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WEBINAR IN ENGLISH

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  1. WEBINAR IN ENGLISH VAWA 101 AND INADMISSIBILITY ISSUES

  2. GOAL: • To review basic requirements for self petitioning under VAWA • To introduce participants to the basics of adjustment of status

  3. DOMESTIC VIOLENCE THE KEY TO YOUR CLIENT’S CASE soniak@icadv.org

  4. Dynamics of Domestic Violence in Immigrant Communities • Definition of Domestic Violence • Pattern of continuous abusive behaviors • Physical • Psychological • Emotional • Verbal • Used by one person to exercise power and control over another person soniak@icadv.org

  5. Power & Control Tactics Used Against Battered Immigrants • Emotional Abuse • Economic Abuse • Sexual Abuse • Coercion & Threats • Using Children • Intimidation • Isolation • Using Citizenship or Residency Privilege • Minimizing, Denying & Blaming soniak@icadv.org

  6. “Battery & Extreme Cruelty” • “being the victim of any act of a threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation incest (if the victim is a minor) or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under this rule. Acts or threatened acts that, in and of themselves, may not initially appear violent may be part of an overall pattern of violence” soniak@icadv.org

  7. soniak@icadv.org

  8. Potential ImmigrationLegal Remedies • Applications filed with DHS • VAWA self petition • Battered spouse waivers • U visa • T visa • Defenses before immigration judge • Cancellation of Removal under VAWA • Asylum/Gender Asylum soniak@icadv.org

  9. VAWA Confidentiality Provisions • Section 384 of The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) • In no case may any CIS employee “permit use by or disclosure to anyone…of any information which relates to an alien who is the beneficiary of an application for relief” under the VAWA provisions. • Violations are grounds for disciplinary action and/or fine soniak@icadv.org

  10. Battered Spouse Waivers (I-751) • A pre-VAWA attempt to help battered immigrants • The battered spouse waiver allows the removing conditions on residency without: • Relying on the batterer • Having to remain in abusive relationship for 2 years soniak@icadv.org

  11. SELF PETITIONING REQUIREMENTS soniak@icadv.org

  12. General VAWA Self-Petitioning Requirements (INA Sec. 204) • Subjected to Battery or Extreme Cruelty • By a U.S. Citizen or Lawful Permanent Resident Spouse or Parent • File within 2 years of divorce • With Whom You Resided • Good Moral Character • Good Faith Marriage Prima Facie Determination = Public Benefits soniak@icadv.org

  13. HYPOTHETICAL #1 Margarita, a citizen from Canada, is married to Jacobo, a student from England. They got married in England. Jacobo has been physically abusing Margarita for the past three months. She is concerned because the abuse is escalating. • What is the immigration status of Margarita? • Does she have any remedies under VAWA? soniak@icadv.org

  14. Who is covered as a “child”? • Abused biological child • Abused step-children • Abused mother can include children from other relationships in her self-petition • Termination of parental rights no effect • Under 21 years of age • NEW EXCEPTION- • Over 21 under 25 if shows connection between not filing on time and abuse soniak@icadv.org

  15. Proof of Legal Marriage • Proof of prior divorces of both parties • Common law marriages are valid if valid under family laws • Bigamy by abuser will not bar filing if • Good faith intent by applicant AND • Legal ceremony • Good faith marriage • Not solely to gain immigration status soniak@icadv.org

  16. PROVING YOUR CASE • STANDARD OF PROOF • ANY CREDIBLE EVIDENCE soniak@icadv.org

  17. EVIDENCE • Any credible evidence • Critical evidence • Applicant’s declaration • Corroborative evidence • Systems documentation: Protection order, medical records, police reports • Expert declarations: shelter workers, battered women’ advocates, persons providing mental health treatment (not just assessment) • Family court findings re: domestic violence, legal marriage, abuser’s immigration status soniak@icadv.org

  18. PROVING YOUR CASE REQUIREMENTS AND PARTNERSHIPS soniak@icadv.org

  19. REQUIREMENT QUALIFYING RELATIONSHIP soniak@icadv.org

  20. REQUIREMENT RESIDED TOGHETER soniak@icadv.org

  21. REQUIREMENT BATTERY OR EXTREME CRUELTY soniak@icadv.org

  22. Types of Evidence of Battery & Extreme Cruelty • Police Records • Protection Orders • Medical Records • Photographs & Letters • Material Evidence • Witness Affidavits • School Records • Expert Testimony • Civil Court Records • Criminal Court Records • Statements from Shelter Workers and Other Counselors soniak@icadv.org

  23. REQUIREMENT ABUSER’S STATUS USC/LPR soniak@icadv.org

  24. Proving Abuser’s Citizenship or Immigration Status • Statement in victim’s affidavit • Copy of green card • Birth certificate • Baptismal certificate • Copy of U.S. passport • Naturalization certificate • Statement from consular official certifying citizenship • State Department form verifying citizen birth abroad • Request USCIS search its records soniak@icadv.org

  25. REQUIREMENT GOOD FAITH MARRIAGE soniak@icadv.org

  26. Good faith marriage • Marriage certificate • Marriage license • Evidence of wife’s prior divorces • Wedding pictures • Vacation, holiday, family event photos • Birth certificates for children • Love letters • Letters to victim’s family by spouse • Victim’s affidavit discussion the courtship and marriage • Photo ID with married name soniak@icadv.org

  27. Evidence of Marriage Continued • Affidavits from persons who knew abuser and spouse as married couple • Joint leases, bank accounts, tax returns • Police, medical, court documents about relationship • Abuser listed as emergency contact • Insurance policies with spouse as beneficiary • Evidence that the couple lived together soniak@icadv.org

  28. Additional Self-petitioning Child Documentation • Child’s birth certificate • Legal legitimation or acknowledgement • Adoption decree • If over 21 but under 25,must show connection with abuse and not filing on time. • If step child: • Parents marriage license/certificate • Birth certificate • Marriage of natural parent to step-parent before child turned 18. soniak@icadv.org

  29. REQUIEREMENT GOOD MORAL CHARACTER soniak@icadv.org

  30. Good moral character • Criminal records check • Every place victim lived for 6 months in past 3 years • Domestic violence convictions and protection order violations can bar good moral character • VAWA 2000: even if barred, may be overcome for victims if “waivable” AND connected to domestic violence soniak@icadv.org

  31. Preparing an I-360 Case • Client’s Affidavit • Supporting Documents (safety planning) • Forms I-360/G-28 • Fee or Fee Waiver NO FEE • Cover Letter • Good Moral Conduct Certificate • Application is filed w/ the Vermont Service Center soniak@icadv.org

  32. After the Self Petition has been filed: • Notice of Prima Facie Determination This means the applicant is a “qualified” alien for the purpose of obtaining public assistance. • Approval and Deferred Action DHS has assigned a low priority to the removal of this person from the United States. • Employment Authorization Document A card which grants permission to work in the United States- 274 a 12 c 31 or 12 c 14 soniak@icadv.org

  33. Two ways to obtain a green card: • adjustment of status in the U.S. • VAWA self-petitioners do not have to leave the country • consular processing outside of the U.S. soniak@icadv.org

  34. II: Achieving LPR, Adjustment • Prepare applications for adjustment of status • Creatively document arguments for overcoming barriers to adjustment

  35. How Adjustment Works • Who can adjust here? Who must go abroad? • What are VAWA exceptions? • What’s happening in your district?

  36. Adjustment Application Packet • Form I-485 (one for each derivative) • Filing fee - $325 ($225? if under age 14) • Fee waivers available • Form G-325 (if 14 or older) • Fingerprint fee - $70.00 • Fingerprint appointment scheduled by USCIS • Four photos (some USCIS offices require less)

  37. Adjustment Application Packet (cont’d) • Notice of approval of I-360 (unless filed at same time with I-360 at VSC) • Form I-693 Medical Exam • By immigration-approved civil surgeon • Copy of passport and I-94 (if any) • Evidence of financial support • Birth certificate with translation

  38. When there’s an old 130 • Strategy when 130 = pending • General VAWA adjustment • U & T adjustment

  39. What to do about kids? • What should you do about derivatives here? • Abroad?

  40. Flagging inadmissibility • What do you ask to ferret out problems? • What are most common problems?

  41. Common Inadmissibility Barriers • Prior Removals • Unlawful presence • Fraud • Crimes

  42. Entries and exits • Manner of entry • Encounters with DHS

  43. Fraud • Public charge • Crimes

  44. General Arguments • The ground doesn’t apply at all • Elements that trigger are lacking • Get the state statute and check • Or there’s an exception • Crimes of Moral Turpitude • Even if it does apply, there’s a waiver

  45. Related to self-petition • Good moral character bars • Good faith marriage concerns • Good and bad of addressing in SP

  46. Excellent Waivers • 212(i) for Fraud • Extreme Hardship to Self and/or • USC/LPR/Qualified Alien parent or child • 212(h) for CMTs & 30 grams or less • (1)(C) = qualifies as self-petitioner • 212(d)(13) & (14) for Ts & Us • T = national interest and connection to victimization • U = public or national interest

  47. Filing the Waiver • Form I-601 • Fee - $ 545.00. • Supporting documents (SELF+RELATIVES) • 212(i) – EH to self/qualifying relative • If QR, proof of relationship and • Proof of qualifying relative’s status • 212(h) = VAWA approval • Discretionary factors • Rehab & positive work

  48. Survivors in Proceedings

  49. Options • Adjustment • Us & Ts (termination) • VAWA Cancellation • SIJs • Asylum

  50. Moving to Reopen • In absentia • Merits