The intercept of Prenup's (spousal support) and Immigration Law

Beware of prenuptial agreements and the Affidavit of Support in immigration matters.  

 More and more courts are starting to enforce the affidavits of support signed by the sponsors when they intend to bring an immigrant into the United States.  The scenario works as follows: Husband, a wealthy United States Citizen, wants to marry "the love of his life" who lives in another country and now wants to bring her to the United States.  Before marriage, both parties enter into a prenuptial agreement wherein Husband agrees to pay Wife some amount of spousal support for 12 months only. In his mind, after the 12 months, he believes that he will be free and clear of any responsibility to continue with any support obligation.  Or so he thinks......

The Immigration and Naturalization Act states that any immigrant seeking admission to the United States will not be admitted if they are “likely at any time to become a public charge[.]” This provision is implemented by requiring the Husband in our fact pattern to execute an affidavit of support. Id. § 1182(a)(4)(C)(ii). That affidavit is a contract in which “the sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable[.]” Id. § 1183a(a)(1)(A).  A very important factor to consider is that this is a contract legally enforceable against the husband by the wife (or by the Federal Government, any State, local or any other entity providing any means-tested public benefit) and, pursuant to the contract, the husband agrees to submit to the jurisdiction of any Federal or State court for the purposes of enforcement of the contract. Id. § 1183a(a)(1)(B)-(C).

Federal courts have subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because the claim involves a federal statute.  Venue is proper in any judicial district where the Husband resides.

Wife can allege that Husband has violated and is violating his obligation to adequately support her financially, per the obligation husband agreed to when he signed the Form I-864. Wife can argue (even if there is a prenuptial agreement) that the Form I-864 remains a valid and executable contract between Wife and Husband.  Husband in this case was advised under the form he signed that that if he or she signs a Form I-864 as part of the wife's application package, “under 213A of the Immigration and Nationality Act these actions create a contract between you and the U.S. Government. The Wife becoming a permanent resident is the ‘consideration’ for the contract.” This obligation of support, imposed by federal law, is separate and apart from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement. The Form I-864 presently makes explicit that “divorce does not terminate your obligations under this Form I-864.”

So the next question should be: for how long am I on the "hock" under this legal contract?  The law lists five circumstances whereby husband's financial obligation terminates: (1) the wife becomes a citizen of the United States; (2) the wife has obtained forty (40) quarters of coverage under Title II of the Social Security Act; (3) the wife ceases to be a legal resident and departs the United States; (4) the wife becomes subject to removal but applies for and obtains a new grant of adjustment of status; or (5) the wife dies.

For those family law practitioners out there in spousal support cases with pre-nups (or even without), if the spouse was "sponsored" the other spouse to immigrate to the United States and his/her obligation has not ended under the law, there is another way to get spousal support for your client. Always ask those questions that you don't think are relevant; i.e., did your spouse sign any contract with the United States saying he/she would support you? If you think you have an issue such as this, contact Strickland & Amezola, APC at (619) 230-1773 to see if we can help.

This is not legal advise, and is merely intended to be used for information purposes only.

Consider perusing through these cases:

•      Ohio: Davis v. Davis, No. WD-04-020, 2004 WL2924344 (Ohio App. 6 Dist. Dec. 17, 2004) - Immigrant wife countersues U.S. citizen husband for legal separation and support. Wife appealed because district court refused to take jurisdiction over I-864 enforcement. Court of appeals found wife had standing and state courts have jurisdiction to enforce I-864s.

•      Louisiana: Ainsworth v. Ainsworth, No. 02-1137-A, 2004U.S. Dis. LEXIS 28961 (M.D. La. May 27, 2004). Immigrant wife sued husband for support under I-864.  Court found wife entitled to specific performance. Husband ordered to pay support at 125% federal poverty guidelines

•      Florida: Cheshire v. Cheshire, No. 3:05-cv-00453- TJC-MCR, 2006 WL 1208010 (M.D. Fla. May 4, 2006)Immigrant ex-wife sued USC ex-husband for enforcement of I-864. Court found for wife, but 125% level should be reduced by income wife receives from other sources

•      Indiana: Stump v. Stump, No. 1:04-cv-253-TS, 2005 WL2757329 (N.D. Ind. Oct. 25, 2005). Immigrant ex-wife sought enforcement of I-864 when she couldn’t find employment. Court found ex-husband liable at 125% poverty guidelines. Court made damages calculation based on contract law to place wife in the position she would have been in if there had not been a breach.

•      Maryland: Younis v. Farooqi, Civil No. CCB-07-1393 (Feb. 7, 2009). Immigrant ex-wife receiving alimony  in the amount o $850 and child support in the amount of $556, sues ex-husband in federal court solely to enforce I-864. Court found that child support amount could not be calculated towards the 125% poverty guideline for wife. Wife got a $20,816 judgment against husband because the past spousal support did not satisfy the 125%  poverty guidelines requirement as he had signed on the affidavit when he immigrated her to the United States. The court held that Mr. Farooqi contractually agreed to support the plaintiff at 125% of the federal poverty level, and he cannot now avoid that obligation because his immigrant ex-wife – who has no driver’s license and only limited education, experience, and command of the English language, in addition to the responsibility of caring for a young child; has been unable to find full-time, paid employment within a couple of years of their divorce.

•      Maryland: Toure-Davis v. Davis  (March 2014) The court found that the Form I-864, affidavit of support, imposed by federal law, is separate from any obligation of support imposed under Maryland law or right to support waived by the parties via an ante-nuptial agreement.

•      California: Shumye v. Felleke, 555 F. Supp. 2d 1020 (N.D. Cal. 2008). W and H were married in January 1999. The couple separated in October 1999. In 2003, they filed for divorce. In 2005, W and H agreed to a divorce settlement in which H agreed to pay W the sum of $49,000. (no mention of s/s was made). W then sues H for breach of contract under the I-864 affidavit terms claiming that H had failed to ensure that she is supported above the 125% poverty guidelines as he “promised” when he signed the contract. Court Held: the I-864 is legally enforceable but recognized certain set-offs and made husband responsible for certain years of support in the marriage. Remember, this was a 9 month marriage only!

Winning United States Citizenship Case!!!

Two days ago I received the best news for one of my clients. As it turns out, my firm was able to successfully represent her and establish that she was a citizen born in the United States.

My client was born in the United States and was taken to Mexico at a very young age. She utilized her baptismal certificate to enter the United States until the age of 15. At the age of 50, she obtained her birth certificate from the State of California and later obtained her US Passport. 15 years later DHS tried to take this away but due to aggressive advocacy, my firm was able to prove them wrong.

Her odyssey commenced two years ago when her daughter applied for derivative citizenship. After attending their appointment with the American Consulate in Mexico, to my client’s shock, humiliation, and surprise she was wrongfully accused of identity fraud and not being a United States Citizen. The Consulate officer confiscated her birth certificate, United States Passport, Baptismal Certificate and was asked to leave the consul and await a resolution.

Months later, she received her Notice to Appear where the government was alleging that she as an alien, not a United States Citizen and that “evidence” from the Department of State showed the passport presented was not valid. Today, DHS returned her passport and identification card with an apology!

14th Amendment Protection

A United States citizen cannot lose citizen status unless the government can prove that the person intended to relinquish that citizenship. Under the Fourteenth Amendment, all people born in the United States are citizens of the United States. U.S. v. Wong Kim Ark, 169 U.S. 649, 702 (1898). The citizenship defined by the 14th Amendment is one “which a citizen keeps unless he voluntarily relinquishes it.” Afroyim v. Rusk, 387 U.S. 253,262 (1967). This rule has its root in the fact that”[i]n our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.” Id. at 257; see also Nishikawa v. Dulles, 356 U.S. 129, 138-39 (1958) [Black, J., concurring explains that the rule that citizens may not be involuntarily expatriated “results not only from the provisions of the Fourteenth Amendment but from the manner in which the Government of the United States was formed, the fundamental political principles which underlie its existence, and its continuing relationship to the citizenry who erected to maintain it.”]

In Vance v. Terrazas U.S., 252, 260 (1980), the Supreme Court explained that its holding in Afroyim precluding involuntarily relinquishment of citizenship meant that a person losing citizenship must intend to do so, “whether the intent is expressed in words or is found as a fair inference from proved conduct.” The court held that it was therefore not sufficient for the government to prove that, by making a formal declaration of allegiance to a foreign state, Terrazas had voluntarily committed an act designated as expatriating by Congress. Id. at 261. For Terrazas to lose his U.S. citizenship the government had to prove that, in swearing allegiance to Mexico, he “also intended to relinquish his citizenship.” Id. at 261. Thus, under Afroyim and Terrazas, the government has the burden of proving that the Respondent performed one of the expatriating acts enumerated by Congress with contemporaneous intent to relinquish his or her citizenship. Id.

In determining citizenship, it has long been the practice of the U.S. Department of Justice, including legacy INS and Executive Office for Immigration review, to seek out and rely upon the oldest “public” document, be it birth or a baptismal certificate, as the most reliable evidence of the place and date of birth. This practice was so ingrained that it was reflected in pre-printed language in legacy INS requests for evidence where birth facts were at issue. See In re Pagan, 22 I&N Dec. 547, 548 (BIA 1999); In re Bueno-Almonte, 21 I&N 1099, 1030 (BIA 1997). Baptismal certificates were previously considered by the Board of Immigration Appeals (BIA) to carry almost as much evidentiary weight as birth certificates. In re Matter of S.S. Florida, 3 I&N Dec. 111, 116 (BIA 1948).

In the Matter of Villanueva, 19 I&N Dec. 101 (BIA 1984) the Board of Immigration Appeals held that unless void on its face, a valid U.S. passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative immigration proceedings but constitutes conclusive proof of such person’s U.S. citizenship.

“Prior to enactment of 22 U.S.C. 2705, a United States passport was regarded only as a prima facie evidence of United States citizenship. Now, however, United States passports are given the same weight for proof of United States citizenship as certificates of naturalization or citizenship.” “Accordingly we hold that unless void on its face, a valid United States passport issued to an individual as a citizen of the United States is not subject to collateral attack in administrative proceedings but constitutes conclusive proof of such persons as United States Citizenship.” Id., at 102.

In this case, my client was issued a valid United States passport. Under Matter of Villanueva since she was issued a valid U.S. passport Immigration Court had to make a finding that the validly issued passport was conclusive proof of such person’s U.S. citizenship.

The Department of State has Sole Authority on Issuing,
Revoking or Verifying Passports

Further, under 22 U.S.C §211a, the Department of State (DOS) has sole authority to issue and revoke passports. Specifically, the code reads,

The Secretary of State may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic and consular officers of the United States, and by such other employees of the Department of State who are citizens of the United States as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.

Through Executive Order No. 11295, 31 Fed. Reg. 10603, the President designated and empowered the Secretary of State with the authority to designate and prescribe the rules governing the granting, issuing, and verifying of passports. DOS revokes passports in accordance with 22 CFR §§51.60-62, and 51.65. There are also several statutes under which passports may be revoked that are incorporated into DOS’s regulations, including: 8 U.S.C. §1504 (the passport was illegally, fraudulently or erroneously obtained). Specifically, that statute reads as follows:

(a) The Secretary of State is authorized to cancel any United States passport or Consular Report of Birth, or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary. The person for or to whom such document has been issued or made shall be given, at such person's last known address, written notice of the cancellation of such document, together with the procedures for seeking a prompt post-cancellation hearing. The cancellation under this section of any document purporting to show the citizenship status of the person to whom it was issued shall affect only the document and not the citizenship status of the person in whose name the document was issued. (Emphasis added). 8 U.S.C §1504(a).

In addition, the regulations, under 22 CFR 51.65(a) require DOS to send written notification of the revocation of a passport to the bearer. See 22 CFR 51.65(a). In this case, my client was issued a valid passport and given a passport number with an expiration date. This passport was issued after my client presented a valid delayed registration of birth certificate issued by the State of California.

The Department of Homeland Security (DHS) lacked authority to strip my client from her passport. DHS failed to follow the regulations and procedures by which a passport may be revoked which authority rests solely on the Department of State. If evidence indicates a person is a USC or if the evidence outweighs contrary evidence, the individual should not be arrested or taken into custody and no NTA should be issued. Further, the immigration court also lacked any jurisdiction to revoke the validly issued passport because that procedure, again, rests solely with the Department of State who before revoking the passport must issue a written notification of passport revocation.

In most cases, documents serving as primary evidence of U.S. citizenship are U.S. Passports and certified birth certificates issued by the State of birth. 22 C.F.R. 51.42(a) states as follows:

Primary evidence of birth in the United States. A person born in the United States generally must submit a birth certificate. The birth certificate must show the full name of the applicant, the applicant's place and date of birth, the full name of the parent(s), and must be signed by the official custodian of birth records, bear the seal of the issuing office, and show a filing date within one year of the date of birth.

Under 22 C.F.R 51.42(b), the Department of States permits proof of citizenship through secondary evidence as follows:

51.42(b) Secondary evidence of birth in the United States. If the applicant cannot submit a birth certificate that meets the requirement of paragraph (a) of this section, he or she must submit secondary evidence sufficient to establish to the satisfaction of the Department that he or she was born in the United States. Secondary evidence includes but is not limited to hospital birth certificates, baptismal certificates, medical and school records, certificates of circumcision, other documentary evidence created shortly after birth but generally not more than 5 years after birth, and/or affidavits of persons having personal knowledge of the facts of the birth.

My client submitted to the State of California copies of the baptismal certificate issued less than a year before her first birthday, an affidavit by her now deceased mother and an additional affidavit by the mother’s friend who was present hours after the birth of Respondent. This was sufficient evidence for the State of California to issue the delayed registration of birth certificate and this birth certificate was sufficient for the Department of state to issue the passport.

Denaturalization & Expatriation Cases

DHS had the burden of proof by clear and convincing evidence to establish that my client was not a United States Citizen by birth. Woodby v. INS, 385 U.S. 276,286 (1966 Administrative deportation hearings accordingly employ the same requirements of proof by "clear, unequivocal, and convincing evidence" as do denaturalization and expatriation cases. Id.; see also Berenyi v. Immigration Dir., 385 U.S. 630, 636 (1967) ("When the Government seeks to strip a person of citizenship already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.'….[T]hat status, once granted, cannot lightly be taken away….").

Under Immigration Nationality Act §349(a)(1)-(7), 8 U.S.C. 1481, citizenship shall be lost by performing any of the following acts with intention of relinquishing U.S. nationality:

(1) Obtaining naturalization in a foreign state …after having attained the age of eighteen years; or (2) taking an oath to a foreign state…after having attained the age of eighteen years; or (3) serving in the armed forces of a foreign state…(4) accepting employment with a foreign government if one has or acquires the nationality of that foreign state or declaration of allegiance is required; or (5) formally renouncing citizenship, either before a diplomatic or consular officer of the United States in a foreign state…(6) making in the U.S. a formal written renunciation of nationality in such before an officer…designated by the Attorney general, …; or (7) Conviction for the act of treason. INA §349(a)(1).

The standard and burden of proof in voluntary expatriation is on the person or party claiming that such loss occurred. INA §349(b). This burden was later upheld by Vance v. Terrazas, 444 U.S. 252, 264-8 (1980). This same person or party has the burden to prove that the individual committed one of the above mentioned acts with the intent to relinquish citizenship. A person opposing expatriation may rebut this presumption by showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily. Id.

In conclusion, the 14th Amendment of the constitution specifically states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” My client was able to establish that she was a United States citizen by being born in California; having been issued a valid U.S. Passport and having a validly issued delayed registration birth certificate by the State of California. In addition, my client had a validly issued baptismal certificate and two affidavits attesting to her nationality. Both the Immigration court and DHS had no authority to revoke the passport as that authority rested solely on the Department of State. Because Respondent had a validly issued passport and birth certificate, DHS did not meet its burden of proof and proceedings against my client were terminated. My client was born in the United States and she will die a United States citizen.

At the end of the day, I think about how even President Obama had to prove he was a United States Citizen and I feel vulnerable to this possible future attack on my own citizenship for being born into the family of two migrant working parents. This fear only makes me stronger each day to fight for my client's rights with aggressive advocacy and to give a voice to those who would otherwise stay quiet.

Cheers to the New Year!

It has been some time since I last posted any comments on this blog. Since the last time I posted anything, I have had some interesting experiences in immigration practice and in family law. My firm focuses primarily on deportation defense; however, having the title “immigration lawyer” implies you can handle other areas in immigration law….right? Well, let me start by saying that I have handled money forfeiture cases with customs, removal of conditional resident status, citizen interviews, federal criminal consulting, state criminal plea consulting, family visas, waivers and board of immigration appeal briefs. Throughout this time I have met some wonderful people with amazing stories. They call themselves “clients.” These are the people that feed my enthusiasm for the law and make me love it each day. I have saved many people from removal from the United States and have assisted many others obtain their visas. My clients have impacted my life with their amazing stories more than they can ever imagine. My office has witnessed many emotions, tears, hugs, and family meltdowns; all along the way my clients have left their mark and I always, must remain professional. Immigration law is very black and white. There is some gray room but it is a very small percentage. Most of the time you must deliver bad news to clients, but it is the delivery of these news what makes the attorney-client relationships stronger. For now, this post is dedicated to all my clients and all the stories I carry as part of my own personal and professional foundation!

The "Criminal" Alien and Cancellation of Removal

A Lawful Permanent Resident (LPR) is an individual who acquires legal status in the United States. However, the word “permanent” is a misnomer because this status is not “permanent” for all intents and purposes, it can be lost and the individual may potentially be forever removed to their country of birth. On September 30, 1996, President Clinton signed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). With the passage of IIRIRA, aliens now had to fight to keep their resident status in the United States upon the commission of certain crimes. IIRIRA expanded the list of crimes and aggravated felonies. Now, something as simple possession of marijuana for personal use can become an aggravated felony for purposes of immigration law if the word “sale” is included in the plea agreement. An aggravated felony bars the resident form any relief.

Cancellation of removal for permanent and non-permanent residents under INA § 240A is a form of discretionary relief that is granted by an immigration judge once removal proceedings have commenced. Removal proceedings can commence after the sentence of a crime is imposed on the individual or it can be commence many years after. Essentially, you could have committed a deportable offence in 1998, plead guilty to it and in 2010 you are crossing the border coming back from a trip abroad and you are placed in removal proceedings because now you are “inadmissible” and as such, the government wants to remove you from the United States.

Lawful permanent residents may be placed in immigration removal proceedings due to certain criminal convictions that make them become inadmissible or deportable from the U.S. LPRs convicted of aggravated felonies are entirely barred from cancellation relief. In order to qualify for relief, the LPR has to prove the following: (1) Has been an LPR for not less than five years; and (2) Has resided in the United States for not less than seven years in any status; and (3) Has not been convicted of an aggravated felony.

An individual placed in removal proceedings who does not have any legal status in the United States may qualify for cancellation of removal if the following conditions are met: (1) Has continuously resided in the United States for at least ten years; and (2) Has been a person of good moral character throughout this time; and(3) Is not otherwise subject to criminal bars arising from a conviction of any crime outlined in the Immigration and Naturalization Act; and (4) Establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a United States citizen or legal permanent resident.

A grant of an Application for Cancellation Removal has the effect of "pardoning" or "forgiving" the basis for the alien's deportability and returning the alien status to that of a lawful permanent resident. Cancellation of Removal can only be granted once in a lifetime for the alien. A denial of an Application for Cancellation of Removal results in an administrative order returning the alien to his country of birth through a removal or deportation order. If an alien accepts an order of removal or deportation, the U.S. will carry out the order and remove the alien from the U.S. Alternatively, an alien may seek review before the Board of Immigration Appeals, and thereafter in a Federal Court of Appeals for the District in which they reside. However, for most immigrants, the process can become very expensive and although these proceedings have the elements of a criminal procedure case, deprivation of liberty, deprivation of property and even the violation of "due process of law" under the 14th Amendment to the Constitution, immigrants in immigration proceedings do not have the right to a lawyer at the government’s expense. If your loved one faces removal proceedings, The Law Offices of Maricela Amezola can help you with this process. Please call us at (619) 793-5303 to discuss your options.

Immigration to the United States, through the marriage of a United States Citizen is one of the fastest methods to adjust the status of an immigrant. Provided there are no grounds for inadmissibility, a couple can start the process right after their marriage takes place. As is the case with any newly married couple, the couple is granted a green card on a conditional basis meaning the couple will be required to file an I-751 two years after the green card is approved. The couple must file the I-751 jointly to remove the conditions, however, if there is good cause, the immigrant can self petition and will eventually have to explain the reason for the divorce.
The I-751 is generally accompanied by evidence that the marriage was entered in good faith. This evidence consists of joint bank account information, joint asset ownership documents, lease agreements and insurance information among other things. This seems to be a pretty straightforward process, however, if there is not enough evidence submitted to USCIS, they might schedule an interview to determine whether or not the couple is legitimately married, i.e., if there has been marriage fraud.
A couple married in 2004, adjusted husband’s status in 2005, filed to have his conditions removed in 2007 and because of various mistakes of previous counsel and a failure to change husband’s address in the system, they never received their interview date. The Law Offices of Maricela Amezola was retained to look into the status of their case and the reason for the delays. After extensive research, we found out that not only was Husband’s case closed because they did not show up to the interview, he was in fact in removal proceedings. After meeting several times with USCIS information officers, and supervisors, we reopen his case, terminated the immigration proceedings and obtain an interview date. Today, we are happy to report that we had their I-751 case approved. It took this couple three years to finally have his conditions removed from his green card.
The San Diego County couple was extremely happy, and the husband is looking forward to applying for naturalization as a United States citizen. If you are experiencing unreasonable delays with the processing of your case or you are in the process of filing an I-751, contact The Law Offices of Maricela Amezola to schedule a confidential consultation. Attorney Maricela Amezola will personally discuss your case with you and help you understand the options available to you.

Annulment vs. Divorce

In California, a marriage may be legally dissolved, which means the parties return to their “single” status in three ways:
(1) By death of one of the parties
(2) A divorce judgment; or
(3) Nullity of the marriage.
Whether or not a marriage is “valid” for purposes of California law is question of degree. Dissolution of marriage and nullity of marriage are based on contradictory assumptions. For example, under Family Code §2310, a dissolution of marriage is a case brought in California court to dissolve a “valid” marriage. On the other hand, under Family code §2200, a marriage is nullified when it was “not valid” to begin with. This questions the essence of the marriage and asks whether or not such marital status was ever in existence.
An annulment may be granted only when a marriage is determined to be “void” or “voidable.” A void marriage is invalid from the beginning. There are two ways a marriage can be void: a bigamous (with some exceptions) or incestuous marriage. What this means is that the marriage never legally existed. Technically, if its void since the beginning, nothing more needs to be done to terminate the marriage; however, it is better to obtain a judgment of nullity in a void marriage because it provides a judicial ruling which becomes part of the public record and therefore eliminates any doubt about the party’s marital status.
A voidable marriage is valid until it is annulled. The marriage is invalidated only from the time it is declared by a court of competent jurisdiction. Essentially, this means that although is a “voidable” marriage, if the parties choose to cure the defect, the marriage can be determined to be valid. What makes a marriage “voidable?” The age of the person at the time of marriage, a previous marriage, unsound mind, fraud, force or incapacity.
With a nullity, there is no jurisdiction requirement to file for divorce and under California law, you do not have to wait the statutorily required six months before a divorce is granted. A judgment of nullity is said to “relate back” and erase the marriage and all its implications from the outset.

The Interplay of Family & Immigration Law

Family and Immigration Law are very different areas of law: one is based on statutory law and the other is federal. As a lawyer, one can practice immigration law all over the United States whereas family law is state specific and you must be licensed in that particular state before you practice law to walk into court with your client. But even though these two areas of law seem to be so different, they do cross paths once in a while. Imagine a client walking in to your office and telling you that they want to get a divorce but they fear their husband because he is physically and mentally abusive towards her. She tells you that she is illegal in this country and that he has threatened to call ICE and have her removed from the United States, not to mention the fact that she will never see her children again. What can you do? As a Family law lawyer, you tell her that she needs to obtain a restraining order against him which if she is able to show her abuse allegations are true, that restraining order will be granted for at last three years. Then what? The restraining order will be in effect and the local law enforcement will protect her from the abusive husband but who will protect her from ICE? Many women (and men) do not know that they do not have to stay in an abusive relationship with their abusers if immigration consequences is the only reason. There is help available for them.

The Violence Against Women Act (VAWA) was passed by Congress and signed into law by President Clinton in 1994. VAWA created special provisions in immigration law to protect battered noncitizens who are married to, or recently divorced from US Citizens (USC) or Lawful Permanent Residents (LPR) can, in certain circumstances, self-petition to obtain LPR status or to remove the condition on their 2-year Conditional Permanent Residence cards.

Under normal circumstances, the USC or LPR spouse petitions for their relative, i.e. immigrant (or illegal) spouse. This means that the USC or LPR initiates the immigration process and attend an interview with immigration authorities along with the immigrant spouse in order for the petition to be granted, i.e. green-card. In domestic violence relationship this could mean that the abusive spouse (USC or LPR) will use his/hers ability to control the immigration status of the victim as yet another method of abuse. VAWA eliminates this extremely damaging power dynamic and allows the victim to “self-petition” for their green-card. What this means is that a victim no longer needs the abusive USC or LPR to petition for them and obtain a “green card.” The victim can petition herself/himself and petition for the children as well. Essentially, the abusive USC or LPR plays no role in the immigration process and they do not even have to know the victim is self-petitioning—in fact, the law is clear, the government may not inform the abusive USC or LPR of the VAWA self-petition.

In order for an individual to qualify for a self-petition immigrant application, they must fall within one of these categories:

• Abused spouses of U.S. citizens and LPRs
• Non-abused spouses of US citizens or LPRs whose children are abused (need not be biological child of abuser)
• Abused children (must meet the definition of a “child” under INA § 101(b)) of USCs or LPRs)
• Abused children of USCs may file until age 25 if main reason for delay is abuse;
• Abused parents of USC children
• Abused intended spouses, meaning a spouse who entered into a bigamous marriage in good faith

In order to self-petition, you must prove:

• That abuser is a USC or LPR
• You are legally married to abuser and the marriage was entered into in good faith
• You suffered from Battery or extreme cruelty
• You were residing in the United States
• Self-petitioner lived with abuser
• Self-petitioner’s current residence
• Good Moral Character (3 years prior)

There are very strict document gathering requirements and evidence which must be submitted along with the application to prove the abuse/violence, status of the abuser and the immigrant. Because the victim has already been through so much abuse, despair, distrust, fear and anguish, this is a job best left to an attorney whether is through free legal services or retaining a private attorney.