CHAPTER TWENTY-ONE Removal of Conditions Waiver Based on Domestic Violence

Transcription

1 CHAPTER TWENTY-ONE Removal of Conditions Waiver Based on Domestic Violence In 1986 congress amended the Immigration and Nationality Act (INA) to deter immigration-related marriage fraud. The Immigration Marriage Fraud Amendments of 1986 amended the INA to establish a two-year conditional permanent resident status for immigrant spouses and their children who had been married for less than two years at the time the status was granted. Ninety days prior to the expiration of the status the couple must jointly file a petition to remove the restrictions on the status. Unfortunately, this also created a dangerous situation where some conditional permanent residents became trapped in violent relationships. As a result of this problem, the Immigration Act of 1990 was passed to protect these victims of domestic violence. 1 T he Immigration Act of 1990 created a waiver for conditional permanent residents subjected to physical violence or extreme cruelty, remedying the problems created through the Immigration Marriage Fraud Amendments of The waiver allows the battered immigrant to file a selfpetition to remove the conditions on her status without the assistance of her spouse Under the discretion of the Attorney General, conditional permanent residents can self-petition and have the conditional basis of their permanent resident status removed based on the following hardship waivers (see INA 216(c)(4)): A. The marriage was entered into in good faith, but the U.S. citizen spouse has died. B. Extreme hardship would result if immigrant is removed ( INA 216(c)(4)(A)). C. The immigrant entered into the marriage in good faith, but the marriage was terminated at no fault to the immigrant ( INA 216(c)(4)(B). D. The immigrant entered into the marriage in good faith and during the marriage her spouse battered her or her child(ren) or subjected her or her child(ren) to extreme cruelty ( INA 216(c)(4)(C). For the purposes of this chapter, we will focus on (4), battery or extreme mental cruelty waivers Battery or extreme mental cruelty. Requirements for self-petition waiver based on battery or extreme mental cruelty as stated in 8 CFR 216.5(e)(3): A. Defined: was battered by or was the subject of extreme cruelty by the U.S. citizen includes, but is not limited to, the following types of abuse to the self-petitioner and/or to his/her child(ren): 1. Being the victim of any act or threatened act of violence 1 Family Violence Prevention Fund, Background on Laws Affecting Battered Immigrant Women, December 7, Updated February 2013

2 2. Psychological abuse 3. Sexual abuse or exploitation, including rape, molestation, incest (if victim is minor) 4. Forced prostitution B. A conditional resident or former conditional resident who has not departed the United States after termination of resident status may apply for the waiver. She may still reside with the spouse or may be divorced or separated. C. Evidence of physical abuse may include, but is not limited to, expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials, and social service agency personnel. The Service must be satisfied with the credibility of the sources. 1. The Service must recognize the professional as an expert in his/her field. They cannot evaluate evidence of extreme mental cruelty provided by an unlicensed or untrained individual. 2. The evaluation must contain the professional s full name, professional address and license number. It must also identify the licensing, certifying, or registering authority. The Service may verify the professional s licensing. 3. The Service s decision will be based upon the evaluation of the recognized professional. It reserves the right to request additional evaluations from expert witnesses of its choosing. The Assistant Regional Commissioner for Adjudications must authorize the Service s requests for additional evaluations. 4. Licensed clinical social workers, psychologists, and psychiatrists are professionals that the Service will recognize for these purposes Bona fide relationship. Self-petitioners must also meet the standard set forth for joint petitioners under 8 CFR 216.4(a)(5). The self-petitioner must demonstrate that the marriage was not entered into for the purpose of evading the immigration laws. Such evidence includes: A. Documentation evidencing joint ownership of property; B. Documentation evidencing joint tenancy of a common residence; C. Documentation evidencing commingling of financial resources; D. Birth Certificates of children born to the marriage; E. Affidavits of third parties having knowledge of the legitimacy of the marital relationship; or F. Other documentation establishing that the marriage was not entered into in order to evade the immigration laws of the United States The Self-Petitioner s waiver and supporting evidence (listed in order appropriate for package). Based on the standard listed above, HRI recommends the Self-petitioner s waiver be assembled in the following order: A. Cover letter. HRI will attach a cover letter to the package once it is returned to us for mailing. 2 B. Attorney Representation Form. A G-28, Notice of Appearance, must accompany the I-751 package. The attorney assisting with the case should sign the notice of appearance. If someone other than an attorney prepares the case, HRI will attach a 2 See Appendices for a sample HRI cover letter Updated February 2013

3 G-28 to the case before it is sent to CIS. The G-28 is a form used to inform CIS of attorney representation. This form gives CIS consent to mail information concerning the Self-Petitioner directly to the attorney on the G-28. A G-28 can be obtained on the CIS website at: C. I-751 Self-Petition 3. Additional forms can be found on the Citizenship and Immigration Services (CIS) website at: 1. Filing fee. The Self-Petitioner is required to pay a filing fee for the petition. She must provide a money order in the amount of $465 with an $80 fee for fingerprints, totaling $545, 4 made out to CIS (Citizenship and Immigration Services). a. Requesting a fee waiver. If the client is unable to pay the fee, she will need to request a fee waiver. Pursuant to 8 CFR (c), the following items must be submitted as evidence with the fee waiver: (1) Affidavit Requesting Fee Waiver. 5 Supporting documentation: i. Letter from petitioner s caseworker at a shelter or person petitioner is currently residing with, confirming she is dependent for housing and food assistance. ii. Supporting letter(s) for area agencies providing petitioner with assistance with any expenses. When reviewing fee waiver requests, CIS officers will consider the following factors 6 : i. Officer will note any evidence or documentation concerning applicant s living arrangements in the U.S. ii. Applicant s extraordinary expenditures for self and/or dependents. iii. Contributions from adult children and others residing in the household. 3 See Appendices for a copy of an I-751 Petition. 4 CIS filing fees may increase. You should consult with HRI for the current fee or visit the CIS w ebsite at 5 See Chapter 19 Appendices for a sample Affidavit Requesting Fee Waiver. 6 See Chapter 19 Appendices for a copy of Press Office, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Fact Sheet, USCIS Fee Waiver Guidance, 29 March Updated February 2013

4 The applicant must demonstrate an inability to pay. Officers will consider: i. Whether within the last 180 days she or her children qualified or received federal means-tested benefits. ii. The household income for the most recent tax year is at or below the poverty guidelines contained in the most recent poverty guidelines, Secretary of Health and Human Services Poverty Guidelines. The guidelines can be found online at: iii. She is 65 years old and older. iv. She or one of her dependents has some type of disability. v. The age and number of dependents in the household. vi. Any humanitarian or compassionate reasons, such as hardship caused through separation of spouse due to abuse. Please also see the DHS Fact Sheet located in the Appendices in Chapter 19 for examples of documentation which can be used to evidence the above standard. In our experience it is unlikely that the fee waiver will be denied. In instances where a fee waiver is denied, the package will be returned to the attorney of record. If this occurs, please contact HRI and we will review the matter with you. b. Mailing Address. The petition, G-28 and all of the evidence should be returned to HRI for final review and mailing. We include the mailing address only as reference: U.S. Citizenship and Immigration Services Vermont Service Center 75 Lower Weldon Street St. Albans, VT D. Supporting Affidavit 7. The affidavit is a complete account of the self-petitioner s relationship with her spouse. It is the most important piece of evidence in the case and should clearly establish both the bona fide relationship and the abuse suffered during the course of the relationship. The affidavit presents the case in a logical order and gives you control over the flow, order and emphasis of the story. The affidavit should focus on the petitioner s personal background, and especially the details of the bona fide relationship and the abuse. It should chronologically examine the relevant events in the petitioner s life. Specific events of abuse must be documented in great detail. HRI suggests the following format: 7 See the Appendixces for a sample Affidavit in support of self-petitioner s claim Updated February 2013

5 1. Paragraph summarizing client s background, including: name, name of spouse and/or child(ren), professional and education background, etc. 2. Paragraph summarizing the petitioner s case, including information such as: length of relationship, reasons she ended her relationship, and abuse experienced (culmination of abuse). This paragraph should be at the beginning of the affidavit. 3. Chronological history of the petitioner s relationship with her spouse, including: How she met her husband, dating, engagement, and life once they married. Explanation of things she and her husband did together, vacations taken as a family, holidays, birth of children, etc. The general relationship with her spouse and how she was treated overall. The abuse (psychological, emotional, physical and/or financial) she experienced during the relationship. Focus should be placed on any specific incidents of abuse that are of a serious nature, including information on their sexual relationship, if relevant to abuse. Describe any help she may have sought out during the course of her relationship (did she ever contact a religious institution, go to a shelter, or speak with a counselor?) When the conditional residence status was granted and how things changed once the status was granted. How and when she separated from her spouse. How the separation related to the abuse. Treatment of children in the household. Any telephone calls/contact with a law enforcement agency because of abuse. If you note time gaps when the self-petitioner is chronologically explaining her story, you should question the client about the time period. Gaps are not uncommon. However, they should be explained. Practice Pointer - Documenting the bona fide relationship for the two years since conditional permanent resident status was granted: Although the self-petitioner is only required to document the bona fide relationship and abuse since the conditional permanent resident status was granted, it maybe necessary to document back to the beginning of the relationship. Often times the abuse began before the conditional permanent resident status was granted. In addition, a number of our clients separate shortly after the status is granted. In these cases, the abuse and bona fide relationship should be proven back to the beginning of the relationship. This will provide the Service with a clear understanding of the client s circumstances. E. Index of Exhibits. 8 The index will include the following evidence: 8 See the Appendices for a sample Index of Exhibits Updated February 2013

6 1. Supporting Affidavit. Please see details above. 2. Evidence of Current Immigration Status and Identity. a. Copy of Self-Petitioner s Conditional Permanent Resident Card. b. Copy of Self-Petitioner s valid passport and any expired passports in her possession. 3. Copy of Self-Petitioner s Birth Certificate and translation, if necessary. A notarized Certificate of Translation 9 must accompany all translations. See 8 CFR a. Dependent children who are not U.S. citizens and are included in the petition. b. Copy of each child s Conditional Permanent Resident Card. c. Copy of each child s birth certificate and translation, if necessary. A notarized Certificate of Translation 10 must accompany all translations. See 8 CFR d. Copy of each child s valid passport and any expired passports in mother s possession. 4. Evidence of Relationship during the period after the conditional residence was granted. Note Practice Pointer above. a. Copies of Tax Returns. If she has not retained copies, she can contact the Internal Revenue Service (IRS) for duplicates. Transcripts, the quickest option, are received in only two weeks. She can call the IRS to request the transcripts at (800) or order by mail on IRS Form 4506-T Request for Transcript of Tax Return. The transcripts are available for the current tax year and the three previous tax years. For more information, visit the IRS website at: b. Copies of birth/baptismal documents for any child(ren) the couple had together. c. Copies of lease agreements, mortgage paperwork, or letter from landlord stating the couple resided together. d. Copies of car titles and/or car insurance in both names. e. Copies of household bills, such as telephone, water, electricity, credit card bills, loan payments, etc. f. Copies of life or health insurance policies in both names. g. Pictures taken together. The client should also provide a description for each picture describing the event and approximate date the picture was taken so that you can provide a typed description on the copy for the package submission. h. Cards, notes, s and/or letters from friends and relatives to the couple. The Self-Petitioner should also provide the envelope showing the card or letter was sent to via mail. 9 See the Appendices for a sample Certificate of Translation. 10 See the Appendices for a sample Certificate of Translation Updated February 2013

7 i. Affidavits from family/friends stating the Self-Petitioner entered into a bona fide marriage with her spouse. j. Cards, notes, s, and/or letters written to or from the Self-Petitioner to or from her Spouse. Note: A translation and a notarized Certificate of Translation 11 must accompany all documents that are NOT in English. See 8 CFR Evidence marriage was terminated due to battery and/or extreme mental cruelty. In instances where the abuse is noted in the divorce petition, answer, or final decree, it should be listed in the exhibits separately as proof the marriage was terminated for those reasons. Although this is not common, it is an important piece of evidence. 6. Evidence of abuse and/or extreme mental cruelty. The self-petitioner should provide as much proof of the abuse as possible. Common examples are: 21.5 Appearance of package: a. Police reports. b. Photographs of bruises, injuries or destruction of property. c. Affidavits from family and/or friends, which evidence the abuse the selfpetitioner and/or her child(ren) suffered. d. Letters from agencies/healthcare providers that possess any relevant information concerning the abuse the Self-Petitioner and/or her child(ren) have suffered. When possible the professional s curriculum vitae should be included. e. Copies of any Orders of Protection the Self-Petitioner has filed against her spouse. A. Tabs. The TSC mailroom will remove tabs contained in the package upon receipt. Therefore, we instead recommend colored paper in between each exhibit numbers. B. Highlight. All pertinent evidence in the package should be highlighted. This should include pertinent information on the passport, birth certificate, and marriage certificate as well as information on the exhibits. Do not highlight anything on affidavits. C. Hole Punched. The package should be two hole punched at the top center and pronged together. D. Paper Length. Every page in the package should be standard letter size. Do not send anything to TSC that is legal sized. All copies should be reduced to fit 8-½ x 11. E. One-sided. Each page in the package, excluding the I-751 petition, should be onesided. F. Once the package is complete. You should perform a final review of the package to confirm all requirements have been satisfied. The Removal of Conditions Pro Bono Checklist 12 should be used as a guide. Once it is finished you should make 11 See the Appendices for a sample Certificate of Translation. 12 See the Appendices for Removal of Conditions Pro Bono Checklist Updated February 2013

8 arrangements to transfer the case to HRI with a copy of the checklist. We will perform a final review and then submit the package on your behalf Receipt Notice and one year extension of status. 13 Once the package is filed, you will receive a receipt notice from TSC which automatically extends the Self-Petitioner s conditional permanent resident status for one year. This notice is extremely important because it extends the Self-Petitioner s employment authorization and travel authorization while the petition is pending. You must give the original notice to the client and retain a copy for your records. You should also forward a copy of the receipt notice to HRI. HRI does not recommend the Self-Petitioner travel outside of the United States until after her conditions are removed. If your client has any questions about travel, please refer her to HRI Issuance of Request for Evidence. Normally if there is a question about the case it is transferred to the local district office for interview (see below). However, if in the alternative you receive a Request for Evidence (RFE) instead, please contact HRI for assistance. The RFE is a specific request for additional evidence and will specify the exact item(s) requested and a deadline for the submission Transfer to the local district office and interview. The majority of the waivers are forwarded to the Dallas District Office for an interview. This is so an officer can question the Self-Petitioner directly about the evidence contained in the file. HRI will assist you in preparing for the interview once it is set. Please contact HRI if your client is scheduled for an interview. In a small number of cases, the TSC will review the petition and grant it without an interview. This is at their discretion and is unlikely given the nature of the case type Case Outcome. A. Granted. 14 Conditions are removed and lawful permanent resident status is granted from the initial date the conditional resident status was granted. The client will be told to report to the Dallas District Office to be processed for her new Lawful Permanent Residence Card. She will be eligible to file for naturalization three years from the date her original conditional residence was granted. B. Denial. Although to date HRI has not had any waivers denied, it is always a possibility. If this occurs the District Director will provide reasoning for the denial. The Self-Petitioner s status will be terminated and she will be placed into removal proceedings. There is no appeal for this denial. However, the immigration judge has the discretion to review the decision during the removal proceedings. In this instance, the client must prove the District Director s decision was improper. 13 See the Appendixes for a sample receipt notice. 14 See the Appendixes for a sample approval notice Updated February 2013

9 CHAPTER TWENTY-ONE Removal of Conditions Based on Domestic Violence Index of Appendices Appendix 21-A Appendix 21-B Appendix 21-C Appendix 21-D Appendix 21-E Appendix 21-F Appendix 21-G Appendix 21-H Appendix 21-I Appendix 21-J Appendix 21-K Appendix 21-L Blank G-28 Attorney Representation Form Blank I-751 Petition to Remove Conditions on Residence Sample Certificate of Translation I-751 Checklist Sample Cover Letter Sample Affidavit Sample Index of Exhibits Sample Receipt Notice and One-Year Extension of Status Sample Lawful Permanent Residence Approval Notice U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Interoffice Memorandum, Delegation of Authority for I-752, Petition to Remove Conditions on Residence, January 30, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Interoffice Memorandum, Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence, June 24, U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Memorandum for All Interim Regional Directors, All Interim Service Center Directors, All Interim District Directors, BCIS, Extension of Status for Conditional Residents with Pending Forms I-751, Petition to Remove Conditions on Residence, December 2, Updated February 2013

10 Appendix 21-M U.S. Department of Justice, Immigration and Naturalization Service, Memorandum for Regional Directors, Service Center Directors, District Directors, filing a Waiver of the Joint Filing requirements Prior to Final Termination of the Marriage April 10, Updated February 2013

11 21-11 Updated February 2013 Appendix 21-A

12 21-12 Updated February 2013 Appendix 21-B

13 21-13 Updated February 2013 Appendix 21-B

14 21-14 Updated February 2013 Appendix 21-B

15 21-15 Updated February 2013 Appendix 21-B

16 21-16 Updated February 2013 Appendix 21-B

17 21-17 Updated February 2013 Appendix 21-B

18 Appendix 21-C SAMPLE CERTIFICATE OF TRANSLATION Pursuant to 8 CFR , I certify that I am competent to translate the attached document from to English and that the translation is true and accurate to the best of my abilities. I further certify that I have accurately translated the following attached document from to English: INDICATE THE NAME OF ITEM Signature: Date: Name: (Print) Phone (Day): (Evening): Address: 2007 SWORN TO AND SUBSCRIBED BEFORE ME THIS DAY OF, NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS [Stamped Notary Seal] Updated February 2013

19 Appendix 21-D REMOVAL OF CONDITIONS CHECKLIST Pro Bono Volunteer: Client Name: According to CIS, all the items below must be completed, no exceptions, before they will accept a package for processing. Failure to complete one or more of the items will result in CIS returning the package without processing. Therefore, please use this checklist as a guide when completing the package. I have completed every question on the I-751 petition, leaving no blanks and have placed N/A, Unknown, or None in all unanswered questions. My client has signed the I-751 petition on page 2. I have signed the I-751 petition as the preparer on page 2. If I am an attorney, my client and I have signed a G-28. I provided evidence of the petitioner s identity, such as a birth certificate (passport does not evidence identity). I provided a copy of the client s valid passport and conditional residence card. I provided evidence of battery and/or extreme mental cruelty. I provided evidence of the client s bona fide relationship with her spouse. I prepared an Affidavit. The affidavit is signed, notarized and in the package. I highlighted all the information in the research that I feel is relevant to the CIS officer. I included the filing fee. I included an Affidavit of Translation for each document not in English pursuant to 8 CFR I prepared an exhibit list. I hole punched the package. I only used 8 ½ x 11 sized paper. Dependent chil(ren) with conditional resident status: I attached 2 passport style photos of each dependent child to pg. 1 of the I-751 petition Updated February 2013

20 Appendix 21-D I provided evidence of the child s identity, such as a birth certificate (passport does not evidence identity). I provided a copy of the child s valid passport and conditional residence card Updated February 2013

21 21-21 Updated February 2013 Appendix 21-E

22 21-22 Updated February 2013 Appendix 21-F

23 21-23 Updated February 2013 Appendix 21-F

24 21-24 Updated February 2013 Appendix 21-F

25 21-25 Updated February 2013 Appendix 21-F

26 21-26 Updated February 2013 Appendix 21-F

27 21-27 Updated February 2013 Appendix 21-G

28 21-28 Updated February 2013 Appendix 21-G

29 21-29 Updated February 2013 Appendix 21-H

30 21-30 Updated February 2013 Appendix 21-I

31 21-31 Updated February 2013 Appendix 21-J

32 21-32 Updated February 2013 Appendix 21-J

33 21-33 Updated February 2013 Appendix 21-K

34 21-34 Updated February 2013 Appendix 21-K

35 21-35 Updated February 2013 Appendix 21-K

36 21-36 Updated February 2013 Appendix 21-K

37 21-37 Updated February 2013 Appendix 21-L

38 21-38 Updated February 2013 Appendix 21-L

39 21-39 Updated February 2013 Appendix 21-M

40 21-40 Updated February 2013 Appendix 21-M