Questions and Answers for Abused Immigrants
I have heard of protective orders. What do they do?
A protective order can prohibit the abuser from contacting, attacking, sexually assaulting, or telephoning you, your children, and other family members. Along with this protective order, in most states you can also ask for custody of your children, child support, and exclude the abuser from your home. For a protective order to be effective, you must be willing to call the police to enforce it.
Can I get a protective order even if I am not a U.S. citizen?
YES. You do not need to be a citizen or legal permanent resident to get a protective order. Civil courts generally do not ask about a woman’s immigration status when she asks for a protective order, a child custody order, or a dissolution of an abusive marriage. We can advise you on the policy of the court within your area.
Should I contact an attorney if I have questions about my immigration status?
YES. If you are not sure about your immigration status, do not go to the INS without a lawyer or without consulting a lawyer about your immigration status. If you choose our representation, your conversations with us or any other attorney who represents you, will be confidential and we will not report you to the INS.
Can I get a divorce, if I am not yet a legal permanent resident and my husband or wife is not willing to sponsor me?
Perhaps. A divorced spouse who was subject to extreme cruelty from his or her legal permanent resident or U.S. citizen spouse may apply for an immigrant visa as an abused spouse if the petition is filed with CIS (INS) within 2 years following any final divorce decree. Thus, if you are already divorced, you can still file for VAWA protection, but only if your divorce is 2 years old or less at the time you file and can prove that the abuse was related to the reason for or was the reason for the divorce, itself. The divorced battered spouse must still prove the basis elements of a VAWA self-petition including bona fide marriage as well as prove that s/he lived with the abuser when they were married at some point.
This provision allowing for divorce spouses to file applies to all cases that are pending on or filed on or after October 28, 2000. There are exceptions to this date, however, so if this situation applies to you, contact an immigration attorney who regularly deals with VAWA (Violence Against Women cases) to determine if you are eligible to file for immigration protection.
If I am a lawful permanent resident or legal refugee, will a divorce or separation affect my immigration status?
If you have nonconditional permanent resident status or are a legal refugee, your legal statusmay not be affected. However, you should keep the following items to show that your marriage was real and not entered into only for immigration purposes: a lease or mortgage showing that you share a home or apartment; joint bank accounts or other joint financial records, any love letters, photos and cards from the wedding, photos of you and your husband or wife as a couple, and phone numbers and addresses of friends who knew you as a couple.
If I am a conditional permanent resident, will a divorce or separation affect my immigration status?
If you are a victim of battery or extreme cruelty and you have obtained conditional residency based on your marriage, you should still be able to keep lawful immigration status. If your husband will not cooperate in removing your conditional status, you can ask for a waiver, where his consent or participation is not needed.
My husband is threatening to take my children away if I leave him. What can I do?
If your husband/intimate partner is threatening to take your children away or take them to his home country, you should:
1. Immediately get a custody order. The order can include an order to prohibit your husband/intimate partner from removing the children from the country in which you live.
2. If the children are U.S. citizens, send a copy of this order to the embassy of your husband’s/intimate partner’s home country and a copy to the U.S. Department of State (Office of Passport Services, (202) 326-6168) to prevent the issuance of passports and visas for the children.
3. Give a copy of the order to the children’s schools and tell the schools not to release the children to anyone but yourself.
4. Make sure that you have recent photos, passports, and birth certificates for the children. Keep a list of addresses and phone numbers of your husband’s/intimate partner’s friends and relatives in his home country.
Will I be deported if I take any of the above actions?
If you are now a U.S. citizen, lawful permanent resident or possess a valid visa, you cannot be deported unless you entered the U.S. on fraudulent documents, violated conditions of your visa, or have been convicted of certain crimes.
If you are undocumented or are unsure about your immigration status, contact us or another reputable immigration attorney to determine if there is some way to legalize your immigration status. Until then, you should do what you need to do to make yourself safe, even if this means moving into a temporary shelter or a friend’s house or contacting the police for assistance. Even if your husband/intimate partner were to report you to the INS, all hope is NOT lost as deportation may not follow, would not be immediate, and you would have the opportunity to present your case to a judge.
Will my husband/intimate partner be deported if I take action?
Seeking assistance from shelters, hospitals, or lawyers is extremely unlikely to result in the deportation of your husband/intimate partner. If you contact the police and your husband/intimate partner is convicted of a crime, he may be deported, depending on his immigration status and the seriousness of the crime.
It is important to remember that you must keep yourself and your children safe. It is your husband/intimate partner that has put himself at risk by his actions.
HEATHER L. POOLE, PC, Professional Law Corporation
Private Immigration Attorney Assistance
Case Evaluation Appointmentss (English & Spanish language)
Immigration Assistance Line(San Francisco)
415.554.2444 (English & Spanish)
415.554.2454 (Cantonese, Mandarin, Vietnamese)
National Coalition Against Domestic Violence
303.839.1852 (referrals to shelters, resources)
National Lawyers Guild
National Immigration Project
Family Violence Prevention Fund
Bldg. 1, Suite 200, 1001 Potrero Avenue
San Francisco, CA 94110
Parts of the above was adapted from the Family Violence Prevention Fund’s “Questions and Answers for Battered Immigrant Women” brochure, which is reproduced with permission. Answers were supplemented with comments by Attorney Heather L. Poole.