[COLUMN] ‘Physical abuse’ not required for VAWA green card

DEAR Atty. Gurfinkel:

I married a U.S. citizen for love, hoping we would live “happily ever after.” Unfortunately, soon after marriage, he changed. He drank a lot, gambled, took drugs, called me names, said he would never petition me and would try to get me deported. He gets very angry when I laugh and speak with my family in Tagalog, does not want me to see them or have them over, and just wants me to stay at home all the time and have no friends. He has never been physically violent with me, but I am just so miserable and afraid.

Is there any way to legalize my status in this horrible marriage, especially when he refuses to petition me and threatens to have me deported?

Very truly yours,

TF

Dear TF:

Perhaps you could be eligible to file a self-petition (petition yourself) as a battered spouse, based on the Violence Against Women Act (VAWA). (That law is not limited to abused wives, but could also apply to abused husbands, and even in same-sex marriages.) Also, the law does not require that you be physically abused or battered, as people could be eligible if they have been subjected to “extreme cruelty,” or severe mental abuse and harassment. It also applies to a person who has been abused not only by a U.S. citizen spouse, but also by an immigrant/green card holder spouse.

The basic requirements include:

1. The marriage was entered in good faith (meaning it was not fixed), the person resided with the U.S. citizen or immigrant spouse, and was battered (physically abused) or subject to extreme cruelty during the marriage.
2. Extreme cruelty could include threats of harm to the alien or to the alien’s family members, intimidation and humiliation, chastising or making fun of the victim in public, displaying weapons, threatening to contact immigration authorities to have the person deported, economic abuse, such as refusing to give the victim any money or prohibiting them from looking for a job or trying to get them fired from an existing job, stalking or harassing the victim at his or her workplace, social isolation, such as restricting the victim from using the phone or contacting friends or family members, sexual abuse, including forced sexual activity, threats to call immigration to have the person deported, being extremely jealous and accusing the victim of being flirtatious or cheating, even though they are not, and verbal abuse, such as yelling, screaming, insulting, or otherwise mistreating the person.
3. It does not require that the person be physically abused or beaten up to qualify for a green card under VAWA. As you can see, extreme cruelty includes mental abuse, yelling, and threats.
4. Evidence of battery or extreme cruelty could include police reports, medical records, affidavits from clergy, or social workers, restraining orders, photographs showing bruises, or other evidence that could show a pattern of abuse and/or violence. Even if there are no police reports, a person could still qualify if they properly present their case or by demonstrating a pattern of mental cruelty.

If you married for love, but are now living in an abusive marriage, you should consult with an attorney who can evaluate your situation and determine if you could be eligible to file a self-petition (without the need for the abuser to file a petition) and get a green card on your own. Moreover, these filings are “confidential.” But most important, make sure that if you are in an abusive relationship, look after your physical safety.

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Michael J. Gurfinkel has been an attorney for over 40 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different, and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories,” endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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