The Immigrant Rights News Update; a publication of HEATHER L. POOLE, PC, Professional Law Corporation, © 2002-2004.

The Immigration & Naturalization Service (INS) recently announced that the names of more than 300,000 aliens who disappeared after being ordered deported will be entered in a crime database run by The National Crime Information Center so local police can help track them down. 

The implications and danger for this new strategy are widespread, especially for battered immigrant women who were ordered deported and failed to depart because of children in the U.S. or because they were fleeing from their abuser here or abroad.  With the police cooperating, aliens could be swiftly detained at routine traffic stops.

It is vital that any immigrant who has failed to depart after a final order of deportation carry with them the phone number of a deportation attorney at all times in case this happens.  For battered immigrants, it is also crucial to be represented by an attorney who is familiar with the special motion to reopen deportation proceedings option for battered immigrants and VAWA-based waivers for cancellation of removal or suspension of deportation, whichever is applicable. 

Practice Tip: “Adjustment of Status” Substituting approved battered immigrant self-petition for spouse-sponsored immigrant  petition to maintain existing Adjustment of Status Application at local district office.

At the Los Angeles INS district office, adjudicators  (through help of their VAWA liaison adjudicator) are allowing the substitution of an approved battered
spouse immigrant visa petition (Form I-360) for the existing I-130, spouse-sponsored immigrant visa petition, at the green card interview stage.  By
allowing this rarely used procedure enunciated in a May 9, 2000 INS Field Operations memorandum, the individual adjudicator allows the I-485, Adjustment of Status Application (Form 485, for permanent residency)
filed with the original spouse-sponsored immigrant visa petition to continue but instead, attach itself to the approved battered spouse immigrant visa.

The benefits of this strategy are significant. First, once the substitution has taken place, the battered immigrant does not have to worry that her husband
will withdraw his sponsorship of the I-130 at the interview or will fail to show up at the green card interview.  Once the local district office adjudicator is informed of the existing I-360 approval, the adjudicator is not only barred from discussing the matter with the abusive husband/wife and can be held civilly liable, but also knows to maintain the 485 application despite the abuser’s comments or wishes.  In some districts, including, often times, the Los Angeles office, adjudicators will allow the substitution of the I-360 for the I-130 at the time ofthe green card interview even if the I-360 is still pending with the Vermont Service Center. 

This substitution of a pending I-360 may not work with your local office (there are reported problems with midwest and southern offices).  If the adjudicator
refuses to comply with your request and fails to continue the adjustment while waiting for the I-360 approval, ask to speak to a supervisor and explain the violence inflicted and the hold the abuser maintains on the alien by holding her immigration status in peril. If this is still a problem, contact us so we can report this to the national INS trainer educating local officers about VAWA. 

If the 485 is denied because of the abuser’s absence at the 485 interview or due to the abuser’s withdrawal of his sponsorship, there are still two viable options left for a self-petitioner: (1) try to get the 485 case reopened through a motion to reopen (within 30 days of denial) based on misapplication of the law; or (2) file new 485 based on approved 360.  If the second option is the only viable option for your district, rest assured that the battered immigrant remains protected and can still obtain her green card without the abuser’s support, consent and, often, knowledge.

Of course, the main drawback to filing a new 485 application is that the battered immigrant has to get in line for a green card interview, which in some district is taking years (depending on the priority date and if self-petitioner was a spouse of a LPR or USC). This, in turns, causes the battered immigrant to have to repeatedly apply for advance parole (if she wishes to travel abroad) and work authorization (EAD card).  Last but not least, the longer process deters many battered immigrants from moving emotionally and mentally on from their abusive relationships as closure takes so long and her immigration status fears remain.

On January 2, 2002, INS Field Operations issued internal guidance on the adjudication and interpretation of the amendments to VAWA contained in the Trafficking Act to, which allows divorced survivors of abuse to still self-petition as a battered spouse.

Prior to the enactment of this amendment to VAWA, a divorced spouse was ineligible to file for a self-petition as a battered spouse.  The new provision allows a divorced spouse who was subject to extreme cruelty from his or her LPR or US citizen spouse to self-petition for an immigrant visa as a battered spouse if the marriage was terminated during the two-year period immediately preceding the filing of the self-petition and the battered spouse can prove that the extreme cruelty suffered led to or caused the divorce.  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.  In its recent statements, INS Office of Field Operations’ Executive Associate Commissioner, noted,

While a copy of the self-petitioner’s final divorce decree (with date issued) shall be required in every case where divorce is an issue, the Service will not require that the divorce decree specifically state that the termination of the marriage was due to domestic violence.”

This provision allowing for divorce spouses to file applies to all cases pending on or filed on or after October 28, 2000.  INS adds, however, that

[A] self-petitioner whose petition was denied prior to October 28, 2000, on the sole ground that s/he became divorced prior to the date her/his self-petition was filed, may file a motion to reopen with the Vermont Service Center if /she can demonstrate that her/his divorce occurred within the two year period immediately preceding October 28, 2000 (i.e., on or after October 28, 1998).

Potential applicants for the U visa may qualify for interim relief in the form of deferred action status, which allows for work authorization and a legal right to stay in the U.S. until the U visa is available for issuance.  However, there are two opposing camps of opinion within INS as to the scope of who is eligible for the U visa and thus, whom the practitioner should consider as an applicant for interim relief.  Since a significant segment of INS seek an extremely narrow interpretation of the U visa, it is wise to only pursue interim relief for a potential victim and applicant for the U if the following is demonstrated by concrete evidence:

(1)     the criminal activity that victimized the applicant took place in U.S. or violated the laws of the U.S.   The narrow interpretation of this requirement would also mandate that the criminal activity took place fairly recently (i.e., the safest bet is for the crime to have taken place after the U visa was created by statute on October 28, 2000), is a clear criminal violation of a state statute, and that the U applicant is a direct victim of a crime listed in the statute;

(2)   the applicant suffered “substantial physical or mental abuse” resulting from the criminal activity. What constitutes “substantial” abuse is undefined at this time but the safest bet would dictate that corroborating evidence by witnesses, domestic violence advocate(s), and psychologists demonstrate the level of the abuse and directly relate it to the criminal activity.  This evidence should be highly detailed and explain why this is credible from the viewpoint of someone who interviews hundreds of victims.

(3)     the applicant possesses information concerning the criminal activity; and

(4)     the applicant has a certificate or other affirmation by a designated official that she “has been helpful, is being helpful, or is likely to be helpful” to an investigation or prosecution of the criminal activity. It is crucial to gain this credible evidence NOW as law enforcement is busy or may not be able to remember specifics of the applicant’s help in an investigation or prosecution. (Without regulations, it is much riskier to assume that the applicant’s help was useful to a potential as opposed to an actual investigation or prosecution.) 

If the applicant cannot meet the above narrow requirements, it is extremely risky to put forth an argument of the applicant’s eligibility for interim relief if the applicant is already out of status due to the eventual possibility that the applicant will not qualify for the U visa and will thus be exposed to INS and deportation.  If you think you may qualify for the U visa or interim relief, contact us for more information and analysis of the risk posed in your particular case.

Holding the client’s passport hostage prevents the client from traveling and leaving his/her abuser; this is exactly why so many abusive spouses grab passports.

Preventing your immigration documents from being lost or stolen.  If it is feasible, keep your original I-94 (lawful entry stamp), passport, birth certificate, criminal background check, marriage license, and advance parole in a place where no one else has access to them without your permission.  A safety deposit box is the best place for this, if you can afford the minimal monthly bank charge.  These boxes usually come with a small key that you can, most times, easily hide. 

We mention this because we constantly come across clients whose spouse has taken the client’s passport and refuses to give it back unless she does exactly what he tells her to do.  Holding the client’s passport hostage prevents the client from traveling and leaving his/her abuser; this is exactly why many spouses grab passports. Thus, it is not always best to keep the passport and advance parole documents in the house.  If you do not live with an abusive partner or husband but are fleeing from one, you should opt for a small portable safe or keep your documents with a friend whom you trust.  Your safety should not be in danger because you fear what your spouse or partner will do with your immigration documents.  

What to do when your immigration documents are lost or stolen.  If you or your husband/wife who is sponsoring your spouse-based petition and application for a green is represented by an immigration attorney, you have a legal right to a copy of the all the documents in your file at the attorney’s office. The attorney must provide you with a copy of your file within a reasonable time.  Typical documents in your case file include copies of all 797 INS receipt notices as well as your I-94 card, birth certificate, police background check, and passport pages.  Immediately request a copy of your file from your immigration attorney so you copies of these vital documents in case you ever lose your passport or other originals or after they are lost.  Doing so will help facilitate new originals of these documents.  If you have lost your original I-94 card (evidence of lawful entry into the U.S.), you can file Form I-102 with the Immigration Service for a replacement and pay the $100 INS government filing fee (this new fee is effective as of 2/15/02). Contact us for more information on this service.

Contact your home country’s (or country that issued your lost passport) embassy for the procedures for applying for a new passport.  Many embassies are located in Los Angeles. Some embassies take a few weeks, others a few months.  Remember, do not travel without a valid passport or valid advance parole document if you have a pending adjustment of status application, especially if you wish to re-enter the U.S.

Photocopy the contents of your wallet, taking copies of both sides of each license, credit card, and social security card.  Keep these copies in a safe place at home or in a safe deposit box (take above mentioned concerns into account).  If your wallet is ever lost or stolen, you will be able to more efficiently prevent fraudulent activity in your name that could ruin your credit and change your driving record or put your personal identity, such as your home address, in the hands of strangers.

By keeping these copies around, you can easily call the credit card customer service number listed on the back of most cards as well as the credit card numbers to stop unauthorized charges.  File a police report immediately in the jurisdiction where it was stolen (you do not have to show documentation of your current immigrant status to the police).  Filing a police report proves to credit providers that you were diligent and often acts as the first step in an investigation by a credit bureau.

Also, call the three national credit reporting organizations immediately to place a fraud alert on your name and social security number (if you have one).  This will prevent anyone from opening new accounts in your name as the bank encountering the new application will have an alert on their system from the credit bureau, informing the bank that your information was recently stolen.  The numbers for the most used credit bureaus are: Equifax 1-800-525-6285; Experian (formerly TRW) 1-888-397-3742; Trans Union 1-800-680-7289.  Further, California Senate Bill 125, signed into law January 1, 2002, allows victims of identity theft to receive, or designate law enforcement to receive, requests for credit or other accounts that have been made in the victim’s name.

Because of the increased security and suspicion due to the recent terrorist attacks on U.S. soil, if you are an immigrant with lawful status, do not schedule any Consular interview or business or pleasure trips that are not essential.  Take advantage of visa revalidation through the US State Dept if you are eligible to avoid travel.  If you must travel abroad, only do so if you have every document in order. . .

If you must travel abroad, only do so if you have every document in order: (1) your passport should be valid for at least 6 months beyond your expected date of return to the U.S.; (2) your visa stamp should be valid; (3) for those traveling with advance parole, make sure that the parole document supports multiple entries.  

If you are traveling on business, carry a letter from your employer on employer’s letterhead with you explaining the reason for your trip and carry any evidence of your employment in the U.S. 

If you are planning on obtaining your visa at a Mexican consulate, be prepared for a 30 day delay in processing as nationals of certain countries who were previously required to obtain a visa to enter Mexico will now have their applications sent to the Ministry of Immigration in Mexico City for review before the visa will be issued. The Mexican government is applying added security to those applications due to September 11^th.

For the latest travel advisories & closed embassy and consulate notifications, access www.travel.state.gov.

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