IMMIGRATION LAW IMPACT ON CHILD ABDUCTION/MEDIATION CASES LISA JOHNSON-FIRTH, ESQ. 1 Immigrants First, PLLC - All Rights Reserved NOVEMBER 9, 2015
Goals for Presentation 2 To provide basic overview of key aspects of the immigration system and law To demonstrate the criticality of immigration status on the status of each party (parent(s) and child in abduction and custody mediation cases) Immigrants First, PLLC - All Rights Reserved
Immigration Key Players Under Department of Homeland Security (DHS) 3 Immigration law is federal civil law found at Immigration and Nationality Act (INA) 101; 8 U. S. C. 1101 and 8 CFR DHS operates Interagency Border Inspection System (IBIS) with all federal databases (incl FBI and Nat Crime Info Ctr) Citizenship and Immigration Services (USCIS): adjudication of benefits (affirmative filings): www. uscis. gov; 1 -800 -375 -5283 Customs and Border Protection (CBP): inspection of goods and persons entering US – law enforcement Immigration and Customs Enforcement (ICE): investigation, detention and deportation (police of system); www. ice. gov; 703 -285 -6301; Fax Washington Field Office 703 -285 -6216; missing children: 1 -866347 -2423 Immigrants First, PLLC - All Rights Reserved
4 Department of State and Department of Justice - EOIR U. S. Dep of State – governs all visa issuance and US consulates, has Office of Children’s Issues. Contact State in event of missing child suspected of being abducted abroad: 2201 C St. NW, SA-29, Washington, DC 205202818; 202 -736 -9090; fax: 202 -736 -9132; www. travel. state. gov. Has passport lookout program to find out if child issued a passport; DS 3035 Statement of Consent to remove child from US Department of Justice, Executive Office for Immigration Review: www. justice. gov/eoir; 1800 -898 -7180 for case status information (such as prior removal orders) Immigrants First, PLLC - All Rights Reserved
Immigration Definitions 5 Admission – formal process of inspection and allowing entry into US Aggravated Felony – any crime delineated in Immigration and Nationality Act (INA) 101(a)(43) – can be misdemeanor under state law Alien – person who is not a citizen of the US Asylum – granted where person has past persecution or well-founded fear of future persecution on account of race, religion, nationality, membership in social group, political opinion Citizen – a person born in the US, derived status from USC parent or was naturalized Crime of Moral Turpitude (CMT) – a particularly depraved offense Deportation (prior to 1996)/Removal – removal of person from US because of status. Not form of punishment – civil sanction Immigrants First, PLLC - All Rights Reserved
Immigration Definitions Cont’d 6 Department of Homeland Security (DHS) – Est. 2003, legacy INS EWI – Entry without inspection – “illegal alien” “Green Card” – Form I-551 or “alien registration card” issued to LPRs Humanitarian parole – permission to enter and remain in US for humanitarian reasons I-94 Card – given by CBP to show duration of status in US Immigrant – person who comes to US to remain permanently Nonimmigrant – person in US for temporary period of time on nonimmigrant visa Priority Date – date on which person submitted documentation establishing eligibility for immigrant visa (green card) Immigrants First, PLLC - All Rights Reserved
Immigration Definitions Cont’d 7 Refugee – Person outside the US who is unable or unwilling to return to his or her country because of persecution on account of race, religion, nationality, membership in particular social group or political opinion Temporary Protected Status (TPS) – a status allowing residence and employment for a period of not less than 6 months and no more than 18 months when country of origin designated by US gov because of extraordinary circumstances (Haiti; El Salvador) Visa – official endorsement obtained from US consulate certifying person may seek admission for either immigrant or nonimmigrant purpose Visa Waiver Program (VWP) – nationals of certain countries can waive applying for visa and stay for up to 90 days Voluntary Departure – Allows departure without deportation on record. Max time granted to leave is 120 days. Immigrants First, PLLC - All Rights Reserved
8 Immigration Laws Affect ALL Persons Who Are NOT US Citizens Immigration laws affect all those persons who are not USCs – including those who are in current legal status on non-immigrant visas (e. g. , H 1 Bs, B 1 -B 2 s, Js, Fs, etc. ), deferred action for childhood arrivals (DACA), temporary protected status (TPS) and immigrant visas (lawful permanent residents, “green card” holders). Therefore, all immediate family members of anyone who is not a USC are also impacted. Immigration status dramatically changes the way persons respond to a family or criminal situation and significantly modifies the power balance between the parties. Immigration status should always be a consideration in any mediation/custody/potential abduction situation. Immigrants First, PLLC - All Rights Reserved
9 Immigration Background Is Essential: Screening Questions FOR EVERY CLIENT (MUST REQUEST EVIDENCE OF STATUS): What country were you born in? Of what country are you a citizen? (review ALL passports for visas and stamps). Even if USC, get proof. FOR NON-US CITIZENS ASK FOLLOWING CRITICAL QUESTIONS: When did you enter the United States? How did you enter? Were you arrested/detained/deported at the border or asked to see IJ? What is status in US? If lawful resident or other status get copy of green card (Form I 551) or EAD card, visa in passport, I 94, stamps in passport. What is complete criminal history AND, if possible, obtain COMPLETE criminal history in US AND OTHER COUNTRIES: , including charging document, record of conviction, police report. Immigrants First, PLLC - All Rights Reserved
Screening Questions, Cont’d 10 All entry dates into the United States (after vacation, etc) Note dates of obtaining any immigration status (especially lawful permanent residence – green card) Obtain information on family background: Marital status (citizenship of spouse and date of marriage) Children (citizenship, DOB), parents and info on legal status Any crime (including domestic violence, kidnapping, etc) of which any member of family been a victim Any hardship to client and family if client detained and/or deported: medical/financial issues; emotional hardship; learning disabilities of children. Immigrants First, PLLC - All Rights Reserved
Ask For Documentation 11 Passports, birth certificates and ID cards of all parties/immediate family; and marriage certificates/divorce decrees/custody orders Prior immigration applications/evidence of status Tax returns as far back as possible Evidence of residence, esp. shared residence Evidence of marriage and/or crime/domestic violence (medical/legal /financial and counseling records, phones and computers/photos) Immigrants First, PLLC - All Rights Reserved
12 Engaging Immigration Counsel, Cont’d IMMIGRATION LAW IS NOT AN AREA TO PRACTICE CASUALLY What to look for in an immigration attorney: Member of American Immigration Lawyers Association Referrals by other lawyers Depth of experience in subsection of immigration required (removal defense v. employment-based visas – there are multiple subsections of expertise in immigration) Ability to act quickly and be responsive, even if full case load – time is usually of essence ENGAGE COUNSEL AT EARLIEST OPPORTUNITY AND PROVIDE INFORMATION FROM YOUR CONSULTATION Immigrants First, PLLC - All Rights Reserved
13 All Persons Who Are Not USCs Are Subject to Removal from the US How does Immigration and Custom Enforcement (ICE) apprehend a person? ANY ENCOUNTER WITH CRIMINAL LAW ENFORCEMENT – through the Priority Enforcement Program that came into effect November 20, 2014 – law enforcement agency screening – turn over to ICE TRAVEL – in and out of the United States when either removable or inadmissible APPLICATION WITH USCIS when not eligible for benefit Immigrants First, PLLC - All Rights Reserved
Removal Proceedings – INA 240 14 Before an immigration judge, who determines removability and any relief from removal. A hearing may adjudicate a person’s removability under INA 237 or inadmissibility under INA 212 – either unfavorable determination = removed from the US, unless there is another form of relief (USCIS benefit, asylum, readjustment, naturalization). Removal proceedings initiated by issuance of Notice to Appear (charging document) (Form I 862). Can be issued by CBP, ICE or OCC (office of chief counsel – DHS attorneys) Venue is typically based on client’s residence, but ICE can transport client to facilities around US, thus changing venue for detained client – can be difficult to represent. Immigrants First, PLLC - All Rights Reserved
Removability v. Inadmissiblity 15 * Admission is important definition: means the lawful entry of an alien into the United States after inspection and authorization by an immigration officer; OR admitted for LPR status. INA 101(a)(13)(A)-(C); 8 USC 101(a)(13)(A)(C). Grounds of Removability apply where a noncitizen has been admitted to the United States with an immigrant or nonimmigrant visa and ICE wants to remove because person is no longer in legal status or has committed a crime that makes person deportable. Grounds of deportability are at INA 237(a)(2); 8 USC 1227(a)(2). Immigrants First, PLLC - All Rights Reserved
16 Removability v. Inadmissiblity, Cont’d Grounds of Inadmissibility, INA 212, apply where person noncitizen is seeking admission to the United States or client is inside the United States and is seeking to apply for lawful permanent residency. LPRs can be subject to grounds of inadmissibility when re-entering US if criminal convictions fall within INA 212(a)(2); 8 U. S. C. 1182(a)(2) (criminal grounds of inadmissibility). Grounds of Removability, INA 237, differ in some important respects from inadmissibility grounds (such as there is no aggravated felony or domestic violence ground of inadmissibility, and a conviction is not required under certain provisions of INA 212(a)(2) (inadmissibility). Note: a client may be subject to both grounds of removability and inadmissibility at Immigrants First, PLLC - All Rights Reserved same time.
Common Grounds of Inadmissibility 17 There are many grounds on inadmissibility under INA 212. The most common are: Crimes of moral turpitude, poss of controlled substances/trafficking Illegal entrants into the US Misrepresentation to obtain an immigration benefit Not being in possession of valid immigration documentation Unlawfully present for 180 days to one year (3 year bar) or over one year (10 year bar) Previous removal Unlawful presence of more than one year in the aggregate or ordered removed and then illegal re-entry again (permanent bar) Immigrants First, PLLC - All Rights Reserved
Common Grounds of Removability 18 There are many grounds of removability under INA 237. The most common are: Being inadmissible (so all grounds of inadmissibility) Present in violation of the law (illegal entry)/failure to maintain status Termination of lawful permanent resident status Many criminal grounds as listed next. . . Immigrants First, PLLC - All Rights Reserved
19 INA 237(a)(2) Criminal Grounds of Removability Crimes of moral turpitude Multiple criminal convictions Aggravated felonies (defined at INA 101(a)(43)) High speed flight Failure to register as sex offender Domestic violence, stalking and child abuse and/or violation of protective order Crimes relating to controlled substances and firearms Immigrants First, PLLC - All Rights Reserved
20 Definition of Conviction, INA(a)(48)(A) Criminal grounds of deportability require a conviction (defined at INA 101(a)(48); 8 USC 1101(a)(48): Formal adjudication of guilt entered by a court, or, if adjudication withheld: defendant admits sufficient facts to warrant finding of guilt; AND judge has ordered some form of punishment, penalty or restraint on liberty (payment of court costs qualifies) Expunged convictions still count as do deferred adjudications (as opposed to withheld adjudications), but both can look better than the usual conviction from a discretionary standpoint Juvenile delinquency findings are not convictions – except for Deferred Action for Childhood Arrivals (DACA)! If juvenile sent to adult court, will be conviction. Immigrants First, PLLC - All Rights Reserved
21 Definition of Sentence, INA 101(a)(48)(B) Sentence is: “Any reference to a term of imprisonment of a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of the law, regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. ” Immigrants First, PLLC - All Rights Reserved
22 Balancing Criminal and Immigration Goals PLAN OF ACTION FOR CRIMINAL REPRESENTATION OF A NONCITIZEN: Minimize criminal consequences WHILE AT SAME TIME Minimizing adverse immigration consequences AND Preserving best possible immigration relief in case client is still found removable (which will often be the case because client is removable for unlawful presence) Be aware that immigration consequences are often the MOST important consideration because the immigration consequences of the crime are MORE SEVERE THAN THE CRIMINAL CONSEQUNCES. Often families do not realize this until too late and one has reported the other. Immigrants First, PLLC - All Rights Reserved
23 Waivers for Inadmissibilities/Removability Can be challenging and lengthy time to get waiver There is a complex array of waivers available for certain categories of persons and grounds of inadmissibility. There are few grounds for removability but it may be possible to do a waiver of inadmissibility in a removability hearing depending on the facts of each case. Form I 601 is required for waivers and I 601 A for provisional waiver. If removed from the US and applying for re-entry, I 212 must be filed as well and for nonimmigrant visa applicants form I 192 for a INA 212(d)(3) waiver These issues should be dealt with before coming to border or arrest by ICE Immigrants First, PLLC - All Rights Reserved
Effect of INA 212 and 237 24 The overall impact of INA 212 and 237 is that for a person who is either in the US unlawfully or who has a ground of removability/inadmissibility, his or her position is very precarious. This weakened position can severely impact the obtaining of custody, mediation process or ability to report/cooperate in a child abduction case. Fear of deportation from the US is often a primary consideration and impacts almost Immigrants First, PLLC - All Rights Reserved
Immigration Basics: Immigrants, Non-immigrants and Other Legal Statuses 25 Immigrant Visas – LPRS – Ways to obtain immigrant status: Family and employment-sponsored immigrants. Diversity Immigrants: Allows citizens of countries designated as contributing disproportionately fewer immigrants to apply for immigrant visas through a lottery system. Refugees and Asylees: Granted to those who can prove that they have fled their country because of past or fear of future persecution. Non-immigrants have temporary stay and were granted nonimmigrant visa for specific purpose of work, visitation, study, exchange program, etc. Other statuses include: obtaining temporary protected status (TPS), prosecutorial discretion and relief in removal proceedings. Immigrants First, PLLC - All Rights Reserved
Family-Based Immigration: Defining the Relationship 26 Petitioner: Lawful permanent resident (LPR) or United States citizen (USC) sponsoring alien spouse, parent, child or sibling Self-Petitioners Include: widows/widowers, battered spouses and children of USCs/LPRs and special immigrant juveniles Beneficiary: alien seeking permanent residence See INA 204(a)(1)(A); 8 C. F. R. 204. 1(a)(1)-(5) Immigrants First, PLLC - All Rights Reserved
What is a Marriage? 27 Marriage must be legally valid and recognized in the jurisdiction where created (includes common law marriage) (Matter of Bautista 16 I&N Dec. 602)(BIA 1978). There can be many reasons for marriage, except a marriage entered into for immigration purposes. Even if marriage valid in foreign country, must not violate public policy: same-sex, polygamous, incestuous, proxy (unless consummated). Immigrants First, PLLC - All Rights Reserved
Who is a Child? 28 Must meet definition of Immigration and Nationality Act (INA) 101(b)(1), be unmarried and under 21 years. Child born out of wedlock may immigrate through mother. May obtain benefits through father if there is a “bona fide parent-child relationship” (recognizing child, DNA testing, support, visitation) See Matter of Vizcaino 19 I&N Dec 644 (BIA 1988). Immigrants First, PLLC - All Rights Reserved
Who is a Child? (continued) 29 Step-Children: Can immigrate through stepparent if child under 18 at time of marriage to natural parent. INA 101(b)(1)(B). Adopted children: eligible to immigrate through adoption before age 16 if has been in legal custody and resided with adoptive parent for at least two years. Orphans: USC can petition for orphan if under 16 years and complies with INA 101(b)(1)(F). Immigrants First, PLLC - All Rights Reserved
Who Can File a Petition? 30 Immediate Relatives: A USC can petition for: spouse, parent (if petitioner is 21 or over) or child (must be unmarried and under 21). Includes widow(er)s of USCs not legally separated at time of death and did not re- marry before immigrant visa (green card). See Sections INA 201(b)(2)(A)(i) and 204. 2(b)(2)(A)(i) Immigrants First, PLLC - All Rights Reserved
Preference System 31 Some relatives of USCs and all relatives of LPRs are subject to a preference system of numerical limitation based on Congressional limit of 480, 000 p/y for family –based immigration (immediate relatives subtracted from that) and then quota for each preference category plus any visas left over (See INA 203): First preference: unmarried son or daughter over 21 of USC (23, 400 p/y) Second preference A: Spouse and unmarried (under 21) children of LPR (87, 900 p/y) Immigrants First, PLLC - All Rights Reserved
Preference System (cont’d) 32 Second preference B: unmarried son or daughter over 21 of LPR (26, 300 p/y) Third: married son or daughter of USC (23, 400 p/y) Fourth: brothers and sisters of USCs where USC is at least 21 (65, 000 p/y) PRIORITY DATE: Is that I-130 petition for alien relative is properly filed (receipt notice) Immigrants First, PLLC - All Rights Reserved
Adjustment/Immigrant Visa Process 33 Process is started by USC or LPR relative filing an I 130 petition for alien relative. If USC is petitioner for an immediate relative then can file to adjust status for alien relative (form I 485) at same time IF alien relative is in the United States AND is admissible. If relative is outside the US or is inadmissible then relative will consular process (form DS 230), with a waiver for the inadmissibility(ies), if required. Immigrants First, PLLC - All Rights Reserved
Adjustment/Immigrant Visa Process (cont’d) 34 To adjust status (INA 245) or obtain an immigrant visa, alien must not be inadmissible (INA 212) (evaluated at time of entering US or at adjustment of status, although grounds of inadmissibility can be applicable during other processes such as cancellation of removal). Inadmissibilities include: unlawful entry and presence, criminal offenses, false claim to US citizenship (I -9 form), public charge, fraud Immigrants First, PLLC - All Rights Reserved
Immigrating through Marriage 35 If couple is already married, process is started by filing of I-130. If couple is engaged, USC petitioner may file an I-129 F (K-1 visa) as long as couple has met in person within two years preceding filing of I-129 F. Meeting can be waived where strict cultural practices forbid meeting or where there is showing of extreme hardship. Once K-1 visa granted and alien enters US, must marry USC within 90 days. Children = K-2. Immigrants First, PLLC - All Rights Reserved
Bona Fide Marriage 36 For either K-1 or I-130 petition must prove bona fide marriage or intent to marry (good faith marriage – not for an immigration benefit). STANDARD IS: INTENT TO ESTABLISH LIFE TOGETHER. Lutwak v. US 344 US 604 (1954). Substantial amount of evidence required, especially if shorter relationship. K-1 will not have as much evidence, but still must demonstrate INTENT for good faith marriage. Marriage fraud is subject to civil and criminal penalties – can bar any future adjustment. See INA 204(c). Immigrants First, PLLC - All Rights Reserved
Conditional Residence Immigration Marriage Fraud Amendments of 1986 (INA 216) 37 Is imposed on aliens who obtain LPR status based on marriage that occurred within two years of entering US as LPR or adjusting to permanent resident status within the US. Is imposed on alien children who obtained LPR status through alien LPR spouse. Same privileges as permanent LPRs except must “remove conditions” near end of two years after admission as LPR. Immigrants First, PLLC - All Rights Reserved
Removing Conditions 38 Couple must file joint petition to remove conditions for alien spouse to get permanent adjustment (green card). Must produce evidence of good faith marriage, may have interview. See generally INA 216 re: conditional status. Immigrants First, PLLC - All Rights Reserved
39 Marriage-based Adjustment in Removal Proceedings If couple gets married AFTER removal proceedings commenced (issuance of Notice to Appear [NTA]), couple must prove by clear and convincing evidence that marriage is bona fide. INA 204(g). Can adjust status before immigration judge rather than before US Citizenship and Immigration Services (USCIS), though USCIS has exclusive jurisdiction over I 130. Immigrants First, PLLC - All Rights Reserved
40 Impact of Separation and Divorce on Conditional Residency If a couple remains happily married then they jointly petition to remove conditions by form I 751. If the conditional resident (CR) cannot file jointly with USC spouse, one or more of 4 waivers must be filed (INA 216): Prove good faith marriage (GFM), but spouse died; Prove GFM, but marriage terminated by divorce or annulment; Prove GFM, but CR has been battered or subjected to extreme cruelty by USC spouse; Termination of residency would result in extreme hardship to CR (not required, but show GFM) Immigrants First, PLLC - All Rights Reserved
Impact of Separation and Divorce on Conditional Residency (continued) 41 If a marriage breaks up during the two year conditional residency period, it becomes very challenging to prove the GFM, A LOT of evidence of GFM and credible story becomes critical. The most difficult scenario for the CR is where the couple has separated but the USC spouse will not file jointly to remove conditions. CR is in limbo: at risk of conditional residency expiring with perhaps the only waiver available the extreme hardship waiver, which is difficult. It is actually better for the couple to divorce so that CR can do GFM/divorce waiver. USC spouses in this situation often use immigration status as leverage/abuse. Immigrants First, PLLC - All Rights Reserved
Divorce/Annulment Wavier 42 8 CFR 216. 5(e)(2): To qualify, must show GFM and Divorce USCIS will allow CRs to apply for waiver with no final decree, but will send a request for evidence giving 87 days to finalize divorce. If no divorce decree in that time, waiver will be denied and CR will be placed into removal proceedings. Will need to file another waiver if suspect will not be finalized in time. Immigrants First, PLLC - All Rights Reserved
Battered Spouse Waiver 43 8 CFR 216. 5(e)(3): Allows for waiver if during marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent. CAN APPLY FOR THIS WAIVER EVEN IF REMAIN MARRIED. Family lawyer can help document abuse, file restraining orders, etc. Immigrants First, PLLC - All Rights Reserved
Extreme Hardship Waiver 44 8 CFR 216. 5(e)(1): Based only upon those factors that arose subsequent to the alien’s entry as a conditional resident. USCIS will only look at EXTREME hardship factors (expected that all removal from US would involve some degree of hardship). Hardship can be to CR, new spouse, children. Matter of Anderson 16 I&N Dec. 596 (1978): CR’s age; family ties in US and abroad; length of time in US; health; economic and political conditions in home country; CR’s occupation and work skills; immigration history; position in community; helpfulness to US; and ability to adjust by alternative means. Immigrants First, PLLC - All Rights Reserved
Effect on Naturalization 45 INA 319: A person who has resided as lawful permanent resident for three years immediately preceding application for naturalization AND living in marital union with citizen spouse (except for battered spouse) can qualify to naturalize, provided other criteria for naturalization are satisfied. Divorce or separation can affect naturalization in that alien would have to wait another two years. Be aware that USCIS can always look back to determine GFM even if wait 5 years to naturalize. Immigrants First, PLLC - All Rights Reserved
GMC: Adultery and Child Support 46 8 CFR 316. 10(b)(3): “Unless applicant establishes extenuating circumstances, the applicant (for naturalization) shall be found to lack good moral character (GMC) if during the statutory period the applicant: (i) Willfully failed or refused to support dependents; (ii) Had an extramarital affair which tended to destroy and existing marriage; or (iii) Committed unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts, ” even if do not fall within 8 CFR 316. 10(b)(1)(2). Immigrants First, PLLC - All Rights Reserved
Immigration Relief For Victims of Domestic Violence 47 Gender-based Asylum (not covered here) VAWA Adjustment VAWA Cancellation VAWA U Visa T Visa (not covered) Special Juvenile Immigrant Status Immigrants First, PLLC - All Rights Reserved
VAWA: Adjustment Under the Violence Against Women Act 48 Regular family-based immigration (See INA 204(a)(1)(A)(i): Step 1: USC or LPR petitioner files I-130 Step 2: If form I-130 approved, alien principal and derivative beneficiaries (spouse and children) apply for permanent residence. If preference immigrant, long delay without legal status before getting to step 2. Immigrants First, PLLC - All Rights Reserved
VAWA Self-Petition Adjustment 49 In contrast, INA 204(a)(1)(A)(ii-v), VAWA Self-Petition allows for an abused spouse of a USC or LPR to self -petition on Form I-360 – does not rely on LPR or USC abusive spouse at all. If approved, receive deferred action and work permit while adjusting status. Immigrants First, PLLC - All Rights Reserved
VAWA – Who Qualifies? 50 Abused spouse of LPR or USC, even if unknown bigamy Abused spouse within two years of divorce or death Abused child of parent married to abusive LPR or USC and non-abusive parent Derivative children of abused parent Abused parents of adult USCs Child can petition until age 25, if show delay of filing due to abuse, otherwise child = 21 Immigrants First, PLLC - All Rights Reserved
VAWA Requirements 51 Abusive spouse is LPR or USC Good faith marriage or intended marriage Battery and extreme cruelty by USC or LPR spouse during marriage Good moral character Past or present residence with abuser Current resident in US, or, if abroad: US gov’t work or abuse occurred in US Immigrants First, PLLC - All Rights Reserved
VAWA Definitions 52 Good faith marriage: intent to establish life together Battery or extreme cruelty: physical, psychological, sexual, economic, social abuse. Can also be stalking, threats to report to ICE, harm to property or others that victim cares about, forced detention and/or isolation. GMC: No statutory bar under INA 101(f), no bad acts or criminal convictions and have positive factors of GMC Immigrants First, PLLC - All Rights Reserved
VAWA Cancellation of Removal 53 For persons in removal proceedings (See INA 240 A(b)(2) It is cancellation of removal with relaxed standards for victims of domestic violence. If granted, become lawful permanent resident Can apply for EAD Dependents may later adjust Immigrants First, PLLC - All Rights Reserved
54 VAWA Cancellation of Removal Requirements 3 years continued presence in US (instead of 10) Good moral character Battery or extreme cruelty by USC or LPR spouse or parent Extreme hardship to applicant or his/her qualified alien child or parent (including abuse related hardship in 8 C. F. R. 1240. 58(c) CAP at 4000 per year Immigrants First, PLLC - All Rights Reserved
55 Evidence Needed From Family Lawyers For VAWA Cases Family lawyer may be first person that interacts with immigrant victim of DV so make sure to get: Proof of spouse’s citizenship or LPR status Proof of abuse and past criminal history of abusive spouse (photos, protection orders, police reports, all criminal records involving client) Proof of adultery (although adultery does not, on its own, constitute extreme cruelty) Divorce documentation Evidence of GFM and shared residence (marriage license, shared bills, life insurance and retirement policies, etc. ) Immigrants First, PLLC - All Rights Reserved
U Visa – For Victims of Crime 56 INA 101(a)(15)(U); 8 CFR 214. 14 (Form I 918): Person has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. Person possess information concerning qualifying criminal activity. Person has been, is being or is likely to be helpful to law enforcement in investigating and prosecuting criminal activity. Immigrants First, PLLC - All Rights Reserved
Substantial Physical or Mental Abuse 57 Means injury or harm to victim’s physical person, or harm or impairment of the emotional or psychological soundness of the victim. Consider: nature of injury; severity of perpetrators conduct; severity of harm; duration of harm; permanent injuries/scarring; mental or physical soundness; aggravation of pre-existing cond. Immigrants First, PLLC - All Rights Reserved
Qualifying Crimes for U Visa 58 8 CFR 214(a)(9): Rape Sexual Exploitation Torture FGM Trafficking Hostage Incest Peonage Domestic Violence Involuntary Servitude Sexual Assault Slave Trade Prostitution Kidnapping/Abduction Criminal Restraint False imprisonment Blackmail/Extortion Murder/Manslaughter Felonious assault Witness tampering Obstruction of justice Perjury Fraud in foreign labor contracting Attempt/conspiracy to commit any of above Immigrants First, PLLC - All Rights Reserved
U Visa Benefits 59 10, 000 visas per year Where U-1 is under 21: can petition for family members (spouse, parents and siblings under 18). Visa is for 4 years Adjust status if continuously present in US for 3 years; continued presence justified for humanitarian grounds, continually helpful Immigrants First, PLLC - All Rights Reserved
U Visa Filing 60 Requirements: Form I 918 Certification from certifying agency: local, state or federal law enforcement agency or judge that has responsibility for investigating or prosecuting crime. PWC police will not issue, but PWC Commonwealth Atty office will – Paul Ebert certifying official. Evidence of substantial physical or mental abuse. Immigrants First, PLLC - All Rights Reserved
Special Immigrant Juvenile Status 61 INA 101(a)(27)(J): Covers a child: who has been declared dependent by a juvenile court in the US or who has been placed by such court in custody of a state agency or other individual entity and whose reunification with one or both of his or her parents is not viable to due abuse, neglect, abandonment, or similar basis not in best interest of child to be re-united File on form I 360 before 21 years and must be dependent unless aged out of state custody through no fault of own Not married Immigrants First, PLLC - All Rights Reserved
62 Competing Interests – Delicate Situation Where Immigration Issues Forms of relief and immigration status of parties can create inherent conflicts to be dealt with. If wife reports DV then husband, if not USC, can be removable. If wife out of status she may stand to benefit from U visa or VAWA petition and be very motivated to report crime of violence or even make up crime. Petitioner for VAWA or U visa may have also been alleged to have committed crime which could impact obtaining relief. If person out of status can hinder taking action in abduction case and certainly can prevent re-entry into US SIJS cases can lead to parents splitting up and accusing other parent of abuse in order for child to get status Likewise, fleeing to protect children can result in criminal convictions that would result in deportation, etc. Immigrants First, PLLC - All Rights Reserved
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