Special Rule Cancellation of Removal for Battered Spouses and Children
- Eligibility for Special Rule (VAWA) Cancellation
- Discretionary Form of Relief
- Annual Cap on Adjustment of Status
- Parole of Family Member
- LPRs May Apply
The Violence Against Women Act (VAWA) contains special rules for cancellation of removal for non-lawful permanent resident (LPR) spouses or children of U.S. citizens (USCs) or LPRs who were subject to battery or extreme cruelty by his/her USC or LPR spouse or parent. Similar to the cancellation of removal rules for most non-LPRs that are found in INA § 240A(b)(1), an applicant may request special rule cancellation found in INA § 240A(b)(2) only before an immigration judge when in removal proceedings. If granted cancellation under VAWA, the beneficiary's status will be adjusted to that of LPR. Moreover, the eligibility requirements for special rule cancellation for battered spouses and children are more lenient than for regular cancellation.
Eligibility for Special Rule (VAWA) Cancellation
Pursuant to INA §§ 240A(b)(2)(A)(i)-(v), the following are the requirements for a non-LPR for cancellation of removal under the special rules for battered spouses and children to be granted. The case may be granted if He or she:
- is an alien who has been battered or subject to extreme cruelty by a USC or LPR bona fide spouse [this includes a spouse who the non-LPR thought he or she was legitimate married to but was not on account of the spouse's bigamy] or parent, or is the parent of a child of a USC or LPR parent who was battered or subject to extreme cruelty; and
- has been continuously physically present in the United States for at least 3 years preceding the date of the application for cancellation of removal; and
- has been a person of good moral character (GMC) for the required period of continuous physical presence; and
- is not inadmissible or deportable under certain provisions of the INA, and has not been convicted of an aggravated felony; and
- whose removal would result in extreme hardship to the alien, the alien's child, or the alien's parent.
Subject to Battery or Extreme Cruelty
Although the Courts have reached different conclusions on whether the “extreme cruelty” standard is discretionary and whether it is subject to judicial review, regulations found in 8 C.F.R. § 204.2(c)(vi) regarding who may self-petition under VAWA include the following non-extensive list of types of abuse that may constitute “battery or extreme cruelty”:
- Any act or threatened act of violence [including forceful detention];
Psychological or sexual abuse or exploitation [including rape, molestation, incest (if the victim is a minor), or forced prostitution]; and/or
- Acts that may not in and of themselves constitute violence, but taken together constitute an overall pattern of violence.
Continuous Physical Presence
The continuous physical presence requirement for VAWA cancellation is 3 years and the “stop time” rule on continuous physical presence is not triggered with the issuance of a notice to appear (NTA), letting the continuous physical presence to ill continue to accrue until cancellation is requested. However, the commission of a crime that would render the alien inadmissible or deportable stops the accrual of continuous physical presence pursuant to INA §240A(d)(1).
Moreover, during the required 3 years of continuous presence, the applicant may not have a single absence from the United States in excess of 90 days, or have been absent in excess of 180 days cumulatively. However, pursuant to INA § 240A(b)(2)(B), absences of impermissible lengths may be excused provided that the applicant demonstrates that the absences were connected to his or her abuse at the hands of the USC or LPR spouse or parent.
Good Moral Character (GMC)
The applicant for VAWA cancellation must have been a person of GMC for the requisite continuous physical presence period. Pursuant to INA § 240(b)(2)(C), something that would otherwise constitute a bar to GMC will not apply if the applicant demonstrates that the act or conviction causing a bar to GMC was connected to the battery or extreme cruelty that the applicant suffered.
Inadmissibility and Deportability
In order to be eligible for special rule cancellation for battered spouses and children, an applicant may not be inadmissible for a crime committed that is covered by INA §§ 212(a)(2) or (3), and may not be deportable for a crime committed under INA §§ 237(a)(1)(G)(2)-(4), or have been convicted of an aggravated felony.
In order to be granted special rule cancellation for battered spouses and children, an applicant must show that extreme hardship would occur on account of his or her removal. The applicant may also sustain his or her burden by demonstrating that he or she would incur extreme hardship if removed, or that his or her parent or child would incur the requisite hardship.
Furthermore, in addition to general extreme hardship factors, special factors particular to the battery or abuse suffered by the applicant may also be taken into account. Regulations regarding special rule cancellation for battered spouses and children found in 8 C.F.R. § 1240.20(c) explain that suspension of deportation regulations found 8 C.F.R. § 1240.58 regarding battered spouses and children are also applicable to VAWA cancellation cases as follows:
- The nature and extend 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 prosecutions, and family law proceedings or 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 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 children from future abuse.
Discretionary form of Relief
Cancellation of removal is a discretionary form of relief. Accordingly, an immigration judge may deny cancellation due to mitigating factors even when an applicant appears otherwise eligible for cancellation of removal relief.
Annual Cap on Adjustment of Status
Each VAWA cancellation grant counts toward the 4,000 per year fiscal year cap that we describe here in the article on regular non-LPR cancellation of removal. The same procedures for granting temporary relief apply for VAWA cancellation cases.
Parole of Family Member
The child of a non-LPR granted special rule cancellation or the parent of a non-LPR child granted special rule cancellation may be paroled into the United States until his or her status may be adjusted.
LPRs May Apply
The Board of Immigration Appeals (BIA) held in 2009 that LPRs, despite the statute only referring to non-LPRs, may apply for special rule cancellation of removal for battered spouses and children.
For Special Rule Cancellation of Removal for Non-LPRs, an alien in removal proceedings must establish that he or she was a victim of battery or extreme cruelty by a USC or LPR parent or spouse (or that he or she was the parent of a child of a USC or LPR who was subjected to battery or extreme cruelty). The alien must have been physically present in the United States for three years prior to the filing of the application, and be a person of good moral character. In the event that the applicant has any absences or bars to GMC that may be connected to the abuse, the applicant may demonstrate this connection in order to obtain special rule cancellation relief. Finally, the applicant must establish the requisite extreme hardship to the applicant or to a qualifying relative for special rule cancellation eligibility, and may do this using both regular extreme hardship factors and factors particular to the applicant's victimization.
Finally, if a non-LPR is a victim of domestic violence as described above, but is not in Removal Proceedings, he or she may affirmatively file for I-360 Petition for Special Immigrant - Battered Spouse
Those Eligible to File:
- Spouse of a U.S. citizen or permanent resident.
- Parent of a child who has been abused by their U.S. citizen or permanent resident spouse.
- Child who has been abused by their U.S. Citizen or permanent resident parent.
Eligibility Requirements for a Spouse:
You may file for yourself if you are, or were, the abused spouse of a U.S. citizen or permanent resident. You may also include on your petition your unmarried children who are under 21, if they have not filed for themselves.
- you should be married to a U.S. citizen or permanent resident abuser or were married in the past. The marriage to the abuser must have been terminated by death or a divorce (related to the abuse) within the two years prior to filing; or
- your spouse lost or renounced citizenship or permanent resident status within the two years prior to filing due to an incident of domestic violence, or
- you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse; and
- you entered into the marriage in good faith, not solely for immigration benefits, and you have resided with your spouse.
You may be entitled to relief if you have been abused by your spouse in the United States; if you have been abused by your spouse abroad while your spouse was employed by the U.S. government or a member of the U.S. uniformed services; or you are the parent of a child who has been subjected to abuse by your U.S. citizen or permanent spouse.
Eligibility Requirements for a Parent:
You may file for yourself if you are the parent of a child who has been abused by your U.S. citizen or permanent resident spouse. You may include on your petition your children, including those who have not been abused, if they have not filed for themselves. You may also file if you are the parent of a U.S. citizen, and you have been abused by your U.S. citizen child.
- you should be the parent of a U.S. citizen or were the parent of a U.S. citizen who lost or renounced citizenship status related to an incident of domestic violence or died within two years prior to filing; or
- you have been abused by your U.S. citizen child; and
- you have resided with the abusive son or daughter; and you are a person of good moral character.
Eligibility Requirements for a Child:
You may file for yourself if you are an abused child. You should be under twenty-one, unmarried and have been abused by your U.S. citizen or permanent resident parent. Your children may also be included on your petition. If you can demonstrate that the abuse was the main reason for the delay in filing, you may file for yourself as a child after the age of twenty-one but before twenty-five.
- you should be the child of a U.S. citizen or permanent resident abuser or were the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence; or
- you have been abused in the United States by your U.S. citizen or permanent resident parent or have been abused by your U.S. citizen or permanent resident parent abroad while your parent was employed by the U.S. government or a member of the U.S. uniformed services; and
- you have resided with the abusive parent, have evidence to prove your relationship to your parent; and must provide evidence of good moral character if you are over the age of 14.
In order to obtain relief you must complete the Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant. You must file the form, and all supporting documentation with the Vermont Service Center (VSC). If you meet all filing requirements, you will receive a notice (Prima Facie Determination Notice). This notice is valid for 150 days. You may also present this notice to government agencies that provide certain public benefits to certain victims of domestic violence. Although you will not have legal immigration status, we may we may place you in deferred action, which allows you to remain in the United States
Working in the United States:
If you have been approved, or are in deferred action, you are eligible to apply to work in the United States. However, you must file Form 1-765 with the Vermont Service Center. Your children, listed on your I-360, may also apply for work authorization.
Permanent Residence (Green Card):
Help is also available from the National Domestic Violence Hotline at 1-800-799-7233 or 1-800-787-3224 (TDD). The hotline has information about shelters, mental heath care, legal advice and other types of assistance, including information about filing for immigration status.