AQUINO & LOEW

Establishing a new life in a foreign country is an extremely difficult experience.  The stress and pressure of adjusting to a new environment and culture are enough to overwhelm any individual.  Unfortunately, for many immigrant spouses, parents and children, the struggle to adapt to a new society is heightened with the nightmare of physical, emotional and/or psychological abuse.  Their passion to remain in the US overwhelms their sensibilities and unwillingly forces many to endure abuse.  The situation essentially becomes that of a spouse, parent or child trapped in an abusive relationship because of fear of being sent back to their native country.

The immigration laws recognize this complex and unfair situation by allowing individuals to seek permanent residency based on the abusive situation.  Since 1994, the immigration laws have afforded individuals subjected to domestic violence the ability to self-petition for permanent residency under the Violence Against Women’s Act (VAWA).  While the laws specifically mention “women,” the laws also apply to men.  
           
Those eligible to self-petition include: (1) A battered spouse of a US citizen or permanent resident.  Unmarried children under the age of twenty-one may be included as derivative beneficiaries; (2) A parent who has been subjected to extreme cruelty by their adult U.S. citizen son or daughter; (3) The parent of a child who has been abused by a US citizen or permanent resident parent; and (4) An unmarried child under age 21 who has been abused by a US citizen or permanent resident parent.  An unmarried child between 21 to 25 may apply only if they can prove that the child abuse was at least one central reason for the filing delay.  The child’s unmarried children could also be included as derivative beneficiaries.

To qualify for protection, the spouse, parent or child seeking to self-petition must meet the following requirements: (1) Abuse must have been in the US, unless the abuser is a US government employee or member of the US military; (2) Applicant, or the applicant’s child, must have been battered or subjected to extreme cruelty during the marriage; (3) Applicant is a person of good moral character; and (4) Marriage must have been entered into in good faith.

Additionally, since spouses often get divorced or the abusive spouse becomes deceased, it is required that the self-petition be filed within 2 years of finalization of a divorce or death of the abusive spouse.  The applicant must also demonstrate that the divorce from the abusive US citizen or permanent resident is connected to the abuse.    

As well, because the DHS has prioritized deporting permanent residents convicted of domestic violence, a common problem used to be that the abused spouse, parent or child could not self-petition after the deportation since they no longer had the required family relationship.  Recognizing this injustice, the laws confirm that individuals may still self-petition even though the abuser has lost their US citizenship or permanent residency, as long as the petition is filed within 2 years of when the abuser lost their status.  Also, the applicant must prove that the loss of status was related to an incident of domestic violence.

To be successful, an applicant must be able to clearly identify the extreme cruelty that they have been subjected to.  This includes an act which results in physical, psychological, or emotional injury, such as rape, molestation, incest of a minor, or forced prostitution.  Clear evidence of the abuse must be shown through documentation such as personal affidavits from friends and relatives, police reports, court cases, medical reports, psychological reports, report by social workers, reports by clergy, and photographs. 

           
Individuals subjected to extreme cruelty must understand that assistance is available and that a better life can be achieved.  The VAWA laws provide refuge to those who are faced with any intolerable situation of abuse.  No longer must victims of such heinous and inhumane crimes endure the pain.  Victims of domestic violence, sexual assault and trafficking must take charge of their situation and realize that the laws are aimed to protect them and provide them with a future that can be safe and secure.

Aquino & Aquino, A Professional Law Corporation, also handles family law, employment discrimination, unlawful termination, criminal defense, personal injury, wills, and living trusts. 

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