Domestic violence often includes sexual assault, child abuse and other violent and dangerous crimes against victim's person. It also may incorporate intimidation and subjugation and may cause serious mental injury to the victim. U.S. federal law and that of many states consider any type of sexual activity imposed without consent on another person as sexual assault. Being married to the victim does not absolve the abuser of liability for sexual assault, not does it diminish the harm such activity may and more often than not does cause. Child abuse refers to any type of activity or behavior, which may be found by a reasonable person to constitute physical abuse of a minor including any injury that did not happen by accident. Important to note that excessive punishment of a minor including by a parent, may constitute child abuse as may physical neglect or failure to provide food, shelter, medical care or supervision to a child by the individual charged with such responsibility. Sexual and emotional abuse including threats, withholding of love, support or guidance may also rise to the level of child abuse.
Domestic violence, sexual assault and child abuse are outright illegal in the United States. United States laws provide wide and unqualified protection against such activity to all persons found on American soil regardless of their race, color, religion, sex, age, ethnicity, national origin or immigration status. An immigrant victim of domestic violence may seek help and also be found eligible for immigration related protections.USCIS has published a brochure which is entitled “Information on the Legal Rights Available to Immigrant Victims of Domestic Violence in the United States and Facts about Immigrating on a Marriage-Based Visa”, which contains useful and helpful information for the victims of domestic violence as well as general public.
The Violence Against Women Act of 1994 (VAWA) is a Federal law that provides for investigation and prosecution of violent domestic crimes against women. Male victims of domestic violence, as well as the battered and abused parents or adoptive parents of US Citizens, and biological, step or adopted children of US Citizens are covered under this law. VAWA further contains provisions, allowing battered illegal aliens to claim temporary visas, be granted Deferred Action, and be eligible for immigrant classification and Adjustment of Status.
All VAWA Petitions have to be well-documented, and the following categories need to be covered:
- Relationship to the Abuser
- Status of the Abuser
- Residence with the Abuser
- Good Faith Marriage or adoptive relationship
- Good moral character of the petitioner
Gathering evidence can be quite difficult for the abused petitioners. In many cases, the petitioners are not living at home, and/or their abusers keep the documents from them. The USCIS is well aware of how hard document gathering can be, and, therefore, a very realistic standard for evidence has been established. This standard is called as “any credible evidence” standard, which means that not only official documents will be accepted by the USCIS, but any and all other believable documents, such as signed letters and sworn declarations would also be satisfactory.
However, the petitioners must show evidence of relationship to the abuser. That means, that not only the Petitioner's own (or the Petitioner parent's) marriage is or was legal, but all prior marriages of both parties were terminated by death or divorce. Therefore, any and all marriage, death and divorce certificates have to be presented. The marriage may be entered into either inside, or outside of the United States of America, however, any and all documents, issued in a foreign language have to be translated into English. A step-relationship may be terminated by death, legal separation, or divorce.
Step parent — step child relationship
In order to remain eligible to file for VAWA relief after the termination of a step-relationship, the alien stepparent of an abusive US Citizen son or daughter must demonstrate that:
- the US Citizen stepchild had not reached the age of 18 years at the time the marriage, creating the status of stepchild occurred;
- the step-relationship was in legal existence, and not terminated by death, legal separation or divorce at the time of the abuse, and
- the step-relationship was in legal existence at the time of filing or if the relationship was terminated due to death, legal separation, or divorce, the alien stepparent remains eligible if the stepparent can demonstrate as a matter of fact, the relationship continued to exist between the stepparent and the US Citizen Stepchild at the time of filing.
Abuser's legal status is important
WAVA petitioners are also required to prove that their abusers are Legal Permanent Residents of the USA (green-card holders) or US Citizens. Official documentation, containing the US-born Abuser's date and place of birth, or, in the absence of a US passport or a Naturalization Certificate, a document, containing Alien Registration Number for an abuser of foreign birth is required. In many cases, an experienced attorney would be able to help an abused Petitioner to find proof of the Abuser's status, even in cases, where the Abuser attempts to keep such documents from the Petitioner.
residence with the abuser
Another requirement is to show residence with the abuser. It often happens, that when the victim of abuse has no immigration status, and no social security number, documentary evidence showing joint residence is scarce. Also, the law does not specify how long the petitioner and the abuser had to live together, and how much time might have passed since they lived together. In cases of severe abuse, the length of joint residence may be quite brief. In such cases, documenting joint residence always takes a concerted effort of the Petitioner and his or her advocate, as well as a creative approach by the advocate
good faith marriage
Demonstrating good faith marriage is only easy, if the marriage was long and there were children born in the marriage. In all other cases, especially when the abuser is making document production hard for the victim, the scarcity of the evidence may make the USCIS suspicious of the petitioner's intentions to cheat the US Immigration law. In this, the value of assistance of an experienced attorney cannot be underestimated; as such attorney will guide the Petitioner through the process of producing statements, declarations and other evidence, documenting the good faith of the petitioner.
Battery, extreme cruelty or both
Petitioners are expected to show that they were subjected by the abuser to “battery or extreme cruelty”. This encompasses a wide range of physical, as well as mental and emotional abuse and cruelty. The USCIS will want to see that the abuser had retained the power and control in the relationship, while victimizing the petitioner. Here, the petitioner may present restraining orders, 911 transcripts, police reports, medical records, domestic violence shelter records, photos of injuries and mental health records. This list is in no way an exhaustive one, as each case is different from another, and more often than not it takes an experienced advocate to flesh out all the elements of abuse, suffered by the petitioner, and to make sure that all instances of abuse are properly documented.
Good moral character
In order to have their petitions approved, the abused have to demonstrate that they themselves are persons of good moral character. To that end, criminal records checks and/or police clearance letters need to be presented by the petitioner.
Higher standard in immigration court
It should always be kept in mind, that there are certain time limitations for filing of the above-discussed petitions. It is also important to note that, although aliens, who find themselves referred to Immigration Court and put in Removal Proceedings, may file for protection under VAWA, the standard of proof for their petitions would be heightened, and the clear and convincing evidence standard will be applicable.