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~Domestic Violence~
 BACKGROUND INFORMATION
COMMUNITY
PARTNERSHIP: GLOBALIZATION AND THE ROLE OF SERVICE PROVIDERS TO IMMIGRANT
BATTERED WOMEN
CONTACTS/SHELTERS/ADVOCATES
For web links and
contacts on this issue, see our general links & contacts pages.
Background Information
The Immigration and Nationality Act allows certain relatives of a
citizen or lawful permanent resident of the United
States to be classified for immigration.
These relatives are not automatically entitle to immigrate; the Service
must approve a visa petition by the citizen or lawful permanent resident
for the family member, and the relative must qualify for immigrant visa
issuance abroad or adjustment of status in the United States. Citizens a lawful permanent residents may choose whether and when
to petition for a relative.
Some abusive citizen or lawful permanent residents, instead of helping
close family members to legally immigrate, they use this discretionary
power to perpetuate domestic abuse of their spouse and minor children who
have been living with them in the United
States. Abusers generally refuse to file
relative petitions for their closest family members because they find
easier to control relatives who do not have lawful immigration status.
These family members are less likely to report the abuse or leave an
abusive environment because they fear deportation or believe that only the
citizen and authorized immigrants can obtain legal and social services. An
abuser may also coerce family members' compliance in other areas by threatening
deportation or by promising to file a relative petition in the future.
Crime Bill
The plight of these domestic abuse victims, who are unable to leave the
United States for financial, cultural, social, or other reason, was
addressed by the Violent Crime Control and Law Enforcement Act of 1994
("the Crime Bill"), Public Law 103-322, dated September 13, 1994.
Title IV of the Crime Bill, the Violence Against Woman Act of 1994
("the VAWA"), contains several provision that limit the ability
of an abusive citizen or lawful permanent resident to use the immigration
law to further violence against a spouse or child in the United States.
Section 40701 of the Crime Bill allows a qualified spouse or child to
self-petition for immigrant classification based on the relationship to the
abusive citizen or lawful resident of the United
States, without the abuser's
participation or consent. This section also permits an eligible abused
spouse to include his or her children in the petition, if the children are
not petitioned separately.
Requirements for Self-Petition
The spouse or child who applies for self-petition must:
a. Be living in the US
at the time of application for this benefit and must have resided in the US
with the citizen or lawful permanent resident.
Evidence of residency with the abuser may take several forms. Employment
records, school records, hospital or medical records, birth certificates of
children, mortgages, rental records and other types of evidence will be
relevant. One only needs to show that the self-petitioner resided with the
abuser at a certain point of time in the US However, the self-petitioner
must be residing in the US
at the time of filing the self petition. The self-petitioner must also
provide evidence of the abuser's status as a citizen or green card holder.
If direct evidence of the spouse's status is not available, the INS must
attempt to verify electronically the abuser's status from information
contained in its computerized records.
b. The marriage between the self-petitioner and abuser must have been
entered into in good faith. Children who are self-petitioning do not need
to prove the "good faith" nature of their parents' marriage. [It
is important to note that the victim of domestic abuse, or the parent of
the child victim, must be married to the abuser at the time of filing the
self-petition.] A divorce obtained after filing will not
affect the validity of the petition. Nor will any change in the abuser's
immigration status affect its validity, such as relinquishment or
abandonment of green card or deportation.
c. Battered by or been subject to extreme mental cruelty by US
citizen or resident spouse.
The abuser must be a citizen or permanent resident. The legal status of
the abused spouse or her children is irrelevant. The Act applies to spouse
or child who "has been battered by or has been the subject of extreme
cruelty perpetrated by USC [United States Citizen] or LPR [Legal Permanent
Resident] spouse or parent." "Extreme cruelty" may include being
the victim of any act or threatened act of violence.
Act of violence may include:
(1) any forceful detention which results or threatens to result in
physical or mental injury;
(2) psychological or sexual abuse or exploitation, including rape, molestation,
incest (if the victim is a minor) or forced prostitution;
(3) acts that may not initially appear violent
but are part of an overall pattern of violence.
Evidence of battering or extreme cruelty may include civil protection
orders, evidence of torn clothing, broken furniture, photos, detailed
affidavit of abused spouse describing abuse, affidavits from friends or
relatives, and affidavits from shelter workers, counselors, etc.
d. Spouse or Child Victim.
The self-petitioner may be a spouse who is suffering domestic abuse, a
child suffering domestic abuse, or the parent of a child suffering domestic
abuse. Children who are not suffering abuse may be part of a parent's
self-petition. The abuse must have taken place during marriage.
e. Good Moral Character.
The self-petitioner must prove "good moral character," though
this term has no precise meaning. Conviction of a drug offense (other than
a single offense of simple possession of 30 grams or less of marijuana),
conviction for an aggravated felony, false testimony to obtain a benefit
under the INA, or confinement in a jail for 180 days or more and other
similar instances will preclude a finding of good moral character. Police
clearance certificates must be submitted with the application.
f. Extreme Hardship.
The self-petitioner must show extreme hardship to the applicant or child
if deported. Hardship encompasses more than mere economic deprivation. In
other areas of the law, the factors include:
(1) age of the person;
(2) number of the person's children and their ability to adjust in their
native country;
(3) serious illness that necessitates medical attention not easily
available in the foreign country;
(4) person's inability to obtain adequate employment in foreign country;
(5) adverse psychological impact from deportation; and
(6) irreparable harm that may result due to
disruption of educational opportunities.
PROHIBITION OF DISCLOSING INFORMATION ABOUT BATTERED ALIENS
Although the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 is harsh on immigrants, it has carved out
various exceptions for battered women and children. Personal Responsibility
and Work Opportunity Reconciliation Act of 1996 (8
U.S.C. § 1612.)
Section 384 of the 1996 Act prohibits the release of any information
relating to aliens who are seeking or have been approved for immigrant
status under the provisions for battered spouses and children in the
Violence Against Women Act (VAWA). Section 384 prohibits any Department of
Justice employee, including both INS officers and immigration judges, from
making an adverse determination of admissibility or deportability using
information provided solely by the abusive spouse or parent or other member
of the household. Violation of either of these provisions can result in
disciplinary action or in civil penalties of up to $5,000 for each
violation.
New provisions of the 1996 Act will ensure the confidentiality of
information about abuse revealed in a battered spouse's petition for
permanent residency. On May 7,
1997, the INS issued a memorandum instructing INS employees
about the confidentiality provisions.
The memo states that Section 384(a)(2) prohibits disclosure in the case
of aliens who are beneficiaries of an application for relief under the VAWA
provisions and who: (1) self-petition for immigrant status, or (2) petition
for removal of condition upon residency under the "battered
spouse."
Exceptions to Confidentiality
The memo further states that the prohibition against disclosure extends
to any information relating to the battered spouse or child, which could
include verification of status or any other routine information.
Exception to the prohibition are provided for:
a. disclosure to another Justice Department employee for legitimate
Justice Department purposes;
b. disclosure to law enforcement officials for legitimate law
enforcement purposes, at the discretion of the INS;
c. disclosure for purposes of judicial review in a manner that protects
the confidentiality of the information; and
d. disclosure in such manner as census
information may be disclosed by the Secretary of Commerce.
All confidentiality provisions contain standard exceptions, such as
those given above. In the case of fraud, the above exceptions would
authorize the INS to reveal confidential information to other federal
employees for law enforcement purposes. Adults can execute a waiver to
allow disclosure of information pertaining to themselves,
but the statute does not provide for any waiver allowing disclosure of information
pertaining to a child.
For victims of domestic violence, the following factors would be
considered:
a. the nature and extent of the physical and psychological consequences
of the battering or extreme cruelty;
b. the impact of the loss of access to the US courts and criminal
justice system (including, but not limited to, the ability to obtain and
enforce orders of protection, criminal investigations and prosecutions,
family law proceedings and court orders regarding child support, maintenance,
child custody and visitation);
c. the self-petitioner's need for social, medical and mental health
services that would not be available in the native country;
d. the existence of laws, customs, social practices that would penalize
the petitioner for having been the victim of abuse or for leaving the abuse
situation or for action to stop the abuse;
e. the abuser's ability to travel to the foreign country and the ability
and willingness of the foreign authorities to protect the self-petitioner;
and
f. the likelihood that the abuser's family and
friends or others acting on behalf of the abuser would physically or
psychologically harm the self-petitioner or the self-petitioner's child.
REQUIREMENTS FOR SUSPENSION OF DEPORTATION
The act also created a new form of suspension of deportation known today
as "Cancellation of Removal" for the victims of domestic violence
at the hands of a USC or LPR spouse or parent. Suspension of deportation
may only be sought in deportation proceedings or "removal" under
the new law.
a. Battering or extreme cruelty by a USC or LPR.
The abuser must be a USC or LPR spouse or parent. The applicant must
have been "battered or subjected to extreme cruelty in the United
States" by such spouse or parent.
b. Three years of continuous physical presence
in the US.
The applicant must have been continuously physically present in the US
for at least three years prior to filing the application.
c. Spouse of Child Victim.
A person seeking suspension must show extreme hardship if deported.
d. Good Moral Character.
CURRENT ISSUES IMMIGRATION AND DOMESTIC VIOLENCE 1994, Congress enacted the Violence
Against Woman Act (VAWA) several provisions of the Act allows a spouse or
child suffering abuse from a spouse or parent who is a lawful permanent
resident of United States or American Citizen to file a self-petition
for permanent residency.
1996,
Personal Responsibility and Work Opportunity Act, known as the welfare
reform bill, contains provision that can affect immigrant battered women.
The act was amended to treat certain battered women as "qualified
aliens" (qualified for public assistance and other services) and if
the immigrant has file a petition on his on her own behalf under Violence
Against Woman Act ( VAWA). Non-battered children,
as well as children of battered parents, also can be considered qualified.
Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
Inadmissible or other removable spouses or children of U.S.
citizen and permanent must meet less rigid eligibility requirement,
although it is still difficult to qualify for cancellation of removal. INA
240(b).
Battered
spouses are subject to a less stringent "extreme hardship
standard" including the hardship to the alien. INA 240(b)(2)(E).
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