How VAWA Cancellation of Removal Works
Cancellation of removal (also known as suspension of deportation) is a type of “waiver” that allows certain immigrants that are in deportation or removal proceedings to be granted permanent residence if they can established strong ties in the United States and meet other requirements. Basically, it is a way to stop the deportation process if you have been charged with an immigration offense.
Cancellation of removal for battered immigrants was created as part of the Violence Against Women Act (“VAWA”) and is called VAWA Cancellation of Removal. It’s meant to protect those who have been abused by their US sponsor and attempts to reduce the victimization of immigrants who may not understand their rights. Cancellation can only be granted by an immigration judge once a battered immigrant has been placed in removal proceedings. It’s important to note that not all battered immigrant women can apply for it, you must first be charged by immigration authorities with an immigration violation (usually unlawfully present in the US or overstaying a visa) and ordered to appear in front of a judge.
This is not the same as applying directly for VAWA and should not be considered if you are not ordered to be deported from the US. If your situation includes abuse by a US petitioner, you must apply for VAWA and prove that you have been abused. I have created a step-by-step guide to file for VAWA here.
Are You Eligible To File for VAWA Cancellation of Removal?
Before you can apply for the VAWA Cancellation of removal, you must show that you are eligible and have been a victim of abuse. Below are the eligibility requirements before you can apply:
- Abused spouses of US Citizens and Permanent Residents;
- Abused sons and daughters of US Citizens and Permanent Residents;
- Non-abused parents of abused children of US Citizens or Permanent Residents, even if not married to the abuser; and
- Abused intended spouses of US Citizens or Permanent Residents.
Alright, now that you have proved the basics above, you then need to show evidence of the following:
- You have been present physically in the United States for the last three years before applying;
- You must be a person of good moral character during the period of physical presence (3 years);
- You must not have been convicted of an aggravated felony;
- You must not be inadmissible or deportable due to certain criminal, security, or marriage fraud violations; and
- You must show that removal would result in extreme hardship to you, or your child, or if the applicant is the child, to the parent.
To file for VAWA cancellation, you are not require to be currently married to the abuser or prove a good faith marriage. However, it is always better to have evidence of a good faith marriage, since if the immigration judge suspects you entered into a fraudulent marriage, it would make you automatically ineligible.
Also note, if you are the parent of an abused child with the USC or LPR abuser, marriage to the abuser isn’t necessary to file.
How To Apply For VAWA Cancellation of Removal
In order to apply for cancellation of removal, you must be in removal proceedings before an immigration judge. Although this is one of the prerequisites to applying, it may be possible in some cases to be placed in removal proceedings in order to apply for VAWA cancellation. To do this, you must essentially “turn yourself in” to the immigration
authorities and inform them you are unlawfully present in the United States. I know this sounds ridiculous, but remember, you are applying to cancel the removal charge.
Turing yourself in should only be considered if you can’t qualify for a green card in any other way, because if your application for cancellation is denied, you will be ordered removed and deported from the United States. You may also be found inadmissible to return to the US due to your unlawful presence. This is very risky and many immigrants choose to live illegally in the US instead of attempting to file for removal cancellation even if they can prove abuse.
Step 1: Requesting the Notice to Appear (if necessary)
- If not already in removal proceedings, you turn yourself into Immigration and Customs Enforcement (ICE) of the Department of Homeland Security,
and request you be put in removal proceedings;
- You must currently be out of lawful immigration status to be placed in proceedings (unlawful presence);
- DHS begins removal proceedings by issuing a charging document called a “Notice to Appear” (“NTA”). This
charging document states that the individual is not a citizen or national of the United States and charges
the immigrant with specific violations of immigration law.
Step 2: Appearing Before an Immigration Court
- Once you have the Notice to Appear document, immigration court will mail a hearing notice to you informing of the time, date, and location
of the next hearing;
- If you fail to appear at the hearing, you will be ordered removed in your absence. If this occurs, you will be barred from applying for cancellation of removal;
- The first hearing will be a preliminary, called a “master calendar” hearing, where you must appear and plead to the charges on the NTA.
There are normally two or three short master calendar hearings before you have a longer individual hearing where testimony is taken regarding the cancellation application.
Step 3: Pleading to The Charges
Only immigrants who are currently inadmissible or deportable for violating the immigration laws may be placed in removal proceedings. For any charge of
inadmissibility or deportability, DHS has the burden to establish this.
- You would concede to the charges in order to move the process along to the point where a cancellation application may be considered;
It’s important not to concede a charge such as fraud or one based on a criminal ground if it will render you ineligible for cancellation of removal;
After pleading to the charges, you will state what relief from removal you is seeking (state you are applying for cancellation of removal);
- If you fail to request cancellation of removal at this time, you won’t be able to apply for cancellation later in the proceedings;
You may request additional time to prepare and file the application or may file it at the master calendar hearing;
- Form EOIR 42B (Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents), must be used. This form has instructions that include all filing requirements concerning fees, fee waivers, photographs, fingerprinting, and accompanying documents. You will also find a list of the types of supporting documents that should be submitted with the application;
- After you file the application, you are eligible to apply for employment authorization (EAD card);
Step 4: Proving Your Case in Front of Immigration Court
It’s probably in your best interest to seek the help of an experienced immigration attorney to guide you through this process but it isn’t necessary. I understand that cost can deter many people from seeking help but this might be time where money will be well spent.
Relationship to the abuser
- You must submit evidence of your relationship to the batterer such as marriage certificate or that you believed you were the spouse.
- A battered child applicant must submit his or her birth certificate and, in the case of a stepchild, the marriage certificate of the parent to the abusive stepparent.
Continuous physical presence
- You must have lived continuously in the United States for 3 years immediately before the filing of the application.
A single absence from the United States of 90 days, or aggregate absences over 180 days, breaks continuity of physical presence.
Battery or extreme cruelty
- You must prove that, while you were in the United States, you were battered or subject to extreme cruelty by the US citizen or legal permanent resident spouse or parent
Good Moral Character
- You must prove that you are of “good moral character,” during your presence showing that you not committed any criminal convictions
- You must prove that you, your child, or the parent of the abused child would suffer “extreme hardship” if deported.
- economic deprivation,
- loss of employment, or
- difficulty readjusting to life in the native country;
The best way for battered immigrants to prove extreme hardship is to show how experiencing the abuse has been harmful to them and how deportation would impede any progress that they have made to overcome the effects of the abuse.
You should emphasize how the hardship is related to or increased by the domestic violence, and the steps you need to take to overcome the effects of the violence.
Evidence To Include With Your Case
To show continuous physical presence in the US, you can use the following documents as evidence:
- Copy of all income tax returns filed; if the returns were not filed, you will have to file back tax returns
- Birth records of children born in the United States
- Driver’s license
- Copy of lease agreements, rental receipts, or mortgage payments
- Employment records
- Bank statements
- Utility bills and copies of credit card statements
- Copy of insurance policies
- School records of the applicant or her children
- Medical records
- Court records, including protection orders and custody and support orders\
The following evidence can be used to show extreme cruelty:
- Police reports
- Restraining/protective orders
- Photos of bruises, cuts, injuries, etc.
- Medical records
- Hospital records documenting the abuse
- Letters from counselors, domestic violence case workers, shelter advocates
- Child Protective Services reports
- Torn clothing or destroyed property or photographs of these
- Transcript from “911” call
- Psychological evaluations
- Affidavits from neighbors, friends, or family who witnessed the abuse
As you can see, this is an extensive application process for those who are desperate need to avoid deportation. You must take the proceedings in front of the immigration judge seriously and consider hiring an immigration attorney to walk you through each step. Think of it this way, your life as you know it is on the line; do what you can to prove your case and obtain approval.