Virginia Battered Spouses Cancellation of Removal Proceedings

In specific instances, individuals can apply for cancellation of removal proceedings by way of reporting any abuse that they may have suffered at the hands of a U.S. citizen, or lawful permanent resident. Battered spouses or children can apply for cancellation of removal with different, specific requirements from a typical cancellation of removal case, which can help to ensure a quicker, safer process. If you have found yourself in such a situation, it is important that you contact a cancellation of removal lawyer immediately. The right attorney can assist in processing your case efficiently, and help to produce a positive outcome.

Applying for Cancellation of Removal

Battered spouses or children are eligible to apply for cancellation of removal. However, they are eligible for a different type of cancellation of removal, called VAWA cancellation.  VAWA, or the Violence Against Women Act, is a large piece of legislation passed in 1994 that gave way to a number of benefits for immigrants who have been battered or subjected to extreme cruelty.

There is another type of VAWA that an individual can apply for if they are not in the removal proceedings to the affirmative VAWA applications, which gives them the ability to petition for themselves if they were married to a legal permanent resident or U.S. citizen who is abusive. However, in the context of immigration court proceedings, VAWA cancellation is eligible for people who have been battered or subject to extreme cruelty by lawful permanent residents or U.S. citizens.

Uniqueness of a VAWA Application

A typical non-permanent resident cancellation of removal case and a removal case brought forward by a battered spouse are somewhat similar in proceedings. An individual has a master calendar hearing to start the proceeding, then will submit their application request. They will then have an individual hearing to adjudicate their case. However, the eligibility requirements for a VAWA application are different.

Eligibility Requirements

The eligibility requirement for VAWA cancellation of removal is that an individual needs to have been battered or the alleged victim of extreme cruelty at the hands of a spouse who is either a U.S. citizen or a legal permanent resident. An individual can also apply if they are the child of a legal permanent resident and the abuser was a parent. There is also another eligibility category for people who are married to an abusive U.S. citizen or LPR and have a child together. If an individual has a United States citizen or LPR partner, they have a child together, and that child has been battered or suffered extreme cruelty at the hands of the U.S citizen or LPR parent, then even if the individual is not married they can actually apply based on the hardship suffered by the child.

Physical Presence Requirements

The time frame determining the start of the individual’s physical presence requirement begins at the time they began continuous presence in the U.S. If an individual can prove that they have been battered or subjected to extreme cruelty by their U.S. citizen or LPR spouse or parent, they will also need to show they have had continuous physical presence in the United States for at least three years. Further, an individual will need to prove they have been a person of good moral character for that entire time.

An individual will also need to show they are not admissible for certain criminal offenses, and they do not have an aggravated felony conviction. An individual cannot have an aggravated felony on their record, and they will need to show that their removal will result in extreme hardship to them if they were removed, or if their child were removed if applying through the abuse of that child. Finally, an individual will need to prove that they are deserving of a favorable exercise of discretion.

Evidence of Documentation

Evidence of documentation needed to prove abuse or suffering will depend on the case. In some cases, someone may not have suffered any kind of physical abuse and may never have gone to the hospital or called the police, but they could meet the extreme suffering or the extreme cruelty prong of the VAWA cancellation statute. That can be considered extreme cruelty, which can be shown through emotional abuse, sexual abuse, psychological abuse, or other qualifying different kinds of abuse. It does not have to be physical abuse, but if there has been physical abuse, someone will always want to show any kind of medical records or photos that show they have gone to the hospital as a result of the abuse.

Hard evidence is preferred, such as medical records, police reports, or photographs showing the victimization. If someone does not have that and they are going to rely on psychological abuse, or sexual abuse, then they want to do all they can to prove their case outside of court. This could include going to a therapist and discuss the suffering they have been through, as well as getting a letter from a doctor who can attest to what has happened. They could also get letters from witnesses or family members that were witnesses to the abuse or that know anything about the abuse. Someone will want them to submit letters also, if possible, have them testify in court. Just like proving suffering for non-LPR cancellation, proving the abuse is different for every case and it depends on the body of that evidence someone has and their circumstances.

Working with an Immigration Attorney

One important aspect in cancellation of removal proceedings is proving the battering or suffering that you have incurred as a result of the abuse and often, it is going to be important to have a Virginia attorney do this, especially when you do not have police reports or things like medical records to prove your case.

If you do not have a good body of hard evidence, it is important to have an attorney help you paint the picture for the court. It is also important to get through the logistical requirements necessary to apply for cancellation, such as submitting the forms, getting fingerprints, and getting all of your documents in a row before you reach the date of the official hearing.

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