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Friday, December 22, 2017

Immigration • Cancellation of Removal

Written by  Linda A. Dominguez

Cancellation of Removal Part 3

If a person is battered or subjected to extreme cruelty by a US citizen spouse or parent (or a spouse or parent with a green card), or is the parent of a child who was battered or subject to extreme cruelty, then they may get lawful permanent residence (“green card”) under Section 240A(b)(2) of the Immigration and Nationality Act (INA) through the Immigration Court. They do not need to be separated or living apart from the spouse or parent who is committing the battery or extreme cruelty in order to apply for this form of relief but they do need to have a safe address where any mailings from the court can be sent without increasing the harm and suffering. Usually, this address is the attorney who is helping them with their immigration status since proving the case is complicated.

Under the law, no one who is employed by the Immigration Court or the Department of Homeland Security (DHS) is permitted to approach the spouse or parent committing the acts or reveal that the applicant has applied for this relief. The silence on any information about a case involving domestic violence or extreme cruelty is so complete that if someone calls the court asking about the case, court personnel will not even acknowledge that the case exists. Any bulletin board postings will have the name deleted from any calendar of scheduled hearings. Any employee revealing this information risks losing his or her job. It is well known that the most dangerous time for a person trying to get out of a domestic violence situation is when they are trying to get away from the person hurting them.

The applicant must demonstrate through documents several things:

1) that the relationship exists and is bona fide

2) that the battering or extreme cruelty has happened at the hands of the spouse or parent

3) that the spouse or parent is either a US citizen or has a green card

4) that the applicant has been residing in the US for at least three years prior to the date of the filing of the application

5) that the applicant is a person with good moral character, and

6) that the removal of the applicant would result in extreme hardship to themselves, their child, or their parent.

If part of the extreme cruelty is that the applicant married someone who committed bigamy through the marriage, the applicant must demonstrate that they had no idea of the marriage of their bigamous spouse and that they intended to enter the marriage in good faith. The documents needed include, but are not limited to

1) birth certificate or passport of the spouse or parent

2) marriage certificate

3) birth certificate of child born of marriage if the child is the person battered by a parent

4) medical records or psychological records showing what harm was done

5) police reports, if any

6) evidence of the bona fide nature of the marriage

7) evidence of the good moral character of the applicant (including letters from family and friends, local police clearance report, etc.), and

8) evidence of extreme hardship to themself, their child, or their parent if they are not allowed to remain legally in the US.

If the applicant has a criminal history and can prove that the criminal acts were committed as a part of the abuse suffered, then those actions will not count against them concerning good moral character. An example is if the applicant is forced to shoplift by the abuser or face physical harm at the abuser’s hands. In that case, if the applicant can demonstrate that this was the situation, any conviction for shoplifting will not be used against them.

As you can see, the gathering of evidence and explaining what has occurred is complicated and it is much easier if an attorney is consulted to guide the person through the process. Also, it will help the applicant’s stress levels if someone else is able to handle the administrative details of applying for this road to a green card rather than trying to figure out what the next step is while dodging the actions of the abuser.

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