Any time someone living in the U.S. without lawful status files a petition for family- or employment-based permanent residence, there is a 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 Green Card Under the Violence Against Women Act (VAWA): Who Is Eligible.)
It's not automatic, of course. If one is eligible for the status being sought, all can proceed without problem, and the person can receive U.S. residence (a green card).
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 might, if your spouse is a U.S. citizen, be allowed to file your initial 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 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 proceed to the next step, namely applying 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, need 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, 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 any 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 serious, 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 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?
A June 28, 2018 Policy Memorandum from the Trump Administration requires USCIS to issue a Notice to Appear in a broad range of cases, including if an application or petition for immigration benefits is denied and the person is not in lawful status (not lawfully present) or is deportable (matches any removability grounds under I.N.A. § 237), including for having been convicted of or charged with any criminal offense or committed acts that could be charged as a criminal offense, even if the criminal conduct was not the basis for the USCIS denial.
If, therefore, you have one or more criminal convictions, 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 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.
NOTE: When looking for help as a victim of abuse, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can and should do to prevent someone else from learning that you’re doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser, or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.