Guide for Detained Immigrants: Deportation Defenses for Crime Victims and Domestic Violence
This article was written by Diocesan Migrant & Refugee Services. It provides general information and should not be considered specific legal advice for your case. It contains information to help you decide whether you might be eligible for relief from removal if you are a victim of crime and abuse.
If you, or your child, have been physically or psychologically abused by a spouse or parent who is a U.S. citizen or legal permanent resident, you may qualify for cancellation of removal or adjustment of status without needing your abusive spouse or parent to sponsor you.
There are two forms of relief for survivors of domestic violence: self-petitioning as provided by the Violence Against Women Act (VAWA) and Cancellation of Removal for Nonpermanent Residents Under the Special Rule for Battered Spouses and Children (also commonly referred to as VAWA Cancellation of Removal).
Filing a VAWA Self-Petition (I-360) lets you apply for a family-based immigration visa if you can show that you were married to a U.S. citizen or LPR who was either psychologically or physically abusive. VAWA lets you apply for this benefit without your abusive spouse participating in the process. You can even be divorced or widowed.
The immigration judge in a deportation proceeding can’t consider an I-360 self-petition. These are reviewed only by USCIS. But if you have an approved I-360, you can file it with the immigration court to seek adjustment of status. If you might be eligible to file an I-360, hire a lawyer. Some nonprofit agencies help crime victims apply for VAWA benefits.
Cancellation of Removal for Battered Spouse and Children (VAWA Cancellation of Removal) is a benefit that you can apply for in immigration court. To qualify, you show that:
- You have been battered, or subjected to extreme cruelty, by your U.S. citizen or LPR spouse or parent;
- You have been physically present in the U.S. for at least 3 years;
- You are a person of good moral character;
- You have not violated certain other sections of the immigration laws; and
- Removing you would result in extreme hardship to you, your children, or your parent.
The evidence and the information that will be considered are a lot like the evidence and information needed for the other forms of cancellation of removal. Here, expect to provide more documentation and evidence related to the abuse. Hire a lawyer to help you with VAWA Cancellation of Removal, which requires Form EOIR-42B.
Reporting the abuse to law enforcement isn’t required. Police reports, incident reports, letters from domestic violence shelters, or other evidence of the abuse from third parties might help your case, though. Expect to testify about the abuse. If your application for VAWA Cancellation of Removal is granted, you will get LPR status.
If you have been the victim of a crime while in the United States you may qualify for temporary permission to live and work here.
U Nonimmigrant Status, also known as a U visa, is for (1) crime victims; (2) who reported that crime to law enforcement; and (3) cooperated in any investigation or prosecution of the crime.
To apply for a U visa, have a law enforcement agency sign a U Certification Form (Form I-918B). By completing the form on your behalf, law enforcement confirms that you were the crime victim, and that you are helping in the investigation or prosecution. After you get your completed Form I-918B, submit Form I-918 with the required evidence, and file the application with USCIS. A limited number of U visas can be granted every year, and there is a backlog.
Demonstrate that you are willing to cooperate; are already cooperating; or have cooperated with law enforcement in their investigation or prosecution of the crime. As with VAWA self-petitions, the immigration judge lacks the power to consider or grant a T or U visa application. File these applications with USCIS.
If you are granted U nonimmigrant status, you can leave the detention center and apply for a work permit. After living in the U.S. with U nonimmigrant status for many years, you might qualify for LPR status.
T visas are for human trafficking victims. The most common forms of trafficking are sex trafficking and labor trafficking. No law enforcement certification is required to apply for a T visa (this is different from a U visa). To apply for a T visa, complete Form I-914, and submit the required evidence to USCIS.
If you are granted T nonimmigrant status, you can leave the detention center and apply for a work permit. After living in the U.S. with T nonimmigrant status for many years, you might qualify for LPR status.
Asylum, Withholding of Removal, & Convention Against Torture (CAT)
You may qualify for asylum, withholding of removal, or protection under the Convention Against Torture (CAT) if you fear you’ll be harmed if you go back to your own country. The threat or harm must come from the government, or someone the government can’t or won’t control.
For asylum and withholding of removal, you must show that the threat or harm is because of your race, religion, nationality, political beliefs, or membership in a particular social group. Asylum law is complex, so research asylum law thoroughly. If you think you qualify for asylum, hire a lawyer or accredited representative to help you apply.
If there is a removal order against you, but you want to apply for asylum, withholding of removal, or protection under CAT, tell your deportation officer—in writing—that you are scared to return to your home country, and you want to apply one of those forms of relief.
The immigration judge must receive your asylum application within one year of your entering the U.S. If the judge doesn’t receive your application within one year, you might only qualify for withholding of removal or protection under CAT (which are even harder cases to win than asylum). If you get asylum, you can leave the detention center and apply for a work permit. After living in the U.S. for a year after winning your asylum case, you can qualify to apply for LPR status.
You can apply for relief under the Nicaraguan Adjustment and Central American Relief Act (NACARA) if you are from El Salvador, Guatemala, or former Soviet bloc countries (among others). You must also show that you entered the U.S. by certain dates, and either registered as a member of the “ABC” lawsuit settlement class, or obtained Temporary Protected Status (TPS) before certain dates in 1991.
You must also show that:
- You have lived in the U.S. for at least seven years, and
- You have not been convicted of an aggravated felony or other certain crimes.
- If you are the spouse or unmarried child of a person who is NACARA-eligible, you must show that you would suffer extreme hardship if removed.
If you might qualify for NACARA, complete and submit Form I-881 to the judge, along with evidence that proves the above requirements. If your application for NACARA is granted, you get LPR status. Talk to an immigration attorney for help.
People from certain countries—including El Salvador, Haiti, Nicaragua, Somalia, and Sudan—can live and work in the U.S., temporarily, with Temporary Protected Status (TPS). If you qualify for TPS, or need to renew your TPS, you might be able to temporarily stop your removal proceedings. Certain criminal convictions disqualify you from obtaining or renewing TPS. Talk to a lawyer for help.
Immigration judges lack the power to consider TPS applications. If you think you qualify, complete and file Form I-821. If your application for TPS is granted, you will be granted a work permit.