A spouse or child who has been battered is eligible to self-petition and adjust status to that of a lawful permanent resident independent of the abusive spouse.
One of the few positive developments in recent Immigration legislation has been relief for spouses and children of abusive petitioners in family-based immigration cases. For many years, the spouse in an abusive relationship with a lawful permanent resident or citizen of the United States was left helpless in an abusive relationship, dependent on the abuser to adjust status, but desiring to escape the dysfunctional relationship. Spouses and children involved in such situations are eligible to attain the status they would have been eligible for in a normal relationship with the Petitioner through a “self-petition.” Others are eligible for “cancellation of removal” if in proceedings, such that they are also eligible for permanent resident status without the abuser’s petition.
A spouse or child who has been “battered or subject to extreme mental cruelty” is eligible to “self-petition” and adjust status to that of a lawful permanent resident independent of the abusive spouse or parent through whom such status would have been sought. Generally, the spouse or child must establish that he or she (1) is residing in the United States and had resided at some time with abusive spouse or parent; (2) was battered or subject to extreme mental cruelty during the residence; (3) entered into the marriage in good faith; (4) is not otherwise inadmissible, e.g. crimes; (5) is a person of good moral character; and (6) would suffer extreme hardship if deported from the United States.
Although the INS requires that the marriage be viable at the time of filing, a divorce or other dissolution of the marriage subsequent to filing will not affect the self-petitioner’s status. The “I-360” self-petition should be filed with the INS Vermont Service Center, and if approved, the self-petitioner may file for adjustment of status with the local INS District Office. One protective feature of the self-petition process is that the INS and Immigration Judges are not allowed to use information obtained from a self-petition or other household member to make findings of inadmissibility or removability against the abused spouse.
If the spouse or child is in removal proceedings, the law also offers relief based on battery or mental suffering previously endured. In such a case, the applicant must establish that he or she (1) has been battered or subject to mental cruelty by a spouse or parent Citizen or lawful permanent resident, or is the parent of a child of a Citizen or Lawful Permanent resident who has been abused; (2) has been continuously physically present in the United States for three years; (3) has been a person of good moral character for three years;(4) is not deportable for certain criminal and security grounds or marriage fraud; and (5) would suffer extreme hardship if removed from the United States.
Although the factors to be established appear self-evident in may cases, the INS and Immigration Judge’s look to the letter of the law and insist that all factors are met. Mere evidence of mental or physical abuse is only one element of the case. The applicant, however, may submit any and all types of credible evidence to meet the requirements, which may include testimony of witnesses and police reports, among other evidence.
Other issues arise in the course of such cases relative to basic eligibility for adjustment of status under Section 245(a) or 245(i), and may determine which course of action is most appropriate. Regardless of these technical considerations, individuals who have been subjected to cruelty or physical abuse should be apprised of their right to escape an abusive relationship and still attain legal status in the United States.