilful Misrepresentation............................................................... 6-28 False Claim of U.S. Citizenship ....................................................................................... 6-28 Stowaways........................................................................................................................ 6-29 Smugglers and Encouragers of Unlawful Entry............................................................... 6-29 Final Civil Document Fraud Order .................................................................................. 6-30 Foreign Students............................................................................................................... 6-30 Ineligibility for Citizenship .............................................................................................. 6-31 Prior Removal Orders or Periods of Unlawful Presence.................................................. 6-31 Having Been Previously Removed .................................................................................. 6-31 Unlawful Presence Bars ................................................................................................... 6-33 Reentering the U.S. Without Authorization ..................................................................... 6-38 Miscellaneous Grounds .................................................................................................... 6-39 Reinstatement of Previous Removal Order and Consequent Ineligibility for Benefits ... 6-39

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§ 6.1 OVERVIEW When a VAWA self-petition has been approved, the self-petitioner moves to the second step of the immigration process, that is, actually obtaining lawful permanent resident status. 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 INS 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 at INA § 212, 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 I130 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 the client, in our case a VAWA self-petitioner, a series of questions when evaluating whether the client is inadmissible: 1. Does the inadmissibility ground really apply to my client? VAWA selfpetitioners are specifically exempted from some of the inadmissibility grounds under certain circumstances. For example, the inadmissibility ground of being present in the United States without permission or parole simply does not apply to VAWA self-petitioners who arrived in the United States before April 1, 1997. 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 INS' alleged facts correct? For example, if the INS 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? 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.

2.

3.

The ten inadmissibility ground categories are: 1. 2. 3. 4. 5. 6. 7. Health-related grounds Criminal-related grounds National security grounds Public charge Labor protection grounds Fraud or other immigration violations Documentation requirements

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8. 9. 10.

Grounds relating to military service in the U.S. Prior removals or unlawful presence in the U.S. Miscellaneous grounds

In turn, each of these categories comprises several grounds. There are exemptions from certain inadmissibility grounds for VAWA self-petitioners.

§ 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."1 The second excludes prospective immigrants who have not been vaccinated against certain diseases.2 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.3 Finally, the fourth ground excludes drug abusers or addicts.4 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.5 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.6 The prospective immigrant may appeal this finding to the INS. If this is done, a medical review board is convened, and the applicant may bring his or her own medical experts to testify.7 In this section, we will discuss each of the health-related inadmissibility grounds in more detail and mention the waivers that are available.

1 2 3 4 5

INA § 212(a)(1)(A)(i). INA § 212(a)(1)(A)(ii). INA § 212(a)(1)(A)(iii). INA § 212(a)(1)(A)(iv). The Center for Disease Control and Prevention's Technical Instructions for Medical Examination of Aliens [hereinafter "CDC Technical Instructions"] can be found at www.cdc.gov. 42 CFR § 34.2(d). 42 CFR § 34.8(a), (c).

6 7

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§ 6.3 COMMUNICABLE DISEASES AND WAIVERS 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) through one of its divisions, the Public Health Service (PHS).8 The diseases considered by the PHS to be communicable and of public health significance are: active tuberculosis, infectious leprosy, HIV infection, and five venereal diseases (chancroid, gonorrhea, granuloma inguinale, lymphogranuloma venereum, and the infectious stage of syphilis).9 There is a special waiver of the communicable disease ground for VAWA selfpetitioners.10 The applicant must qualify for classification as a VAWA self-petitioner and must demonstrate that he or she merits a favorable exercise of the INS' discretion. There is no requirement of a qualifying relative. 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.11 An additional consideration for prospective immigrants who are HIV-positive is that a determination of inadmissibility for HIV infection can also result in a finding of inadmissibility under the INA § 212(a)(4) public charge ground.12 Some of the factors the INS will consider in determining whether an HIV-positive prospective immigrant is likely to become a public charge are: (1) whether the applicant has an offer of employment in the United States; (2) whether the applicant is able to undertake the offered employment, as evidenced by a physician's assessment of the alien's medical condition; (3) the applicant's own financial resources; (4) the financial resources of the applicant's family members, if he or she depends on family for support; (5) whether the applicant has, or is able to obtain, medical insurance covering all or part of the HIV-related expenses; and (6) whether the applicant is able to meet basic living expenses, in addition to the medical costs associated with HIV.13 In the case of an HIV-positive VAWA selfpetitioner, these factors must be considered in light of the special VAWA public charge provisions. Under those provisions, the INS cannot consider public benefits received because of the status of self-petitioner in determining whether the self-petitioner is a public charge.14 The public charge ground of inadmissibility and its application to VAWA self-petitioners are discussed in more detail in Section V below.

8 9 10 11 12

INA § 212(a)(1)(A)(i). 42 CFR § 34.2(b). INA § 212(g)(1)(C). INA § 212(g)(1)(A), (B). T. Alexander Aleinikoff, Exec. Ass. Commr., INS, Memo HQ 212.3-P, regarding "Immigrant Waivers for Aliens Found Excludable under Section 212(a)(1)(A)(i) of the Immigration and Nationality Act Due to HIV Infection," Sept. 6, 1995, at 3 (reprinted at 72 Interpreter Releases 1347 (Oct. 2, 1995). Id., at 6. INA § 212(p).

13 14

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Acceptance of publicly-funded medical treatment for HIV infection does not automatically render the applicant inadmissible under the public charge provision. The applicant must submit evidence showing that such treatment is available and that the appropriate government agency has consented to the treatment.15 An excellent resource on HIV infection and immigration is the National Immigration Project's HIV manual, available on their website at www.nationalimmigrationproject.org.

§ 6.4 INADMISSIBILITY BECAUSE OF LACK OF VACCINATION Intending immigrants must present evidence that they received vaccinations against mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations recommended by the Advisory Commission for Immunization Practices.16 There are three waivers available for prospective immigrants who are inadmissible because they cannot present proof of vaccinations. 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 applicant's religious or moral beliefs.17 These waivers will be covered in more detail in the next chapter.

§ 6.5 PHYSICAL OR MENTAL DISORDERS Persons are inadmissible under the physical or mental disorder ground if they have or had a condition that has an associated behavior that poses a threat to the property, safety, or welfare of themselves or others. For this purpose, 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."18 "Harmful behavior" is defined as "a dangerous action or series of actions by the alien that has resulted in injury (psychological or physical) to the alien or another person, or that has threatened the health or safety of the alien or another person, or that has resulted in property damage."19 The CDC Technical Instructions list a series of disorders that may have harmful behavior associated with them. This list is reproduced as Table 1, attached at the end of the chapter. The Technical Instructions also list mental disorders for which harmful behavior is an element of the diagnosis. Diagnosing the applicant for any of these conditions automatically establishes his or

15 16 17 18 19

Id. INA § 212(a)(1)(A)(ii). INA § 212(g)(1). 42 CFR §§ 34.2(d)(2)(1), (2), 34.2(n), 34.2(p). CDC Technical Instructions, III(B)(2)(c), "Physical and Mental Disorders with Associated Harmful Behavior."

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her inadmissibility, unless the condition is in remission. Table 2, attached at the end of the chapter, lists these conditions and their associated harmful behaviors. Alcohol dependence and abuse are included as disorders for which harmful behavior is a necessary part of the diagnosis. 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.20 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 pattern of the behavioral element has manifested in the previous two years.21 However, if the behavior is described under the categories of antisocial personality disorder, impulse control disorders, paraphilias, or conduct disorders (i.e., the first four categories listed in Table 2), no remission will be found unless the behavior has been absent for five years.22

§ 6.6 DRUG ABUSERS OR ADDICTS Persons who are determined to be "drug abusers" or "addicts" are inadmissible.23 The PHS regulations contain very broad definitions of the terms "drug abuse" and "drug addiction." The regulations define drug abuse as the "non-medical use of a substance listed in section 102 of the Controlled Substances Act...which has not necessarily resulted in physical or psychological dependence."24 "Drug addiction" is defined as a non-medical use of a controlled substance "which has resulted in physical or psychological dependence."25 Section 102 of the Controlled Substances Act lists hundreds of controlled drugs arranged into five "schedules," which determine the degree of a criminal offense involving a particular drug.26 For example, marijuana is included on the list in Schedule I, the most severely penalized category. Under the CDC Technical Instructions, applicants are not inadmissible for non-medical use of controlled substances if the use amounts to no more than experimentation with the substance.27 A single use of marijuana or of other psychoactive substances is put forward as an example of experimentation.28 The instructions require that when a clinical question is raised as to whether use was experimental or part of a pattern of abuse, examining doctors should consult with other physicians who have experience in medically evaluating substance abusers.29

20 21 22 23 24 25 26 27

INA § 212(a)(1)(A)(iii)(II). CDC Technical Instructions, Notes to Table 5. Id. INA § 212(a)(1)(A)(iv). 42 CFR § 34.2(g). 42 CFR § 34.2(h). 21 USC § 802 [Section 102, Controlled Substances Act]. Department of State, Cable 91-State-416180 (Dec. 24, 1991), reprinted in 61 Interpreter Releases 6 (Jan. 6, 1992). Id. CDC Technical Instructions, Section III(C)(2)(c).

28 29

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The CDC Technical Instructions also include a "remission" rule. They define "remission" as "no non-medical use of a [listed drug] for 3 or more years, or no non-medical use of any other psychoactive substance for 2 or more years."30 Therefore, people who stopped using drugs more than three years before their medical examination should not be inadmissible. The Technical Instructions' definition of the term "abuse" is the same as that of "use."31 They provide: "If it is determined that the applicant is using or has used a psychoactive substance, the physician must...determine whether the applicant is currently using or has used the psychoactive substance in the last 3 years (for [controlled] substances...)."32 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 section 102 of the Controlled Substances Act, and this definition specifically excludes alcoholic beverages and tobacco from its coverage.33 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.34 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.35

30 31 32 33 34 35

CDC Technical Instructions, Section III(C)(2)(b). CDC Technical Instructions, Section III(C)(2)(a). CDC Technical Instructions, Section III(C)(3). 21 USC § 802 [Section 102, Controlled Substances Act]. CDC Technical Instructions, Notes to Table 5. INA § 212(g).

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§ 6.7 CRIMINAL GROUNDS -- OVERVIEW Aliens 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.

We discuss each of those grounds below. If there is any chance that your client has been arrested or convicted for, or has admitted committing, a crime, you must find out all the facts and analyze the case. 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, many people are embarrassed about criminal problems and may understate what really happened. You must obtain the facts yourself. To properly analyze the case, we need to see the client' official criminal records. Tell the client that INS will have the person's complete criminal record. INS will obtain this record by sending the person's fingerprints to the FBI. The advocate needs to have at least as much information as the INS does, in order to prepare a defense. The following records are the most important: 1. Get a copy of the FBI report for yourself. 2. Get a complete copy of the 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 fee 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 INS or FBI record may be wrong or may not include enough detail. In addition, if you or an attorney are going to try to clear up the criminal record, you will need a copy of the court papers.

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3. Obtain a copy of the state or federal criminal statute under which your client was charged or convicted. 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? In other words, does the offense of which the person was convicted or which he or she admitted meet the elements of a criminal inadmissibility ground? 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 TIP: 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 Division, SCU MOD D2, 1000 Custer Hollow Road, Clarksburg, WV 26301. The following documents are required: a cover letter requesting the FBI record and giving the individual's name and date and place of birth, a set of rolled-ink fingerprint impressions placed upon fingerprint cards or forms commonly used by law enforcement agencies, satisfactory proof of identity, such as a copy of the individual's driver's license or passport, 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. 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.

§ 6.8 SOME DEFINITIONS: "CONVICTION," "ADMISSION," AND "SENTENCE" The criminal inadmissibility grounds use several terms which have special definitions. These include "conviction," "admission," and "sentence." In this subsection, we will go over the special definitions of those terms. 1. What is a conviction? Some of the criminal grounds of inadmissibility require that to be inadmissible, the alien must have been convicted. The term "conviction" is defined in the statute. A person is considered to have been convicted if a court has adjudicated him or her guilty or has entered a

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formal judgment of guilt against him or her.36 In addition, even if the court has withheld such an adjudication, a person is considered to have 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.37 Not all dispositions of criminal cases meet the immigration definition of conviction. For example, forms of judicial disposition of criminal cases that avoid the imposition of punishment or that do not involve a finding or plea of guilt should not be found to constitute a conviction.38 If a client is currently in or has been in criminal proceedings, the advocate should obtain a copy of (1) the criminal court records and (2) the state or federal criminal statute under which the court's disposition was entered. The advocate should examine those documents carefully to be sure that the criminal court disposition is actually a conviction. A conviction is not considered final for immigration purposes until the defendant has exhausted his appeal rights.39 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 being final until and unless the collateral attack is decided in the applicant's favor.40 If the collateral attack is decided in the applicant's favor, 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.41 To cause inadmissibility, the foreign conviction must be for conduct that would also be considered criminal in the United States.42 The general rule is that findings of delinquency by a juvenile court are not convictions for immigration purposes.43 However, if the minor is convicted by a court as if he or she were an adult, the conviction will bring immigration consequences.

36 37 38

INA § 101(a)(48). Id. 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. Pino v. Landon, 399 U.S. 901 (1955); Matter of Thomas, 21 I & N Dec. 20, 21 n. (BIA 1995). Matter of Polanco, 20 I & N Dec. 894 (BIA 1994). Matter of de la Nues, 18 I & N Dec. 140 (BIA 1981). Id.; Lennon v. INS, 527 F.2d 187 (2d Cir. 1975). Matter of Devison, 22 I & N Dec. 1362 (BIA 2000); Matter of Ramirez-Reveiro, 18 I & N Dec. 135 (BIA 1981).

39 40 41 42 43

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2. Can a conviction be removed for immigration purposes? Because of the severe immigration consequences a criminal conviction can 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 INS 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.44 This rule was changed, however, with the Board of Immigration Appeal's decision in Matter of Roldan.45 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. 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 regard to whether there were flaws in the underlying criminal procedure. The Board clarified this point after Matter of Roldan, when it held that a conviction that a trial or appeals court vacates because it is legally defective is not a conviction for immigration purposes.46 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, or the discovery of new evidence, can remove the conviction for immigration purposes. Moreover, the United States Court of Appeals for the Ninth Circuit reversed the BIA's decision in Roldan.47 The Ninth Circuit held that the new definition of "conviction" did not repeal the Federal First Offender Act (FFOA) or the rule that a person cannot be deported based on an offense that could have been tried under the FFOA, but is instead prosecuted under state law, where the findings are expunged pursuant to a state rehabilitative statute. Lujan-Almendariz dealt specifically with expungements of first-time drug possession cases under the Federal First Offender Act or state law. The BIA's decision in Roldan is broader, however, and appears to apply to the expungement, vacating, or setting aside under a state rehabilitative statute of a conviction for any crime. We do not yet know whether reviewing

44

Matter of Roldan, 22 I & N Dec. 512 (BIA 1999); Matter of Ozkok, 19 I & N Dec. 546 (BIA 1988), modified by Matter of Roldan. 22 I & N Dec. 512 (BIA 1999). Matter of Rodriguez-Ruiz, 22 I & N Dec. 1378 (BIA 2000). Lujan-Almendariz v. INS, 222 F.3d 728 (9th Cir. 2000).

45 46 47

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courts will reverse the BIA's holding in Roldan relating to convictions for crimes other than first-offender drug possession. In the meantime, immigrants in the Ninth Circuit may be able to argue by analogy that, despite the new definition of "conviction," the expungement, vacating, or setting aside of a conviction under a state rehabilitative statute removes the conviction for immigration purposes. On the other hand, 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,48 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, 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 Board agreed and granted his motion to terminate. The Board did not appear to require any showing of a substantive basis for the reduction of sentence. 3. What is an admission? Two of the criminal inadmissibility grounds apply to aliens 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 INS 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.49 Guilty pleas are considered admissions for immigration purposes.50 However, the admission cannot have a greater effect than the criminal proceeding.51 Thus, if after the guilty plea, the accused is not convicted, the INS cannot use the plea as an admission for purposes of inadmissibility.

48 49

23 I & N Dec. 173 (BIA 2001). Matter of J, 21 I & N Dec. 285, 287 (BIA 1957); Matter of K, 7 I & N Dec. 594 (BIA 1957); Matter of G-M-, 7 I & N Dec. 40 (BIA 1955); Matter of Winter, 12 I & N Dec. 638 (BIA 1968). Matter of Seda, 17 I & N Dec. 550, 554 (BIA 1980). Id.; Matter of Winter, 12 I & N Dec. 638 (BIA 1967, 1968).

50 51

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4. 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. The INA contains a definition of "term of imprisonment" for this purpose. Under this definition, 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.52 This means, for example, that if a person was 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 a crime involving moral turpitude (CIMT) or if they admit having committed a CIMT. 1. What Is a Crime involving Moral Turpitude? No clearly delineated definition exists within the law for "crime involving moral turpitude." The BIA has held that the term refers to conduct that is "inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general."53 A CIMT has also been described as an act that is malum in se, that is, bad in itself, as opposed to something that is malum prohibita, that is, an act that is prohibited but not necessarily bad in itself.54 An example of an act that is malum in se might be a theft, while something that is malum prohibita might be using a radio transmitter in an area where the law prohibits this because the transmitters interfere with airwave frequencies. In evaluating whether a particular crime involves moral turpitude, the INS does not look at the underlying conduct of the applicant, but at the elements of the criminal statute under which the person was convicted.55 For example, if the accused actually struck another person and stole the victim's purse, but pled guilty to and was convicted of simple assault, the accused probably does not have conviction of a CIMT, even though his or her conduct might involve moral turpitude. Where the criminal statute in question is broad or multi-sectional, the courts will look at the record of conviction -- i.e., the "charge (indictment), plea, verdict, and sentence" -- to determine whether the crime for which the person was convicted involved moral turpitude.56

52 53 54 55 56

INA § 101(a)(48)(B). Matter of Franklin, 20 I & N Dec. 867, 868 (BIA 1994). Id. at 868. Matter of Short, 20 I & N Dec. 136 (BIA 1989). Matter of Sweetser, 22 I & N Dec. 709 (BIA 1999); Matter of Short, 20 I & N Dec. 136 (BIA 1989).

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Immigration law treatises provide lists of offenses that have been determined to be of moral turpitude.57 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. Although you must always analyze the specific statute involved in your client's case, here are some general rules of thumb for determining whether a crime is of moral turpitude. Crimes that have fraud as an element are considered to involve moral turpitude.58 Crimes of violence involving intent, such as domestic abuse,59 or rape,60 also involve moral turpitude. On the other hand, involuntary manslaughter is not a crime of moral turpitude.61 While simple assault does not involve moral turpitude,62 an assault with intent to commit a felony involving moral turpitude is a crime of moral turpitude.63 Some sexual crimes, such as prostitution, are considered crimes of moral turpitude,64 as are some crimes against property, such as arson,65 theft,66 and robbery.67 Driving under the influence (DUI) and driving while intoxicated (DWI) crimes have special rules that require some additional explanation. In general, a conviction of simple DUI or DWI does not ordinarily involve moral turpitude.68 Aggravated or felony DUIs or DWIs, however, may be crimes involving moral turpitude. The Board has held that a conviction under Arizona law of aggravated DUI [commission of a DUI while knowingly driving under a suspended, canceled, revoked, or restricted license], with a sentence of less than one year, is a CIMT.69 The Board characterized this offense as serious misconduct involving a "baseness so contrary to accepted moral standards that is rises to the level of a crime involving moral turpitude." In contrast, however, an aggravated DUI conviction, where the aggravation is based only upon an aggregation of simple DUI convictions, was not a CIMT.70

57

Three excellent treatises of this type are Brady and Tooby, California Criminal Law and Immigration (Immigrant Legal Resource Center); Kesselbrenner and Rosenberg, Immigration Law and Crimes, at Appendix E (West Group 2000); and Kurzban, Immigration Law Sourcebook, at pages 40-51 (AILA 2000-2001). Matter of Adetiba, 20 I & N Dec. 506 (BIA 1992); Jordan v. DeGeorge, 341 U.S. 223 (1951). Matter of Tran, 21 I & N Dec. 291 (BIA 1996). Matter of Beato, 10 I & N Dec. 740 (BIA 1964); Matter of Dingena, 11 I & N Dec. 723 (BIA 1966). Matter of Lopez, 13 I & N Dec. 725 (BIA 1971). Matter of Short, 20 I & N Dec. 136 (BIA 1989), Matter of Fualaau, 21 I & N Dec. 475 (BIA 1996).. Matter of Logan, 17 I & N Dec. 367 (BIA 1980); Matter of Medina, 15 I & N Dec. 611 (BIA 1976). Matter of Lambert, 11 I & N Dec. 340 (BIA 1965). Matter of S, 3 I & N Dec. 617 (BIA 1949). Matter of de la Nues, 18 I & N Dec. 140 (BIA 1981). Matter of Frentescu, 18 I & N Dec. 244 (BIA 1982); Matter of Alarcon, 20 I & N Dec. 557 (BIA 1992). Matter of Lopez-Meza, 22 I & N Dec. 1188 (BIA 1999). Id. Matter of Torres-Varela, 23 I & N Dec. 78 (BIA 2001).

58 59 60 61 62 63 64 65 66 67 68 69 70

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2.

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. Under the first exemption, a person is not inadmissible if the crime was committed while the alien 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.71 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 this provision does not apply. In such a case, the person would not have been convicted of any crime and thus would not be 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 parts. 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.72 Example: Joe and his brother Sam stole $100 from a store in California. Joe was arrested for the crime and convicted by a court. 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.

71 72

INA § 212(a)(2)(A)(ii)(I). INA § 212(a)(2)(A)(ii)(II).

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§ 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 inadmissable.73 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.74 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.75 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,76 while the other is for persons believed to be drug traffickers.77 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)."78 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 drugs79 and convictions for facilitating the unlawful sale of cocaine.80 The INA does not provide any waiver for controlled substance violations. A conviction under the Federal First Offender's Act,81 for first-time offenses of simple possession of a controlled substance, however, may allow a dismissal of the conviction for a first offense of simple possession of a controlled substance. Such a dismissal erases the conviction for immigration purposes, as well.82

73 74 75 76 77 78 79 80 81 82

INA § 212(a)(2)(B). Id. Matter of Aldebesheh, 22 I & N Dec. 983 (BIA 1999). INA § 212(a)(2)(A)(i)(II). INA § 212(a)(2)(C). INA § 212(a)(2)(A)(i)(II). Matter of Esqueda, 20 I & N Dec. 850 (BIA 1994); Matter of Hernandez-Ponce, 19 I & N Dec. 613 (BIA 1988). Matter of Del Risco, 20 I & N Dec. 109 (BIA 1989). 18 USC § 3607. Matter of Werk, 16 I & N Dec. 234, 235 (BIA 1977). In Roldan, n. 44, supra, the BIA left open the question of the effect, for immigration purposes, of the new INA definition of "conviction" upon a dismissal and expungement under the FFOA.

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§ 6.12 TRAFFICKERS IN CONTROLLED SUBSTANCES No conviction -- or even valid admission -- is necessary to exclude people believed to be drug traffickers.83 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.84 It also applies to persons who knowingly assist in the trafficking.85 "Illicit trafficking" refers to unlawful trading or dealing in a controlled substance.86 An illicit trafficker includes not only persons who smuggle or attempt to smuggle drugs into the U.S., but also to people who serve as conduits for the drug trade within the U.S.87 A person can be an illicit trafficker even if he or she has committed only one transgression.88 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.89 § 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 legal90 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. 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.

2.

83 84 85 86 87 88 89 90

INA § 212(a)(2)(C). Id. Id. Matter of Davis, 20 I & N Dec. 536, 541 (BIA 1992). Matter of R-H-, 7 I & N Dec. 675 (BIA 1958). Matter of Rico, 16 I & N Dec. 181 (BIA 1977). INA § 212(a)(2)(C)(ii). 22 CFR § 40.24(c).

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3.

Persons who are coming to the United States to engage in unlawful commercialized vice, whether or not it is related to prostitution.91 § 6.14 IMMUNITY FROM PROSECUTION

This inadmissibility ground bars admission into the U.S. of "any alien...for whom immunity from criminal jurisdiction was exercised with respect to [a serious criminal] offense."92 This ground was intended to exclude former foreign diplomats who have escaped punishment for serious traffic offenses. The term "serious crimes," for purposes of this inadmissibility ground, includes any felony, crime of violence, or reckless or drunk driving that injures another person.93 § 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 spouse and children, are inadmissible.94 The term "particularly severe violations of religious freedom" is defined to include 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, raising one's children in the religious teachings and practices of one's choice, or 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.95 § 6.16 SIGNIFICANT TRAFFICKERS IN PERSONS Under Section 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 alien 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.96 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.97 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

91 92 93 94 95 96 97

INA § 212(a)(2)(D). INA § 212(a)(2)(E). INA § 101(h). INA § 212(a)(2)(G). 22 USC § 6402 [§ 3 of the International Religious Freedom Act of 1998]. INA § 212(a)(2)(H). INA § 212(a)(2)(H)(ii &iii).

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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.98

§ 6.17 AGGRAVATED FELONIES There is no inadmissibility ground aimed specifically at aggravated felons,99 but the INA references them under many other provisions that entitle aggravated felons to fewer procedural protections and benefits than other inadmissible aliens. For example, persons removed from the United States based on a conviction for an aggravated felony are permanently inadmissible,100 and LPRs who have been convicted of an aggravated felony are ineligible for the INA § 212(h) waivers of the criminal inadmissibility grounds.101

§ 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 the next chapter. 1. Waiver for VAWA self-petitioners The statute provides a special waiver for VAWA self-petitions.102 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 the selfpetitioner show that refusal to grant adjustment or a visa would cause extreme hardship to a

98 99

28 CFR § 1100.25, 66 Fed. Reg. 38513, 38519 (July 24, 2001) (interim rule with request for comments). The term "aggravated felony" is defined at INA § 101(a)(42). There are several excellent resources on aggravated felonies, including Dan Kesselbrenner and Lory D. Rosenberg, Immigration Law and Crimes (West Group), and the National Immigration Project of the National Lawyers Guild, Immigration Law and Defense, especially Chapter 6 (West Group). The Catholic Legal Immigration Network, Inc.'s training manual, Immigration Law and the Impact of Crimes, especially Chapters 1 and 3, is also a useful resource. INA § 212(a)(9)(A). INA § 212(h). INA § 212(h)(1)(C).

100 101 102

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qualifying relative. The waiver is still adjudicated in the discretion of the Attorney General, however, meaning that the favorable factors in the applicant's case must outweigh the unfavorable factors.103 2. 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.104 The second general subsection 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.105 It also allows the waiver of the prostitution or procuring of prostitutes ground, regardless of the date of the activity.106 Before the INS can grant either of these waivers, it must determine that the admission of the alien would not be contrary to the national welfare, safety, or security of the United States, and that the alien has been rehabilitated.107 3. Restrictions on both the general and VAWA Section 212(h) waivers There are several restrictions that apply to both the VAWA and general waivers under Section 212(h). First, 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 U.S. for seven years prior to the initiation of removal proceedings.108 Second, persons who have been convicted of or who admit committing criminal acts involving murder or torture are specifically barred from obtaining a Section 212(h) waiver.109

103 104 105 106 107 108 109

Matter of Mendez, 21 I & N Dec. (BIA 1996). INA § 212(h)(1)(B). INA § 212(h)(1)(A). Id. Id. INA § 212(h) Id.

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§ 6.19 NATIONAL SECURITY GROUNDS 1. OVERVIEW Persons inadmissible under 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;"110 Terrorists and Palestine Liberation Organization (PLO) officials;111 Persons whose admission into the U.S. would bring about serious foreign policy consequences;112 Members of the Communist or any totalitarian party113 (this inadmissibility ground applies only to immigrants); Participants in Nazi persecution or genocide.114

2. 3.

4.

5.

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, here. 2. MEMBERSHIP IN THE COMMUNIST OR A TOTALITARIAN PARTY The INA bars the admission of immigrants who are or have been members of or affiliated with the Communist party or any totalitarian party.115 This inadmissibility ground does not apply to nonimmigrants. Membership must be a "meaningful association" to be the basis of inadmissibility. The term "totalitarian party" means an organization that advocates the establishment in the U.S. of a one-party system and that forcibly suppresses opposition.116 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

110 111 112 113 114 115 116

INA § 212(a)(3)(A). INA § 212(a)(3)(B). INA § 212(a)(3)(C). INA § 212(a)(3)(D). INA § 212(a)(3)(E). INA § 212(a)(3)(D)(i). INA § 101(a)(47).

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rations, or other essentials of living.117 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 which controlled the government).118 Finally, the Attorney General may waive the inadmissibility ground for immigrants who are the spouse, parent, son, daughter, brother, or sister 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 United States security.119 § 6.20 PUBLIC CHARGE 1. PUBLIC CHARGE STANDARD The public charge inadmissibility 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.120 There are important special considerations for VAWA self-petitioners under this inadmissibility ground. First, VAWA self-petitioners are exempted from the requirement of submitting an affidavit of support.121 Second, while receipt of public benefits may raise the issue of public charge, there is an important exception for VAWA self-petitioners. Under that provision, the INS cannot consider for public charge purposes any benefits a self-petitioner received because of his or her status as an abused immigrant.122 Despite these special provisions, VAWA self-petitioners must still present some evidence that they will not become a public charge. One way to do this is to show that the self-petitioner has been offered permanent employment in the United States. Letters submitted to prove prearranged employment should be notarized and written on the employer's letterhead stationery. The letters should include the following:

· · · ·

117 118 119 120 121 122

A definite offer of employment; A description of the job and the skills required; The rate of compensation; The type and duration of the employment;

INA § 212(a)(3)(D)(ii). INA § 212(a)(3)(D)(iii). INA § 212(a)(3)(D)(iv). INA § 212(a)(4)(A). INA § 212(a)(4)(C)(i). INA § 212(p).

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immigrant status. If the employer does not have letterhead stationery, he or she should submit a letter in the form of a contract or an affidavit attesting the offer. If the offer is being made by an individual rather than a business, the employer must provide evidence of financial means to carry out the offer. An approved VAWA self-petitioner who does not have a job offer or who is not currently capable of being employed should present evidence of the likelihood that he or she will not be a public charge in the future. For example, the self-petitioner might present evidence of his or her education, training, and work experience in the past, to show that he or she is qualified to work and capable of working in the future. Evidence of counseling the self-petitioner is receiving to overcome the effects of domestic abuse, or education or training the self-petitioner is currently pursuing, can also show that the self-petitioner is working towards and likely to achieve selfsufficiency. It may be that the self-petitioner cannot work because he or she has young children who were affected by the abuse. In that case, the self-petitioner should submit evidence to show efforts he or she is making to alleviate the effects of the abuse on the children, so that the selfpetitioner will eventually be able to work and be self-sufficient. VAWA self-petitioners may also consider delaying adjustment of status until they can demonstrate self-sufficiency. The INS applies a "totality of the circumstances" test to determine whether a person is likely to become a public charge.123 Under this test, the INS or consular officer considers such factors as the applicant's age, health, family status, vocation, assets, resources, financial status, education and skills.124 The applicant may also submit information concerning personal funds or property at his or her disposal in the United States to show that he or she will not become a public charge. The mere possibility that the alien may become a public charge is not sufficient to find him or her inadmissible. Some specific circumstance -- such as mental or physical disability, advanced age, or some other fact reasonably tending to show that the burden of supporting the alien is likely to be cast on the public -- must be present.125 A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially if he or she has friends or relatives in the U.S. who have indicated their ability and willingness to provide help in case of emergency.126

123

Pearson, Exec. Commr. Field Operations, Memorandum, Subject: Public Charge: INA Section 212(a) and 237(a)(5) (May 20, 1999) (effective May 21, 1999) 64 Fed. Reg. 28686 (March 26, 1999), reprinted at 76 Interpreter Releases 873-877 (May 28, 1999). INA § 212(a)(4)(B). Matter of Martinez-Lopez, 10 I & N Dec. 409, 421-22 (AC Jan. 6, 1964); Pearson memo, supra note 123, at 64 Fed. Reg. 28690. Id.

124 125

126

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The INS has defined the term "public charge" as "likely to become...primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense."127 "Cash assistance for income maintenance" includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program (known as CalWORKS in California), and state or local cash assistance programs for income maintenance, often called "General Assistance."128 In addition, public assistance, including Medicaid, that is used for supporting aliens who reside in an institution for long-term care will also be considered as part of the public charge analysis.129 Past or current receipt of these forms of public cash assistance does not lead to an automatic determination that the person is inadmissible as a public charge. Instead, receipt of these benefits should be taken into account under the totality of the circumstances test.130 There are certain types of public benefits that will not be considered in determining whether an individual may become a public charge. Among these are any benefits that are not considered "cash assistance for income maintenance." These include the following: Medicaid, Children's Health Insurance Program (CHIP), food stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), immunizations, prenatal care, testing and treatment of communicable diseases, emergency medical assistance, emergency disaster relief, nutrition programs, housing assistance, energy assistance, child care services, foster care and adoption assistance, transportation vouchers, educational assistance, job training programs, non-cash benefits funded under the TANF program, and in-kind, community-based benefits, such as soup kitchens, crisis counseling, and short-term shelter.131 Although some of these programs may provide cash benefits, their purpose is not for income maintenance but rather to avoid the need for ongoing cash assistance for income maintenance. Cash payments that have been earned, such as Title II Social Security disability and retirement benefits, government pensions, and veteran's benefits, do not support a finding of public charge. Generally, receipt of even cash benefits by members of the applicant's family is not attributed to the applicant for purposes of a public charge determination. However, if the family relies on the public benefits as its sole means of support, the applicant may be considered to have received public cash assistance.132 2. BONDS Aliens seeking immigrant status who are inadmissible on economic grounds may be admitted to the U.S. at the Attorney General's discretion by posting a "public charge bond" or paying a cash deposit of at least $1,000.133

127 128 129 130 131 132 133

Pearson memo, supra note 123, at 64 Fed. Reg.28689. Id. Id. Id. Pearson memo, supra note 123, at 64 Fed. Reg. 28692-28693. Id., at 64 Fed. Reg. 28692. INA § 213.

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§ 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 aliens:

· Aliens present in the United States without being lawfully admitted or paroled; · Persons who fail to attend removal proceedings; · Aliens who engage in fraud or misrepresentation; · Aliens who falsely claim United States citizenship; · Stowaways; · Smugglers; · Aliens who have been found to have committed civil document fraud under INA § 274C;

and

· Foreign students who study at public institutions.

§ 6.22 ALIENS PRESENT WITHOUT PERMISSION OR PAROLE This ground of inadmissibility applies to aliens 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.134 This ground took effect on April 1, 1997.135 The ground does not apply to aliens who leave the U.S. for consular processing, as they will not then be present in the U.S. There are two exceptions to this rule for VAWA self-petitioners. Which of the two exceptions applies depends on when the self-petitioner entered the United States. If the selfpetitioner entered before April 1, 1997, he or she need show only status as a VAWA selfpetitioner.1136 If the entry was on or after April 1, 1997, however, the VAWA self-petitioner must also show that there was a substantial connection between the entry without inspection and the abuse he or she suffered.137 Not all self-petitioners who entered on or after April 1, 1997, will be able to show the required connection between the abuse and the unlawful entry. For example, a self-petitioner may have entered the United States without inspection and met his or her spouse some years later. In this situation, it would not seem possible to show the required connection, and the self134 135 136

INA § 212(a)(6)(A). Section 309(a), Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [hereinafter "IRAIRA"]. IIRAIRA § 301(c)(2). "(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 demonstrates that the alien first arrived in the United States before the title III-A effective date (described in section 309(a) of this division)." IIRAIRA § 309(a) describes the "title III-A effective date" as "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]." INA § 212(a)(6)(A)(ii).

137

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petitioner could theoretically be inadmissible. This issue has not yet been resolved, but advocates are hopeful that the INS will not find persons in this situation inadmissible. A finding of inadmissibility in this type of situation would render meaningless the INA § 245(a) exception of VAWA self-petitioners from the adjustment requirement of having been inspected and admitted or paroled. § 6.23 FAILURE TO ATTEND REMOVAL PROCEEDINGS Another bar to admissibility applies to persons who without reasonable cause fail to attend their removal proceedings.138 They are inadmissible for a period of five years following their subsequent departure or removal from the United States. This ground applies only to aliens who failed to attend removal proceedings -- it does not apply to aliens who failed to attend deportation or exclusion proceedings. In other words, the ground applies only to aliens 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, this ground does not apply unless the person departed from the United States after failing to attend the removal hearing.139 It should also be noted that persons who fail to attend removal proceedings after receiving notice may be ordered removed in absentia.140 Moreover, in situations in which an alien: (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) ordered deported in absentia, the person is ineligible for ten years for cancellation of removal, voluntary departure, adjustment of status, change of status, and registry.141 § 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 U.S., or other benefit under the INA.142 "Other documentation" refers to documents required at the time of the alien's admission to the U.S., such as reentry permits, border crossing cards, U.S. Coast Guard identity cards, or U.S. passports.143 "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.144

138 139 140

INA § 212(a)(6)(B). Id. 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. INA § 240(b)(7). INA § 240(a)(6)(C). 9 FAM NN 7.1 and 7.2. to 22 CFR § 40.63. Id.

141 142 143 144

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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.145 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 the line of inquiry might have resulted in a proper determination that he or she not be admitted.146 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.147 Under this ground, only misrepresentations to U.S. officials (generally a consular officer or an INS officer) are the basis of inadmissibility.148 Therefore, buying documents from a private individual does not make an alien inadmissible under the ground of procuring a document by fraud or misrepresentation. Nor does using false documents to procure an entry into the U.S. make an alien inadmissible, unless they are presented to a U.S. official.149 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 either conviction or admission of a crime of moral turpitude150 or for a final civil order of document fraud.151 A timely retraction of a misrepresentation may sometimes prevent it from being considered a basis for inadmissibility.152 In general, 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 INS examiner. First, she told the officer that she had no other relatives living 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 "wilful misrepresentation of material fact" ground? The first lie is not material. The fact that Estella has other relatives in the United States would not have made any difference in the outcome of her case. While it was a lie, it was

145 146

Matter of Tijam, 22 I & N Dec. 408 (BIA 1998). 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;. Matter of Tijam, supra, n. 145. Matter of Y-G-, 20 I & N Dec. 794 (BIA 1994); 9 FAM NN 4.3 & 7.1 to 22 CFR § 40.63. Matter of D-L- & A-M-, 20 I & N Dec. 409 (BIA 1991); Matter of Shirdel, 19 I & N Dec. 33 (BIA 1984). INA § 212(a)(2)(A)(i)(I). INA § 212(a)(6)(F). 9 FAM 40.63, N.4.6.

147 148 149 150 151 152

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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, added in the Battered Immigrant Women Protection Act of 2000, 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.153 The term "qualified alien" includes LPRs, asylees, refugees, persons paroled into the country for at least one year, aliens granted withholding of deportation or removal, aliens granted conditional entry under INA § 203(a)(7) as it existed prior to April 1, 1980, and Cuban and Haitian entrants.154 The term also includes abused aliens 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.155 We will discuss the terms "extreme hardship" and the other requirements for this waiver in more detail in the next chapter. 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 alien were denied admission.156 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 alien who falsely represents, on or after September 30, 1996,157 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.158 This could include false claims of citizenship to an INS agent for purposes of gaining admission to the United States, as well as false claims of citizenship to a state employee for purposes of obtaining a driver's license or public benefit.

153 154 155 156 157 158

INA § 212(i). 8 USC § 1641(b). 8 USC § 1641(c). INA § 212(i). IIRAIRA § 344(a). INA § 212(a)(6)(C)(ii).

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You may have a client who has checked the box marked "I am a citizen or national of the United States" on Form I-9, Employment Eligibility Verification Form. This should not constitute a false claim of citizenship for two reasons. First, checking "I am a citizen or national" may not constitute a specific claim to citizenship. Second, the advocate can argue that a statement made to an employer in order to obtain employment is not done for any purpose under the INA or state or federal law. There is a narrow waiver for certain misrepresentations 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 were U.S. citizens.159 The law is retroactive to the date of IIRIRA's enactment, September 30, 1996.160 § 6.27 STOWAWAYS Stowaways are inadmissible. There is no specific waiver available for this ground of inadmissibility.161 § 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 alien to enter the United States illegally.162 There is no requirement that the smuggling have been for gain. Individuals who qualified for Family Unity 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.163 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 alien they encouraged or assisted to enter illegally was, at the time of the smuggling, their "spouse, parent, son or daughter (and no other individual)." The Attorney General is authorized to grant these waivers for humanitarian purposes, to assure family unity, and when it is in the public interest.164

159 160 161 162 163 164

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. INA § 212(a)(6)(D). INA § 212(a)(6)(E). INA § 212(a)(6)(E)(ii). INA § 212(d)(11).

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§ 6.29 FINAL CIVIL DOCUMENT FRAUD ORDER An alien 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.165 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) only needs to determine by 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.166 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) aliens seeking admission or adjustment based on immediate relative or family-preference petitions who have not previously been fined under section 274C and whose offense was committed solely to assist, aid, or support the alien's spouse or child and not another individual.167 § 6.30 FOREIGN STUDENTS The 1996 law created a new ground of inadmissibility for foreign students who attend public schools in violation of the restrictions of INA § 214(l).168 These persons are inadmissible for a period of five years from the date of the violation.169 This provision is not retroactive, and applies only to students who obtain (or extend) F-1 student status after November 29, 1996.170 There is no waiver of the five-year bar.

165 166 167 168 169 170

INA § 212(a)(6)(F). INA § 274C. INA § 212(d)(12). INA § 212(a)(6)(g). Id. IIRAIRA § 346.

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§ 6.31 INELIGIBLE FOR CITIZENSHIP Immigrants are inadmissible if they are "ineligible to citizenship."171 By "ineligible to citizenship," the INA refers to aliens who are permanently barred from becoming U.S. citizens because of laws relating to military service.172 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.173 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.174 § 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 in five categories: 1. 2. 3. 4. 5. Aliens previously excluded; Aliens previously deported; Aliens who were unlawfully present in the United States for specified periods of time and now seek admission following a voluntary departure; Aliens who enter or attempt to enter the United States after having previously been unlawfully present in the United States for one year; Aliens who enter or attempt to enter the United States after having been previously ordered removed.175

We discuss each of these categories below. § 6.33 HAVING PREVIOUSLY BEEN REMOVED 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 removed and upon the person's immigration history. Persons ordered removed in INA § 235(b) expedited removal proceedings, or ordered removed after INA § 240 removal proceedings initiated upon their arrival in the United States (in other words, the equivalent of exclusion proceedings under pre-1996 law) are inadmissible for five years after their removal.176 They are inadmissible for 20 years after a second removal, and forever in the case of an alien convicted of an aggravated felony.177 Other persons who have been ordered deported or removed or who departed the United States under an order of deportation or removal are inadmissible for

171 172 173 174 175 176 177

INA § 212(a)(8)(A). INA §§ 101(a)(19). INA § 212(a)(8)(B). Id. INA § 212(a)(9). INA § 212(a)(9)(A). Id.

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ten years.178 They are also inadmissible for 20 years after a second removal, and forever if they were convicted of an aggravated felony.179 This ground of inadmissibility took effect on April 1, 1997.180 The person must reside outside the United States for the required period (5, 10, or 20 years) before seeking admission again.181 The new rules apply retroactively, so that aliens who were subject to the prior 5-year bar based on a deportation must now wait 10 years.182 Not every person who has been apprehended by the INS will be subject to this inadmissibility ground. A person who was granted voluntary departure by either the INS 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.183 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.184 This ground of inadmissibility does not apply to persons who received a final order but who have not subsequently left the United States.185 Those persons may be able to adjust their status before the immigration judge if they are successful in reopening their proceedings. To ameliorate the harshness of this inadmissibility ground, the INS is authorized to waive inadmissibility by granting, not a waiver, but a "consent [for the alien] to reapply" for admission.186 If the person has entered the United States already, he or she may still request the INS' consent to reenter.187 If granted, the consent is deemed to date back to before the reentry. However, if the person reentered illegally, the INS may "reinstate" the deportation or removal order, denying the person the opportunity to apply for adjustment or any other form of relief (except for withholding of removal).188 The INS does not enforce this provision uniformly, and it is recommended that the advocate consult with local practitioners prior to filing a Form I-212 application for permission to reapply for an alien who is present in the United States, to learn the INS' local policy and practice. We will go into more detail on the I-212 application in the next chapter.

178 179 180 181 182

Id. Id. IIRAIRA § 309(a). INA § 212(a)(9)(A). Cable, DOS, No. 98-State-060539 (April 4, 1998), reprinted in 75 Interpreter Releases 791-794, 792 (May 12, 1997). Crocetti, Assoc. Commr. INS, Memo HQ5015.12, 96 Act .034 (May 1, 1997), reprinted in 74 Interpreter Releases 791-94, 792 (May 12, 1997). 8 CFR § 241.7. 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). INA § 212(a)(9)(A)(iii); 8 CFR § 212.2. 8 CFR § 212.2(e) & (f). INA § 241(a)(5).

183

184 185

186 187 188

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§ 6.34 UNLAWFUL PRESENCE BARS 1. Persons "Unlawfully Present" Departing the United States after being unlawfully present will make a person inadmissible. The length of the inadmissibility period depends upon the duration of the unlawful presence, and there are special rules for calculating 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.189 Persons who are unlawfully present after April 1, 1997, for one year or more and who depart are inadmissible for ten years after their departure.190 The three-year bar provisions apply only to persons who voluntarily depart the United States before the commencement of removal proceedings. 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 tenyear bar. This means that persons who leave the United States under voluntary departure granted by an Immigration Judge will not be subject to the three-year bar and will be subject to the tenyear 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 prior to the initiation of proceedings. It may also apply to persons who simply left the U.S. on their own initiative. 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. If it appears that a VAWA self-petitioner has been unlawfully present in the United States and has subsequently departed, the advocate should first examine the case to see whether he or she is exempt from the inadmissibility ground, under the special exemption for VAWA self-petitioners, explained below. If he or she is not exempt, then the advocate must look at the case 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 selfpetitioner 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 waiver of that ground. We will examine each of these inquiries in turn. 2. Exceptions for abused noncitizens There are two exceptions to this inadmissibility ground for VAWA self-petitioners who violated the terms of a nonimmigrant visa. Which of the two exceptions applies depends on when the self-petitioner entered the United States. If the self-petitioner entered before April 1,

189 190

INA § 212(a)(9)(B)(i)(I). 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).

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1997, he or she need show only status as a VAWA self-petitioner in order to be exempted from the inadmissibility ground.191 If the entry was on or after April 1, 1997, however, the VAWA self-petitioner must also show that there was a substantial connection between the violation of the nonimmigrant visa terms and the abuse he or she suffered.192 Not all self-petitioners who entered on or after April 1, 1997, will be able to show the required connection between the violation and the unlawful presence. 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. In that case, the person should carefully analyze the situation to make sure that he or she 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. 3. Determining Unlawful Presence The statute sets out very specific rules for calculation of periods of unlawful status.193 a. Periods of "unlawful presence" in the U.S. 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.194 b. Under this ground, "unlawfully present" means that the person is present after overstaying an authorized period of stay, or is present without being admitted or paroled. 195 For aliens who entered with a nonimmigrant visa and then violate the terms of the visa, such as by working without authorization, unlawful presence begins only after the INS or an Immigration Judge determines that the person violated status.196

191

The VAWA exception under 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 IIRAIRA § 301(c)(2), "(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 IIRAIRA]." As so described in Sec. 309(a) of IIRAIRA, 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. INA § 212(a)(6)(A)(ii). INA § 212(a)(9)(B)(iii), (iv). Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the INA (June 17, 1997), reprinted in 74 Interpreter Releases 1046 (July 7, 1997). INA § 212(a)(9)(B)(ii). Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, entitled "Section 212(a)(9)(B) Relating to Unlawful Presence" (Sept. 19, 1997), reprinted in 74 Interpreter Releases 1498 (Sept. 29, 1997); Department of State, Cable 98-State-060539 (April 4, 1998), concerning "P.L. 104-208 Update No. 36: § 212(a)(9)(A)-(C)," reprinted in 75 Interpreter Releases 543 (April 20, 1998).

192 193 194

195 196

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c. No period of time prior to April 1, 1997, [the effective date of IIRIRA] counts as unlawful presence.197 d. No period of time in which the noncitizen is under 18 years of age is counted as unlawful presence.198 e. The three- and ten-year bars to admissibility apply only to persons "who have previously physically departed the United States and are now either seeking admission or have entered or attempted to enter the United States without being inspected."199 This means that the bars do not apply to persons applying for adjustment of status who have not left the United States after accumulating unlawful presence.200 Even a departure under advance parole will trigger the unlawful presence bars.201 f. For purposes of the unlawful presence inadmissibility grounds, the INS considers 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 aliens who in removal proceedings renew adjustment applications that were denied by the INS, but not including aliens who first apply for adjustment when in removal proceedings;202 Aliens admitted to the U.S. as refugees under INA § 207;203 Aliens granted asylum under INA § 208;204

· ·

197 198 199

IIRAIRA § 301(b)(3). INA § 212(a)(9)(B)(iii)(I). Virtue, Act'g. Exec. Assoc. Commr, INS, Memo HQIRT 50/5.12, entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the INA (June 17, 1997), reprinted in 74 Interpreter Releases 1046 (July 7, 1997); Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, entitled "Implementation of Section 212(a)(6)(A) and 212(a)(9) grounds of inadmissibility" (March 31, 1997), reprinted at 74 Interpreter Releases 578 (April 7, 1967). Id. Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, entitled "Advance Parole for Aliens Unlawfully Present in the United States for More than 180 Days" (Nov. 26, 1997), reprinted at 74 Interpreter Releases 1864 (Dec. 8, 1997). Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the INA," (June 17, 1997), reprinted in 74 Interpreter Releases 1046 (July 7, 1997); Department of State, Cable 2000-State-102272, entitled "Treatment of Adjustment Applications for purposes of Determining Unlawful Presence under INA § 212(a)(9)(B) (May 30, 2000)," reprinted at 77 Interpreter Releases 725 (June 5, 2000). Id. Id.

200 201

202

203 204

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Aliens granted withholding of deportation/removal under INA § 241(b)(3) or its predecessor, INA § 243(h);205 Aliens granted relief under the Convention Against Torture;206 Aliens under a current grant of deferred enforced departure (DED) pursuant to an order issued by the President;207 Aliens under a current grant of temporary protected status (TPS);208 Cuban/Haitian entrants under Pubic Law 99-603 section 202(b);209 Aliens granted voluntary departure, during the period of time allowed;210 Aliens who have filed an application for legalization under either of the two amnesty programs, though excluding "late amnesty" applicants211 Aliens who have filed a bona fide asylum application during the pendency of the application, provided the alien did not work without authorization;212 Persons who have applied for registry under INA § 249, during the application period, including removal proceedings and BIA appeal.213 Aliens who have been granted Family Unity, during the authorized period; Applicants for relief pursuant to the Nicaraguan Adjustment and Central American Relief Act (NACARA);214

· ·

· · · ·

·

·

· ·

205 206

Id. Pearson, Exec. Assoc. Commr., INS, Memo HQADN 70/21.1.24-P, entitled "Period of Stay Authorized by the AG for Purposes of Section 212(a)(9)(B) of the INA" (March 3, 2000). Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, 96 Act 043, entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the INA" (June 17, 1997), reprinted at 74 Interpreter Releases 1046 (July 7, 1997). Id. Id. Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, 96 Act 058, entitled "Section 212(a)(9)(B) Relating to Unlawful Presence" (Sept. 19, 1997), reprinted in 74 Interpreter Releases 1498 (Sept. 29, 1997). Pearson, Exec. Assoc. Commr., INS, Memo HQADN 70/21.1.24-P, entitled "Period of Stay Authorized by the AG for Purposes of Section 212(a)(9)(B) of the INA" (March 3, 2000). INA § 212(a)(9)(B)(iii)(II). Id. INA § 212(a)(9)(B)(iii)(III).

207

208 209 210

211

212 213 214

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Conditional resident aliens who have had their status terminated by the INS but who have appealed that determination administratively, through the appeals process;215 Nonimmigrants who have made a timely, nonfrivolous application for an extension of stay or change of status and who have not been employed without authorization pending the adjudication, during the pendency of the application.216 Deferred action status.217

·

·

g. The following persons are not considered to be in a period of authorized stay under this ground include the following:

· · · · ·

Aliens under an order of supervision (pending removal);218 Aliens with pending applications for cancellation of removal;219 Aliens with pending applications for withholding of removal;220 Asylum applicants who have worked without employment authorization;221 Aliens 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);222 Aliens present pursuant to pending federal court litigation.223

·

4. Section 212(a)(9)(B)(v) waiver for unlawful presence Section 212(a)(9)(B)(v) provides for a waiver for the unlawful presence bars if the INS or Immigration Judge determines that refusing admission to the alien would result in extreme

215

Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12 , 96 Act 058 (Sept, 19, 1997), reprinted in 74 Interpreter Releases 1479, 1498 (Sept. 29, 1997). INA § 212(a)(9)(B)(iv); Pearson, Exec. Assoc. Commr., INS, Memo HQADN 70/21.1.24-P, entitled "Period of Stay Authorized by the AG for Purposes of Section 212(a)(9)(B) of the INA" (March 3, 2000). Williams, Exec. Assoc. Commr., Office of Field Operations, INS, Memo HQADN 70/21.1.24-P, Subject: Unlawful Presence (June 12, 2002) (copy on file with authors). Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, 96 Act 058, entitled "Section 212(a)(9)(B) Relating to Unlawful Presence" (Sept.. 19, 1997), reprinted in 74 Interpreter Releases 1498 (Sept. 19, 1997). Id. Id. Id. Id. Id.

216

217

218

219 220 221 222 223

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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.

§ 6.35 REENTERING THE U.S. WITHOUT AUTHORIZATION A more severe ground of inadmissibility applies to an alien who has been unlawfully present in the United States for an aggregate period of one year or more and who then enters or attempts to reenter the United States without authorization.224 By definition, this applies to persons who enter or attempt to enter illegally on or after April 1, 1998.225 In contrast to the three- and ten-year bars for unlawful presence, however, 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.226 Thus, if several periods of unlawful presence taken together equal one year, the person falls under this inadmissibility grounds. 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 U.S. without authorization.227 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, 1997.228 Persons who are inadmissible under INA § 212(a)(9)(C) are permanently inadmissible, with no relief available until ten years after their last departure from the United States, at which time the INS may consider a request for permission to reapply for admission.229 There is a special waiver of the INA § 212(a)(9)(C) inadmissibility ground for VAWA self-petitioners, if there is a connection between the abuse the self-petitioner suffered and the self-petitioner'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. 230 We will discuss that waiver in more detail in the next chapter.

224 225

INA § 212(a)(9)(C)(i)(I). Virtue, Act'g. Exec. Assoc. Commr, INS, Memo HQIRT 50/5.12, entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the INA" (June 17, 1997), reprinted at 74 Interpreter Releases 1046 (July 7, 1997). Virtue, Act'g. Exec. Assoc. Commr., INS, Memo HQIRT 50/5.12, entitled "Implementation of Section 212(a)(6)(A) and 212(a)(9) grounds of inadmissibility" (March 31, 1997), reprinted at 74 Interpreter Releases 578 (April 7, 1967). INA § 212(a)(9)(C)(i)(II). Virtue, Act'g. Exec. Assoc. Commr, INS, Memo HQIRT 50/5.12, entitled "Additional Guidance for Implementing Sections 212(a)(6) and 212(a)(9) of the INA" (June 17, 1997), reprinted at 74 Interpreter Releases 1046 (July 7, 1997). INA § 212(a)(9)(C)(ii). Id.

226

227 228

229 230

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§ 6.36 MISCELLANEOUS GROUNDS The "miscellaneous" inadmissibility grounds concern practicing polygamists,231 guardians required to accompany excluded aliens,232 international child abductors,233 "unlawful voters,"234 and former citizens who renounced their citizenship in order to avoid taxation.235 Because these grounds arise only infrequently in VAWA self-petition cases, this chapter will not provide an indepth analysis of them.

§ 6.37 REINSTATEMENT OF PRIOR REMOVAL ORDER AND CONSEQUENT INELIGIBILITY FOR RELIEF Under INA § 241(a)(5), if 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. It may not be reopened or reviewed. In addition, the noncitizen is ineligible and may not apply for any relief under the INA, except for withholding of removal. There is no exception from this provision for abused noncitizens or for other compelling cases, although experts note that the INS may in its discretion choose not to reinstate a prior removal order.

Table 1: Mental Disorders That May Have Associated Harmful Behavior Mental retardation Autistic disorders Organic mental disorders (dementias) Schizophrenic, paranoid, and other psychotic disorders Delusional disorders Mood disorders Dissociative disorders Anxiety-related disorders Somatoform disorders Personality disorders Adult antisocial behavior Conduct disorders Adjustment disorders Sexual disorders Impulse control disorders Psychoactive substance use disorders Other medical disorders

231 232 233 234 235

INA § 212(a)(10)(A). INA § 212(a)(10)(B). INA § 212(a)(10)(C). INA § 212(a)(10)(D). INA § 212(a)(10)(E).

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Table 2: Mental Disorders That Necessarily Have Associated Harmful Behavior MEDICAL CONDITION

1. Antisocial personality disorder 2. Impulse control disorders not elsewhere classified: · pathological gambling · kleptomania · pyromania · intermittent explosive disorder · impulse control disorder not otherwise specified 3. Paraphilias that involve behaviors that harm or intimidate others · exhibitionism · pedophilia · sexual masochism · sexual sadism · zoophilia · voyeurism · some atypical paraphilias (e.g., frotteurism, telephone scatologia) 4. Conduct disorders · solitary aggressive type · oppositional defiant disorder · other types 5. Mood disorders · bipolar disorders · depressive disorders

ASSOCIATED BEHAVIOR PATTERN

Harmful behavior necessary to establish the diagnosis Harmful behavior necessary to establish the diagnosis

Harmful behavior necessary to establish the diagnosis

Behavior necessary to establish the diagnosis. If history of serious violation of rights of others or property (e.g., stealing, fire setting) E.g., in the course of the illness, has assaulted others when manic or attempted suicide when depressed. E.g., in the course of the illness, has attempted suicide; has harmed or neglected children when depressed E.g., in the course of the illness, has engaged in thievery or destruction of property; harmed children

6. Schizophrenic disorders · paranoid disorders · psychotic disorders not elsewhere classified 7. Alcohol dependence (alcoholism) Behavior necessary to establish the diagnosis or Alcohol abuse 8. Psychoactive substance disorders (drug Behavior necessary to establish the diagnosis abuse) 9. Other physical or mental disorders that, in relation to the symptoms of the disorder or its treatment, limit physical attentional or cognitive capacity to perform certain tasks or are otherwise associated with behaviors not controllable by the person (e.g., partial complex seizure disorders)

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CHAPTER 7 WAIVERS OF INADMISSIBILITY FOR VAWA SELF-PETITIONERS

Contents 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 Overview.......................................................................................................................... 7-1 The Exercise of Discretion............................................................................................... 7-1 Extreme Hardship ............................................................................................................ 7-2 Documenting Extreme Hardship...................................................................................... 7-6 INA § 212(g) Waivers for Health-Related Grounds........................................................ 7-8 § 212(h) Waivers for Criminal Conduct ........................................................................ 7-10 INA § 212(i) Waivers for Fraud or Misrepresentation .................................................. 7-12 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 .......................................................... 7-15 Form I-212 Consent to Reapply for Admission............................................................. 7-16

§ 7.1 OVERVIEW In the previous chapter, we discussed the various grounds of inadmissibility under Section 212 of the Immigration and Nationality Act (INA) and mentioned the waivers that are available for some of those grounds. 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)(ii) waiver of unlawful entry after previous immigration violations. In addition, this chapter will cover requests for permission to reenter after a formal deportation or removal order. Before looking at the four waivers mentioned above, we must first examine two important components of a waiver application: the Attorney General's exercise of discretion and the concept of extreme hardship.

§ 7.2 THE EXERCISE OF DISCRETION Waivers of inadmissibility are granted in the Attorney General's discretion. This means that, even if the visa applicant meets all of the statutory requirements for the waiver, the Attorney General (in the person of his or her delegate, the INS or Immigration Judge) may deny the waiver if he or she believes that the person does not merit it. The exercise of discretion requires a weighing of all of the positive and negative factors in the applicant's case. Because of the

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important role of discretion in an application for waiver of inadmissibility, a favorable showing of discretionary factors should be seen as another element in 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 U.S., Residence of long duration in the U.S., 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.1

Note that one favorable factor is a showing of extreme hardship. 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.2

In general, the more serious the reason for the waiver application, the more positive factors must be shown to convince the INS or Immigration Judge to exercise discretion favorably.

§ 7.3 EXTREME HARDSHIP -- DEFINITIONS Extreme hardship is a statutory requirement for the VAWA waiver of the fraud and misrepresentation inadmissibility ground, discussed in this chapter, and is also a requirement for several 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

1

2

Matter of Mendez, 21 I & N Dec. 296 (BIA 1996) [in deciding waiver applications under INA 212(h), the Board will consider the factors it set forth in Matter of Marin, 16 I & N Dec. 591 (BIA 1978)]. Id.

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in a subsequent chapter of this manual. For these reasons, it is important to examine what is meant by the term "extreme hardship" and consider ways to document it. The BIA has stated that "extreme hardship" does not have an fixed definition. Instead, the elements to establish extreme hardship depend on the facts and circumstances of each case.3 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 life style one had become accustomed to.4 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 citizen children,5 significant reduction in standard of living,6 and lower quality medical or educational facilities in the native country.7 Difficulty in re-adjusting 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.8 When analyzing a claim of extreme hardship, the INS 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.9 For this reason, it is very important to document all the hardship factors in a client's case. For purposes of determining whether extreme hardship exists in a VAWA-related application, the INS and the Executive Office for Immigration Review (EOIR) have 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.10 The EOIR's guidance was issued in the form of regulations, setting out

3 4

5 6 7

8 9

10

Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999). See Matter of Cervantes, supra n. 3, 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). Matter of Pilch, supra, n. 4; Matter of L-O-G-, supra, n.4. Matter of L-O-G-, supra, n. 4. Matter of Correa, 19 I & N Dec. 130 (BIA 1984); Matter of Pilch, supra n. 4; Matter of Kim, 15 I & N Dec. 88 (BIA 1974). Matter of O-J-O-, supra, n. 4. Matter of Pilch, supra, n. 4; Matter of L-O-G-, supra n. 4; Matter of Ige, 20 I & N Dec. 880 (BIA 1994), Matter of O-J-O-, supra n. 4; 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)]. 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

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factors to be considered in assessing extreme hardship for purposes of VAWA cancellation and suspension applications.11 Although these factors were not provided specifically for VAWA waivers of inadmissibility, 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.12 Thus, advocates preparing a waiver application for a VAWA self-petitioner should look to these factors. The hardship factors identified by the INS and EOIR 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.13

· · · ·

The INS memo 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 U.S. or abroad. 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.14 A protection order is of little use abroad if the abuser travels back and forth to the victim's homeland.15 Experts also relate that the

11 12 13 14

15

requirement was deleted in the 2000 VAWA amendments. 8 CFR 240.20(c) [VAWA cancellation] and 240.58(c) [VAWA suspension]. Matter of Cervantes, supra n.3 . 8 CFR 240.58(c). 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). Id.

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effect on children of domestic violence in the household has been considered a significant hardship factor.16 Other extreme hardship factors enumerated by the Board 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.17

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, BIA Boardmember 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 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;

16 17

Id. 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 (BIA 1999); 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, 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)].

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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.18

§ 7.4 DOCUMENTING EXTREME HARDSHIP The following list gives examples of ways to document extreme hardship. Remember, however, that each case must be analyzed individually to determine what hardship factors exist in the case and the best way of documenting those hardship 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 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 and by reports from the U.S. Department of State, the United Nations, and non-governmental organizations (NGOs) concerning the country's economic and development status. 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.

·

· ·

·

18

Matter of Monreal, 23 I & N Dec. 56 (BIA 2001) (Rosenberg, Boardmember, concurring and dissenting).

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·

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, 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 the U.S. Department of State, the United Nations, and NGOs, are useful for this purpose. Any evidence of danger to the self-petitioner 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. Always remember that it is the cumulative effect of the evidence that matters.

·

·

·

·

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. It is often difficult to obtain information on specific laws and conditions in other countries. It is helpful to review country reports from 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, including findlaw.com. Advocates can also contact the Library of Congress' Law Division, at 202-707-5065 (fax: 202-707-1820) and request certified copies of foreign laws. Another valuable resource is the nationalimmigrationproject.org, the website of the National Immigration Project of the National Lawyers Guild, which includes helpful sample briefs and information.

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§ 7.5 INA § 212(g) WAIVERS FOR HEALTH-RELATED GROUNDS 1. 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, the Attorney General 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.19 In contrast, the VAWA waiver requires only that the visa applicant qualify as a VAWA selfpetitioner.20 There is no statutory requirement of any qualifying relative for the VAWA waiver. There are special requirements for waivers of the communicable disease inadmissibility ground if the disease in question is HIV infection. Even if an immigrant who is HIV-positive meets the requirements for the INA § 212(g)(1) general or VAWA waiver, certain discretionary factors must still be considered. In general, current INS policy requires that the applicant establish the following in order to obtain the waiver: (1) the danger to the public health of the United States created by her or his admission is minimal; (2) the possibility of the spread of the infection created by her or his admission to the United States is minimal; and (3) there will be no cost incurred by any government agency of the United States because of the applicant's admission, without the prior consent of that agency.21 Examples of evidence that the INS considers sufficient to meet these criteria include: evidence that (1) the applicant has arranged for medical treatment in the United States; (2) the applicant is aware of the nature and severity of his or her medical condition; (3) the applicant is willing to attend educational seminars and counseling sessions; (4) the applicant understands the ways the disease is transmitted; and (5) a government agency has agreed to provide medical treatment to the applicant.22 An excellent resource on HIV-infection and immigration is the National Immigration Law Project's HIV manual, available on their website at nationalimmigrationproject.org. 2. WAIVERS FOR PHYSICAL OR MENTAL DISORDERS WITH ASSOCIATED HARMFUL BEHAVIOR

The Attorney General may waive the inadmissibility ground of having a physical or mental disorder with associated harmful behavior, upon such conditions as the Attorney General

19 20 21

22

INA 212(g)(1)(A) and (B). INA 212(g)(1)(C). Aleinikoff, Exec. Assoc. Commr. Program, INS, Memo HQ 212.3-P, Immigrant Waivers for Aliens Found Excluded under 212(a)(1)(A)(i) of the Immigration and Nationality Act due to HIV Infection, September 6, 1995, at 5 [reprinted in 72 Interpreter Releases 1347 (Oct. 2, 1995)]. Id. at 5.

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may set.23 There is no special VAWA waiver for this inadmissibility ground, but VAWA selfpetitioners may apply under the general waiver provision. 3. 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,24 (2) a civil surgeon or panel physician certifies that the vaccination would not be medically appropriate,25 or (3) the vaccination would be contrary to the alien's religious or moral beliefs.26 Under the first waiver, if the applicant presents documentation showing that all immunizations have been obtained, he or she is no longer inadmissible. 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 only apply to the influenza vaccine, as it is generally given only during the fall season).27 The INS treats the first two of these waiver grounds (for subsequent vaccination or medical certificate) as blanket waivers.28 In these cases, no waiver application form is required, and the applicant does not have to pay an application fee.29 The prospective immigrant's vaccination history, or a finding that a vaccination is not medically appropriate, is noted by the civil surgeon on the alien's medical examination report (Form I-693).30 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.31 In these cases, there is no "blanket" waiver, and the INS must

23 24 25 26 27

28

29

30 31

INA 212(g)(3). INA 212(g)(2)(A). INA § 212(g)(2)(B). INA § 212(g)(2)(C). Virtue, Act'g. Exec. Assoc. Commr., Programs, INS, Memo HQ 50/5/12, 96 Act 027, Subject: New Vaccination Requirements, at 3 (April 10, 1997) [reprinted in 74 Interpreter Releases 660 (April 21, 1997)]. Virtue, Act'g Exec. Assoc. Commr. Programs, INS, Memo HQ 50/5.12, 96 Act 027 (April 10, 1997), re: New Vaccination Requirements, at 2 [reprinted at 74 Interpreter Releases 660 (April 21, 1997)]. See also, State Dept. Cable No. 97-State-071637 (April 17, 1997) [reprinted at 74 Interpreter Releases 749 (May 5, 1997)]. Virtue, Act'g. Exec. Assoc. Commr., Programs, INS, Memo HQ 50/5/12, 96 Act 027, Subject: New Vaccination Requirements (April 10, 1997) [reprinted in 74 Interpreter Releases 660 (April 21, 1997)]. Id. at 2. INA § 212(g)(2)(C).

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adjudicate each waiver request on a case by case basis.32 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.33 When the waiver application is for a child, the child's parent must satisfy these three requirements.34 The applicant does not have to be an active member of any particular denomination to qualify for the waiver.35 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.

§ 7.6 § 212(h) WAIVERS FOR CRIMINAL CONDUCT 1. WHAT CRIMINAL INADMISSIBILITY GROUNDS DOES SECTION 212(h) WAIVE?

INA 212(h) provides three separate waivers of criminal grounds for immigrants. Each of those waivers will waive the following criminal inadmissibility grounds: · · · · · 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 substance abuse offenses, other than a single offense of simple possession of 30 grams or less of marijuana, nor do they waive trafficking in controlled substances or persons or engaging in particularly severe violations of religious freedom. 2. WHAT ARE THE ELIGIBILITY REQUIREMENTS FOR THE SECTION 212(h) WAIVERS?

Under the three INA § 212(h) waivers, the criminal inadmissibility grounds listed above may be waived for:

32

33

34 35

Virtue, Act'g. Exec. Assoc. Commr., Programs, INS, Memo HQ 50/5.12, 96 Act 027, Subject: New Vaccination Requirements, at 3 (April 10, 1997) [reprinted in 74 Interpreter Releases 660 (April 21, 1997)]. Virtue, Act'g. Exec. Assoc. Commr., Programs, Memo HQIRT 50.5.12, 96 Act. 055, Subject: Vaccination Requirements under Section 212(a)(1)(A)(ii) of the Act (Sept. 29, 1997) [reprinted at 74 Interpreter Releases 1687 (November 3, 1997)]. Id. Id.

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·

·

Persons who are inadmissible only under 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 the U.S. welfare or security and if the person has been rehabilitated.36 Persons who are the spouse, parent, son, or daughter of a USC or LPR, if is established to the Attorney General's satisfaction that refusing admission to the alien would result in extreme hardship to the USC or LPR relative.37 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: · · · The Attorney General 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 LPRs are ineligible for the 212(h) waivers if (1) they have been convicted of an aggravated felony, or (2) they have not resided lawfully and continuously in the U.S. for seven years prior to the initiation of removal proceedings.

·

Remember that INA § 212(h) waivers are granted in the Attorney General's 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.38 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 Attorney General to exercise discretion favorably. A sample INS Form I-601 Application for VAWA 212(h) waiver is attached as Appendix 45.

36 37 38

INA § 212(h)(1)(A). INA § 212(h)(1)(B). Matter of Mendez, 21 I & N Dec. 296 (BIA 1996).

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§ 7.7 INA § 212(i) WAIVERS FOR FRAUD OR MISREPRESENTATION Inadmissibility because of general fraud or misrepresentation39 may be waived under INA § 212(i). There are both a general and a VAWA-specific waiver under this provision. Practitioners should note that Section 212(i) will not waive the inadmissibility ground of having made a false claim to U.S. citizenship, 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.40 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 permanent residence is denied.41 The waiver is not available based on extreme hardship to the applicant's USC or LPR child. In contrast, VAWA self-petitioners are eligible for an INA § 212(i) waiver if they demonstrate extreme hardship to themselves or to their USC, LPR, or "qualified alien" parent or child.42 The term "qualified alien" includes LPRs, asylees, refugees, persons paroled into the country for at least one year, aliens granted withholding of deportation or removal, aliens granted conditional entry under INA § 203(a)(7) as it existed prior to April 1, 1980, and Cuban and Haitian entrants.43 The term also includes abused aliens 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.44 As with other waivers, the INA § 212(i) waiver is granted or denied in the Attorney General's discretion. As part of the discretionary determination, the INS or Immigration Judge may consider the nature of the applicant's fraud or misrepresentation.45 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 wilful misrepresentation of a

39 40 41 42 43 44 45

INA § 212(a)(6)(A)(i). INA § 212(a)(6)(C)(ii)(II). INA § 212(i). Id. 8 USC § 1641(b). 8 USC § 1641(c). Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999); Matter of Tijam, 22 I & N Dec. 408 (BIA 1998).

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material fact], but he may be eligible for the VAWA 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, he 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. 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, his 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. Marcos must also submit evidence to convince the Attorney General 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.

§ 7.8 INA § 212(a)(9)(B)(v) WAIVERS FOR UNLAWFUL PRESENCE The Attorney General may waive the INA § 212(a)(9)(B) unlawful presence inadmissibility ground if refusing permanent residence would result in extreme hardship to a USC or LPR spouse or parent.46 The waiver is not available based on extreme hardship to a USC or LPR child. Advocates should remember that the unlawful presence inadmissibility ground does not apply to VAWA self-petitioners who entered the United States before April 1, 1997.47 Nor does it 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.

46 47

INA § 212(a)(9)(B)(v). IRAIRA 301(a)(2); see, Lauren Gilbert, "Family Violence and U.S. Immigration Law," Immigration Briefings (March 2001), at 15.

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§ 7.9 INA § 212(a)(9)(C) WAIVER FOR REENTERING THE UNITED STATES WITHOUT AUTHORIZATION FOLLOWING IMMIGRATION VIOLATIONS Under INA § 212(a)(9)(C), 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. To be eligible for the waiver, the self-petitioner must show a connection between the abuse the selfpetitioner suffered and the self-petitioner'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.48 The self-petitioner must also convince the Attorney General to exercise discretion favorably. The INS has not yet issued regulations giving guidance on how it will interpret the "substantial connection" requirement for this waiver.

PRACTICE TIP Because the INS has not yet issued regulations clarifying how it will interpret the INA § 212(a)(9)(C)(ii) VAWA waiver, self-petitioners who fall under the INA § 212(a)(9)(C) inadmissibility ground should consider waiting to apply for adjustment of status until the INS issues regulations or other guidance on this point.

Example: Eleanor entered the United States without authorization on April 1, 1996, 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 2002, 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 Section 212(a)(9)(C)(ii) 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. Because INS has not yet issued guidance on how it will interpret the "substantial connection" requirement, however, Eleanor should wait to file her application for adjustment, if possible, until after INS issues this guidance.

48

Id.

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§ 7.10 STRATEGY AND PROCEDURE FOR WAIVER APPLICATIONS The INA § 212(h), § 212(i), § 2(g), and § 212 (a)(9)(v) waivers are made on Form I-601 and should be supported by documentary and photographic evidence. They are filed as follows: · · · If applying for adjustment of status, with the INS If applying for consular processing, with the consulate, which will forward the application to the appropriate INS overseas office for a decision If in removal proceedings, with the Immigration Court.

The waiver application consists of the application form itself, together with the filing fee ($195) or a request for a fee waiver. In addition, the applicant should attach documentation to establish the statutory requirements and documentation to convince the Attorney General that a favorable exercise of discretion is warranted. The application should be consecutively paginated. For applications filed with the Immigration Court as part of an application for relief from removal, advocates should also check the local Immigration Court rules for any special content or format requirements. The I-601 application should contain the following items: · · · · Form I-601 Check or money order for the fee or request for fee waiver An index to the application Evidence to establish statutory requirements · For VAWA 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. · For the INA § 212(i) and § 212(a)(9)(B) 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. · 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 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 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 naturalization by admission of a child of a USC to the United States as an LPR while under the age of 18. If the relative is an LPR or other "qualified alien," that status may be shown by INS 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 INS 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 INS use only."

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·

· ·

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 the applicant's statement and statements of witnesses. Evidence of favorable discretionary factors. Evidence to neutralize or overcome negative discretionary factors.

The most successful waiver applications contain a thorough declaration in the client's words describing all the equities in the case. These could include, for example, a description of the likely psychological, medical, educational, and financial effects on the family if the applicant is denied the waiver. Also submit declarations from other persons who have known the applicant and his or her family and situation and who can attest to the applicant's positive attributes and to the hardship and other equities in the case. Such persons would include psychologists or other counselors, teachers, priests or other church officials, probation officers, employers, friends, neighbors, landlords, and any other community members. If the political or economic conditions in the home country are an issue, submit documentation supporting that argument. Include evidence of having filed taxes. Photographs of the applicant and family are also helpful.

§ 7.11 FORM I-212 CONSENT TO REAPPLY FOR ADMISSION 1. ELIGIBILITY

Persons who have departed or been removed from the United States subsequent to a deportation or removal order are inadmissible.49 This ground of inadmissibility does not apply to persons who received a final order but who have not subsequently left the United States. Rather, those persons may be able to adjust their status before the Immigration Judge if they are successful in re-opening their proceeding.50 To ameliorate the harshness of the inadmissibility ground for prior deportation or removal orders, Congress authorized the INS to waive inadmissibility by granting not a waiver, but a "consent to reapply" (Form I-212) for admission.51 If the applicant has already reentered the United States, he or she may still request the INS's consent to reenter.52 If granted, the consent is deemed to date back to before the reentry.53 In adjudicating an I-212, the INS will not require extreme hardship to any specific family member. Rather, the INS will consider the following factors:

49 50

51 52 53

INA § 212(a)(9)(A). Crocetti, Assoc. Comm. INS, Memo. HQ 5015.12, 96 Act .034 (May 1, 1997) [reprinted at 74 Interpreter Releases 791-94, 792 (May 12, 1997)]. INA § 212(a)(9)(A)(iii). 8 CFR § 212.2(e). 8 CFR § 212.2(i); Matter of Ducret, 15 I & N Dec. 620 (BIA 1976).

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1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

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 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.54

The INS will balance the positive and negative factors. The following negative factors will also be considered: 1. Repeated and significant immigration violations 2. The fact that the applicant is inadmissible based on other grounds for which there is no waiver.55 2. STRATEGY AND PROCEDURE

Application for consent to reapply is made on INS Form I-212 (Application for Permission to Reapply for Admission Into the United States After Deportation or Removal). A person seeking permanent residence through adjustment of status must file the application with the INS District Director having jurisdiction over the place where the applicant resides.56 If the person is applying for adjustment before the Immigration Judge, the I-212 must be referred to the Immigration Judge.57 A person applying for permanent residence at a U.S. consulate must file the application with the INS District Director having jurisdiction over the place where the deportation or removal proceedings were held.58 An exception to this occurs where the applicant must file both an I-212 request for permission to reapply and an I-601 application for an INA § 212(g), (h), or (i) waiver. In that case, the I-212 must be filed at the U.S. consulate having jurisdiction over the applicant's place of residence.59 Persons who will apply for permanent residence through a consulate may file Form I-212 with the INS regional service center prior to leaving for the visa appointment.60 A denial of an I-212 application is appealable to the INS Associate Commissioner for Examinations,61 unless filed in conjunction with an adjustment application in removal proceedings, in which case the denial is appealable to the BIA.62

54 55 56 57 58

59 60 61

Matter of Tin, 14 I & N Dec. 371 (Reg'l. Commr. 1971); Matter of Lee, 17 I & N Dec. 275 (BIA 1978). Id. 8 CFR § 212.2(e). Id. 8 CFR § 212.2(d). See also, Dept. 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). Id. Ignatius and Stickney, Immigration Law and the Family, at 12-80 (Release # 6, 6/2001). 8 CFR § 103.1(f)(3)(iii)(E).

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The applicant should attach the following supporting documents and the filing fee to Form I-212: 1. 2. 3. 4. 5. 6. 7. 8. 9. Immigrant visa approval notice Proof of U.S. citizen or LPR family members in the United States A copy of the final deportation or removal order Proof of current and prior employment Proof of filing federal and state taxes Medical records or doctor's statement indicating health-related problems Results of FBI fingerprint check indicating criminal record Affidavits from the applicant, the applicant's family members, and any other person who can vouch for the alien's good moral character and hardship that would be suffered if the application is denied, and Any other evidence of positive equities in the case.

The fee for filing the I-212 is $195. A sample I-212 application and packet is attached as Appendix 58.

62

8 CFR § 3.1(b).

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CHAPTER 8 CONSULAR PROCESSING FOR VAWA SELF-PETITIONERS

Contents 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 Introduction ........................................................................................................................ 8-1 Overview of the Process..................................................................................................... 8-2 Which Consulate? .............................................................................................................. 8-5 Consular Processing for Derivative Beneficiaries ............................................................. 8-5 The Instruction Package for Immigrant Visa Applicants................................................... 8-7 The Appointment Package for Immigrant Visa Applicants ............................................... 8-8 The Consular Interview .................................................................................................... 8-10 Review of Visa Denials.................................................................................................... 8-10 What Can Happen at the Border?..................................................................................... 8-11 Conclusion........................................................................................................................ 8-12

§ 8.1 INTRODUCTION There are two ways to obtain 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. With the special adjustment provisions for VAWA self-petitioners, most self-petitioners will be eligible to adjust status in the United States. Some applicants, however, may need or prefer to obtain permanent residence through consular processing. 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. Consular processing is controlled to a large extent by the State Department and is performed by the National Visa Center and immigrant visa sections at U.S. consulates.1 It 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 the admission of the new immigrant to the United States.

1

INA §§ 221, 222.

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§ 8.2 OVERVIEW OF THE PROCESS When the Vermont Service Center approves an I-360 for a 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).2 The NVC is responsible for centralized file storage and for preliminary immigrant visa processing.3 If the self-petitioner or a derivative beneficiary is about to "age out" by turning 21, or if there is some other emergency need, the advocate should request that the consular processing be expedited.4 The problem of "aging out" has been ameliorate considerably by the Child Status Protection Act of 2002, providing special rules for calculating whether or not a person has "aged out."5 Please see the Practice Tip on "aging out," found at page 5-16 of this manual, for more information on the Child Status Protection Act. If expedited consular processing is needed for a client, the advocate should take several steps. First, ask that the Vermont Service Center 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 telephone or by e-mail. The American Immigration Lawyers Association (AILA) publishes a listing of consular posts' telephone and e-mail contact information. This procedure can also be used in cases where an emergency or special need requires expedited visa processing. The United States Department of State's website has valuable information on it and can be found at www.travel.state.gov. If the self-petitioner is not an immediate relative or in a current preference category, the NVC stores the approved I-130 petition and sends the intending immigrant a notice informing him or her that further notices will be sent once the priority date becomes current and there is a visa immediately available.6 Shortly before the visa number becomes current, the NVC may send out Form DS-3032, Choice of Address and Agent form.7 This form, routine for most family immigration cases, is

2 3

8 CFR § 204.2(c)(3).

State Department Instruction Sheet re: "Establishment of Transitional Immigrant Visa Processing Center," (undated), reprinted in 68 Interpreter Releases 1269 (Sept. 30, 1991). Ignatius and Stickney, Immigration and the Family, at 9-23 (Rel. # 6, 6/2001). Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002).

4 5 6

Department of State cable, No. 91-State-310554 (Sept. 19, 1991), reprinted at 68 Interpreter Releases 1742 (December 9, 1991). Department of State cable, No. 00-State-238959 (Dec. 19, 2000), entitled "IV Reform: First Steps on January One," reprinted in 78 Interpreter Releases 13 (Jan. 3, 2001).

7

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not required for self-petitioners.8 The form instructs the intending immigrant to either appoint an agent or attorney who will receive further communications from the NVC or consulate or indicate that correspondence be sent to the intending immigrant.

PRACTICE TIP: Contacting the National Visa Center. For information on the status of an approved alien relative petition that is pending at the NVC, one may call the NVC automated voice center at (603) 334-0700. One may also fax a letter to the NVC at (603) 334-0791. The address is 32 Rochester Avenue, Portsmouth, New Hampshire 03801-2909.

The next step in the visa process occurs when the NVC sends out the Instruction Package for Immigrant Visa Applicants.9 This informs the self-petitioner or derivative beneficiary -- now called the applicant for permanent residence -- that he or she may begin the consular processing stage.10 The NVC sends out the instruction package after Form DS-3032 is returned to the NVC or, if the NVC did not send Form DS-3032, shortly before the applicant's priority date becomes current.11 The Instruction Package consists of forms that the applicant must complete and return, as well as a list of documents that will be required at the time of the consular interview. The Instruction Package also indicates the consular office where the file will be sent. The Instruction Package also informs the applicant whether to respond to the NVC or directly to the consulate, depending on whether the controlling post is an Alpha or Beta Post. If the self-petitioner's case falls within the jurisdication of an Alpha Post, he or she should respond to the NVC. The Alpha Posts include U.S. consulates at the following locations: Ciudad Juarez, Bogota, Freetown, Georgetown, Guangzhou, Manila, Montreal, Port au Prince, Santo Domingo, and Tirana.12 All other consulates are called Beta Posts. For these cases, the NVC will review the response to make sure that everything is in order and will make at least two attempts to communicate with the applicant or advocate to correct any apparent deficiencies. After this, the NVC will forward the Instruction Package forms, supporting documents, and visa petition to the consulate.13 Self-petitioners whose cases fall within the jurisdiction of a consulate that is a Beta Post must submit the Instruction Package directly to the consulate.14

8 9

Id.

Prior to about December, 2001, the Instructions Package for Immigrant Visa Applicants was known as "Packet 3." State Department cable No. 2001-State-211789, Dec.11, 2001, reprinted at 79 Interpreter Releases 14-15 (Jan. 2, 2002).

10 11 12

9 FAM PN1.1 and PN5.1 to 22 C.F.R. § 42.55. 9 FAM pn.1.1 to 22 C.F.R. § 42.55; 9 FAM pn.5.1 to 22 C.F.R. § 42.63.

Department of State cable, No. 00-State-238959, entitled "IV Reform: First Steps on January One," (Dec. 19, 2000), reprinted at 78 Interpreter Releases 13 (Jan. 3, 2001). Id. Id.

13 14

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PRACTICE TIP: Finding the Rules The requirements for consular processing are found in three places. First are the statutes, in Title 8 (the INA) and Title 22 of the United States Code. Second, there are State Department regulations, found at 22 CFR. Finally, the Foreign Affairs Manual, or FAM, expands upon the information contained in the regulations. The FAM is keyed to the State Department regulations, and Volume 9 of the FAM covers visas. For example, the regulations at 22 CFR § 42.61 set out the basic rules for determining which consular post has jurisdiction over a particular visa application. The Foreign Affairs Manual, at 9 FAM N1 [Note 1] to 22 CFR § 42.61 gives more detailed and very helpful information on determining the appropriate consular post. The FAM can be found in Volumes 10 and 11 of Gordon and Mailman's Immigration Law and Procedure (Matthew Bender) and at the Department of State website at state.gov. It can also be ordered from the U.S. Government Printing Office.

After the applicant responds to the Instruction Package, indicating that he or she has obtained the required documents and is ready for the visa interview, either the NVC or the consulate will send out the Appointment Package for Immigrant Visa Applicants.15 This package contains more forms to be completed and a date for the visa interview at the consulate. If the Appointment Package was sent by the NVC, the NVC will also forward the file to the designated consular post, along with electronic data that is entered into the consular office's computer filing system.16 Eventually, the applicant will have a medical exam and interview to determine his/her eligibility. When the consulate grants the visa, the consulate 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 excludability, if applicable.17 The immigrant visa is valid for entry into the United States for six months from the date of issuance by the consulate,18 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.19 The visa holder must not open the envelope. Instead, the visa holder delivers the envelope to the INS when he or she presents himself or herself to the INS for inspection at the port of entry.20 (See Section 8.9 below, on Entry Procedures.)

Prior to about December, 2001, the Appointment Package for Immigrant Visa Applicants was known as "Packet 4." State Department cable No. 2001-State-211789, Dec.11, 2001, reprinted at 79 Interpreter Releases 14-15 (Jan. 2, 2002).

16 15

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). 9 FAM. PN4.2 to 22 CFR § 42.73. INA § 221(c). 22 CFR § 42.72(d). 9 FAM PN4.2 to 22 C.F.R. § 42.73.

17 18 19 20

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§ 8.3 WHICH CONSULATE? The visa applicant may elect to consular process at either the consulate in the country where he or she resides or last resided21 or the consulate in the country where he or she is physically present and will be able to remain throughout the processing stage.22 In addition, the Department of State 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.23 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.24 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.25 Examples of homeless countries are Afghanistan, Iran, Iraq, Lebanon, Libya, Somalia, Bosnia, Sierra Leone, Albania, and the Sudan.26 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.27

§ 8.4 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 derivative children ineligible.28 There are four basic scenarios under which a derivative beneficiary may obtain permanent resident status, summarized in the chart on this page. 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 all cases, the derivative beneficiary's eligibility for an immigrant visa will depend on the granting of a visa to the principal beneficiary (the self-petitioner).

21 22 23 24

22 CFR § 42.61(a), 9 FAM N1.1 and N2.1 to 22 CFR § 42.61. 22 CFR § 42.61(a), 9 FAM N3.1 to 22 CFR § 42.61. 9 FAM N2.1(b) to 22 CFR § 42.61.

22 CFR. § 42.61(a), 9 FAM N2.2 to 22 CFR.§ 42.61; see Stickney and Ignatius, Immigration and the Family, at 914 through 9-17 (Rel. # 6, 6/2001). State Department Cable No. 92-State-197870 (June 20, 1992), reprinted in 69 Interpreter Releases 901 (July 27, 1992); 9 FAM n. 3.2-1 to 22 CFR § 42.61. State Dept. Cable No. 96-State-240984 (Nov. 21, 1996). 9 FAM N2 to 22 CFR § 42.61. INA § 204(a)(1)(D)(i)(III).

25

26 27 28

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CONSULAR PROCESSING SCENARIOS FOR DERIVATIVE BENEFICIARIES: 1. Principal adjusts - derivative adjusts 2. Principal consular processes - derivative consular processes · Accompanying principal (together with principal or within four months after principal immigrates. · Following to join principal (immigrating more than four 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, an OF-230 Application for Immigrant Visa or Registration must be filed for each derivative beneficiary, as well as for the principal beneficiary. 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.29 The term "following-to-join" is defined as immigrating more than six months after the principal beneficiary immigrates.30 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.31 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,32 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.33 Under the third scenario, if the principal visa applicant has adjusted status in the United States, and the derivative beneficiary is abroad, the INS will forward either Form I-181, Memorandum of Creation of Record of Lawful Permanent Residence, or Form I-824,

29 30 31 32 33

22 CFR § 40.1(a)(1). Id. 22 CFR § 42.68; 9 F.A.M. n. 1 to 22 CFR § 42.68. 22 CFR § 42.53, 9 FAM n.6.4 to 22 CFR § 42.53. 9 FAM N7.2-2 to 22 CFR § 40.1.

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Application for Action on an Approved Application or Petition, to the appropriate consulate.34 These forms allow the consulate to begin immigrant visa processing for the derivative beneficiaries. The consulate may also initiate immigrant visa processing for a derivative beneficiary if the derivative provides the consulate with proof of the principal immigrant's adjustment to resident status.35 Experts advise that the principal applicant file Form I-824, with copies of the documents establishing the relationship between the principal and the derivative, simultaneously with the I-485 application for adjustment of status.36 The INS should forward the packet of documents, together with Form I-824, to the appropriate consulate. The consulate should then issue the instructions package and appointment package to the derivative beneficiary and process the immigrant visas. In addition to the supporting documents normally required for an immigrant visa, evidence of the relationship between the principal and derivative beneficiaries must be presented to the consulate. This is normally done by the principal beneficiary in his or her own visa interview.37

§ 8.5 THE INSTRUCTION PACKAGE FOR IMMIGRANT VISA APPLICANTS The Instruction Package consists of the following forms:

·

A cover letter stating that the visa number is current, identifying the consular post that will process the application, and confirming the preference category number, priority date, and names of persons who will be immigrating with the applicant. Form DS-2001, Instructions for Immigrant Visa Applicant, setting out instructions and a list of documents that must be gathered. The visa applicant must sign the form and return it to the consulate when all the documents are gathered. On the form, the applicant again indicates the names of the persons who will be immigrating with him or her. Please note that as of May 2002, this form is not yet being used. Form DS-230, Application for Immigrant Visa and Alien Registration, Part 1, Biographical Data, which requests standard biographical data on the visa applicant. It should be completed, signed, and returned to the consulate (or the NVC in some cases) as soon as possible, even if the applicant still needs additional time to gather the required documents. Like the questions on the Form I-485 adjustment of status applications, the questions on Form OF-230 Part 1 can raise questions of inadmissibility and must be answered carefully.

·

·

34 35

9 FAM N7.2 to 22 CFR § 42.42.

State Department Cable, No. 98-State-51612 (Feb. 27, 1998), reprinted in 75 Interpreter Releases 330 (March 8, 1998).

36 37

Ignatius and Stickney, Immigration Law and the Family, at 9.98. 22 CFR § 42.68, 9 FAM n. 5 to 22 CFR § 42.65.

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Form DSL-1083, Immigrant Visa Supplemental Information Sheet, which provides guidance on whether police clearance letters are necessary or required. Generally, all applicants aged 16 years or over must submit police certificates from each locality in the foreign country of nationality or current residence where the applicant has resided for at least six months after attaining age 16.38 However, in many countries, including Mexico, Guatemala, and El Salvador, these certificates are unavailable. The form also advises on the need to obtain military records, documentation on the bona fides of the marriage, and photographs. Notice concerning vaccination requirements. Authorization for Release of Federal Tax Data. The sponsor signs this form authorizing the Internal Revenue Service to release tax information to the NVC.

· ·

The visa applicant should carefully follow the instructions provided by the consulate. These tell the intending immigrant not to send any of the required documents to the consulate or the NVC, but instead take them to the consular interview. The instructions advise taking both the original and a copy of all required documents to the interview. As practical matter, it is a good idea to take a complete copy of the 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.39 All documents not written in English or in the principal language of the country where the consulate is located must be completed translated, word by word, into English.40 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. Primary documentation, for example of birth or marriage, would be a certificate from a government agency that maintains official records. If such a document is unobtainable in the issuing country, the applicant may be allowed to submit other satisfactory evidence in its place.41

§ 8.6 THE APPOINTMENT PACKAGE FOR IMMIGRANT VISA APPLICANTS Once the intending immigrant has returned Form DS-200142 to the NVC or consulate, informing them that he or she has obtained the required documents, as well as Form DS-230 Part 1, the NVC or consulate will schedule a visa interview and will send a set of documents called the Appointment Package for Immigrant Visa Applicants to the intending immigrant or his or her

38 39 40 41 42

22 CFR § 42.65; 9 FAM n.3 to 22 CFR § 42.65. 22 CFR § 42.65(b). Ignatius and Stickney, Immigration and the Family, at 9-31 (Rel. # 6, 6/2001). 22 CFR § 42.65(d). Although this form will be used shortly, as of May 2002 is still is not yet being used.

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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. Notice of the date and time of the interview, of the visa processing fees, and any other instructions particular to that consulate), and other supplemental information. The current visa application fee is $260, and the fee for the visa issuance is $65. Form DS-230, Application for Immigrant Visa, Part 2. This part of the form requests information on the visa applicant's present address, residence address in the United States, and intended port of entry; whether the applicant is inadmissible under any of the applicable grounds; and whether the applicant ever applied for an immigrant visa in the past. It should be completed prior to the interview and signed in front of the consular officer. Medical Examination Instructions and Applicant's Statement of Medical History, which asks whether the applicant has ever had certain diseases or been diagnosed with certain medical conditions.

·

·

Consulates have different procedures and requirements for satisfying the medical examination. Most will schedule the applicant to meet with a specific doctor in the consular district prior to the interview. In all cases, however, the applicant must have the examination conducted by a designated doctor, called a panel physician, located in the country where the interview takes place.43 The applicant brings the results of the examination in a sealed envelope to the consular interview. Vaccination requirements are an important part of the examination. A visa applicant who has had the required vaccinations may bring a copy of his or her vaccination records to the medical examination. 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 United States Department of Health and Human Services.44 If a panel physician finds that a prospective immigrant falls under the communicable disease, physical or mental disorder, or drug abuse or addiction inadmissibility ground, he or she will issue a "Class A" medical certificate, noting the condition.45 The prospective immigrant may appeal this finding to the INS.

43 44

22 CFR § 40.11.

9 FAM N4.5 to 22 CFR § 42.66. 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. 42 CFR § 34.2(d).

45

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If this is done, a medical review board is convened, and the applicant may bring his or her own medical experts to testify.46

§ 8.7 THE CONSULAR INTERVIEW During the interview the consular official will confirm the information contained in the DS-230 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 prevent approval or require a waiver, and determine whether the applicant is likely to become a public charge. The applicant will be questioned under oath.47 If the applicant is inadmissible for a ground that is waivable, the consular office will accept the waiver application at this time. The consulate will then forward the I-601 or I-212 to the INS overseas processing office for adjudication. The consulate will not issue a visa to the applicant unless and until the INS grants the waiver. 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.48 Once the applicant has obtained the necessary documentation, the case will be reconsidered.49 If no action is taken on the case for one year after the interview, the case is usually closed.50 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.51 If the consular officer requests information or documentation that you believe is inappropriate or unnecessary, communicate directly with the consular post, by e-mail, 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.

§ 8.8 REVIEW OF VISA DENIALS When a consular officer refuses an immigrant visa, he completes Form DS-194, Refusal Letter and Refusal Worksheet.52 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.53

46 47 48 49 50 51 52 53

42 CFR § 34.8(a), (c). 9 FAM PN2 to 22 CFR § 42.65. 22 CFR § 42.81(b). 22 CFR § 42.81(e). 22 CFR § 42.83(b). 22 CFR § 42.83(d). 9 FAM PN1.1 to 22 CFR § 42.81. 22 CFR § 42.81(b); 9 FAM PN1.1 to 22 CFR § 42.81.

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There is less review of a consular officer's refusal to grant a visa than there is of the INS'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 designated alternate, who must review the decision without delay.54 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 Department for an advisory opinion or (2) assume responsibility for final action on the case and issue a new decision.55 An applicant who believes that the refusal was erroneous may seek intervention from officials at the State Department Visa Office in Washington, DC., by fax number (202) 6631442. For an advisory opinion on a specific legal issue, write to Chief of Advisory Opinions, Visa Office, SA-1 Room L-601, Department of State, Washington, DC 20520. His fax number is the same as that listed above.

§ 8.9 WHAT CAN HAPPEN AT THE BORDER? When the visa holder arrives at the United States port of entry, an INS 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.56 If the inspector is satisfied that the visa holder is both eligible for the visa and admissible, the INS 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 INS office with jurisdiction over the new immigrant's residence will extend the stamp. If the INS 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.57 If the visa holder is unable to overcome the INS's belief that he or she is inadmissible, however, he or she will be placed into removal proceedings. If the INS 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 INS determines admissibility and the visa holder may be removed on the INS's finding without a hearing before an Immigration Judge.58 If the INS charges the visa holder with

54 55 56 57 58

22 CFR § 42.81(c); 9 FAM PN1.1(a)(5) to 22 CFR § 42.81. 22 CFR § 42.81(c); 9 FAM PN1.1(a)(5) to 22 CFR § 42.81. INA § 235. INA § 235.2(b)(3) and (c). INA § 238(a).

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inadmissibility on any other ground, however, the visa holder will be given a removal hearing before the Immigration Judge.59

§ 8.10 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.

59

INA § 240.

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CHAPTER 9 CONDITIONAL PERMANENT RESIDENCE AND ABUSED IMMIGRANTS

Contents 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 9.9 Introduction ........................................................................................................................ 9-1 Conditional Resident Status ............................................................................................... 9-2 Termination of Conditional Status by the INS During the Two-year Conditional Period. 9-6 Removing Conditional Status through a Joint Petition or Waiver ..................................... 9-7 Petitions and Waivers Filed for Children......................................................................... 9-16 INS Interview ................................................................................................................... 9-17 Approval of the I-751 Petition ......................................................................................... 9-18 Denial and Review in Removal Proceedings ................................................................... 9-19 Filing a VAWA Self-Petition in lieu of Proceeding with an Application for a Waiver of the Joint Petition Requirement ............................................................................................... 9-19 9.10 INS Notice Requirements................................................................................................. 9-20 9.11 Conclusion........................................................................................................................ 9-20

§ 9.1 INTRODUCTION In Chapter 4, we discussed self-petitioning. 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. 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. Example: Elvia, a citizen of Egypt, marries Ron, a United States citizen, in 1999. Ron files an I-130 Petition for Alien Relative on Elvia's behalf, and the INS approves Ron's petition, as well as Elvia's application for adjustment of status. 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).

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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 CONDITIONAL RESIDENT STATUS BASIC PRINCIPLES Noncitizen spouses who immigrate through marriage to a U.S. citizen must first obtain "conditional permanent resident" status before they achieve the "unconditional" rights of other permanent resident aliens.3 This "conditional" status is imposed on noncitizens who obtain LPR status if that status is based on a marriage that occurred within two years of their (1) admission to the United States as a permanent resident or (2) adjustment to permanent resident status within the United States. 4 Conditional status is also imposed on the noncitizen 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 During the two-year conditional residence period, these individuals have the same rights, privileges, and responsibilities as other permanent residents.6 However, conditional permanent residents must take additional steps at the end of the second year in order to preserve permanent resident status. A conditional resident will be issued a permanent resident card (INS 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. Second, the back of the card states when the card expires -- two years after the date of admission as a conditional resident.7 The standard procedure is that, at the end of the two-year period, the couple files a "joint petition" to have the condition removed.8 The requirements for the joint petition are discussed

3 4 5 6 7 8

INA § 216(a)(1). INA § 216(g)(1). INA §§ 216(a)(1), (g)(2). 8 CFR § 216.1. Ignatius and Stickney, Immigration Law and the Family, at 5-3 (Release # 4, 6/99). INA § 216(c).

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below. If the INS grants this petition and removes the conditional status, the conditional resident spouse is accorded full LPR status.9 If a joint petition cannot be filed due to the death of the USC or LPR spouse or the termination of the marriage through divorce or annulment, however, or if a joint petition should not be filed because of an abusive situation, the conditional permanent resident can apply for a waiver of the joint petition requirement.10 If that waiver is granted, then the conditions are removed and full LPR status granted.11 The waiver requirements and application procedure are set out below. 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, based upon the abuse her spouse has inflicted on her. If the waiver is granted, the conditions on her status will be removed and she will have full permanent resident status. During the two year conditional period, the INS 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.12 If the INS terminates the conditional status during the two-year period or if the INS 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.13 Not all noncitizen spouses are subject to conditional residence The conditional residence provision affects only noncitizen spouses who are admitted as immigrants on or after November 10, 1986, and whose marriage occurred less than two years before they either were admitted to the United States or adjusted status here.14 In addition, the law applies only to noncitizen spouses who are the direct beneficiaries of an immigrant petition.15 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).

9

INA § 216(c)(3)(B). INA § 216(c)(4). 11 Id. 12 INA § 216(b)(1). 13 INA § 216(b)(2); 8 CFR § 216.3(a). 14 INA § 216(g)(1). 15 Id.

10

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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. 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 though 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. VAWA self-petitioners are not subject to conditional permanent residence.16 As a practical matter, only spouses of USCs and their derivative beneficiaries are subject to conditional permanent residence. This is because of the long delays for immigrant visas under the preference categories. For example, as of May 2002, the second preference visa 2A category (spouses and children of LPRs) was backlogged more than five years for every country. This means that spouses of LPRs will have been married more than two years by the time they are eligible for an immigrant visa. They will 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. The individual should inform the INS inspector that he or she is seeking admission as a permanent resident without conditions, because the marriage occurred more than two years before. Example: Maria, from Italy, marries Vladimir, a USC, in April 2000. She obtains an immigrant visa at a U.S. consulate in March 2000, and the consulate notes that she is subject to conditional permanent residence. Maria does not come to the United States on her immigrant visa, however, until May, 2002. Her marriage is therefore more than two years old at the time she obtains permanent residence, and she is 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 the INS 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 the INS's discretion and depends on the reasons supplied. If the only reason for rescheduling the interview is to avoid the conditional residence requirements, the INS 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

16

8 CFR § 216.1.

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United States as conditional residents and will need to petition at the end of two years for removal of the condition.17 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 will 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 18.18 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. 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.19 Because of the delay in priority dates, spouses of LPRs will not receive immigrant status until the marriage is more than two years old. Thus, as a practical matter, children immigrating through their parents' marriage to an LPR will 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.20 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 alien'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.21 If the noncitizen parent's status is terminated during these two years based on divorce, annulment, or a determination by the INS that the marriage is fraudulent, the conditional resident status of the children will also terminate.

17 18

INA §§ 216(a)(1); (g)(2). INA § 101(b)(1)(B). 19 INA § 204(d). 20 INA § 216(g)(1). 21 8 CFR § 216.4(a)(2).

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§ 9.3 TERMINATION OF CONDITIONAL STATUS BY THE INS DURING THE TWO-YEAR CONDITIONAL PERIOD The INS 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.22 Before making such a finding, the INS must send a formal written notice to the conditional resident notifying him or her of the agency's intention to terminate the status.23 If the INS terminates the conditional status based on damaging information that the noncitizen cannot reasonably be expected to know, then the INS must provide him or her an opportunity to review and rebut the evidence on which it is relying.24 When the INS 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, the INS will issue a Notice to Appear (NTA), which initiates removal proceedings, at the same time it issues the termination notice,25 because termination of conditional permanent residence is a deportation ground.26 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.27 At the removal hearing, the INS has the burden of proving by a preponderance of the evidence that the alien is not entitled to conditional resident status.28 This is a lower burden of proof than in other removal proceedings based upon deportation grounds, where the INS 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-751.29 These applications may be filed either before or after the two-year conditional residence period has expired,30 although the better course of action is to file them prior to expiration of the conditional period. Even if removal proceedings have been commenced, the court should continue proceedings to give the INS time to adjudicate the waiver application if the conditional resident appears to be eligible for a waiver.31 If the INS grants the

22 23

INA § 216(b)(1). Id. 24 8 CFR § 216.3(a). 25 Id. 26 INA § 237(a)(1)(D). 27 8 CFR § 216.3(a). 28 INA § 216(b)(2); 8 CFR § 216.3(a). 29 Letter, Edward Skerrett, Chief, Immigrant Branch, INS Adjudications, HQ 216 - C (Dec. 10, 1991), reprinted in 70 Interpreter Releases 272 (March 1, 1993). 30 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); In re Stowers, 22 I & N Dec. 6-5 (BIA 1999). 31 Matter of Mendes, supra n. 30.

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waiver, the conditions on the alien's permanent resident status will be removed effective the second anniversary of the alien's admission for permanent residence.32

§ 9.4 REMOVING CONDITIONAL STATUS THROUGH A JOINT PETITION OR WAIVER Within 90 days before the second anniversary of the date on which the person obtained conditional residence, the conditional resident must file a Petition to Remove the Conditions on Residence (Form I-751).33 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. If the marriage has ended due to the death of the USC or LPR spouse or through divorce or annulment, however, or if the joint petition should not be filed because of an abusive situation, then the conditional resident must file Form I-751 alone, as an application for a waiver of the joint filing requirement.34 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.35 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.36 The Immigration Judge is authorized to stay removal proceedings to allow the conditional resident to file the joint petition.37 Filing Form I-751 as a joint petition When filing Form I-751 as a joint petition to remove the conditions, the conditional resident will check box "a" in Part 2 of Form I-751, and both spouses will sign in Part 7 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; (2) they did not enter into the marriage to procure an immigration benefit; and (3) no fee was paid to anyone other than an attorney in return for filing the petition. Filing Form I-751 as a waiver of the joint petition requirement 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 four grounds: (1) the marriage was entered in good faith, but the spouse has died;

32 33

INA § 216(c)(3)(B). INA § 216(c)(1)(A). 34 8 CFR § 216.4(a)(1). 35 8 CFR § 216.4(a)(6). 36 INA § 216(c)(2)(B); 8 CFR § 216.4(a)(6). 37 INA § 216(d)(2)(C).

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(2)

the marriage was entered in good faith, but the marriage has been terminated by divorce or annulment; the marriage was entered in good faith, but the conditional resident has been battered or subjected to extreme cruelty by the citizen spouse; or termination of permanent residence and deportation would result in extreme hardship.38

(3)

(4)

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 c, d, e, and/or f in Part 2 of the form. 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 the Immigration Judge has jurisdiction only to review INS' decisions on waivers, not to consider a waiver application filed for the first time before the Immigration Court.39 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 the INS. The Immigration Judge may agree, however, to continue the proceedings in order to allow the INS to consider additional waiver grounds. Three of the possible waiver grounds require that the applicant prove that the marriage was entered into in good faith. The INS will consider evidence concerning the amount of commitment each party has shown to the marital relationship.40 To prove good faith, the INS 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.41 This is essentially the same type of proof a noncitizen spouse seeking conditional residence or a VAWA self-petitioner needs to provide to establish that his or her marriage is bona fide. 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 the INS, the petitioners should include evidence such as joint tax returns, insurance policies, health care plans, and evidence that they 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 either spouse has authority to make charges, joint check-cashing cards, or even joint video club membership cards are other possibilities.

38 39

INA § 216(c)(4); 8 CFR § 216.4(a)(1). Matter of Anderson, 20 I & N Dec. 888 (BIA 1994). 40 8 CFR § 216.5(e)(2). 41 Id.

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Death of the Spouse A conditional resident submitting a waiver based on the death of his or her spouse should submit evidence of the spouse's death. The conditional resident must also submit documentary evidence establishing that the marriage was legitimate. In these cases where a spouse has died, the INS will nearly always grant the waiver without requiring an interview. Divorce/Annulment Waiver The joint petition requirement can also 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.42 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 initiate the divorce or annulment proceedings.43 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 INS may consider events subsequent to the marriage in determining whether the parties entered into the marriage in good faith. The INS has allowed conditional residents to apply for this waiver if one of the parties has filed for dissolution but the divorce is not yet final. In such cases, the INS has accepted the waiver petition but delayed its adjudication until it received court documents indicating the marriage has been officially dissolved.44 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 alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her USC or LPR spouse or parent.45 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.

42 43

INA § 216(c)(4)(B). INA § 216(c)(4)(B); 8 CFR § 216.5(e). 44 See, Ignatius and Stickney, Immigration Law and the Family, at 5-30 (Release # 6, 6/2001). 45 INA § 216(c)(4)(C).

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INS' regulations clarify that the battered spouse waiver is available to conditional residents, regardless of their current marital status.46 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. As a practical matter, the battered spouse waiver will probably be filed only by conditional residents who are not seeking divorce. Spouses who are divorced or have filed for divorce would normally file for the "divorce or annulment" waiver due to its more relaxed proof requirements. 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. This means that both current and former conditional resident aliens can take advantage of the 1990 statutory changes. To be eligible for the waiver, the person must not have departed the United States after his or her conditional resident status ended.47 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.48 Acts of violence include psychological or sexual abuse or exploitation, including rape, molestation, incest [if the victim is a minor], or forced prostitution.49 If the conditional resident alleges physical abuse, he or she may submit any credible and relevant evidence.50 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 personnel.51 The applicant should also submit a detailed declaration, describing the abuse and facts to establish other elements of the visa. In general, advocates should gather and submit the same sorts of documentation submitted to establish abuse for purposes of a VAWA selfpetition. The INS regulations refer to "extreme cruelty" as "extreme mental cruelty."52 Waiver applicants alleging extreme mental cruelty must furnish independent evidence from "a professional recognized by the [INS] as an expert in the field."53 INS has determined that only licensed clinical social workers, psychologists, and psychiatrists fit that definition.54 The evaluation, as well as the waiver petition itself, must contain the professional's name, address, and identification number, and the date his or her professional license expires.55

46 47

8 CFR § 216.5(e)(3)(ii). Id. 48 8 CFR § 216.5(e)(3)(i). 49 Id. 50 INA § 216(c)(4). 51 8 CFR § 216.5(e)(3)(iii). 52 8 CFR § 216.5(e)(3). 53 8 CFR § 216.5(e)(3)(iv). 54 8 CFR § 216.5(e)(3)(vii). 55 8 CFR § 216.5(e)(3)(v).

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The INS must keep information contained in the waiver petition or supporting documents in strict confidence.56 It may not release the information to any party without a court order or the written consent of the alien.57 Information may be released only to the applicant, his or her authorized representative, an officer of the INS, or any state or federal law enforcement agency.58 Extreme Hardship Waiver The conditional resident spouse may also request a waiver of the joint petition requirement based on "extreme hardship."59 Although the statute is silent about whom the extreme hardship must affect, the INS 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.60 The statute and regulations allow the INS to consider only hardship factors that arose after the individual's entry as a conditional resident.61 For example, the INS 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. The Board of Immigration Appeals, 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 Board 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.62 Under the Board'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.63 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.64 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.

INA § 216(c)(4); 8 CFR § 216.5(e)(3)(viii). Id. 58 Id. 59 INA § 216(c)(4)(A). 60 "INS Responds to Marriage Fraud Questions," Question No. 57, reprinted in 67 Interpreter Releases 341 (March 19, 1990). 61 INA § 216(c)(4); 8 CFR § 216.5(e)(1). 62 Matter of Cervantes, 22 I & N Dec. 560 (BIA 1999). 63 Id. at 7. 64 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).

57

56

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The BIA has also stated that the following factors, taken alone, should not be considered to qualify as extreme hardship: birth of citizen children,65 significant reduction in standard of living,66 and lower quality medical or educational facilities in the native country.67 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.68 When analyzing a claim of extreme hardship, the INS 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.69 For this reason, it is very important to document all the hardship factors in a client's case. The Board of Immigration Appeals has identified the following as factors to consider in evaluating extreme hardship in the context of suspension of deportation.

· · · · · · · · · · · · ·

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

Matter of Pilch, supra n. 64; Matter of L-O-G-, supra n.64. Matter of L-O-G-, supra n. 64. 67 Matter of Correa, 19 I & N Dec. 130 (BIA 1984); Matter of Pilch, supra n. 64; Matter of Kim, 15 I & N Dec. 88 (BIA 1974). 68 Matter of O-J-O-, supra, n. 64. 69 Matter of Pilch, supra n. 64; Matter of L-O-G-, supra n. 64; Matter of Ige, 20 I & N Dec. 880 (BIA 1994); Matter of O-J-O-, supra n. 64; 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)].

66

65

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The applicant's immigration history.70

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, the INS and the Executive Office for Immigration Review (EOIR) have set out special hardship factors to be considered, reflecting the special issues involved in a domestic abuse situation.71 These factors are:

· ·

·

·

·

·

· ·

70

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; 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

See INS v. Wang, 450 U.S. 139 (1982); 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. 596 (BIA 1978). 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)]. 71 The INS' guidance was first issued in the form of a memorandum concerning VAWA self-petitions. 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].

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Any other economic factors in the United States or abroad.72

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.73 A protection order is of little use abroad if the abuser travels back and forth to the victim's homeland.74 Experts also relate that the effect on children of domestic violence in the household has been considered a significant hardship factor.75 Procedures for Filing the Petition The I-751 petition must be filed by mail with the INS service center that has jurisdiction over the alien's U.S. residence.76 The filing fee is $145. If the conditional resident is in removal proceedings at the end of the two-year period, the petition nevertheless should be filed with the INS rather than with the immigration judge. In the removal proceedings, however, the immigration judge has authority to review the INS' decision regarding the joint petition or the waiver application.77 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 the joint petition requirement, he or she will receive a filing receipt. When the conditional permanent residence visa expires at the end of two years, this receipt serves as evidence of the person's continued lawful status.78 Filing before or after expiration of the two-year conditional period Under the statute and regulations, a joint petition to remove the condition should be filed within the ninety days preceding expiration of the two-year conditional residence period. If the conditional resident has failed to file a timely joint petition or waiver application, he or she may still attempt to file it late with the INS district director, even if an NTA has been issued. The INS can accept a late filing if it finds that there is good cause to do so.79 The conditional resident must state in writing the specific reasons why the petition was not filed before the end of the two-year period. The instructions to Form I-751 itself state that to be allowed to file a late petition, the conditional resident must not have been at fault, that the delay must have been "due

8 CFR § 240.58(c). 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). 74 Id. 75 Id. 76 8 CFR § 216.4(a)(3) (when I-751 filed as joint petition to remove condition); 8 CFR § 216.5(c) (when I-751 filed as application for waiver of joint petition requirement). 77 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). 78 See, Ignatius and Stickney, Immigration Law and the Family, at 5-45 (Release # 4, 6/99). 79 8 CFR § 216.4(a)(6).

73 72

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to extraordinary circumstances" beyond the alien's control, and that the length of the delay must have been reasonable.

WARNING: 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.

The INS will routinely accept late petitions that are submitted within a few days or weeks after the deadline. When a joint petition or waiver is filed several months late, however, the INS 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 alien can ask the judge to continue the proceedings until the INS makes a decision. If the INS approves the joint petition or waiver application, the immigration judge can terminate the proceedings upon a joint motion filed by the alien and the INS.80 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, the INS will adjudicate a waiver application filed early and, if it approves the waiver, will remove the conditional status at that time.81 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. Moreover, if the INS denies the joint petition, the conditional resident can then submit a waiver application.82 Failing Marriages Even if a marriage is failing and no longer viable, the INS may approve a jointly filed I751 petition if it believes that the marriage was entered into in good faith.83 In other words, if the marriage is failing at the end of the two-year period -- even if the parties have separated -- the INS must still accept a timely filed joint petition or waiver application. The parties' conduct after they enter the marriage should affect the INS' decision only if it bears on the parties' state of mind at the time they were married.84

80 81

Id. In re Stowers, 22 I & N Dec. 605 (BIA 1999); Legal opinion of William Cook, INS Acting General Counsel, CO 216-P (Jan. 9, 1990), reprinted in 67 Interpreter Releases 168 (Feb. 5, 1990). 82 Legal opinion of William Cook, supra n. 81. 83 "INS Answers Marriage Fraud Questions," Questions 38-40, reprinted in 67 Interpreter Releases 334, 339 (March 19, 1990). 84 Matter of McKee, 17 I & N Dec. 332 (BIA 1980).

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If the parties are in annulment or divorce proceedings at the time they are due to file the joint petition, the INS's position is that the conditional resident should file a waiver application rather than a joint petition.85 The INS should process a conditional resident's "divorce or annulment" waiver, even if he or she does not yet have a final divorce or annulment decree. In lieu of the final decree, the INS will accept a copy of the petition for divorce or annulment, together with other pertinent information.86 The conditional resident should offer to update the INS record with any future court orders. If the dissolution proceeding has not resulted in a final divorce or annulment decree by the time of the interview, the INS can either suspend adjudication or make a decision based on the evidence presented.

§ 9.5 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. The INS regulations use the term "children" when referring to the procedures for removing the condition, but the statute refers to "sons and daughters,"87 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 I751 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. However, to be included in the parent's petition, the child must have been granted conditional resident status within 90 days of the parent's being granted the status,88 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.89 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 2 on Form I-751 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

85 86

See, Ignatius and Stickney, Immigration Law and the Family, at 5-30 (Release # 6, 6/2001). Id. 87 INA §§ 216(a)(1), (g)(2). 88 8 CFR § 216.4(a)(2). 89 Id.

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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 INS's 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.90 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.91 The child need not submit evidence of extreme hardship unless INS requests it.92 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, the INS will adjudicate the child's waiver I-751 petition for a waiver independently of the parent's case.93

§ 9.6 INS INTERVIEW When Form I-751 is filed with an INS 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.94 If the service center director is not satisfied, he or she will forward the petition to the INS district director who has jurisdiction over the applicant's place of residence so that an interview may be conducted.95 Experience has shown that in the majority of cases where the spouses filed a joint petition with detailed documentation, the INS has waived the interview. On the other hand, in cases where the conditional resident filed a waiver application, the INS has been more likely to require a personal interview. In addition, the INS conducts interviews in almost all cases where fraud is suspected.96

Id. See, Ignatius and Stickney, Immigration Law and the Family, at 5-33 (Release # 4, 6/99). 92 Id. 93 Id. at 5-33, 5-43 - 5-44 (Release # 4, 6/99). 94 8 CFR § 216.4(b)(1). 95 Id. 96 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, D.C. (June 19, 1989)).

91

90

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Before the INS can deny an I-751 application, it must schedule an interview to give the affected conditional resident an opportunity to present evidence or rebut adverse evidence.97 Therefore, a conditional resident who receives an interview notice should take additional affidavits or documents to the interview attesting to the validity of the marriage or, 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, the INS will deny the petition or waiver application, terminate conditional resident status, and start removal proceedings.98 The INS must provide the conditional resident with written notification of and specific reasons for the termination.99 In most cases, an NTA will accompany the termination notice. The conditional resident can ask the INS to reconsider the decision to terminate, but he or she bears the burden of showing valid reasons for having failed to comply with the interview requirements.100 The conditional resident can submit a written request that the interview be rescheduled or waived.101 The INS district director 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.

§ 9.7 APPROVAL OF THE I-751 PETITION If the INS approves the I-751 petition, the conditional status will be removed.102 The INS will send a written notice of the decision to the conditional resident requiring him or her to report to the appropriate INS office for processing to receive a new permanent resident card.103 At that time the conditional resident will surrender the I-551 that indicates his or her previous status as a conditional resident.104 In the same way as any other permanent resident, the conditional resident alien will be eligible to file for naturalization three years after his or her date of adjustment of status or admission as a conditional resident if he or she married a U.S. citizen and is still married, or five years after the admission date if he or she married a permanent resident.105

97 98

Id. 8 CFR § 216.4(b)(3). 99 Id. 100 Id. 101 8 CFR § 216.4(c)(3). 102 INA § 216(c)(3)(B). 103 8 CFR § 216.4(d)(1). 104 Id. 105 INA § 216(e).

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§ 9.8 DENIAL AND REVIEW IN REMOVAL PROCEEDINGS If the INS denies the I-751 petition, it must provide written notice of the decision stating the reasons for the denial.106 The INS will instruct the conditional resident to surrender any I-551 card in his or her possession. The alien's lawful immigration status will terminate, and he or she will be served with an NTA starting removal proceedings.107 There is no appeal available from the INS district director's 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.108 In these proceedings, the INS bears the burden of proving by a preponderance of the evidence that the information contained in the petition is false and that its denial of the petition was proper.109 The immigration judge may review the INS' denial of the joint petition or waiver application only if the conditional resident previously filed the petition or application with the INS; the I-751 petition cannot be filed for the first time with the immigration judge.110 According to the INS general counsel, if the immigration judge is reviewing the INS' denial of a waiver petition, the noncitizen bears the burden of proving that the waiver should be approved.111 Although the INS 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. Although the regulations make no specific provision for an administrative appeal of an INS district director's denial of an I-751 petition, the noncitizen can ask the district director to certify the case to the INS 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).

§ 9.9 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 selfpetition, 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

8 CFR § 216.4(d)(2). Id. 108 Id. 109 Id. 110 Matter of Lemhammad, 20 I & N Dec. 316 (BIA 1991). 111 Legal opinion, Grover Rees III, INS General Counsel, CO 216-C (Dec. 3, 1991), reprinted in 69 Interpreter Releases 627 (May 18, 1992).

107 106

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residence for purposes of naturalization. If the INS 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 the INS, and if it does not appear that the petition will be successful on review, then filing a VAWA self-petition may be an option, if the individual is statutorily eligible.

§ 9.10 INS NOTICE REQUIREMENTS The INS is required to provide notice to affected aliens concerning the new conditional status­related requirements.112 First, at the time the alien obtains conditional resident status, the INS must provide notice "respecting the provisions of this section," including what the alien must do to have the conditional status removed.113 Then the INS is required to provide similar notice approximately 90 days before the end of the two-year conditional residence period.114 However, even if the INS fails to provide the required notice, it can still terminate a conditional resident's status and start removal proceedings against him or her.115 Nor does such failure relieve the conditional resident of the requirement to file the I-751 petition.116

§ 9.11 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.

112 113

INA § 216(a)(2); 8 CFR § 216.2. INA § 216(a)(2)(A). 114 INA § 216(a)(2)(B). 115 INA § 216(b)(2); 8 CFR § 216.2(c). 116 Id.

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CHAPTER 10 CANCELLATION OF REMOVAL FOR ABUSED IMMIGRANTS

Contents 10.1 Introduction ...................................................................................................................... 10-1 10.2 A Comparison of VAWA Self-Petitions with VAWA Suspension and VAWA Cancellation ........................................................................................................ 10-2 10.3 The Difference Between VAWA Cancellation and VAWA Suspension......................... 10-2 10.4 Persons Eligible to Apply for VAWA Cancellation of Removal or Suspension of Deportation .................................................................................................................... 10-4 10.5 Requirements for Cancellation of Removal or Suspension of Deportation ­ Overview . 10-5 10.6 Establishing the Family Relationship............................................................................... 10-5 10.7 Battery or Extreme Cruelty .............................................................................................. 10-8 10.8 Three Years Continuous Physical Presence ..................................................................... 10-9 10.9 Extreme Hardship........................................................................................................... 10-10 10.10 Ineligibility under Certain Inadmissibility and Deportability Bars................................ 10-13 10.11 Good Moral Character.................................................................................................... 10-14 10.12 Applying for VAWA Suspension or Cancellation ­ The Forum-Proceedings before the Immigration Judge.................................................................................................... 10-16 10.13 Documentation and the "Any Credible Evidence" Standard ......................................... 10-18 10.14 The Contents of the Application .................................................................................... 10-19 10.15 The Effect of a Grant of VAWA Suspension or Cancellation ....................................... 10-23 10.16 Denials, Appeals, and Motions to Reopen ..................................................................... 10-25 § 10.1 INTRODUCTION The Violence Against Women Act of 19941 provided two principal ways for abused spouses and children of United States 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. In this chapter, we will discuss the second avenue of relief - - VAWA suspension of deportation2 and VAWA cancellation of removal.3 A grant of cancellation of removal or 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. The application may be made only in proceedings before the Immigration Judge, as a form of relief from deportation or removal.4 To be eligible for VAWA suspension or VAWA cancellation, the applicant must be the abused spouse or child, or

1 2

3 4

Violence against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902-1955 (hereinafter VAWA ). 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. INA 240A(b)(2). 8 CFR 240.20(b), 240.11(a)(1).

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non-abused parent of an abused child, of a United States citizen (USC) or lawful permanent resident (LPR), must have been physically present in the United States for at least three years and must have been of good moral character during that time, the applicant or his or her child or parent would suffer extreme hardship if the applicant had to leave the United States, and the case must warrant a favorable exercise of the Attorney General's discretion. We will go into more detail about each of these requirements in this chapter. We will also highlight the improvements to VAWA suspension and cancellation made by the Battered Immigrant Women Protection Act of 2000.5

§ 10.2 A COMPARISON OF VAWA SELF-PETITIONS WITH VAWA SUSPENSION AND VAWA CANCELLATION Both VAWA self-petitions and applications for cancellation or suspension lead to LPR status for the abused immigrant. In most cases, 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 or that departure from the United States would cause extreme hardship. Some abused immigrants, however, will be eligible only for 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, but may be eligible for VAWA cancellation or suspension. 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, but can still apply for VAWA cancellation or suspension. An individual who is eligible to self-petition or who has an approved self-petition, 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 self-petition will lend credence to the cancellation or suspension claim, but will not allow the applicant to adjust status 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 are no longer eligible to self-petition, but may be eligible for VAWA cancellation or suspension.

·

§ 10. 3 THE DIFFERENCE BETWEEN VAWA CANCELLATION AND VAWA SUSPENSION It is useful at the outset to explain the differences between cancellation of removal and suspension of deportation. Suspension of deportation is a form of relief available under the Immigration and Nationality Act (INA) as it existed prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA).6 Traditional suspension provided relief for

5

6

The Battered Immigrant Women Protection Act of 2000, div. B [Violence against Women Act of 2000], Pub. L. No. 106-386 [Victims of Trafficking and Violence Protection Act of 2000], 114 Stat. 1464, at 1501-1513. Division C of the Omnibus Appropriations Act of 1996 [H.R. 3610], Pub. L. No. 104-208, 110 Stat. 3009.

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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.7 VAWA special rule suspension offered relief from deportation under a more generous standard for the battered spouses, sons, and daughters of USCs or LPRs and for the noncitizen parents of abused children of USCs or LPRs.8 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.9 IIRAIRA replaced suspension of deportation with a form of relief from removal called "cancellation of removal Part B."10 Similarly, VAWA suspension of deportation was replaced with a special form of cancellation of removal for battered spouses and children of USCs and LPRs.11 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 spouse, parent or child.12 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.13 Although cancellation of removal has replaced suspension of deportation for most applicants, suspension may still be available to certain respondents who were placed into proceedings prior to IIRAIRA's April 1, 1997, effective date.14 Prior to April 1, 1997, these proceedings were called "exclusion hearings" for persons charged with being inadmissible15 (persons at the border or who had not made a technical "entry"), and "deportation hearings" for persons who had entered the United States but were charged with being deportable.16 Aliens in deportation proceedings who were eligible for suspension of deportation would apply for it as a form of relief from deportation. After the IIRAIRA effective date, both inadmissibility under INA § 212 and deportability under INA § 237 are determined in removal proceedings,17 where eligible aliens may apply for cancellation of removal as a form of relief from removal. As a

7 8 9 10 11 12 13 14 15 16 17

Former INA 244(a), repealed by IIRAIRA 308(a)(8). INA 244(a)(3), repealed by IIRAIRA 308(a)(8). Id. INA 240A(b)(1). INA 240A(b)(2). INA 240A(b)(1). INA 240A(b)(2). IIRAIRA 309(c). Former INA 236, amended by IIRAIRA 303. Former INA 242, stricken by IIRAIRA 305(a)(1). INA 240A.

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practical matter, most persons applying for VAWA suspension of deportation will have already filed those applications. Amendments enacted in October 2000, however, provide for motions to reopen deportation proceedings for persons newly eligible for VAWA suspension because of the 2000 amendments.18

§ 10.4 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;19 Abused sons and daughters of USCs and LPRs20 Non-abused parents of abused children of USCs or LPRs, even if not married to the abuser, regardless of the child's status;21 Abused "intended spouses" of USCs or LPRs. The term Aintended spouse, added by VAWA 2000, 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.22 Example: Maria has lived with John 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 through 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

18 19 20 21 22 23

INA 240(c)(6)(C)(iv). Former INA 244(a)(3) [suspension], INA 240A(b)(2)(A)(i)(II & III) [cancellation]. Former INA 244(a)(3) [suspension], INA 240A(b)(2)(A)(i)(II & III) [cancellation]. Former INA 244(a)(3) [suspension], INA 240A(b)(2)(A)(i)(II & III) [cancellation]. INA 240A(b)(2)(A)(i)(III). Matter of Garcia, 16 I & N Dec. 623 (BIA 1978).

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§ 10.5 REQUIREMENTS FOR CANCELLATION OF REMOVAL OR SUSPENSION OF DEPORTATION ­ OVERVIEW 24 An applicant for VAWA cancellation of removal must establish that he or she: · · · · · Has been battered or suffered extreme cruelty;25 Has been physically present in the United States for three years before applying;26 Would suffer extreme hardship, or that his or her child or parent would suffer extreme hardship, if the applicant were removed; 27 Has been a person of good moral character during the period of physical presence;28 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) [failure to register and falsification of documents], or (4) [security and terrorism grounds];29 and He or she has not been convicted of an aggravated felony under INA § 101(a)(43).30

·

The requirements for VAWA suspension of deportation are essentially the same as those listed above for VAWA cancellation of removal.31

§ 10.6 ESTABLISHING THE FAMILY RELATIONSHIP 1. Applications by abused spouses of USCs and LPRs

An abused spouse applying for VAWA suspension or cancellation need not be currently married to the abuser. 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. Example: Zoe, a USC, married Martin in 1997, and they were divorced in 1998. 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

24

25 26 27 28 29 30 31

An excellent resource for advocates preparing applications for VAWAsuspension or cancellation is the National Immigration Project s website, nationalimmigrationproject.org., which contains very helpful sample materials and guidance. In addition, advocates may pose questions about particular issues or problems in VAWA suspension and cancellation cases to the National Immigration Project s VAWA listserv, by sending the questions to Gail Pendleton, at [email protected] INA 240A(b)(2)(A)(i). INA 240A(b)(2)(A)(ii). INA 240A(b)(2)(A)(v). INA 240A(b)(2)(A)(iii). INA 240A(b)(2)(A)(iv). INA 240A(b)(2)(A)(iv). Former INA 244(a)(3), repealed by IIRAIRA 308(a)(8).

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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 would make the applicant inadmissible and ineligible for VAWA cancellation.32 2. Applications by abused sons and daughters of USCs and LPRs

An applicant for 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 alien who has been abused by a spouse or parent,33 rather than referring to the term Achild,@ which is someone who is under 21 and unmarried.34 In other words, the statute states that the applicant must be abused by a Aspouse 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. Example: Alejandra is a citizen of Spain and the daughter of Michael, a USC who was very abusive to her during her childhood. Michael never filed any visa petition for Alejandra. Alejandra is now 24. She can no longer self-petition, as she would have had to file a self-petition prior to her 21st birthday. If she is placed in removal proceedings, however, she can apply for cancellation of removal, even though she is over 21. 3. An application for cancellation or suspension by the parent 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 USC or LPR parent. For this type of case, the abused child must meet the definition of [email protected] 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 very 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, however, Winnie will no longer be able to file an application for cancellation, since Arnold would no longer be a child.

32 33 34

INA 240A(b)(2)(A)(iv). INA 240A(b)(2)(A)(i). INA 101(b).

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4.

The immigration definition of "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.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 cancellation based upon abuse by a USC or LPR stepparent. For 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 termination.37 5. No "derivative beneficiaries" for purposes of cancellation or suspension; parole of children and parents.

There are no "derivative beneficiaries" for purposes of cancellation of removal or suspension of deportation. This means that children cannot be included in a grant of cancellation or suspension to their parent. This is so even if in the case of a parent applying as the parent of an abused child. Under the VAWA 2000 amendments, however, the INS is required to parole the grantee's children and, for a child grantee, the grantee's parent, into the United States.38 The parole status will last until adjudication of the parolee's application for adjustment of status.39 Parole for family members is discussed in more detail in Section VI(D) 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 could be included as a derivative. The parent could ask the judge to continue or administratively close the proceedings pending the Vermont Service Center's decision on the self-petition.

35 36 37 38 39

INA 101(b)(1). INA 101(b)(2). Matter of Mowrer, 17 I & N Dec. 613 (BIA 1981). INA 240A(b)(4). Id.

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·

A child who is in proceedings and meets the requirements for 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 cancellation or suspension, the advocate and parent might consider asking the INS to place the child in proceedings to allow him or her to file an application for cancellation or suspension. This should be done only after careful consideration, because of the risks inherent in removal proceedings.

·

6.

Residence with the abuser The applicant is not required to have resided with the abuser.

§ 10.7 BATTERY OR EXTREME CRUELTY The applicant for suspension or cancellation must show that he or she "has been battered or has been the subject of extreme cruelty" perpetrated by the alien's spouse or parent, or that he or she is the parent of an abused child.40 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 INS has issued regulations defining the phrase "battery or extreme cruelty" for purposes of VAWA self-petitioning, and that definition should be equally applicable to applications for VAWA cancellation or suspension. Under the Service's 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."41 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.42 Other abusive acts that may not initially appear violent but are part of an overall pattern of violence are also part of the definition.43 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.44 Several INS memoranda provide further guidance concerning the definition of 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

40 41 42 43 44

INA 240A(b)(2)(A)(i). 8 CFR 204.2(c)(vi) [abused spouses], 204.2(e)(vi) [abused children]. Id. Id. Id.

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abuse.45 A person who has suffered no physical abuse may still be able to establish extreme cruelty.46 The abuse must rise to a certain level of severity, however, to constitute battery or extreme cruelty.47 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.48

§ 10.8 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.49 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 case) does not stop continuous physical presence from accruing, as it does in non-VAWA cancellation cases.50 Commission of a criminal offense that makes the applicant inadmissible or deportable, and commission of an offense under the security and related deportation grounds, however, do stop the accrual of continuous physical presence.51 Example: Eric, a citizen of Norway, came to the United States on January 15, 1999, and has not left the country since that date. In 2001, 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 2001 by the INS, 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 is held on January 30, 2002. 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 January 15, 2002, 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.

45

46 47 48

49 50 51

Aleinikoff, Executive Associate Commissioner, Office of Programs, INS Memo HQ 204-P, April 16, 1996, at 910, re: Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents [reprinted at 73 Interpreter Releases 737 (May 24, 1996)]. Id. Id. 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). INA 240A(b)(2)(A)(ii). INA 240A(b)(2)(A)(ii) and 240A(d)(2). INA 240A(d)(1).

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Second, the rule that continuous physical presence is Ainterrupted,@ or ended, by a single absence of 90 days or more and by aggregate absences of 180 days or more52 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 between the absence and the abuse.53 No absence or portion of an absence connected to the abuse counts towards the 90- or 180- day limits.54 On the other hand, the periods of absence do not count towards the required three years of continuous physical presence.55 Example: Luisa, a citizen of Peru, came to the United States on September 25, 1997, 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. 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 her continuous physical presence. Excluding those 250 days, Luisa has still been in the United States for the required three years.

§ 10.9 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.56 The Executive Office for Immigration Review has issued regulations on factors to be considered in assessing extreme hardship in VAWA cancellation and suspension applications.57 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;

52 53 54 55 56

57

INA 240A(d)(2). INA 240A(b)(2)(B). Id. Id. 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)], and cases cited therein. 8 CFR 240.20(c) [VAWA cancellation] and 240.58(c) [VAWA suspension].

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· · · ·

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; 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.58

Other extreme hardship factors enumerated by the Board 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.59

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.60 A protection order is of little use abroad, if the abuser travels back and forth to the victim's

58 59

60

8 CFR 240.58(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, 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)]. Gail Pendleton and Ann Block, Applications for Immigration Status under the Violence against Women Act, in AILA, I Immigration and Naturalziation Law Handbook 436, 457 (2001-2002).

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homeland.61 Experts also note that a factor that has been found very important is the effect on children of domestic violence in the household.62 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.63 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 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. It is often difficult to obtain information on specific laws and conditions in other countries. It is helpful to review country reports from 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 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.

61 62 63

Id. Id. Matter of L-O-G-, 21 I & N Dec. 413 (BIA 1996); 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)].

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§ 10.10 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.64 These sections are: · § 212(a)(2) - criminal inadmissibility grounds, including: · conviction or admitting commission of crimes of moral turpitude (other than (a) petty offenses and (b) crimes committed both while the alien was under 18 years of age and five years before applying for a visa or admission); · conviction or admitting commission of drug offenses; · conviction of 2 or more offenses for which the aggregate sentences to confinement were 5 years or more; · controlled substance trafficking; · prostitution and commercialized vice; · aliens involved in serious criminal activity who have asserted immunity from prosecution; and · foreign government officials who have engaged in particularly severe violations of religious freedom. § 212(a)(3) - security and related inadmissibility grounds; § 237(a)(1)(G) - marriage fraud; § 237(a)(2) - criminal deportability grounds, including: · · · · · · · · · conviction of one crime of moral turpitude within five years of admission; conviction of multiple crimes of moral turpitude; conviction of an aggravated felony (as defined at INA § 101(a)(43); high speed flight from immigration checkpoint; conviction of controlled substance offenses (other than a single offense of simple possession of 30 grams or less of marijuana); being or having been a drug abuser or addict; conviction of firearms offense; conviction of domestic violence, stalking, or child abuse crimes; and 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 credible threats of violence, repeated harassment, or bodily injury to the protected person or persons.

· · ·

· ·

§ 237(a)(3) - failure to register and document fraud; and § 237(a)(4) - security and related deportability grounds.

64

INA 240A(b)(2)(A)(iv).

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There is a special waiver for ineligibility because of convictions of domestic violence and stalking65 and violations of domestic violence protection orders66 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.67

There is an exception, based on this waiver, from ineligibility for cancellation for abused noncitizens.68 Example: Mari is a citizen of New Caledonia. She came to the United States in 1997 and, in 1998, 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 an exception based on the INA § 237(a)(2)(A)(7) waiver. She appears to qualify for the exception. 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.

§ 10.11 GOOD MORAL CHARACTER The applicant for 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.69 The Immigration Judge, as a matter of discretion, may also inquire into good moral character beyond the statutory period. 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: · · · ·

65 66 67 68 69

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;

237(a)(2)(E)(i). 237(a)(2)(E)(ii) 237(a)(7). 240A(b)(2)(A)(iv). 240A(b)(2)(A)(iii).

INA INA INA INA INA

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· · · · · · · ·

Convicted of, or admits to, committing acts of moral turpitude, other than (1) purely political crimes and (2) petty offenses or crimes 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 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 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.70 This rule is eased somewhat for applicants for VAWA cancellation or suspension.71 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.72 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. Example: Catherine is a victim of domestic abuse inflicted by her LPR husband. She has been in the United States for the last four years. She began drinking after her marriage and is an alcoholic. 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 being a habitual drunkard is a bar to establishing good moral character under INA § 101(f)(1). 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 alcoholism is connected to the abuse she suffered and if the Immigration Judge determines that the waiver is otherwise warranted. 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 INS to conclude that he or she is a person of good moral character. The applicant should state in his or her affidavit 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

70 71 72

INA 101(f). INA 240A(b)(2)(C). Id.

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jurisdiction where the applicant has lived for six months or more during the past three years. The instructions also recommend that the applicant submit affidavits 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.

§ 10.12 APPLYING FOR VAWA SUSPENSION OR CANCELLATION -THE FORUM - PROCEEDINGS BEFORE THE IMMIGRATION JUDGE An application for cancellation may be filed only in removal proceedings, and an application for suspension may be filed only in deportation proceedings.73 A difficult strategic decision must be made in the case of abused immigrants who have never been placed in proceedings and who are not eligible to self-petition. These individuals may want to consider asking INS to place them in removal proceedings, so that they may apply for cancellation. This is a risky and traumatic step, and should be undertaken only when the applicant has a very strong case. The following overview of Section 240 removal proceedings is presented as background. Advocates representing an abused immigrant in removal or deportation proceedings should receive special training and refer to a good manual on the subject prior to undertaking representation.74 Only attorneys and experienced fully accredited BIA representatives should handle removal proceedings. In this manual, we will discuss only removal proceedings under Section 240 of the Immigration and Nationality Act. It is important to know, however, that Section 240 proceedings are not the only type of removal proceedings under the INA. There are special forms of proceedings for persons with certain criminal convictions,75 for persons suspected of inadmissibility under the security and related grounds,76 and for aliens suspected of terrorism.77 In addition, there are expedited removal proceedings for persons arriving in the United States if they do not have proper entry documents or if the INS believes they are inadmissible because of fraud or misrepresentation.78 Applying for VAWA cancellation or removal is not possible in most of these proceedings, although it might be possible to obtain INS' agreement to refrain from instituting removal proceedings in order to allow the individual to file a VAWA selfpetition. Suspension and cancellation are forms of relief from removal or deportation. Thus, before a respondent may apply for suspension or cancellation, the Immigration Judge must determine that he or she is removable or deportable.

73 74

75 76 77 78

8 CFR 240.20(b) and 240.11(a)(1). Two good manuals for persons preparing to represent people in removal proceedings are: The Catholic Legal Immigration Network, Inc., Relief from Removal: a Practitioner s Guide, and The Immigrant Legal Resource Center, Guide for Immigration Advocates, particularly Chapter 10. INA 238. INA 235(c). INA 501, et seq. INA 235(b).

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Removal proceedings under INA § 240 commence when the charging document, known as a Notice of Appear (NTA), on Form I-862, is filed with the Immigration Court.79 The NTA either gives the date, time, and location of the first hearing in the proceedings, or states that the alien (called "respondent" in these proceedings) will be notified of the date, time, and place of the hearing.80 It also advises the respondent of the nature of the proceedings and the charges of inadmissibility or deportability.81 The advocate should file a Freedom of Information Act (FOIA) request, on INS Form G639, for the respondent with the INS office having jurisdiction over the proceeding.82 This should be done as soon as possible, since the INS' responses to FOIA requests are frequently delayed. This will ensure that the client and advocate have all essential information, including documents compiled by the INS in preparation for the Notice to Appear and removal proceedings and any statements made by the respondent. A blank copy of the FOIA application form is attached as Appendix 35. 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.83 If the respondent admits the allegations and concedes the charge, the Immigration Judge will find that the respondent is removable as charged.84 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," for determination of inadmissibility or deportability.85 If removability is not established, the proceeding is terminated.86 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.87 The respondent should state that he or she will seek cancellation of removal under VAWA, 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 establish eligibility for cancellation. It is important to note that there may be other forms of relief from removal for which the respondent is eligible. For example, if the respondent has an approved VAWA self-petition and either is an immediate relative or has a current priority date, he or she may seek adjustment of status as a form of relief from removal.88 If the respondent was placed in removal after denial of adjustment of status, he or she may ask the Immigration Judge to reconsider the application for

79 80 81 82 83 84 85 86 87 88

INA 239(a)(1); 8 CFR 239.1. Id. INA 239(a)(1). 8 CFR 103.10. 8 CFR 240.10(c). INA 240(d); 8 CFR 240.10(c). 8 CFR 240.10(d). INA 240(c)(1). 8 CFR 240.11. 8 CFR 240.11(a).

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adjustment.89 The respondent may also apply for asylum and withholding of removal, if the facts of the case establish eligibility for those forms of relief.90 The respondent must tell the judge of all forms of relief for which he or she plans to apply. If the respondent is eligible to self-petition, it is strongly recommended that he or she file a self-petition with the Vermont Service Center, even after commencement of removal proceedings. If the respondent is an immediate relative, the Immigration Judge may suspend 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 self-petition establishes many of the elements of the suspension/cancellation relief and that the INS has conceded those elements by its grant of the self-petition. Because of the availability of deferred action status for VAWA self-petitioners, the advocate may also want to consider asking the INS Trial Attorney to jointly move the Immigration Court to terminate the proceedings, to allow the respondent to self-petition. If the self-petition is approved, an immediate relative self-petitioner could immediately adjust status, and a preference category self-petitioner could obtain deferred action status until his or her priority date is current. Remember that the factors to be considered in all of these strategic decisions depend upon the individual case at hand. § 10.13 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.91 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."92 The standard was implemented in recognition of the difficulties abused family members may have in obtaining documentation.93 Under the standard, the Immigration Judge must consider any credible evidence relevant to the application.94 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.

89 90 91

92 93

94

8 CFR 245.2(a)(5)(ii). 8 CFR 240.11(c). Paul W. Virtue, INS General Counsel, Memorandum H! 90/15-P, HQ 70/8-P, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 7 (October 16, 1998) [reprinted at 76 Interpreter Releases 162, 168 (January 25, 1999)]. INA 240A(b)(2)(D). See, Paul W. Virtue, INS General Counsel, Memorandum H! 90/15-P, HQ 70/8-P, October 16, 1998, re: Extreme Hardship and Documentary Requirements Involving Battered Spouses and Children, at 7-8 (October 16, 1998) [reprinted at 76 Interpreter Releases 162, 168-169 (January 25, 1999)]. Id.

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§ 10.14 THE CONTENTS OF THE APPLICATION The application for cancellation of removal or suspension of deportation should be paginated consecutively and should contain the forms and documents listed below. If the applicant cannot obtain any of the listed documents, then other credible evidence should be submitted in their place. The application must also comply with any format or content requirements of the Immigration Court's local operating rules. · An index or table of contents, listing each document 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. A completed Form EOIR 42B, Application for Cancellation of Removal and Adjustment of Status for Certain Non-Permanent Residents. 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, battery or extreme cruelty, three years' continuous presence, extreme hardship, and good moral character. 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 their 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

· ·

·

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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.95 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 momentos, 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). For an adopted child, evidence should be submitted to establish that the child was adopted before reaching the age of 16 and that the child has been in the legal custody of and has resided with the adopting parent or parents for at least two years.96 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. Note that for stepchildren, 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.97 It may be difficult to show that the relationship has continued in a case involving domestic abuse. · 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.98 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 residents 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

95 96 97 98

INA 101(b)(1)(C & D). INA 101(b)(1)(E). Matter of Mowrer, 17 I & N Dec. 613 (BIA 1981). See, INA 301, et seq., defining United States citizens at birth.

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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 INS Associate District Counsel. In doing so, the applicant or advocate should refer to the INS 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 Service will attempt to electronically verify the abuser's citizenship or immigration status from information contained in Service computerized records and other records.99 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. If none of the above-mentioned documents is available, secondary evidence such as declarations from persons who know the abuser to be an LPR or USC may be presented. · 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. 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.

·

99

8 CFR 204.1(g)(3).

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·

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.

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; · 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 cruel treatment. Documents to establish extreme hardship. The evidence submitted to establish extreme hardship will depend upon the particular hardship factors of the individual case. Form EOIR 28 (Notice of Appearance as Attorney or Representative Before the Office of the Immigration Judge)

Applications for VAWA cancellation or suspension are confidential during the pendency of the application.100

100

IIRAIRA 384(a)(2). See also, Paul W. Virtue, Acting Executive Associate Commissioner, Memorandum re: Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA 384 (May 5, 1997), reprinted in 74 Interpreter Releases 795 (May 12, 1997).

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Examples of documentation of battery or cruel treatment: · The applicant's own detailed declaration; · 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; · Declarations of witnesses to the abuse or to results of violence; · Letters from clergy to whom the abuse was reported; and · School records reflecting the abuse.

§ 10.15 THE EFFECT OF A GRANT OF VAWA SUSPENSION OR CANCELLATION If cancellation is granted, the alien'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.101 After the cap has been reached in a fiscal year, decisions to grant or deny cancellation to applicants who meet the statutory eligibility requirements must be reserved until a grant becomes available under a subsequent year's cap.102 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.103 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.104 Because there is no annual cap for suspension applicants, a person granted suspension will be immediately considered a lawful permanent resident.

101 102 103 104

INA 240A(e). 8 CFR 240.21(c)(1). 8 CFR 240.21(c)(2). INA 240A(e)(3)(B).

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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; 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; and 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).

·

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 INS is required to grant parole to the grantee's child or, if the grantee is a child, parent.105 This parole status lasts until adjudication of the parolee's application for adjustment of status.106 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

105 106

INA 240A(b)(4)(A). INA 240A(b)(4)(B).

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and turns 21 years of age. The paroled child or parent may apply for employment authorization.107 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.108 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.109

§ 10.16 DENIALS, APPEALS, AND MOTIONS TO REOPEN If the Immigration Judge denies the application for cancellation or suspension, the applicant may appeal to the Board of Immigration Appeals,110 by filing Form EOIR 26, Notice of Appeal, with the Board within 30 calendar days after the Immigration Judge's oral decision or the mailing of the Immigration Judge's written decision.111 The Battered Immigrant Women Protection Act of 2000 provides for motions to reopen removal and deportation proceedings for individuals who become eligible to self-petition or for cancellation of removal. For persons in removal proceedings, the normal deadline for motions to reopen112 does not apply if the basis for the motion is to apply for relief as an abused self-petitioner or to apply for VAWA cancellation of removal. Instead, a motion to reopen to apply for VAWA cancellation or for adjustment of status based upon a VAWA self-petition must be filed within one year of the entry of a final order of removal, and must be accompanied by the self-petition or application for cancellation of removal that will be filed upon granting of the motion to reopen.113 The Attorney General, in his or her discretion, may waive even that time limitation for individuals who demonstrate extraordinary circumstances or extreme hardship to the alien's child.114 This amendment is effective as if it had been enacted with IIRIRA.115 There is no time limit for a motion to reopen deportation proceedings for persons who were in deportation proceedings commenced before April 1, 1997, and who have become eligible to self-petition or for suspension of deportation because of the 2000 amendments. The

107 108 109 110 111 112

113 114 115

8 CFR 274a.12(c)(11) [employment authorization for persons paroled into the United States]. INA 240A(b)(2)(4)(B). INA 240A(b)(2)(4)(B) and 245(a), (c). 8 CFR 3.38(a). 8 CFR 3.38(b). Motions to reopen must normally be filed within 90 days of the entry of a final administrative order of removal, although there are some exceptions to this rule. INA 240(c)(6)(C). INA 240(a)(6)(C)(iv). INA 240(a)(6)(C)(iv)(III). Section 1506(c)(1)(A), title V, [Battered Immigrant Women Protection Act of 2000], div. B [Violence against Women Act of 2000], Pub. L. No. 106-386 [Victims of Trafficking and Violence Protection Act of 2000], Act of Oct. 28, 2000, 114 Stat. 1464.

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motion to reopen must be accompanied by a copy of the application for suspension to be filed with the Court or the self-petition that will be filed with the INS upon the granting of the motion to reopen.116 The motion to reopen is filed with the last administrative body to have jurisdiction over the proceedings.117 When preparing a motion to reopen, the advocate must comply with the format and content requirements set out in the BIA and Immigration Court regulations118 and in any local Immigration Court rules.

116 117

118

Id. 8 C.F.R. 3.2(a) (motions to reopen before the BIA) and 3.23(b) [motions to reopen before the Immigration Court]. 8 CFR 3.2(c) [motions to reopen before the BIA] and 3.23 [motions to reopen before the Immigration Court].

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CHAPTER 11 SPECIAL IMMIGRANT JUVENILE STATUS FOR CHILDREN UNDER JUVENILE COURT JURISDICTION

Content 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 Introduction and Overview ............................................................................................ 11-1 Who is Eligible to Become a Permanent Resident Through "Special Immigrant Juvenile" Status? ............................................................................................................................ 11-1 What Are the Benefits of Applying For Special Immigrant Juvenile Status? ................. 11-5 What Are the Risks of Applying? .................................................................................... 11-6 Who Should Apply? ......................................................................................................... 11-6 What is the Application Procedure?................................................................................. 11-7 Talking with the Child Applicant and Child's Attorney About SIJS............................... 11-8 Original Parents, and Maybe Siblings, Cannot Benefit Through Grant of SIJS to Child 11-8 Children in INS Actual or Constructive Custody............................................................. 11-9

§ 11.1 INTRODUCTION AND OVERVIEW Special Immigrant Juvenile Status (SIJS) is a form of relief that helps certain undocumented children in the state juvenile system to obtain lawful immigration status. It is another option to VAWA for some abused undocumented children to become lawful permanent residents. This chapter provides basic information about SIJS. Detailed information on SIJS, the requirements and the application procedure can be found in the Immigrant Legal Resource Center manual, "Special Immigrant Juvenile Status for Children in the Dependency System."1 § 11.2 WHO IS ELIGIBLE TO BECOME A PERMANENT RESIDENT THROUGH "SPECIAL IMMIGRANT JUVENILE" STATUS? Persons under the jurisdiction of a juvenile court who are "deemed eligible for long term foster care" may be able to obtain special immigrant juvenile status and, based on that, apply for lawful permanent residency (a green card).2 To do this, they must submit two applications and meet two sets of requirements: 1) They must apply for special immigrant juvenile status, and

1

This SIJS manual can be downloaded for free from the ILRC website at www.ilrc.org. Additionally, one can order a hard copy of the manual from the ILRC for $15.

INA § 101(a)(27)(J), 8 USC § 1101(a)(27)(J). This section was added by § 153 of the Immigration Act of 1990 (IA90).

2

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2) Based on the special immigrant juvenile application, they also must apply for permanent residency (the green card). In immigration terminology, applying for permanent residency is called applying for adjustment of status to that of a lawful permanent resident. The two applications usually are filed at the same time, although in some circumstances the SIJS petition might be submitted first. A. Petition for Special Immigrant Juvenile Status (SIJS) The Immigration and Nationality Act (INA) provides that an applicant must meet the following criteria to qualify for SIJS. 3 1. Dependency, Delinquency, or Other Juvenile Court Proceedings The statute says that the applicant either must be a dependent of a juvenile court, or a juvenile court must have had the applicant legally committed to, or placed under the custody of, an agency or department of a state.4 While INS has not made a written policy about this, this should include children in delinquency as well as dependency proceedings. In either delinquency or dependency proceedings, the child applicant must meet all of the requirements for SIJS, including the requirement discussed below that she is "deemed eligible" for long term foster care. Examples: Samy is a dependent of a juvenile court due to neglect by his parents. Rose is in delinquency proceedings for auto theft, and the court has found that it cannot return her to her parents' custody on probation due to their abuse of her. Both children may be eligible for SIJS. 2. The Applicant Must Have Been "Deemed Eligible For Long Term Foster Care." The statute says that the child must be "deemed eligible for long term foster care" by the juvenile court.5 This phrase has a specific legal meaning for SIJS. The INS defines "deemed eligible for long term foster care" to mean that the court has found that family reunification is not a viable option.6 Usually, at that point the child will go on to foster care, adoption or

INA § 101(a)(27)(J), 8 USC § 1101(a)(27)(J), which states in part that a special immigrant juvenile is: (J) an immigrant who is present in the United States ­ (i) who has been declared dependent on a juvenile court located in the United States or whom such court has legally committed to, or placed under the custody of, an agency or department of a state, and who has been deemed by the court eligible for long-term foster care due to abuse, neglect or abandonment, (ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence, and (iii) in whose case the Attorney General expressly consents to the dependency order serving as a precondition to the grant of special immigrant juvenile status.

4 5 6 3

INA § 101(a)(27)(J)(i), 8 USC § 1101(a0(27)(J)(i). Id. 8 CFR § 204.11(a)(1993).

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guardianship. Thus, the child generally must be in the permanent placement phase, and not reunified with a parent or still going through reunification. Example: Sondra is in permanent placement now that reunification efforts with both parents have ended. She is in long-term foster care but might be adopted. She is "deemed eligible for long-term foster care" and therefore eligible for SIJS. Example: Esteban's mother is being offered reunification services. He has been living in foster care for months, but since the judge has not yet found that reunification is not viable, he is not eligible for SIJS.

3. The court or some administrative agency must rule that it is not in the child's best interest to be returned to his or her home country. Generally the juvenile court will include in its SIJS order (discussed below) that it is not in the child's best interest to be returned to the home country. The evidence for this finding may range from a home study conducted by a foreign social service agency to determine that a grandparent's home is not appropriate, to simply interviewing the child to learn that there are no known appropriate family in the home country. 4. The court must make it clear that it made its findings and orders based on abuse, neglect or abandonment of the child, as opposed to a desire to obtain immigration status for the child. The requirement of a specific finding about "abuse, neglect and abandonment" was added to the SIJS law in 1997. The juvenile court judge's order must specifically identify whether abuse, neglect or abandonment was the basis for the dependency or placement order, and for "deeming the child eligible for long term foster care" (i.e., determining that reunion with the parents was not viable). For example, the judge's order could state, "The minor is deemed eligible by this Court for long term foster care, based on abuse" or "The above orders and findings were made due to abandonment and neglect of the minor." A sample judge's SIJS court order appears in Appendix 51. 5. The juvenile court judge must sign an order making the above findings. The juvenile court judge must sign a special order, usually prepared by the child's attorney or other advocate, stating that all the findings required for SIJS have been made. The child will submit this order to the INS as part of the child's application for special immigrant juvenile status. A sample judge's order appears in Appendix 51.

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6. Other Requirements: Juvenile Court Must Retain Jurisdiction, Applicant Must be Under Age 21 and Unmarried The INS added some requirements of its own that were not written in the federal law. Some of the INS requirements might be dropped in the future, but they apply to all applications now. The Juvenile Court Must Retain Jurisdiction. Current INS regulation requires that the applicant remain under juvenile court jurisdiction until the immigration application is finally decided and the applicant is a lawful permanent resident.7 Juvenile court lawyers must ensure that judges retain jurisdiction over applicants until INS grants the SIJS application after the interview. The INS interview may take place from six to thirty-six months, or even longer, after the SIJS application is filed. Some juvenile court judges will want to, or must under state law, terminate dependency proceedings when the child reaches a certain age. Children's advocates need to fight to keep the child under juvenile court jurisdiction during this period. Note that immigration attorneys may be able to persuade the INS to speed up ("expedite") the interview if the child is about to age out of the juvenile court system. When the child goes to the INS interview, s/he should have a copy of the minutes from his or her most recent court hearing to establish that s/he remains under juvenile court jurisdiction. The INS regulation creates a difficult situation and needlessly costs juvenile systems time and energy by requiring children to stay in the juvenile court system longer than they otherwise would. It is possible that better rules will appear in the future. The INS is considering regulations that would offer relief to persons who age out of juvenile court jurisdiction before the INS makes its final decision. Advocates should keep abreast of developments. Applicants who are 18, or who are 21. State laws generally require that a youth be under age 18 at the time he or she first is declared a juvenile court dependent. State laws vary as to how long a child can remain a juvenile court dependent, once he or she has been declared a dependent. Some states end dependency at age 18, others extend it to age 19 especially if the child must complete high school, and others potentially can extend the age to 21. Similarly, different states have different laws for how old a young person must be to enter or stay under juvenile court jurisdiction in a delinquency case. Under INS regulations, any person under 21 who meets the SIJS requirements can apply for SIJS.8 Thus as far as the INS is concerned, a 19 year old could file a SIJS application and attend the INS interview -- so long as s/he remains under the jurisdiction of a juvenile court, eligible for long term foster care, and the subject of a court order declaring that it is not in his or her best interest to return to the home country.

7 8

8 CFR § 204.11(c)(5). 8 CFR § 204.11(c)(1).

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Example: Julia entered the foster care system when she was 14 years old. Because social workers had not heard about SIJS earlier, Julia did not apply for SIJS until she was 19. The juvenile court retained jurisdiction over Julia until she was 20 and the INS granted her SIJS application. Marriage. Under INS regulations, applicants for SIJS must remain unmarried until the entire process is completed and the INS grants permanent residency.9 B. Application for Permanent Resident Status Besides meeting the above requirements for SIJS, the children must fulfill other requirements that apply to all persons who become lawful permanent residents of the United States (get a green card). Applicants might be barred from permanent residency if they have a record of involvement with drugs, prostitution, or other crimes, if they are HIV positive, committed visa fraud, were previously deported, or have certain other "bad marks" against them. These children need advice from expert immigration counsel before applying. They may well win their case ­ but they need to get good advice to make sure of that before they apply. Immigration lawyers should note that special waivers of inadmissibility are available to special immigrant juveniles that do not require a qualifying relative.10 The following types of cases deserve special attention and expert advice because they may be or may become ineligible for SIJS: · · · · · · · children who soon will turn 18, or are over 18 children who soon will be released from juvenile court jurisdiction children who currently are in deportation ("removal") proceedings children who are or have been in juvenile delinquency proceedings or have a juvenile or adult criminal record children who are or might be HIV positive children who were "paroled" in to the United States by immigration authorities children who have been previously deported or removed

§ 11.3 WHAT ARE THE BENEFITS OF APPLYING FOR SPECIAL IMMIGRANT JUVENILE STATUS? The most important benefit of applying for SIJS is obtaining lawful permanent resident status -- a green card. For some undocumented children who do not qualify for VAWA, special immigrant juvenile status might be the only route for them to gain lawful permanent immigration status in the United States.

9

8 CFR § 204.11(c)(2 ).

See INA § 245(h)(2)(B), 8 USC § 1255(h)(2)(B), as amended by the Miscellaneous and Technical Corrections Act of 1991, § 301(a)(2).

10

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A lawful permanent resident has the right to live and work permanently in the United States and to travel in and out of the country. While public benefits (e.g., welfare, MediCare) for permanent residents have been drastically curtailed since 1996, permanent residents are eligible for some benefits initially and more as time goes on. Also, after five years permanent residents can apply for U. S. citizenship. Lawful permanent resident status is permanent -- a special immigrant juvenile who obtains permanent residency will keep it after he or she is no longer under juvenile court jurisdiction. The person remains a permanent resident for her entire life, although he or she may become deportable for some reason, such as conviction as an adult of certain criminal offenses or abandoning residency in the United States.11 The above benefits come with the green card, but two important benefits come as soon as the person submits the SIJS application forms to the INS. Applicants who have submitted the applications for SIJS and adjustment of status and are waiting for an interview are protected against deportation and are granted employment authorization until their cases are decided. Counties benefit when a child wins SIJS because county agencies can access federal foster care matching funds, which they cannot do for undocumented children.

§ 11.4 WHAT ARE THE RISKS OF APPLYING? The greatest risk to the child is that, if the application is turned down, the INS might attempt to "remove" (deport) the child from the United States. When a child files a petition for SIJS, the child is alerting the INS to the fact that he or she is in the U.S. Since these petitions are not confidential, the INS may use that information to place the child into removal proceedings for deportation if the SIJS and adjustment of status applications are denied. It is crucial to make sure that the child is likely to win SIJS status before submitting an application, so that you do not unintentionally cause the child to be deported. Note that children who are not eligible for SIJS still may be eligible to get lawful status in some other way, such as through petitions filed by adoptive parents, or through VAWA self-petitions filed because of abuse by a U.S. citizen or permanent resident parent. Family-based petitions and VAWA selfpetitions are available even if the child does not come or remain under juvenile court jurisdiction.

§ 11.5 WHO SHOULD APPLY? Children who will qualify for both special immigrant status and adjustment of status to permanent residency should submit applications. Generally children should not apply under this program if the advocate is not confident that the applications will be granted. In case of doubt,

11

The grounds of deportation appear at INA § 237(a), 8 USC § 1227(a).

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the advocate should be sure to consult with competent immigration counsel. For example, children with juvenile delinquent or adult criminal records, records of extensive immigration violations, or children with HIV should consult with an immigration attorney or expert before filing. There is one exception to this cautious advice: children who are already in deportation ("removal") proceedings have nothing to lose by submitting an application, since INS is already trying to deport them. They should apply for special immigrant status if there is any chance of qualifying, so that their deportation is stopped pending the adjudication of the application. Note that if these children are already in INS actual or constructive custody, juvenile courts will have to get permission from the INS to take jurisdiction over the children.12 (See § 11.9 for more information on INS actual and constructive custody).

§ 11.6 WHAT IS THE APPLICATION PROCEDURE? The child must file two applications, one for special immigrant juvenile status and one to adjust status to lawful permanent residency. The applicant does not have to travel outside of the United States, but can apply locally.13 Currently, both the SIJS and the adjustment of status applications are filed at the same time at the local INS district office with jurisdiction over the child's residence.14 Besides the forms, the applicant must submit the results of a set medical exam conducted by an INS-approved doctor (which includes a test for HIV and tests for the presence of some illegal drugs), various filing fees unless they are waived, and some proof of age such as a birth certificate. Applicants generally are required to bring a photo-identification to the interview. As soon as the applications are filed with INS, the applicant can obtain employment authorization.15 INS will schedule an appointment for the applicant to get fingerprinted for an FBI check of any criminal or delinquency record or prior deportation. The wait for the interview itself can be long ­ depending on the INS office, it may be from six months to three years, or even longer. When the applicant finally gets to the interview, he or she often can have a social worker, and certainly an attorney, attend if desired. The INS might approve the case right at the interview, or might request further information. If the INS denies the case, it might or might not refer the child to a judge for deportation ("removal") proceedings. The applicant can apply again in front of the judge, and can appeal denials at any stage.

12 13

INA § 101(a)927)(J)(iii)((I), 8 USC § 1101(a)(27)(J)(iii)(I).

Immigration practitioners should see INA § 245(h), which provides that SIJS applicants are deemed paroled in and therefore eligible for adjustment even if they entered without inspection. They do not have to qualify under § 245(i) or another special program, or pay a penalty fee: they are entitled to adjustment by virtue of their SIJS petition. Otherwise, immigration attorneys should note that an SIJS adjustment procedure is like that of a 245(a) adjustment for an immediate relative. In the future, it is possible that INS will change the procedure and have the applicant mail the petition for SIJS to a regional INS office, and once that is approved have the applicant file the application for adjustment of status in person at a local INS office. Counsel should stay alert for new filing rules.

15 14

8 CFR § 274a.12(c)(9).

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The child will submit two applications at the same time: One for special immigrant juvenile status, and One for adjustment of status to permanent resident.

§ 11.7 TALKING WITH THE CHILD APPLICANT AND CHILD'S ATTORNEY ABOUT SIJS Before a petition for special immigrant juvenile status is filed for a child, the child should understand what the application is about and the risks and benefits of filing. Any attorney for the child must be consulted, and the child's social worker, probation officer, Court Appointed Special Advocate (CASA) volunteer, foster parent, or other interested advocate should be involved. A one-page form in Spanish and English that you can use to help explain the program to the child appears in Appendix 53.

§ 11.8 ORIGINAL PARENTS, AND MAYBE SIBLINGS, CANNOT BENEFIT THROUGH GRANT OF SIJS TO CHILD A child who immigrates as a special immigrant juvenile ceases to be the "child" of the original parents for immigration purposes.16 This means that the child will not be able to use her new lawful immigration status to help her original parents to get lawful status. For example, a special immigrant juvenile who becomes a permanent resident and then a U.S. citizen will not be able to immigrate his or her natural mother. Usually a U.S. citizen of at least 21 years of age would have that right. Congress enacted this rule to make sure that parents who abused, neglected or abandoned their children would not benefit from the fact that the children qualified for SIJS. The parents do not lose any immigration benefit that they otherwise would have had, because without SIJS their undocumented child could not have helped his or her parents to immigrate. Unfortunately, it also may be that the child is barred from using her new status to assist a brother or sister to immigrate. Immigration law defines siblings as persons with a common parent. Since the SIJS recipient is no longer the "child" of the abusive parent, the INS may assert that he or she no longer has a sibling relationship with brothers and sisters. A U.S. citizen who is at least 21 years old can petition for permanent resident status for a sibling. The main drawback is that sibling or "fourth preference" petitions generally have a long waiting period of from 12 to 20 years after the petition was filed before the sibling receives any legal rights.

16

INA § 101(a)(27)(J), 8 USC § 1101(a)(27)(J).

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§ 11.9 CHILDREN IN INS ACTUAL OR CONSTRUCTIVE CUSTODY If an immigrant child is already in INS actual or constructive custody before coming to juvenile court, a juvenile court judge cannot make custody decisions about the child without INS' permission.17 This is a very unusual federal law, depriving state courts of jurisdiction over children within the state. As amended in 1997, the SIJS statute provides that no state juvenile court: "has jurisdiction to determine the custody status or placement of an alien in the actual or constructive custody of the Attorney General [INS] unless the Attorney General specifically consents to such jurisdiction."18 Thus, juveniles who are in INS actual or constructive custody must obtain INS consent before a juvenile court can take jurisdiction over the minor. Juvenile court orders made without this consent are invalid according to INS standards. What is "actual or constructive" INS custody? Actual custody means that INS has the child in a detention facility run by INS. Constructive custody has not been defined in official INS memoranda, but INS authorities appear to agree that this refers only to children housed in a special INS-sponsored foster care setting that INS has created in some states as an alternative to regular detention for children. In these settings, the INS pays a private or non-profit group to run a "soft detention" group home expressly for unaccompanied immigrant children under INS authority. Often the home meets state foster care licensing requirements. If a child is not in such a setting, the child is not in "constructive" INS custody and a juvenile court judge does not need permission to rule on the child's placement. The INS does not appear to take the position that a child is in constructive custody if the child once was in INS custody but has since been released. Thus a child who was arrested by INS but was then released on bond or to a relative, and who still has to go to immigration court hearings, is not in actual or constructive custody, and a juvenile court should not have to get INS permission to take the child.19 Requests for INS consent for a court to take jurisdiction over a child in INS custody must be made in writing to the INS District Director with jurisdiction over the juvenile's place of residence.20 According to an official INS Memorandum, the District Director should consent to the juvenile court taking jurisdiction over the child if: 1) it appears that the juvenile would be eligible for SIJ status if a juvenile court order is issued; and

17 18 19

INA § 101(a)(27)(J)(iii)(I), 8 USC § 1101(a)(27)(J)(iii)(I). Id.

INS is expected to make this position explicit in future regulations. This information is based on conversations with national INS officials and Katherine Brady of the ILRC in 2000, as well as on the history leading up to the 1997 amendment. We are not aware of any local INS making any other interpretation, but if it does, please contact immigration or children's advocates and, if needed, national INS officials. You might start with Michael Biggs, INS Office of Adjudications, 202/353-7707, or Jo Anne London, INS Office of General Counsel, 202/514-0198.

20

July 9, 1999 "Memorandum #2" issued by Thomas E. Cook, Acting Assistant Commissioner.

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2) in the judgment of the District Director, the dependency proceeding would be in the best interest of the juvenile.21 Since dependency proceedings are expert governmental deliberations dedicated to identifying and implementing a plan that is in the best interests of the child, it should be an extremely rare case where the District Director decides that holding such proceedings are not in the child's best interest. In practice, however, some District Directors have denied such cases. Judges and advocates dealing with children who may be in INS custody should contact a resource center for information on how to best prepare a request for consent from the District Director.

21

Id.

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CHAPTER 12 U AND T NON-IMMIGRANT VISAS

Contents 12.1 12.2 12.3 12.4 12.5 12.6 12.7 Overview........................................................................................................................ 12-1 T Nonimmigrant Visas ­ Requirements for T Nonimmigrant Status ............................ 12-2 The Application Process for T Nonimmigrant Visas..................................................... 12-7 Admission of the T-1 Nonimmigrant's Immediate Family Members ......................... 12-10 Adjustment of Status from T Nonimmigrant to Lawful Permanent Residence........... 12-11 U Nonimmigrant Visas ................................................................................................ 12-12 Conclusions.................................................................................................................. 12-17

§ 12.1 OVERVIEW The Victims of Trafficking and Violence Prevention Act,1 enacted in October 2000, introduced two new types of nonimmigrant visas: the T and U visas. These visas are intended to protect victims of serious crime who have gathered the courage to come forward, report the crime, and assist in its investigation and prosecution. The T visa applies to victims of severe forms of trafficking in persons2 and reflects Congress' concern with the growing impact of trafficking and its intention to vigorously pursue the prosecution of traffickers and the protection of victims. As many as 50,000 people, mostly women and children, are brought into the United States each year as victims of trafficking.3 The U visa applies to noncitizens who suffer substantial physical or mental abuse resulting from a wide range of criminal activity, including domestic abuse.4 Both U and T nonimmigrant visas provide authorized stay in the United States and employment authorization. Moreover, after three years in U or T nonimmigrant status, the nonimmigrant may be able to adjust status from nonimmigrant to permanent resident. There are also provisions to grant U and T nonimmigrant and permanent residence status to certain spouses, children, and parents of U and T nonimmigrants. The INS has recently issued interim regulations for the T visas.5 The regulations became effective March 4, 2002, and comments from interested parties were due on April 1, 2002.6

1 2 3 4 5 6

Pub. L. 106-386, 114 Stat. 1464 (Oct. 28, 2000) [VTVPA]. INA §§ 101(a)(15)(T), 214(n), 245(l). Section 102(b)(1), Division A (Trafficking Victims Protection Act of 2000), VTVPA. INA §§ 101(a)(15)(U), 214(o), 245(l). 67 Fed. Reg. 4784 (Jan. 31, 2002). Id.

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Because INS will consider those comments in preparing the final version of the regulations, that final version may differ from the interim regulations. The INS has not yet issued regulations implementing the U nonimmigrant visa. It has issued guidance on interim relief for potential U nonimmigrants, however.7

§ 12.2 T NONIMMIGRANT VISAS REQUIREMENTS FOR T NONIMMIGRANT STATUS To be eligible for a T nonimmigrant visa, the applicant must be or have been a victim of a "severe form of trafficking in persons."8 That term is defined as: (a) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform the act is under 18 years of age, or (b) the recruitment, harboring, 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.9 The interim regulations define some of the terms used in the definition of severe forms of trafficking in persons. "Sex trafficking" means the recruitment, harboring, transportation, provision, or obtaining of a person for the purposes of a commercial sex act.10 "Coercion" means threats of serious harm to or physical restraint against any person; any scheme intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or the abuse or threatened abuse of the legal process.11 "Debt bondage" means the status of a debtor arising from the debtor's pledge of his or her personal services or the services of a person under the debtor's control as a security for debt, if the value of those services is not applied to satisfy the debt or if the length and nature of the services are not appropriately limited and defined.12 "Involuntary servitude" means a condition of servitude induced by causing a person to believe that the person or another would be seriously harmed, physically restrained, or subjected to abuse or threatened abuse of legal process if the person did not enter into or remain in the servitude.13

7

Cronin, Act'g. Exec. Assoc. Commr., Office of Programs, INS Memo HQINV 50/1, re: Victims of Trafficking and Violence Protection Act of 2000 (VTVOPA) Policy Memorandum # 2 - "T" and "U" Nonimmigrant Visas (August 30, 2001) (copy on file with author).

INA § 101(a)(15)(T)(i)(I) (added by Section 107, Division A (Trafficking Victims Protection Act of 2000), VTVPA).

9 10 11 12 13

8

22 USC § 7102, (added by Section 103(8), Division A (Trafficking Victims Protection Act), VTVPA). 67 Fed. Reg. 4784, 4796 (to be codified at 8 CFR § 214.11(a)). Id. Id. Id.

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In addition to showing that the applicant is or was a victim of a severe form of trafficking in persons, the applicant must demonstrate that he or she:

· ·

· · ·

Is physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, on account of the trafficking;14 Has complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, unless he or she is under 15 years of age, in which case compliance is not a requirement;15 Would suffer extreme hardship involving unusual and severe harm if he or she were removed from the United States;16 Has not committed a severe form of trafficking in persons;17 Is not inadmissible under INA § 212. There are special waivers of certain inadmissibility grounds for T nonimmigrants, however.

We will discuss these requirements in more detail below.

1. Establishing that the applicant is a victim of a severe form of trafficking in persons The applicant can show that he or she is a victim of a severe form of trafficking in persons by submitting one of the following types of documentation:

·

· ·

An endorsement from a law enforcement agency (LEA) on Form I-914, Supplement B, Declaration of Law Enforcement Officer for Victims of Trafficking in Persons (discussed below);18 Evidence that the INS has arranged for the alien's continued presence in the United States as a victim of trafficking; or Sufficient credible secondary evidence, describing the nature and scope of any force, fraud or coercion used against the victim. This showing is not necessary if the applicant was induced to perform a commercial sex act while under age 18.

Thus, T applicants may apply individually, rather than solely through sponsorship from a law enforcement agency. Nonetheless, although the INS' interim regulations state that an endorsement from a law enforcement agency is not required, the prologue to the regulations "strongly encourages" applicants to provide such an endorsement.19

14 15 16 17 18 19

INA § 101(a)(T)(i)(II). INA § 101(a)(T)(i)(III). INA § 101(a)(T)(i)(IV). INA § 214(n)(1). 67 Fed. Reg. 4784 (to be codified as 8 CFR § 214.11(f)). 67 Fed. Reg. 4784, 4788 (Jan. 31, 2002).

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If the applicant submits secondary evidence, defined as anything other than an LEA endorsement or INS evidence of status as a trafficking victim, that evidence must include the applicant's statement indicating that he or she is a victim of a severe form of trafficking in persons, credible evidence of victimization and cooperation, a description of what the person has done to report the crime to an LEA, a statement indicating whether similar records for the time and place of the crime are available, and evidence that the applicant made good faith attempts to obtain the LEA endorsement and a description of those efforts.20 The Service must decide the application under the "all credible and relevant evidence" standard already employed in adjudicating self-petitions and applications for cancellation of removal by abused spouses and children of LPRs and USCs.21 2. Establishing compliance with reasonable requests for assistance The applicant must establish that he or she has complied with reasonable requests for assistance from a federal law enforcement agency (LEA). The "reasonableness" of a request for assistance depends on the totality of the circumstances, taking into account general law enforcement and prosecutorial practices, the nature of the victimization, and the specific circumstances of the victim, including fear, severe traumatization (both mental and physical), and the age and maturity of young victims.22 Under the INS's interim regulations, the applicant for a T visa must have had contact with an LEA regarding the trafficking, either by reporting the crime or by responding to inquiries from the LEA. If the applicant has not had contact with an LEA regarding the trafficking, he or she should promptly contact the nearest INS or FBI field office or U.S. Attorney's office to file a complaint, assist in the investigation or prosecution of acts of severe forms of trafficking in persons, and request an LEA endorsement. Alternatively, the applicant may contact the Department of Justice, Civil Rights Division, Trafficking in Persons and Worker Exploitation Task Force complaint hotline, at (888) 428-7581, to file a complaint and be referred to an LEA.23 The term "law enforcement agency" means any federal law enforcement agency that has the responsibility and authority for the detection, investigation, or prosecution of severe forms of trafficking in persons. These include the following offices of the Department of Justice: the United States Attorneys' Offices, the Civil Rights and Criminal Divisions, the FBI, the INS, and the United States Marshals Service. The Diplomatic Security Service of the Department of State is also an LEA.24

20 21 22 23 24

67 Fed. Reg. 4798 (to be codified as 8 CFR § 214.11(f)(3)). Id. Id. 8 CFR § 214.11(f)(4). 67 Fed. Reg. 4784, 4796 (to be codified as 8 CFR § 214.11(a)).

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State and local law enforcement agencies are not included within the definition of an LEA for purposes of T visas. These agencies, however, may be the first entities contacted by a trafficking victim and may play a crucial role in identifying and orienting trafficking victims and referring them to appropriate federal LEAs. 3. Establishing extreme hardship involving unusual and severe harm The T visa applicant must show that he or she would suffer "extreme hardship involving unusual and severe harm" if he or she were removed from the United States. This is higher than "extreme hardship," the standard for other types of immigration relief, such as VAWA cancellation of removal. Factors to consider when evaluating whether removal would result in extreme hardship involving unusual and severe harm include both traditional extreme hardship factors and factors associated with having been a victim of a severe form of trafficking in persons. These include, but are not limited to, the following:

· · · ·

· · · ·

The applicant's age and personal circumstances; Serious physical or mental illness of the applicant that requires medical or psychological attention not reasonably available in the foreign country; The physical and psychological consequences of the trafficking activity; The impact on the applicant of loss of access to U.S. courts and criminal justice system for purposes such as protection of the applicant and criminal and civil redress for the acts of trafficking; The reasonable expectation that laws, social practices, or customs in the applicant's country would penalize the applicant severely for having been the victim of trafficking; The likelihood of re-victimization and foreign authorities' ability and willingness to protect the applicant; The likelihood that the trafficker or others acting on his or her behalf would severely harm the applicant; and The likelihood that the applicant's individual safety would be seriously threatened by the existence of civil unrest or armed conflict, as demonstrated by a designation of Temporary Protected Status under INA § 244 or the granting of other relevant protections.25

A finding of extreme hardship involving unusual and severe harm may not be based upon current or future economic detriment, or the lack of, or disruption to, social or economic opportunities.26 The types of evidence already used to establish hardship in other immigration law contexts may also be employed to document eligibility for the T nonimmigrant visas. Examples of this type of evidence include a detailed declaration from the victim, declarations or statements from witnesses, law enforcement reports, including the LEA endorsement, photographs, medical

25 26

67 Fed. Reg. 480 (to be codified as 8 CFR § 214.11(i)(1)). Id.

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records, reports and records from counselors or therapists, and reports from NGOs, government and international agencies, and individuals regarding the current conditions in the home country and the protection or lack of protection likely to be afforded the applicant in the home country. Advocates should remember the general rule that hardship must be considered in the aggregate. Thus, even if an individual hardship factor does not rise to the requisite level, all hardship factors taken together may rise to that level. 4. Establishing physical presence T applicants must be physically present in the United States, American Samoa, or the Northern Marianas on account of the trafficking. An applicant who has left and reentered the United States is not deemed to be present unless the reentry was the result of continued victimization of the alien or a new trafficking incident. If the applicant has escaped the traffickers before law enforcement became involved in the case, the applicant must show that he or she did not have a clear chance to leave the United States in the interim. The INS will consider whether an applicant had a clear chance to leave in light of the individual applicant's circumstances. These can include circumstances attributable to the trafficking in persons situation, such as trauma, injury, lack of resources, or seizure of travel documents by the traffickers.27 5. Overcoming inadmissibility as a nonimmigrant There are special waivers of inadmissibility for T nonimmigrants. The INS may waive the medical28 and public charge29 inadmissibility grounds.30 In unforeseen emergencies, the INS may also waive documentary requirements.31 In addition, if the applicant's inadmissibility is caused by or incident to the victimization, the INS may waive any other inadmissibility grounds, except for the security and related grounds,32 international child abduction,33 and renunciation of citizenship by a former citizen to avoid taxation.34 The T nonimmigrant is also eligible for any other waiver that might apply to him or her.35 If the ground of inadmissibility would prevent or limit the applicant from adjusting to permanent residence, however, the INS will grant a nonimmigrant waiver only in exceptional circumstances.36

27 28 29 30 31 32 33 34 35 36

67 Fed. Reg. 4798 (to be codified as 8 CFR § 214.11(g)(2)). INA § 212(a)(1). INA § 212(a)(4). INA § 212(d)(13)(B). 67 Fed. Reg. 4796 (to be codified as 8 CFR § 212.1(g) and (o)). INA § 212(a)(3). INA § 212(a)(10)(C). INA § 212(a)(10)(E). INA § 212(d)(13)(B). 67 Fed. Reg. 4796 (to be codified as 8 CFR § 212.16(b)(3)).

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6. Annual limit There is an annual limit of 5,000 T visas.37 This limit applies only to T-1 visas and not to the visas issued to family members.38 Once the cap is reached in any fiscal year, the INS will continue to consider applications in the order they are received and will place eligible applicants on a waiting list.39 The INS will issue T-1 status to applicants on the waiting list in the order in which the applications were received.40

§ 12.3 THE APPLICATION PROCESS FOR T NONIMMIGRANT VISAS 1. The application packet and fees The application for T nonimmigrant status consists of the following documents: Basic application:

· · · · · · ·

Form I-914, Application for T Nonimmigrant Status (copy included in these materials); Filing fee or request for fee waiver; Fingerprint fee ($50 per person); Three current photographs; Evidence that the applicant is a victim of a severe form of trafficking in persons; Evidence that the applicant is physically present in the United States on account of the trafficking; and Evidence that the applicant would suffer extreme hardship involving unusual and severe harm if he or she were removed from the United States.41

Any documents written in a foreign language must be accompanied by a translation. The filing fee for Form I-914 is $200. There is an additional fee of $50 for each additional immediate family member included on the same application, up to a maximum family fee per application of $400.42 If the client needs a fee waiver, make the request in the cover letter and highlight it. The fee waiver request itself may be made on a single sheet of paper, listing the applicant's assets, income, and expenses, to show that the applicant does not have sufficient funds to pay the application fee.43

37 38 39 40 41 42 43

INA § 214(n)(2). INA § 214(n)(3). 67 Fed. Reg. 480 (to be codified as 8 CFR § 214.11(l)). Id. 67 Fed. Reg. 4797 (to be codified as 8 CFR § 214.11(d)(2)). 67 Fed. Reg. 4796 (to be codified as 8 CFR § 103.7(b)(1)).

Gail Pendleton, Memorandum re: "Practice Pointers on Filling with VSC," February 27, 2002 (copy on file with CLINIC).

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Gail Pendleton, of the National Lawyers Guild's National Immigration Project, has provided very useful guidance on how to assemble an application for T nonimmigrant status. Ms. Pendleton recommends that the application be presented with a "road map" cover letter and index to the documents contained in the application. The entire application should be paginated consecutively, and supporting documents should be organized according to the element of proof they establish. Highlighting the relevant portion of the documents will make it easier for the adjudicator to find important sections.44 Additional documents: Applications for waivers of inadmissibility grounds are submitted on Form I-912, with supporting documents, and attached to the Form I-914 packet. If derivative family members are applying with the principal applicant, Form I-914, Supplement A, Application for Immediate Family Members of T-1 Recipient, should be attached, together with supporting documentation (discussed below). 2. Filing and adjudication of the application The application is filed with the Vermont Service Center, at the following address: United States Immigration and Naturalization Service Vermont Service Center 75 Lower Weldon Street P.O. Box 9509 St. Albans, Vermont 05479-0001. The application should be sent by certified mail, return receipt requested. The envelope should be marked in large red letters, "Trafficking Visa Application."45 The designation of the Vermont Service Center to adjudicate T nonimmigrant visa applications is significant. That Service Center currently adjudicates all self-petitions filed by abused immigrants under the Violence Against Women Act. Its experience and expertise in dealing with victims of trauma and abuse and with particularly vulnerable individuals should be invaluable in handling T nonimmigrant applications. The INS will first determine whether an application is bona fide.46 A bona fide application is one that is complete and properly filed, contains an LEA endorsement or credible secondary evidence, includes completed fingerprint and background checks, presents prima facie evidence to show eligibility for T nonimmigrant status, including admissibility, and contains no indication of fraud.47

44 45 46 47

Id. Id. 67 Fed. Reg. 4796 (to be codified as 8 CFR § 212.1(g) and (o)). 67 Fed. Reg. 4796 (to be codified as 8 CFR § 214.11(a)).

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The INS will use various means, such as deferred action, parole, and stay of removal, to prevent removal of persons with bona fide applications until the INS issues a final decision on the application. Persons granted deferred action, parole, or stay of removal may be granted employment authorization by filing Form I-765, Application for Employment Authorization, with the Service. In addition, a determination that an application is bona fide automatically stays execution of any final order of exclusion, deportation, or removal, until there is a final decision on the T application.48 T nonimmigrant status is granted for three years from the date of approval49 and is not renewable.50 The INS will grant the T nonimmigrant employment authorization during his or her T nonimmigrant status.51 An applicant may appeal a denial of T-1 status to the INS Administrative Appeals Unit (AAU).52 The denial does not become final until the AAU makes its decision.53 There is no appeal from the INS's decision to deny a waiver, but applicants may refile their request for waiver in appropriate circumstances.54 There is a filing deadline for cases in which victimization occurred prior to October 28, 2000 (the enactment date of the VTVPA). Persons in this situation must apply for T-1 status within one year of January 31, 2002. There is an exception for children, who may apply within one year of their 21st birthday or one year of January 31, 2002, whichever is later. For purposes of this provision, trafficking victimization is deemed to have occurred on the last day in which an act constituting an element of a severe form of trafficking in persons occurred. If the applicant misses the deadline, he or she may still apply if he or she can show exceptional circumstances that prevented filing in a timely manner. These exceptional circumstances may include severe trauma, either physical or mental.55 There are special provisions for persons who have proceedings pending before the Immigration Court or who have a final order of removal. Persons in pending Immigration Court proceedings must inform the INS if they intend to apply for T nonimmigrant status. Upon INS agreement or the Immigration Court's or BIA's own initiative, the proceedings may be administratively closed in order to allow the person to apply for T nonimmigrant status with the INS. If T-1 status is denied, the INS may move to reopen the proceedings.56

48 49 50 51 52 53 54 55 56

67 Fed. Reg. 4796 (to be codified as 8 CFR § 214.11(k)(4)). 67 Fed. Reg. 4801, to be codified as 8 CFR § 212.11(p). Id. 67 Fed. Reg. 4801 (to be codified as 8 CFR § 214.11(l)(4)). 67 Fed. Reg. 4801 (to be codified as 8 CFR § 214.11(r)). Id. 67 Fed. Reg. 4796 (to be codified as 8 CFR § 212.16(b)(4)). 67 Fed. Reg. 4797 (to be codified as 8 CFR § 214.11(d)(4)). 67 Fed. Reg. 4797 (to be codified as 8 CFR § 214.11(d)(8)).

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A person with a final order of exclusion, deportation or removal is not precluded from applying for T nonimmigrant status. He or she should file the application directly with the INS and may also apply for a stay of removal pending the INS' decision. If the INS determines that the application is bona fide, it will automatically stay execution of the removal order until it makes a final decision on the T application.57

§ 12.4 ADMISSION OF THE T-1 NONIMMIGRANT'S IMMEDIATE FAMILY MEMBERS An individual who has applied for or been granted T-1 nonimmigrant status may apply for admission of his or her spouse and children and, if the T-1 nonimmigrant is a child, for admission of his or her parent, if issuance of those visas is necessary to avoid extreme hardship. These relatives are granted T-2 (spouse), T-3 (child), or T-4 (parent) nonimmigrant status.58 The applicant must establish a qualifying relationship to the derivative family member. This relationship must exist when the application for T-1 nonimmigrant status was filed and must continue to exist when the application for T-2, T-3, or T-4 status was applied for and at the time of the family member's subsequent admission to the United States.59 The applicant must also establish that the derivative family member or the T-1 principal nonimmigrant would suffer extreme hardship if the derivative family member were not allowed to accompany or follow to join the principal T-1 nonimmigrant.60 The INS's interim regulations provide that the hardship factors used in deciding applications for suspension of deportation will also be used in determining whether hardship exists for purposes of T-2, T-3, and T-4 nonimmigrant visas.61 Those factors are found at 8 CFR § 240.58. In addition, the INS will consider the following:

· · ·

The need to provide financial support of the principal alien; The need for family support for a principal alien; or The risk of serious harm, particularly bodily harm, to an immediate family member from the perpetrators of the severe forms of trafficking in persons.62

T nonimmigrants are not limited to these hardship factors, however, and should present evidence of all hardship factors in the particular case.63 Advocates should also remember the importance of documenting all hardship factors in the client's case, because the cumulative effect of those factors may constitute extreme hardship, even if no individual hardship factor rises to that level.

57 58 59 60 61 62 63

67 Fed. Reg. 4797 (to be codified as 8 CFR § 214.11(d)(9)). 67 Fed. Reg. 4801 (to be codified as 8 CFR § 214.11(o)). 67 Fed. Reg. 4801 (to be codified as 8 CFR § 214.11(o)(4)). INA § 101(a)(15)(T)(ii); 67 Fed. Reg. 4801 (to be codified as 8 CFR § 214.11(o)). 67 Fed. Reg. 4801 (to be codified as 8 CFR § 212.11(o)(5)) 67 Fed. Reg. 4801 (to be codified as 8 CFR § 212.11(o)(5)). Id.

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The T-1 nonimmigrant may apply for the family members on his or her own T application or in a separate application filed later.64 The application consists of the following:

· · · · · ·

Form I-914; Filing fee (in addition to that of principal applicant); Three current photographs; Fingerprint fee ($50.00); Evidence of relationship; and Evidence demonstrating extreme hardship.65

§ 12.5 ADJUSTMENT OF STATUS FROM T NONIMMIGRANT TO LAWFUL PERMANENT RESIDENCE One of the most beneficial aspects of the T visa is that it allows T nonimmigrants who meet the eligibility requirements to adjust status to lawful permanent residence after three years in T nonimmigrant status. The INS has not yet issued regulations implementing this provision,66 although there are some references to the adjustment process in the interim regulations. Those regulations provide that the applicant must apply to adjust status to permanent residence within the 90 days preceding the expiration of the three-year period.67 The Attorney General, in his or her discretion, may adjust the status of a principal T nonimmigrant, and any person admitted as his or her spouse, parent, or child, to lawful permanent residence if the following requirements are met:

·

· ·

The applicant has at least three years of continuous physical presence in the United States after admission as a T nonimmigrant [a single absence of 90 days or aggregate absences of 180 days precludes a finding of continuous physical presence]; The applicant has been a person of good moral character throughout that period; The applicant has during that period complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking, or would suffer extreme hardship involving unusual and severe harm if removed from the United States; and

64 65 66 67

67 Fed. Reg. 4801 (to be codified as 8 CFR § 212.11(o)(1)). 67 Fed. Reg. 4801 (to be codified as 8 CFR § 212.11(o)(3)). 67 Fed. Reg. 4784 (preamble). 67 Fed. Reg. 4801 (to be codified as 8 CFR § 212.11(p)(2)).

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The applicant is admissible. The same waivers of inadmissibility grounds that apply to T nonimmigrants also apply to those individuals when they apply to adjust status to lawful permanent residence.68

§ 12.6 U NONIMMIGRANT VISAS No visas are being issued yet pending INS's promulgation of regulations, but persons who appear eligible may be allowed to remain in the United States under interim relief measures, pending issuance of the regulations. 1. REQUIREMENTS FOR THE U VISA The applicant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity;69

·

The applicant (or, if the applicant is under age 16, his or her parent, guardian or next friend) possesses information concerning the criminal activity and has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution;70 The criminal activity referred to is rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, FGM, being held hostage, peonage, involuntary servitude, slave trade, kidnaping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, or attempt, conspiracy, or solicitation to commit any of the above-mentioned crimes, or any similar activity in violation of federal, state or local criminal law;71 The criminal activity violated the laws of the United States or occurred in the United States or its territories or possessions;72 and The visa petition contains a certification from a federal, state, or local law enforcement official, prosecutor, judge, or other authority investigating criminal activity, or from an INS official, stating that the applicant "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution of the criminal activity.73

·

·

·

Note that there is no requirement of relationship to a USC or LPR abuser, nor are U visas limited to victims of domestic abuse.

68 69 70 71 72 73

INA § 245(l)(2). INA § 101(a)(15)(I)(i)(I). INA § 101(a)(15)(U)(i)(II). INA § 101(a)(15)(U)(iii). INA § 101(a)(15)(U)(i)(II). INA § 101(a)(15)(U)(iii).

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2. ANNUAL LIMIT There is an annual limit of 10,000 U-1 visas per year. This limit applies only to U-1 principal applicants, and does not apply to derivative family members.74 We will not know until the INS issues its regulations how the Service will handle applications beyond the first 10,000 in a given year. For a similar annual limit on T visas, however, the INS has provided that, after the annual limit is reached, subsequent applications will be reviewed for eligibility and, if the applicant is eligible, he or she will be placed on a waiting list until a visa is available. INS may take a similar approach for the U visa annual limit. 3. EVIDENTIARY STANDARD When adjudicating a U-1 visa application, the INS must use the "any credible evidence" standard already employed in adjudicating self-petitions and applications for cancellation of removal by abused spouses of LPRs and USCs.75 4. FAMILY MEMBERS OF U NONIMMIGRANTS The Attorney General may issue U visas to the spouse, child, or, for a child, parent of the U nonimmigrant, if it is necessary to avoid extreme hardship to the spouse, child, or parent. The applicant must present a certificate from a law enforcement officer that an investigation or prosecution would be harmed without the assistance of the spouse, child, or parent.76 5. NONIMMIGRANT WAIVERS The INS may waive all inadmissibility grounds, other than INA § 212(a)(3)(E) [genocide and Nazi persecutions], if the waiver is in the public or national interest.77 6. EMPLOYMENT AUTHORIZATION While U nonimmigrants are in lawful nonimmigrant status, the INS must provide them with employment authorization.78 7. ADJUSTMENT TO PERMANENT RESIDENCE A U-1 nonimmigrant may adjust status to lawful permanent residence if he or she meets the following requirements:

74 75 76 77 78

INA § 214(o)(2). INA § 214(o)(4). INA § 101(a)(15)(U)(ii). INA § 212(d)(13) [sic]. INA § 212(o)(3)(B).

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· · ·

The applicant has been physically present in the United States for a continuous period of at least three years since the date of admission as U nonimmigrant. A single absence of 90 days or aggregate absences of 180 days break the continuous physical presence, unless the absence is in order to assist in investigation or prosecution or unless the official involved in investigation or prosecution certifies that the absence was otherwise justified]; The applicant has not unreasonably refused to provide assistance in a criminal investigation or prosecution; The applicant's continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest; and The applicant has not engaged in genocide or Nazi persecutions.79

Upon approval of adjustment for the principal alien, the Attorney General may adjust the status of or issue an immigrant visa to the principal's spouse, child, or, for a U nonimmigrant under 21, parent who did not receive nonimmigrant U visa, if the adjustment or visa issuance is necessary to avoid extreme hardship.80 8. CURRENT STATUS OF U VISAS81 U visas are not being issued yet, but the INS has issued interim guidance stating that:

· ·

· ·

Persons who may be eligible for U visas should not be removed from the United States until they have had the opportunity to avail themselves of the law. The INS may grant potential U visa beneficiaries parole, deferred action, and stays of removal, to allow them to remain in the United States pending issuance of the U visa regulations. The INS may also grant these potential beneficiaries employment authorization. The INS should help in referring crime victims for services, such as medical care and reasonable protection. The INS "should keep in mind that is it better to err on the side of caution than to remove a possible victim to a country where he or she may be harmed by the trafficker or abuser or by their associates."82

79 80 81

INA § 245(l) [sic]. INA § 245(o)(3).

The information set forth in this subsection is based in large part upon very helpful strategy and recommendations produced and kindly provided by Gail Pendleton of the National Lawyers Guild's National Immigration Project and by the National Network on Behalf of Battered Immigrant Women, in a document entitled "Strategy for Obtaining Interim Relief for U Visa Eligible Noncitizens," (hereinafter "NIP U memo"). You can download this document from the National Lawyers Guild website. Go to www.nationalimmigrationproject.org and click on "domestic violence." Cronin, Act'g. Exec. Assoc. Commr., Office of Programs, INS Memo HQINV 50/1, re: Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) Policy Memorandum # 2 - "T" and "U" Nonimmigrant Visas (August 30, 2001) (copy on file with CLINIC).

82

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9. APPLICATIONS FOR INTERIM RELIEF BY POTENTIAL U NONIMMIGRANTS The National Network on Behalf of Battered Immigrant Women and the National Immigration Project of the National Lawyers Guild have prepared a memorandum, outlining an interim strategy for U visa applications, to be used pending issuance of INS regulations.83 A copy of that memorandum is attached at Appendix 54. Generally, the type of interim relief in question is deferred action status, a form of prosecutorial discretion under which the INS allows persons to remain in the United States for a designated period of time, sometimes with employment authorization, rather than taking steps to deport them. Persons who appear eligible for the U nonimmigrant visa and who have received a notice to appear or other charging document initiating removal proceedings, or who have otherwise come to the INS's attention, should consider applying for interim relief. Undocumented persons who are not in removal proceedings and have not come to INS's attention, however, should be aware that an application for interim relief necessarily announces to the INS that the applicant is in the United States. If the request for interim relief is not granted, an applicant who is not in valid status risks being placed in removal proceedings. In general, pending issuance of the U visa regulations, undocumented persons should present themselves to INS only if they have very strong cases for U nonimmigrant status and have an urgent need for documentation. Even for clients who will not be applying for interim relief, however, advocates can gather documentation, including the law enforcement certificate, to support the application once the INS issues its regulations. If the potential U nonimmigrant is not in removal proceedings, he or she may apply for interim relief with the local INS district office. If the potential U nonimmigrant is in proceedings, he or she should present the application for interim relief to the Associate District Counsel and request that the Service join in a motion to continue, administratively close, or terminate the proceedings to allow the applicant to apply to the INS for U nonimmigrant status once the regulations are issued. The procedures for applying for interim relief recommended in the National Network on Behalf of Battered Immigrant Women's memorandum are summarized below. Advocates should remember, however, that this is a measure for interim relief only. Recommendations for applying for interim relief may change if INS issues further interim guidance, and the recommendations are intended for use only until the INS issues its regulations implementing the U nonimmigrant visas. Steps in applying for U interim relief:

· · ·

Obtain a U visa certification on letterhead from the investigating or prosecuting authority; Contact the INS District Office to determine if and how requests for interim relief are being processed; If the INS District Office is processing the requests, present the application to the INS local office or the INS Associate District Counsel, as outlined above.

83

NIP U memo, supra n. 82.

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The application for interim relief should include the following:

·

· · · · ·

A cover letter requesting that the applicant be granted interim relief pending issuance of U visas. The letter should explain how the applicant meets the requirements for the U nonimmigrant visa listed above. It should also provide necessary identification information, including the applicant's full name and date and place of birth. If the applicant's spouse, child, or, for a child applicant, parent, will also be seeking interim relief, the cover letter should state this and should list identifying information such as the family members' names, dates of birth, and relationship to the principal applicant. The letter must also explain how the derivative family members would be caused extreme hardship if they were not granted interim relief pending issuance of U visas. A copy of the applicant's birth certificate, passport, or other identify document, if available. Evidence that the victim has suffered substantial physical or mental abuse as a result of criminal activity (see below). A certificate from a law enforcement officer (see below). Documentation of the family relationship between the principal applicant and his or her spouse, parent, or child, such as birth and marriage certificates. A G-28, Notice of Appearance as Attorney of Record, for accredited representatives and lawyers.

Establishing substantial physical or mental abuse. While we will not know exactly how the INS will interpret the term "substantial physical or mental abuse" until the INS issues regulations on the U nonimmigrant visa, we can make an educated guess at probative evidence from experience gained in documenting VAWA self-petitions and from the INS's recent interim regulations on T nonimmigrant visas. It is important to note that the abuse is not confined to physical abuse, but also includes mental abuse. The term "substantial" indicates that the abuse must rise to a certain level of severity. Evidence of physical or mental abuse could include a detailed declaration from the victim, declarations or statements from witnesses, police reports, photographs, medical records, and reports and records from counselors and therapists. Counselors' and therapists' statements should explain why the facts as related to them are credible in light of their experience. It is also essential to remember that U nonimmigrant visa applicants, and presumably requests for interim relief by potential U nonimmigrants, should be judged by the "any credible evidence" standard. This means that the Service may not insist upon primary source documents, but instead must consider all credible evidence submitted by the applicant. The certificate of a law enforcement officer. A crucial element in an application for U interim relief is the certification by a government official that the applicant possesses information concerning the criminal activity and is being, has been, or will be helpful in its investigation and prosecution. A form certificate, drafted by the National Network on Behalf of Battered Immigrant Women, is attached at Appendix 55. Advocates should take steps to obtain

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the certification while the crime or investigation is ongoing, while the matter is still high on the agenda of the law enforcement personnel and evidence is fresh. An initial question is who can prepare and sign the certificate. The statute allows any federal, state, or local law enforcement official, prosecutor, judge, or other authority investigating criminal activity to issue the certificate.84 Examples of other investigative authorities might include Child Protection Services and the FBI. The certificate may also be provided by an INS official whose ability to provide such certificates is not limited to information concerning immigration violations.85 The law enforcement certificate should do the following:

· · · · · · ·

·

Identify the certifier by name, employer, position, job title, employer's address, and phone number; Confirm that the certifier is responsible for investigating or overseeing the investigation of criminal activity in violation of federal, state, or local criminal laws; State the specific criminal activity at issue in the applicant's case, including the statute or code section that has been violated; Specify the dates and locations of the criminal activity; Certify that the applicant possesses relevant information relating to the criminal activity and describe that information; Certify that the applicant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the criminal activity; If applicable, certify that the investigation and/or prosecution would be harmed without the assistance of the applicant's spouse, child, or parent [this provides the basis for issuance of a dependent U nonimmigrant visa to the spouse, child, or parent]; and Affirm that the criminal activity occurred in the United States or its territories or possessions or is in violation of U.S. law.

§ 12.7 CONCLUSION The new U and T nonimmigrant visas are a significant development in providing relief to persons who have suffered from crime or trafficking in persons. These visas offer their recipients the ability to live and work in safety, to be reunited with their families, and eventually to adjust status to permanent residence in the United States.

84 85

INA § 214(o)(1). Id.

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CHAPTER 13 GENDER-BASED ASYLUM

Asylum is a remedy available to individuals who have been persecuted or who face persecution in their countries because of their race, religion, nationality, political opinion, or membership in a particular social group. They must demonstrate either that they were persecuted in the past or that there is a reasonable possibility ("a well-founded fear") that they would face persecution if they were sent back to their countries. The persecution can be by the government or by a group or individual the government is unable or unwilling to control. Asylum seekers must also present evidence that their persecutor was motivated to harm them at least in part "on account of" a protected ground: their race, religion, nationality, political opinion, or particular social group. In recent years, a growing number of individuals have sought asylum based on genderrelated persecution. These include undocumented women and children living in the United States who have been severely abused by members of their family, who face ongoing abuse or even death if they return to their countries, but who may not be eligible for other forms of immigration relief for battered immigrants. What follows in this chapter is a discussion of gender-based asylum by Lauren Gilbert, formerly a CLINIC staff attorney and now a Visiting Professor at St. Thomas University School of Law in Miami. It is adapted and updated from her article, Family Violence and U.S. Immigration Law: New Developments and reprinted with permission from West Group.1

For another excellent discussion of gender-based asylum claims, please also see "Seeking Asylum from Gender Persecution: Progress and Uncertainty," 79 Interpreter Releases 689 (May 13, 2002) by Stephen M. Knight of the Center for Gender and Refugee Studies

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CROSSING THE PRIVATE/PUBLIC DIVIDE: ASYLUM CLAIMS BASED ON DOMESTIC VIOLENCE by Lauren Gilbert*2

Undocumented women and children living in the United States who have been severely abused by members of their family, who face ongoing abuse or even death if they return to their countries, but who may not be eligible for other forms of immigration relief for battered immigrants, should carefully consider filing an asylum claim.3 This is still an area very much in flux, and it should be emphasized at the outset that asylum claims involving domestic violence have infrequently been recognized by the INS Asylum Office or the Immigration Court. On December 7, 2000, however, in the waning days of the Clinton Administration, the Attorney General and the INS proposed new rules that would recognize domestic violence as a basis for asylum where it is supported by a legal system or social norms that condone or perpetuate such violence. The proposed rules called into serious question without explicitly overruling the Board of Immigration Appeals' ("BIA") 1999 decision in Matter of R-A-, Int. Dec. 3403 (June 11, 1999), which denied asylum to a Guatemalan woman because the persecution she suffered was, according to the majority, not recognized as a basis for asylum under U.S. law. Then, on January 19, 2001, on President Clinton's last full day in office, Attorney General Janet Reno vacated Matter of R-A-, sending it back to the BIA to reconsider once the proposed rules became final, thus opening the way for new asylum claims based on domestic violence.4 The Department of Justice, under the mandate of Attorney General John Ashcroft, is still reviewing public comments on the proposed rules; their future and that of Matter of R-A- remained uncertain at the time of this writing.5 Nonetheless, there have been positive signs. When asked during his confirmation hearing what his position would be on the proposed rules, Ashcroft responded that he would maintain his long-standing commitment to fighting domestic violence and other forms of violence against women and that we should treat those fleeing persecution with compassion and fairness. Earlier this year, the Asylum Office sent a specially trained officer to Miami to interview an Ecuadorian asylum applicant with a claim based on domestic violence. Her application was subsequently granted after a long and arduous interview. In June 2001, during the American Immigration Lawyers Association's Annual Conference in Boston, the BIA heard oral argument on an asylum claim involving domestic violence, and appeared inclined to rule favorably, the only issue being whether to grant outright or to remand to the immigration judge. It is the INS position that the proposed rules, although not binding, represent the analytical framework that the Department of

*This article has been adapted and updated from L. Gilbert, Family Violence and U.S. Immigration Law: New Developments, Immigration Briefings 01-3 (March 2001). Reprinted with permission from West Group. Copyright 2001 West Group. 3 See Anker, Kelly, & Gilbert, Women Whose Governments Are Unable or Unwilling to Provide Reasonable Protection from Domestic Violence May Qualify As Refugees Under United States Asylum Law, 11 Georgetown Immig. L. J. 709 (Summer 1997)(hereinafter "Domestic Violence Asylum Claims"). See also Anker, Law of Asylum in the United States 258 - 261 , 388 - 394 (3rd Edition 1999)(hereinafter "Anker"). 4 See In re Matter of Rodi Alvarado Pena, Order No. 2379-2001, Office of the Attorney General (Jan. 19, 2001)(hereinafter "Reno Order"). 5 See Proposed Rule: Asylum and Withholding Definitions, 65 Fed. Reg. 76588 (Dec. 7, 2000)(hereinafter "Proposed Rule").

2

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Justice believes is appropriate for gender-related and domestic violence based cases. Based on the optimistic assessment that some version of the proposed rules will survive the rule making process, this article attempts to provide a roadmap for representing clients with asylum claims involving domestic violence. A. Eligibility for Asylum Under Current Standards

Asylum is a remedy available to individuals who have been persecuted or who face persecution in their countries because of their race, religion, nationality, political opinion, or membership in a particular social group. They must demonstrate either that they were persecuted in the past or that there is a reasonable possibility ("a well-founded fear") that they would face persecution if they were sent back to their countries. The persecution can be by the government or by a group or individual the government is unable or unwilling to control. Asylum seekers must also present evidence that their persecutor was motivated to harm them at least in part "on account of" a protected ground: their race, religion, nationality, political opinion, or particular social group.6 In 1996, with passage of IIRAIRA, Congress imposed new requirements on asylum seekers in the United States.7 They must now apply for asylum within a year of their arrival in the United States or demonstrate extraordinary or changed circumstances for why they did not apply within the year.8 Also individuals who arrive at a U.S. port of entry without valid travel documents are subjected to "expedited removal". Although asylum seekers are entitled to a "credible fear" interview by an immigration officer, they may be returned home to their countries without ever seeing an immigration judge.9 IIRAIRA also gave the Attorney General broad discretion to establish additional limitations and conditions under which an asylum seeker can be found ineligible for asylum.10 Pursuant to regulations, asylum seekers also must demonstrate that they were not firmly resettled in a third country prior to entering the United States to be found eligible for asylum.11 Finally, they must demonstrate that they do not fall within one of the other exceptions to asylum eligibility (persecution of others, threat to national security, particularly serious crime, serious non-political crime outside the United States.12

See INA §§101(a)(42)(A). See also Matter of S-P-, Interim Dec. 3287 (BIA 1996) at 4. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of the Omnibus Appropriations Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (hereinafter "IIRAIRA") at §604 (codified as amended at INA §208). 8 Id. (codified as amended at INA §208(a)(2)(B)). 9 Id. at §302 (codified as amended at INA §235(b)(1)(A)). See also Schrag & Pistone, Asylum Changes and Expedited Removal, in Understanding the 1996 Immigration Act 2-1 (Federal Publications, 1997). 10 Id. at §604(codified as amended at INA §208(b)(2)(C)). 11 8 CFR §208.13(d), as amended. 12 IIRAIRA, supra note 5, at §604 (codified as amended at INA §208(b)(2)).

7

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An asylum seeker must prove that: · · · · The harm she suffered or fears is serious enough to constitute "persecution"; She suffered past persecution or has a "well-founded fear" of future persecution; She was persecuted by the State or by a group or individual the government is unable or unwilling to control; Her persecutor was motivated to persecute her, at least in part, because of her race, religion, nationality, political opinion, or membership in a particular social group, or because of what he perceived to be her race, religion, nationality, political opinion, or membership in a particular social group; She was not firmly resettled in a third country prior to arriving in the U.S. She does not fall within one of the other exceptions: · · · · B. She has not engaged in the persecution of others; She has not committed a particularly serious crime that would make her a danger to the community; She has not committed a serious non-political crime outside the U.S. She is not a danger to U.S. security.13

· ·

Asylum Claims Involving Domestic Violence

A critical advance in the area of women's human rights has been the recognition that women's rights are human rights. Women often experience human rights abuses that are "particular to their gender", including rape, molestation, domestic violence, sexual harassment, and sexual slavery. Furthermore, many of the serious harms faced by women are not inflicted in a public forum but are cultural or customary practices, including violence in the home, that are imposed by members of women's families or communities.14 In 1995, the INS, following Canada's lead, adopted Considerations for Asylum Officers Adjudicating Asylum Claims from Women (hereinafter, "INS Gender Guidelines").15 These guidelines recognize that women often experience types of persecution different from those faced by men, and cite domestic violence as one form of gender-related persecution that can be the basis for an asylum claim.16

INA §101(a)(42)(A); INA §208. See also 8 CFR §208. See Domestic Violence Asylum Claims, supra note 1, at 711. 15 See INS Office of International Affairs, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (May 26, 1995)(hereinafter INS Considerations), reported on and reproduced in 72 Interpreter Releases 771, 781 (June 5, 1995). 16 Id. at 4.

14 13

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Although these guidelines apply to Asylum Officers, they have had a persuasive impact on many immigration and federal court judges around the country. Following issuance of the INS Gender Guidelines, a growing number of asylum officers and Immigration Judges across the country began to grant asylum claims based on domestic violence.17 Nonetheless, many adjudicators and policymakers did not recognize these claims as falling within the refugee definition, even under the most compelling circumstances. They tended to see domestic violence aes a private family matter outside the scope of refugee protection.18 For years, practitioners awaited a definitive ruling from the Board. The Board's longawaited decision in Matter of R-A-, Interim Decision 3403 (1999) was far worse, however, than advocates or even the INS could have imagined. Although the 10-5 majority found that R-Ahad been persecuted and that her government had failed to provide adequate protection, it determined that she was not persecuted because of a protected ground, ie., political opinion or membership in a particular social group.19 Specifically, it appeared to view domestic violence as a private family matter outside the purview of U.S. asylum law; it rejected the applicant's argument that her husband had persecuted her based on her membership in the particular social group of Guatemalan women intimately involved with abusive Guatemalan men, since there was no indication that her husband would harm any other members of the group. The decision, which was appealed to the Ninth Circuit Federal Court of Appeals, was immediately condemned by immigrant and domestic violence advocates across the country as contrary to established principles of human rights and U.S. asylum law. In January 2000, 100 amici curiae supported the request by Rodi Alvarado that the Attorney General certify and reverse Matter of R-A.20 On December 7, 2000, the U.S. Attorney General and the INS issued proposed rules which provide guidance in adjudicating asylum claims based on domestic violence.21 On January 19, 2001, Janet Reno vacated Matter of R-A-, sending it back to the Board to reconsider in light of the proposed rules.22 It is unclear, however, what the future holds for these proposed rules. The deadline for providing written comments to the proposed rules was January 22, 2001, two days after the new Administration took office.23 It will be up to the Department of Justice, under the direction of John Ashcroft, to review the comments and issue final rules.

17

See Matter of PR (IJ May 23, 1997)(York, Pa.)(granting asylum to woman from India who had been beaten and abused by her mother-in-law, culminating in attempt to set her on fire); Matter of Sharmin, A73 556 833 (IJ Sept. 27, 1996)(New York, NY)(granting asylum to Bangladeshi woman victim of domestic violence), reported on in 74 Interpreter Releases 174 (Jan. 27, 1997); Matter of A- and Z-, A72 190 893, A72 793 219 (IJ Dec. 20, 1995)(Arlington, Va.)(granting asylum to a woman from Sierra Leone who had been beaten repeatedly by her husband over period of approximately two years); In re T-A- (San Francisco Asylum Office Nov. 1996)(asylum granted to Honduran woman subject to beatings, rape and related abuses by her father since she was a small child). 18 See, e.g., Matter of Pierre, 15 I&N Dec. 461 (BIA 1975); Matter of A-, A72 988 567 (BIA Feb. 1, 1996), reported on in 73 Interpreter Releases 895-896 (July 8, 1996). 19 Matter of R-A-, Interim Dec. 3403 (1999) at 19-24 (vacated by Order No. 2379-2001, Office of the Attorney General (Jan. 19, 2001)(hereinafter "Reno Order")). 20 See Brief of Amici Curiae in Support of Request for Certification and Reversal of the Decision of the Board of Immigration Appeals in In re R-A- , (Interim Dec. No. 3403)(January 21, 2000). 21 Proposed Rule, supra note 2. 22 Reno Order, supra note 3. 23 Proposed Rule, supra note 2, at 76588.

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Despite Janet Reno's decision to vacate Matter of R-A- and the positive signs discussed above, until the future of the proposed rules becomes more certain, attorneys and other representatives should carefully weigh their clients' options in considering whether to bring an asylum claim based on domestic violence. For clients who are in removal proceedings and have no other options, asylum may well be a remedy worth pursuing. For clients who are not in proceedings but are facing their 1-year filing deadline, it will depend on the strength of their case. They may wish to go ahead and file, recognizing that it will be an uphill battle. It is very important that clients make this decision themselves, and that their attorneys and representatives fully advise them of the risks and consequences. C. A Brief Review of Asylum Procedure 1. Filing and Interviewing with the INS Asylum Office24

If an applicant decides to proceed with her asylum application, but has never been in removal or deportation proceedings before an Immigration Judge, she would file her I-589 application with the Immigration and Naturalization Service. She should file three copies of her application with the appropriate regional INS Service Center, as indicated on the I-589 instructions. Within approximately one to two months, the Service Center will schedule her for an interview with the local INS Asylum Office. She will receive a notice of her interview in the mail. She will need to attend the interview with an interpreter if she is not fluent in English. Her attorney or BIA accredited representative can not also serve as her interpreter. Her case can be denied if she does not come with an interpreter, although usually it is rescheduled for a second interview.25 The Asylum Officer will meet with the asylum seeker, her representative, and the interpreter in his or her office. This is a non-adversarial interview designed to obtain all the information needed to make an accurate assessment of the asylum seeker's case.26 The Asylum Officer is not a judge, and may not even be a lawyer. Some officers are very sympathetic to asylum seekers. Others are less so. An outstanding documentary on the role of Asylum Officers in the application process is the PBS film "Well-Founded Fear" by Shari Robertson and Michael Camerini. Excerpts can be viewed on the PBS website at www.pbs.org/pov/wellfoundedfear.27 An applicant will not know who her Asylum Officer is until the day of her interview.

For a thorough discussion of procedures for filing for asylum with the INS Asylum Office or in Immigration Court, see Anker, supra note 1, at Appendix A, p. 523 et seq. 25 8 CFR §208.9(g). 26 8 CFR §208.9(b). 27 . See Public Broadcasting Service, Well-Founded Fear: A Film by Shari Robertson and Michael Camerini (visited February 22, 2001) <http://www.pbs.org/pov/wellfoundedfear>.

24

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One of the key issues the Asylum Officer will need to establish is whether the asylumseeker is credible. Many cases are denied because of inconsistencies between what the asylum applicant puts in her asylum application and what she tells the asylum officer. Asylum officers may see many applicants with fabricated claims. Thus, it is often hard to convince them that an applicant is telling the truth. The Asylum Officer must also determine whether the applicant meets the standard for asylum discussed above.28 The Asylum Officer will ask the applicant a number of questions about her application. The first set of questions are generally about biographical information. The INS will then ask the applicant detailed questions about her claim. These questions are designed to elicit details about the case, to test credibility, and to determine if the applicant meets the legal standard for asylum. It is critical that an applicant is well-prepared and that her attorney keep the legal standard for asylum in mind in preparing the asylum applicant for her interview and in developing the theory of the case, especially cases involving domestic violence. The lawyer or representative will have the opportunity to make a brief closing argument at the end of the interview, and to bring up any issues that the Asylum Officer did not address.29 The representative, however, is usually not allowed to intervene during the interview. On the other hand, if, for example, the interpreter inaccurately translates something the applicant has said, the attorney may want to interject, and suggest that the applicant repeat her statement so that it can be properly translated. When the interview is over, the Asylum Officer will schedule the asylum applicant for an appointment to pick up the INS decision on her case two weeks following the date of the interview.30 The asylum applicant must return to the Asylum Office with her interpreter to pick up the decision. If the INS decides to approve her application, she will receive a "Recommended Approval". With this, she can apply for employment authorization.31 Following a background check, which takes approximately 4-8 weeks, she will receive the Final Approval and be considered an "asylee". A year after she receives her grant of asylum she will be eligible to apply for Lawful Permanent Residency.32 If she returns to her country before she receives her residency, this may be considered an abandonment of her asylum status.33 2. The Role of the Immigration Court

If the applicant is not recommended for approval by the Asylum Office, two things can happen. If the applicant is still in legal status at the time of the decision, she will receive a Denial, which will include detailed reasoning regarding the Asylum Officer's decision, but she will not be placed in proceedings before a Judge.34 Once her legal status expires, however, the

28 29

8 CFR §208.9(c). 8 CFR §208.9(d). 30 Id. 31 8 CFR §208.7(a)(1). 32 INA §209(a). See also 8 CFR §209.1. 33 INA §208(c)(2)(D). 34 8 CFR §208.14(b)(3). See also 8 CFR 208.17.

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INS can move to place her in proceedings. At that point, she can renew her application with the Immigration Judge. If the applicant no longer is in legal status, her case will not be denied, but be "referred" to the Immigration Court.35 She will receive a Notice to Appear when she returns for her decision, which she will be required to sign, which will include a date for her first Master Calendar Hearing. The purpose of the Master Calendar Hearing is to determine the charges the INS has made against her, what kind of relief she is requesting, and to set a date for an Individual Hearing.36 If the applicant has not already applied for asylum with the Asylum Office, the Judge will set a date by which she must file her asylum application.37 The applicant must attend all her hearings. If she does not appear for any of her court hearings, she will be issued a Final Order of Removal in absentia, which may prevent her from applying for any form of immigration relief in the future.38 An asylum seeker will have a second opportunity at her Individual Hearing to present her asylum case before the Immigration Judge. This is like a trial, where her attorney or representative will ask her questions to help elicit her story, where she can present witnesses and evidence, and where the INS Trial Attorney will act as a prosecutor, cross-examining her regarding her case and the evidence she presents. The Immigration Judge will issue a formal decision, which either side can appeal to the Board of Immigration Appeals.39 3. Eligibility for Employment Authorization

An asylum applicant is not eligible to apply for Employment Authorization until her case has been pending for 150 days.40 150 days is measured from the date the application was first filed with the INS or the Immigration Judge. This is the "Received Date" on the Notice of Action the applicant receives from the INS or the date stamped on the application filed with the judge. The only exception to this 150 day rule is for persons who are "paroled" into the United States under INA Sec. 212(d)(5). An asylum applicant cannot be granted work authorization until her case has been pending 180 days. If the applicant does anything to delay the case, including asking the Immigration Judge for a continuance or for more time to file her application, or for a date later than the date the judge proposes for the full hearing, this will stop the clock.41 The 180-day clock will not start again until proceedings commence. If the Immigration Judge denies the case before 180 days have passed, the applicant cannot obtain work authorization while her case is on appeal.42 If the Judge grants the case but the INS appeals, she can obtain work authorization while her appeal is pending.

35 36

8 CFR §208.14(b)(2). See Anker, supra note 1, at 540. 37 Id. at 542. 38 INA §240(b)(5)(A). 39 INA §240(c)(4). 40 8 CFR §208.7(a)(1). 41 8 CFR §208.7(a)(2). 42 8 CFR §208.7(a)(1).

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4.

The Importance of Case Theory

Some of the strongest asylum applications have a good case theory. The theory of the case is the legal argument that ties together the facts of the case with the legal standard for winning asylum.43 That is, all the key facts of the case must help prove: Persecution: the applicant was persecuted or there is a reasonable possibility that she would be persecuted if she were sent back; State Action: her persecutor was either the State or a group or individual the government was not able or willing to control; 1.Nexus: her persecutor was motivated to persecute her, at least in part, because of what he perceived to be her race, religion, nationality, political opinion, or membership in a particular social group, whether or not she actually possessed that characteristic. G. Proving Persecution

The applicant must show either past persecution or that she has a "well-founded fear" of persecution if returned to her country.44 The U.S. Supreme Court ruled that a "well-founded fear" meant a reasonable possibility that the applicant would face persecution if returned to her country. The asylum applicant does not need to prove that it is more likely than not (ie., greater than 50%) that she would be persecuted. Rather, would a reasonable person in her same circumstances fear persecution if she were to return?45 The applicant must show that the harm she suffered or fears is serious enough to constitute persecution. Although the asylum statute does not define persecution, case law has established that persecution is "the infliction of suffering or harm upon persons who differ in a way regarded as offensive."46 Persecution is considered an extreme concept that does not include every type of conduct society regards as offensive.47 The harm or suffering need not be physical, but can include other violations of human rights, including psychological torture, the imposition of severe economic disadvantage, or the deprivation of liberty, food, housing, employment, and other essentials.48 The proposed asylum rules clarify that the persecutor does not need an intent to harm or punish for persecution to exist.49 For example, in Matter of Kasinga, the Immigration Appeals found that a young woman from Togo qualified for asylum based on her fear of being subjected

43

For an excellent discussion of the importance of case theory, see Binny Miller, Give Them Back Their Lives: Client Narrative and Case Theory, 93 Michigan Law Review 485 (1994). 44 See INA §101(a)(42). See also 8 CFR §208.13. 45 See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-431 (1987). 46 See Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969). 47 See Fatin v. INS, 12 F.3d 1233, 1242 (3d Cir. 1993). 48 See Anker, supra note 1, at 233-243. 49 Proposed Rule, supra note 2, at 76590.

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to Female Genital Mutilation, even though practitioners in her society believed they were performing an important cultural ritual.50 Rather, the asylum seeker must demonstrate that the harm is objectively serious and that it is experienced by the applicant as serious harm.51 In developing the facts of the applicant's case, it is important to work with her to help her remember and describe in as much and as graphic detail as possible each incident of domestic violence and psychological abuse. Often this will be difficult for the client, and will force her to relive much of the trauma she experienced. Victims of severe physical and psychological abuse may suffer from Post-Traumatic Stress Disorder, and it may be best for your client to obtain counseling while her case is pending, and as needed thereafter. Also, it will be very helpful to include any other documentation of abuse that is available, including medical records, police reports, court records, expert affidavits, and information on country conditions. If she receives counseling, her counselor should, at a minimum, be willing to prepare an affidavit and ideally, testify regarding the abuse she has experienced.52 It will be much harder to develop an asylum claim based on domestic violence in cases of psychological abuse but where there is no physical violence, although there may be cases involving severe psychological torture or deprivation of freedom, food, housing, and so forth, that will rise to the level of persecution. It is best to include each incident of violence in the initial draft with as much detail as possible. The declaration can be edited later to ensure its relevance to the case theory. In Matter of R-A-, for example, the applicant included graphic and disturbing detail of the abuse. This was helpful in proving persecution, and the Board concluded that the "severe injuries sustained by the respondent rise to the level of harm sufficient (and more than sufficient) to constitute `persecution.'" The Board summarizes some of its findings as follows: . . . One night, he woke the respondent, struck her face, whipped her with an electrical cord, pulled out a machete and threatened to deface her, to cut off her arms and legs, and to leave her in a wheelchair if she ever tried to leave him. . . When the respondent could not give 5,000 quetzales to him when he asked for it, he broke windows and a mirror with her head . . . Whenever he could not find something, he would grab her head and strike furniture with it. Once, he pistol-whipped her. When she asked for his motivation, he broke into a familiar refrain, "I can do it if I want to."53 On the other hand, as will be discussed further below, although the Board found past persecution and lack of state protection by the Guatemalan authorities, it also found that R-A-`s abuser had

50 51

See Matter of Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996). Proposed Rule, supra note 2, at 76597 (to be codified at 8 CFR §208.15). 52 For a helpful overview of the use of psychological assessments in asylum cases, see F. Barton Evans III, Forensic Psychology and Immigration Court: An Introduction, Immigration & Nationality Law Handbook (2000-2001 edition).

53

In re R-A-, supra note 17, at 4.

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not persecuted her for a protected ground, but rather, beat her whenever he felt like it.54 In presenting the facts of the applicant's case, it is critical to keep in mind the case theory and to focus on those incidents of domestic violence that occurred on account of a protected ground. H. Proving State Action (or Inaction)

In order for the harm suffered to be persecution, it must be inflicted either by the government or a person or group the government is unable or unwilling to control.55 The applicant has the burden of showing that the persecutor was the State or an entity the government either could not or would not control.56 Matter of R-A- recognized that harm inflicted by a family member can be persecution where the applicant is unable to obtain meaningful assistance from government authorities in connection with the abuse.57 The proposed rules recognize that domestic violence may rise to the level of persecution where it is supported by a legal system or social norms that condone or perpetuate male violence. They would call on the immigration judge or asylum officer to determine "whether the government has taken reasonable steps to control the infliction of harm or suffering and whether the applicant has reasonable access to state protection."58 They list the types of evidence that the Asylum Officer or Immigration Judge should consider in determining whether the standard has been met.59 These factors are useful in preparing your applicant's case. After each factor, we have indicated some of the information that would be helpful to gather in proving a lack of state protection: · government complicity with respect to the infliction of harm or suffering; Was the persecutor a state official? Did the government fail to intervene out of deference to this individual? · attempts by the applicant to obtain protection by government officials and the government's response; Did the applicant call the police or seek court protection? How many times? How did the police and/or court respond? · official action which is perfunctory; Did, for example, the police respond to a call but fail to take further action? Was the abuser arrested? If the applicant filed a complaint, did the court fail to take remedial action?

54 55

Id. at 21. INA §101(a)(42). 56 8 CFR §208.13. 57 In re R-A-, supra note 17, at 11. 58 Proposed Rule, supra note 2, at 76597 (to be codified if amended at 8 CFR §208.15(a)). 59 Id.

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·

a pattern of government unresponsiveness; Summarize some of the examples raised above.

·

general country conditions and the denial of services; Are there specific laws protecting victims of domestic violence? Are these laws enforced? Are there domestic violence shelters? Counseling services?

·

government policies regarding the harm at issue; and What role do government agencies play in combating domestic violence? Does the government have an official policy on domestic violence? What types of public pronouncements have government officials made?

·

any steps the government has taken to prevent the harm. See above.

Additionally, an asylum applicant must be able to demonstrate that she could not have avoided persecution by relocating to another part of the country. Final Rules on Asylum Procedure published last December provide for the discretionary denial of asylum applications based on past-persecution where the INS can show that the asylum seeker could have avoided persecution by relocating internally, and where, under all the circumstances, it was reasonable to expect the applicant to do so.60 Similarly, in claims based on a well-founded fear of future persecution, an asylum seeker is deemed not to have a well-founded fear of persecution if the applicant could avoid persecution by relocating internally and if, under all the circumstances, it would be reasonable to expect him or her to do so.61 Where the persecutor is a non-state actor, the asylum seeker has the burden of showing it would not be possible or reasonable to relocate.62 The Final Rule provides for a series of factors that the adjudicator should consider in determining whether internal relocation was reasonable, some of which may be helpful in cases involving domestic violence, including whether the applicant would face other serious harm in the place of suggested relocation, any ongoing civil strife, administrative, economic or judicial infrastructure, geographic limitations, and social and cultural constraints, such as age, gender, health and social and familial ties.63 Factors that are helpful in assessing reasonableness in domestic violence cases include the availability and effectiveness of shelters and other assistance programs, the availability of police protection, enforcement of existing laws in other parts of the country should the abuser follow the victim or attempt to have her returned, and cultural practices or other societal traditions affecting battered women.64

60

See 8 CFR § 208.13 (b)(1)(i)(B). See also Final Rule: Asylum Procedures, 65 Fed. Reg. 76121, 76133 (Dec. 6, 2000)(hereinafter "Final Rule"). 61 8 CFR § 208.13(b)(1)(ii). 62 8 CFR § 208.13(b)(3)(ii). 63 8 CFR §208.13(b)(3)(i). 64 See Domestic Violence Asylum Claims, supra note 1, at 739.

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I.

Proving Nexus ­ The "on Account of" Requirement

An asylum seeker must also prove that she was persecuted or fears persecution "on account of" her race, religion, nationality, political opinion, or membership in a particular social group. In INS v. Elias Zacarias, 502 U.S. 478 (1992), the United States Supreme Court ruled that the "on account of" language in the asylum statute required proof that the persecutor was motivated to act because of the applicant's race, religion, nationality, political opinion, or social group.65 The evidence of the persecutor's motivations can be direct or circumstantial.66 This has proven a difficult evidentiary burden for the asylum applicant, because it requires establishing the state of mind of the persecutor.67 Subsequent case law has established that a persecutor may have "mixed motives", and that as long as the persecutor acted "at least in part" because of a protected ground, the "on account of" requirement is satisfied.68 A handful of cases and the proposed rules suggest that the protected characteristic must be "at the root of" or "central" to a persecutor's motives.69 Case law also establishes the doctrine of imputation. This means that if a persecutor was motivated to act because of what he perceived to be, whether correctly or not, the victim's race, religion, nationality, political opinion, or social group, the nexus requirement is also satisfied.70 The Proposed Rule codifies the doctrine that an applicant may satisfy the "on account of" requirement if the persecutor acts against the victim "on account of what the persecutor perceives to be the applicant's race, religion, nationality, membership in a particular social group, or political opinion."71 The nexus requirement has been a significant problem in asylum cases based on domestic violence, particularly where the asylum applicant argues that she was persecuted "on account of" her political opinion or membership in a particular social group. It is not enough to demonstrate, for example, that she has a political opinion regarding women's equality or belongs to a recognized social group of women opposed to male dominance. The applicant must present

INS v. Elias Zacarias, 502 U.S. 478, 483 (1992) Id. at 483. 67 See Harvard Immigration and Refugee Clinic, Comments on Proposed Rule 7 (Jan. 19, 2001)(hereinafter "Harvard Comments on Proposed Rule")(available from author). 68 See Turubac v. INS, 182 F.3d 1114, 1119 (9th Cir. 1999); Borja v. INS, 175 F.3d 732, 735 (9th Cir. 1999); Fengchu Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997); Harpinder Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995); Osorio v. INS, 18 F.3d 1017, 1928-9 (2nd Cir. 1994); Matter of S-P-, Interim Dec. 3287, at 4(BIA 1996); Matter of V-T-S-, Interim Dec. 3308, at 4 (BIA 1997). 69 See Gebremichael v. INS, 10 F.3d 28, 35 (1st Cir. 1993)(alien must show that one of the five characteristics is "at the root of persecution"). See also Jing Ying Li v. INS, 92 F.3d 985, 987-88 (9th Cir. 1996); Ananeh-Firempong v. INS, 766 F.2d 621, 626-27 (1st, 1985)("root of persecution" standard later cited as authority in Gebremichael, supra, applied in withholding case); Kunden Singh v. INS, 965 F. Supp. 724, 729 (D. Md. 1997); In re R-, 20 I. & N. Dec. 621, 624 (BIA 1992). 70 See INS v. Elias-Zacarias, supra note 319, at 482 ("nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias Zacarias' refusal was politically based"); Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992)(Canas II)("Imputed political opinion is still a valid basis after EliasZacarias."); Surinder Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995); In re. S-P-, Interim Dec. 3287, at 1, 5-6 (BIA 1996). 71 Proposed Rule, supra note 2, at 76597-8 (to be codified if amended at 8 CFR §208.15(b)).

66 65

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evidence that her abuser was motivated to harm her because of her political opinion or social group. The Board appears to have adopted a very traditional definition of political opinion and a restrictive reading of the particular social group requirement. In Matter of R-A-, the Board found that R-A- was not persecuted "on account of" her political opinion, because the record indicated that her husband beat her whenever he felt like it, and not because of her opposition, either stated or inferred, to domestic violence or male dominance.72 The Board also found that the beatings were not "on account of" her membership in a particular social group because there was no evidence that the applicant's husband would harm any other member of the asserted social group ("women living in intimate relationships with male partners who believe in male dominance").73 That is, there was no evidence that R-A-`s husband would seek to harm other women living with abusive partners.74 The Board appears to be more open to asylum claims involving domestic violence, where the asylum seeker can provide some evidence that she was persecuted "on account of" one of the other grounds, ie., race, religion, or nationality. In Matter of S-A-, the Board found that an asylum applicant was beaten by her father, a conservative Muslim, on account of religion where he beat her because of her refusal to submit to his conservative, orthodox beliefs.75 The proposed rules attempt to clarify the circumstances where persecution can be "on account of" membership in particular social group. They are groundbreaking in that they explicitly recognize gender as a basis for membership in a particular social group.76 They are not as helpful in laying out the circumstances were persecution can be "on account of" political opinion.77 However, they do recognize the doctrine of "imputed political opinion" and extend "imputation" to the other grounds of protection.78 Nonetheless, they are more restrictive than current case law in proposing that where a persecutor has "mixed motives", the applicant must show that her protected characteristic was "central" to her persecutor's motivation to act against her.79 i. Political Opinion and Imputed Political Opinion

The proposed rules codify the doctrine of imputed political opinion, recognized in existing case law. That is, the "on account of" requirement is satisfied if the persecutor is motivated to harm the victim because of her actual political opinion or because of what he perceives to be her political opinion.80 The INS Gender Guidelines describe the 9th Circuit case of Fatin v. INS as "mak[ing]

72 73

Matter of R-A-, supra note 17, at 13-14. Id. at 17. 74 Id. 75 Matter of S-A-, Interim Dec. 3433 (June 27, 2000). 76 See Proposed Rule, supra note 2, at 76593, 76598. 77 Id. at 76592, 76597-8. 78 Id. at 76597-8. 79 Id. at 76598. 80 Id. at 76597-8.

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clear that an applicant who could demonstrate a well-founded fear of persecution on account of her (or his) beliefs about the role and status of women in society could be eligible for refugee status on account of political opinion."81 The denial of women's rights takes many forms, including bride burning, FGM, discriminatory treatment in access to employment, education and public life, and violence in the home. When women raise objections to these practices, whether through public expression, organizational activity, defiance of the law, or in the case of domestic violence, through acts of resistance to individual experiences of oppression, this opposition should be recognized as the expression of a political opinion.82 In framing an argument that a victim of domestic violence was persecuted "on account of" her political opinion, the presentation of the facts of the case becomes all-important. The Board denied asylum in Matter of R-A-, because there was testimony on the record that R-A-'s abuser was a sick individual who beat her whenever he felt like it, and not in response to her acts of resistance to male domination.83 In applying the case theory, it is critical, to the extent possible, that the applicant · · develop her testimony regarding her belief in women's right to equality in the home, or at a minimum, assertions of her right to be free from physical abuse; demonstrate any steps she took to achieve independence or freedom from violence, either by seeking police protection, getting a job outside of the home, joining a women's group, leaving her husband, going to a shelter, or standing up to his rages; demonstrate, to the extent possible, how each time her abuser acted against her, he was motivated by something she did or said to achieve independence outside the home or oppose or protect herself from violence inside the home.

·

If the facts do not support such an argument, you should explore some of the legal arguments outlined in the following sections. ii. Membership in a Particular Social Group

The proposed rule is groundbreaking in that it explicitly recognizes gender as a possible basis for membership in a particular social group.84 That is, in certain societies, a woman may be persecuted on account of the fact that she is a woman, particularly in societies that subjugate women.85 In the past, decision makers were reluctant to define a social group in terms of gender alone, and generally required gender plus something else.86 The proposed rule codifies the BIA decision in Matter of Acosta by providing that "a particular social group is composed of members who share a common immutable characteristic, such as sex, color, kinship ties, or past

81 82

INS Considerations, supra note 13, at 11. See Anker, supra note 1, at 370-371. 83 Matter of R-A-, supra note 17, at 12. 84 See Proposed Rule, supra note 2, at 76593, 76598 (to be codified if amended at 8 CFR §208.15(c). 85 Id. at 76593-76595. 86 See, e.g., Gomez v. INS, 947 F.2d 660, 664 (2nd Cir. 1991); INS Considerations, supra note 273, at 13-15.

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experience, that a members either cannot change or that is so fundamental to the identity or conscience of the member that he or she should not be required to change it."87 It also sets forth a non-exclusive set of factors that decision makers can consider in determining whether a particular social group exists: 1.) 2.) 3.) 4.) 5.) 6.) Members of the group are closely affiliated with each other; Members are driven by a common motive or interest; Voluntary associational relationship exists among members; Group is recognized as a societal faction or recognized segment of the population; Members view themselves as members of the group; or Society distinguishes members of the group for different treatment or status.88

The first three factors are from the Ninth Circuit's decision in Sanchez Trujillo, which found that a particular social group implied a collection of people closely affiliated with each other who were actuated by some common impulse or interest.89 This decision led to long-standing confusion in subsequent cases, by suggesting that a social group was defined by some form of voluntary associational relationship.90 The last three factors are from Matter of R-A-.91 The Board in R-A- found no evidence that the claimed particular social group in R-A-, women intimately involved with male partners who believe women should live under male domination, was a group recognized or understood to be a societal faction or that victims of domestic abuse viewed themselves as part of this group.92 The Proposed Rule indicates that, while each of these factors may be considerations, they are not prerequisites. It indicates that it also would be relevant to consider evidence of societal attitudes towards group members93: · In asylum cases based on domestic violence, do societal institutions such as the courts and police fail to intervene because they view domestic violence as a private family matter? Do societal institutions offer fewer protections or benefits to women trapped in abusive relationships than to other victims of crime?

·

The key factor in determining whether a characteristic is one which defines a particular social group is whether that characteristic is immutable ­ either beyond the power of the individual to change or so fundamental to the individual's identity or conscience that he or she should not be required to change it.94 The proposed rule is problematic in addressing when past

87 88

See Proposed Rule, supra note 2, at 76598 (to be codified if amended at 8 CFR §208.15(c)(1). Id. (to be codified if amended at 8 CFR §208.15(c)(3)). 89 Id. at 76594. 90 See Anker, supra note 1, at 382-3; see also Harvard Comments on Proposed Rule, supra note 61, at 11. 91 Matter of R-A-, supra note 17, at 15-18. 92 Id. See also Proposed Rule, supra note 2, at 76594. 93 See Proposed Rule, supra note 2, at 76599 (to be codified if amended at 8 CFR §208.15(c)(3)). 94 See Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985). See also Harvard Comments on Proposed Rule,

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experience defines a particular social group. It provides that a past experience must have been fundamental to the individual's identity at the time it occurred. It suggests, for example, that membership in a violent gang can not be the basis for membership in a particular social group, because the applicant could have refrained from joining.95 A past experience, however, by virtue of its historic permanence, is unchangeable. It is, by definition, an immutable characteristic. The Board in Matter of Acosta addressed this issue by offering a past experience as one example of an immutable characteristic: . . .The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.96 Based on the standard in Matter of Acosta, we can identify three different categories of particular social groups: · · · Groups defined by an innate or unchangeable characteristic; Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and Groups associated by a former voluntary status, unalterable due to its historic permanence.97

In framing the particular social group, the advocate should examine the facts of her case, keeping the above factors in mind.98 In some situations, there may be an overlap with the political opinion ground of protection, such as where the asylum applicant joined a women's organization, participated in protests against gender inequality, or sought assistance from a domestic violence shelter. These are easier cases. In these cases, the social group may be defined in terms of a voluntary associational relationship. To satisfy the nexus requirement, it also will be necessary to provide evidence that the applicant's husband or partner was motivated to harm her because of her activities or opinions.99

supra note 321, at 12. 95 See Proposed Rule, supra note 2, at 76595, 76598 (to be codified if amended at 8 CFR §208.15(c)(2)). 96 See Matter of Acosta, supra note 88, at 233. See also Harvard Comments on Proposed Rule, supra note 321, at 12. 97 See Canada v. Ward (1993) 2 S.C.R. 689, 739. See also Fatin v. INS, supra note 46, at 1242; Harvard Comments on Proposed Rule, supra note 61, at 12. 98 For a helpful discussion of framing domestic violence asylum claims, see Goldberg & Cisse, Practice Advisory: Asylum and Gender: Matter of R-A-, 18 AILA Monthly Mailing 103 (Feb. 2000)(hereinafter "Practice Advisory"). 99 See Anker, supra note 1, at 370-371.

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There may be situations, however, where an applicant was beaten by her husband, not because she did anything to oppose the violence or to assert her independence, but simply because she was a woman in a society where domestic abuse is condoned. Her first act of independence may have been leaving her abuser to flee to the United States. In these cases, the social group may be defined in terms of gender alone.100 It will be important in these cases to examine societal attitudes towards victims of domestic violence, and to present compelling evidence of the state's and society's tolerance of spouse abuse and male dominance. In Aguirre-Cervantes v. INS, Case No. 99-70861 (March 21, 2001), a three-judge panel of the Ninth Circuit reversed the Board of Immigration Appeals and granted asylum to a 19-yearold Mexican woman who suffered years of extreme abuse by her father, who also had abused other members of her family. The Court found that she had been persecuted based on her membership in the particular social group defined in terms of her family membership. It found that members of her immediate family were readily identifiable as a discrete unit and that they shared the common experience of all having suffered persecution at the hands of the petitioner's father. It also found indisputable evidence that her father was motivated to harm her on account of her family membership, and that his goal was to dominate and persecute members of his immediate family. Id. at 3482-3. On October 23, 2001, the Ninth Circuit vacated its decision, and voted to rehear the case en banc, based on the INS' arguments that the three-judge panel had applied an improper standard of review. Aguirre-Cervantes v. INS, Case No. 99-70861 (October 23, 2001). iii. Religion

The INS, the Immigration Courts, and the BIA appear more open to asylum claims involving family violence when a religious regime is committed to upholding a particular religion or belief system, and where a victim is persecuted by family members or by members of her community because of her opposition to or failure to abide by these practices. Opposition to domestic violence in such a society, for example, may be viewed as a challenge to these values and religious practices.101 Women's legal status in certain countries governed by the Islamic Sharia, such as Afghanistan or Algeria, are good examples of situations where a woman may be able to articulate an asylum claim involving domestic violence based on the argument that the persecution was on account of religion. A very helpful case to read in this regard is the BIA decision in Matter of S-A-, Int. Dec. #3433 (June 27, 2000), in which a young Morrocan woman beaten by her father demonstrated that she had suffered past persecution and had a well-founded fear of future persecution based on her liberal Muslim beliefs which differed from her father's orthodox Muslim beliefs concerning the proper role of women in the society.102

100 101

See Domestic Violence Asylum Claims, supra note 1, at 742-743. See Practice Advisory, supra note 92, at 107. 102 Matter of S-A-, Interim Dec. 3433 (June 27, 2000). See also Regina v. Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Syeda Khatoon Shah, 1997 Immigr. A.R. 145 (Q.B. Nov. 11, 1996)(Pakistani woman fearing being sentenced to death under Muslin Sharia law, based on husband's anticipated false accusation of adultery).

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iv.

Race

According to the Handbook of the United Nations High Commissioner on Refugees ("UNHCR Handbook"), race is to be understood in its widest sense to include all kinds of ethnic groups that are referred to as races in common usage.103 It closely overlaps with nationality, discussed below. Where a society fails to protect certain women from domestic violence because of their race or ethnicity, it may be possible to argue that the persecution was on account of race or nationality. v. Nationality

The UNHCR Handbook underscores that "nationality" is not to be understood only as citizenship. It includes membership of a particular ethnic or linguistic group and may overlap with race.104 The Handbook provides that two or more ethnic or linguistic groups may exist within a single state.105 In cases involving domestic violence, it may be possible to show that the State is willing and able to provide protection to other ethnic or linguistic nationalities to which the applicant does not belong. In such cases, it is important to include any evidence that the abuser knew that the government would not provide protection to his victim on account of her race or nationality, and may have been motivated to abuse her because of this fact.106

J.

Documentation and Authentication of Documents

Finally, it is worth underscoring the importance of developing the strongest possible record, both for your merits hearing and any possible appeals. The record developed in the asylum case before the immigration judge will be the record that follows the asylum applicant on appeal.107 The BIA only rarely allows in additional evidence, and to do so, it should be shown that it is new evidence that could not have been reasonably obtained during the original hearing.108 Your applicant's testimony, both on direct and cross-examination, should be consistent with your theory of the case. Although, in theory, given the problems of proof faced by persons fleeing their homeland, an asylum seeker's testimony should be enough109, it is extremely important to have corroborating evidence, wherever possible.110 At a minimum, and in light of recent case law, this should include country condition information on the legal status of women in that particular society, and government policies and practices regarding domestic violence. Ideally, it should also include the testimony or affidavits of expert witnesses, any

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶68 (1979)(hereinafter "UNHCR Handbook"). 104 Id. at ¶74. 105 Id. at ¶75. 106 See Practice Advisory, supra note 92, at 107-108. 107 See 8 CFR §240.47. 108 See, e.g., 8 CFR §3.2(c). 109 See In re Mogharrabi, 19 I. & N. Dec. 439, 445 (BIA 1987). 110 Matter of S-M-J-, Interim Dec. 3303, at 5-6, 12 (BIA 1997)(Board found that applicant could be found credible but not to have met her burden of proof where her evidence was general and she failed to provide corroboration of central, specific facts and events easily subject to verification).

103

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medical records tending to corroborate the abuse, and any evidence that the applicant sought police or court protection and the results of these efforts. Recently, the INS has uncovered a huge profit-making industry in forged documents, and, as a result, has become much stricter in requiring that asylum seekers authenticate documentary evidence. See 8 CFR § 287.6. A discussion of document authentication is beyond the scope of this article, but it is worth underscoring that many advocates have raised legitimate concerns that document authentication, which requires that certain public documents be authenticated by an authorized foreign official, is not only onerous but may expose the asylum seeker or her family to increased danger. For an excellent discussion of authentication requirements and the dangers they may pose to an asylum seeker or to the family members she left behind, see V. Wiebe et al, Asking for a Note from Your Torturer: Corroboration and Authentication Requirements in Asylum, Withholding, and Torture Convention Claims, Immigration & Nationality Law Handbook, Vol. I at 414 (2001-02 Edition). XI. Conclusion

Today, immigrants who suffer abuse within the family have a broader array of options open to them than ever before. Over the course of the last decade, policymakers have become increasingly sensitive to the plight of battered immigrants, and have opened avenues to relief unavailable to most other immigrant groups. By the mid-nineties, with the passage of the Violence Against Women Act, Congress had provided important relief for the spouses and children of abusive U.S. citizens and lawful permanent residents; by the end of the decade, the Administration successfully had implemented new regulations and guidelines for adjudicating these cases. No relief existed, however, for battered immigrants who did not fit squarely within the traditional family-based system of immigration, including the spouses and children of undocumented immigrants, battered women who did not marry their abusers, or the intending spouses of bigamists. Furthermore, with its 1999 decision in Matter of R-A-, the Board of Immigration Appeals had effectively eliminated political asylum as a form of relief for spouses who fled domestic violence in their homelands. Congress and the previous Administration have shown a remarkable willingness over the last year to think outside of the box. The intending spouses of bigamists are now eligible for relief under VAWA's self-petitioning and cancellation provisions. Crime victims who suffer severe physical or mental abuse, including victims of domestic violence, trafficking and child abuse, are eligible for a U visa, regardless of their status or the status of their abuser. Matter of R-A- has been vacated and the Proposed Rules issued by the Department of Justice would recognize that domestic violence no longer can be considered a private family matter outside the purview of asylum protection. Despite the tragic events of September 11, 2001, there is reason to believe that the new Administration will publish some version of these proposed rules as final or interim regulations. The various remedies for battered immigrants and their interaction are complicated, however, and a client or her advocate should seek the advice of an experienced immigration professional before embarking on any course of action. For further information on other immigration remedies for abused spouses and children, please see L. Gilbert, Family Violence and U.S. Immigration Law: New Developments, 01-3

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IMMIGRATION BRIEFINGS (March 2001). For information and documentation on gender related asylum claims, visit the Refugee Law Center's website at www.refugeelawcenter.org. For information on immigration remedies under the Violence Against Women Act, you can contact Gail Pendleton at the National Immigration Project of the National Lawyers' Guild at www.nlg.org or Leslye Orloff and Janice Kaguyutan at the NOW Legal Defense and Education Fund's Immigrant Women Program in Washington, D.C. at (202) 326-0040 or email them at [email protected]

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CHAPTER 14 PUBLIC BENEFITS FOR BATTERED IMMIGRANTS: ELIGIBILITY AND ADVOCACY

§ 14.1 Introduction to Public Benefits Eligibility Although recent laws have sharply limited eligibility of many immigrants for public benefits, battered immigrants have retained some benefits, particularly in certain states that have passed specific legislation expanding benefits availability. While some benefits are available to all battered immigrants regardless of their immigration status, others are only available to people who are "qualified immigrants," which includes battered immigrants in some cases. Many factors are involved in determining whether a battered immigrant is eligible for a particular public benefit, including, · · · · whether she has petitioned to the INS for an immigrant visa; whether she entered the U.S. before or after 1996; what category the needed benefit falls into; whether she lives in a state which makes a wider range of benefits available to battered immigrants.

In addition, most battered immigrants who qualify for federal, state, or locally provided public benefits are exempted from other limitations faced by most immigrants. First, a battered immigrant does not generally have to meet the requirement that a petitioning sponsor's income and resource be "deemed" to be part of her household income and resources for purposes of determining whether she meets income eligibility guidelines for a particular benefit. Second, a battered immigrant's receipt of public benefits to which she is entitled as a battered immigrant will not be considered in making a determination of whether she is likely to become a public charge when she adjusts status to permanent residence. What follows is an excellent, in-depth explanation by the National Organization for Women Legal Defense and Education Fund (NOWLDEF) of public benefits availability to all battered immigrants.1 In addition, Appendix 41 includes a chart prepared by the California Immigrant Welfare Collaborative which describes benefits available to all immigrants in California, including battered immigrants. Note in reading this chart that battered immigrants are "qualified immigrants" if they have a pending or approved immigrant visa petition and can show a substantial connection between the need for benefits and the domestic abuse.

NOWLDEF has produced a wide variety of excellent materials to assist with representation of battered immigrants. Please contact NOWLDEF at (202) 326-0040 or visit their website at www.nowldef.org for a complete listing of their publications and updates.

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§ 14.2 Advocating for Public Benefits for Battered Noncitizens Because public benefit laws and immigration laws, and the intersection between the two are so complex, some local benefits granting agencies do not recognize that they are authorized to grant benefits to battered immigrants. One problem applicants find is that in some cases battered immigrants are eligible for public benefits even before they have a social security number, and benefits granting agencies do not believe they can grant benefits to someone without one. However, the Social Security Administration should issue a "non work" Social Security Number if requested to do so by a benefits granting agency. Applicants and their advocates may have to convince local agencies to learn about recent changes in the laws before they can successfully get authorized benefits. This chapter contains information about legal authorities that can be presented to local benefits granting agencies in support of granting benefits to a battered immigrant.

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1522 K STREET, NW, SUITE 550, WASHINGTON, DC 20005 (202) 326-0040 FAX (202) 589-0511

PUBLIC BENEFITS ACCESS FOR BATTERED IMMIGRANT WOMEN AND CHILDREN

INTRODUCTION The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA or Welfare Reform Act)1 and the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA)2 substantially altered most immigrants' ability to receive public benefits. These laws eliminate eligibility for most immigrants for SSI and Federal Food Stamps, limits access to certain other federal programs, and give states the discretion to determine whether immigrants can qualify for state and local public benefits programs. Furthermore, the new law strengthened the connection between public benefits eligibility and the immigration status of an applicant. Subsequent laws, however, have restored access to SSI and Food Stamps for very limited numbers of immigrants.3 Although the law currently contains provisions that deny public benefits to many immigrants, some immigrants, including some battered immigrants, either remain or have become eligible for certain critical public benefits. PRWORA grants access to some federal benefits to "qualified aliens" (hereafter referred to as "qualified immigrants").4 Additionally, the guidance to the states issued by the U.S. Attorney General and the definition of "federal meanstested public benefits" provided by a number of federal agencies with regard to their programs narrowly construe PRWORA to ensure that some public benefits remain available to some immigrants, including battered immigrants.5 It is important for advocates and attorneys working with battered immigrant women to understand that while PRWORA and IIRAIRA significantly reduce access to federal benefits for

Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 42 U.S.C.) [hereinafter PRWORA]. 2 Illegal Immigration Reform and Immigration Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-547, 8 U.S.C. § 1101 et seq. (Supp II. 1996) [hereinafter IIRAIRA]. 3 Pub. L. No. 105-185 (1998). 4 While the term used in the law is "qualified aliens," we will use the term "qualified immigrants." Throughout this manual, except when quoting language contained in statutes, we use the term immigrants rather than aliens and "undocumented immigrants" rather than "illegal aliens." We strongly encourage advocates and attorneys working with battered immigrants to use this same terminology. 5 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. 61,344 (1997).

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most immigrants, these laws also expand access to public benefits for some battered immigrants who had been previously ineligible for assistance. Two important examples are outlined below: · Undocumented and documented immigrants who are battered by their U.S. citizen or lawful permanent resident spouses or parents can apply for some public benefits if they have filed a Violence Against Women Act (VAWA) immigration case or a family-based visa petition with INS. IIRAIRA exempts many battered immigrants from sponsor deeming rules. These rules had previously made many battered immigrants economically ineligible for benefits because they were presumed to have full access to the income and assets of their abusers. As a result, many battered immigrants were ineligible for public benefits because their income exceeded the income guidelines of state and federal welfare programs. (See full discussion on sponsor deeming below.)

·

Furthermore, although PRWORA and IIRAIRA reduce access to certain federal public benefits, a wide range of other federally funded social services remain open to many immigrants, including battered immigrants, without regard to their status. This chapter begins with a discussion of the types of immigration status relevant to a public benefits determination, including the legal requirements for qualifying as a battered immigrant. Next follows a discussion of the other considerations relevant to public benefits eligibility, such as date of entry into the U.S., eligibility bars, sponsor deeming, and the 40 qualifying quarters exemption. The chapter continues with a description of the different categories of benefits for which battered immigrants may qualify and a discussion of the specific eligibility rules for some important federal programs. Finally, the chapter concludes by providing some guidance on several overarching issues that advocates for domestic violence victims should be aware of when assisting battered immigrant women in applying for benefits. These issues include public charge concerns; rules regarding inquiries into citizenship, immigration status, and Social Security numbers; and availability of non-work Social Security numbers. Readers should be aware that many immigrant eligibility provisions and public benefit requirements discussed in this chapter are both complex and deeply intertwined. Because of this overlapping complexity, some of the information in this chapter is duplicated in more than one section when required for clarity. Our goal is to assure that advocates and attorneys using this manual can easily access the most complete information they will need to assist clients. IMMIGRATION STATUS AND THE ELIGIBILITY OF BATTERED IMMIGRANTS FOR PUBLIC BENEFITS When working with battered immigrants who want to obtain public benefits, service providers need to consider three different issues: 1) 2) 3) What is the woman's immigration status? Is she eligible for benefits? Can the battered immigrant apply for benefits for herself and for her children in a manner that will not risk her being reported to INS?

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The law distinguishes between three kinds of immigrants: · · · "qualified immigrants" who entered the United States before August 22, 1996; "qualified immigrants" who entered the United States on or after August 22, 1996; and immigrants who are not "qualified immigrants".

Who Are "Qualified Immigrants"? "Qualified immigrants" are:6 · · · · · · · · · · · Lawful permanent residents (including conditional permanent residents); Refugees; Asylees; Persons granted withholding of deportation or cancellation of removal; Cuban/Haitian entrants; Veterans; Person granted conditional entry; Amerasians; Persons paroled into the United States for a year or more; Persons who have been battered or subject to extreme cruelty by a U.S. citizen or lawful permanent resident spouse or parent, with pending or approved VAWA cases or familybased petitions before INS; and Persons whose children have been battered of subject to extreme cruelty by the U.S. citizen or lawful permanent resident other parent, with pending or approved VAWA cases or family-based petitions before INS.

PRWORA provides that "qualified immigrants" are eligible for some, but not all, public benefits. Originally, many undocumented battered immigrants were not included in this definition. However, Congress recognized that certain immigrant women and children who were battered or subject to extreme cruelty needed access to public benefits if they were to escape abuse. Therefore, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)7 expanded the definition of "qualified immigrants" to include immigrant women and children who were battered or subject to extreme cruelty and who had filed an application for relief under VAWA or a family-based petition with the Immigration and Naturalization Service (INS).8

PRWORA § 431(b), 8 U.S.C. § 1641(b). IIRAIRA § 501, amending the PRWORA by adding § 431(c). 8 The VAWA case may be a self-petition, a cancellation of removal application or a suspension of deportation application.

7

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Battered Immigrant Category Under IIRAIRA, immigrant spouses or children who have been battered or subject to extreme cruelty can be considered "qualified immigrants" under certain defined circumstances.9 An interim guidance issued by the U.S. Attorney General in AG Order No. 2129-9710 explains eligibility and verification of "qualified immigrant" status under PRWORA. The circumstances under which battered immigrant spouses or children of U.S. citizens or lawful permanent residents can be granted "qualified immigrant" status are the following: 1) · · · · The Immigration and Naturalization Service (INS) or the Executive Office for Immigration Review (EOIR - an immigration judge): has approved a self-petition or family-based visa for the applicant; OR has granted cancellation of removal; OR has granted suspension of deportation; OR has found that the applicant's pending petition or application sets forth a prima facie case11; AND The immigrant or the immigrant's child has been battered or subject to extreme cruelty in the United States by a U.S. citizen or lawful permanent resident spouse or parent, or by a member of the spouse's or parent's family residing in the same household (if the spouse or the parent consents to or acquiesces in such battery or cruelty and, in case of a battered child, the immigrant did not actively participate in the battery or cruelty); AND There is a substantial connection between the battery or extreme cruelty and the need for public benefit sought; AND The battered immigrant or child no longer resides in the same household as the abuser.

2)

3)

4)

Pending or Approved Applications: · · ·

9

A VAWA case or qualifying family-based visa petition must be filed with the INS or the EOIR before the immigrant can qualify for benefits. If the case has been filed but is not yet approved, the INS or the immigration judge must have ruled that the pending petition or application filed sets forth a prima facie case.12 To prove a prima facie case, the applicant must have presented in her petition at least

Id. Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. 61,344 (1997). 11 A prima facie case is one where the INS or an immigration judge has made initial determination that a VAWA case contains all of the necessary elements of proof. 12 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. at 61,366-71(providing guidance for establishing a prima facie case).

10

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some credible evidence that provides proof of each required element of her VAWA or family-based visa petition case. · These approved petitions or applications qualify the applicant for benefits. When applying for benefits, the battered immigrant must give the public benefits agency a copy of her approval notice from the INS, the EOIR, or her notice of prima facie case determination.

Battered or Subjected to Extreme Cruelty: · In order to have INS or EOIR approve their VAWA petitions or enter a prima facie determination, applicants under VAWA must show that they experienced such battery or extreme cruelty. Thus, battered immigrants with approved VAWA cases or prima facie determinations are not required to provide the benefits-granting agency with any additional evidence of abuse beyond their approved petition or prima facie determination letter. Battered immigrants with family-based petitions filed by their spouse or parent must submit proof of the battery or extreme cruelty (such as a protection order, police report, photographs, a report from a counselor at a battered women's program, or medical records) along with their approval notice or prima facie determination to the benefits agency.

·

"Battery or extreme cruelty" is defined as, but 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. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under this rule. Acts or threatened acts that, in and of themselves, may not initially appear violent may be part of an overall pattern of violence."13 To be a "member of the spouse or parent's family" is defined as: "... any person related by blood, marriage, or adoption to the spouse or parent of the immigrant, or any person having a relationship to the spouse or parent that is covered by the civil or criminal domestic violence statutes of the state or Indian country where the

13

This definition is parallel to the definition of battering and extreme cruelty contained in the immigration regulations governing VAWA self-petitions and battered spouse waivers. It is important for advocates to understand that this definition is broader than the definition of domestic or family violence contained in many state domestic violence statutes in that it includes emotional abuse that in many states would not lead to the issuance of a protection order. It therefore may be necessary for advocates and attorneys assisting battered immigrants to educate state benefits providing agency staff about this more inclusive definition.

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immigrant resides, or the state or Indian country in which the alien, the immigrant's child, or the immigrant child's parent received a protection order."14 Substantial Connection: To obtain benefits a battered immigrant must demonstrate that there is a substantial connection between the battery or extreme cruelty and the need for the public benefit. As defined by the U.S. Attorney General's Order, the following are examples of the types of circumstances in which there would be a substantial connection between abuse and the need for benefits:15 · · · · · · · · · · · · To become self sufficient following separation from the abuser; To escape the abuser and/or the abuser's community; To ensure the safety of the victim, the victim's child, or the victim's parent; To compensate for the loss of financial support resulting from the separation; Because the victim lost her job or earns less because of the battery or cruelty or because of the involvement in legal proceedings relating thereto (child custody, divorce actions etc.); Because the victim had to leave her job for safety reasons; Because the victim needs medical attention or mental health counseling or has become disabled; Because the victim loses a dwelling or a source of income following separation; Because the victim's fear of the abuser jeopardizes the victim's ability to take care of her children; To alleviate nutritional risk or need resulting from the abuse or following separation; To provide medical care during a pregnancy resulting from the relationship with the abuser, the abuse, or abuser's sexual assault; or To replace medical coverage or health care services lost following the separation with the abuser.16

The battered immigrant or child no longer resides in the same household as the abuser: The U.S. Attorney General's Order notes that: "... Although a qualified applicant is not a "qualified alien" eligible for benefits until the battered applicant or child, or parent ceases residing with the batterer, applicants will generally need the assurance of the availability of benefits in order to be able to leave their batterer and survive independently."17

Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. at 61,369. 15 Id. at 61,370. This is not an inclusive list. 16 The U.S. Attorney General's Interim Guidance on "Substantial Connection" provides a detailed, broad description of the types of circumstances under which battered immigrants may access benefits. 17 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. at 61,370.

14

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The Order therefore suggests that, wherever possible, the state benefits provider complete the eligibility determination process and approve the applicant for receipt of benefits prior to the time that the applicant has separated from the batterer. This ensures that the applicant will be able to receive benefits as soon as she leaves her abuser. OTHER CONSIDERATIONS RELEVANT TO PUBLIC BENEFITS ELIGIBILITY Once a battered immigrant qualifies for benefits under VAWA, she is legally entitled to access a much wider array of services and benefits than she would be able to receive if she was not a qualified immigrant. Nevertheless, several other factors are still relevant to determining which benefits programs she can access. These considerations, which also affect the eligibility of other immigrants and are described in detail below, include date of entry into the U.S., eligibility bars to access, sponsor deeming, and the 40 qualifying quarters exemption. When Did the Immigrant Enter the United States: Pre- vs. Post-August 22, 1996 Entrants Advocates should be aware that immigrant eligibility for certain benefits depends in part on the immigrant's date of entry into the United States. Immigrants who are or become "qualified immigrants" and who entered the U.S. before August 22, 1996 are generally eligible for the same federal means-tested public benefits, federal public benefits, and federally funded social services available to U.S. citizens, except for SSI and Food Stamps.18 Further, states may choose to restrict some of the public benefits available to "qualified immigrants." Immigrants who become "qualified immigrants" and who entered the United States on or after August 22, 1996, however, are barred from receiving federal means-tested benefits during the first five years after obtaining qualified immigrant status. They may, however, receive during this five-year period federal public benefits that are not deemed to be "federal meanstested public benefits." With respect to both federal public benefits and federal means-tested public benefits, most immigrants are subject to income deeming rules that may continue to make them ineligible for such benefits (see discussion on sponsor deeming and the battered women's exception below).19 A few groups of post-August 22, 1996 entrants are exempt from this five-year bar. These immigrants include: · · · · · Refugees Asylees Amerasians Cuban/Haitian entrants Veterans and aliens on active military duty, their spouses (and unremarried surviving spouses), and unmarried children under the age of 21 (includes Filipino, Hmong, and Highland Lao)

18

Immigrants who entered before August 22, 1996 are eligible for Supplemental Security Income (SSI) only if they were qualified immigrants, were lawfully residing in the United States and were receiving SSI on August 22, 1996. 19 In all other respects, the rights and limitations on post-August 1996 immigrants to receive public benefits do not differ from the rights and limitations of "qualified immigrants" who entered the U.S. before August 22, 1996.

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· ·

Immigrants granted withholding of deportation Certain immigrants without sponsors.

Permanent, Temporary, and Optional Bar on Benefits Eligibility Under PRWORA, there are several different types of bars that prevent certain immigrants from accessing benefits. The three main bars are of varying durations and fall into the following categories: (1) permanent bar, (2) temporary bar, and (3) optional state bar. The permanent bar applies to non-qualified immigrants, as well as to qualified immigrants who entered the U.S. after August 22, 1996. These immigrants are permanently barred from receiving SSI or Food Stamps. However, certain exceptions to the permanent bar on SSI and Food Stamps apply to qualified immigrants under the following circumstances: (1) refugees or asylees are exempt from the bar for the first seven years after gaining their status as refugees or asylees; (2) immigrants who meet the 40 qualifying quarter requirement are exempt; and (3) veterans or active duty military members and their spouses and unmarried dependent children are also exempt.20 The temporary bar prevents qualified immigrants who are post-August 22, 1996 entrants from accessing federal means-tested public benefits for a period of five years. (The term "federal means-tested public benefits" has a technical meaning and is described in a separate section below.) Similar to the permanent bar, qualified immigrants who refugees or asylees or who are veterans or active duty military members and their spouses and unmarried dependent children are exempt from the five-year bar on accessing federal means-tested public benefits.21 Nonqualified immigrants are also barred from accessing federal means-tested public benefits. The optional state bar exists in two forms. First, PRWORA gave states the option to deny TANF, Medicaid, and the Title XX Social Services Block Grant to qualified immigrants. The exceptions to this optional state bar are identical to the exceptions to the permanent bar on SSI and Food Stamps.22 As a result of this bar, states may deny benefits under TANF, Medicaid, and the Social Services Block Grant to qualified immigrants even when those immigrants have surpassed the five-year bar on accessing federal means-tested public benefits. Second, PRWORA gave the states the option to override the bar that prevents nonqualified aliens, including undocumented immigrants, from receiving state or local public benefits. To do so, a state must enact, after August 22, 1996, a new law that provides for such eligibility.23 Sponsor Deeming In order for any person to qualify to receive public benefits, the state benefits granting agency must determine whether the applicant is "income eligible" to receive the benefit. Sponsor

20 21

8 U.S.C.S. § 1612(a). 8 U.S.C.S. § 1613. 22 8 U.S.C.S. § 1612(b). 23 8 U.S.C.S. § 1621(d).

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deeming rules control how the income eligibility determination is made for many non-citizens who apply for public benefits. According to the current law, when an immigrant's family member or employer sponsors him/her to receive lawful permanent residency in the United States, the sponsoring family member or employer must sign and file an affidavit of support with the INS. This affidavit states that the sponsor is willing to be financially responsible for that immigrant as the immigrant's sponsor.24 When an immigrant with a sponsor affidavit filed on her behalf applies for public benefits, sponsor deeming rules require that the benefits granting agency assume, for the purposes of determining income eligibility for benefits, that the immigrant has full access to the income and assets of her sponsor. It is often the case that these rules render the vast majority of immigrants with sponsor affidavits ineligible to receive public benefits. Sponsor deeming poses grave problems for battered immigrants who received their lawful permanent residency through U.S. citizen or lawful permanent resident spouses. Similarly, sponsor deeming harmed battered immigrants who attained lawful permanent residency through an employer but whose abusive spouse's stalking and threats at work resulted in the battered immigrant having to leave or being asked to leave by her employer. In the past, deeming rules cut off many battered immigrant lawful permanent residents from public benefits when they fled their abusive sponsoring spouses. IIRAIRA created an exemption to sponsor deeming rules for the following immigrants: · · · · · · Qualified battered immigrant spouses and children; Refugees; Asylees; Those granted withholding of deportation under INA Section 243;25 Lawful permanent residents who have earned or can be credited with 40 quarters of employment; and Lawful permanent residents at risk of hunger or homelessness.

Immigration law now specifically exempts most battered immigrants from satisfying deeming requirements for 12 months26 if the battery or extreme cruelty took place in United States; if the abuser was the spouse, parent, or member of spouse's or parent's family; if there is a "substantial connection" between the battery or extreme cruelty and the need for the public benefit; and if the victim no longer resides with the abuser. The following groups of battered immigrants are exempt for 12 months from meeting the deeming requirements: · VAWA self-petitioners (with prima facie determinations, approved self-petitions, or those who have received lawful permanent residency under VAWA);

INA Section 212 (a)(4)(C) and (D) (U.S.C. 1182(a)(4)(C) and (D)); INA S.213A(a)(1)(8 U.S.C. 1183a(a)(1)). 8 U.S.C. 1253 26 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. at 61,371.

25

24

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· · · · ·

VAWA cancellation of removal or suspension of deportation applicants (with prima facie determinations, approved self-petitions, or those who have received lawful permanent residency under VAWA); Battered immigrants with approved I-130 petitions filed for them by their spouses or parents; Children whose battered immigrant parent qualifies for benefits due to VAWA or an approved family-based visa petition; Lawful permanent residents and any dependent children who obtained their status through a family-based visa petition and were battered before and/or after obtaining lawful permanent residency; and Certain indigent immigrants who the benefits provider determines to be unable to obtain food and shelter in the absence of assistance.

Notably, IIRAIRA recently created a new type of affidavit of support (the I-864) with much harsher income-deeming rules than previous affidavits. However, battered immigrants with I-864 affidavits of support submitted after December 5, 1997 are explicitly exempted from the I864 deeming rules for 12 months.27 Battered immigrants with I-864 affidavits of support submitted after December 5, 1997 are exempt from deeming for one year. After the one-year exemption expires, a battered immigrant applicant may continue to be exempted from the deeming requirements if she can demonstrate: · · that an order of a judge or a prior INS determination has recognized the battery or cruelty; AND that there continues to be a substantial connection between the abuse and battery suffered and the need for the benefits sought.28

Judicial determinations of abuse that would be sufficient to meet this requirement might be made in a protection order case, a criminal case, a custody case, a divorce and property division case, a self-petitioning or battered spouse waiver immigration case, or a cancellation of removal case.29 However, subsequent immigration legislation, aimed at preserving access to greater benefits for persons who received lawful permanent residency before IIRAIRA, may have undermined the deeming exemption for battered immigrant women.30 Whether battered lawful permanent residents with old I-134 affidavits of support are exempt from deeming is now unclear. Generally, the battered immigrant exemption to deeming requirements applies to all battered immigrants who qualify for benefits. However, this issue is not fully settled. In the meantime, attorneys and service providers working with battered immigrants should determine whether an I-134 or I-864 was filed for a battered immigrant. In states that have adopted the

27 28

Id. Id.; IIRAIRA § 552, amending PRWORA § 421(f)(1)(B). 29 8 U.S.C. § 1631(f); see also Alien Eligibility of Federal Benefits in IMMIGRANTS AND WELFARE RESOURCE MANUAL: 1998 EDITION Tab 1-9 (National Immigration Law Center ed., 1998). 30 Balanced Budget Act of 1997, Section 5505(e) 111 STAT.603, Public Law 105-33 August 5, 1997. 42 U.S.C. 608(f).

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Family Violence Option (FVO) battered immigrants with old affidavits of support, I-134, may succeed in getting the state welfare agency to use the FVO to waive deeming. In addition to some battered immigrants, certain categories of other qualified immigrants are exempt from sponsor deeming in all federal means-tested programs: Post August 22, 1996 Entrants Exempt From Sponsor Deeming Those who have become U.S. citizens Persons with 40 quarters of work history Persons married to U.S. citizen or lawful permanent residents with 40 quarters of work history Certain battered immigrants (for up to 12 months or longer if there has been a judicial finding regarding domestic violence) Immigrants facing hunger or homelessness (for up to 12 months) Immigrants whose sponsor is dead Counting of 40 Quarters In general, qualified immigrants who entered the country after August 22, 1996 are permanently ineligible for Food Stamps and SSI and are ineligible for federal means-tested public benefits for five years after attaining their qualified immigrant status. However, there are several exceptions to this rule, one of which applies to qualified immigrants who meet a 10-year work requirement.31 In order to satisfy the work requirement, the qualified immigrant must meet a test based on achieving 40 quarters of qualifying work. A qualifying quarter is defined as a "three-month work period with sufficient income to qualify as a Social Security quarter and, with respect to periods beginning after 1996, during which the worker did not receive Federal meanstested assistance."32 The 40-quarter test works in the following way. A qualifying quarter calculates how much a person earns in a calendar year. Each year the required amount is determined by the Social Security Administration (SSA). Up to four quarters of credit may be earned yearly. All work done in the U.S. will be counted toward qualifying quarter credits. One does not necessarily have to work during all four calendar quarters. Instead, the SSA counts qualifying quarters solely based on the total amount earned. For example, in 2001 a qualifying quarter was credited for every $830 earned. This amount changes yearly based on inflation. Because the maximum number of qualifying quarters that may be achieved each year is four, qualified immigrants must have worked for all or part of each year for at least ten years in order to attain their 40 qualifying quarters of work and to overcome the five-year bar on benefits eligibility. If an immigrant receives federal means-tested public benefits at any time during a quarter, the individual will not receive credit for that quarter of work.

The other exceptions to both the permanent and five-year bars on receiving certain benefits apply to refugees, asylees, and veterans or active duty military members and their spouses and unmarried dependent children. 32 COMMITTEE ON WAYS AND MEANS, U.S. HOUSE OF REPRESENTATIVES, 106TH CONG., 2000 GREEN BOOK: BACKGROUND MATERIAL AND DATA ON PROGRAMS WITHIN THE JURISDICTION OF THE COMMITTEE ON WAYS AND MEANS (Comm. Print 106-14).

31

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Any work done by a parent prior to the applicant's eighteenth birthday may be counted. Similarly, if the immigrant is married or widowed, any work done by the spouse during the marriage may be counted toward establishing a qualifying quarter. However, after divorce immigrant spouses lose the ability to count quarters earned by their spouses during the marriage. As noted above, immigrants who can prove 40 quarters of work credit may be eligible to receive public benefits that would otherwise be unavailable due to the permanent or five-year bar on certain types of assistance. For example, persons with 40 quarters of work credit can receive Food Stamps and SSI, the two programs that are otherwise permanently unavailable to qualified immigrants. Similarly, persons with 40 quarters can avoid the five-year bar on receiving federal public benefits and can escape other state restrictions on benefits to immigrants. Even if qualified immigrants are subject to the five-year bar but have not accumulated enough qualifying work quarters to overcome that restriction, qualified immigrants may count work during those five years to establish qualifying quarters. Thus, if a person with only seven years of work credit becomes a qualified immigrant and if they work for three more years after attaining qualified immigrant status, they will only be barred from access to benefits for three rather than five years. An immigrant may also count work done in the United States without authorization. However, when an immigrant wishes to count quarters in which they worked illegally, they may have to share information with both the INS and the Internal Revenue Service that could result in tax and immigration consequences. Immigrants considering using work credit should pay taxes for those years worked and should consult an immigration lawyer before reporting work without legal authorization to ensure that using such quarters will not undermine access to legal immigration status in the long run. Battered qualified immigrants who first entered the United States prior to August 22, 1996 may receive public benefits without being subject to the five-year bar and are exempt for one year from deeming requirements. Battered immigrants who need benefits beyond one year will either need a judicial determination of abuse or they will be subject to deeming requirements. If they are required to satisfy deeming requirements after the expiration of the oneyear period, they, like other lawful permanent residents, may count the qualifying quarters earned by their spouse or parent in order to qualify despite deeming. · Meeting the 40-quarter requirement depends on the number of years worked. Determine how many years the battered immigrant, the battered immigrant's spouse (during their marriage if still married, or if spouse is deceased), or the battered immigrant's parents (while the alien was under 18 years of age) lived and/or worked in this country. If the answer is a total of less than five to ten years, the alien cannot meet the 40-quarter requirement.33 Battered immigrants who have resided in the U.S. for over five years may be able to meet the 40 quarter requirement if they were married during the entire five-year period and both they and their spouses worked and earned sufficient money each of those five years to count towards 40 quarters. The five years of work credit of the spouse and the five

·

Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. at 61,412.

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years of work credit of the immigrant may be added together to equal ten years of work credit as long as the battered immigrant and her spouse remained married. Similarly, if the marriage was for seven years and the spouse had four quarters of work credit for each of the seven years and the immigrant spouse had an additional 12 quarters (three years) of work credit during those seven years, she could also claim a total of 40 quarters. · · The term "quarter" means the three calendar month period ending on March 31, June 30, September 30, or December 31 of any year.34 Social Security credits called "quarters of coverage" are earned by working at a job or as a self-employed individual. Each earner can be credited with a maximum of four quarters each year.35 Credits are based solely on the total yearly amount of earnings. (For example, in 2001 a qualifying quarter totaled $830 dollars).36 Thus an immigrant would qualify for four quarters in 2001 if at any time during 2001 the immigrant earned $3320.00. The current quarter may be included in the 40-quarter computation.37 Qualifying quarters must be verified by the benefits-granting agency through the Social Security Administration. The law provides that the worker's own quarters and quarters worked by a parent while the immigrant was under age 18, by a spouse during the marriage if the immigrant remains married to the spouse, or the marriage ended by the death of the spouse, may also be credited to the individual in determining the number of qualifying quarters. Battered immigrants who rely on their husbands' forty quarters of work credit may only use these quarters if they are still married when they apply for benefits. If they divorce after qualifying for benefits, battered immigrants will be able to continue receiving benefits only until they are required to recertify their ongoing qualification for benefits. At recertification, they can no longer count their husband's quarters.

·

· · ·

· ·

WHAT BENEFITS CAN BATTERED IMMIGRANTS RECEIVE? The types of federal benefits available to battered immigrants can be divided into three categories: (1) "federal means-tested public benefits," (2) "federal public benefits," and (3) other federally funded social service programs; these categories are listed according to the severity of their immigrant eligibility rules (from most to least restrictive). Federal means-tested public benefits are generally open to many qualified immigrants, although immigrants who entered the country after August 22, 1996 are subject to certain restrictions. Federal public benefits, on the

34 35

Id. at 61,413. Id. 36 Id. 37 Id.

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other hand, are open to all qualified aliens without limitation. Unlike federal means-tested public benefits and federal public benefits, which are closed to non-qualified immigrants, federally funded social services are open to all immigrants, including battered immigrants, regardless of their immigration status. Each of these categories of federal benefits is described in detail below. Advocates should also be aware that battered immigrants may be eligible for other nonfederal public benefits that are provided by state or local governments. (See section on state and local benefits for details on their program restrictions.) Federal Means-Tested Public Benefits Federal means-tested public benefits are generally the most difficult to access. Under PRWORA, qualified immigrants who entered the country on or after August 22, 1996 are ineligible for this category of benefits for a period of five years,38 unless they meet certain specified exceptions.39 Immigrants entering the U.S. before August 22, 1996 who are or later become qualified immigrants are eligible for federal means-tested public benefits to the same extent as U.S. citizens (except for SSI and Food Stamps), subject to deeming rules and state restrictions.40 Although there is no single federal definition, the term "federal means-tested public benefit" has thus far been interpreted by the Department of Health and Human Services (HHS), 41 the Department of Agriculture (USDA),42 the Department of Housing and Urban Development (HUD),43 and the Social Security Administration.44 These agencies consistently have defined the term "federal means-tested public benefit" to apply only to mandatory spending programs in which eligibility for the program's benefits, or the amount of such benefits, or both, are determined on the basis of the income, resources, or financial need of the individual, household, or family unit seeking the benefit. The HHS programs that constitute federal means-tested public benefits under PRWORA are Medicaid and TANF,45 while the Food Stamp program and the food assistance block grant

PRWORA § 403, 8 U.S.C. § 1613. The exceptions to the five-year bar on federal means-tested public benefits apply to: refugees and asylees; veterans, active duty military personnel, or their spouses or unmarried dependant children; and qualified immigrants who meet the 40-quarter work requirement. 40 Immigrants entering the U.S. before August 22, 1996 are subject to pre-August 22, 1996 deeming rules. Deeming rules do not apply to VAWA eligible battered immigrants and battered immigrants with pending spouse-based petitions or battered immigrants who obtained lawful permanent residency status through a VAWA self-petition or spouse-based petition. 41 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of "Federal Means-Tested Public Benefit," 62 Fed. Reg. 45,256, 45,257 (1997). 42 Federal Means-Tested Public Benefits, 63 Fed. Reg. 36653, 36654 (1998). 43 Eligibility Restrictions on Noncitizens: Inapplicability of Welfare Reform Act Restrictions no Federal MeansTested Public Benefits, 65 Fed. Reg. 49994, 49994 (2000). 44 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA): Federal Means-Tested Public Benefits Paid by the Social Security Administration, 62 Fed. Reg. 45284, 45284 (1997). 45 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of "Federal Means-Tested Public Benefit," 62 Fed. Reg. 45,256, 45,257 (1997).

39 38

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program in the U.S. territories are the only programs that USDA has determined to be federal means-tested public benefits.46 HUD has concluded that none of its programs fall under the definition of federal means-tested public benefit,47 while SSA has identified only one program, SSI, that constitutes a federal means-tested public benefit.48 Advocates should be aware that although Food Stamps and SSI are, as federal means-tested public benefits, theoretically available to qualified immigrants who are new entrants after the five-year bar has elapsed, in fact, a separate bar on Food Stamps and SSI permanently prohibits non-exempt qualified immigrants from receiving assistance under these programs. (See chart on federal means-tested public benefits for further details.) PRWORA explicitly exempted the following programs from the definition of "federal mean-tested public benefit:" Emergency Medicaid, short-term in-kind emergency disaster relief, assistance under the National School Lunch Act or the Child Nutrition Act of 1966, public health assistance for immunizations and for testing and treatment of communicable diseases, Foster Care and Adoption Assistance (if the parent is a qualified alien), programs and services at the community level necessary for the protection of life and safety designated by the U.S. Attorney General (see below), student assistance under Title IV, V, IX, and X of the Higher Education Act and Title III, VII, and VIII of the Public Health Service Act, means-tested programs under the Elementary and Secondary Education Act, Head Start, or benefits under Title I of the Workforce Investment Act of 1998.49 Some, but not all, of these programs are also exempted from the definition of "federal public benefit." See the "Federal Public Benefits" section for a list of programs that are exempted from that definition. Detailed descriptions of each of these federal means-tested public benefits programs and the degree of their accessibility for battered immigrants are discussed separately later in this chapter. Advocates should note that despite the similarity in terminology, there is a legal distinction between "federal means-tested public benefits" and "federal public benefits," which are described in the next section. Indeed, battered immigrants can receive federal public benefits even if they do not qualify for federal means-tested public benefits because qualified immigrants are eligible for the former category of benefits without regard to their date of entry to the U.S. See the separate section on date of entry requirements for a more detailed discussion of this issue. Federal Means-Tested Public Benefits Available to Qualified Alien Battered Immigrants Temporary Assistance to Needy Families (TANF)50 · Persons who first entered the U.S. on or after August 22, 1996 are barred for the first five years after they become "qualified immigrants," unless "exempt."51

46 47

Federal Means-Tested Public Benefits, 63 Fed. Reg. 36653, 36653 (1998). Eligibility Restrictions on Noncitizens: Inapplicability of Welfare Reform Act Restrictions no Federal MeansTested Public Benefits, 65 Fed. Reg. 49994, 49994 (2000). 48 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA): Federal Means-Tested Public Benefits Paid by the Social Security Administration, 62 Fed. Reg. 45284, 45284 (1997). 49 8 U.S.C.S. § 1613(c). 50 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of "Federal Means-Tested Public Benefits," 62 Fed. Reg. 45,256 (1997).

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Federal Means-Tested Public Benefits Available to Qualified Alien Battered Immigrants Medicaid52 · Persons who first entered the U.S. on or after August 22, 1996 are barred for the first five years after they become "qualified immigrants," from all non-emergency Medicaid including parental care, and children's health, unless "exempt." Food Stamps · Benefits are open only to those qualified immigrants who entered the U.S. before August 22, 1996 and who are "exempt." However, qualified immigrants who entered the U.S. before August 22, 1996 AND who were 65 years old or older at that time, disabled or subsequently became disabled, OR under 18 years old at that time are eligible to receive Food Stamps.53 · Theoretically, individuals who first entered the U.S. on or after August 22, 1996 are barred for the first five years after they become "qualified immigrants," unless "exempt." However, a separate, permanent bar on Food Stamps also applies to non-"exempt" qualified immigrants who are post-August 22, 1996 entrants, making them ineligible. SSI · Benefits are open only to those qualified immigrants who entered the U.S. before August 22, 1996 and who are "exempt." However, qualified immigrants who entered before August 22, 1996 and who were reviving SSI on August 22, 1996 or who are or subsequently become disabled are also eligible.54 Theoretically, individuals who entered the U.S. on or after August 22, 1996 are barred for the first five years after they become "qualified immigrants," unless "exempt." However, a separate, permanent bar on SSI also applies to non-"exempt" qualified immigrants who are post-August 22, 1996 entrants, making them ineligible.

·

Federal Public Benefits Distinct from "federal means-tested public benefits," "federal public benefits" are the second of the three categories of federal benefits listed at the beginning of this section. Unlike federal means-tested public benefits, federal public benefits have less strict immigrant eligibility rules and are open to all qualified immigrants without restriction, regardless of their date of

"Exempt groups include: veterans and active duty military personnel and their spouses, unremarried surviving spouses or children; refugee categories: persons who have one of the following immigration statuses refugee, asylee, withholding or removal/deportation, Amerasian immigrants, and Cuban or Haitian Entrants; individuals who meet the 40 quarters exemption; and Native Americans born outside of the United States. National Immigration Law Center, Immigrant Eligibility for Public Benefits -- Chart (December, 1998)." 52 Id. 53 Agriculture Research, Extension, and Education Reform Act of 1998. Title V. Pub. L No 105-185 (June 23, 1998). 54 Balanced Budget Act of 1997, § 5301, P.L. 105-33. See also, Non-citizen Benefit Clarification and Other Technical Amendments Act of 1998 PL 105-3006, 112 STAT 2926 Section 2.

51

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entry. In general, the only individuals who are not eligible for any of the benefits in this category are non-qualified immigrants, with certain exceptions described below. Only certain benefits are defined as "federal public benefits" under the Welfare Act.55 The statutory definition includes: · · Grants, contracts, loans and professional or commercial licenses provided by or funded by a U.S. agency; Benefits for retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, and unemployment provided by or funded by a U.S. agency.

Programs are only considered federal public benefits when payments are made or assistance is provided directly to: · · · an individual a household or a family eligibility unit.

If payments of federal funds are being made to a state in the form of block grant money, to a shelter, to a hospital or to other entities, these are not considered "federal public benefits" and are not be subject to restrictions on immigrant access.56 The U.S. Attorney General's Guidance clarifies this by stating: "Although the Act prohibits certain aliens from receiving non-exempted "federal public benefits," it does not prohibit governmental or private entities from receiving federal public benefits that they might then use to provide assistance to aliens, so long as the benefit ultimately provided to the non-qualified alien does not itself constitute a "federal public benefit."57 Thus, if a local agency receives a "grant" to provide shelter to domestic violence victims, fire protection or crime victim counseling, or services which are not "federal public benefits," these services may be provided to any person regardless of immigration status because immigrant restrictions do not apply.58 This remains true even when the federal program funds would be deemed a federal public benefit if the grant was made to an individual, household, or family unit. The federal government as a whole has not issued regulations defining "federal public benefits." Five years after enactment of PRWORA, only one federal agency, the Department of Health and Human Services (HHS), has issued a notice interpreting the term "federal public

Alien Eligibility of Federal Benefits in IMMIGRANTS AND WELFARE RESOURCE MANUAL: 1998 Edition Tab 1-9, 17-18 (National Immigration Law Center ed., 1998). 56 Id. at 18. 57 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. at 61,361. 58 Id.

55

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benefit" and identifying which of its programs provide such benefits.59 In order to reach its conclusion, HHS issued a detailed analysis of the phrase "individual, household, or family eligibility unit. According to HHS, the phrase "individual, household, or family eligibility unit" refers to: "benefits that are (1) provided to an individual, household, or family, and (2) the individual, household, or family must, as a condition of receipt, meet specified criteria (e.g., a specified income level or residency) in order to be conferred the benefit, that is, they must be an "eligibility unit." Such benefits do not include benefits that are generally targeted to communities or specified sectors of the population (e.g., people with particular physical conditions, such as a disability or disease; gender; general age groups, such as youth or elderly)."60 No federal agency other than HHS has issued a notice defining "federal public benefit." Although the HHS interpretation should give some guidance as to whether certain programs in other federal agencies are considered federal public benefits, advocates who have battered immigrant clients who are not yet qualified immigrants should consult with experts on battered immigrants and welfare to determine whether or not a given program is a federal public benefit off-limits to non-qualified aliens before recommending that non-qualified battered immigrants apply for such benefits.61 Battered immigrants who are qualified immigrants under VAWA, however, are always eligible for all benefits in this category. Finally, some programs that may otherwise appear to meet the definition of a federal public benefit were explicitly exempted by PRWORA from immigrant restrictions.62 Because these programs are exceptions that remain open to qualified and non-qualified immigrants alike, they are discussed in the following section.

59

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of "Federal Public Benefit," 63 Fed. Reg. 41,658, 41,660 (1998). The chart at the end of this section provides a partial list of some of the programs that HHS and other federal agencies consider to be federal public benefits. In addition, readers seeking a more detailed list of federal public benefit programs should consult the appendix. 60 Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of "Federal Public Benefit," 63 Fed. Reg. 41,658, 41,659 (1998). 61 Contact the Immigrant Women Program of NOW Legal Defense and Education Fund at (202) 326-0040 or [email protected] with questions concerning battered immigrant access to benefits. 62 PRWORA § 401(b), 8 U.S.C. § 1611(b).

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Some Significant Federal Public Benefit Programs Available to All Qualified Immigrants63 Administration on Developmental Disabilities (ADD) (direct services only)64 Child Care and Development Fund Independent Living Program Job Opportunities for Low Income Individuals (JOLI) Low-Income Home Energy Assistance Program (LIHEAP) Medicare Postsecondary Education Loans and Grants Public Housing Refugee Assistance Programs Section 8 Subsidized Housing State Children's Health Insurance Program (CHIP) Title IV Foster Care and Adoption Assistance Payments (if parents are "qualified immigrants") Title XX Social Services Block Grant Funds Social Security Disability Insurance Job Training Partnership Act (JTPA)

Federally Funded Social Services Available to Non-Qualified Immigrants Generally "not-qualified immigrants" are ineligible for federal, state, and local public benefits.65 Such benefits, however, tend to have a narrow, technical definition, and non-qualified immigrants remain eligible to receive a wide array of public benefits, even those that are funded with federal dollars. (State and local benefits are discussed in a separate section below.) These federally funded social services comprise the third category of federal benefits. This category of benefits is particularly critical for battered immigrants who have not yet attained or who cannot attain qualified alien status. Unfortunately, some battered immigrants who are legally entitled under VAWA to access public benefits face procedural barriers that make attaining qualified immigrant status more difficult. Groups of battered immigrants who may not be able to access federal public benefits include:

63 64

For a more detailed list of federal public benefits, please refer to the appendix. The Administration on Developmental Disabilities operates four programs that provide services to individuals with developmental disabilities. They are: State Councils on Developmental Disabilities; State Protection and Advocacy Agencies; National Network of University Centers for Excellence in Developmental Disabilities Education, Research, and Services; and Projects of National Significance. Although any portion of these programs that provides direct services to individuals is considered to be a federal public benefit off-limits to non-qualified immigrants, any benefits or services that flow to individuals through states, schools or universities, or other nonprofit organizations are not federal public benefits and are therefore open to all immigrants regardless of immigration status. 65 The definition of which programs are considered "federal, state or local public benefits" has not been settled. Advocates and attorneys are encouraged until a definition is issued to urge benefits providers to narrowly follow the letter of the law.

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·

Battered immigrant self-petitioners who filed self-petitions with the Vermont Service Center without the assistance of an attorney or trained advocate and failed to include sufficient evidence in their self-petition to be awarded a prima facie determination66; and Battered immigrants who only qualify for VAWA cancellation of removal and have been unable to file for this relief because the INS has not placed them in removal (also known as deportation) proceedings. Battered immigrants whose spouses filed an I-130 family-based visa petition for them that has not been approved and who need a prima facie determination in that case.67

·

·

Undocumented battered immigrants who do not qualify to file a self-petition to attain lawful permanent residency, those who or do not qualify to file for cancellation of removal through VAWA, U visa applicants, and battered immigrants who qualify for VAWA protection but who face procedural barriers to access to public benefits are all still eligible to receive a limited set of services and benefits funded by federal and state governments. There are several federally funded social service programs that are not subject to restrictions on the basis of immigration status and are therefore available to all immigrants ­ both documented and undocumented immigrants as well as qualified immigrants. One group of programs that fall into this category is programs that would otherwise meet the definition of federal public benefit but that were exempted by PRWORA:68

·

· · · · ·

Emergency Medicaid69 Short term, in-kind emergency disaster relief programs Public health assistance for immunizations and for testing and treatment of communicable diseases Programs and services at the community level necessary for the protection of life and safety designated by the U.S. Attorney General70 Programs for housing or community development assistance to the extent that the immigrant is receiving such assistance on August 22, 1996 School lunch and breakfast programs

66

In such cases, it is recommended that the advocate or attorney assisting the battered immigrant who originally filed a pro se case explain the urgent need for benefits and inquire about what additional evidence would need to be submitted to get a prima facie determination. 67 There is currently no mechanism to obtain a prima facie determination in a family-based visa case. Applicants must wait until the family-based visa petition is finally adjudicated. One option in such cases is for the abused spouse to file a self-petition under VAWA through which she can obtain a prima facie determination. 68 PRWORA § 401(b), 8 U.S.C. § 1611(b). 69 Emergency medical assistance must be provided to all immigrants regardless of their status. Emergency Medicaid is available in all cases where the patient needs treatment for medical conditions with acute symptoms that could jeopardize the patient's health, impair body functions, or cause dysfunction of any bodily organ or part. 42 U.S.C. § 1396(b)(v)(3). This definition includes all labor and delivery. 70 Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, 66 Fed. Reg. 3613 (2001).

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Nonprofit and Charitable Organizations Providing Services In addition, not all of the benefits or services provided by federal means-tested public benefits programs or federal public benefits programs count as federal meanstested public benefits or federal public benefits. Some benefits or services under such programs may not be provided to an individual, household, or family unit and therefore do not constitute federal means-tested public benefits or federal public benefits.71 For example, Food Stamps are federal means-tested public benefits. However, food provided by a shelter or food bank is not a federal means-tested public benefit even if some or all of the food is provided with federal dollars. Similarly, TANF funds that are paid to support the work of a shelter are not federal means-tested public benefits.72 Furthermore, all immigrants have access to benefits provided by organizations that are both nonprofit and charitable. These organizations are exempt from immigration status verification and reporting even if they receive federal, state, or local funding.73 IIRAIRA eliminated the requirement that nonprofit charitable organizations either seek an applicant's confirmation that she is a qualified immigrant or have a separate entity verify the applicant's status before providing federal, state, or local benefits.74 Thus, nonprofit charitable organizations providing federal, state, or local public benefits are not required to determine, verify, or otherwise require proof of an applicant's eligibility for such benefits on the basis of the applicant's citizenship or immigration status. Nonprofit entities may not be penalized for failing to verify citizenship or status or for providing federal public benefits to an individual who is not a U.S. citizen, U.S. non-citizen national, or qualified immigrant.75 Nonprofit service agencies are barred from providing services that are defines as "federal public benefits" only when an agency that is not exempt from verification requirements (such as a state government agency) has performed verification for benefits being provided by the nonprofit agency.76

Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of "Federal Public Benefit," 63 Fed. Reg. 41,658 (1998). 72 Department of Health and Human Services, Policy Q's &A's - Immigrants, (last updated Jan. 2001) <http://www.acf.dhhs.gov/programs/ofa/polquest/immigran.htm>. 73 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. 61,344, 61,345-46 (1997). 74 IIRAIRA § 508, Pub. L. No. 104-208, 110 Stat. 3009, 3673, 8 U.S.C. § 1642(d). 75 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. 61,344, 61,346 (1997). 76 Id. at 61345-46. This is true even if the nonprofit entity is providing federal public benefits like TANF to individuals. However, if an organization required to verify eligibility presents verification to the nonprofit charitable organization about the not-qualified immigration status of an undocumented person, the nonprofit charitable organization may not continue providing services that would be deemed "federal public benefits" to that undocumented individual. Service to that immigrant would have to be provided with other funds. Thus, it is critical that advocates and attorneys carefully interview immigrant clients to determine eligibility before sending them to apply for any public benefits. This is very important because benefits-granting agencies must verify the applicant's status. If your client is applying for benefits for her child, only the immigration status of the child is to be verified. Since benefits granting agencies are required to verify immigration status of applicants applying for TANF and certain other benefits like Food Stamps it is important that advocates and attorneys accompany battered immigrants who will be filing for benefits for themselves and/or their children to ensure that the benefits workers only ask immigration status questions of the person on whose behalf benefits will be provided. Accompanying battered immigrants also allows the advocate or attorney to document how the battered immigrant applicant is treated if

71

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Attorney General's List As noted above, PRWORA authorized the U.S. Attorney General to designate particular programs that are open to all persons without regard to immigration status.77 To be exempt from immigration restrictions, the programs designated by the U.S. Attorney General must be in-kind services, provided at the community level, not based on the individual's income or resources, and necessary to protect life or safety.78 The following programs have been designated by the U.S. Attorney General as available to all without regard to immigration status: · · · · · · · · · · · · · · Crisis counseling and intervention programs; Services and assistance relating to child protection; Adult protective services; Violence and abuse prevention; Victims of domestic violence or other criminal activity; Treatment of mental illness or substance abuse; Short-term shelter of housing assistance for the homeless, for victims of domestic violence, or for runaway, abused, or abandoned children79; Programs to help individuals during periods of adverse weather conditions; Soup kitchens; Community food banks; Senior nutrition programs and other nutritional programs for persons requiring special assistance; Medical and public health services and mental health, disability, or substance abuse assistance necessary to protect life and safety;80 Activities, designed to protect the life and safety of workers, children and youths or community residents; and Any other programs, services, or assistance necessary for the protection of life or safety.81

benefits are wrongly denied. Verification of Eligibility for Public Benefits, 63 Fed. Reg. 41,662, 41,664 (to be codified at 8 C.F. R. pt. 104) (1998). 77 Immigration and Naturalization Service, Verification of Eligibility for Public Benefits, AG Order No. 2170-98, 63 Fed. Reg. 149 (Tuesday August 4, 1998) 41662; Interim Guidance 62 Fed Reg. At 61346, et seq. See also, Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, 66 Fed. Reg. 3613 (2001). 78 Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 62 Fed. Reg. 61,344 (1997). 79 "Short-term housing assistance" has been defined by HUD and HHS as emergency shelter, short-term shelter, and transitional housing for up to two years. See Letter from the Secretary of the U.S. Department of Housing and Urban Development to HUD Funds Recipient (Jan. 19 2001). See also, Office for Civil Rights, U.S. Department of Health and Human Services, Access to HHS-Funded Services for Immigrant Survivors of Domestic Violence, (last modified Jan. 30, 2001). Readers should also refer to the chapter on access to programs and services that can help battered immigrants elsewhere in this manual for more details on the HUD and HHS memos. 80 This definition includes: Immunizations for children and adolescents; AIDS and HIV services and treatment; Tuberculosis services; and Sexually Transmitted Diseases. (See Claudia Schlosberg, "Not Qualified Immigrants' Access to Health Services After the Welfare Law" in IMMIGRANTS AND WELFARE RESOURCE MANUAL: 1998 EDITION Tab 3B-13 (National Immigration Law Center ed., 1998).

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According to the Attorney General, "a service provider should not assume that it must verify citizenship or immigration status simply because its program or service is not exempted by [the Attorney General's] Order. Service providers and other interested parties should refer to benefit-granting agencies' interpretations of the term "federal public benefit" ... in order to determine whether their program is a federal public benefit and therefore subject to the alienage restrictions."82 Thus, a broad range of programs that benefit battered immigrants and their children are to be fully available to all domestic violence victims without regard to their immigration status. Providers of services included in the Attorney General's list may not ask questions about immigration status of recipients or applicants for services. The Attorney General's order further clarifies that the services included on this list are not the only programs that can be provided without immigration restrictions. Only programs that fit the legal definition of "federal public benefits" and "federal means-tested public benefits" require verification. Through the mechanisms discussed above, battered immigrants who are not qualified aliens remain eligible to receive a wide array of assistance. For more information on a specific program on specific programs, see the section below on immigrant eligibility rules for some important federal programs. State and Local Public Benefits PRWORA significantly restricted the ability of states and local governments to provide benefits to immigrants who do not fall into the following groups of immigrants: · · · "Qualified immigrants"; Non-immigrants as defined by the Immigration and Nationality Act; and Parolees for less than one year under section 212(d)(5) of the Immigration and Nationality Act.83

Prior to the passage of PRWORA, local governments could grant access to general assistance and state-funded benefits programs to battered undocumented immigrants who were not qualified to receive federal benefits. As a result of PRWORA, states can only provide benefits to undocumented or other non-qualified immigrants if the state legislature passes a law specifically authorizing qualified immigrant access. States that had such laws in place prior to August 22, 1996 cannot rely on pre-existing laws to provide state benefits to immigrants. These

81 82

See Attorney General's list included in the Appendix to this Manual. Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, 66 Fed. Reg. 3613, 3614 (2001). 83 PRWORA Section 411(a), 8 U.S.C. 1621(C).

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states must pass a post-August 22, 1996 new law authorizing immigrant access to these benefits.84 Meanwhile, several states have passed laws after August 22, 1996 authorizing statefunded benefits programs for certain categories of immigrants. These state benefits can provide important access to public benefits for battered immigrants who may not qualify for immigration relief under VAWA. Many states that do offer access to these benefits do so with restrictions. For a list of the state-funded benefits available to immigrants in your state, see the National Immigration Law Center's Chart on States Providing Benefits to Immigrants included in the appendix to this manual. The PRWORA definition of state public benefits is similar to that of federal public benefits. However, the terms "federal public benefits" and "state public benefits" are mutually exclusive. A program can be either a state public benefit or a federal public benefit, but it cannot be both. State public benefits85 are defined as benefits provided by an agency of a state or local government (or by appropriate funds of a State or local government) to an individual, household or family eligibility unit. They may constitute: a grant or loan, contract, professional or commercial license, retirement benefit, welfare benefit, health benefit, disability benefit, public or assisted housing, postsecondary education, food assistance, unemployment benefit or any other similar benefit. The following qualified immigrants are eligible without any immigration restriction for any state public benefits:86 · · · · Refugees, asylees, and those granted withholding of deportation under INA Section 243, for the first five years after their date of admission (Medicaid is provided for the first seven years); Permanent resident immigrants who have worked for 40 quarters as defined by the Social Security Act, and their spouses or children who can use some or all of the lawful permanent resident's 40 quarters to qualify; Immigrants who are veterans, on active duty, or the spouses or dependent children of such persons. Spouses and children of U.S. citizens who can use some or all of their U.S. citizen spouse's or parents' 40 quarters to qualify.

Certain state and local public benefit programs were specifically exempted by PRWORA and are therefore open to all persons without immigration restrictions. These include: · · · Emergency medical care Short term, in-kind emergency disaster relief programs Public health assistance for immunizations and for testing and treatment of communicable diseases

84 85

PRWORA § 411(d), 8 U.S.C. § 1621(d). PRWORA § 411(c)(1), 8 U.S.C. § 1621(c)(1). 86 PRWORA § 412(b), 8. U.S.C. § 1622(b).

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·

Programs and services at the community level necessary for the protection of life and safety designated by the U.S. Attorney General87

SPECIFIC RULES FOR SOME IMPORTANT FEDERAL BENEFIT PROGRAMS This section describes the specific eligibility rules for some of the federal programs that are most likely to benefit battered immigrant women. In general, programs are listed from most restrictive to least restrictive. Readers should note that some public benefits have their own program-specific immigrant eligibility restrictions and therefore may not be accessible to some immigrants, regardless of the program's PRWORA classification as a certain type of benefit (e.g., federal means-tested public benefit, federal public benefit, or other federally funded social services program). Supplemental Security Income (SSI) Supplemental Security Income (SSI) is a program that provides cash assistance to lowincome individuals who are aged, blind, or disabled. After the enactment of PRWORA, an otherwise eligible person could be denied SSI cash assistance solely on the basis of his/her immigration status. The Balanced Budget Act of 1997 restored eligibility for most of the categories of immigrants who had been previously eligible before August 22, 1996 to receive SSI.88 The only battered immigrants who are currently eligible to receive SSI are those who were lawful permanent residents and were receiving SSI on August 22, 1996, and those who fit into one of the other categories of eligible immigrants. This is a very small number of cases. The best chance most battered immigrants might have to obtain SSI is if they can qualify for the 40 quarters work credit exception category. They would qualify only if they, their spouse, or their parent have, individually or collectively, worked for forty quarters. If SSI eligibility is based on qualifying quarters earned by a spouse, the battered immigrant must be married to her abusive spouse at the time of the eligibility determination to have her husband's quarters credited to her. If she is divorced from her abusive spouse after she has been deemed eligible and has begun receiving SSI benefits, she may continue to qualify for the benefits already awarded.89 If, however, she is divorced when she must be recertified to continue to receive benefits, she will no longer qualify as she cannot continue to use her husband's 40 quarters after divorce. Five states have created programs to provide state benefits to immigrants who are no longer eligible to receive SSI: California, Illinois, Maine, New Hampshire, and Oregon.

87

Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, 66 Fed. Reg. 3613 (2001). 88 Summary of the Immigrant Provisions of the Balanced Budget Act in IMMIGRANTS AND WELFARE RESOURCE MANUAL Tab 1-1 (National Immigration Law Center ed., 1998) 89 Program Operations Manual System in IMMIGRANTS & WELFARE, STATUTES, REGULATIONS & ADMINISTRATIVE SOURCE MATERIALS § SI 00502.100 (National Immigration Law Center ed., 1998).

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Food Stamps The Food Stamps program provides vouchers to low-income individuals so that they can use the benefits to buy food. Food Stamps eligibility for most non-citizens was eliminated by PRWORA as of August 22, 1996. The subsequent Balanced Budget Act restored Food Stamps access for a small number of qualified immigrants. (See chart in federal means-tested public benefits section for details.) As with SSI, very few battered immigrant women will qualify for Food Stamps. The best chance battered immigrants have to receive Food Stamps is by qualifying under the 40 quarters category. Battered immigrants will usually need to count both their own work quarters and those of their abusive husbands. As with SSI, battered immigrants can be credited with all of the qualifying quarters worked by a spouse as long as they remain married. If after qualification they are divorced, the battered immigrant woman will be able to continue receiving benefits only until recertification. Battered immigrants who are divorced from their abusers and who lack sufficient qualifying quarters will lose Food Stamps upon recertification when they must reapply for Food Stamps.90 Despite restrictions on Food Stamps eligibility, both qualified and non-qualified immigrants retain eligibility for emergency food assistance. Moreover, states can choose to provide statefunded food stamps to immigrants made ineligible by the welfare reform law. Sixteen states have chosen to provide food assistance to immigrants with state funds: California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New York, Ohio, Rhode Island, Texas, Washington, and Wisconsin. Some states have restored the benefits for all immigrants who meet all the requirements for eligibility for Food Stamps except for their immigration status. Others have chosen to provide food assistance for specified categories of immigrants (children, elderly, or disabled) or provide benefits to immigrants at a lower benefit level. Some States have purchased federal food stamp coupons for legal immigrants: California, Florida, Maryland, Nebraska, New Jersey, New York, Rhode Island, and Washington. Other states run their own Food Stamp programs.91 (See National Immigration Law Center state by state chart included in the Appendix to this manual.) Temporary Assistance for Needy Families (TANF) TANF provides cash payments, vouchers, social services, and other types of assistance to families in need. PRWORA gives states the option to grant TANF to immigrant families. Most states have decided to provide assistance to qualified immigrants who were in the United States before August 22, 1996 and many are also providing access to TANF for those who entered after August 22, 1996 following the expiration of the five-year bar.92 Other states have decided to offer state-funded TANF to certain categories of immigrants or battered immigrants who would otherwise have no access to benefits regardless of immigration status.93 Nineteen states have

90

Food and Nutrition Service National office, Cumulative Questions and Answers on Certification and Work Issues in PRWORA (visited Jan. 23, 1998) < http://www.usda.gov/fcs/ stamps/cumula3.htm>. 91 See State Strategies to Assist Legal Immigrants Losing Federal Food Stamp Benefits in IMMIGRANTS & WELFARE RESOURCE MANUAL: 1998 EDITION Tab 3A-19, 19-22 (National Center of Immigration Law ed., 1998). 92 Temporary Assistance for Needy Families: Welfare Reform and Immigrants in IMMIGRATION & WELFARE RESOURCE MANUAL: 1998 EDITION Tab 3E-1 (National Immigration Law Center ed., 1998). 93 "Permanently Residing Under Color Of Law"-Prior to the passage of PRWORA, those who were permanently residing in the United States under color of law (PRUCOL's) were eligible to receive federal public benefits. This

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created substitute TANF programs that provide benefits during the five-year bar: California, Connecticut, Georgia, Hawaii, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Washington, Wisconsin, and Wyoming.94 (See National Immigration Law Center state by state chart included in the Appendix to this manual). Battered immigrants who were not required to file affidavits of support because they are self-petitioners and battered immigrants with new I-864 affidavits of support are exempt from deeming. (See deeming discussion above.) Other immigrants who apply for TANF and other public benefits are subjected to "deeming restrictions" which may make them ineligible for benefits until they become U.S. citizens or have worked for 40 quarters. The Family Violence Option (FVO) included in the Welfare Act of 1996 permits states to grant "good cause waivers" of certain TANF program requirements.95 Under the FVO, states are required to identify victims of violence, conduct individual assessments, and develop temporary safety and service plans in order to protect battered immigrants from: "...immediate dangers, stabilize their living situations and explore avenues for overcoming dependency."96 State authorities are required to maintain the confidentiality of the victims. These family violence option waivers are temporary in nature, but the actual length is defined broadly as "so long as necessary."97 This definition gives welfare administrators the discretion to determine the period the waiver will apply and renew the waiver on a case-by-case basis.98 Advocates should work to ensure that their states formally adopt the Family Violence Option. Under HHS regulations, states that formally adopt the Family Violence Option do not have to pay penalties if they do not meet work targets or exceed time limitations because of waivers granted to battered women. Only states that formally choose the Family Violence Option will be allowed to eliminate cases of battered women from the calculations states must submit to the federal government on work requirements and time limitations. The state must include the family violence option in its state TANF plan to avoid penalties. To date, thirty states, including the District of Columbia and Puerto Rico have adopted the Family Violence Option. In states that have adopted the FVO, battered immigrants with old affidavits of support (I-134) may be able to successfully ask the state welfare agency use the FVO to waive deeming so that they have the same access to benefits as battered immigrants with new I-864 affidavits of support.

group consisted of immigrants whom INS was aware of their presence in the United States. The PRWORA cut off access to federal public benefits for this group of immigrants, but several states have passed laws providing access to state-funded TANF for PRUCOL's. See States Providing Benefits to Immigrants Under 1996 Welfare & Immigration Laws -- State Responses in IMMIGRATION & WELFARE RESOURCE MANUAL: 1998 EDITION Tab 2-1, 14 (National Immigration Law Center ed., 1998). 94 Zimmerman, Wendy and Karen C. Temlin, Key Substitute Programs by State in PATCHWORK POLICIES: STATE ASSISTANCE FOR IMMIGRANTS UNDER WELFARE REFORM: 66 (Urban Institute, May 1999). 95 PRWORA § 402(a)(7), 8 U.S.C. § 1612(a)(7). 96 Temporary Assistance for Needy Families Program (TANF), 62 Fed. Reg. 62,124, 62,128 (1997) (to be codified at 40 C.F.R. pts. 270-5) (proposed Nov. 20, 1997). 97 42 U.S.C. § 607(a)(7). 98 Temporary Assistance for Needy Families Program (TANF), 62 Fed. Reg. at 62,131(to be codified at 45 C.F.R. § 270.30).

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Medicaid The Medicaid program provides health insurance to low-income individuals. Under PRWORA, most individuals who entered the U.S. after August 22, 1996 are barred from receiving all non-emergency Medicaid for the first five years after they become qualified immigrants. According to the Health Care Financing Administration (HCFA), an "...immigrant who loses SSI cash benefits would continue to be eligible for Medicaid until the State conducts a Medicaid eligibility redetermination... and has found that the individual does not qualify for Medicaid by any other means."99 Thus, immigrants who lose SSI benefits due to restrictions based on their immigration status may also ultimately be denied Medicaid. PRWORA allows states to choose to deny Medicaid to qualified immigrants who were in the United States before August 22, 1996.100 To do so, the state must file a state plan amendment with HCFA. However, most states have continued offering Medicaid benefits to qualified immigrants who entered the United States before August 22, 1996. A few states provide full medical services to immigrants. Other States have funded medical assistance for some specific purposes including prenatal care, nursing home resident care, child care, and for persons residing in long-term care or residential facilities. The fourteen states that provide some form of Medicaid assistance to immigrants cut off by PRWORA are: California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Pennsylvania, Rhode Island, Virginia, and Washington.101 States cannot use Medicaid funds to pay for immunizations or for testing and treatment of communicable diseases for non-qualified immigrants. In order to determine whether an immigrant is eligible for TANF or Medicaid, advocates and service providers should know what laws their particular state has decided to enact concerning these benefits. Emergency Medicaid Emergency Medicaid is available in all cases where a person needs treatment for medical conditions with acute symptoms that could place a patient's health in serious jeopardy, result in serious impairment of bodily functions, or cause disfunction of any bodily organ or part.102 This definition includes all labor and delivery. Emergency medical assistance must be provided to all immigrants regardless of their status. Public Housing for Qualified Battered Immigrant Women103 Battered immigrant women, who are or who become "qualified immigrants" are eligible to receive public or assisted housing.104 PRWORA and IIRAIRA clearly by law grant access to publicly assisted housing for "qualified immigrants" including battered immigrants. Although the

99

Letter from Dept. of Health and Human Services, Health Care Financing Administration, to State Medicaid Directors (Oct. 4, 1996). 100 PRWORA Section 402(b)(1) & (3), 8 U.S.C. 1612(b)(1) & (3). 101 Zimmerman, Wendy and Karen C. Temlin, Key Substitute Programs by State in PATCHWORK POLICIES: STATE ASSISTANCE FOR IMMIGRANTS UNDER WELFARE REFORM: 66 (Urban Institute, May 1999). 102 42 U.S.C. § 1396b(v)(3). 103 Prepared with the help of Tara Pappas, a policy intern with Ayuda. 104 8 U.S.C. § 1641(c)(2)(A).

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statutory right to access public and assisted housing for qualified immigrants is clear, the U.S. Department of Housing and Urban Development (HUD) has not yet amended its regulations to reflect these statutes. Additionally, since HUD does not directly administer its programs at a state or local level, local housing administrators may be unaware that certain battered immigrants are eligible for housing benefits. Therefore, we strongly recommend that advocates and attorneys accompany battered "qualified immigrant" applicants to housing interviews to ensure that they are granted access to public and assisted housing. Advocates and attorneys should take with them a copy of 8 U.S.C. 1641, which is included in the appendix to this manual, to show the persons administering the housing program that battered immigrants qualify under the statute. An immigrant with a pending VAWA application may have problems reserving a place in line on the public housing waiting list if she does not have a Social Security Number (SSN). To eliminate this hurdle, immigrants can obtain a taxpayer number from the IRS, which can be used in place of a SSN, or they can obtain a non-work SSN. (See section below on non-work Social Security numbers for more detail.) Advocates should refer to the rules of their particular state housing department to determine whether this step is necessary. Battered Immigrant Women Receiving Public or Assisted Housing on August 22, 1996 Some battered immigrants who were already receiving public or assisted housing benefits on August 22, 1996 may be able to continue receiving this benefit. The PRWORA only affects new applicants requesting benefits after August 22, 1996. Since some battered immigrants may be living in public or assisted housing with their abusers, advocates should be aware of how actions in a domestic violence case of a battered immigrant woman may effect her continued access to public or assisted housing. A battered immigrant woman who is qualified apart from her abuser for public or assisted housing can continue to receive public or assisted housing because she is a qualified immigrant under the PRWORA and she already lives in the unit. If she is residing in that unit with her abuser, she should be able to obtain a protection order removing her abuser from the public or assisted housing unit and continue to reside in that unit. After the abuser is vacated, advocates can work with local housing authorities to transfer the unit to the battered immigrant's name if she is a "qualified immigrant." This prevents her from having to reapply for public housing and be put back on the public housing waiting list. If a battered immigrant woman who is not a qualified immigrant is living with her abuser and another qualified family member who is a member of her family, the battered immigrant woman should be able to remain in the housing unit. She should also be able to obtain a protection order removing her abuser from the family home, provided that the other qualified immigrant will allow her to continue living there. If the other qualified immigrant is her family member, this should not be a problem. If that family member is a relative of the abuser, this may be more problematic. A battered immigrant who is dependent on her abuser or her abuser's family to remain in public or assisted housing might consider obtaining a protection order allowing them to continue to reside together, but prohibiting him from physically abusing her.

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An undocumented battered immigrant woman living with and married to a U.S. citizen or a lawful permanent resident abuser may wish to consider preparing and submitting a VAWA application and obtaining a prima facie determination in her VAWA case before having the abuser removed from the public or assisted housing unit. Once she has received a prima facie determination making her a "qualified immigrant," she should obtain a protection order removing her abuser from the public or assisted housing unit she shares with him. Housing Options Open to "Not-Qualified" Battered Immigrants If the parties are not married and are co-habitating, the undocumented battered immigrant would have no access to qualified immigrant status and would not be able to remain in the public housing unit if her abuser were ordered to vacate. "Not-qualified" battered immigrants (such as undocumented battered immigrants who are married to undocumented abusers or undocumented battered immigrants abused by their cohabitating U.S. citizen boyfriends) may be able to qualify for housing under "opt-out" provisions established by IIRAIRA for public housing agencies (PHAs).105 PHAs are responsible for the approval of applications for public or assisted housing.106 Under "opt out" provisions, PHAs can grant public housing to individuals without verifying immigration status. These provisions also permit PHAs to allow a "not qualified immigrant" to reside with a family headed by a citizen or "qualified immigrant" while allowing the rent to remain fully subsidized.107 These provisions include language that HUD will not override the PHA's decision to "opt out."108 PHAs may be hesitant to opt out because HUD bears no financial burden if the applicant is found to be ineligible. However, advocates working with particularly compelling cases of domestic violence may be able to obtain public housing for battered immigrant women by urging state housing officials to opt out of verifying immigration status.109

Nutrition Programs Under PRWORA, any immigrant who is eligible to receive free public education benefits (see Education section below) is also eligible to receive benefits under both the School Lunch program and the School Breakfast program, regardless of immigration status.110 Thus, states may not deny these benefits to any immigrant children, whether documented or undocumented, on the basis of their citizenship or immigration status.

Pub. L. No. 104-208, §§ 571-577 (1996); 24 C.F.R § 5.501(a); IIRAIRA section 575 created a new section 214(h)(2) which is the opt out provision for PHAs. 106 See generally HOUSING L. BULL. vol. 26, (1996). 107 Id. 108 HUD Reg. § 5.501(c). 109 In addition, the legislative history suggests that Congress intended to grant this opt out provision because it was added to many drafts and Congress had ample time to remove this provision had it been incorrect. 110 PRWORA § 742(a), 8 USC § 1615(a)

105

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PRWORA also gave states the option to provide assistance under certain federally funded nutrition programs to any immigrant in the state without regard to immigration status.111 These programs include: · · · · · · · Summer Food program Child and Adult Care Food program Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Special Milk program The Emergency Food Assistance Program (TEFAP) Commodity Supplemental Food Program Food Distribution Program on Indian Reservations

Although many of these nutrition programs could potentially be considered federal public benefit programs that are subject to limitations on immigrant eligibility, PRWORA does not specify whether the programs fall within or outside of this category. Instead, PRWORA exempts the School Lunch and School Breakfast programs entirely from restrictions on immigrant eligibility for federal public benefits, and allows states to determine immigrant eligibility for the remaining nutrition programs as they see fit.

Education Battered immigrant women who seek education for themselves or their children should be aware that immigrant eligibility for federal education benefits varies greatly depending on the program in question. Elementary and secondary education programs, for example, are open to all immigrant children, whether documented or undocumented. On the other hand, higher education programs, especially student financial aid programs, are much more restrictive. Battered immigrant women who are not yet qualified immigrants may enroll their children in elementary or secondary school without fear of discovery by the INS. Since the Supreme Court decision in Plyler v. Doe in 1982, undocumented immigrant children have been guaranteed the right to a free public education.112 In Plyler, the Court struck down a Texas state law that barred the use of state funds for the education of undocumented immigrant children, holding that such laws violated the Equal Protection Clause of the Fourteenth Amendment.113 Meanwhile, when Congress enacted PRWORA, they directed that nothing in the Act "may be construed as addressing alien eligibility for a basic public education as determined by the Supreme Court of the United States under Plyler v. Doe."114 As a consequence of the directives in Plyler and PRWORA, public elementary and secondary schools are prohibited from doing the following: ·

111 112

Denying admission to a student due to undocumented status

PRWORA § 742(b), 8 U.S.C. § 1615(b). Plyler v. Doe, 457 U.S. 202 (1982) 113 Id. 114 8 U.S.C. 1643(a)(2).

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· · · · ·

Engaging in disparate treatment in order to determine residency Engaging in "chilling" actions that deter immigrants from accessing schools due to fear that their status will be discovered Requiring parents or students to reveal or document their immigration status Exposing the immigration status of students or parents Requiring Social Security numbers115

In addition, the Family Educational Rights and Privacy Act prohibits schools from providing information about immigration status to any organization, including the INS.116 PUBLIC CHARGE CONCERNS Any immigrant who is likely at any time to become a "public charge" is ineligible to be granted lawful permanent resident in the United States. Recent immigration and welfare reform laws have generated considerable confusion and concern about whether a non-citizen who is eligible to receive certain federal, state, or local public benefits may face adverse immigration consequences of being considered a public charge for having received public benefits. On May 26, 1999 the Immigration and Naturalization Service issued proposed regulations and field guidance on the issue of public charge.117 The field guidance was to go into effect immediately. While these regulations are helpful to a certain extent for some battered immigrants, the INS has not issued final regulations and is still considering whether or not battered immigrants who apply for relief under VAWA will be exempt from or subject to public charge.118 Until that time attorneys representing battered immigrants should become familiar with the public charge proposed regulations and field guidance that apply to all immigrants. Subsequent to publication of the proposed regulations, which are discussed in greater detail below, Congress amended the Violence Against Women Act to clarify the effect of the public charge provisions on battered immigrant women.119 The statutory language guarantees that if an applicant for lawful permanent residence through adjustment of status or an immigrant visa has an approved VAWA self-petition and that applicant has received or is receiving postAugust 22, 1996 benefits, then the INS and consular officials are barred from considering the receipt of those benefits for public charge purposes. Evidence of use of IIRAIRA authorized benefits must not be solicited, accepted, or considered by INS officers or consular officials adjudicating adjustment of status or visa applications from self-petitioners or abused widows with approved self-petitions (I-360s). IIRAIRA authorized benefits require that the applicant

115

Morse, Susan C. and Frank S. Ludovina, Responding to Undocumented Children in the Schools, EDUCATIONAL RESOURCES INFORMATION CENTER, Sept. 1999, available at <http://www.ed.gov/databases/ERIC_Digests/ed433172.html>. 116 20 U.S.C.S. § 1232(g). 117 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28675 et. seq. 118 Immigration and Naturalization Service, Questions and Answers -- Public Charge. Question 32. http://www. Ins.usdoj.gov/public_affairs/news_releases/public_cqa.htm. 119 Pub. L. No. 106-386, § 1505(f) (2000).

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prove that she is a domestic violence victim and that the need for benefits is substantially connected to the abuse (see above). Because the VAWA amendments were enacted after the INS issued the proposed public charge regulations, the proposed rule does not reflect these changes. The proposed regulation does, however, clarify the circumstances under which any non-citizen can receive public benefits without becoming a public charge. The only benefits that are to be relevant to the public charge determination are public cash assistance for income maintenance and institutionalization for long-term (but not short-term) care at government expense.120 Benefits that fit under this definition for public charge purposes are: SSI, TANF, state and local cash assistance for income maintenance and government-paid costs for institutionalization for long-term care.121 Non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not to be considered in making a public charge determination.122 Although some of these programs may provide cash benefits, they are not relevant to the public charge determination if the purpose of such benefits is not for income maintenance but to avoid the need for on-going cash assistance for income maintenance. Examples of public benefits that cannot be considered for public charge purposes include but are not limited to: Food Stamps, Medicaid, State Children's Health Insurance Program, nutrition programs, housing benefits, child care services, energy assistance transportation vouchers, educational assistance, and job training programs. 123 The rule also states that an alien's mere receipt of cash assistance for income maintenance, or being institutionalized for long-term care, which are among the criteria for being deemed public charge, does not automatically make her/him inadmissible, ineligible to adjust status to legal permanent resident, or deportable on public charge grounds. Therefore, temporary reliance on public benefits does not necessarily result in a determination that the battered immigrant is a public charge, even if the assistance received was provided based on eligibility that was not related to the domestic violence. 124

120

Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 28685 (1999). 121 Immigration and Naturalization service, Questions and Answers--Public Charge, Question 6 <http://www.ins.gov/graphics/publicaffairs/factsheets/public_cfs.htm>. 122 Immigration and Naturalization Service, Inadmissibility and Deportabiliy on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28681-82. Sections 212.102, 212.103(c) & 212.105.. 123 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28682 Section 212.105. 124 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rule and Notice. 64 Fed. Reg. 101 at 28683. Section 212.106(b).

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The law requires that INS and department of state (DOS) officials consider several additional issues as well125 including the totality of the applicant's circumstances,126 the duration and circumstances under which benefits were received,127 and whether the immigrants spouse, parent or child received public benefits.128 Cash benefits received by a child or other relative will not be attributed to a battered immigrant or other immigrant unless the benefits represent the sole support for the family.129 Each determination is thus made on a case-by-case basis. Before an alien can be denied admission to the U.S. or denied adjustment of status to legal permanent resident based on public charge grounds, the INS or immigration judge must determine that the person is likely to become a public charge. A number of factors must be considered including age, health, family status, assets, resources and financial status, education, skills, and the totality of the applicant's circumstances.130 Though self-petitioning, battered immigrant women are exempt from the requirement of providing an affidavit of support, and the INS is not allowed to consider post-August 22, 1996 benefits use. Until further regulations are issued by INS that specifically address public charge in the cases of battered immigrant women, such individuals may be required to show that they are not likely to become a public charge in future. Under the proposed rule they will need to show that they have not become or are not likely to become "primarily dependant on the government for subsistence as demonstrated by receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense."131

Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28678. 126 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28682 Section 212.104. 127 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28683. Section 212.106(b). 128 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28683. Section 212.109(a). Benefits provided to a family member will not make an alien inadmissible unless the evidence shows that the alien individually is likely to become a public charge. 129 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28683 and 28686. Sections 212.109(b) and 237.18(b). 130 INA Section 212(a)(4)(B). Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28682 Section 212.104. 131 Immigration and Naturalization Service, Inadmissibility and Deportability on Public Charge Grounds; Field Guidance on Deportability and Inadmissibility on Public Charge Grounds; Proposed Rules and Notice. 64 Fed. Reg. 101 at 28677.

125

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Until the Justice Department issues further regulations that incorporate the new statutory changes regarding public charge and battered immigrants, when battered immigrants cannot clearly meet the exceptions to the public charge definition set out in the proposed public charge rule, attorneys working with battered immigrants should assist them to use benefits and move off welfare as quickly as possible. It is best if battered immigrants can show some work history and some ability to sustain themselves and their children. Once the client's self-petition has been approved by the INS, the battered immigrant should move quickly to obtain work authorization and employment by the date of her adjustment interview. Battered immigrants who have received cash benefits for themselves in order to flee their abuser or who received public benefits for their children that were the sole source of support for the household should, if possible, delay filing for adjustment of status to lawful permanent residency until they have secured employment. If this is not possible, battered immigrants on public benefits should be prepared to demonstrate that the benefits they are using are IIRAIRA related and connote be considered or that their use of benefits is temporary and has been necessary to help the battered immigrant become self-reliant apart from her abuser. Attorneys should present evidence that the battered immigrant is a domestic violence victim, that her benefits use was authorized under IIRAIRA, that she can sustain herself in the future and that the totality of the circumstances favor awarding her lawful permanent residency status. INQUIRIES INTO CITIZENSHIP, IMMIGRATION STATUS, AND SOCIAL SECURITY NUMBERS Just as misunderstandings about public charge requirements may deter some battered immigrants from applying for benefits to which they are entitled, many immigrants are also reluctant to apply for public benefits because they fear inquiries into citizenship, immigration status, and social security numbers (SSNs) for family members who are not seeking assistance. Frequently, such fears center on concerns about whether such information will be reported to the INS or used to deport undocumented family members. In fact, there are a number of federal laws and policies that are designed to ensure that all eligible individuals have access to federal benefit programs and that limit inquiries into citizenship, immigration status, and SSNs to accomplish this goal. Worried that eligible members of immigrant families are not receiving all the benefits for which they are eligible, the Department of Health and Human Services and the Department of Agriculture recently issued joint guidance regarding inquiries into citizenship, immigration status, and SSNs in state applications for Medicaid, State Children's Health Insurance Program, TANF, and Food Stamps. According to the guidance: "Under federal law, states are required to establish the citizenship and immigration status of applicants for Medicaid (except emergency Medicaid), SCHIP, TANF and Food Stamps. However, states may not require applicants to provide information about the citizenship or immigration status of any non-applicant family or household member or deny benefits to an applicant because a non-applicant family or household member has not disclosed his or her citizenship or immigration status."132

Department of Health and Human Services and Department of Agriculture, Policy Guidance Regarding Inquiries Into Citizenship, Immigration Status and Social Security Numbers in State Applications for Medicaid, State Children's Health insurance Program (SCHIP), Temporary Assistance for Needy Families (TANF), and Food Stamp Benefits (last modified Sept. 21, 2000) <http://www.hhs.gov/ocr/immigration/triagency.html>.

132

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This policy permits all eligible members of an immigrant family to apply for and receive benefits without fearing that their actions will jeopardize the immigration status or lead to the deportation of other immigrant family members. It also specifically allows immigrant parents who are ineligible for public benefits to apply for benefits that their U.S. citizen children are eligible to receive. Therefore, for example, battered immigrant women who have not yet attained qualified immigrant status may seek Medicaid on behalf their U.S. born children without revealing their own immigration status and without providing their own SSNs. In this type of case (i.e., where benefits are sought only for the child), the child is considered the applicant, and the state is required to establish the citizenship and immigration status only of the child, not the child's parents. If the child is otherwise eligible, the state may not deny benefits simply because the child's parents have failed to provide information regarding their citizenship, immigration status of SSN. Although each federal benefit program has its own rules regarding eligibility determinations, there are two major federal laws that limit the states' ability to make certain eligibility inquiries: Title VI of the Civil Rights Act limits inquiries into the citizenship and immigration status of non-applicants, and the Privacy Act of 1974 restricts the state's ability to require SSNs from non-applicants. States that require non-applicants to reveal their citizenship or immigration status when such information is not legally required risk violating Title VI of the Civil Rights Act, which prohibits discrimination based on race, color, or national origin by recipients of federal funds.133 According to the HHS-USDA guidance, "to the extent that states' application requirements and processes have the effect of deterring eligible applicants and recipients who live in immigrant families from enjoying equal participation in and access to these benefit programs based on their national origin, states inadvertently may be violating Title VI."134 Meanwhile, § 7 of the Privacy Act of 1974 generally prohibits states from denying benefits to individuals who refuse to disclose their SSNs, unless the disclosure is required by federal statute.135 Although federal law does require applicants for Medicaid, SCHIP, TANF, and Food Stamps to provide their SSNs, states risk violating the Privacy Act if they require non-applicants to disclose their SSNs as a condition for approving the applicant's eligibility for the benefits. While states are not prohibited from requesting the SSNs of non-applicants, states that do so are required under the Privacy Act to inform the non-applicant whether the disclosure is voluntary or mandatory and what uses will be made of it.136 Although federal policy, Title VI, and the Privacy Act all govern state inquiries into citizenship, immigration status, and SSNs, actual application procedures vary from program to program and state to state. For example, as a general rule, Medicaid and SCHIP allow individual children to apply for and receive benefits. For these programs, therefore, states must require disclosure of the citizenship,

42 U.S.C. §2000d, et seq. Department of Health and Human Services and Department of Agriculture, Policy Guidance Regarding Inquiries Into Citizenship, Immigration Status and Social Security Numbers in State Applications for Medicaid, State Children's Health insurance Program (SCHIP), Temporary Assistance for Needy Families (TANF), and Food Stamp Benefits (last modified Sept. 21, 2000) <http://www.hhs.gov/ocr/immigration/triagency.html>.

134 135 133

Department of Health and Human Services, Policy Guidance Regarding Inquiries Into Citizenship, Immigration Status and Social Security Numbers in State Applications for Medicaid, State Children's Health insurance Program (SCHIP), Temporary Assistance for Needy Families (TANF), and Food Stamp Benefits (last modified Sept. 20, 2000) <http://www.hhs.gov/ocr/immigration/finalqa.html>. 136 Id.

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immigration status, or SSN only of the person for whom benefits are being sought, and the status of other household members is irrelevant to the applicant's eligibility.137 On the other hand, under TANF and Food Stamps, families or households are generally required to apply for benefits as a unit. Under Food Stamps, if a household member does not establish his or her citizenship or immigration status or provide a SSN, that household member is determined to be ineligible to receive benefits, but the state agency cannot deny benefits to otherwise eligible household members. The amount of the benefit will be reduced to reflect a smaller family size or household unit, and the benefit that the household or family will ultimately receive will be less than if all family or household members qualified. Similar voluntary or mandatory opt-out provisions are available under TANF in some states.138 In other words, "in Medicaid, SCHIP and Food Stamps, states cannot deny benefits to otherwise eligible family or household members because other family or household members have failed to disclose their immigration status or provide an SSN. In TANF, states have the flexibility to adopt policies and procedures to ensure that eligible family members are not denied benefits because ineligible family members do not disclose this information."139 With respect to other federal and state benefit programs, the general rule is that states may only require information about citizenship or immigration status if the program's authorizing statute limits eligibility on such grounds or if the program provides a federal, state, or local public benefit. Advocates seeking public benefits for battered immigrant clients should consult the specific program requirements before assisting their clients in applying for aid. WORK-RELATED AND NON-WORK SOCIAL SECURITY NUMBERS As discussed above, individuals seeking Medicaid (except Emergency Medicaid), SCHIP, TANF, and Food Stamps are required under federal law to provide a social security number (SSN) when applying for such assistance. Some states may also require SSNs for other federal, state, or local benefits. In order to better serve undocumented battered immigrant women and their children who qualify to receive benefits under VAWA based on a prima facie determination or an approved petition, advocates should be aware that it is possible for undocumented immigrants to obtain non-work authorized SSNs if they need an SSN to access benefits for which they are legally entitled. Thus, advocates need to understand the process by which an undocumented immigrant can obtain a non-work SSN. In general, if an applicant for Medicaid, TANF, or Food Stamps does not have a social security number, the state agency must assist the individual in applying for one.140 However, advocates are strongly encouraged to accompany their clients to the Social Security Administration to ensure that their clients are not denied non-work SSNs by caseworkers who do not fully understand the process and eligibility requirements involved in issuing non-work SSNs and who may have no knowledge of battered immigrant eligibility under VAWA. In order to receive a work authorized social security number, an individual must be a U.S. citizen or must be an immigrant authorized to work in the U.S. If an individual is not authorized to work in the U.S. but has a valid non-work reason for applying for a number, the Social Security Administration will issue a non-work social security number. Such social security numbers may be required for

137 138

Id. Id. 139 Id. 140 Id.

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undocumented battered immigrants or lawfully present battered immigrants without work authorization to apply for public benefits. A SSN may be assigned for a non-work purpose to an immigrant who cannot provide evidence of immigrant status that allows them to work under 20 C.F.R. § 422.107(e), if the immigrant meets certain conditions, including proof of residence either in or outside the US, or a territory of the US, and proof that a social security number is required by law as a condition of the alien's receiving a federally funded benefit to which the alien has established entitlement.141 Eligibility A non-work SSN will be processed for undocumented immigrants who are entitled to the following public benefits:142 · · · · · · · Temporary Assistance to Needy Families ("TANF") Medicaid Food Stamps Supplemental Security Income (SSI) Social Security Disability Insurance (SSDI) Old Age Survivors Disability Insurance (OASDI) Benefits for end stage renal disease patients under Title XVIII.

A SSN will not be processed for any undocumented immigrant who:143 · · · · · Is ineligible for benefits/payments under the programs listed above (TANF, Medicaid, Food Stamps, SSI, SSDI, OASDI, and Title XVIII) Is an SSI ineligible spouse, parent, or child Is appointed representative payee for SSDI, OASDI, or SSI beneficiary Is eligible only for emergency services under Medicaid, since emergency Medicaid is open to all immigrants and having a SSN is not a condition of eligibility for emergency Medicaid Alleges a need for a SSN for tax or similar purposes.

Application Procedures Work-Authorized SSN In order to obtain a work authorized SSN, the Applicant must be (1) A US citizen (US born or foreign-born), or (2) An immigrant (either US born or foreign-born) authorized to work in the United States. The applicant must also be able to prove the following:144

Non-work social security numbers are also issued to immigrants if the state government requires a social security number to administer statutes governing the issuing of a driver's licenses and the registering of motor vehicles. It can also be argued that in jurisdictions where the courts ask for social security numbers of parties applying for divorce, child support, paternity, and marriage licenses non-work social security number should be issued. See Memorandum regarding §466(a)(13) of the Social Security Act. See also POMS RM 00203.510 142 POMS RM 00203.560(A)(2) 143 POMS RM 00203.560 144 POMS RM 00203.001(C)(1), (D)(1), (D)(3)

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· · ·

Age, through documents including, but not limited to, a birth certificate, a religious record showing age or date of birth, a hospital records or birth, or a passport145 Identity, through documents including, but not limited to, driver's license, identity card, school record, medical record, marriage records, passport, or Immigration and Naturalization Service document146 US Citizenship or Work Authorized Lawful Immigrant Status.147 Non-Work SSN In order to obtain a non-work SSN, the applicant must prove:

· · · ·

Age, through documents including, but not limited to, a birth certificate, a religious record showing age or date of birth, a hospital records or birth, or a passport;148 Identity, through documents including, but not limited to, driver's license, identity card, school record, medical record, marriage records, passport, or Immigration and Naturalization Service document;149 Legal requirement for a SSN as a condition of the applicant receiving a federally funded benefit or service; 150 OR That the state government requires a SSN to administer statutes governing the issuing of driver's licenses, the registration of motor vehicles, and the issuance of divorce decrees, child support orders, and paternity actions.151

It is strongly recommended that advocates and attorneys help battered immigrants gather the documentation they will need to file for a SSN or a non-work SSN and that advocates and attorneys accompany battered immigrants to the Social Security Administration when their battered immigrant clients apply. Advocates and attorneys should bring with them a copy of both the section of the regulations and the POMS that govern issuance of work-related or non-work SSNs, whichever is applicable. Loss of Non-Work Social Security Card Once a battered immigrant obtains a non-work SSN, you must, as an advocate, stress that she should keep the card in a safe place and not lose it. The Social Security Administration will not issue replacement non-work social security cards for undocumented immigrants. For battered immigrants, the original non-work SSN card must be kept at the home of a trusted relative or friend or kept for her by her advocate or attorney. This will ensure that the card will be in a place where the abuser cannot take it away from her or destroy it. If your client's non-work SSN number has been lost, stolen, or destroyed and she needs evidence of her SSN for an allowed purpose including payment of a federally funded

20 C.F.R. § 422.107(b) 20 C.F.R. § 422.107(c) 147 20 C.F.R. § 422.107(d) 148 20 C.F.R. § 422.107(b) 149 20 C.F.R. § 422.107(c) 150 20 C.F.R. § 422.107(e). The traditional legal requirements for non-work SSNs have not included state statutes requiring social security numbers for the issuance of divorce decrees, child support orders, and paternity actions. These requirements, however, are a logical extension of the use of non-work SSNs, because they are located in the same state statutes, and fulfill the same purpose, as the legal requirement of a SSN as a prerequisite for driver's licenses and motor vehicle registration. 151 Id.

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benefit, obtaining a driver's license, or filing for divorce, the advocate or attorney should contact the Social Security Administration and provide them with the name and phone number of the benefits case worker, the court clerk, or the third party agency who needs to know your client's non-work SSN. The Social Security Administrations will then contact the third party agency and notify them of your client's SSN. SSNs for U.S. Born Children With respect to SSNs for the U.S. born children of battered immigrant clients, advocates should be aware that the Social Security Administration automatically assigns SSN to children at birth under its Enumeration at Birth (EAB) Project, regardless of whether or not the parents have a valid social security number.152 Some Social Security Administration Staff have been erroneously advising parents who do not have social security numbers themselves that they cannot apply for a social security number for their US citizen children. If your immigrant client is going to have a child, they should be informed that their child will be assigned a social security number regardless of whether your client has one. CONCLUSION Providing battered immigrants with access to the welfare safety net is essential to fulfill VAWA's original intent. Battered immigrant spouses and children will only be able to take action to protect themselves and their children from ongoing abuse if they can survive independently of their abuser's economic support. Thus, domestic violence staff or immigrations attorneys who understand immigrant eligibility rules for public benefit programs will be better prepared to advocate for battered immigrants and will experience more successful outcomes in resolving public benefits problems. If you or a member of your staff need technical assistance with public benefits problems in your state, contact NOW Legal Defense at (202) 326-0040 or at [email protected]

152

EM-00058; POMS RM 00202.142

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