Under the Violence Against Women Act (VAWA), certain foreign-born victims of domestic violence who are in U.S. removal (deportation) proceedings can apply in front of an immigration judge to remain in the United States with a green card. This is what's called VAWA-based "cancellation of removal." (See 8 U.S.C. Section 1229(b).)
In order to qualify for it, you must show that:
You can also qualify for VAWA cancellation of removal if you are a parent of an abused child of a U.S. citizen or LPR, even if you are not married to the child's other parent.
If your VAWA application is based on a spousal relationship, you must also show that you entered into your marriage in good faith, with the true intention to create a life together (as opposed to merely trying to get a green card).
VAWA cancellation of removal requirements are very similar, yet distinct from the affirmative VAWA application with United State Citizenship and Immigration Services (USCIS) that some abused foreign nationals can file using Form I-360.
The biggest difference is that you must already be in removal proceedings (in immigration court) to apply for VAWA cancellation. The application must be filed with the court on Form EOIR 42-B.
Some other differences include that a broader set of persons is eligible for VAWA cancellation then for affirmative VAWA. For example, adult (over-21) children of U.S. citizens and LPRs are not eligible for affirmative VAWA, but are eligible for VAWA cancellation. Spouses of citizens and LPRs who have been divorced for more than two years, and parents of an abused child of a U.S. citizen or LPR who is not married to the other parent, can also qualify for VAWA cancellation of removal but not affirmative VAWA.
On the other hand, affirmative VAWA applicants do not have the three-year residency requirement that VAWA cancellation applicants do. If you are not sure whether you qualify for affirmative VAWA or VAWA cancellation, consult an immigration attorney.
Both affirmative VAWA and VAWA cancellation waive (overlook) many of the grounds of immigrant inadmissibility, including unlawful presence and public charge. In order to apply for VAWA cancellation, however, you must have a pending immigration court case and not a final removal order. If you have a removal order you might be still be able to apply for affirmative VAWA with a waiver, or you could file a motion to reopen if you want to pursue VAWA cancellation.
If you are in removal proceedings, you can still apply for VAWA through USCIS. If the agency approves your application, the immigration judge can adjust your status (grant you a green card) in court. This can be a good option if you also qualify for affirmative VAWA but your case might be delayed if you first have to wait for USCIS to approve your application and then wait for a hearing date with a judge.
Again, if you are in removal proceedings and qualify for both affirmative VAWA and VAWA cancellation, you should consult an immigration attorney.
If you decide to apply for VAWA cancellation of removal, an immigration judge, not a USCIS officer, will determine whether you meet all the requirements and should thus be granted relief (lawful permanent residence, also known as a green card).
The proof you will need in order to show the judge that you qualify is much the same as for affirmative VAWA. It includes:
If you are put into removal proceedings after being denied an affirmative VAWA application, you can still apply for VAWA cancellation as a defense to removal in front of the judge, assuming you still meet all the requirements.
If you are in deportation proceedings, it is best to contact an experienced immigration attorney as soon as possible to discuss your potential options. The attorney can analyze your case, confirm or determine the remedies that you could ask for, gather documents and paperwork, draft legal arguments on your behalf, prepare any witnesses, and appear with you in immigration court for your hearings.
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