Congress Passes Violence Against Women Act of 2000

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Congress passes Violence Against Women Act of 2000
Immigrants' Rights Update, Vol. 14, No. 6, October 19, 2000

Passed by Congress on Oct. 11, 2000, the Victims of Trafficking and Violence Protection Act of 2000 (H.R. 3244) includes the Violence Against Women Act of 2000 (VAWA 2000), which expands and improves on the protections for battered spouses and children that were originally enacted in the Violence Against Women Act of 1994 (VAWA 1994).

Most notably, VAWA 2000 eliminates the "extreme hardship" requirement for self-petitioners and allows all self-petitioners to adjust their status in the United States. The act also creates two new nonimmigrant visas for victims of trafficking and for victims of certain serious crimes, including victims of crimes against women (see "Congress Creates New "T" and "U" Visas for Victims of Exploitation"). Individuals granted these visas may subsequently adjust to permanent resident status. The bill passed both houses by enormous margins (371-1 in the House and 95-0 in the Senate), and President Bill Clinton has promised to swiftly sign it.

VAWA 1994. The original VAWA included provisions to address the particular problems faced by battered immigrant women and children. Under pre-VAWA immigration law, immigrant spouses and children of U.S. citizens or lawful permanent residents (LPRs) were dependent on the citizen or LPR to petition to immigrate them, and this dependency left them particularly subject to abuse on the part of that relative. The VAWA created a procedure whereby abused spouses and their children or abused children and their parents can "self-petition" to obtain LPR status without the cooperation of the abusing relative. The VAWA also enabled battered spouses and children to obtain suspension of deportation or cancellation of removal if they were present in the U.S. for at least three years rather than the seven years normally required for suspension or ten years for cancellation.

Obstacles based on family/marital status removed. VAWA 2000 removes a number of obstacles that battered spouses and children have encountered in attempting to use provisions of the VAWA intended to help them. For example, a battered spouse whose marriage is defective because her husband failed to tell her that he was already married is not eligible to immigrate under VAWA 1994. VAWA 2000 corrects this problem by allowing individuals who believed that they were married to a U.S. citizen or LPR to self-petition. VAWA 2000 also allows individuals to self-petition even though they have been divorced from the citizen or LPR, provided that the marriage terminated within the past two years and a connection between the termination of the marriage and the abuse of the immigrant can be shown. These changes also apply to VAWA suspension of deportation and cancellation of removal. Moreover, individuals may self-petition even if the citizen relative has died, provided they petition within two years of the death.

No need to leave U.S. to apply for VAWA visa. The new law allows all VAWA self-petitioners to apply for adjustment of status in the United States, regardless of whether they were inspected when they entered the country or whether they subsequently maintained lawful status.

"Extreme Hardship" and other requirements for VAWA self-petitioners. The act also eliminates the disparate treatment of self-petitioners who, under prior law, had to meet certain requirements not applied to regular family immigrant visa applicants. Most significantly, self-petitioners no longer need to show that their deportation would cause "extreme hardship." This eliminates an enormous evidentiary hurdle from the self-petition procedure. The law also allows abused spouses and children of U.S. employees and military personnel living abroad to self-petition.

Under the new law, if the U.S. citizen or LPR parent or spouse subsequently loses that status for reasons related to their abusive conduct, the loss does not affect the abused immigrant's eligibility to immigrate if they petition within two years. Moreover, abused immigrants with approved self-petitions may remarry without causing the petition to be revoked.

Good moral character. Self-petitioners under the new law still must show that they have "good moral character." However, the new law partially exempts them from the bar on establishing good moral character outlined in INA section 101(f). Under that provision, immigrants cannot establish good moral character if they have committed or been convicted of certain criminal acts. The new law removes the bar if the act constitutes a ground of admissibility or deportability that is waivable, and the act was connected to the abuse the applicant suffered. This rule also applies to applicants for VAWA suspension or cancellation.

Children who "age out." Under the act, children who have filed a self-petition or are derivative beneficiaries of a parent's petition no longer "age out," or become subject to normal family visa rules, when they become 21 years old. Instead, they are treated as self-petitioners under the appropriate category (as unmarried sons or daughters of U.S. citizens or LPRs, or married sons or daughters of citizens), with the parent's priority date.

Relaxed continuous physical presence requirement. The act allows applicants for VAWA cancellation of removal to show that they have three years' continuous physical presence in the U.S., despite a single absence longer than 90 days or cumulative absences exceeding 180 days, if there is a connection between the absence and the abuse perpetrated against the applicant. The act also eliminates application of the "stop-time rule" (under which service of a Notice to Appear stops the accrual of continuous physical presence) in VAWA cancellation and suspension cases. And it requires the attorney general to parole the children or parents of individuals who are granted VAWA suspension or cancellation.

Motions to reopen. The act allows individuals who become eligible for VAWA suspension or cancellation because of the changes made by the new law to move to reopen their proceedings. It also amends the INA's time limitations on motions to reopen, allowing individuals to file a motion to reopen to apply for VAWA cancellation within one year of the entry of a final order. The attorney general may also waive the one-year limitation in cases of extraordinary circumstances or extreme hardship to a child.

New waivers of grounds of inadmissibility and deportability. The act establishes waivers of certain grounds of inadmissibility for abused immigrants. There is a waiver of the ground of inadmissibility for reentering the U.S. without inspection following a one-year period of unlawful presence or after having been ordered removed. This waiver is available to individuals who can establish a connection between the abuse they suffered and their departure or reentry.

There is also a waiver of the ground of deportability for having a conviction for a crime of domestic violence or for violation of a protective order, if the abused immigrant can show that she was not the primary perpetrator of violence in the relationship. She must also show that she was acting in self-defense or that the crime did not result in serious bodily injury and was connected to the abuse that the immigrant suffered.

The act makes available to abused immigrants the INA's waivers for certain criminal grounds (§ 212(h)), fraud or misrepresentation (§ 212(i)), and health grounds (§ 212(g)). Expanding the availability of these waivers was considered necessary because they had been limited to spouses of U.S. citizens or LPRs. Abused immigrants may no longer have such a relationship.

Public charge. The act amends the public charge ground of exclusion to provide that cash or other benefits received pursuant to 8 U.S.C. section 1641(c) (which permits VAWA beneficiaries to obtain cash and other government assistance in connection with their escape from domestic violence) may not be considered in public charge determinations.

Changes to Cuban Adjustment Act, NACARA, and HRIFA. The act also amends the Cuban Adjustment Act, the adjustment of status provisions of the Nicaraguan Adjustment and Central American Relief Act (NACARA), and the Haitian Refugee Immigration Fairness Act (HRIFA). These amendments allow abused spouses or children who are dependents of individuals eligible for relief under these laws to adjust their status, without having to reside with the principal or maintain the relationship. Under the act, persons who become LPRs through VAWA may also apply for naturalization after they have resided in the U.S. in LPR status for three years.