In this
multi-article discussion within her Instructional Series, noted Immigration
Attorney Magdalena Cuprys, Esq. provides an in-depth discussion regarding some
of the most important avenues of protections for immigrants under US
Immigration Law:
Immigration Options for Victims of Violence at
the hands of Abusive USC and LPR Family Members
As
a brief historical background, as recent as thirty years ago, an immigrant who
was the victim of family violence who was being sponsored for lawful permanent
residence by a family member, there was little to nothing that could be done to
help that immigrant victim pursue immigration status on her own. Today, after years of legislative changes to
the INA for victims of domestic violence, spouses, children, and now, in some
cases, even parents who suffer abuse at the hands of USC and LPR family members
now have options available that allow them to pursue filing for legal immigration
status on their own.
This
article presents three specific options for immigrant victims of domestic
violence:
1. VAWA
self-petitions (also referred to as I-360 Petitions due to the specific US CIS
Immigration Form utilized in the application process);
The
second class of individuals eligible to pursue relief under domestic violence
protections are:
2. Battered
spouse or child waivers;
And, the
third class of individuals are those which are called:
3. VAWA
cancellations.
Imperfect
Privacy Protections
Many
victims of domestic violence may fear that abusive family members will try to
interfere with their immigration filings, either by providing negative
information to U.S. Citizenship and Immigration Services (USCIS) or U.S.
Immigration and Customers Enforcements (ICE), or by seeking to obtain copies of
documents filed with USCIS. It is
extremely important to understand that the law protects the privacy of their
I-360 (VAWA Self-petition), I-751 (battered spouse or child), EOIR-42B (VAWA
Cancellation) Applications. One must be aware, however, that in practice, USCIS
does occasionally make mistakes and accidentally provides limited information
(such as receipts and notices of interview) to abusive family members.
Protections
for domestic violence victims are weakest with respect to reports made to
immigration authorities about victims’ immigration violations. It must be noted that VAWA prohibits
government officials from making “an adverse determination of admissibility or
deportability of an alien under the Immigration and Nationality Act using
information furnished “solely by” the abuser or agent of the abuser.
Furthermore,
if removal proceedings are initiated against a noncitizen domestic violence
victim, the Notice to Appear (NTA), which is the charging document in removal
proceedings, must contain a certification of compliance with the privacy
mandate of VAWA.
ICE’s
current policy with respect to protections for such applicants means that one
cannot provide domestic violence victims with complete or false assurances that
they are always protected from enforcement actions. This in mind, defense practitioners should
stand ready to contest NTA’s not only for lack of certification of compliance
with the VAWA privacy provisions where required, but also where such
certification is present, as ICE’s actions can be easily challenged.
A Few
Preliminary Thoughts on Working with Domestic Violence Victims
It
is important to remember that an applicant or client (victim of domestic violence)
may well be in danger. Every year in the United States, intimate partner
“violence results in nearly 20 million injuries and nearly 1,300 deaths.” As an
immigration lawyer, it becomes extremely important to refer one’s client to a
domestic violence service provider who can guide the applicant/client through
safety planning for herself and her children.
The
heart of any immigration case for an immigrant victim of domestic violence is
her story. When preparing for such applications, one must be prepared to be
interviewed carefully with specific questions as to the violence or abuse, such
as:
· Why
did he hit you?
· Why
did you ever marry him?
· Why
did you stay with him?
The VAWA
Self-Petition
A
VAWA self-petition on Form I-360 is a variation on an Immediate Relative
Petition. VAWA self-petitioning is open to close family members: the parents,
spouses, and unmarried children under 21 of USCs (immediate relatives), as well
as to spouses and unmarried children under 21 of LPRs.
· The
VAWA self-petitioner keeps the same place in the queue or line (the priority
date) of a Relative Petition filed under Preference Category 2A (whether or not
the Relative Petition has been withdrawn); and
· If an
application for adjustment of status is already pending, and the Relative
Petition has not already been withdrawn or denied, no new application for LPR
status is required.
The
criteria for a VAWA self-petition may be summarized as follows:
· Good-faith
marriage to a USC or LPR (for marriage-bases VAWA self-petitions, not
parent/child-based ones);
· Qualifying
relationship
o
Legally valid marriage to a USC or LPR;
o
Qualifying bigamy to a USC or LPR;
o
Recognized parent/child relationship where
abusive parent is USC of LPR; or
o
Recognized parent/son or daughter relationship
where abusive son or daughter is USC;
· Abuse
o
Physical battery;
o
Extreme cruelty
· Joint
residence; and
· Good
moral character
In
addition:
· If the
marriage has been terminated within the past two years, the VAWA
self-petitioner must demonstrate a connection between the divorce and the
abuse; and
· If the
abusive anchor relative has lost USC or LPR status within the last two years, the
VAWA self-petitioner must demonstrate a connection between the loss of status
and the abuse.
A Word of
Caution: Barriers to Approvals of VAWA Self-Petitions.
Many
immigrant victims of domestic violence have been in compromised situations and
some have committed acts that create bars to obtaining approval of immigrant
status as a VAWA self-petitioner.
· Prior Marriage Fraud: a
noncitizen who has previously been the beneficiary of a Petition for Alien
Relative on Form I-130 based on a marriage, which later has been determined by
federal immigration authorities “to have been entered into for the purpose of
evading the immigration laws” may not have a Petition for Alien Relative on
Form I-130 or a VAWA self-petition on Form I-360 approved.
· Good moral character: Any
activity in the domestic violence victim’s past (distant or otherwise) that is
not related to domestic violence may preclude a finding of good moral character
under INA § 101 (f). Under current USCIS interpretation of INA §204, many past
acts serve as lifetime bars to VAWA self-petitioning on Form I-360.
The VAWA
Self-Petitioner’s Statement
· The
most important part of any VAWA self-petition is the victim’s story in her own
words.
Where
you have an opportunity to influence the timing, it is preferable to file the
VAWA self-petition prior to the issuance of a final divorce decree
*** Magdalena Cuprys is the principal of Serving Immigrants,
a full-service immigration law firm offering a complete range of immigration
services to both businesses and individuals. The law firm is uniquely qualified
to manage the most contentious and unusual immigration needs. Swift resolution
of immigration-related issues is integral to a client’s ability to conduct
business or reach their personal goals in the United States. Located in Miami
and Clewiston, the firm’s offices provide corporate and individual clients of
foreign nationality with temporary work permits for the U.S., green card
petitions, criminal waivers and representation in removal proceedings cases.
With over a decade of experience, the law firm provides clients with the
confidence that their cases will be handled by an expert who understands their
needs and how to obtain their goals. Although the majority of the law firm’s
clients live in Florida, it represents people from all over the United States
and several foreign countries. References Law Firm Website: https://magdalenacupryslaw.com Other Website:
http://ww.servingimmigrants.com
Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169
Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html
LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/
Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433
Findlaw: https://pview.findlaw.com/view/4161404_1
Media News article “Broward Transitional Center: Immigrants With No Criminal
History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html
See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4
See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/
and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility
Ms. Cuprys recently prevailed in a hotly contested asylum cases against the
U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv
and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html
Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq
Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries. References Law Firm Website: www.servingimmigrants.com Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169 Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/ Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433 Findlaw: https://pview.findlaw.com/view/4161404_1 Media News article “Broward Transitional Center: Immigrants With No Criminal History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4 See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/ and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility Ms. Cuprys recently prevailed in a hotly contested asylum cases against the U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
