(C)  Domestic Violence Waiver.  VAWA 2000 added a waiver for victims of domestic violence convicted of certain domestic violence offenses and deportable under INA § 237(a)(2)(E).  See § 2.46(G), infra.  This waiver can also be used to avoid being barred from cancellation of removal for non-lawful permanent residents, and special VAWA cancellation.[446]  This waiver waives the crime and, in the case of non-LPR cancellation, the Good Moral Character bar caused by the crime.[447] 

 

An applicant for the waiver must show that s/he was not the primary perpetrator of the violence in the relationship.  The waiver is applicable where the noncitizen was acting in self-defense, violated a protection order intended to protect him or herself, or was convicted of a domestic violence offense that did not result in serious injury and there was a connection between the crime and the noncitizen’s having been battered or subjected to extreme cruelty.  The Attorney General is required to consider any credible evidence in support of the application.

[446] See INA § 240A(b)(5), 8 U.S.C. § 1229b(b)(5), added by the Violence Against Women and Department of Justice Reauthorization Act of 2005 § 813(c), Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006).

[447] Id.

BIA

RELIEF " VAWA
Matter of Pagan-Sis 27 I&N Dec. 130 (BIA 2017) (noncitizen seeking waiver under INA 212(a)(6)(A)(ii) must satisfy all three subclauses of that section, including the requirement that the noncitizen be a VAWA self-petitioner).

RELIEF - WAIVERS - CANCELLATION OF REMOVAL FOR BATTERED SPOUSES APPLIES TO LPRS AS WELL AS NON-LPRS
Matter of AM, 25 I. & N. Dec. 66 (BIA Sept. 21, 2009) (notwithstanding the heading of INA 240A(b), 8 U.S.C. 1229b(b) (2006), which only refers to nonpermanent residents, a lawful permanent resident who qualifies as a battered spouse may be eligible to apply for cancellation of removal under INA 240A(b)(2)). http://www.usdoj.gov/eoir/vll/intdec/vol25/3653.pdf

RELIEF - WAIVERS - CANCELLATION OF REMOVAL FOR BATTERED SPOUSES - FACTORS TO BE CONSIDERED
Matter of AM, 25 I. & N. Dec. 66 (BIA Sept. 21, 2009) (given the nature and purpose of the relief of cancellation of removal for battered spouses under INA 240A(b)(2), such factors as a noncitizen's divorce from an abusive spouse, remarriage, and previous self-petition for relief based on the abusive marriage are relevant in determining whether an application for that relief should be granted in the exercise of discretion). http://www.usdoj.gov/eoir/vll/intdec/vol25/3653.pdf

Third Circuit

RELIEF - VAWA CANCELLATION OF REMOVAL
Johnson v. United States Atty Gen., __ F.3d __ (3d Cir. Apr. 16, 2010) (court lacks jurisdiction to review discretionary determination on whether VAWA cancellation of removal applicant has shown that he suffered extreme cruelty inflicted by his spouse).

Fifth Circuit

RELIEF - VAWA CANCELLATION
Wilmore v. Gonzales, 455 F.3d 524 (5th Cir. Jul. 5, 2006) (court of appeals lacks jurisdiction to review whether Petitioner was subjected to "extreme cruelty" for purposes of the battered spouse provision in 8 U.S.C. 1229b(b)(2)). http://caselaw.lp.findlaw.com/data2/circs/5th/0560467cv0p.pdf

Seventh Circuit

RELIEF - VAWA CANCELLATION - VAWA
Benaouicha v. Holder, 600 F.3d 795 (7th Cir. Apr. 6, 2010) (noncitizen convicted of a crime of moral turpitude is ineligible for VAWA cancellation, even if good moral character can be shown).

JUDICIAL REVIEW - PETITION FOR REVIEW - NO JURISDICTION OVER VAWA CANCELATION EXTREME CRUELTY DETERMINATION
Stepanovic v. Filip, 554 F.3d 673 (7th Cir. Jan. 28, 2009) (VAWA cancellation "extreme cruelty" determination is within the discretion of the Attorney General; therefore the court lacks jurisdiction to review under 8 U.S.C. 1252(a)(2); over petition for review of BIA holding noncitizen ineligible for VAWA cancellation of removal, under INA 240A(b)(2), 8 U.S.C. 1229b(b)(2), for determining he was not subjected to extreme cruelty; BIA correctly applied the "extreme cruelty" legal standard in requiring petitioner show psychiatric or medical documents, or other evidence). See also Wilmore v. Gonzales, 455 F.3d 524, 528 (5th Cir. 2006); Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir. 2005). But see Hernandez v. Ashcroft, 345 F.3d 824, 833-35 (9th Cir. 2003).

Eighth Circuit

RELIEF - CANCELLATION - VAWA - TIMELINESS
Arellano-Hernandez v. United States, 564 F.3d 906 (8th Cir. May 5, 2009) (VAWA special rule cancellation is an application for relief separate from non-LPR cancellation; VAWA application was untimely when filed after deadline for relief filed by IJ, even though non-LPR cancellation application had been timely filed).

Tenth Circuit

VISA WAIVER PROGRAM - VAWA
Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. Jun. 20, 2006) (noncitizens who enter on the visa waiver program waive all rights to contest removal or appear before an immigration judge, except to apply for asylum; VAWA applicant who entered through Visa Waiver Program and overstayed therefore cannot adjust). http://laws.lp.findlaw.com/10th/041436.html

Eleventh Circuit

VAWA " JUDICIAL REVIEW " BATTERED SPOUSE
Butalova v. Atty Gen., __ F.3d __ (11th Cir. Oct. 7, 2014) (court lacks jurisdiction to determine whether noncitizen is a battered spouse, under INA 204(a)(1)(A)(iii)).

RELIEF " VAWA " SPECIAL-RULE CANCELLATION
Bedoya-Melendez v. U.S. Atty General, 680 F.3d 1321, (11th Cir. May 17, 2012) (whether noncitizen was battered or subjected to extreme cruelty, as required to be eligible for VAWA special rule cancellation of removal, was not a question of law, such as the Court of Appeals had jurisdiction to consider, but unreviewable discretionary determination).

Other

RELIEF - VAWA - RESOURCES
Ann Benson, Directing Attorney, Washington Defender Associations Immigration Project, Overview of Immigration Consequences of Criminal Conduct for Immigrant Survivors of Domestic Violence (Sept. 2004) http://www.immigrationadvocates.org/library/item.181220-Overview_of_Immigration_Consequences_of_Criminal_Conduct_for_Immigrant_Surv

RELIEF - VAWA
BORDER CROSSINGS: UNDERSTANDING THE CIVIL, CRIMINAL, AND IMMIGRATION IMPLICATIONS FOR BATTERED WOMEN FLEEING ACROSS STATE LINES WITH THEIR CHILDREN
By Catherine F. Klein, Leslye E. Orloff & Hema Sarangapani. 39 Fam. L.Q. 109, Spring 2005. "This article will provide an overview of the impact of state criminal parental kidnapping or custodial interference statutes on immigrant survivors of domestic violence who already have left or wish to leave their state with their children." http://bibdaily.com/pdfs/Border%20Crossings%2039_Fam_L_Q_109.pdf