In most cases, filing a petition for family- or employment-based permanent residence will not put you at risk of being placed into removal proceedings. This is as true for people who file Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant as for people filing in other categories.
(To learn more about who qualifies for this special form of immigration relief, see Nolo’s article, “Green Card Under the Violence Against Women Act (VAWA): Who Is Eligible?”)
Exceptions do exist, however. The most likely circumstances in which pursuing a VAWA application might land you in immigration court facing removal include if you:
As a VAWA applicant, you may, if your spouse is a U.S. citizen, be allowed to file your initial visa petition (Form I-360) at the same as your application for adjustment of status (a green card). This turns what is ordinarily a two-step process into one step.
Let’s start with a little background. For most types of applicants, step one in applying for a visa or green card is to submit a visa petition to U.S. Citizenship and Immigration Services (USCIS) and wait for its approval before moving forward.
For VAWA applicants, this first step is completed using Form I-360. USCIS approval simply means that you have convinced the agency that you qualify as a battered spouse of a U.S. citizen or permanent resident and you may apply for a green card using Form I-485, Application to Register Permanent Residence or Adjust Status. The approval of the Form I-360 by itself does not give you any immigration status. For specific information about how to complete this form, please read “Application Process for a VAWA Green Card.”)
Spouses of U.S. citizens do not, however, have to wait for USCIS approval of Form I-360 before filing the I-485; they can file Form I-360 and Form I-485 at the same time. (Spouses of U.S. green card holders, however, will need to wait for a visa to become available before they can apply to adjust status in the United States.)
But here's the catch: If you file the I-360 at the same time as you apply for a green card using the Form I-485, then the denial of the I-360 and I-485 could send you to Immigration Court. After denying an I-485, the immigration officer typically checks the file to see whether the applicant is legally in the United States. If not, the officer may forward the file to Immigration and Customs Enforcement (ICE) for removal proceedings.
If you are concerned that your I-485 application for a green card will be denied even though your I-360 VAWA application has been approved, you should speak to an experienced immigration attorney to decide whether filing for VAWA benefits will be worth the risk.
An applicant’s criminal history can put him or her in danger of deportation even if he or she did not file the I-485 at the same time as the I-360. This might come as a surprise, because the I-360 asks you to provide information about your immigration history but not your criminal history. (Criminal history is, after all, irrelevant to whether you were abused by your spouse and meet the other basic requirements for VAWA eligibility.)
However, USCIS can look up your criminal history any time you file any petition or application with it, even if this information was not requested on the form itself. If your criminal history is extensive or very bad, USCIS can refer your case to immigration court by given you a Notice to Appear (NTA) (which is the start of removal proceedings).
USCIS will issue an NTA only if it denies your I-360 VAWA application, because you would otherwise have the opportunity for a waiver when you apply for a green card using Form I-485. (To learn more about what waivers are available to applicants for a green card, see Nolo’s article “When Is a Waiver of Inadmissibility Available for a Green Card Applicant?”.
So then the question becomes, if USCIS does deny your I-360, what are the chances that it will send you to removal proceedings? USCIS issued a memorandum about whether or not to refer applicants to immigration court in November 2011, although it did not address VAWA-specific decisions. (USCIS regularly updates its guidelines when there is a policy change or it wants to clarify a part of its policy.)
The November 2011 memorandum directs USCIS officers to focus their resources on referring people to immigration court only if they threaten “national security, public safety, and the integrity of the immigration system.” Other people who may be deportable for less serious reasons are less of a priority.
If, therefore, you have one or more criminal convictions that might meet the above definition (most likely felony convictions involving violence or fraud), but you have not been deported before, USCIS might issue you an NTA and send you to immigration court if it denies your VAWA application. USCIS might give you the NTA at the same time as the I-360 VAWA denial, or perhaps later.
There is a difference between an immigration application being denied because the person was not eligible and being denied because the person outright lied. If USCIS decides that you have purposefully lied on any of your VAWA-related (or other) applications, the officer reviewing your case will make a Statement of Finding that you committed fraud.
You will likely be charged with fraud as a reason to deport you and be put in removal proceedings. Even if your I-360 petition is denied based on a reason other than fraud, the USCIS can still charge you with fraud.
If you are concerned that you made a mistake on your application, it’s best to ask USCIS for an opportunity to explain the mistake. You can make this request either of the USCIS officer who conducts your in-person, (adjustment of status) interview or by submitting additional documents by mail.
Only if the USCIS officer makes a formal Statement of Finding that you lied will you potentially be put into removal proceedings.
If you have ever been deported from the U.S. and you later returned unlawfully, or you were ordered deported but never left the U.S., and USCIS denies your I-360, there is a strong probability that you will be deported immediately. This would happen without you being issued an NTA or offered the opportunity to speak to an Immigration Judge.
If this describes your situation, you should not file Form I-360 without first speaking to an experienced immigration attorney.
If you are sent to removal proceedings based on the denial of your VAWA-based petition or application but you at least successfully showed that you were actually abused by your U.S. citizen or permanent resident spouse (then were denied for a different reason), you might want to ask the Immigration and Customs Enforcement (ICE) attorney about a remedy known as prosecutorial discretion.
This means ICE could decide to dismiss your removal case and allow you to stay in the U.S. (though without a green card or similar status). In June 2011, ICE issued a memo stating that it is “against [its] policy to initiate removal proceedings against an individual known to be the immediate victim or witness to a crime.” While a grant of prosecutorial discretion is not guaranteed, it can be of some comfort to know there is a chance to apply for additional relief if you find yourself in this situation.
If you are trying to decide whether to file for VAWA, it is best to talk to an experienced immigration attorney to determine the strength of your VAWA case. If you do not know whether you have been ordered deported already, you can call the Executive Office of Immigration Review (EOIR) automated status check system at 1-800-898-7180. You will need to know your alien registration number (or A number) in order to use this system.