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Immigration

Immigration Issues and Domestic Violence


     Photo Credit:  Angela Sevin

Immigrant women, whether in the US legally or illegally, face particular challenges when they find themselves in an abusive relationship. Language barriers, cultural barriers, fear of authorities, and threats from abusers to take their children or turn them over to authorities combine to make the already challenging process of escaping abuse exponentially more difficult.


While isolation is often one of the primary tools of an abuser in ANY relationship, immigrant women often face isolation issues to the extreme: An abuser may permit little or no contact with the outside world, may cut off communication with family and friends back home, and keep them at home to prevent them from making new friends in their new communities (especially with those from her own culture or who speak her native language).

The innate problem of language barriers adds to the problem. Immigrant women may not be allowed to learn to speak, read, or write English. This makes it easier for an abuser to lie to her about what any official documents regarding her immigration status say, so even if all her paperwork is in order and requested status has been granted, her abuser can make up any story they want to in order to keep her dependant and afraid. It also means that her options of seeking help outside her home are limited. She might see billboards on the side of the road, or community service messages on television from agencies and programs that could assist her, but if she can't understand the message, she'll never pick up the phone to make that call for help. One of the most powerful ads ever made about domestic violence is a poster produced by the National Coalition Against Domestic Violence that shows a casket draped in flowers. You can find it in English and Spanish HERE. The caption reads: "He beat her 150 times. She only got flowers once." A chilling warning and one that drives its important message home in a hard way - to those who understand it. But if you couldn't read who the message was from (seeing the name of the organization on the poster is an important part of understanding the message), or the caption, the ad could be mistaken for one for a florist, a funeral home, or a warning about some disease that you should be innoculated against. The next time you see an advertisement for domestic violence services, ask yourself how you would interpret the message if you didn't speak English. Many messages about domestic violence or abusive relationships show women crying or looking sad, and can easily be interpreted as ads for anything from depression to eye drops.

Immigrant women, just like many native women, may also be under the mistaken impression that services or help are only available if there has been physical violence in the relationship; or, their culture might accept physical violence from a husband as normal, or might even go so far as to embrace murder (euphamized as "honor killing") as a husband's or other family member's right in some circumstances (particularly in cultures where a wife is considered to be the "property" of her husband).

Victims may believe that authorities will not enforce laws on behalf of illegal residents (they WILL!), or that other legal protections like restraining orders are not avilable to them (they ARE!). Abusers may convince victims that their actions are not crimes or that the victim has no legal standing or recourse. Unfamiliar with our multi-layered law enforcment system, immigrant women often believe that any police officer can wisk them off to jail or deport them due to their status. The reality is that the average police officer or sheriff's deputy really doesn't care about immigrant status, nor do they check on it unless there has been some criminal act committed which they are investigating. They care about more immediate issues such as if you have warrants for arrest for some crime or infraction like failing to appear for a traffic ticket, or, if you are driving, that you have a valid driver license. Other than that, ICE/INS are the ones who enforce immigration law and the truth is that generally speaking, they are NOT going to show up and take away children and put the victim in jail or on a plane back to the country of origin. There are illegal immigrants in this country who have committed multiple felonies and served prison time, yet even many of THEM are not being actively "hunted" for deportation. So long as an immigrant is trying to be productive member of society (not committing crimes, etc.) and has initiated applications to further the process of becoming legal, ICE/INS has more vested interest in HELPING victims than they have in trying to remove them.

But physical violence, while often dangerous and escalating in nature, is often the LEAST of the worries or challenges faced by victims trapped in abusive relationships.

Along with physical isolation, financial isolation is often one of the hardest confinements to break. They may be unable to work due to their immigration status, or may not be able to find work "under the table". They may be afraid to work under the table, fearing additional legal problems. Their abuser may forbid or prevent such efforts or interfere with any opportunity they find by causing problems on their job, disabling their car, or making threats to report them. They may not have access to bank accounts (controlled by the abuser) or may not have necessary documentation to open accounts of their own (either afraid to, or perhaps because the abuser has control of or has destroyed their documents).



So what can I do?


Most importantly, if you are an illegal immigrant, DO NOT reveal your immigration status to anyone except an attorney working on your behalf or to a domestic violence advocate. You DEFINATELY need to be working with an advocate, so contact one in your area. They can assist in:
  • safety planning until you can leave
  • making plans to leave an abusive relationship
  • advice on how and where to get copies of important documents you'll need
  • referrals to local services like legal aid for custody, child support, or divorce issues
  • sending a copy of your custody order to the US State Department so your abuser can't get a passport or visa to take your children from the country
  • sending a copy of the custody order to your children's school so they don't release the children to the abuser
  • arranging for shelter for you and your children
  • help to get restraining orders
  • help to get documentation of abuse, including filing reports with police
  • help get copies of police reports already filed
  • obtaining interpretation services for court or other proceedings
  • dealing with your immigration issues
They can assist whether the abuse has been physically violent or not.

It is important that you work with an advocate, and DO NOT CALL IN YOURSELF.

You can also find assistance and referrals from:

How will I survive if I leave and what happens with my children?

If you are a lawful permanent resident (LPR), your green card or resident alien card makes you eligibile to work. If you are a refugee or other type of immigrant, you will have to apply for authorization to work. Ask your local domestic violence advocate for help, or ask them to point you to an immigration attorney who can answer this for you. Whatever you do, do NOT forge any papers or say that you are a citizen when you are not - this could have drastic negative consequences in your attempts to live in this country. It might seem like a quick fix, but can hurt you BADLY in the long run.

Depending on your state, you might qualify for food stamps, Medicaid coverage, TANF benefits, or alimoney/spousal support to be paid by your spouse. Also, if there are children involved, the father of any child is required by law to provide support for that child - even if he isn't your legal spouse, and even if your immigration status is illegal. The law protects the interests of the child. Again, your local domestic violence program is your best place to start this process, as well as help to get court orders for custody of the children. If your children were born in the US, they are eligible for all benefits as citizens.
But if my abuser reports me, won't I go to jail or be deported?

The INS process for deportation is long and complicated. Even if an abuser DOES report you, INS has way more cases than they can deal with, and violent offenders are much more important to them than someone simply here illegally without other issues. If an application for status was already submitted, they are likely to take no action and simply let you continue to wade through the paperwork process. As noted above, local law enforcement (police officers/deputy sheriffs) could really care less about your immigration status, so long as you keep your nose clean otherwise. If you haven't already started a process with INS, it is in your best interest to get with an advocate to START the process - that way INS will see that you are attempting to obtain legal status.

If your abuser has already reported you, and deportation proceedings have begun, all is not lost. You may still be able to obtain a "cancellation of removal." If you meet certain criteria, the court may waive your deportation and grant you residency. Work with your advocate to get help from an immigration attorney for this process.


But aren't I dependant on my spouse for getting a visa?

Generally, it is the U.S. citizen or and Lawful Permanent Resident (LPR) in the relationship who files a visa petition on behalf of a spouse or child. That means that usually, the abuser has control over when or if the petition is filed. But under the Violence Against Women Act (VAWA), spouses and children of US citizens or LPRs may self-petition to obtain lawful permanent residency. VAWA allows certain battered immigrants to file for immigration relief without the abuser's assistance or knowledge, in order to seek safety and independence from the abuser.


What laws cover this process?

The Immigration and Nationality Act (INA) is the law that governs immigration in the United States. The Violence Against Women Act (2000) Title V strengthed language from VAWA (1994) which allowed abused spouses placed in removal proceedings to seek "cancellation of removal," after three years rather than the seven ordinarily required. The Battered Immigrant Women Protection Act of 2000 (BIWPA) made significant amendments to section 204(a) of the INA, making it easier for battered immigrant women to get through the red tape and removing dependance on abusers.
Who is Eligible?

To be eligible to file a self-petition (an application that you file for yourself for immigration benefits) you must qualify under one of the following categories:
  • Spouse: You may self-petition if you are a battered spouse married to a U.S. citizen or lawful permanent resident. Unmarried children under the age of 21, who have not filed their own self-petition, may be included on your petition as derivative beneficiaries.
    1. The self-petitioning spouse must be legally married to the U.S. citizen or LPR batterer. A self-petition may be filed if the marriage was terminated by the death of the abusive spouse within the two years prior to filing. A self-petition may also be filed if the marriage to the abusive spouse was terminated, within the two years prior to filing, by divorce related to the abuse.

    2. Must have been battered in the United States unless the abusive spouse is an employee of the United States government or a US military member.

    3. Must have been battered or subjected to extreme cruelty during the marriage, or must be the parent of a child who was battered or subjected to extreme cruelty by the U.S. citizen or lawful permanent resident spouse during the marriage.

    4. Is required to be a person of good moral character. This doesn't mean that you cannot have EVER done anything wrong. Victims in abusive relationships often are forced or coerced into doing things they normally would not do, or must do things in order to survive. Authories understand this, and will evaluate your case based on the total circumstances.

    5. Must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits.

  • Parent: You may self-petition if you are the parent of a child who has been abused by your U.S. citizen or lawful permanent resident spouse. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries, if they have not filed their own self-petition.

  • Child: You may self-petition if you are a battered child (under 21 years of age and unmarried) who has been abused by your U.S. citizen or lawful permanent resident parent. For more information, please see How Do I Bring My Child to Live in the United States?

     at the INS site. Your children (under 21 years of age and unmarried), including those who may not have been abused, may be included on your petition as derivative beneficiaries. They must qualify as the child of the abuser as "child" is defined in the INA for immigration purposes. Any relevant credible evidence that can prove the relationship with the parent will be considered.
Even if you don't qualify under these, there ARE other ways to gain lawful immigration status. Ask your local domestic violence advocate for assistance.
How Do I Apply for Benefits?

To self-petition, you must complete and file USCIS Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) and include all supporting documentation. Self-petitions should be sent by certified return receipt mail (or any other method providing assurance of receipt). You should keep a copy of everything you submit, including the application and all accompanying documents, in addition to the proof of mailing.

Forms are available in person at a USCIS office, by calling 1-800-870-3676, or through the INS website. Please see the USCIS Field Office locator for more information on USCIS service centers.
What is the Process?

Notice of Receipt: You should receive an acknowledgement or Notice of Receipt within a few weeks after mailing the application and fee to the USCIS.

Prima Facie Determination: Battered immigrants filing self-petitions who can establish a "prima facie" case are considered "qualified aliens" for the purpose of eligibility for public benefits (Section 501 of the Illegal Immigrant Responsibility and Immigration Reform Act (IIRIRA). The USCIS reviews each petition initially to determine whether the self-petitioner has addressed each of the requirements listed above and has provided some supporting evidence. This may be in the form of a statement that addresses each requirement. This is called a prima facie determination.

If the Service makes a prima facie determination, the self-petitioner will receive a Notice of Prima Facie Determination valid for 150 days. The notice may be presented to state and federal agencies that provide public benefits.

Approved Self-petition: If the I-360 self-petition is approved, the Service may exercise the administrative option of placing the self-petitioner in deferred action, if the self-petitioner does not have legal immigration status in the United States. Deferred action means that the Service will not initiate removal (deportation) proceedings against the self-petitioner. Deferred action decisions are made by the Vermont Service Center (VSC) and are granted in most cases. Deferred action validity is 27 months for those for whom a visa was available on the date that the self-petition was approved. All others have a validity of 24 months beyond the date a visa number becomes available. The VSC has the authority to grant appropriate extensions of deferred action beyond those time periods upon receipt of a request for extension from the self-petitioner.

Employment Authorization: Self-petitioners and their derivative children who have an approved Form I-360 and are placed in deferred action are also eligible for an Employment Authorization Card. To apply, USCIS Form I-765 (Application for Employment Authorization) should be filed. Applicants should indicate that they are seeking employment authorization pursuant to 8 CFR 274a.12(c) (14). The Form I-765 must be filed with a copy of the self-petitioner's USCIS Form I-360 approval notice. For more information on work permits, please see Employment Authorization.

Adjustment to Permanent Resident Status: Self-petitioners who qualify as immediate relatives of U.S. citizens (spouses and unmarried children under the age of 21) do not have to wait for an immigrant visa number to become available. They may file USCIS Form I-485 (Application To Register Permanent Residence or Adjust Status) with their local USCIS office. In addition, if you are a battered spouse or child with conditional permanent resident status, please see How Do I Remove the Conditions on Permanent Residence Based on Marriage?.
How do I File an Appeal if My Application is Denied?

If your application is denied, the denial letter will tell you how to appeal. For more information, see How Do I Appeal?.


Can Anyone Help Me?

Remember, GO THROUGH YOUR ADVOCATE. If further advice is needed, they can contact the USCIS District Office near your home for a list of community-based, non-profit organizations that may be able to assist you in applying for an immigration benefit. Please see the USCIS field offices home page for more information on contacting USCIS offices. In addition, please see the INS information on finding legal advice.


Victims of domestic violence should know that help is also available to them through the National Domestic Violence Hotline on 1-800-799-7233 or 1-800-787-3224 [TDD], including information about self-petitioning for immigration status.
Can a man file a self-petition under the Violence Against Women Act?

Yes. Although the self-petitioning provisions for victims of domestic violence are contained in the Violence Against Women Act, they apply equally to victims of either sex.
Must the self-petitioner remain married to the abusive spouse until the self-petition is approved?

No. The regulations only require that the self-petitioning spouse be married at the time of filing. After the self-petition has been filed, legal termination of the marriage will not usually affect the self-petition, but you may want to seek advice from an immigration attorney or legal advocate. Statutory changes, effective October 28, 2000, allow for the marriage to have been terminated (there are some restrictions) within two years prior to the date of filing.
Can a divorced spouse seek relief through self-petitioning?

Statutory changes, effective October 28, 2000, allow for the marriage to have been terminated (there are some restrictions) within two years prior to the date of filing. A battered spouse who does not meet these restrictions may be eligible for cancellation of removal. This is provided for under Section 240A(b)(2) of the INA. To qualify he/she must meet the other requirements that would be necessary for approval of a self-petition and must have been physically present in the U.S. for 3 years immediately preceding the filing of the application for cancellation of removal. A self-petition will also be denied if the self-petitioner re-marries before filing or after filing and before the self-petition is approved. Remarriage after the self-petition has been approved will not affect the validity of the approved I-360 self-petition.
What if the abusive US citizen/LPR already filed a Form I-130 petition on behalf of the victim, and it is is either still pending or the abuser withdrew it?

A self-petitioner who is the beneficiary of a Form I-130 petition filed by the abusive spouse will be able to transfer the priority date of the Form I-130 petition to the I-360 self-petition. This is extremely important for self-petitioners who must wait for a visa number as an earlier priority date will result in a shorter waiting time. Please see How Do I Get an Immigrant Visa Number? for more information.


Resource http://www.aardvarc.org/dv/immigration.shtml