Immigration Status of the Abusive Spouse, Parent, Son, or Daughter
- It must be determined if the Applicant (victim of domestic violence) has copies of their abusive spouse’s birth certificates, green cards, naturalization records, or U.S. passport pages;
- If abusive relative is a USC born in the United States, one must look to the law of the state in which the USC was born and try to obtain copies;
- If the abuser is (or was) LPR, a naturalized USC, or has previously filed a petition with the federal immigration authorities, USCIS can look up the abuser’s immigration status.
Keep in mind that if the abuser has lost immigration status within the last two years and that loss of status can be connected to the domestic violence, then the Applicant will still be eligible to file a VAWA self-petition. In addition, as with divorce, post-filing loss of status is irrelevant.
Abuse (Either Physical Battery or Extreme Cruelty)
Sometimes, people do not realize that some of the bad things that have happened to them are forms of abuse. For example, isolation of friends and family, economic control, or forced sex are all common in domestic violence, but victims of these behaviors often do not realize the relevance of such behaviors as part of a pattern of abuse.
Police reports, court records, protection orders, and other documents indicating involvement with government authorities are helpful, but they are not required.
Mental health and domestic violence workers also can provide useful statements, but like police records, they are by no means a requirement. Ask providers not to focus so much on diagnoses like post-traumatic stress disorder and depression, but rather why, in the worker’s professional opinion, he or she believes that the Applicant has suffered domestic violence.
Remember that physical abuse is not required by statute and that extreme cruelty can provide the basis for a VAWA self-petition. As the Ninth Circuit in the old landmark case Hernandez v. Ashcroft noted, “Congress clearly intended extreme cruelty to indicate non-physical aspects of domestic violence.”
Good Moral Character
Good moral character, not mentioned in the INA provisions relating to USC and LPR-initiated Relative Petitions, is a statutory requirement for the approval of a VAWA self-petition. If the Applicant has no arrest record and does not fall within the class of persons described in INA § 101(f), there is little that the applicant must do other state than that she is a person of good moral character and provide police records from places of prior residence.
- Primary evidence of self-petitioner’s good moral character is her affidavit along with a local police clearance or a state-issued criminal background.
Any VAWA self-petitioner who has been arrested (even if charges were eventually dismissed) or may otherwise fall within INA § 101 (f) will need to provide in-depth explanations.
Individual applicants must remember that this is a very complicated area of immigration law. Any Petitioner should always seek the help of an experienced immigration attorney prior to attempting such applications.
Magdalena Cuprys is the principal attorney of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals.
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