> Information on Families

Most frequently, a battered undocumented woman will remain with her husband and choose not to complain to authorities about abuse for fear that he will terminate a pending visa petition. She will be forced to remain with the batterer if he threatens not to file the petition, to withdraw a pending visa petition, to have her deported, and/or threatens to divorce her and thereby, eliminates her means to gain legal status under the current law. An undocumented spouse will also remain with abuser based on his promise to file the petition.

More often than not, many women find themselves in this extremely vulnerable situation in which they are subject to deportation, despite the fact that they have the requisite relationship to accord them legal residency. This fear of deportation becomes a central tool used by the abusive spouse to maintain power and control in the abusive relationship and to continue the battering without fear of retaliation or legal action.

The 1990s were marked by increased attention to the plight of immigrant and refugee women in the U.S. and by the recognition that women often experience human rights abuse that are "particular to their gender. " It was recognized that many of these serious harms are not inflicted in a public forum, but rather, to take the form of cultural or customary practices, including violence in the home. Congress has provided several options for the battered woman, which include: self-petitioning, removal of condition, cancellation of deportation and asylum.

Violence Against Women Act (VAWA)

In 1994, the U.S. Congress adopted the Violence Against Women Act (VAWA), which the U.S. Attorney General's Office described as "the most comprehensive federal effort to date to address violence against women."

VAWA contains provisions to combat domestic violence and other violence against women, including provisions that allow undocumented immigrants married to U.S. citizens or lawful permanent residents to self-petition for permanent resident status if they can show that they or their children have been abused.

Self-Petitions Based on Domestic Violence

The Immigration and Naturalization Act [INA 204(a)(1)] allows a spouse of a United States citizen or Legal Permanent Resident to file a self-petition. The self-petitioning spouse must show that he or she:
* Is the spouse of a citizen of lawful permanent resident of the United States or legally terminated the marriage due to battery within 2 years of filing.
* Is eligible for immigrant classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship.
* Is residing in the United States.
* Has resided in the United States with the citizen of lawful permanent resident spouse.
* Has been battered by or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident during the marriage. Is the parent of a child that has been battered by or has been the subject of extreme cruelty perpetrated by the citizen or lawful permanent resident during the marriage.
* Is a person of good moral character.
* Entered into the marriage to the citizen or lawful permanent resident in good faith.

A nearly identical parallel provision allows the filing of a petition by a battered child of a U.S. citizen, or lawful permanent resident parent.

Removal of Conditional Residence Status Based on Domestic Violence

In 1995, the INS adopted guidelines that recognizes women that often experience types of persecution different from men and cites domestic violence as one form of gender-related persecution that can be the basis for an asylum claim.

Beginning 21 months after conditional residence status, the parties are required to jointly file for removal of the conditions for unconditional lawful permanent status. Unfortunately, in some situations this is not granted if there is record of domestic violence.

The Immigration Marriage Fraud Amendments (IMFA) provided relief for women in this situation. This consists of a battered or extreme cruelty waiver of the joint filing requirement to remove conditional resident status. It was enacted so that women would not be required to remain in violent relationships for two years to allow them to apply to remove their conditional resident status.

Cancellation (Suspension) of Deportation Based on Domestic Violence

The Crime Bill also introduces a new suspension of deportation provision aimed at protecting spouses and children that are battered from being deported. Section 40703 amends INA 244(a) to allow an alien to apply for suspension of deportation. The alien must prove that he or she:
* Is deportable under any ground, other than marriage fraud under INA 241(a)(1)(G).
* Has been physically present in the U.S. for a continuous period of at least three years preceding the suspension of deportation application.
* Has been battered of subjected to extreme cruelty by a spouse or parent that is a U.S. citizen or permanent resident; and
* Proves that deportation would result in extreme hardship to the alien or the alien's parent or child. Battered immigrant children who are abused by their citizen or resident parent and the undocumented parent of a battered citizen or immigrant child can also apply for suspension of deportation through this process.

An immigrant or potential immigrant woman in a violent domestic situation should not give up hope. Rather, she should meet and discuss the various remedies that may be available under U.S. immigration and refugee law to immigrant women that have experienced gender-related abuse (with the focus on family violence). Thomas Esparza, Jr., can discuss the following issues: the impact of the new grounds of inadmissibility under INA § 245(i); the circumstances under which a client may be eligible for public assistance; and avenues of relief for a client that cannot self-petition under the VAWA.

Thomas Esparza, Jr., recognizes the immigration concerns of women and children they are involved in. Inseparable from other concerns, many of these cases include, protection from domestic violence and access to shelter and other forms of public assistance that may be critical to their ability to separate from their abusers.