(G)  Domestic Violence Conviction Waiver.  Congress added a waiver for victims of domestic violence who themselves are deportable under INA § 237(a)(2)(E)(i) or (ii).[43]  This waiver applies to waive the DV conviction disqualification from cancellation for non-LPRs or VAWA special rule cancellation.[44]  Moreover, if the DV conviction is also a CMT conviction, this waiver apparently waives the Good Moral Character bar for cancellation for non-LPRs based on the conviction as well, or at least bars a discretionary finding of lack of Good Moral Character based on the conviction.[45]  See § 24.26(D), infra.

 

                While this waiver was enacted as part of the Violence Against Women Act, it applies in favor of any noncitizen, not just VAWA applicants, provided its eligibility requirements are met.

                (1)  Offenses that may be Waived. The waiver may be used to waive deportability on account of: (1) any conviction of a crime of domestic violence;[46] (2) any conviction of stalking,[47] or (3) any court finding that a domestic violence protection order has been violated.[48]  This waiver is not available to waive deportability on account of a conviction of a crime of child abuse, child neglect, or child abandonment.[49]  There is no limit to the number of qualified offenses that can be waived.  For example, deportability for five convictions of crimes of stalking or domestic violence can be waived if the eligibility requirements for this waiver are met. The noncitizen may still be deportable if one or more of the domestic violence offenses also triggers a separate ground of deportability, since this waiver waives deportability only under the grounds triggered by a domestic violence conviction[50] or court finding of TRO violation.[51]

 

                (2)  Eligibility for the Waiver. This waiver is available to a noncitizen “who has been battered or subjected to extreme cruelty and who is not and was not the primary perpetrator of violence in the relationship . . . .” upon a finding any one of the following facts:

 

                (a) the applicant acted in self-defense;

 

                (b) the applicant was found to have violated a protection order intended to protect him or her; or

 

                (c) the applicant committed, was arrested for, was convicted of, or pleaded guilty to committing a crime that did not result in serious bodily injury, and there was a connection between the crime and the applicant’s having been battered or subjected to extreme cruelty.

 

The waiver is available to an applicant who has been battered or subjected to extreme cruelty, even if the abuser was not arrested or convicted of a domestic violence offense.  Furthermore, the waiver applies if there was any connection between the crime and the applicant’s having been battered, even if that connection is slight.  The Attorney General is required to consider any credible evidence in support of the application.  Because most domestic violence convictions result from altercations in which each of the parties strikes some blow, this waiver may be widely available to excuse deportability on account of many common domestic violence convictions.

[43] INA § 237(a)(7)(A), 8 U.S.C. § 1227(a)(7)(A), added by the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006).

[44] INA § 240A(b)(5), 8 U.S.C. § 1229b(b)(5).

[45] Ibid.

[46] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[47] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[48] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

[49] INA § 237(a)(7)(A), 8 U.S.C. § 1226(a)(7)(A).

[50] INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i).

[51] INA § 237(a)(2)(E)(ii), 8 U.S.C. § 1227(a)(2)(E)(ii).

Other

DOMESTIC VIOLENCE - IMMIGRATION EFFECTS - BAR TO NON-LPR CANCELLATION
Brady, "Defense Strategies: Matter of Almanza Arenas" at www.ilrc.org/criminal.php or in July 2009 Benders Immigration Bulletin.