VAWA Self-Petitioning for Battered Children

 

Introduction: Filing a Form I-360 VAWA Self-Petition as Abused Child of a U.S. Citizen or LPR

VAWA self-petitioning childThe Immigration and Nationality Act (INA) contains provisions for allowing children who have been battered or subjected to extreme cruelty by a U.S. citizen or lawful permanent resident (LPR) parent to self-petition for LPR status. In this article, we will discuss the eligibility requirements for filing a Form I-360 as a VAWA self-petitioning child. To learn about special considerations for filing for adjustment of status on the basis of an approved VAWA petition, please read our full article [see article].

To learn about other scenarios in which a noncitizen may file a VAWA self-petition, please refer to the following list:

Statutory Background

The provisions allowing the child of an abusive U.S. citizen parent to self-petition for LPR status are found in section 204(a)(1)(A)(iv) of the INA. The parallel provisions for the child of an LPR are found in section 204(a)(1)(B)(iii). The provisions are nearly identical save for the status of the abusive parent.

Qualifying Abuse Victim

Under sections 204(a)(1)(A)(iv) and 204(a)(1)(B)(iii), a battered child's abusive parent must be:

  • A U.S. citizen or LPR;
  • Have been a U.S. citizen but within the previous 2 years lost or renounced citizenship due to an incident of domestic violence; or
  • Have been an LPR but within the previous 2 years lost status due to an incident of domestic violence.

Furthermore, the self-petitioning child must:

  • Be a person of good moral character (GMC);
  • Reside or have resided in the past with the U.S. citizen or LPR parent; and
  • Have been battered or been the subject of extreme cruelty perpetrated by the U.S. citizen or LPR parent.

The statute makes explicit that “residence” includes “any period of visitation” for the purpose of this section.

A child is eligible to adjust status even if the petitioning parent dies or loses status after the filing of the I-360 petition. AFM 21.14(q)(2)(A) explains that the child of an abusive U.S. citizen parent may file a VAWA self-petition if the abusive parent died within the previous 2 years and the child is otherwise eligible to file a self-petition. However, the battered child of an LPR will not be eligible to file a self-petition after the death of his or her abusive parent.

In addition, the self-petitioning child must be classifiable as an immediate relative or as the child of an LPR (depending on the status of the abusive parent).

The regulations add an “extreme hardship” requirement. We will go through the rules for demonstrating extreme hardship in this context in our section on the implementing regulations [see section].

Adopted Child or Stepchild

Under section 101(b)(1)(E)(i), an adopted child need not meet the requirement that he or she have resided with his or her U.S. citizen or LPR parent for at least 2 years if he or she was battered or subjected to extreme cruelty by a U.S. citizen or LPR parent or a member of the parent's family residing in the same household. However, regardless of whether the self-petitioner is exempt from the 2-year residency requirement, he or she must meet the other requirements in sections 201(b)(2)(A)(i) or 203(a)(2)(A) in order to qualify as an adopted child. The requirements are summarized as follows in chapter 21.14 of the Adjudicator's Field Manual (AFM):

  • Petitioner was legally adopted before reaching the age of 16; or
  • Petitioner was under 18 at the time of the adoption and the birth sibling of another child who was under the age 16 when he or she was adopted by the same adoptive parent.

Regulations found in 8 C.F.R. 204.2(e)(1)(A)(iv) allows for a the stepchild of an abusive U.S. citizen or LPR parent to file a I-360 petition under the VAWA provisions. In order for a stepchild to qualify, his or her natural parent must have married the abusive stepparent before the child reached the age of eighteen.

Aging Out Prior to Adjustment of Status

Under section 204(a)(1)(D)(i)(1) of the INA, a child will not age out if his or her self-petition is not approved before he or she attains 21 years of age. Instead, the self-petitioner will be automatically transferred to the appropriate preference category and retain his or her original priority date.

Late Petitions

Although the child must be unmarried and under the age of 21 in order to file a I-360 petition as a VAWA self-petitioner, section 204(a)(1)(D)(v) permits a child in limited circumstances to file a VAWA self-petition before he or she turns 25 years of age. In order to be eligible for late filing, the child must demonstrate that “the abuse was at least one central reason for the filing delay.” If a late petition is accepted, it “shall be treated as having [been filed] on the date on which the individual attained 21 years of age.”

Other Statutory Considerations

Under statute, a VAWA self-petitioning child must be able to demonstrate that he or she is a person of good moral character (GMC) if he or she is over the age of fourteen when filing [see article].

Section 212(a)(4)(e) exempts VAWA self-petitioners from the public charge ground of inadmissibility [see article]. Section 212(a)(9)(B)(iii) states that any time spent in the United States while under the age of 18 is not unlawful presence and cannot be counted toward the 3- and 10-year bars of inadmissibility [see article]. If the self-petitioner is subject to a 3- or 10-year unlawful presence bar, he or she may be eligible for a waiver under section 212(a)(9)(C) if he or she can demonstrate a connection between the abuse and the actions that triggered the bar.

Section 204(a)(1)(L) prevents a child who gains status as a VAWA self-petitioner from subsequently filing a petition on behalf of his or her abusive parent.

In Moreno-Gutierrez v. Napolitano, 794 F.Supp.2d 1207, 1210-11 (D. Colo. 2011) [PDF version], a Colorado district court held that the two-year deadline for filing in the event of the loss of status or death of an abusive spouse may be equitably tolled. Presumably, the same reasoning would apply for a self-petitioning child in the event of the loss of status or death of the abusive parent. However, Moreno-Gutierrez is not binding on the DHS and administrative courts have generally declined to follow it in subsequent unpublished decisions.

Implementing Regulations and Application Process

The statutes that provide for VAWA self-petitioning for battered children are implemented through regulations found in 8 C.F.R. 204.2(e). We will review these along with other relevant guidance from USCIS to examine the rules for self-petitioning as the battered child of a U.S. citizen or LPR parent.

Demonstrating the Parent-Child Relationship

8 C.F.R. 204.2(e)(1)(ii) sets forth that the self-petitioning child “must be unmarried, less than 21 years of age, and otherwise qualify as the abuser's child under the definition of child contained in section 101(b)(1) [of the INA].” However, please see our discussion on the exception to this rule in the next section [see section]. The regulation makes explicit that the “[t]ermination of the abuser's parental rights or a change in legal custody” has no bearing on demonstrating that the requisite parent-child relationship exists or existed.

8 C.F.R. 204.2(e)(2)(ii) requires that the self-petitioning child submit:

  • Evidence of child-parent relationship with abusive parent;
  • Evidence of abusive parent's U.S. citizenship or permanent residency.

Additionally, the regulation lists qualifying primary evidence of a parent-child relationship for a variety of relationships between the self-petitioning child and the abusive parent:

  • A. Self-petitioning child and abusive biological mother: The self-petitioner's birth certificate issued by civil authorities;
  • B. Self-petitioning child born in wedlock and abusive biological father: The self-petitioner's birth certificate issued by civil authorities, the marriage certificate of the self-petitioner's parents, and evidence of legal termination of all prior marriages (if any);
  • C. Legitimized self-petitioning child and abusive biological father: The self-petitioner's birth certificate issued by civil authorities, and evidence of legitimization;
  • D. Self-petitioning child born out of wedlock and an abusive biological father: The self-petitioner's birth certificate issued by civil authorities showing the father's name, and evidence that a bona fide parent-child relationship has been established between the self-petitioner and the parent;
  • E. Self-petitioning stepchild and abusive stepparent: The self-petitioner's birth certificate issued by civil authorities, the marriage certificate of the child's parent and stepparent showing marriage before the self-petitioner reached 18 years of age, and evidence of legal termination of all prior marriages of either parent (if any); and
  • F. Adopted self-petitioning child and abusive adoptive parent: An adoption decree showing that the adoption took place before the self-petitioner turned 16 years of age.

Please note that 8 C.F.R. 204.2(e)(2)(ii)(F) requires that the adopted child have been residing with and in the legal custody of the abusive adoptive for at least 2 years. As we noted before, under statute the self-petitioning child need not meet the 2-year residency requirement if he or she was battered or subjected to extreme cruelty by a U.S. citizen or LPR parent or a member of the U.S. citizen or LPR parent's family residing in the same household. If the self-petitioner did not reside with his or her adoptive parent for at least 2 years, he or she will be required to demonstrate eligibility for the statutory exemption.

If the self-petitioner's abusive parent lost or renounced citizenship or if the LPR parent lost status within the previous 2 years, the burden will be upon the petitioner to demonstrate that such loss or renunciation of citizenship or loss of status was connected to an incident of domestic violence. AFM 21.14(q)(2)(B) requires that the self-petitioner submit evidence that demonstrates “[t]he requisite causal relationship and the incident of domestic violence.” USCIS will consider the “full history of domestic violence in the case” in making a determination.

Rules for Late Filing

A 2011 USCIS Memorandum [PDF version] set forth the rules for eligibility for late filing (before the self-petitioner turns 25 but after the self-petitioner turned 21).1 The requirements are as follows:

  1. The self-petitioner must have been qualified to file on the day before he or she turned 21 years of age.
  2. The abuse incurred by the self-petitioner from his or her parent must be “one central reason” for the self-petitioner's delay in filing. The Memo states that the battery or extreme cruelty need not be the sole reason for the delay, but it must be considered “central” and the “nexus between the battery or extreme cruelty and the filing delay must be more than tangential.” The Memo explains that an example of a qualifying reason would be if the battery or extreme cruelty took place “so near in time to the self-petitioner attaining age 21 that there was insufficient time to timely file.” It offers another example wherein a self-petitioner would have been unable to file in a timely manner because he or she was mentally or physically incapable on account of the abuse. USCIS will evaluate claims on a case-by-case basis and take into account the totality of the evidence in making a discretionary determination in any individual case.
  3. The self-petitioner must file before turning 25 (there is no exception to this rule).
  4. The self-petitioner must be unmarried at the time of the filing of the petition. Additionally, the self-petitioner cannot marry during the pendency of the petition. However, if the self-petitioner sought classification as a VAWA self-petitioner, became married during the pendency of the petition, but had the marital relationship legally terminated prior to a decision being entered by USCIS may remain eligible. In order to be considered, the self-petitioner must demonstrate that the marriage was legally terminated.

Evidence of Residence

Under 8 C.F.R. 204.2(e)(1)(v), the self-petitioner is not required to be residing in the United States when he or she files the petition. Furthermore, he or she need not be residing with the abusive parent when the petition is filed. However, the self-petitioner must have resided with the abusive parent in the United States in the past.

8 C.F.R. 204.2(e)(2)(iii) sets forth a non-exhaustive list of evidence that the self-petitioner may submit in order to establish that he or she meets the requirement of having resided with the abusive parent in the United States:

  • Employment records;
  • School records;
  • Hospital or medical records;
  • Rental records;
  • Insurance policies;
  • Affidavits;
  • Any other type of credible evidence.

Evidence of Battery or Extreme Cruelty

8 C.F.R. 204.2(e)(1)(vi) explains that “was battered by or was the subject of extreme cruelty” includes, but is not limited to:

  • Being the victim of any act or threatened act of violence (including any forceful detention which results in physical or mental injury);
  • Psychological or sexual abuse or exploitation (including rape, molestation, incest (if victim is a minor), or forced prostitution shall be considered acts of violence);
  • Other acts of violence that do not themselves qualify but in the aggregate, constitute an “overall pattern of violence.”

The regulation requires that the abuse must have been committed by the U.S. citizen or LPR parent and must have taken place while the self-petitioner resided with the abusive parent.

8 C.F.R. 204.2(e)(2)(iv) sets forth a non-extensive list of evidence that may be submitted to support the claim that the self-petitioner was subjected to battery or extreme cruelty by his or her abusive parent while they resided together in the United States:

  • Affidavits from law enforcement, medical personnel, school officials, clergy, social workers, or other social service agency personnel;
  • Documents relating to orders of protection;
  • Evidence that victim sought safe haven;
  • Photographs of injured petitioner supported by affidavits;
  • Other credible evidence.

The regulation also allows for the submission of “[d]ocumenatry proof of non-qualifying abuses may only be used to establish a pattern of abuse and violence and to support a claim that qualifying abuse may have occurred.”

AFM 21.14(d)(6)(B)(iii) adds other examples of evidence that may support the claim:

  • Statement from the child or other competent individual describing the battery or extreme cruelty in the child's relationship with the adoptive parent; or
  • Similar evidence showing that the abusive parent perpetrated abusive acts against another immediate family member in the household to which the child was a witness or was adversely impacted by the behavior.

Extreme Hardship and Evidence Thereof

8 C.F.R. 204.2(e)(1)(viii) requires that the self-petitioner demonstrate that his or her removal or deportation would result in “extreme hardship” to him or herself. Unlike most other forms of immigration relief that contain an extreme hardship [see article] requirement, only hardship to the petitioner may be considered. The regulation states that the self-petitioner should submit “all credible” evidence because there is no guarantee that any specific piece of evidence will satisfy the extreme hardship requirement. All “credible evidence,” including “evidence of hardship arising from circumstances surrounding the abuse,” may be considered. USCIS will make extreme hardship determinations on a case-by-case basis.

8 C.F.R. 204.2(e)(2)(vi) offers a non-exhaustive list of evidence that may be submitted by the self-petitioner in order to support an extreme hardship claim:

  • Affidavits;
  • Medical reports;
  • Protection orders and other court documents or police reports; and
  • Other relevant credible evidence.

Evidence of Good Moral Character

8 C.F.R. 204.2(e)(2)(iv) explains that the self-petitioner must demonstrate that he or she is a person of GMC only if older than 14 years of age. Persons under the age of 14 are presumed to be of GMC. If the self-petitioner is over the age of 14, he or she will have to demonstrate GMC. If a self-petitioner has a circumstance that would weigh against a positive GMC finding, he or she may endeavor to argue that it was related to the battery or extreme cruelty (e.g., the regulation cities a person who was forced to engage in prostitution).

8 C.F.R. 204.2(e)(2)(iv) states that primary evidence of the self-petitioner's GMC is his or her own affidavit. The affidavit should be accompanied by a:

  • Local police clearance or a state-issued criminal background check from each locality or state in the United States in which the self-petitioner resided for six or more months during the previous 3 years preceding the self-petition;
  • The same evidence submitted by the appropriate authority for any places where the petitioner resided for six or more months in the preceding 3 years abroad.

If such primary evidence is not available from every qualifying jurisdiction, the self-petitioner may include an explanation and other evidence with his or her affidavit. Additionally, USCIS may consider all other credible evidence. This may include affidavits submitted by “responsible persons who can knowledgably attest to the self-petitioner's GMC.”

Other Considerations

8 C.F.R. 204.2(e)(1)(iii) states that the self-petitioner's petition will not be automatically upgraded to the immediate relative classification if his or her formally LPR abusive parent becomes a U.S. citizen after the approval of the petition. However, the petitioner may opt to file a new self-petition for immediate relative classification if he or she is eligible.

VAWA self-petitioning children may not include derivative beneficiaries. If the self-petitioner has a child, a separate petition must be filed on behalf of the child.

Adjudication

Under 8 C.F.R. 204.2(e)(6)(i), USCIS will, upon receiving a petition, make a determination as to whether the petition makes a prima facie (on the face) case for the self-petitioner's eligibility. 8 C.F.R. 204.2(e)(6)(ii) notes that a prima facie case will only be made if the self-petitioner submits a completed Form I-360 with evidence pertaining to all of the regulatory requirements for approval. However, a finding that the self-petitioner made a prima facie case for eligibility does not mean that the petition has been approved or that the self-petitioner has been relieved of his or her burden to provide additional evidence (if requested) to support the petition.

If the petition is approved, the self-petitioner may apply for adjustment of status when an immigrant visa number is available. Please see our full article to learn about applying for adjustment of status on the basis of an approved VAWA self-petition [see article].

If the petition is denied, 8 C.F.R. 204.2(e)(3)(ii) explains that the self-petitioner will be notified of the reasons for the denial in writing and have the right to appeal the adverse decision.

Conclusion: Filing a Form I-360 VAWA Self-Petition as Abused Child of a U.S. Citizen or LPR

The VAWA provisions for battered children allow an abused child who would otherwise be unable to obtain immigration status to self-petition for permanent residency. However, it is important to work with an experienced immigration attorney to determine the best immigration option for the abused child. It is important to note that if the child's noncitizen parent was not involved in the abuse by the U.S. citizen or LPR parent, he or she may be eligible to include the child as a derivative in a VAWA self-petition [see article]. If the child is not eligible for relief under VAWA, an experienced immigration attorney will be able to determine whether an alternative form of immigration relief may be available.

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  1. Policy Memo, USCIS, Continued Eligibility to File for Child VAWA Self-Petitioners After Attaining Age 21, PM-602-0048 (Sept. 6, 2011)