VAWA Petitions and U visas

1. VAWA Petitions and U visas Leah Duckett Law Offices of R.D. Ahlgren & Associates, P.C.

2. The Violence Against Women Act (VAWA) • The Violence Against Women Act was signed into law by President Clinton in 1994 as part of a larger crime bill to address domestic violence, sexual assault and stalking. • VAWA was amended in 2000 and again in 2005. • VAWA includes special provisions for battered immigrants that allow them to gain legal immigration status without relying on their abusive US citizen or LPR spouses or parents or children.

3. Cultural Barriers • Language limitations • Extreme Isolation • Cultural ideas of family shame and honor • Close-knit communities

4. How Abusers Can Misuse Immigration Privilege • Failing to file immigration papers on behalf of family members; • Filing an I-130 petition (or other application) and later withdrawing it; • Threatening to contact immigration officials; • Actually contacting immigration officials for the purpose of deporting family members; and/or • Providing immigration officials with false information about family members.

5. Who is Eligible to Self-Petition Under VAWA? • Abused spouses of U.S. citizens and LPRs; • Non-abused spouses of US citizens or LPRs whose children are abused (need not be children of abuser); • Abused children (must meet the definition of a “child” under INA § 101(b)) of USCs or LPRs; • Abused children of USCs may file until age 25 if central reason for delay is abuse (VAWA 2005); • Abused parents of USC children (VAWA 2005) • Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith. See INA § 204(a);

6. Self-Petitioners Retain Eligibility Within Two Years of … • Death of USC (NOT LPR) • Divorce • Deportation of Abuser when there is a connection to domestic violence

7. Self-Petitioners Must Prove … • Status of Abuser (USC or LPR) • Marriage Requirements • Legal Marriage • Good Faith Marriage • Battery or extreme cruelty • Residency Requirements • Self-petitioner lived with abuser • Self-petitioner’s current residence • Good Moral Character (3 years prior) • INA § 204

8. Evidentiary Standard for VAWA “ANY CREDIBLE EVIDENCE” standard is applied to VAWA Self-Petitions 8 CFR § 204.2(c)(2)(i)

9. Documenting VAWA Self-Petition • Client’s Affidavit • Battery or Extreme Cruelty • Affidavit, counselor letter, police reports, divorce decrees, witnesses, etc. • Abuser’s Status • US Birth Certificate; Passport; LPR Card; other • Good Faith Marriage • Joint residence, income taxes, bills, etc. • Residence with Abuser • Residence in US (unless hardship exception) • Good Moral Character • Police clearance letter, character letters

10. Good Faith Marriage … Self-petitioner cannot have entered into a marriage for the primary purpose of circumventing the immigration laws. 8 CFR § 204.2(c)(1)(ix) KEY FACTOR is whether she intended to establish a life with spouse at the time of marriage.

11. Battery or Extreme Cruelty Is defined broadly to include “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.” 8 CFR § 204.2(c)(2)(vi)

12. U Visas for Victims Certain Crimes • History of Visa: The U Visa for non-citizen victims of crime was created in October 2000 as part of the Victims of Trafficking and Violence Prevention Act “VTVPA” See INA § 101(a)(15)(U) • Congressional Intent: 1) Strengthens ability of law enforcement to investigate and prosecute designated crimes; and 2) Provides humanitarian protection to crime victims and family members.

13. Statutory Requirements • Immigrant suffered substantial mental or physical abuse as a result of having been a victim of certain criminal activity; and • Immigrant (or in the case of a child under 16, the parent or guardian) possesses information concerning that criminal activity; and • The criminal activity violated U.S. law or occurred in the U.S.; and • The immigrant has been helpful, is being helpful, or is likely to be helpful to a Federal, State or local authority investigating or prosecuting the crime. • See INA § 101(a)(15)(U)

14. Rape Torture Trafficking Incest Domestic Violence Sexual Assault Prostitution FGM Being held hostage Peonage Involuntary Servitude Slave trade Kidnapping Abduction False Imprisonment Being held hostage Peonage Obstruction of Justice Perjury Attempt, conspiracy or solicitation to commit any of these crimes, or any “similar activity” Crimes Covered

15. U visa practical tips … • There must be cooperation with law enforcement or prosecutors • The law enforcement officer or state’s attorney must sign a certification form • There are NO regulations on this provision of the VTPA!!