Special Rule Cancellation of Removal for Battered Spouses and Children

VAWA cancellation of removal, myattorneyusa.com

 

Introduction

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 the 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 only request special rule cancellation found in INA § 240A(b)(2) before an immigration judge when in the midst of removal proceedings, and if granted cancellation, the beneficiary's status will be adjusted to that of LPR. However, the eligibility requirements for special rule cancellation for battered spouses and children are more lenient than for regular cancellation. This article will explain the eligibility requirements for special rule cancellation for battered spouses and children, where they differ from the general rules for non-LPR cancellation, and advice for applying.

Eligibility for Special Rule (VAWA) Cancellation

Pursuant to INA §§ 240A(b)(2)(A)(i)-(v), the following are requirements for a non-LPR in removal proceedings to apply for cancellation of removal under the special rules for battered spouses and children:

Is an alien who has been battered or subject to extreme cruelty by a USC or LPR 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.

It is important to note that in the case the battery was committed by a USC or LPR spouse, the marriage must have been bona fide at the time it was entered into. Pursuant to regulations found in 8 C.F.R. § 204.2(c)(H), marriage fraud [see article] would render a non-LPR ineligible to claim status as a spouse.

Subject to Battery or Extreme Cruelty

In order to qualify for VAWA cancellation, the non-LPR must have been subjected to battery or extreme cruelty by a USC or LPR spouse or parent. The standard for “battery” does not require a “heightened level of violence” that has to meet a state criminal law definition.1 Courts have reached different conclusions on whether the “extreme cruelty” standard is discretionary and whether it is subject to judicial review.2

Regulations found in 8 C.F.R. § 204.2(c)(vi) for 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]
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 only 3 years instead of 10 for general non-LPR cancellation. Unlike for regular non-LPR cancellation, the stop time rule on continuous physical presence does not trigger with the issuance of a notice to appear (NTA), and continuous physical presence will continue to accrue until cancellation is requested. However, as is the case in regular non-LPR cancellation, 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).

In 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 total, in order to meet the continuous physical presence requirement. 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. Please follow this link in order to learn more about bars to establishing GMC. 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. You may learn more about the prohibited offenses by reading the section that covers them in our article about regular cancellation of removal for non-LPRs [see section].

Extreme Hardship

For regular cancellation of removal for non-LPRs, an applicant is required to demonstrate that exceptional and extremely unusual hardship would occur to a qualifying relative on account of the applicant's removal. However, for special rule cancellation for battered spouses and children, an applicant need only show that extreme hardship would occur on account of removal. The applicant may 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. In addition to general extreme hardship factors [see article], 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 applicable to VAWA cancellation cases:

1. The nature and extend of the physical or psychological consequences of abuse;
2. 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);
3. 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);
4. 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;
5. 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
6. 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.3

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.4

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.5

Advice

An experienced immigration attorney will be of great assistance to aliens seeking special rule cancellation of removal for battered spouses and children. Firstly, the alien 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). An experienced immigration attorney may assist the applicant in establishing that he or she is a qualifying victim in order to apply for special rule cancellation. In the event that the applicant has any absences or bars to GMC that may be connected to the abuse, an experienced immigration attorney may help the applicant demonstrate this connection in order to obtain special rule cancellation relief. Finally, an experienced immigration attorney may help the applicant 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.

Since special rule cancellation for battered spouses and children, like regular non-LPR cancellation, is a discretionary form of relief, there is no guarantee that it will be granted even if the applicant appears to meet all of the requirements. If the applicant meets the requirements for regular non-LPR cancellation of removal, he or she may be eligible to seek that form of relief if he or she is not found to be a qualifying victim of battery or abuse for VAWA cancellation. If placed in removal proceedings, an alien should always first consult with an experienced immigration attorney for a full evaluation of his or her situation in order to assess all possible forms of relief and remedies that may be available.

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  1. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1370, citing, Lopez-Birrueta v. Holder, 633 F.3d 1211, 1215-17 (9th Cir. 2011)
  2. Kurzban 1370, citing, Hernandez v. Ashcroft, 345 F.3d 824, 933-35 (9th Cir. 2003) [“extreme cruelty” is not discretionary and is subject to judicial review because it is a matter of fact that can be ascertained on an objective basis]; but see Guzman-Munoz v. Att'y Gen. of the U.S., 733 F.3d 1311 (11th Cir. 2013) [court has no jurisdiction to review whether an applicant is a battered spouse for VAWA cancellation]
  3. Kurzban 1371, citing Matter of A-M-, 25 I&N Dec. 66, 76-78 (BIA 2009) [respondent established substantial equities, nevertheless, special rule cancellation was denied because the respondent was divorced from the abuser, remarried, and had previously self-petitioned based on the abusive marriage]
  4. Kurzban 1371, citing INA § 240A(b)(4)
  5. Kurzban 1370, citing Matter of A-M-, 25 I&N Dec. 66, 74-76 (BIA 2009) [despite heading of section, cancellation is available to LPR]

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1370-71, Print. Treatises & Primers.

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VAWA