Abuse Victim`s Best Guide to Green Card

Transcription

The Abuse Victim’s
Best Guide to a Green Card
By Elizabeth R. Blandon, Esq.
Board Certified by Florida Bar -- Immigration and Nationality Law
AV Rated Preeminent Attorney by Martindale-Hubbell
10.0 Superb Rating by Avvo
Member, American Immigration Lawyers Association
Asylee’s Daughter Blog
2853 Executive Park Drive, Suite 103
Weston, FL 33331
(Tel) 954-385-0157
Web Site
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“A woman is like a tea bag. You can’t tell how
strong she is until you put her in hot water.”
- Eleanor Roosevelt
About the Author
Elizabeth R. Blandon has been practicing immigration law for almost twenty
years. The association of lawyers of her state has certified her as an “immigration
expert.” Fewer than 100 lawyers have been honored with this Board Certification.
The Martindale-Hubbell Peer Review Rating System rated Ms. Blandon AV.
This score – which is the highest rating possible -- reflects the confidential opinions
of both judges and other attorneys regarding Ms. Blandon’s legal ability and
adherence to the highest level of professional ethics.
Clients publish anonymous reviews on the website AVVO. They have given
her the highest rating (10.0 Superb) as well as the Client’s Choice award.
In 2013, the American Immigration Lawyers Association honored Ms.
Blandon’s article as one of the best magazine stories by an immigration lawyer.
She founded Blandon Law to help victims of abuse make a life for themselves
in the United States -- whether they are victims of a person or a government. Clients
live in many different parts of the United States and are citizens of over 80
countries. She also founded a non-profit organization that awards post-secondary
scholarships to foreigners.
Ms. Blandon graduated from the University of Pennsylvania Law School,
considered one of the best in the nation. Ms. Blandon speaks Spanish and French.
Before studying law, Ms. Blandon honed her writing skills at Boston University
where she earned two degrees, one in Literature and another in Journalism.
In 2015, Ms. Blandon was invited to the White House. She is pictured here
beneath the portrait of former First Lady Eleanor Roosevelt.
Table of Contents
Introduction ....................................................................................................................................... 8
The General Process at Blandon Law .................................................................................. 9
Chapter One – Getting a Green Card without Remaining in the Marriage .............. 14
Self-Petition: The Story of Padme ..................................................................................... 14
Best Case Scenario ................................................................................................................... 15
Explanation of VAWA ........................................................................................................ 16
Explanation of U Visa ......................................................................................................... 18
FAQs ......................................................................................................................................... 21
How Blandon Law Attorneys Can Help ........................................................................... 23
Requesting the Information Needed to Win ............................................................. 24
What Documents are Needed? ....................................................................................... 25
Chapter Two – How a “Child” of Abuse Can Get a Green Card .................................... 28
Self-Petition by Child: The Story of Anakin ................................................................... 28
Explanation of Self-Petition During Abuse ................................................................ 29
Explanation of Petition After Abuse, including Motion to Reopen .................. 29
How Blandon Law Attorneys Can Help ........................................................................... 30
Information needed to win .............................................................................................. 31
Chapter Three – How a Foreigner Can Keep Her Residency after Abuse Begins. 33
Removal of Conditions: The Story of Leia ..................................................................... 33
How a Blandon Law Attorney Can Help .......................................................................... 34
Chapter Four – How a Victim Can Avoid Deportation .................................................... 39
Removal Defense – Cancellation: The Story of Rey ................................................... 40
Organizing Information .................................................................................................... 45
Filing Motions and Applications .................................................................................... 46
Chapter Five - Abuse that Happened Outside the United States ................................ 48
Asylum: The Story of Maz .................................................................................................... 48
What Documents Are Needed? ...................................................................................... 52
Chapter Six - Helping Clients Answer Common Questions .......................................... 54
What if I Do Not Have Sufficient Documents, Including Evidence of Abuse? ... 54
FAQs About Processing by Government ......................................................................... 55
Conclusion ....................................................................................................................................... 60
Introduction
Victims of relationship violence can obtain legal permanent residence
through various laws. When they do, the Citizenship and Immigration Service
provides them a “green card” as an identification document to prove they can live
and work in the United States permanently. The green card serves as a work permit,
too.
Using the stories of five characters, this book explains several ways that
domestic abuse victims can obtain a green card. Those fictional victims are Padme,
Anakin, Leia, Rey and Maz. Each chapter begins with a brief summary of what
happened to them, followed by an explanation of U.S. immigration law. A summary
is also included of how the Blandon Law team would help each of these clients win
his or her case. This section includes a list of the forms that are used and the
documents that we recommend providing as evidence.
The final chapter answers many common questions. The information has
been obtained after years of experience. Successful clients include the following:
•
A woman from England who suffered only one incident of abuse -- her
husband’s statement that he would deport her if she objected to his being unfaithful
•
A woman from Germany who was married less than two months
•
A woman from Sweden whose husband never told him about a prior wife and
had a baby with another woman during their marriage
Ms. Blandon has the expertise and creativity to win difficult cases.
First, get yourself to a safe place. Then, read this information. Finally,
contact Blandon Law for a private consultation. These convenient meetings or
phone calls can be requested through the website – WWW.BLANDON-LAW.COM.
As we have done for many clients, we want to open the door to your success.
With proper advice and assistance from experienced immigration attorneys, the
most difficult cases can be won. This is not wishful thinking, but rather the voice of
experience.
The General Process at Blandon Law
A case will go through Blandon Law team members as shown below.
We can only work on cases if the client has provided us with what we request.
So, the faster the client provides us with information and documents, the sooner we
file the case. The average preparation time of abuse cases is two months. This is
because the client must obtain reports from therapists and notarized signatures
from witnesses. Some cases, however, have been processed more rapidly.
NOTE: There are immigration consequences (including deportation) for
foreigners who abuse others. Due to our policy of helping victims, however,
Blandon Law does not represent anyone who has been arrested or convicted for
harming a spouse or domestic partner. Blandon Law also does not represent
anyone who has been arrested or convicted of a controlled substance offense.
Glossary of Terms
A
Asylee – persons in the United States who have been granted refuge due to a
well-founded fear of persecution in their homeland. The term also refers to the
spouse and children of such a person.
Advance parole – permission to return to the United States after traveling
abroad. This is given to foreigners who are not yet legal permanent residents, but
have a case pending before the Citizenship and Immigration Services.
Authorized presence – period during which a foreign national does not
accrue time in unlawful status, as permitted by the Department of Homeland
Security. Deferred action, appeals to the BIA, and consideration of change of status
applications are examples of such time periods. Persons who have authorized
presence are legally present in the United States, for purposes of the immigration
laws.
B
Board of Immigration Appeals – also known as the Board, the BIA is an
administrative appellate body within the United States Department of Justice.
Published decisions of the Board are used as guidelines for Immigration Judges
deciding asylum cases.
C
Citizen – a member of the United States, eligible to participate in its
government with rights such as holding public office, voting in elections, and being
eligible for government jobs.
Convention Against Torture – referred to as CAT, the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment is an agreement signed by member countries to avoid torture around
the world. Persons who may be tortured in their home country cannot be deported,
even if their asylum case is denied.
Common-law marriage – a civil union that is not a marriage. If the
relationship is recognized in the country where the common-law marriage occurred,
Immigration will treat the couple as married for purposes of a green card.
E
Employment authorization – work permission issued by the Citizenship and
Immigration Service. This is commonly called a work permit.
F
Foreign national – anyone who is NOT a citizen of the United States is a
foreign national. Although foreign nationals may have entered through different
methods and have different ties to their communities, they must apply to the
government if they wish to work and remain legally in the United States. Thus, it is
important to become a U.S. citizen at the earliest opportunity.
G
Green card – the government-issued identification card issued to legal
permanent residents
I
Immigration – the informal term used to describe federal officers who work
with U.S. Citizenship and Immigration Services. It is an agency within the
Department of Homeland Security, granting benefits such as asylum, work permits,
legal permanent residency, and naturalization. Officers of other agencies – including
Customs and Border Patrol or Immigration and Customs Enforcement – are often
called Immigration officers, too.
L
Legal permanent resident – a foreign national allowed to work and remain in
the United States in a permanent resident.
N
Naturalization – the process by which a foreign national becomes a U.S.
citizen.
P
Priority date – the date that a petition, including a self-petition, is received by
Immigration. Only when the priority date is current can the foreigner file the
application for residency. The monthly Department of State Visa Bulletin shows
which priority date is current that month.
R
Refugee – foreign nationals who are outside of the United States and seek
protection in a second country because of harm suffered in their homeland.
Removal – prior to the passage of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, issuing an order to return foreign nationals to
their homelands was known as deportation. Today, it is removal.
Removal of Conditions – foreigners who received residency before the two
year anniversary of their marriage must file Form I-751 within the 90 day period
before the green card expires. The only two exceptions to this filing deadline are
abuse and divorce.
S
Status – persons are deemed to be in status when Immigration has formally
approved their visa, application, or petition. The duration of status varies based on
the benefit granted.
U
U Visa – legal status and work authorization granted to a victim of certain
crimes who is willing to help law enforcement with prosecution.
V
Violence Against Women Act -- VAWA, as the Act is more commonly known,
is a series of laws that provides immigration benefits to spouses, children or parents
of abusers.
Chapter One – Getting a Green Card without Remaining in the
Marriage
Women remain in abusive relationships for many reasons, including the simplest
of all…commitment. At Blandon Law, we help survivors of relationship violence and
make no judgments about their personal decisions to stay or go. Our goal is to
remove homelessness and deportation from the client’s fears by providing work
permits and green cards.
This chapter tells the story of a victim after she left her abuser. As you read it,
keep in mind that economic supports, job training and employment opportunities
also exist to help abuse survivors.
Self-Petition: The Story of Padme
Padme was a rich, foreign woman who married a United States citizen named
Anakin. There is no doubt that the marriage was real. In fact, she became pregnant
with his twins.
Unfortunately, Anakin was obsessed with Padme since the day he met her. He
dreamed about her constantly and had a pathological fear of her dying. During a fit
of manic jealousy, he accused her of betraying him with another man. He choked
her, disregarding her pregnant condition, until she became unconscious.
This scenario is loosely based on a beloved science fiction saga, but it also serves
to explain the rights of married women who are abused.
Best Case Scenario
Padme does not have to remain in a terrible relationship with Anakin. With the
benefit of a law known as the Violence Against Women Act (VAWA), she can obtain
her legal permanent residency on her own. She does not need to ask Anakin to sign
any forms. In this way, she will have control over getting a green card.
Explanation of VAWA
Under the Violence Against Women Act (VAWA), a spouse, parent or child of
a legal permanent resident or U.S. citizen who is subject to extreme cruelty or is
battered may file a self-petition to become a Lawful Permanent Resident. In other
words, VAWA is a way for a foreigner to avoid depending on an abusive petitioner.
Residency based on VAWA involves two steps. First, the victim files a selfpetition. Then, the victim files an application for residency. The self-petition works
like a substitute for the petition the abuser would have filed. So, if the victim is
married to a US citizen, she can file the self-petition and the application for
residency together.
If the abuser is a resident, then the abuser must file the self-petition first. The
receipt from Immigration will show on what date the application was filed. It is
known as a priority date. Only when the priority date is current can the victim file
the application for residency. The Department of State’s Visa Bulletin shows
whether the priority date is current that month.
The form to file for legal permanent residency is Form I-485. It is shown below.
As with Form I-360, the application to adjust status is used by foreigners requesting
a green card based on several laws; thus, not all sections of the form need to be
completed.
Importantly, VAWA is not limited to women. Men can also apply for legal
permanent residency. This is more often the case, however, when the petitioning
foreigner is either a parent or a child of an abuser.
The child of a battered spouse does not need a separate petition to become a
legal permanent resident. In our story, the children of Padme would also receive
green cards upon approval of their mother’s petition. This is true even when the
parent dies so long as she lived in the U.S. at the time the victim passed away and
the child still lives in the United States.
VAWA is a way to obtain a green card at any point of a foreigner’s journey in the
United States. It does not matter whether the foreigner entered without
authorization. It does not matter how long the foreigner has been in the United
States. In fact, abused spouses and children (but not parents) living abroad can also
get a green card through VAWA if some of the abuse took place in the United States –
or the abuser is a member of the US military or government employee.1
Explanation of U Visa
If the abuser is neither a legal permanent resident nor a US citizen, the victim
may still be able to get a green card. This is possible by obtaining a U visa, which is
available to victims of criminal activities even if they are not married. The applicant
1
INA § 204(a)(1)(A)(v)
will need to prove that she suffered substantial physical or mental abuse as a result
of having been the victim of the criminal activity.
Although it is called a U visa, this is not a document placed in a foreigner’s
passport allowing them to travel to the United States. It is simply an approval by
Immigration allowing the foreigner to remain and work in the country legally.
Unlike with VAWA, the victim must be willing to prosecute the abuser by calling
the police and often working with law enforcement until the abuser is convicted.
This is because a Law Enforcement Authority certification is a requirement for U
visa cases.
As of 2016, U visas are available for victims of the following offenses:
•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
This also includes attempts to commit these offenses. Returning to Padme’s
story, if she suffered substantial physical abuse as a result of Anakin’s domestic
violence, she would be eligible for a U visa. The choking might also be charged as
attempted murder.
As with VAWA, family members may also receive immigration benefits. If the
abuse survivor is under 21 years of age, she may petition on behalf of her children,
parents and unmarried siblings under age 18. If she is 21 years or older, she may
only petition for her children.
After the foreigner has been physically present in the United States for a
continuous period of at least three years in U visa status, she can apply for legal
permanent residency through a process known as adjustment of status. Derivative
family members may also apply for green cards.
FAQs
In this section, we address commonly asked questions about VAWA self-petition
and U visas. Other desirable information is provided in the parts about how
Blandon Law works with these clients and how the government processes the case.
Can I file even if my spouse is not a US Citizen?
Yes, those who have been abused by legal permanent residents are also eligible
for a green card through VAWA. In addition, a foreigner can file for VAWA even
during the two years after the abuser loses his citizenship (or residency).
Can I file for divorce while this case is pending? When can I file for divorce?
A foreigner can file a self-petition within two years of divorcing an abuser, but
must also show that the termination of the marriage was connected to the domestic
violence. A victim can also divorce after the self-petition is approved without having
to show that the divorce has anything to do with the domestic violence. A battered
spouse may also remarry after, but not before, the self-petition is approved.
Can I apply for this process even if I have a criminal record?
A victim must demonstrate good moral character in order to receive a green
card based on VAWA. That said, a foreigner does not have to have a spotless record.
Whether an offense negates a finding of good moral character depends on the law at
that time. So, the Blandon Law team will need to review certified copies of all arrest
reports and court dispositions for each incident.
An offense that bars a showing of good moral character may even be excused.
This is true f there is a connection between the crime and the battering or extreme
cruelty. We will help the victim show that she would not have done the crime but
for the abuse.
Can I apply for citizenship later on?
A foreigner who obtains a green card through VAWA or through an abuse-based
I-751 can apply for United States citizenship three years after becoming a legal
permanent resident. Normally, a resident must wait five years to apply for
naturalization, but the law protecting battered spouses gives the same benefit to an
abuse victim as it does to a wife who is in a healthy marriage.
How Blandon Law Attorneys Can Help
To obtain a green card based on VAWA, an abuse victim must initially file Form
I-360, which is the self-petition. As the same form is used for different types of
immigrants, the entire I-360 is not completed. Part of the first page of the form is
shown below:
Supporting documents must accompany Form I-360. A foreigner must
demonstrate that she lived with the abuser; was battered or subject to extreme
cruelty during the marriage; entered the marriage in good faith; and has good moral
character. Each of these is explained below.
Requesting the Information Needed to Win
The Un-Fairy-Tale. At the beginning of every case, we ask our clients to provide
us with their un-fairy-tale. This is what we call the story that began when the victim
met the man who eventually abused her. It includes dates and a description of each
incident of abuse. Blandon Law uses this information to begin preparing the
victim’s statement.
Biographic Information. Clients provide Blandon Law with information
needed through a password-protected system to obtain information from , such as
addresses, past employment and education history. Only the person with the
password (and members of the Blandon Law team) can get the information. This
system is also used by our clients to send quick messages to the attorneys. Whoever
has the answer will respond first. For example, when a client asks whether
Immigration received the case, the team member who opens our mail and processes
Immigration receipts will let the client know.
Witnesses. Family members, friends, and co-workers can help if they know
about the abuser at all. Clients provide us with names, email addresses, and phone
numbers and then we call them for a quick talk. We then prepare a statement based
on what they tell us and, if they mention evidence that might be helpful to the case,
we also organize what they provide.
Importantly, we compare what the witnesses tell us with what the client has told
us. We work hard to ensure that there are no inconsistencies between any
statements, even if this means having multiple consultations with both to straighten
out the facts.
What Documents are Needed?
Proof of Abuser’s Immigration Status. The victim must provide evidence that
the abuser is either a US citizen or legal permanent resident. Fortunately, if she
cannot do this, Immigration will attempt to verify the abuser’s status.2
Marriage Certificate. With certain exceptions, the victim must be married
to the abuser at the time of filing the self-petition. So, a marriage certificate is
needed. In the following situations, the victim can still get a green card based on
abuse even if she is NOT need to be married to the abuser: (a) someone who
thought in good faith she was married, but the husband was still married to
someone else; (b) the abuser died within two years of filing the self-petition; OR (c)
the victim terminated the marriage within two years of filing the self-petition AND
can show a connection between the divorce and the domestic violence.
Proof of Validity of the Marriage. The Blandon Law team works with
victims to organize documents showing that they intended to remain in the
marriage for a long time. For each couple, this evidence is different. For some, it is
2
8 C.F.R. §103.2(b)(17)(ii)
organizing proof of accounts or joint property, photos of travels and family
gatherings. For others, For other couples, the proof may be photos of identical
tattoos.
Proof of Abuse. Witnesses are not a requirement! Hospitalization is not a
requirement! Blandon Law staff has handled VAWA cases many years and can
explain to the government how what you suffered can be considered extreme
cruelty. We will look at the following areas to help you win the green card: threats,
intimidation, emotional abuse, isolation, blaming, using children, harming pets,
economic abuse, and being treated like a servant.
For several reasons, we do recommend that victims see a therapist and use that
professional’s report as evidence of abuse. First, Blandon Law attorneys speak with
the therapist to develop the victim’s statement. Dates and details of assaults may
come out more easily in the presence of a comforting counselor than anywhere else.
Second, getting a work permit and legal status is only the beginning of the healing.
The therapist will help with the rest. Even victims who have been abused only once
take months, or years, to recover from the betrayal and vulnerability. Finally, a
therapist’s report will explain the victim’s behavior more clearly to the Immigration
officer, resulting in a greater chance of winning the case. For example, an
immigration officer might doubt the severity of an assault if the victim did not go to
the hospital. The therapist’s report would explain – with diagnoses used by mental
health professionals – the victim’s terror about hospital workers discovering she
was an abuse survivor.
Chapter Two – How a “Child” of Abuse Can Get a Green Card
A self-petition by a child is different than a child who is added to a case because
the mother was abused. VAWA allows children who have personally been battered
or subject to extreme cruelty to apply on their own, even if the mother refuses to
apply under VAWA. To qualify as children, the victims cannot be married.
Another advantage is that these “children” can apply if they are 21 years of age
or younger. In fact, a “child” may petition until age 25 if the abuse was a large part
for why the self-petition was not filed before the age of 21. Adopted children can
also apply, even if the US citizen abuser has not met the two-year legal custody or
residency requirement.
Self-Petition by Child: The Story of Anakin
In Padme’s story in Chapter One, Anakin was the abuser. Not unlike real life,
abusers are often victims of childhood abuse. This chapter explores that possibility.
As a child, Anakin was abandoned by his father, whom he never met. Sadly, his
mother was not able to care for or protect him. His legal guardian forced him to
work, although he was a child. Anakin’s mother eventually passed away without
ever having filed a VAWA petition.
Best Case Scenario
It is not uncommon for a woman to struggle with the decision of filing a VAWA
case. The same emotions that keep them in an abusive relationship also create an
obstacle to requesting any help, including green cards.
Explanation of Self-Petition During Abuse
When children are abused, they do not need to depend on either their abuser or
their abused parent for immigration benefits. They can petition on their own. If the
child is a minor, meaning less than 18 years of age, it is not expected that she will file
a VAWA selfpetition on
her own.
However, a
foreigner
who is over
18 years of
age is still
considered a
child and can
apply for a green card as a victim of abuse. As stated above, if abuse is a central
reason for the delay in filing, the victim can apply if she is under 25 years of age.
If the victim is a step-child, the applicant must prove that a parent-child
relationship exists. Documents needed to do this are listed further below. As in the
case of adults, Immigration’s decision approving the child’s self-petition will qualify
the victim for financial benefits.
Explanation of Petition After Abuse, including Motion to Reopen
The child can even apply for VAWA if he or she has been ordered deported, but is in
the United States. This is done through a Motion to Reopen. An attorney prepares
documents to be reviewed by an Immigration Judge. Importantly, the self-petition
does NOT have to be approved before filing the Motion. Although there is a strict
deadline on most motions, a VAWA Motion to Reopen has a deadline of one year. If
the victim was under the age of 18 years (and thus, legally incapable of acting on her
own), Blandon Law attorneys would argue that this presented an extraordinary
circumstance and should excuse the delay in filing. Of course, the child will still have
to file the Motion to Reopen within a reasonable time (a few months) after the 18th
birthday.
How Blandon Law Attorneys Can Help
Children, even more than adults, do not want to discuss abuse. The abusers –
and other family members – have made them feel as if the poor treatment has been
their fault. We try to alleviate those feelings by explaining that we only want the
facts. We do not need to know if the child left the kitchen dirty before being hit. All
we need to know is the approximate date that the assault happened and how severe
it was.
Blandon Law team members request fewer documents from child clients
because Immigration sets a lower standard for approval of their cases. We also ask
them fewer questions and are satisfied with only their best efforts to provide us
with information.
Information needed to win
With time, our child clients often realize on their own that they were abused and
seek therapy. During the process of preparing the case, we will need contact
information about witnesses, including teachers, counselors, and therapists.
Blandon Law will take it from there.
Proof of Abuser’s Immigration Status. The victim must provide evidence that
the abuser is either a US citizen or legal permanent resident. Fortunately, if she
cannot do this, Immigration will attempt to verify the abuser’s status.3
Marriage certificate. Child applicants do NOT have to prove that the marriage
between the US citizen or legal permanent resident abuser and (most likely) the
victim’s mother was valid. So, no proof other than the marriage certificate is
needed.
Proof of parent-child relationship. The birth certificate is sufficient proof that
the victim is the biological child of the abuser. However, proof of the parent-child
relationship must exist especially if the victim is a step-child. Such evidence
includes proof of payment of the victim’s expenses. The victim should also provide
photographs of family travels together or family reunions. Blandon Law also
obtains statements from witnesses who know that the abuser is the step-parent.
The use of creativity might lead to even more proof such as documents where the
abuser is listed as parent in records of school or extracurricular activities, or jobs.
3
8 C.F.R. §103.2(b)(17)(ii)
Proof of the abuse. As with adult victims, child applicants need to prove that
they were victims of battery or extreme cruelty. Unlike adult applicants, children do
NOT have to prove that the abuse happened during the marriage of the parents. So,
Blandon Law attorneys submit evidence of all types of power and control by the
abuser over the victim, including the following: physical assaults of any kind,
coercion, threats, intimidation, emotional abuse, isolation, denying the actions as
abuse, and economic abuse.
Counselors and teachers are often the best source of proof of abuse. They are
respected members of the community with insight about family dynamics. Because
they make such accurate witnesses, the Blandon Law team seeks to speak with
counselors and teachers before contacting other types of declarants.
Chapter Three – How a Foreigner Can Keep Her Residency after
Abuse Begins
Foreigners who obtain green cards through marriage are still in danger of losing
them if the spouse becomes abusive later on. More likely, the abuse has only
worsened as the relationship continues. What began as obnoxious insults may have
– by the time the foreigner needs to apply to keep her green card – developed into
public assaults and complete isolation from her family members. This is the story of
one woman who suffered abandonment.
Removal of Conditions: The Story of Leia
Leia obtained legal permanent residency through her marriage to Han. After she
obtained her green card, however, he abandoned her and left for parts unknown.
Because they were married fewer than two years on the day her residency was
granted, she has to file an Application to Remove Conditions on Residency (Form I751) within the 90 days before her green card expires.
The problem is that there are only three ways to file Form I-751: joint
sponsorship where both spouses must sign the form; self-petition after divorce; and
self-petition based on abuse. Leia does not want to divorce Han, but can’t find him
to file the joint sponsorship case. In addition, Han was never physically abusive.
Best Case Scenario
Unfortunately, if Form I-751 is not approved, Leia loses her residency and will be
placed in removal proceedings before an Immigration Judge. Fortunately, there is
little doubt about the validity of the marriage. Leia and Han have at least one child
together and she also has several witnesses who are willing to sign declarations
attesting to the strength of their relationship.
Because Leia does not want to divorce Han, the only exception to filing the
case with his signature is filing based on abuse. She can file based on abuse
regardless of whether she is still married to the abuser or not. Although an abuse
victim can file Form I-751 at any time, without the signature of the abuser, it is best
to file it as soon as possible because her residency ends after two years.
Leia could also decide to divorce him later. After the couple is divorced, the
foreign national can file to remove conditions on residency whether the divorce
happened two months or twenty months after getting the green card.
The application for Removal of Conditions is deceivingly simple. The speed
with which Immigration makes a decision on Form I-751 depends on the
strength of the evidence presented with the application. Blandon Law has had
Removal of Conditions approved in less than three months. The average processing
time can be more than one year.
Even if a foreign national is in removal proceedings, she can still file for
Removal of Conditions. In that case, the attorney would represent the foreign
national at Immigration Court, present the necessary legal argument and file the
application and evidence, which will allow the foreign national to remain in the
United States as a Legal Permanent Resident.
How a Blandon Law Attorney Can Help
Our attorneys regularly represent foreigners who have been placed in
deportation proceedings before Immigration Judges. We prepare them for the court
hearings, appear on their behalf, and file all the needed applications, including
supporting evidence. More about the services we provide to foreigners in court is
explained in Chapter Four, which deals with Cancellation of Removal. For purposes
of this chapter, we will assume that Leia has not been placed in deportation (now
known as removal) proceedings, but needs to file Form I-751 with Immigration to
keep her residency. Below is an image of one version of that application, which
changes regularly.
Filing Form I-751 based on abuse is different that filing a self-petition. At its
core, this is simply a request to waive the signature of the US citizen (or legal
permanent resident husband) on an application that normally requires the
signature of both spouses. Proof of the abuse and proof that the relationship is valid
are still needed though.
Immigration has specifically indicated that the following acts – or threats of the
following acts -- are sufficiently offensive to merit waiver of the abuser’s signature:

Forceful detention with possibility of mental injury

Forceful detention with possibility of physical injury

Psychological harm

Non-consensual sexual acts

Exploitation
A waiver of the husband’s signature may also be granted if the resident can show
that “extreme hardship” will result if she is removed from the United States.
Blandon Law attorneys review Immigration memos and the law daily to see what
evidence is sufficient for approvals.
As with the VAWA self-petition, we will begin processing the case by asking the
victim to send us her version of the un-fairy-tale. This is the dated list of events
starting with when she met her future husband and ending with the most recent
event, which may be yesterday’s phone threat from the abuser.
Proof of Validity of Marriage. To demonstrate that the marriage was valid,
Blandon Law attorneys provide as many documents as possible showing long-term
intent. The best proof, of course, would be birth certificates of children born
together – or attempts to have children together, such as adoption and in vitro
efforts.
Interestingly, some federal courts have held that when a waiver is filed based on
extreme hardship, evidence of the validity of the marriage is not needed.
Proof of Extreme Hardship. If the parties did file a joint petition but during the
time that Immigration is taking to process that application the relationship has
soured, Blandon Law attorneys will help the resident withdraw the Joint I-751. This
would be needed if the resident wife is called to an Immigration interview and the
husband has abandoned the home. Without a withdrawal of the first application,
Immigration will not accept the second Form I-751 based on extreme hardship.
Proof of Abuse. The same evidence is required to demonstrate battery or
extreme cruelty for Form I-751 as is needed to prove a VAWA self-petition. A
detailed explanation of those required documents is provided in Chapter One.
Chapter Four – How a Victim Can Avoid Deportation
There are several ways that a foreigner can be placed into the process which
leads to deportation. That process is formally known as removal proceedings. It
begins when immigration hands or mails a copy of a Notice To Appear, which is
shown below.
A foreigner can be placed in removal proceedings if:

She is caught at the border trying to enter without authorization;

She is caught in the United States without authorization, even if she has
been in the country for several years or entered legally as a visitor or a
student;

She received legal permanent residency which has since been
terminated. This happens if the removal of conditions application is
denied. Fortunately, in that case the immigration lawyer can present a
new removal of conditions application before the immigration judge. If
the lawyer wins the case, the legal permanent resident keeps her status;
OR

She is a legal permanent resident and is arrested OR convicted for a
specific offense which is a reason for deportation.
This book has already discussed VAWA self-petitions and U visas in addition to
applications for removal of conditions. In this chapter, we will discuss an
application known as Cancellation of Removal. An application for Cancellation of
Removal is another way that a victim of relationship violence can remain legally in
the United States and get a green card. Keep in mind, however that Blandon Law
attorneys will use every law available to win an Immigration Court case on behalf of
a client.
Removal Defense – Cancellation: The Story of Rey
Because she lacked parents, Rey has taken care of herself since she was a child.
That includes defending herself whenever necessary. Although self-defense has
been a valuable skill, in this story, it landed her in removal proceedings.
Ben imprisoned Rey against her will, intimidated her with a deadly weapon and
caused her psychological harm – but she is not aware of him ever hurting her
physically. After their first fight, during which he scared her because she could not
fight as well as he, she became unconscious.
During their second fight, they both carried weapons. She hurt him and left him
on his back. Later, Rey was arrested and convicted for battery against a US citizen.
Battery may be a deportable offense. So, Rey was placed in removal proceedings
and an Immigration Judge must decide whether she stays in the country or not.
Best Case Scenario
The Violence Against Women Act (VAWA) changed how victims of domestic
violence can avoid deportation when facing an Immigration Judge. It is extremely
important that foreigners facing deportation hire an immigration lawyer, especially
one who knows a great deal about VAWA.
One way that you can avoid deportation – and also get legal permanent resident
status (LPR) – is through Cancellation of Removal based on VAWA. When persons
become an LPR, a green card is sent to them in the mail. If you were ever abused by
your US citizen or Legal Permanent Resident spouse or parent, you may be able to
apply. Likewise, if you have a child who has been abused by the other US citizen or
resident parent, you may be able to apply. Even if you later discover that the abuser
was not legally married to you because he was still legally married to someone else,
you may be eligible to apply.
A foreigner who wishes to obtain a green card through Cancellation must
demonstrate that she (or her child) were battered or subjected to extreme cruelty
and the abuser was either a US citizen or legal permanent resident. The Respondent
(as someone facing deportation is known in the Immigration Court) must also show
that she has Good Moral Character and has THREE years of physical presence in the
United States.
Cancellation of Removal differs from VAWA in at least three ways. First, the
foreigner has to have lived in the United States for three years prior to filing the
application; there is no minimum physical presence requirement for VAWA. Second,
the parent of an abused child can obtain a green card through Cancellation of
Removal even if she is not married to the abuser, if the child was abused or battered
by his US citizen or legal permanent resident parent. Finally, Cancellation of
Removal requires that the foreigner demonstrate that removal would result in
extreme hardship.
This last factor requires that the foreigner prove that her deportation would
cause EXTREME hardship to her, her child, or her parents. Although the term
extreme hardship is not clearly defined, it certainly means that the person will
suffer MORE than what a relative would normally suffer if a loved one were
deported.
The author would note that the level of abuse needed for Cancellation of
Removal is LESS than the gravity of harm that must be demonstrated for VAWA.
Cancellation requires a showing that the foreigner or her child has been battered.
The definition of battery is different in each state. For example, in Florida battery
occurs when a person:
1.
Actually and intentionally touches OR strikes another person against the
will of the other; OR
2.
Intentionally causes bodily harm to another person.
A Cancellation case in Florida should be won if the evidence shows that the
foreigner or her child have been TOUCHED AGAINST THEIR WILL, even without
bodily harm. Of course, as Cancellation is discretionary (meaning the Immigration
Judge can deny it even if the foreigner meets the requirements), we will try to
demonstrate that the victim suffered both physical and emotional harm.
Blandon Law helps clients by helping to organize the documents, gathering
information that will help prove the client deserves to win the case, and preparing
the client and her witnesses for the Immigration Court hearings. A Cancellation of
Removal case requires that the attorney file Form EOIR-42A or 42B with the
Immigration Court, and follow the mandated rules for obtaining needed receipts
from the Citizenship and Immigration Services.
The proper form to use depends on the immigration status of the foreigner at the
time she was placed in removal proceedings. A copy of part of the first page of Form
EOIR-42B is below.
Only an immigration lawyer can help a foreigner who is facing removal because
a working knowledge of how to use the law and the Court’s rules is needed to defend
someone. In fact, at the first appointment (known as a Master Hearing) the
Immigration Judge will ask whether the foreigner has a lawyer and, if she does not,
the case will be continued to give the Respondent time to hire a lawyer.
Organizing Information
When a foreigner is placed in removal proceedings because of a criminal offense,
Blandon Law attorneys prepare the evidence to show that the wrongdoing was
related to the victim’s abuse. In Rey’s case, this would be easy because she harmed
Ben while defending herself from his attack.
In addition to proving that she is a victim of cruelty, the foreigner needs to
demonstrate at least three years of continuous physical presence prior to filing the
application for Cancellation of Removal. Blandon Law attorneys will help the client
understand the documents that demonstrate physical presence and suggest other
types of proof to gather to increase the likelihood that the Immigration Judge will
grant the green card.
A battered spouse or child cannot get a green card through Cancellation of
Removal if she was out of the United States for more than 90 days at one time. It is
therefore critical to organize the documents to show that the foreigner was in the
country EACH MONTH of EACH of the three years. In addition, an Immigration
Judge will deny Cancellation if the foreigner was out of the United States for 180
days in total (not at one time) during the three-year period.
Blandon Law attorneys prepare the evidence of extreme hardship based on what
has been successful in other cases. Our experience is invaluable for this. To
demonstrate psychological harm, we recommend meeting with a therapist and then
the Blandon Law attorney reviews the therapist’s report before submitting it to the
Court. To demonstrate financial hardship, we review income and expense
information and prepare charts as necessary. If the relative has an illness, Blandon
Law attorneys conduct research and talk with physicians to demonstrate that the
client’s removal would cause extreme hardship due to their medical condition.
Filing Motions and Applications
In addition to preparing the application for Cancellation of Removal, the lawyers
also file the necessary motions before the Immigration Court. If a foreigner was
ordered deported because a lawyer incorrectly represented her, she should get a
second opinion from another immigration attorney. In cases where the first
attorney’s work was incompetent – including not filing for VAWA – the deportation
order can be wiped away as a result of a Motion to Reopen. There are deadlines for
these motions, however, so it is extremely important to speak with an immigration
lawyer specializing in relationship violence at the earliest opportunity.
To be clear, although Blandon Law does not represent persons who were
arrested of domestic violence, we proudly represent those who have needed to
defend themselves against their attackers. So, if a domestic abuse victim has been
arrested for an offense against another, she should still make a consultation request
through www.Blandon-Law.com and bring a copy of the arrest or incident report.
Chapter Five - Abuse that Happened Outside the United States
Relationship violence is a fact of life in too many countries. The United Nations
reported in its UNiTE campaign that up to SEVEN in 10 women around the world
experience physical or sexual violence at some point in their lifetime. The statistics
for abuse are even higher because economic disenfranchisement and psychological
mistreatment are non-physical types of harm.
Because cruelty is commonplace in many countries, it comes as a surprise to
many foreigners to learn that they can obtain a green card based on abuse that
happened to them OUTSIDE of the United States. This chapter explains how that is
possible through the law of asylum. For more information, please download the
asylum eBook -- Best Tips to Win a Green Card Through Asylum -- available on our
website at this link:
http://www.asylum-abuse-immigration-lawyer.com/
Asylum: The Story of Maz
Maz is a well-known business owner, a barkeeper. Although it upsets her
common law husband, Maz regularly associates with men of questionable
reputation. In a fit of jealous rage, one day her husband destroys her place of
business, which she has owned for a very long time, because of the men she
associates with. She escapes unharmed to the United States.
The local authorities refuse to help her; the government’s unwillingness to help
shows this would be a good case for asylum. Maz knows that if she returns to her
country, her husband will likely harm her. Whether their marriage is recognized in
the US or not, May may be eligible for a green card based on asylum.
Best Case Scenario
If the abuse happened in a foreign country, and the government of that country
is unwilling to protect the victim, Blandon Law may be able to get the foreign
national a green card based on asylum. This is because the government is basically
allowing her to be harmed on account of her relationship with a man.
We can obtain asylum for relationship violence victims regardless of the
foreigner’s status in the United States. She can be here legally or without
authorization. Likewise, it does not matter if the foreign national is in deportation
proceedings before the Immigration Court.
Asylum depends on the person’s circumstances, not the country. That said,
foreigners from certain countries receive asylum more frequently than foreigners
from other countries. At one time, for example, more than fifty percent (50 percent)
of the Venezuelans who applied for asylum were granted this status.
The family members of someone who was harmed, tortured, murdered or
kidnapped may also receive asylum – because a family constitutes a social group.
This way, the children of a domestic violence victim may also be able to obtain a
green card through violence that happened in a foreign country.
Foreign nationals have a one-year deadline from the last date of entry for
applying for asylum. Nevertheless, if a foreigner has a reasonable explanation as to
why she did not apply during the first year after arriving in the U.S., she may still be
eligible. For example, the foreigner may have been in another legal status (such as
student or visitor).
Persons whose personal circumstances have changed should also apply despite
the one-year deadline. In one case, Blandon Law won an asylum case for a
Colombian woman 20 years after she entered the United States.
Our office works as a team to obtain asylum benefits, which include work permit,
international travel permit, representation at the Immigration interview, and
eventually residency. Form I-589 must be submitted when applying for asylum. It
is shown below.
In addition to the information requested on Immigration’s form, we will request
information that will demonstrate that the foreigner: (1) is objectively and
subjectively afraid of returning to her homeland; (2) on account of her race, religion,
nationality, political opinion or membership in a particular social group.
Our experience will guide our questioning so that we can present the strongest
argument. For example, in this story Maz was harmed as a member of a particular
social group -- someone who the authorities consider a victim of “a personal
matter.” In addition, however, we may be able to demonstrate that Maz was harmed
because dangerous men (specifically, her husband) hate her political opinion: that
women are free to associate with whomever they please.
What Documents Are Needed?
Passport (if available) and National ID. Personal identification documents are
a requirement, including a birth certificate, a passport, and an ID card if the
government regularly issues one. There is a problem with dual citizenship. If the
applicant holds legal status or citizenship in a second country, asylum will not be
granted without demonstrating fear of future harm there as well. This is difficult,
but not impossible.
Proof of the Harm Suffered. In order to win asylum, the respondent must show
that she will suffer persecution (meaning, extreme harm) in the future if she is
returned to her country. Past persecution establishes a presumption of future
persecution. An experienced attorney seeks documents demonstrating past harm
because such proof establishes that it is more likely than not that harm will come to
the foreigner in the future.
The simplest way to demonstrate a valid fear of future harm is by presenting
records relating to past harm suffered. We ask that clients provide us with
photographs, news articles of attacks, hospital and medical records. All foreign
language documents need translation to the English language. In addition, our
lawyers help clients explain to their physicians abroad the type of statement that
would be useful. Generally, the more detailed the explanation, the better.
Police reports of attacks, of course, would be valuable to demonstrate that an
applicant suffered harm. Where it is impossible to get such a report – perhaps
because the authorities refuse to help the applicant – a police report is not needed.
Information on Condition of Other Women. Asylum applicants may also
establish fear for future harm by demonstrating that citizens of their country, in a
similar situation, would suffer persecution. Blandon Law attorneys review
Department of State Country Reports and other internet sources to gather this
critical evidence.
Chapter Six - Helping Clients Answer Common Questions
The Blandon Law team is available to answer questions during the processing of
the case, regardless of which type of case we are preparing. In addition, we provide
an orientation handbook to each person who becomes a client of the firm. There are
no additional fees for these services.
Our legal fees can be paid either with cash or credit. Payment plans are
available, including a discount for payment in full. Of course, only an attorney can
quote a legal fee after determining which kind of case will be prepared. Before
beginning any case, Blandon Law’s clients agree to what the fees are, when those
monies are due, and exactly what services the client will receive in exchange for
those legal charges. We also tell our clients what costs they should expect to incur
for services provided by third parties, such as government fees or testing by
therapists.
In this chapter, you will find answers to other common questions.
What if I Do Not Have Sufficient Documents, Including Evidence of Abuse?
We are here to help our clients. That includes helping them remember facts they
wish they could forget, organizing documents they provide, and serving as both
counselor and immigration professional.
We will not send out an application without sufficient evidence unless the client
insists they have nothing else. In these cases, if Immigration does not believe that
there are sufficient documents, the officer typically responds to us with a Request
for Evidence. If the requested documents are provided, the victim’s self-petition is
approved and eventual residency is granted.
Our value is our experience and customer service. A woman may not believe she
has any witnesses because all the offenses occurred in private, but we will ask close
relatives for statements – because we know those family members witnessed the
nervousness, the lack of appetite and the depression suffered by the victim. An
abuse victim may believe she has no documents to prove the marriage because the
abuser locked her out of the house or destroyed the smartphone where she kept all
her photographs, but we will ask friends for evidence – because we know they may
have posted photos of the abuser and the victim together on social media.
In other words, trust our experience.
FAQs About Processing by Government
a. How long will USCIS take to process my case?
Processing times vary depending on the priorities of the US Department of
Homeland Security. Cases are also processed more quickly if the documents and
information submitted clearly meet the requirements of the law. For example, a
case where a victim does not provide proof of the marital relationship or proof of
the abuser’s immigration status will take longer than a case where the victim
provides copies of joint children’s birth certificates and a copy of the abuser’s US
passport.
Keep in mind that the time needed for Immigration to process a VAWA petition
will be different than the time needed for an Immigration Judge to process a
cancellation application. When your case is filed, the attorney will give you the most
accurate prediction of the current processing time.
b. Will USCIS contact my witnesses?
Rarely. If the Immigration Officer doubts the credibility of the eyewitness, she
will simply not give much deference to the witness’ statement. Similarly, witnesses
appear in Immigration Court only if they wish to do so.
c. Do I or my spouse have to appear at an Immigration interview?
Victims may need to appear for an interview on the self-petition, but abusers are
not required to appear for interviews. In one case, an abuser was willing to appear
at an Immigration interview because he did not personally feel that his threats to his
wife amounted to abuse. As soon as he left the room, the Immigration Officer
granted the case.
d. What would I be asked at the interview? How do I prepare?
The Blandon Law team prepares clients for Immigration interviews. First, one
team member obtains originals and organizes the file for interview. Second, and
only after the needed documents have been gathered, the attorney meets with the
client to discuss possible questions and proper responses. The best way to prepare
for an Immigration interview is by listening closely to the attorney’s advice during
the preparation consultation.
e. Is there any way my spouse would be contacted by USCIS?
It is actually illegal for a government employee to release any information
concerning a battered spouse or child applicant.
f. Is all the information confidential?
The information is confidential with minor exceptions. For example, the
government is allowed to release information if the victim waives confidentiality
and allows the Immigration Officer to do so.
g. Would this process involve the police?
If the police have been involved due to abuse, we submit copies of those incident
reports as evidence. There is no requirement that a victim file a police report
against her abuser in order to obtain VAWA benefits.
h. If my spouse is able to contact USCIS, can he harm my case in
some way?
Government officials do not make decisions on abuse cases based solely on
information provided by the abuser. They can, however, seek to verify this
information and base their decision on that investigation. For example, if the victim
claims she lived with the abuser in 2015 and Immigration receives a letter from the
abuser stating that a police report shows they did not live together in 2015, the
government officer is allowed to review the police report.
i. Are my children included in this process?
The child of an abuse victim can receive a green card without filing a separate
VAWA self-petition. In
Immigration Court
proceedings, the
government has to
issue a Notice to
Appear against each
child; otherwise the
children are not
included in the removal proceedings.
j. Would my children be interviewed? Do they need to know the
facts?
Children may be interviewed by an Immigration officer because they are
applying for residency. In the experience of this author, children are rarely
questioned about the abuse they witnessed. If an adolescent is present during the
attacks, Blandon Law may talk with the child in order to obtain a statement that can
be used as evidence. Children are rarely used as witnesses in Immigration Court.
k. Can I be placed in removal proceedings while this case is
pending?
Any foreigner can be placed before an Immigration Judge, including persons
with green cards. The government is unlikely to place an abuse victim who has filed
a VAWA self-petition (or other case) in deportation proceedings, however, because
at the Immigration Court hearing the victim’s attorney would be given a
continuance. This means that the Immigration Judge would not rule on the
deportation until after Immigration makes a decision on the VAWA self-petition.
l. What happens if the case is denied?
If the VAWA is denied, the victim can apply again. The Blandon Law team,
however, will not file a case that we believe will be denied because our reputation as
a winning firm is of great importance. Although there are no guarantees, it is a
simple fact that a victim of abuse by an American citizen or resident will be given a
green card. A case will only be denied if the victim did not tell us the complete truth
about the relationship with the abuser, the incidents of abuse, or other matters such
as her criminal past.
m. Can I travel while my case is pending? When can I travel?
International travel depends on the legal status of the victim. If she has advance
parole, which is granted while the residency case is pending, she may travel abroad.
We ask all clients to consult with Blandon Law attorneys if they wish to travel
outside the US while the case is pending.
Conclusion
Because winning a case based on relationship violence can lead to a successful
future in one of the greatest countries in the world, we encourage foreign nationals
to consult with us if they have survived harm.
This book answers many questions, but only an attorney can professionally
advise whether you should file and how best to prepare your case. Call (954) 3850157 or visit www.Blandon-Law.com immediately to schedule that consultation.
Blandon Law is here to open the door to your success.

Abuse Victim`s Best Guide to Green Card

Transcription

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