Lawyers Manual - Unified Court System

316 Lori Cohen
Until recently, the relative petition process was predicated on the
assumption that a permanent resident or US citizen sought legalization of a
spouse’s status to attain family unity. While the assumption held true if the
couple was happily married, it functioned as a weapon in the abuser’s arsenal
against the domestic violence victim. As the sole holder of lawful immigration
status, the abuser could refuse to file on behalf of his family members or
withdraw a pending application, and the intended beneficiaries would have little
recourse. Moreover, all possibilities for the victim to obtain relief would
terminate in the event of divorce or the abuser’s death, even if the couple had
been married for years. A victim could remain imprisoned in an abusive
marriage forever, fearful of deportation if she left.
In recognition of the immigrant victim’s dilemma, and thanks largely to the
efforts of domestic violence and immigration activists, Congress passed the 1994
Violence Against Women Act (VAWA), which included unprecedented protections
for immigrant victims of domestic violence. 20 The VAWA immigration provisions
allow spouses of abusive US citizens or permanent residents and their children to
self-petition, as well as to receive public assistance benefits. Congress has
continued to fine tune the VAWA provisions to correct initial flaws, and has
expanded the categories of aliens eligible for VAWA relief.
Evaluating the Client’s Immigration Status
If an immigrant victim of domestic violence has had any contact with the
immigration authorities at any point in her stay in the United States, she may
have generated a file at USCIS, called an “A file.” The file may provide
valuable information, such as the client’s current immigration status and that of
her abuser, immigration documents filed on her behalf, and any record of
immigration proceedings pending against her. To obtain a copy, the client should
execute a Freedom of Information Act (FOIA) application. 21 Unfortunately, a
speedy response to a FOIA request is rare. USCIS is required to respond to the
FOIA request within ten days, 22 but, in reality, it may take years for a reply. The
regulations provide an appellate process in the event a reply is not timely
given. 23 Ultimately, it may be necessary to file a lawsuit in US District Court to
prompt production of the requested records. 24 As an alternative, if the client is in
removal proceedings, it may be possible to schedule an appointment with the
District Counsel’s office to review the A file.