Friday, October 27, 2017


Options for Victims of Domestic Violence

 you are a victim of domestic violence (see Domestic Violence), you have the right to be safe, regardless of your legal status in the United States. You may worry that you don’t have the right to call the police if you are being abused, but that is not true.
When you contact police about domestic violence, their duty is to protect you from your abuser. They are not supposed to call ICE to inform them you are in the United States without legal status.
If you are afraid of your abuser or think they may hurt you, you can go to the court or the police to ask for a restraining order (see Abuse Prevention Orders).
If you are a victim of domestic violence and you do not have legal status in the US, you should contact immigration lawyers and advocates to help protect you.

Legal Status for Immigrant Survivors of Domestic Violence

If you are a victim or survivor of domestic violence, there are laws that can allow you to gain legal status in the United States.

Violence Against Women Act

The Violence Against Women Act (VAWA) was created to protect victims of domestic violence, and offers specific protections for people without legal status in the US. VAWA also protects men and children who are victims of domestic violence.
If you are being abused by your U.S. Citizen or Lawful Permanent Resident ("green card") Spouse,  Parent, or Child (over 21) OR your child is being abused by his or her U.S. Citizen or Lawful Permanent Resident ("green card") Parent, VAWA can help you escape violence and gain legal permanent status.
If these immigration laws apply to you, you can get legal status without help from your battering spouse or parent. By law, US citizens and lawful permanent residents (“green card holders”) can petition for their immediate family members to receive legal status.
However, abusers often may refuse to assist you with applying for immigration status, may promise to apply for you, but never actually help, or threaten to contact immigration and report you. VAWA helps victims of domestic violence allowing them to self-petition for their own legal status without the abuser’s help or knowledge.

How do I petition for citizenship or legal status through VAWA?

If you are a victim of domestic violence and your abuser is a citizen or lawful permanent resident (“green card holder”), you can self petition for status by submitting the form titled “I-360, Petition for Amerasian, Widow(er), or Special Immigrant." In addition to this form, you need to include evidence to prove that you meet the requirements for VAWA. Contact an immigration lawyer if you want to self-petition under VAWA laws.

What are the requirements for VAWA?

If you have been abused by your spouse, you can self petition for status if:
  • You are legally married to a U.S. citizen or permanent resident abuser OR you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate;
  • You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse:
    • You have been abused by your U.S. citizen or permanent resident spouse, or
    • Your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse;
  • You entered into the marriage in good faith, which means you did not get married  solely for immigration benefits;
  • You have lived  with your spouse;
  • You are a person of good moral character, which often means a person who has not broken any US laws or committed any serious crimes.
If you have been abused by your parent, you can self petition for status if:
  • You are the child of a U.S. citizen or permanent resident abuser;
  • You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent;
  • You have resided with your abusive parent; and
  • You are a person of good moral character, which often means a person who has not broken any US laws or committed any serious crimes. A child less than 14 years of age is presumed to be a person of good moral character. 
If you have been abused by your child, you can self petition for status if:
  • You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed;
  • You have suffered battery or extreme cruelty by your U.S. citizen son or daughter;
  • You have resided with the abusive son or daughter; and
  • You are a person of good moral character, which often means a person who has not broken any US laws or committed any serious crimes.

What kind of evidence will I need?

Collecting the evidence you will need can be complicated, but you should try to get as much as possible of the following, without putting yourself or others in danger:
  • Your marriage certificate if you are filing a petition based on an abusive spouse,
  • Birth certificates if you are filing based on an abusive parent or child,
  • Evidence that you and the batterer lived together such as birth certificates of children, bills, leases, family photos, tax returns, etc.,
  • Proof of the abuse such as restraining or civil protection orders, police reports, medical records, criminal records of the batterer, a letter from a battered women's program, counselling records, photographs of injuries or bruises, affidavits of the witnesses describing the abuse,
  • Evidence of "good moral character" such as proof that you have no criminal record, a letter from your religious institution, or evidence of community involvement,
  • You must provide a written affidavit describing the history of your relationship with the batterer.
Here is a helpful guide for document gathering.

What if my abuser has died, has lost their legal status, or I am divorced?

If your abuser has died, you may still self-petition for legal status within 2 years of their death. If you are divorced, you may still file a self-petition within 2 years of when the divorce is final.  If your abuser has lost their own legal status due to domestic violence, you can still submit a self petition with no time limitations.

What if I am in immigration court?

You can self-petition or apply for another type of relief called "cancellation of removal." You can be granted cancellation of removal even if you are divorced from your battering spouse when you apply. To qualify for cancellation of removal, you will also have to submit a regular self petition AND also show that you have been in the United States for at least three continuous years.

What if I have a conditional or temporary green card?

If you have a conditional green card (valid for 2 years) you will file a different petition, titled I-751, Petition to Remove Conditions on Residence. You will also have to explain why you and your abusive spouse aren’t filing a joint petition. You will need to submit the same type of evidence described above for the I-360.

What if my abuser is not a U.S. citizen or lawful permanent resident or if I was never married to my batterer?

Even if your abuser is not a U.S. citizen or permanent resident, there may be other ways for you to get protection through legal status. For example, a U-visa (provide link to larger section) is a pathway to legal status if you have been a victim of a crime and you have been, or are willing to be, helpful in the investigation or prosecution of this crime.
In a domestic violence situation, you could be eligible for a U visa if you contacted the police, if your abuser was arrested, assisted the district lawyer’s office, if you testified in court against your abuser, or helped in some other way. You should consult an immigration lawyer and ask about the U Visa.

What if my abuser is not a U.S. citizen or lawful permanent resident, or if I was never married to my batterer, AND I never contacted the police or other agency about the abuse?

If you are the victim of domestic violence but do not qualify for help through VAWA or a U Visa, you should still seek help from the police or other social services agencies if you are in danger. You may want to talk to an immigration lawyer to see if you may qualify for some other type of immigration benefit.

Have you been a victim of a crime?

Examples include being a victim of domestic violence, stalking, serious assault, or extortion.

Have you been afraid to report a problem to the police because of your immigration status?

U visas are available to victims of crime that have information about crimes and are willing to assist with the investigation or prosecution of the crime. You do not have to be afraid to seek help from the police.

Eligibility for U visas

You may be eligible for a U visa if:
  1. You have been a victim of a crime (see list of qualifying criminal activity below),
  2. You suffered physical or mental injury due to the crime,
  3. You have information about the crime,
  4. You were helpful, are helpful, or likely will be helpful to law enforcement in the investigation or prosecution of the crime,
  5. The crime happened in the U.S. or violated U.S. laws.
Qualifying Criminal Activities
Abduction
Abusive Sexual Contact
Blackmail
Domestic Violence
Extortion
False Imprisonment
Female Genital Mutilation
Felonious Assault
Fraud in Foreign Labor Contracting
    Hostage
    Incest
    Involuntary Servitude
    Kidnapping
    Manslaughter
    Murder
    Obstruction of Justice
    Peonage
    Perjury
    Prostitution
    Rape
Sexual Assault
Sexual Exploitation
Slave Trade
Stalking
Torture
Trafficking
Witness Tampering
Unlawful Criminal Restraint
Other Related Crimes*†
*Includes any similar activity where the elements of the crime are substantially similar.
†Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes.
In addition to the above requirements, you must also be admissible to the United States. If you are not admissible, you may be eligible for a waiver. Please consult a lawyer before applying for a U visa or any waiver.
A state, federal, or law enforcement agency has to certify that you were helpful, are helpful, or are likely to be helpful to the investigation or prosecution of the crime. You must have an agency’s certification in order to apply for a U visa with immigration. 

What about my family members?

Someone over the age of 21 may also apply for their spouse and children (under the age of 21) through the U visa process.
Someone under the age of 21 may also apply for their spouse, children (under the age of 21), parents, and unmarried siblings under age 18.

What status do I receive with U visa?

If you are granted a U visa, you will receive a four year non-immigrant visa and work authorization. You will be able to remain in the United States during this period and work. After accruing three years of physical presence, you may be eligible for lawful permanent residence. 

Path to lawful permanent residence (green card)

U visa holders may be eligible to apply for permanent residence (green cards), if they meet certain requirements.
You may be eligible for a green card if:
  1. You have been continuously present in the U.S. for at least three years while in U visa status,
  2. You have not unreasonably refused to provide assistance to law enforcement since you received your U visa, 
  3. You are not inadmissible (consult an lawyer to review admissibility), 
  4. You show your presence in the U.S. is justified on humanitarian grounds.
Your family members may also be eligible for green cards if they received U visa status through your application.

Frequently Asked Questions

  1. What if the person was not arrested?

    The police or other investigating agency can still certify that you have information and are willing to be helpful even if no arrest is made.
  2. What if the person was not convicted?

    The district lawyer’s office, police, or other investigating agency can still certify that you have information, have been helpful, or are willing to be helpful even if there is not a prosecution.
  3. What if my crime is not on the list?

    U visas are available for the listed crimes, but also for crimes that are similar. You may be able to get a U visa certification if the certifying agency agrees that they investigated a listed crime, even if the charge was different. For example, you may be able to get a U visa based on domestic violence even though the charge may have been for assault and battery. 
  4. What if the police were not involved

    ​A certifying agency can include the Department of Labor, Department of Children and Families, and other agencies that investigate activities that may include criminal activity, even though they are not law enforcement agencies. 
  5. What if I was previously deported from the U.S. or have had other immigration issues?

    You may still be eligible for a U visa. U visa applicants must be admissible, but a waiver is available. Please consult with an immigration lawyer to review eligibility. 
  6. What if the police, or other certifying agency, do not think I was helpful or will be helpful? 

    If the police, or other certifying agency, do not think you are helpful, then you will not be eligible to apply for a U Visa. You need a certification from the police or other agency to apply for a U Visa. 

 Can Immigration deport me for any criminal conviction?

No. Only certain criminal convictions lead to your deportation. Some of the main ones are:
  1. Aggravated Felonies. The immigration law calls certain crimes aggravated felonies. 8 U.S.C. §1 101(a)(43). These are the most serious crimes in immigration law even though they may not be very serious in criminal law. An "aggravated felony" is not the same as aggravated assault. Immigration law has its own definition. For example, possession with intent to distribute cocaine (or any other drug) is an aggravated felony even if you did not serve any jail time for it. Aggravated felonies include the following crimes:
    • Murder
    • Drug trafficking (including possession with intent to distribute)
    • Money laundering involving over $10,000
    • Trafficking in firearms or explosives
    • Crime of violence with a sentence of at least 1 year
    • Theft, receipt of stolen property or burglary with a sentence of at least 1 year
    • Crimes involving ransom
    • Rape or sexual abuse of a minor
    • Child pornography
    • Gambling where a sentence of at least 1 year may be imposed
    • Racketeering where a sentence of at least 1 year may be imposed
    • Engaging in the business of prostitution or slavery
    • Spying
    • Fraud or deceit worth over $10,000 or tax evasion worth over $10,000
    • Smuggling of undocumented people, except a first offense to assist your spouse, child or parent
    • Illegal entry or reentry after a deportation based on an aggravated felony
    • Document fraud with a sentence of at least 1 year
    • Failure to appear to serve a sentence for a crime if the underlying offense is punishable by imprisonment for a term of 5 years or more
    • Commercial bribery, counterfeiting, forgery or trafficking in vehicles with a sentence of at least 1 year
    • Obstruction of justice, perjury or bribery of a witness with a sentence of at least 1 year
    • Failure to appear in court under a court order for a felony charge for which a sentence of at least 2 years' imprisonment may be imposed
    • An attempt or conspiracy to commit any of the offenses described above.
    You can be deported for an aggravated felony (see 8 U.S.C. §1227(a)(2)(A)(iii)), and have only a few defenses. See pages 15-21.
  2. Drug Conviction. Immigration can start a deportation case against you for any drug conviction unless the conviction is for simple possession for your own use of 30 grams or less of marijuana. 8 U.S.C. §1227(a)(2)(B)(i). You can also be removed for being a drug abuser or addict even if you do not have a conviction. 8 U.S.C. §1227(a)(2)(B)(ii). For certain drug crimes, you may still have a defense to deportation.
  3. Crime of Moral Turpitude. You can be deported for one crime of moral turpitude committed within 5 years of admission into the U.S. if you could have received a sentence of one year or longer. 8 U.S.C. §1227(a)(2)(A)(i). Your actual sentence or your time served does not matter. You can also be removed for 2 crimes of moral turpitude committed at any time unless they were in a "single scheme of criminal misconduct." 8 U.S.C. § 1 227(a)(2)(A)(ii).
    The immigration law does not define crimes of moral turpitude, but the courts have. Crimes of moral turpitude usually include theft, murder, voluntary manslaughter, and crimes involving vileness, such as rape or certain other sexual crimes. Driving Under the Influence and Simple Assault are usually not crimes of moral turpitude. If Immigration is trying to remove you for a crime of moral turpitude, tell the Immigration Judge that you do not know whether it is a crime of moral turpitude, and ask for time to find a lawyer to help you. You may also have a defense to deportation.
  4. Firearms Conviction. You can be deported for a firearms conviction, such as unlawful possession of a gun. 8 U.S.C. §1227(a)(2)(C). You may have a defense to deportation.
  5. Crime of Domestic Violence. You can be deported for conviction of domestic violence, stalking, child abuse, child neglect or abandonment, or for violation of a protection order. 8 U.S.C. §1227(a)(2)(E). You may have a defense.
  6. Other Criminal Activity. Other criminal convictions may also lead to your deportation, such as espionage, sabotage, or treason, (8 U.S.C. §1227(a)(2)(D)), as well as activities relating to national security and terrorism. 8 U.S.C. §1227(a)(4).

Can I be deported even though I do not have a criminal conviction?

Yes. Immigration law has other grounds of deportation. For example, you can be deported if you overstayed your visa, or committed marriage fraud, or are a threat to the security of the U.S., or voted unlawfully, or falsely claimed to be a U.S. citizen after September 30, 1996. 8 U.S.C. § 1227(a).

Can I be deported if my criminal conviction is on appeal?

No. You cannot be deported if you have a criminal conviction on direct appeal since it is not final. However, if you filed a habeas corpus petition, or a motion to vacate your criminal conviction, the conviction is final and the government can deport you while you are waiting for the decision on that case.

How do I know if I have a conviction?

Ask for a copy of your criminal record from the state where you have a conviction. In Massachusetts, send a request along with a check or money order made payable to the Commonwealth of Massachusetts in the amount of $25.00 to Criminal History Systems Board, 200 Arlington Street, Suite 2200, Chelsea, MA 02150, ATTN: CORI Unit. Give your full name, date of birth, address, and social security number and include a stamped, self-addressed envelope. You can also request a certified copy of the docket sheet if you contact each court where you have a criminal conviction.

Can I do anything to change my criminal conviction?

Yes. You can ask the criminal court (not the Immigration Court) to vacate or erase your criminal conviction for certain reasons. One reason is if you pled guilty but the judge did not warn you that pleading guilty could lead to deportation from the U.S. A person in Massachusetts must receive this warning before pleading guilty. Connecticut, Maine and Rhode Island have similar laws, but New Hampshire does not. There may be other ways to vacate a conviction if you pled guilty and did not understand your rights. If the criminal court vacates your conviction, the prosecution can still bring the charges against you again, but sometimes the prosecution does not do so. Try to find a lawyer to help you, perhaps the lawyer who represented you in your criminal case.
You may also be able to lower your sentence by filing a motion to revise and revoke your sentence. Some crimes are aggravated felonies, such as theft or assault, only if you received a sentence of one year or more. If you lower the sentence to less than one year, the crime may not be an aggravated felony. An Immigration Judge, however, will usually not stop a deportation case just because you have asked the criminal court to vacate or dismiss the conviction or lower the sentence. So, it is important to get the conviction vacated or dismissed, or lower the sentence as soon as possible.

If I am deported for a criminal conviction, when can I come back?

After deportation, a person must wait either 5 or 10 years (depending on the case) before returning to the U.S. legally. 8 U.S.C. §1182(a)(9)(A). After a second deportation the wait is 20 years. 8 U.S.C. §1182(a)(9)(A). You can ask Immigration for permission to re-enter sooner but Immigration may not allow it. If you are deported for an aggravated felony, you can probably never return to the U.S. 8 U.S.C. §1182(a)(6)(B).