VAWA Self-Petitioning for Battered Parents

Self-petitioning parent

 

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

The Immigration and Nationality Act (INA) allows the parent of an adult U.S. citizen to file a Violence Against Women Act (VAWA) self-petition for permanent resident status if he or she resided with his or her U.S. citizen son or daughter and was subject to battery or extreme cruelty by the son or daughter. In this article, we will use the relevant statutes, regulations, and agency guidance to examine the rules for filing a VAWA self-petition as the battered parent of a U.S. citizen. To learn about filing for adjustment of status on the basis of an approved Form I-360 petition for a VAWA self-petitioner, 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:

Spouse of U.S. Citizen or LPR [see article]
Child of abusive U.S. Citizen or LPR parent [see article];
Cuban Adjustment [see section];
VAWA cancellation of removal [see article].

Statutory Background

Under section 204(a)(1)(A)(vii), the parent of a U.S. citizen who was subject to battery or extreme cruelty by the U.S. citizen son or daughter may be able to file a VAWA self-petition under certain circumstances. The statute lists the following requirements:

I. Must be the parent of a U.S. citizen or of a son or daughter who, within the past 2 years, lost or renounced U.S. citizenship related to an incident of domestic violence or died;
II. Must be of GMC;
III. Must be eligible for classification as immediate relative parent of U.S. citizen under section 201(b)(2)(A)(i);
IV. Must reside or have resided with the U.S. citizen son or daughter;
V. Demonstrate that he or she was battered or subjected to extreme cruelty by U.S. citizen son or daughter.

Before examining each point in detail, it is important to note that the abusive son or daughter must be a U.S. citizen. This differs from VAWA self-petitioning for battered spouses and battered children in which cases a victim may file a Form I-360 if his or her abuser is a lawful permanent resident (LPR).

Examining the Statute and Agency Guidance

The two primary sources for VAWA self-petitioning parents are the statutes in the above section and a 2011 United States Citizenship and Immigration Services (USCIS) memorandum titled “Eligibility to Self-Petition as a Battered or Abused Parent of a U.S. Citizen; Revisions to Adjudicator's Field Manual (AFM) Chapter 21.15 (AFM Update AD 06-32)” (“the Memo”) [see Memo].1 We will rely primarily upon the Memo to examine the rules and evidentiary requirements for demonstrating eligibility for permanent resident status as a VAWA self-petitioning battered parent.

Qualifying Abuse Victim

Under section 201(a)(1)(A)(vii), a self-petitioning parent must be “eligible for classification as [the] immediate relative parent of a U.S. citizen under section 201(b)(2)(A)(i).” Section 201(b)(2)(A)(i) requires that for a parent to be eligible for classification as an immediate relative based upon a U.S. citizen son or daughter, the son or daughter “shall be at least 21 years of age.” Accordingly, in order to file a VAWA self-petition as a battered parent, the parent's son or daughter must be a U.S. citizen who is at least 21 years of age when the petition is filed. Note that although the petition must be filed when the son or daughter is at least 21 years of age, nothing in the statute or in agency guidance requires that all of the battery or extreme cruelty take place after the son or daughter is at least 21 years of age.

The Memo explains that the self-petition must include “[e]vidence of the abuser's U.S. citizenship.”

Under section 201(a)(1)(A)(vii)(I), a battered parent may file a VAWA self-petition if, within 2 years before filing the petition, the abusive son or daughter either lost or renounced citizenship due to an incident of domestic violence or died. In order to establish that an abusive son or daughter lost or renounced citizenship due to an “incident of domestic violence,” the self-petitioning parent must establish (the Memo citing AFM 21.14(q) which refers to self-petitioning spouses and children):

The circumstances surrounding the loss of status;
The requisite causal relationship between the loss of status and the incident of domestic violence;
The loss of status occurred within the two-year period immediately preceding the filing of the petition.

The AFM states that “[t]he credibility and probative value of the evidence submitted by the self-petitioner is a determination left to the discretion of the adjudicating officer.”

In Moreno-Gutierrez v. Napolitano, 794 F.Supp.2d 1207, 1210-11 (D. Colo. 2011) [PDF version], a district court held that the two-year deadline for filing in the as a battered spouse in this situation may be equitably tolled. However, this position is not national precedent and the administrative courts have often declined to adopt it in subsequent unpublished decisions. It is therefore always advised to ensure that a self-petition filed after the loss of status or death of the abusive son or daughter is filed within 2 years of such loss of status or death.

In the following two sections, we will examine the rules regarding when stepparents and battered spouses are eligible to file.

Stepparents

The Memo explains the circumstances in which a step-parent has a qualifying relationship with an abusive son or daughter for purpose of VAWA self-petitioning eligibility. In order for a step-parent to be eligible, the following must be demonstrated:

1. the U.S. citizen stepson or stepdaughter had not reached the age of eighteen years at the time the marriage creating the status of step child occurred;
2. the step-relationship was in legal existence, and not terminated by death, legal separation, or divorce, at the time of the abuse; and
3. 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 alien stepparent can demonstrate as a matter of fact, the relationship continued to exist between the stepparent and the U.S. citizen stepson or stepdaughter at the time of filing.

With regard to the third point, the Memo cities the Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981) [PDF version] which held that “[w]here the parties to a marriage creating a stepparent/stepchild relationship have legally separated or where the marriage has been terminated by divorce or death, the appropriate inquiry is whether a family relationship has continued to exist as a matter of fact between the stepparent and stepchild.”

The Memo lists examples of evidence that may be submitted to demonstrate a qualifying stepparent/stepchild relationship:

Marriage certificate of self-petitioner and natural parent of abusive stepson or stepdaughter showing that the marriage occurred before the U.S. citizen abuser's 18th birthday and/or other legal or court documents supporting the same;
Birth certificates;
Affidavits; or
Other evidence.

The Memo explains that provided the requirements are met for filing the petition, the subsequent termination of the stepparent/stepchild relationship will have no bearing on the approvability of the petition or the validity of an approved petition.

Adoptive Parents

The Memo explains that for the adoptive parent of an abusive U.S. son or daughter to be eligible to file a self-petition, evidence must be submitted to show that the parent/child relationship was created when the U.S. citizen son or daughter was under the age of 16 meets any additional requirements set forth in sections 101(b)(1)(E), (F), or (G). In order to determine whether the adoptive relationship meets the requirements for VAWA self-petitioning eligibility, the would-be petitioner should consult with an experienced immigration attorney. The memo states that “[e]vidence of a qualifying adoptive relationship includes a copy of the adoption decree issued by a civil authority.” USCIS may also consider “[o]ther relevant evidence.”

Good Moral Character

Section 204(a)(1)(A)(vii)(II) of the INA requires that the self-petitioning parent be a person of good moral character (GMC) [see article]. The Memo states that evidence of GMC “should be in the form of affidavit and should be supported by a local police clearance, state issued criminal background check or similar report from each locality or state in which the self-petitioner has resided for at least six months during the three years prior to filing the petition.” Additionally, the Memo states that the primary evidence to demonstrate eligibility as VAWA self-petitioner “is the same as that which is generally submitted by self-petitioning spouses and children pursuant to section 8 C.F.R. 204.2(c)(2)(i)-(v), and (vii) and 204.2(e)(2)(i)-(v).” Accordingly, please see the section of our article on battered spouses where we discuss the evidentiary requirements for demonstrating GMC under 8 C.F.R. 204.2(c)(2)(v) [see section].

Evidence Battery or Extreme Cruelty

The Memo states that evidence of battery or extreme cruelty includes, but is not limited to:

Police reports;
Court records;
Medical records; or
Reports from social service agencies.

The Memo adds that if the self-petitioner has a protective order in place against the abusive son or daughter, a copy of the order should be submitted.

In the context of battered spouses, 8 C.F.R. 204.2(c)(2)(iv) also includes “evidence that the victim sought safe haven” and “photographs of injured petitioner supported by affidavits.” 8 C.F.R. 204.2(c)(1)(vi) defines battery or extreme cruelty” as including:

Any threatened act of violence (including any forceful detention which results in physical or mental injury);
Psychological or sexual abuse or exploitation (including rape and molestation);
Other acts of violence that do not themselves qualify but in the aggregate, constitute an “overall pattern of violence.”

Residing Requirement

Section 204(a)(1)(A)(vii)(IV) of the INA requires that the petitioner resides with or have resided with the abusive son or daughter. The Memo provides a non-exhaustive list of evidence that may be submitted to meet this requirement:

Employment records;
School records;
Utility receipts;
Medical records;
Police reports;
Leases;
Mortgages;
 Affidavits.

No Extreme Hardship Requirement

Self-petitioning spouses and children are required to demonstrate that their removal would result in “extreme hardship” either to the petitioner or to the child(ren) of the petitioner (in the case of a petitioning spouse). This requirement exists only in the applicable regulations for both. However, the Memo specifically excludes the regulations pertaining to the extreme hardship requirement for self-petitioning spouses and children from the list of applicable regulations to self-petitioning parents.

No Derivatives

The Memo states that “[s]elf-petitioning parents are not eligible to confer derivative benefits.

Filing and Adjudication

VAWA self-petitions for battered parents are filed on the Form I-360. All VAWA self-petitions for battered parents are filed with the Vermont Service Center (VSC). The Memo states that there “is no statutory requirement that a self-petitioning parent be living in the United States at the time the self-petition is filed.”

Regulations for battered spouse self-petitions found in 8 C.F.R. 204.2(c)(6)(i) state that USCIS will determine make a prima facie (on the face) case for eligibility (the Memo notes that USCIS will first determine whether the petitioner is a “qualified alien” under the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 (PRWORA)). If USCS determines that such a case has been made, it will issue a Notice of Prima Facie Case under 8 C.F.R. 204.2(c)(6)(iii) (for spouses). However, the regulations for spouses note that the self-petitioner will still be required to submit all necessary evidence supporting his or her eligibility for permanent residency.

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

An abused parent should arrange to consult with an experienced immigration attorney for an evaluation of his or her situation. If relief under VAWA is appropriate, an immigration attorney will be able to help the noncitizen parent navigate the self-petitioning process. If it is determined that the noncitizen parent would not be eligible for relief under VAWA, an experienced immigration attorney will be able to assess whether another immigration solution may be appropriate.

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  1. Policy Memo, USCIS, PM-602-0046 (Aug. 30, 2011)

Resources and Materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 1067, Print. Treatises & Primers.

Tags: 
VAWA