Until recently, many abused spouses and children could not obtain a green card unless their U.S. Citizen or Permanent Resident spouse or parent filed an immigrant visa petition on their behalf. Because of this, the battered spouse or child would often stay with the abuser long after they would otherwise have left the abusive environment, hoping against hope that their abuser would eventually relent and apply for their green card. Of course, this would rarely, if ever, occur. The abuse victims would therefore often end up waiting for the rest of their lives to obtain this most precious benefit. Commencing January 1, 1995, the waiting is over.
As a result of recent amend- ments the procedures for granting immigrant status, abused spouses and children of U.S. Citizen or permanent resident aliens may now file visa petitions on their own behalf. No longer can the abusive spouse or parent hold the promise of a green card out as a carrot while the victim is repeatedly beaten with a stick.
In order to qualify for this long overdue benefit, the petitioner must be all of the following:
1. The spouse or child of a U.S. citizen or lawful permanent resident.
2. Of good moral character.
3. Currently living in the United States and must have lived in the United States with the abusive U.S. citizen or permanent resident.
4. If the petitioner is the spouse of the abuser, the marriage must have been entered into in good faith.
Based on this writer’s experience, most Filipinos have no trouble establishing good moral character. A criminal conviction for a minor crime will not necessarily keep an alien from meeting this qualification.
However, in addition to the above, the Petitioner must also prove:
1. That either the petitioner or one or more of their children have either been,
(a) battered by their spouse or parent or
(b) the subject of extreme cruelty perpetrated by that spouse or parent, and;
2. That deportation will result in “extreme hardship” either to themselves or their children.
Since both of these elements involve matters that are unique to this type of petition, they merit further discussion.
Evidence of Abuse Establishing physical abuse is relatively straightforward. The INS has already indicated that it will accept medical reports, police reports, court documents and affidavits as evidence of physical abuse.
However, a battered spouse or child does not have to show physical abuse if he or she can show that they were the victim of “extreme cruelty.” This is a new standard never before applied in the immigration context . Until INS publishes its new regulations regarding these new provisions, we will not know exactly what a petitioner must show to establish “extreme cruelty.” However, the dictionary describes “extreme cruelty” as “grave and serious misconduct” which causes a, “condition of extreme discomfort and wretchedness incapacitating [the victim].” Such a broad definition potentially covers a wide variety of conduct short of physical violence. Each case will have to be assessed and evaluated individually.
Evidence of “extreme hardship” Allowing battered immigrant women and children to file their own visa petitions was one of the provisions in the Violence Against Woman Act—an act included in the 1994 Crime Bill. The Act included comprehensive legislation which both added additional protection for victims of domestic violence and added additional and increased penalties for the perpetrators.
Regarding the provisions of the Act pertaining to immigrant women, Congresswoman Nancy Polosi (D. Ca) stated that, “presently, abused immigrant spouses often cannot escape a violent household because leaving it will result in their deportation,” and that the goal of the new law is to “correct a system which allows a perpetrator of domestic violence the power to continue abusing because of the immigration technicalities .” In other words, the immigrant visa provisions of the Act are designed specifically to allow immigrant women and children to get out from under the yoke of domestic violence.
This purpose will not be furthered if the INS makes “extreme hardship” too difficult to establish. Although we will not have definitive guidance on this subject until INS publishes its new regulations, some of the factors that the INS is likely to consider are
the alien’s age;
family ties in the United States;
the alien’s health;
the economic and political conditions of their home country;
the financial status [business and occupation];
separation from family members;
length of residence in the United States;
difficulty in adjusting in returning to one’s native country;
and the adverse effect of severing ties to the community in the United States.
Although each case must be considered on a case-by-case basis, the following evidence will probably be considered favorable by the INS:
1. Children born in the United States. This may be sufficient, by itself, to establish extreme hardship.
2. Evidence that the children were born abroad, but have been significantly “Americanized.” This may also be sufficient, by itself, to prove extreme hardship. Such evidence might include the school records of the children and evidence of membership in such organizations as the Boy Scouts or Girl Scouts of America, etc.
3. The existence of a medical condition of the petitioner or member of his or her family that requires specialized care which would be difficult to obtain in the Philippines.
4. Ties to religious institutions and other social groups. This would include participation in sports activities, membership in a school band or a drama club and church related activities. Of course, this list is not all-inclusive.
The INS is required to evaluate any evidence which shows it would be difficult for the petitioner, or the petitioner’s children, to leave the U.S. and return to the Philippines. What does this all mean? Because Congress intended these new provisions to help abused spouses and children apply for a green card without significant fear of deportation, these new provisions many represent a relatively low risk avenue of relief for immigrant victims of domestic violence. Since regulations on these new provisions will be published in the very near future, immigrants should seek advise to see if they qualify for this new immigration safe harbor.