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Cancellation of Removal under the Violence Against Woman Act (VAWA)

What is Cancellation of Removal?

Cancellation of Removal under VAWA is similar to the VAWA self-petition process we have discussed here where the main difference is that VAWA cancellation is filed before the Immigration Court also known as the EOIR to defend against removal from the United States while the VAWA self-petition is an affirmative application filed with the United States Citizenship and Immigration Service or USCIS.

Eligibility requirements.

  • The noncitizen has been battered or suffered extreme cruelty from their United States citizen or legal permanent (LPR) abuser spouse, former spouse, parent or a noncitizen who is the parent of a noncitizen child who has suffered abuse.

    • Unlike a VAWA self-petition case, an abused noncitizen can still qualify for VAWA Cancellation even if the marriage to the abusing spouse had been terminated for more than two years.

    • An abused noncitizen can still qualify even if the abusive spouse was married with someone else at the time of marrying the noncitizen as long as the abused noncitizen did not know about the abusive spouse’s previous marriage.

  • The noncitizen must be continuously present in the United States for at 3 years before application.

    • Travel outside the United States may disrupt the 3-year continuous presence period unless the noncitizen can show that the absence was connected with the battery or extreme cruelty.

    • Travel outside the United States will not disrupt the 3-year continuous presence period if the travel was for a period of less than 90 days or less than 180 days if more than one travel was made during the 3-year period.

    • An applicant is exempt from the continuous physical presence requirement if they served at least 24 months in the U.S. Armed Forces, were in the United States at the time of enlistment or induction and if separated from service, the separation was under honorable conditions.

  • The noncitizen or a child or parent of the noncitizen would suffer extreme hardship if the noncitizen were removed.

    • Factors that are considered to determine Extreme Hardship include:

      • The physical or psychological consequences of the abuse,

      • The consequences of losing access to the United States legal system (including the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, and family law proceedings or court orders regarding child support, maintenance, child custody and visitation,

      • The likelihood that the abuser’s family and friends in the country of return would harm the applicant or the applicant’s children,

      • The applicant’s and/or applicant’s child(ren)’s needs for services for victims of domestic violence that are not available or reasonably accessible in the country of return,

      • The existence of laws and practices in the country of return that punish victims of domestic violence or individuals who take steps to leave an abusive situation,

      • The abuser’s ability to travel to the country of return and the ability and willingness of authorities in the country of return to protect the applicant and/or the applicant’s children,

      •  The applicant’s age both at the time of entry to the United States and at the time of application, their immigration history, and their length of residence in the United States, including any authorized residence,

      • The age, number, and immigration status of the applicant’s children and their “ability to speak the native language and to adjust to life in the country of return”,

      • The health of the applicant, the applicant’s children, or the applicant’s parents, and the availability of any necessary medical treatment in the country of return,

      • The applicant’s ability to find work in the country of return,

      • Any family members of the applicant who are or will be lawfully residing in the United States,

      • The financial and psychological impact of the applicant’s departure, and the impact of departure on educational opportunities,

      • The current political and economic conditions in the applicant’s country of return,

      • The applicant’s family and other ties to the country of return,

      • The applicant’s contributions to and ties to a U.S. community,

      • The availability of other means of adjusting to legal permanent resident status.

  • The noncitizen must not have committed certain crimes that can disqualify the noncitizen under immigration law which include:

    • Crimes requiring a sentencing of five years or more for two or more convictions,

    • Crimes involving moral turpitude,

    • Crimes related to controlled substances,

    • Engaging in prostitution or commercialized vice.

    • Crimes considered Aggravated Felonies,

    • Certain Firearms offenses,

    • High-speed flight from an immigration checkpoint,

    • A crime of child abuse, neglect, or abandonment,

    • A crime of domestic violence or stalking,

    • Violations of certain portions of a domestic violence protection order,

    • Making a false claim to U.S. citizenship,

    • Acts of Espionage, treason, sedition, Selective Service Act or Trading with the Enemy violation,

    • Failure to register or document fraud under certain federal acts,

    • Failure to register as a sex offender under federal law,

    • Entry/departure permit fraud,

    • Importation of immigrants for immoral purposes,

    • Threats against the president,

    • Military expeditions against friendly nations, 

    • Acts of terrorism or acts that threaten the security of the United States,

    • Marriage fraud.

  • The noncitizen has been a person of good moral character for the 3 years of physical presence. Note although the judge can decide whether the positive or negative behavior of the noncitizen can lead to a discretionary finding of good moral character, the noncitizens will be automatically disqualified from a finding of good moral character based on the tollowing crimes regardless of whether there was a conviction:

    •  Sentencing of five years or more for two or more convictions,

    • Admission or conviction of a crime involving moral turpitude,

    • Admission or conviction of crimes related to controlled substances,

    • Admission or conviction for engaging in prostitution or commercialized vice,

    • Immigration authorities have a reason to believe noncitizen is a drug trafficker,

    • Admission or conviction for alien smuggling,

    • Being a habitual drunkard,

    • Living off of or having two or more convictions for illegal gambling,

    • False testimony to obtain or maintain immigration benefits,

    • Coming to the United States to practice polygamy,

    • Spending 180 days or more in jail or prison for a conviction or multiple convictions,

    • Conviction for Murder,

    • Conviction for an Aggravated Felony.

Battery or Extreme Cruelty.

The definition of Battery or Extreme Cruelty includes being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Sexual abuse is also included as well as psychological abuse or exploitation including rape, molestation, incest if the victim is a minor or forced prostitution. Physical abuse is not required if the noncitizen can establish extreme cruelty which include acts of:

 

  • Social isolation of the victim,

  • Humiliation,

  • Degradation,

  • Use of guilt,

  • Minimizing or blaming,

  • Economic control,

  • Coercion,

  • Threats of violence against the applicant or the applicant’s children,

  • Acts intended to create fear, compliance or submission,

  • Controlling what the applicant does and who they can see and talk to,

  • Denying access to food, family, or medical treatment,

  • Threats of deportation,

  • Threats of removing children from the custody of the applicant.

 

 Work Authorization.

 

After the 42B Application is filed with the EOIR, the noncitizen will be eligible for an employment authorization document or EAD which the noncitizen can renew every year while the removal proceeding is pending.

 

 

Benefit Granted.

 

A grant of VAWA cancellation of removal will automatically result in the United States Citizenship and Immigration Service or USCIS issuing legal permanent resident status or a green card to the noncitizen after the immigration court notifies USCIS of the approval.

 

Denial.

 

If the application is denied, the noncitizen will be subject to being removed from the United States although the noncitizen also has the right to appeal the judge’s decision before the Board of Immigration Appeals.

 

Most often removal cases are cases where the noncitizen should seek the representation of an experienced immigration attorney to help the noncitizen wade through the potential pitfalls of the removal and cancellation of removal process.

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