9.1.1 General Principles

9.1.1 General Principles aetrahan Tue, 08/29/2023 - 14:26

Follow some basic rules for representing immigrant survivors subjected to abuse by an intimate partner. 

  • Do not obtain a final divorce order for any immigrant survivor client before filing a VAWA self-petition. A divorce decree will preclude a self-petition.
  • Obtain details about immigration-related abuse (e.g., threats to deport, withholding assistance, or preventing the survivor from being able to work legally).
  • A client should always speak to an immigration law expert before speaking with ICE. ICE may arrest them and deport them before they have a chance to speak to a lawyer.
  • Clients should not sign ICE documents without first speaking to an immigration lawyer.

  • A self-petitioning domestic violence victim must show battering or extreme cruelty.1  A state-court proceeding that builds the factual record can help a self-petitioning victim.

  • Findings in the custody case may help a self-petitioning immigrant prove “extreme hardship,” if deported.

  • Consider including a provision in the protective order that prohibits the abusive spouse from withdrawing an application for permanent residence filed on the victim’s behalf, or from contacting immigration, any government agency, or law enforcement for purposes of interfering with her status in any way. The evidence and paperwork needed for an application for permanent residence with a spousal sponsor is lower than that required for a self-petition under VAWA.2

  • If the abusive party has stolen or retained documentation or records essential to your client’s immigration case, consider asking the judge to order their return during the protective order proceeding.

  • Plan to respond and object if the abuser raises immigration issues in court. Alternatively, immigration abuse can be a part of your abuse case.

  • If the abuser has sponsored the victim, obtain copies of the Affidavit of Support he signed. This can help with support hearings.

  • Talk to your client about the immigration status of her children. If the children have been victims of abuse, abandonment, or neglect in their home country or in the US, they may be eligible for Special Immigrant Juvenile status (SIJ).  This process is different from a U-Visa or VAWA petition and requires certification by a family or juvenile court that the child is eligible for SIJ.  Help your client obtain a knowledgeable immigration attorney to help with the initial process of determining SIJ eligibility.

  • NEVER AGREE TO A MUTUAL PROTECTIVE ORDER.