The victim of domestic violence who is being deported may file self-petition for a green card. Various factors are considered for the approval of the immigrant visa but among these factors, the marriage to the abusive spouse must be established as having been made in good faith. This is already difficult to prove in short-lived marriages; it is more difficult in cases of marriages involving domestic violence. In the latter, the abuser is almost always in complete control, there is a strong possibility that destruction of evidence relating to the marriage is destroyed intentionally.
Renato, a U.S. citizen, married Janice in January 2011. He filed a petition for immigrant visa and adjustment of status on behalf of Janice at the U.S. Citizenship and Immigration Service (USCIS). After only three months from date of filing of the petition, Renato began showing signs of a violent nature—he started beating Janice when they argue, he would throw things at Janice when angry. Since Janice’s adjustment of status is still pending with the immigration service, she was afraid to do anything about the violence being perpetrated against her, she tolerated the abuse in silence and she thought this was her only option. During one of Renato’s fits, the couple’s neighbor decided to call the police and reported the violence on Janice. The police arrived and arrested Renato. Janice left their marital home in haste.
Janice was referred to a non-profit organization for temporary shelter where she stayed for a week. Feeling more empowered to face her situation, she mustered enough courage to go back and get the personal belongings she left behind when the police came to their home. To her surprise, all her belongings were nowhere to be found. Renato informed her that he had filed for a divorce and that he withdrew the petition he filed on her behalf. He then spitefully told Janice that he destroyed all their photographs, letters and any document he could get his hands on that is in any way connected with their marriage. Thereafter, Janice moved to another state to live with a distant relative.
Due to Renato’s withdrawal of Janice’s petition, the USCIS placed Janice in removal proceedings. She retained legal counsel who filed an application for immigrant visa under the Violence Against Women Act (VAWA). To qualify under VAWA, however, proof of validity of Janice’s marriage to Renato is required. Since Janice no longer has in her possession joint documents evidencing her marriage, her application for self petition as an abused spouse under (VAWA) may be denied. What are her options to avoid being deported?
Filing the Self Petition
As a victim of domestic violence, Janice may avail of the protection afforded by the provisions of the VAWA. She can file her own petition without the participation of her U.S. citizen spouse. Janice has the burden of proving her eligibility for the immigrant visa status under VAWA. She needs to prove (1) the fact of her marriage to the U.S. citizen;(2) that the marriage was valid and entered in good faith; (3) the she suffered and was the victim of extreme cruelty and (4) that she is a person of good moral character. Janice’s difficulty is that her marriage was not only short-lived, whatever limited documentary evidence she possessed to evidence her marriage had already been maliciously destroyed by her former spouse.
Secondary Evidence
If there is no primary evidence of the good faith marriage aside from the marriage certificate, secondary evidence should be submitted. Secondary evidence is a less strict standard of proof and means that any credible evidence will now be open to consideration to determine whether or not Janice’s self-petition may be approved under the VAWA.
Janice could ask witnesses to the marriage to execute declarations that provide accounts of what they personally know about Janice’s relationship with Renato, the arc of the couple’s story, their activities before and/or during marriage, as extensively as such witness’ recollections would allow.
She could submit the police report that was prepared resulting from the incident with Renato as this could contain valuable information not just of the abuse but also of facts surrounding the couple’s domestic situation at the time, their joint residence, and other matters.
She could also get statement from the women’s center or non profit organization where she sought refuge after she was forced out of the conjugal home, including confidential counseling records (if she chooses to allow disclosure) of her sessions with psychiatrists and the like. Just like proving that the marriage was in good faith, a detailed declaration by family and close friends must be executed. It would be helpful if third-party declarations could independently describe the character of the abusive spouse, how he was dominant and controlling, how Janice never had a hand in any decision making in the marriage or in the handling of their joint financial affairs.
Awaiting Congressional Reauthorization of VAWA
The provisions of VAWA in its current language afford sufficient protection to all victims of domestic violence. The benefit of self-petitioning for non U.S. citizens is one of the best features of this law and protects non U.S. citizens, like Janice, from their abusive spouses. The VAWA was authored in 1994 by Vice President Joe Biden and was passed into law during the term of President Bill Clinton.
This year, VAWA is set to expire unless reauthorized by Congress. And like a host of other bills in the pipeline requiring congressional action, the VAWA is currently in the crosshairs of partisan bickering from either side of the political aisle. The Democrats want to expand the law to include language protecting Native Americans, immigrants, and the LGBT Americans, which the Republicans oppose. The Republicans for some reason propose to change the current language of VAWA to again involve the U.S. citizen abuser-spouse in the process of filing for immigration protection, defeating the very rationale behind the self-petition. These trends, if unresolved, would roll back current protections for victims of domestic violence. For the thousands of other Janices in this country and thousands more like her mired in seemingly hopeless situations of domestic abuse, here is hoping Congress could get its act together and re-authorized the Violence Against Women Act.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
