In spite of the extensive regulations under the Immigration and Nationality Act (INA), immigration is often referred to as a “broken system” that fails to live up to “our heritage as nation and a nation of immigrants”, according to former President Barack Obama. This broken system has resulted in numerous legal dilemmas for vulnerable immigrants, such as victims of domestic violence. Undocumented immigrants who are living with, and/or married to U.S. citizens and permanent residents typically have little to no English comprehension. This makes it difficult for them to research legal protections or ask for help when they are caught up in an abusive situation. Most abusers use their immigrant status against them, threatening to report them to INS should they go to the police or other authorities.
Both the state and federal governments recognize the need to protect all U.S. residents from domestic violence, regardless of their status. One of the available solutions is to allow the individual to self-petition for citizenship, thereby taking away the abuser's power over their ability to stay in the United States. The guidelines for filing a self-petition are outlined in the Violence Against Women Act, which applies to both male or female spouses, children and parents of U.S. citizens or permanent residents. Under the VAWA, the following victims of abuse are eligible to self-petition: 1) spouses of U.S. citizens or permanent residents; 2) children of U.S. citizens or permanent residents; 3) spouses of U.S. citizens or permanent residents whose children have been subjected to abuse; 4) parents of U.S. citizens.
In addition, the applicant must meet the following conditions: 1) the applicant or the applicant's child must have been subjected to physical battery or extreme cruelty; 2) the parent/ child has, or is living with the abuser in the U.S.; 3) the parent/ child is of “good moral character”, i.e, no criminal record or any other outstanding moral and/or legal complications. Victims who are divorced from their abusers can still apply if parties are divorced within two years prior to the filing of the application, and it can be shown that the divorce was connected to an incident or history of domestic violence. Another important consideration is for victims whose abusers have lost their residency status prior to the filing, or while the application is under review. As long as the abuser's loss of status occurs within the two years prior to the filing of the application, the victim is still eligible to self-petition. The victim also has the right to file from another county If the abuser is a U.S. government employee, a member of the U.S. Military or if the abuse definitively occurred in the U.S.
Regardless of your immigrant status, you should be aware of the protections that you are entitled to under the INA. For more information on your immigrant rights and legal options, please speak with the attorneys of Villani & DeLuca, P.C.