VAWA Cancellation of Removal
One of the most common types of deportation defense is cancellation of removal. It means that the court cancels your removal, or deportation process, and gives you a green card instead.
The cancellation of removal for immigrant victims of domestic violence is often called VAWA cancellation. VAWA (Violence Against Women Act) cancellation is available to both men and women. If you qualify for this special deportation defense, Immigration will overlook certain aspects of your case that would otherwise prevent you from obtaining a green card. For example, you do not have to be in the United States for as long as other green card or cancellation of removal applicants.
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Published: 10-4-2019
Qualifications for VAWA Cancellation of Removal
In Deportation Proceedings
You cannot get VAWA cancellation from Immigration. Instead, VAWA cancellation is something that you ask an immigration judge to give you as a defense to deportation. You can ask for VAWA cancellation only if you are in removal proceedings.
Family Relationship
Like the VAWA self-petition, VAWA cancellation is available to both men and women who are victims of domestic violence. According to the Immigration Nationality Act*:
“The Attorney General may grant cancellation of removal if: (i) a person has been battered or subjected to extreme cruelty by a spouse or parent who is or was a United States citizen (USC) or lawful permanent resident (LPR) (or is the parent of a child of a USC or LPR and the child has been battered or subject to extreme cruelty by the USC or LPR).”
This means that VAWA cancellation may be granted to an immigrant who:
- Is married to an abusive LPR or USC;
- Is the biological, adopted, or step-child of an abusive LPR or USC. To qualify as an adopted child the adoption must have been completed before the child turned 16. To qualify as a step-child, the parent and step-parent must have married before the child turned 18;
- Has a child in common with an abusive LPR or USC who has abused the child. In this situation, you do not need to be married to the abusive LPR or USC. It also does not matter what the abused child’s immigration status is;
- Is the ex-spouse of an abusive LPR or USC. Fortunately, to qualify for VAWA cancellation, it does not matter how long ago you were divorced. Unlike the VAWA self-petition, which must be filed within two years of a divorce, you can ask an immigration judge for VAWA cancellation regardless of how long you have been divorced from your abuser; or
- Is the intended spouse of an abusive LPR or USC. This protects people who think that they are married, but their spouse did not divorce a previous spouse, and therefore the spouse is a bigamist.
*Source: INA §240A(b)(2)(A)(i)(I); USC §1229b(b)(2)(A)(i)(I)
Physical and Emotional Violence
Abuse does not need to be physical. It can be emotional abuse, too. For example, someone who constantly berates you, undermines your self-esteem, and curses you is emotionally abusive. The United States characterizes any similar behavior as abuse, regardless of the fact that these actions may be culturally acceptable or expected in other countries. As a result, many people are victims of domestic violence and do not realize it. Alternatively, many immigrants who are victims of domestic violence do not report the abuse because they fear the police as much as they fear their abuser. However, the United States takes domestic violence very seriously, and your right to report your abuser is protected by law.
Show Extreme and Unusual Hardship
To qualify for VAWA cancellation, you must show that your deportation would cause extreme and unusual hardship to you or at least one eligible family member. An eligible family member can include your:
- Child who is either an LPR or USC;
- Parent who is either an LPR or USC; or
- Spouse who is either an LPR or USC.
Immigration courts have said that extreme and unusual hardship must be more than the typical hardship that you might expect of someone’s deportation. You or your family member cannot just struggle after your hypothetical deportation, but must truly face extreme and unusual hardship. For example, one court ruled that losing your home and all family ties is not considered extreme or unusual because anyone should expect to lose their home and all family ties with a deportation. Don’t take this lightly. Look for any and all of the evidence that you can possibly find.
Acceptable forms of extreme and unusual hardship will vary depending on who your deportation would affect:
Education
- Would you have access to the same quality of education if you went back to your home country?
- Would you lose scholarships if you left your education in the United States?
Employment
- Are your job skills transferable to your home country? For example, we may need bilingual Spanish/English workers here, but there is not the same kind of demand in Mexico.
- Would your age make if difficult to start a new job or career? Some workers as young as 50 are considered older workers in some countries, which would make landing a job in your field exceedingly difficult, if not impossible.
Health
- Do you have any medical conditions which would not be adequately addressed in your home country?
- Would you have access to a therapist to help you cope with trauma from being a victim of domestic violence?
Family Connections
- Do you have children who cannot leave the United States? Is there a court order keeping them in the United States?
- If you could take your children to your home country, would your abusive spouse pay child support? Would you be able to support your children financially by yourself?
- Do you have all of your family in the United States? Do you take care of your parents? Are all of your brothers and sisters here? Do you have a strong social network here?
Culture
- Do you speak the language in your home country?
General
- If you were deported, who could care for the child or pay for childcare? Would your spouse be able to afford caring for your child if you were deported?
- How old is your child? Are they settled in school? Do they have lots of ties to the community and friends? Are all their friends and family in the United States? Are they close to their cousins, grandparents, and aunts and uncles?
- Does your child have any illness for which they are being treated? Does your child qualify for health insurance in your home country?
Education
- Does your child have any special education needs? Is there an Individualized Education Plan (IEP)? Would this special education be available in your home country?
- Is your child trying to go to college? Could they pay for it without your presence in the United States? If your child went with you back to your home country, could they get the same quality of education there?
- Does your child have activities, sports and hobbies here in the United States? For example, do they play varsity soccer or participate in intramural academic programs? Would any of these activities lead to a college scholarship?
Culture
- Does your child speak the language in your home country?
- Does your child have permission to enter and live in your home country? If not, your child might have to be an undocumented person in your home country.
Care Plan
- Is your parent older and, as a result, you help care for them? Do you take your older parent to medical appointments, assist with banking, and with paying bills?
- Do you live with your parent in order to better take care of them?
- Are you your parent’s only child in the United States? Is there anyone else who could help to care for them?
- Does your parent have any illnesses, or are they beginning to have any cognitive problems?
Financial
- Is your parent economically dependent on you?
- Would your parent be able to get their pension or social security payments sent to another country?
- Is Medicare your parent’s only option for health insurance?
- Does your spouse have a job that requires some kind of license? For example, a law license from Wisconsin cannot be used in Burkina Faso, nor could a realtor’s license from Wisconsin be used in Mexico. In other words, if your spouse was required to move to another country, would their ability to make a living be severely harmed?
- Are your spouse’s job skills transferable to your home country? For example, we may need bilingual Spanish/English social workers here, but there is not the same kind of demand in Mexico.
- Would you spouses’ age make if difficult to start a new job or career? Some workers as young as 50 are considered older workers in some countries, which would make landing a job in their field exceedingly difficult, if not impossible.
- Does your spouse have any medical conditions which would not be adequately addressed in your home country?
- Does your spouse have children from a previous relationship who cannot leave the United States? Would your spouse be required to choose between living with you or raising their children?
- Does your spouse have all of their family in the United States? Do they take care of their parents, are all of their brothers and sisters here, or do they have a strong social network here?
- Would your spouse be eligible to live in your home country, or would they become an undocumented immigrant there?
- Does your spouse speak the language in your home country?
YOUR CHILD MUST REMAIN UNMARRIED
AND STILL BE UNDER THE AGE OF 21
Children can only be used as qualifying relatives for VAWA cancellation of removal as long as they are under the age of 21 and remain unmarried. Until the day the judge grants you lawful permanent residency, your child must continue to meet these two requirements. Make sure you stay on top of your application so that your child does not age out during the process. Also, make sure your child understands that they must wait to get married until the day you are granted lawful permanent residency.
Other Requirements
In addition to the requirements outlined above, you must show the immigration judge that:
- You are a person of good moral character. Read our Good Moral Character blog post to learn more;
- You have been physically present in the United States for three years. Within the past three years, if you have left the United States for less than 90 days at any time or less than 180 days altogether, you meet this requirement. If you spent too much time outside of the United States, you can still convince a judge to give you VAWA cancellation if you can show that you left because of the abuse;
- You do not have anything on your record which would prevent you from getting a green card, such as criminal activity or border-crossing problems. If you have one of these problems, work with your immigration attorney to see if you qualify for a waiver. You can still convince a judge to give you VAWA cancellation if you can show that a crime you committed is tied to you being a victim. If you have any serious criminal convictions, have your immigration attorney work with a criminal attorney.
Spouses Who Apply for VAWA Cancellation
Legitimate Marriage
To apply for VAWA cancellation as the spouse of a USC or LPR, you must prove that you are actually married. This involves two sets of evidence. First, you have to prove that you are married or reasonably believe that you are married. Second, you must prove that your spouse is either a lawful permanent resident or a United States Citizen.
Proving Your Marriage
1. Free to Marry
First, you must show that you are free to marry. In other words, if you or your spouse was previously married, you have to show Immigration that any previous marriages ended in divorce, death or annulment. You can use copies of death certificates, divorce certificates, or copies of court-ordered annulments.
Sometimes an abusive spouse is also a bigamist, which means they remarried without getting a divorce or annulment. The United States does not recognize multiple marriages. So, if your abusive spouse is a bigamist, you will need to show that you reasonably believe that you were married through some kind of ceremony. You can prove this by including details about the wedding in your affidavit.
2. Legally Binding Marriage
Second, you must show that your marriage is legally binding where it took place. Cultural differences can make this step complicated. For example, in Mexico a church-only wedding is not legally binding if it is not also a civil marriage. Your marriage can be religious, but it must be recognized by the government as well. U.S. Immigration will not consider a church-only or ceremonial wedding a valid marriage for immigration purposes. Most people use their government-issued marriage certificate as evidence for their VAWA cancellation. However, some countries, like Somalia, have no government and cannot issue marriage certificates. In these cases, U.S. Immigration will recognize a ceremonial wedding for VAWA as long as the marriage is described in a written personal statement.
The U.S. Department of State provides a list of acceptable documents on their website for each country that has a relationship with the United States. If you are looking for what documents you need to prove a marriage, start by selecting your country and then scroll until you see the marriage certificate section. There you will find the documentation you need to give U.S. Immigration that is specific to your country.
If you are divorced, you will also want to include your divorce certificate. However, some states require a waiting period in between marriages. Wisconsin for example, requires a six-month waiting period, but Illinois does not. It is important to note that if Immigration thinks that you got married in another state just because it has less restrictive laws, they will not recognize your marriage. For example, Immigration will not recognize your marriage if you live in Wisconsin but get remarried in Illinois just because you don’t want to wait the required six months in Wisconsin.
Proving Your Spouse's Status in the United States
Ideally you would show your spouse’s certificate of citizenship, birth certificate, or green card. But when that is not possible, there are some other documents you can use. You could use any previous application that the abuser might have filed for you. For example, if you have a copy of an old application for an alien relative (I-130) you should include that in your VAWA cancellation.
If your abuser had any previous contact with Immigration, they will search their own records for a birth certificate or copy of a green card that the abuser might have filed for you. Or, if your abuser is a naturalized USC, you could ask Immigration to search their records for documents that would have been filed as part of their citizenship application. However, this does not always work, especially if you don’t have a unique identifying number for your abuser such as an alien registration number or a social security number.
Good Faith Marriage
You must show Immigration that you married in good faith. In other words, you didn’t get married just to get a green card. Proof of a good faith marriage will depend on your age and personal circumstances, but generally you must show that you have shared a life together. Learn more on our Good Faith Marriage blog post.
However, as an abused spouse, you may endure treatment not found in a typical marriage. For example, your abuser may not give you access to money. You must explain the unusual aspects of your marriage in your written statement, or affidavit.
YOU CAN LEAVE YOUR ABUSER
You do not need to stay married to your abuser or stay in an abusive home. It is also worth noting that the United States deports immigrants who have criminal convictions for domestic violence.
Application Details
VAWA Cancellation Versus VAWA Self-Petition
Unlike the VAWA self-petition, you can receive both an immigrant visa and lawful permanent residency at the same time through VAWA cancellation. Additionally, the VAWA cancellation requirements are less demanding than the self-petition. For example, to qualify for VAWA cancellation:
- It does not matter how long you have been divorced from your abusive spouse, how long ago they died, or how long ago they might have been deported or renounced citizenship;
- If the child you have in common was abused, it does not matter if you were married to the abuser;
- You will not be denied for having lied about being a USC; and
- You will not be denied for having unlawfully traveled back and forth across the U.S. border too many times.
VAWA Cancellation and Lawful Permanent Residency
After you submit your statement and evidence, your attorney will present your VAWA cancellation case to the court before an immigration judge. Then you will wait for a decision following your hearing. By law, Immigration gives only 5,000 final decisions every year, but so many people are in deportation that Immigration regularly exceeds the decision limit. Stay in close contact with your attorney after your hearing in case there are any additional steps you need to take before a final approval. Technically, you do not have lawful permanent residency (a green card) until your case has a written decision.
Work with an Immigration Attorney
You can apply for VAWA cancellation as soon as you are in deportation. You do not have to wait for your first, or master, hearing. But this is a decision that you must make with your lawyer.
VAWA cancellation is complicated, and representing yourself in court is not something that you can do yourself. There are many details you have to be aware of, including strict filing deadlines and sending specific copies to the government’s attorney. You would hate to lose your case because you sent the wrong number of copies or you missed a filing deadline. This is why having an experienced immigration attorney is so important.
Your Personal Statement
One of the hardest parts of a VAWA cancellation application is preparing your detailed statement, or affidavit. Writing a strong statement is important because the judge will read it before your hearing. This is their first impression of you. A good affidavit does not guarantee that your VAWA cancellation will be approved, but it can help.
To write a strong affidavit, you will have to remember a lot of things that are painful to think about. Some people really benefit from speaking to a therapist or counselor. Your attorney may be able to refer you to a professional who can help you with any emotional trauma.
Lastly, when you prepare your affidavit, do not try to sound like a lawyer. Use your own voice. Do not use big words and long sentences that you would normally never use. When the judge reads your affidavit, they should feel like they have personally met you.
Biometrics Appointment
After you mail in your application, Immigration will send you an appointment notice for biometrics. This is when you will have your digital photo and a digital fingerprint taken at an Application Support Center. If you cannot make it to the appointment Immigration scheduled for you, you must notify them. Learn more by reading our Biometrics Appointment blog post.
Your fingerprints will be cleared and are valid for one year from the date that they are taken. However, Immigration will update your prints without you going back to have them retaken. This process changes from time to time, so check with your lawyer to make sure that this is still the procedure.
Additional Evidence
When you submit your application, you may want to include proof of the abuse. You can use police reports, medical records, or certified court dispositions. A certified court disposition is an official document from a court clerk which states the result of a case. If your abuser has been to court for another case of reckless behavior or abuse, a certified court disposition can help support your VAWA cancellation of removal.
Also, in Wisconsin you can look up a person’s civil and criminal history online through the Wisconsin Circuit Court Access Program, or CCAP. You can use your abuser’s record as evidence to support your case. For example, your abuser might have a criminal history for hurting someone else. Or maybe a former partner filed a restraining order against them. You might find drunk driving or controlled substance abuse arrests which would help prove that they abuse alcohol or drugs. Feel free to use anything you can find that will help prove your story.
You also may want to include detailed statements from anyone who knows about the abuse and can describe what they have seen and heard. Affidavits from friends and family can help give the judge a clear picture of your story.
A Therapist Can Help
If you are a victim of domestic abuse, you should consider talking to a therapist. Not only can a therapist help your immigration case by writing a report, but they can help you heal. Physical and emotional abuse can cause problems such as depression, low self-esteem, and feelings of helplessness. A therapist can help you feel like yourself again.
At Catholic Charities Milwaukee we have bilingual therapists who help our clients both with reports for Immigration as well as getting their lives back on track. Your attorney may be able to make a referral for you.
Deportation Hearings
Master Calendar Hearing
Your first hearing is called a master calendar hearing. If you have not found an attorney yet, you can tell the judge that you need more time to find one before your master calendar hearing. However, you can’t put off finding one forever. Eventually the judge will move forward with your case.
At your master calendar hearing, the judge will want you to admit to the allegations or charges made against you in the notice to appear. The allegations may look really simple, but they are not. For example, sometimes you are charged as inadmissible and other times you are charged as deportable. This distinction between “inadmissible” and “deportable” likely will not make any sense to you, but it will make sense to a good lawyer. Make sure you work with an experienced immigration attorney, because you don’t want to admit to something that isn’t true.
Your lawyer will then tell the judge what you intend to ask of them. In this case, VAWA cancellation. Then the judge will give you some instructions which are very important to follow. Some judges will give you deadlines that you do not want to miss.
Merits Hearing
During your merits hearing, your lawyer can also ask you questions before the judge. The attorney for the government and the judge can also ask you questions. This hearing is a chance for everyone to clarify the information in your application.
Discretionary Relief
Technically, you do not have a legal right to VAWA cancellation because it is a form of discretionary relief. In other words, even if you meet all of the qualifications for VAWA cancellation, the court is not required by law to give it to you. They must feel motivated by your story and respect your character enough to want to help you. This means you have to not only think about how you present your case in court, but also how you present yourself. This is another reason why it is so important to hire a good immigration attorney.
STAY IN TOUCH WITH YOUR LAWYER
Remember: right now there are so many people in deportation that there is a backlog. Again, this means you have to wait for final approval before you can get your green card. Stay in touch with your lawyer so you know what is going on with your case. You may need to provide additional evidence or take further action, and you do not want to lose your case because you missed any deadlines.
Seek the Help of a Good Lawyer
We Can't Stress This Enough
Most immigration processes are detailed and complicated, and the help of a good immigration lawyer can make or break your case. But if you are in a deportation hearing, now more than ever, you need to find competent legal representation with experience in immigration law. Our lawyer shopping guide can help you start your search.
Resources
- If you need somewhere to stay away from your abuser, please contact the Wisconsin Domestic Violence Shelters organization.
- National Domestic Violence Hotline:
- English: 1-800-799-7233
- En Español: 1-800-787-3224 (TTY)
Frequently Asked Questions
VAWA Cancellation FAQ
No, you cannot. However, Immigration can give parole to the parent of an abused child or the child of an abused adult. Parole is a way for someone to enter the country legally. If you help someone get parole, they must apply for a green card afterwards. Work with an immigration attorney to help your family gain status.
Yes. Unlike the VAWA self-petition, there is a fee for both the application and for biometrics (having your photo and fingerprints taken). The judge, however, can give you a fee waiver.
Yes. In fact, your lawyer may suggest it because immigration judges are not experts in domestic violence. Some people apply for a VAWA self-petition in order to convince their judge that there was domestic violence or emotional cruelty in the relationship. If you have an approved VAWA self-petition from Immigration, the judge might see that as convincing evidence that you have been a victim. This would help a VAWA cancellation application.
No, unfortunately, they cannot.
Yes. This also means you can get a driver’s license and a social security number.
If you get VAWA cancellation of removal based on a qualifying marriage to a USC, you only have to wait three years before you can apply for citizenship rather than the typical five-year waiting period. Also, you can submit your application 90 days before your three-year waiting period is complete. However, be very careful to count out 90 days exactly. If you submit your citizenship application any earlier than 90 days in advance, Immigration will reject it. Read our Citizenship Application page to learn more.
Additional Resources
Some immigration applications require you to go to a biometrics appointment. Also known as an ASC (Application Support Center) appointment, the main purpose is for Immigration to take your picture and fingerprints for their records.
The events outlined in this blog post represent the typical timeline for the detention and deportation process. Some, or all of these scenarios could apply to you if you are (1) picked up by Immigration and Customs Enforcement (ICE) or (2) if your case is referred to the immigration court.
All immigrants who use their marriage as a part of their immigration process will need to demonstrate that they have a legitimate relationship. Proving a good faith marriage will not look the same for all couples, but ultimately you need to show that you share a life together.