INQUIRER Global Nation

THREE months after arriving in the United States, Laura married her United States citizen fiancé Mark. The couple had a harmonious relationship until Mark’s behavior changed a few weeks after the marriage. It started when Laura insisted on having the petition for immigrant visa filed on her behalf. Mark began completing the documents but did not file these with the immigration service. Instead, Mark used this process to seek more sexual favors from his wife.

Despite the fact that they were married, Laura resented what Mark was forcing her to do. She informed her counsel that Mark was asking her to do something against her will. Whenever she refused, she was beaten and threatened with deportation. Laura could no longer stand Mark. She soon left their marital home.

Mark informed the US Department of Homeland Security Laura’s visa had expired. The Immigration and Customs Enforcement (ICE) agents took Laura into custody from the temporary home of a friend where she sought refuge. She was released on bail and is now facing deportation proceedings.

During a hearing, she claimed she was a victim of domestic violence and is now seeking relief under the Violence Against Women Act (Vawa). She was told that she could self-petition as an abused spouse.

What are the chances of Laura getting a dismissal of her deportation/removal proceedings? Will she be able to obtain her own green card?

Relief for victims

The Immigration and Nationality Act (Ina) allows a victim of domestic violence to obtain legal status in the US through self-petition. A victim of domestic violence may petition for green card without the help of the abusive spouse. The victim should be the spouse of a US citizen or a green card holder.

In the Filipino community, there are several cases of domestic violence. Very few victims are willing to face their abusers in courts. There are also cases of Filipino women who are so afraid to report the matter for fear that they would be deported. With the “self-petitioning” provisions of Ina, there is no need for the abusive US citizen spouse to cooperate in the immigration process.

Victims of domestic violence who may want to avail of this self-petition may also be non-US citizen children who were subjected to extreme cruelty by their US citizen or permanent resident parent.

To be eligible to self-petition the victim must be able to show that (1) she is qualified to be an immediate relative of a US citizen or second preference family-sponsored immigration. There must be proof of the abuser’s US citizenship or permanent resident status; (2) if the victim is a spouse, she must show that there was a good-faith marriage even if subsequently their marriage was dissolved or that they are no longer living together as husband and wife; (3) evidence of battery or extreme cruelty and (4) proof that the victim resided with the abuser in the past; (5) proof of good moral character of the victim.

Substantial evidence

In determining whether the self-petitioner is indeed a victim of domestic violence, the examining officer will have to look through all the evidence that constitutes “battery or cruelty” by the US citizen spouse or parent.

Pertinent regulations note that these acts are not limited to actual acts or threatened acts of violence. Cruelty does not necessarily entail physical violence; it could be emotional or mental cruelty which may form part of the overall pattern of violence.

In interviewing victims of domestic violence on their self-petitions, several questions may be asked to determine whether the abuser’s behavior and alleged acts of violence may be characterized as abusive under the law or merely acts simply indicative of a bad marriage.

To draw the line of distinction between a bad marriage and abuse cases requires substantial evidence. Substantial evidence does not mean voluminous evidence but rather convincing evidence that may be presented during the interview. This may include reports and affidavits of police, medical personnel, school officials, clergy, social workers, and other social service agency personnel.

In nonphysical abuses, the burden may be difficult to prove. It is always recommended that the self-petitioner work with a domestic violence counselor to assist in gathering evidence necessary for the application. Details of the incidents of abuse are usually corroborated by domestic violence counselor or shelter workers whose expertise is to identify what actually constitutes domestic violence.

Filing for self-petition requires that the victim has resided with the abuser in the past. This is in addition to proving the good-faith relationship. There are those who decided not just to leave the abuser but also to depart for the Philippines after experiencing traumatic experiences from their US citizen spouse or parent.

The residency requirement may still be met even if the self-petitioner is outside the US. In this situation, it is required that the victim resided in the US with the abusive spouse. If the victim and the abuser are living outside the US, a self-petition may be filed as long as the abuser is employed by the US government or military and the domestic violence occurred in the US.

Sure, there are the actions by a spouse that may truly be an indication of a bad marriage. However, one does not have to wait until the threat of violence occurs before their action turns to a criminal act. The immigrant victim is afforded immigration benefits more liberal than in ordinary spousal petitions. Domestic violence of any kind is not tolerated and the law exists to protect the victims.