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Immigration Remedies for Survivors of Domestic Violence


By Carolyn Krieger, Equal Justice Works AmeriCorps Legal Fellow

Michigan Immigrant Rights Center

In the United States, it is a crime to physically hurt anyone, including your husband, wife, and children. Husbands cannot hit, slap, push, kick, punch, choke, or otherwise physically assault their wives. They also cannot force their wives to have sex if they don’t want to.


Domestic violence also includes other types of behaviors that are not always crimes, but are still wrong. Verbal abuse, such as yelling, swearing, name calling, insulting and degrading language is all considered domestic violence. Threatening to hurt you, to kidnap children, to harm your property or your pets, and to have you deported are all forms of domestic violence.


Controlling behavior, such as listening in when you use the phone, preventing you from having people over to your house, telling you are not allowed to leave the house, making you quit your job or drop out of school, and withholding money from you are all types of domestic violence.


If you or someone you know is experiencing domestic violence, it is important to get help right away. You can call the National Domestic Violence Hotline at 1-800-799-7233. They have people who speak Spanish, so you can call even if you don’t speak English. They will connect you with people in your area who can help you.


Even if you’re not ready to leave right now, you can still call and talk to someone to get more information about your options. Once you are connected with an advocate, you can ask your advocate to help you find a divorce attorney if you need a divorce, and also an immigration attorney if you are an immigrant.


Unfortunately, it is very common for a husband or wife who has legal immigration status to threaten their undocumented spouse. The abuser often holds the immigration papers over their spouses head, and says things like, “If you don’t do exactly what I tell you to do, or if you leave me or call the police, I won’t file papers for you and then you will be deported.”


Normally, immigration law requires that the lawfully present spouse complete and sign the paperwork to help the undocumented spouse obtain their immigration papers. This is a big problem when there is domestic violence. Fortunately, the Violence Against Women Act or “VAWA” allows the abused immigrant spouse to file papers for themselves, and get a green card without the help of their abusive spouse.


Both men and women who are being abused can file a VAWA self-petition. Also, parents and children of a U.S. citizen or Permanent Resident who are being abused can also file a VAWA self-petition. The important things to remember about VAWA are: (1) you must be legally married, and (2) your spouse (or parent or child) must be either a United States Citizen or a Lawful Permanent Resident. So if you are only living together but are not legally married, or if you are married to an undocumented person or someone with another type of visa, you unfortunately will not be eligible for VAWA. If you already divorced your spouse, or if your spouse has been deported, you may still be able to file a VAWA self-petition for 2 years after the divorce or deportation.


To file a VAWA self-petition, you will have to show that you experienced battery or extreme cruelty during your marriage. Extreme cruelty includes all the types of domestic violence described above, so you can still qualify for VAWA even if your spouse never hit you. While police reports can help prove the abuse, they are not required to file a VAWA petition.


So what happens if you are suffering from domestic violence but you are not married or your spouse does not have a green card or U.S. citizenship? There may be a way for you to apply for immigration relief. There is a special visa in immigration law for victims of certain crimes, including the crime of domestic violence. This is called the “U visa”. Other qualifying crimes include sexual assault, felonious assault, kidnapping, attempted murder, and many others.


To qualify for a U visa, you must have been a victim of a crime. So if you only experienced types of domestic violence that were not crimes (such as verbal abuse), you will not qualify for a U visa. But unlike VAWA, the U visa does not require that you were legally married to someone with a certain type of immigration status. If you were a victim of domestic violence by your husband who is undocumented, by your boyfriend, or even if you were hurt by a stranger, you may still, qualify for a U visa.


Another important thing to know about the U visa is that it also requires that you were helpful to the police and prosecuting attorney. So to qualify for a U visa, you must have reported the crime to the police, and cooperated with any follow-up requests from them. For example, if you were a victim of a crime but never called the police to report it, you would not qualify. If you called the police but then decided to drop the charges, you would not qualify. However, you can still qualify for a U visa if you reported the crime to the police, but the police never arrested the perpetrator, or if the perpetrator was found not guilty in court, so long as you continued to cooperate with the police and prosecutor.


In order to apply for a U visa, there is a special form, called a law enforcement certification, that the police or prosecutor must sign. This form says that you were helpful to them, and it is required. If they won’t sign it for whatever reason, you cannot apply for a U visa. Unfortunately, sometimes the police refuse to sign this form even if you did report the crime and did everything that was asked of you. If your crime happened a long time ago, or if they don’t have records that you cooperated, they will often refuse to sign the form. An immigration attorney can help you ask for this law enforcement certification.


If you believe you may qualify for a VAWA self-petition or U nonimmigrant status, you should talk to an immigration attorney to learn more. There are many free or low cost services available to victims of domestic violence and a shelter can direct you to these resources.

Copyright © 1989 to 2013 by [LaPrensa Publications Inc.]. All rights reserved.
Revised: 09/03/13 20:15:29 -0700.




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