Divorce and the Undocumented Spouse

The Violence Against Women Act, a comprehensive statute designed to help curb domestic violence, includes a procedure that gives legal status to immigrants who were abused by their U.S. citizen or lawful permanent resident spouse, who often use the immigration law as a cudgel of power and control, as Marcus does with Elena. Pub.L. 103-322. (The law also applies to same-sex couples, as a result of U.S. v. Windsor and expanded VAWA protections.)

VAWA recognizes that, because of the fear that a U.S.-citizen spouse will refuse to conclude the lengthy immigration process, or that the authorities will seek deportation, a battered spouse is unlikely to seek medical care or file a police report. H.R. Rep. No. 103-395 at 26-27. In fact, according to The Los Angeles Times, reports of domestic violence in the immigrant community are down, most likely because of fears of heightened enforcement by the Trump administration. “Latinos are reporting fewer sexual assaults amid a climate of fear in immigrant communities, LAPD says,” James Queally, Los Angeles Times, March 21, 2017. VAWA aims to give the abused spouse an opportunity to gain legal status (a green card) without being dependent on the abuser's cooperation.

Subject to certain exceptions, the law contains confidentiality provisions, which prohibit disclosure of information related to the VAWA application. 8 USC sec. 1367 (a) (2) and (b), cited at http://bit.ly/2fpUwjw. This means the litigant and her attorney do not have to disclose a VAWA filing to the court in a divorce proceeding. The Department of Homeland Security may not use information obtained solely from an abusive spouse to charge the applicant with removability. 8 USC sec. 1367 (a) (1). However, filing a VAWA application does not totally insulate an abused spouse from the possibility of removal. According to 8 USC sec. 1229E, the government can initiate enforcement actions leading to removal even at a shelter or courthouse if it can certify it has complied with the confidentiality provisions of VAWA. Also, the alien could still be charged with removability based on allegations of criminal activity.

Filing a VAWA Self-Petition

The self-petition is prepared on Form I-360 and must be submitted to the United States Citizenship and Immigration Service (USCIS) with proof of eligibility, as described below. The petition must be approved before the applicant can obtain a green card in the U.S. through “adjustment of status.” (Notably, A VAWA applicant who entered the U.S. illegally does not face the usual bar to adjustment of status based on entry without inspection.) If the abused spouse is married to a U.S citizen, she can submit the I-360 together with the application for adjustment of status — another set of forms. (If the abuser is a lawful permanent resident, the applicant may have to wait several years to apply for adjustment of status after the I-360 is approved, due to a visa backlog in this category.) It may be advantageous in some cases, though, to submit the I-360 first and see if it is approved, since if the application for adjustment of status is denied, there is a greater chance that the applicant may be referred for removal.

Criteria for VAWA Eligibility

In order to be eligible to take advantage of the special rights accorded by the VAWA, the applicant must:

• Be the spouse or former spouse of a U.S. citizen or lawful permanent resident;
• Reside in the United States (with some exceptions);
• Have lived at one time with the abuser;
• Have experienced battery or extreme cruelty;
• Possess good moral character; and
• Have entered the marriage in good faith.

Let us look at some of the issues that may need to be addressed when considering these requirements.

Marriage to the Abuser

The fact that a VAWA applicant can be a former spouse is somewhat new; the VAWA used to require an applicant to still be married to the abuser to apply. Clearly, this had the potential to prolong the period of abuse, and the statute was amended in 2000 to allow an application filed within two years of divorce if there is a connection between the divorce and the battery or extreme cruelty. 8 USC at section 1503(b)(1); http://bit.ly/2wqboe8.

Practice Tip: The attorney should consider the timing of VAWA filing. It is best to file a self-petition before a divorce is final, because then the client will not need to also prove a causal relationship between the divorce and the abuse. However, if the couple's divorce is occurring before the VAWA petition is filed, it may be helpful for the divorce decree to state that the battery or extreme cruelty was the reason for the divorce, to prove the connection for the future petition. If an attorney represents an abused ex-spouse in a post-divorce matter such as custody, the client should understand the need to preserve evidence and file the VAWA petition within two years of the final decree.

What Qualifies As Extreme Cruelty?

This element is one of the most important parts of the self-petition. Examples of qualifying acts include an act or threatened act that results or threatens to result in physical or mental injury, including forceful detention (such as not allowing the spouse to leave the home); sexual abuse, including rape, incest or forced prostitution; sexual assault; or psychological abuse. 8 CFR sec. 204.2 c 1 vi.

Practice Tip: It is important to take an expansive view of the term “abuse.” Abusers typically try to control and intimidate their victims even if they do not cause physical harm. Extreme cruelty can include a pattern of controlling behaviors, such as enforcing social or economic deprivation or isolation; degrading the victim's self-esteem; or engaging in harassment, stalking, or immigration–related abuse. Immigration-related abuse can include such acts as lying about filing papers, threatening to deport the alien, and threatening to withdraw a petition if the victim does not comply with the abuser's demands. http://bit.ly/2wqbMJy.

USCIS will consider any credible evidence of the abuse, including photographs, police and court records, medical and hospital reports. Keep in mind, however, that an abused spouse who fears retaliation may fail to report or document it in traditional ways. So, what are some other options for proving abuse? In all cases, affidavits from social and case workers, shelters, school officials, and a narrative from the victim should be included in the filing. In addition, the victim should be evaluated by an experienced mental health professional who can report on the veracity of the victim's account, and trauma she has experienced, particularly in cases of psychological abuse.

Good Moral Character

To address the “good moral character” element, the applicant should include police clearance letters and affidavits from friends and colleagues attesting to her positive moral character. If a potential VAWA applicant winds up as a defendant in a criminal case, her attorney should consult with both an immigration attorney and criminal defense lawyer so that any potential plea does not open her up to VAWA ineligibility or deportation. While certain crimes are statutory bars to permanent residence, a VAWA self-petitioner may be able to obtain a “waiver” if she can prove that the crime was related to the abuse — for example, if she was forced into prostitution by threat, or was prevented from earning a living, and so shoplifted an item to feed a child. INA sec. 204 (a) (1)c, 8 USC 1154a1C (2000).

Bona Fide Marriage

Another key factor to the VAWA application is the proving that the underlying marriage was made in good faith, even if it has since broken down. This can be done via proof that the couple has shared their residence and finances and intended to form a life together. Among other things, the following types of evidence might be used:

• A mortgage or lease taken out by both parties;
• Insurance policies naming the spouse as insured or beneficiary;
• Joint bank accounts;
• Utility bills showing the couple occupies the same address;
• Wills naming one another as spouse or designating each other as a beneficiary;
• Birth certificates of children born to the couple; and
• Photos of the couple with friends and/or family at celebrations

There is no conflict of interest if a family law attorney represents the divorcing spouse in her VAWA application, because the other party is already adverse, and the filing can be confidential. However, it is best to work with an experienced VAWA practitioner to strategize and understand the immigration ramifications of filing decisions, and to develop persuasive proof. Resources for proving each step of eligibility for the I-360 petition can be found at www.asistahelp.org and https://bit.ly/2vfUQad.

Obtaining the Green Card

If a VAWA petition is approved, the applicant should be able to obtain her green card after an application and interview process if she is not inadmissible to permanent residence for any reason. Grounds of inadmissibility include, but are not limited to, criminal and security bars, fraud, misrepresentation, and previous removal from the United States.

Practice Tip: Again, knowing your client's history is very important. A self-petitioner's advocate must determine early on whether there is a potential obstacle to permanent residence, whether there is a waiver for the bar, or whether filing for relief exposes the alien to additional risks.

What if an Abused Spouse Isn't Married to a U.S. citizen or LPR?

If an abused spouse's husband is undocumented, or she has a temporary visa status that is dependent on being married (such as an H-4 visa), then the victim is not eligible for VAWA relief. However, she may be eligible for a U non-immigrant visa, which can lead to permanent residence, and was created through the Victims of Trafficking and Violence Protection Act in October 2000. The U visa requires that the applicant:

• Is the victim of qualifying criminal activity;
• Has suffered substantial physical or mental abuse as a result of the criminal activity;
• Possesses information about the criminal activity; and
• Is helpful or likely to be helpful to law enforcement in the investigation or prosecution of the crime.

Conclusion

In 2013, VAWA was reauthorized and expanded after heated debate, so is currently still a viable avenue to legal status for qualifying undocumented immigrants who seek to escape an abusive marriage. However, opportunities for relief under the statute could change at any time, and attorneys should investigate the current status of VAWA relief and corresponding regulations before recommending this path, as well as warn their clients with respect to any possible changes to self-petitions under the Act.

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Laurie J. Woog is Of Counsel with Mandelbaum Salsburg, Roseland, NJ. The author wishes to thank Elisabete Rocha, an associate at the firm, for her research assistance.