(A)

Self-Petitioning.  A noncitizen spouse or child can “self-petition” (file a visa petition for adjustment of status for him- or herself, without any citizen or permanent resident’s sponsorship) if s/he can show that “during the marriage, the alien or a child of the alien has been battered by or has been the subject of extreme cruelty perpetrated by the alien’s spouse.”[446]

 

            The 2005 VAWA reauthorization bill adds a definition of “self-petitioner” to the INA, which includes persons eligible under the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act of 1998, and the Nicaraguan Adjustment and Central American Relief Act, who have been battered or subjected to extreme cruelty.[447] 

 

A self-petitioner must demonstrate that s/he is a person of Good Moral Character.  An aggravated felony conviction obtained after November 29, 1990 is a permanent bar to finding Good Moral Character.  See § 3.14, supra.  Commission of an aggravated felony arguably will not bar a finding of Good Moral Character for VAWA purposes, however, if the conviction can be waived for purposes of deportability (e.g., through former INA § 212(c)), or inadmissibility (e.g., through INA § 212(h)), and if the commission of the act was connected to the noncitizen’s having been battered or subjected to extreme cruelty.  Note that VAWA 2000 also removed from certain waivers the requirement that the applicant show extreme hardship to the spouse.[448]  Therefore, a VAWA applicant can apply for a waiver of inadmissibility under INA § 212(h), for example, without proving hardship to the spouse.  A grant of the waiver will avoid both the ground of inadmissibility and the bar to showing Good Moral Character.  VAWA relief is not available to a person who entered the United States via the Visa Waiver Program.[449]

[446] INA § 204(a)(1)(A)(iii)(bb), 8 U.S.C. § 1154(a)(1)(A)(iii)(bb). 

[447] Violence Against Women and Department of Justice Reauthorization Act of 2005 § 811, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006) (adding INA § 101(a)(51), 8 U.S.C. § 1101(a)(51)).

[448] See INA § 212(g)(1), 8 U.S.C. § 1182(g)(1) (health grounds); INA § 212(h)(1), 8 U.S.C. § 1182(h)(1) (certain criminal grounds); INA § 212(i), 8 U.S.C. § 1182(i) (visa fraud); INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H) (visa fraud). 

[449] 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).

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).

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).

Eleventh Circuit

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