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The Violence Against Women Act and Remedies to Undocumented Immigrants Victimized by Domestic Violence

The Violence Against Women Act (VAWA), 42 U.S.C. § 13701 et seq., is a United States federal law that was originally passed in 1994 and was reauthorized in 2013 in which the spouses and children and parents of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency in the United States. The Immigration and Nationality Act (INA) is the law that governs immigration in the United States. The VAWA provisions relating to immigration are codified in section 204(a) of the INA. Rules published in the Federal Register explain the eligibility requirements and procedures for filing a self-petition under the VAWA provisions. People who may apply include: (1) a spouse of a U.S. citizen or lawful permanent resident; (2) a child of U.S. citizen or lawful permanent resident; (3) a spouse of U.S. citizen or lawful permanent resident who’s child has been battered or subjected to extreme cruelty for the reason bANGEL-13-144x300eing that a parent files for self-petition based on abuse of the child but both parent and child benefit; and (4) parent of a U.S. citizen . It is important to note that, despite its title, the VAWA is applicable to both men and women although spouses of undocumented foreign nationals cannot self-petition.

The need for VAWA to protect immigrants is clear, and is an important law to curb abuses that occur when some U.S. citizens or lawful permanent residents abuse the immigration status of other family members by threatening to report them to the United States Citizen and Immigration Services (USCIS).  Many battered immigrants are afraid to report violence and abuse to the police or other authorities.   One reason for the passage of the VAWA was to help remedy this obvious problem. 

In order to bring the application, an immigrant must be: (1) the child/parent of the of a U.S. citizen or lawful or legal permanent resident; (2) the child/parent was subjected to “battery or extreme cruelty” during the marriage; (3) the child/parent has lived with U.S. citizen or lawful or legal permanent resident abuser in the United States; and (4) the child/parent is a person of “good moral character.” All of these element must be proven.  The child/parent is still eligible for relief  if abuser loses status within the two years prior to the filing of a self-petition and still eligible if parties are divorced within two years prior to filing of self-petition and divorce is “connected” to domestic violence.  Accommodations are also made for filing from abroad for Spouse/Child of U.S. citizen or lawful permanent resident.  In order to meet this criteria, the abuser U.S. citizen or lawful permanent resident must be  on of the following: (1) a government employee; (2) member of Armed Services of US Government (Army, Navy, Air Force, Marines); or (3) if U.S. citizen or lawful permanent resident abused alien spouse in United States.

Any “credible evidence” may be submitted in battered spouse and child cases.  Neither primary nor secondary evidence is required to support a finding.  Credible evidence is found on case-by-case basis with more weight given to primary evidence and evidence provided in court documents, medical reports, police reports, and other official documents.  More weight will also likely be given to affidavits provided by more than one person.  The information provided in these proceedings is strictly confidential.  In no case may any Department of Justice 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. See Section 384(a)(2) of the Illegal Immigrant Reform and Responsibility Act.   The law also provides a limitation on the use of information provided by solely from abusive family members. Specifically, Section 384(a)(1) of IIRIRA prohibits an employee of Department of Justice from making an adverse determination of admissibility or removal of an alien using information furnished solely by certain family members. 

Giving greater authority to ICE officials to detain and deport undocumented immigrants, however, may undermine the purpose of the VAWA and make victims of abuse again afraid to report abuse and violence against them out of fear that the government and/or police would discover the victim’s immigration status and deport the victim.

Currently, the VAWA’s ability to offer protection by the federal government to victims of violence, even if the victims are American citizens, is under threat.   Some conservative members in Congress in 2012 did not want to extend the VAWA because they objected to the VAWA applying to same sex couples, Native Americans and to battered undocumented immigrants seeking temporary “U Visas”.   The VAWA was reauthorized by Congress in 2013 and signed into law by President Obama in 2013.  The current administration, however, has proposed budget cuts that include federal, state and local domestic violence programs funded through the VAWA.

The VAWA is now a somewhat controversial topic in these politicized times.  One constituent at a Republican town hall was told to “shut up” by his Congressman for questioning why his representative voted against reauthorization of  the VAWA.   Stay tuned.