Abuse victims advised to not seek residency

[Boiler 45,468]

1. I tend to agree with VAWA-2006, in that abused unlawful aliens should have the same opportunities available to them as any other alien that has fallen out of status, regardless of how their presence became unlawful.

That sounds fair enough

The problem exists in the specific requirement that an alien that is an EWI must meet prior to being able to secure permanent residency, as the statute clearly indicates that an EWI must return to his or her homeland rather than to adjust while in the USA.

Not a problem, just the way the system operates. Some countries do not allow adjustment from a Visitors visa, but taht really is a seperate issue, the US does.

That may not be an issue for some battered aliens that entered without inspection, but it does become an issue for a battered alien that married a USC after entering without inspection, but that has remained in the USA for a period of more than 180 days.

And battered spouses of Aliens who are not USC's, that entered without inspection.

In the case of abuse, at the hand of a controlling USC spouse, it is not uncommon to hold the alien hostage.

I do not know, my guess is that it is not that much difference from USC/USC abuse, or Alien/Alien abuse, held hostage would not be normal. I am going on the basis that where there is a ostage situation, it makes the papers.

Remaining in the country for a period of 180 days, unsure about what remedy is available, or worse yet, afraid to turn to authorities for fear of what could happen to them, I would imagine, occurs frequently.

My guess again is that i the EWI example most would be long past 180 days, the sheer practicalities of getting in, getting married, getting abused, I gues it could happen in under 180 days, but it would be pushing it.

If the EWI alien were to leave the counrty to comply with regulation and attempt to return, a bar would be imposed, and there exists, currently, no way to overcome that bar.

For a life time bar, true, but in the examples you mention there is a time bar. Time passes.

With an alien that has accrued unlawful status, that penalty does not exist.

Same bar on re-entry, mariage to a USC waives it. Yet again you can argue whether it should, but it is a 'benefit' given to USC's under current legislation.

I guess it is a matter of opinion whether the situation with aliens sneaking over the border is more grave than those that disregard the duration of status noted on their I-94.

Fair comment

I'm not sure I feel that way; certainly not with regard to EWIs that enter into bonafide marriages and attempt to correct their prior wrongs.

VAWA as written is much wider than this. Includes people who have no way of correcting sic their prior wrongs.

If I were to sum up my viewpoint it would be that EWIs are a hazard when USCIS has no knowledege of how many there are and who and where they are.

Not sure what the hazard exactly is, or how it would be mitigated if they had names and addreses.

Clearly, in the instant case, that would not be an issue, as to pursue a legal remedy would place USCIS on notice of their whereabouts and identity and any inadmissible issues would come into play in any success or failure on thier part to legalise.

Lets assume there is a hazard, how would it be miigated?

Unless CBP institutes better regulations with regard to departure records and collects I-94 cards from every visitor exiting the country (which to date I believe is sadly remiss to the tune of approximately 20% of all visitors to this country) what difference is there really between the two in terms of the disregard for US visa process?

Pobably not a lot, lets compare it to a case I know of where a person was involved in an accident, not their fault. Police called guilty driver prosecuted.

Unfortunately they did not have Insurance, they got a ticket, fine, points. They can still pursue the guilty party, get damages etc, but should their misfortune also mean they can avoid the ticket and points?

[Bassi and Zainab 1]

VAWA is not to protect an individual from the effects of domestic violence. VAWA is to protect the legal immigrant from having their legal status threatened because of the effects of domestic violence.

I still maintain that if an immigrant entered illegally and suffered from domestic violence, the legal intervention should be completely and solely related to domestic violence. No amnesty for their immigration status because the domestic violence has nothing to do with that. Their immigration status existed before the marraige and just like property bought into the marriage is theirs upon exiting the marriage.

Let's just add that they illegal immigrant who suffered from domestic violence can receive legal intervention to get themselves out of the violent relationship without exposing themselves to deportation. According to this article, they have made a choice after being free of domestic violence to try and change the status they have always held using an unfortunate circumstance in their lives. That's opportunistic, which is the american way of life, but I feel it's wrong.

Pushbrk, , I just covered cases of DV...of course each case is more complicated than my two-cent versions... And, by the way, love the discussion.

If there is no DV, then there is no need for remedy under VAWA. If there is no abuse, chances are that an AOS may have been filed already and if the immigrant can prove that there was a good faith marriage, then they can apply for a waiver to remove the conditions of their conditional status, if they already have a conditional green card (married under 2 years). If no paperwork was already filed, in the case of no abuse, I have absolutely no idea what the remedies would be under the law (if any exist). I have no experience in that area and would rather not guess.

Emotions, of course will play a part in my answer , but, think of this: if a USC/LPR marries an illegal with no intention of filing papers for their spouse to make them legal. And then, goes further to abuse the illegal, why shouldn't there be some recourse for that illegal to remain in the US? This is, of course, provided that the illegal married in good faith in the first place. If they hadn't been abused, their marriage would have remained viable and they would have adjusted their status to LPR. In the case of the abused, a crime was committed against them by a USC/LPR who wants their spouse to be deported. The attitude of the abusive USC/LPR is usually that they "won" if they get their immigrant spouse deported.

On the other hand, the non-abused, illegal, married to a USC/LPR (in good faith) whose marriage ends just because, had no crime committed against them - if they are then deported, I have no clue. Would love to hear from someone on the board with knowledge in this area. I think it would be fair if a non-abused illegal's marriage in good faith was to dissolve just because...that they would be able to adjust status (maybe not quickly, and through payment of fines, etc, etc) and remain in the US. Their marriage would also have remained viable if it hadn't ended (too many marriages end in divorce now). They wouldn't be able to benefit from VAWA because that covers abuse. Another law would have to be put in place, if none exists.

I think the fundamental difference between the two sets of illegals: abused and not-abused, is this, one group had a crime committed against them, and the other had no crime committed against them. When married in good faith, both groups are treated differently if their marriages end through DV or otherwise.

Yes, Pushbrk...the courts will decide what they think is best and we will have to live with it.

[N&D 0]

I paid highly for that post, and others. Lost my SN, but whatever.

Still believe that the law was not intended to protect illegal immigration.

[Caladan 19]

Many people might consider themselves better suited in the USA rather than their homeland. Whatever their current circumstances are.

Not sure why that should be the basis of a immigration policy.

That wouldn't be the basis of a policy. The alien, in this hypothetical case, despite having an illegal status at the time, entered into a bona fide marriage with a USC and was abused. The INA recognizes that battered aliens should not be forced to remain with an abuser through the adjusment of status process. Absent a viable marriage, and with VAWA in place, battered aliens are not automatically shunted out of the country and back to their origins. Why place an EWI battered alien in a position where that may be the only recourse?

You are assuming a USC spouse, that maybe the case, but this applies to a more common position where no USC is involved.

More importantly:

An Illegal without this has no ability to adjust inside the USA, so this is giving them a benefit a non VAWA applicant would not have, an obvious inducement to fraud and there is no jusification.

What benefit does the illegal have that the non-VAWA applicant doesn't? Any illegal that marries a USC that is not abusive, has no need to exit the marriage or leave the petitioner prior to adjustment occuring.

The ability to adjust.

Possibly in country.

Fraud scenario number one.

Jane and Billy are in love and want to live together in the US. They decide they'll each find USC fiance's, get K1 visas, come to the US, marry and file AOS. Once the green cards are in hand, they'll leave their respective spouses and begin their lives together in the USA.

Don't kid yourself. This and similar scenarios are quite common.

Fraud scenario number two.

Jaime is here illegally want a green card. He seduces Mary, a USC and marries her. When the honeymoon is over, he gives himself a bruise or two with a big skillet, then calls the cops and claims Mary took some swings at him during an argument. Jaime gets a green card.

Fraud scenario three:

Same as scenario two except both Sally and Joe are here illegally.

I doubt the lawmakers had scenario two or three in mind when they wrote the law.

While I agree fraud is a risk, the existence of fraud isn't by itself a reason to exclude a class of people from the protection of the law. For example, the fiancee visa is often abused, but that isn't usually claimed as a reason to get rid of the visa.

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So in a case with no fraud, someone who was EWI who marries a USC has to return home for a visa & a waiver. Then, from there, they take steps to adjust status.

Here is how I would argue it, were I advocating for the abusees. Set the fraud aside; fraud isn't a reason for a green card. VAWA isn't a quick or easy option, either.

The question is what happens if the person is EWI, legitimately marries, and is then abused. VAWA is meant, in part, to protect the abusee from being dependent on the abuser for potential legal status. And the EWI person is in the same position: their potential legal status (the visa & waiver process, completely legally allowed) is in jeopardy due to an abuser. I don't think the person's illegal entry negates that, at least not as the law is written. Certainly unlawful presence doesn't negate VAWA: in fact one of types of cases they're worried about is the abuser holding the green card over the abusee's head, refusing to file for 'control', which would mean that the person would accrue unlawful presence.

Were I on the other side, I'd try argue that VAWA doesn't apply to visa & waivers, just permanent residency, and the EWI hasn't yet established that she's eligible for a visa.

I also think in the case where neither party is here legally, VAWA shouldn't apply.

Having skimmed the law, I don't think it says anything about the abusee's legal entry, so I think the top argument is stronger. But this one is definitely going to require a court decision.

[N400-2011 24]

One thing I definitely agree with: "where neither party is here legally, VAWA shouldn't apply," because neither party (the abused or the abuser) had a basis to adjust status in the first place.

[Caladan 19]

One thing I definitely agree with: "where neither party is here legally, VAWA shouldn't apply," because neither party (the abused or the abuser) had a basis to adjust status in the first place.

Exactly. That doesn't mean the abuser shouldn't go to jail, it's just that it won't have anything to do with immigration.

[steve13 0]

Yeah,i agree with this:I think the fundamental difference between the two sets of illegals: abused and not-abused, is this, one group had a crime committed against them, and the other had no crime committed against them. When married in good faith, both groups are treated differently if their marriages end through DV or otherwise.

[TracyTN 237]

I paid highly for that post, and others. Lost my SN, but whatever.

Still believe that the law was not intended to protect illegal immigration.

?