Domestic Abuse in Immigration

Author: Joseph P. Murphy, Esq., Allegheny Immigration Group

Release Date: 12/05/2019 (YouTube)

Author’s Statement:

Alright, Good evening, my name is Joe Murphy. I’m a lawyer with Allegheny Immigration Group here in Pittsburgh. This is our Thursday live.

Today I want to talk about something that’s a little bit unusual and kind of a sore subject or a serious or unhappy subject and that’s the subject of abuse; in marriages when there is an immigration component. As I have discussed with you in the past, when a citizen marries a non-citizen, that non-citizen gets a conditional permanent resident card. It’s a conditional green card and the conditions are that the non-citizen spouse and citizen spouse be in a bona fide marriage, that’s a marriage that is real, not some faked up green card marriage. And a bona fide marriage means a marriage that not only is not faked up but there’s good reason to believe it isn’t faked up. There’s co-mingling. The people live together, the people have joint bank accounts or reciprocal life insurance policies, even perhaps a child. Well, that’ll be the ultimate evidence of co-mingling and bona fide marriage. Whether or not the marriage is bona fide at its inception, situation can develop. People can grow apart, people can get angry, people can be tempted away…but most importantly is when the marriage becomes abusive and you have a situation where in many cases the non-citizen spouse could feel trapped. “Oh well, this person is horrible and they’re mean and I’m actually scared of them but I’m stuck in this marriage for two years or I’ll never get my Green Card.” This is a terrible situation. You could see it’s a recipe for disaster. That anger will build and can build and can become quite explosive, even dangerous. People get hurt or even killed. In 1994, I believe it was President Clinton signed, what was called the Violence Against Women Act. And that had a lot of ramifications; as it applies to immigration based on marriage, primarily intended to protect the spouses or the non-citizen spouses of American citizens from having to stay in the marriage for the two years, particularly where the marriage was descending into abuse, potentially again even violence.

So How Does That Work?

In a regular marriage, the citizen spouse is the petitioner, the sponsor of the non-citizen spouse. We can actually revoke that sponsorship if they wanted to, they could withdraw their petition for the alien spouse if things broke up. But if it didn’t work, there was abuse in the marriage, the non-citizen spouse can self-petition and I don’t know why but a lot of my colleagues in the law aren’t advising or aren’t sensitive enough to pick up where these spouses are being abused. They’ll come and they’ll talk to me all the time. I see two or three cases a week where someone has married an American citizen and is being abused by that American citizen and does not want to divorce or even leave the home, for fear of losing a green card or never getting one. So again, as I was saying, under the Violence Against Women Act, the non-citizen spouses being abused can file on their own. They can self-petition for a Green Card, they don’t need the abusive spouse, they don’t have to say with the abusive spouse. If you’re in an abusive situation, you don’t have to stay with that abusive spouse. You can file on your own.

There are requirements that has to be demonstrated to get a self-petition done. I have a list of them on the screen.

One is that the abuse has to be at the hands of a US citizen or lawful permanent resident. So, if it’s another non-citizen that’s, or a non-permanent resident that’s abusing you, that won’t qualify for a self-petition.

The second one is they have to prove that you had a legal relationship or that you still do have a legal relationship with the abusive spouse. It doesn’t have to be ongoing, you could be divorced but you have to prove that the person who abused you is either, well first that they’re a citizen or a permanent resident, second that you a marital or family relationship with them and that’s usually the proof; a marriage certificate or a birth certificate if you’re a child of a non-citizen spouse being abused by the citizen spouse.

The third thing is that you have to prove that you resided with the abuser. A lease together, a deed on a house, bills for utilities coming in both names at the same house, things of that nature would be supportive of that. If you don’t have any of that and sometimes, particularly non-citizens who haven’t put down a lot of ties with the United States, who don’t maybe social security number yet there’s not a lot of that sort of documentation, so you can use affidavits, people in the community who knew that you lived at the house with the abuser.

The next one, of course you’re gonna have to prove the abuse. Now, that can be quite difficult or quite hard. Where the abuse has descended into really rotten physical abuse and there’s hospital visits and police reports, that, that’s quite easy. You may even have been in a criminal finding of abuse or a family finding of abuse in the marriage in the marriage. Those documents will all be submitted in to support your contention that you are an abused or a battered spouse of an American citizen or permanent resident.

Where it hasn’t gotten into the actual physical abuse that the law clearly recognizes is something that they have to put their foot down and stop. Records of social workers that you talk to, counsellors. In many cases people have been abused go through post-traumatic stress and they may be seeing a mental health professional; all those things can strongly support a finding that you’ve been abused and we’re just talking now about the one prong of the things you have to prove to self-petition for a green card when you’ve been abused an American citizen spouse. And then that prong is proving that the abuse did in fact happen. And I gave some examples of obviously police reports and court findings, notes from hospitals, social workers, mental health professionals; in many cases people who’ve been abused and particularly people that’ve been abused and afraid to leave the marriage do suffer significant, I don’t know what to all it, psychological or psychiatric discomfort and they do really need to see mental health professionals. If you’re in this situation, you don’t have to stay in the marriage for two years. For one reason or another and I don’t know what it is (6:24), my colleagues aren’t referring people into these…Many cases, lawyers call this a VAWA waiver, and that’s V-A-W-A, Violence Against Women Act. And again, it was originally intended as part of a Clinton-Era strategy to protect women from domestic violence. However, because we have equal protection in United States, men can apply for a VAWA waiver too. And men do get abused so I’m talking to the men out there too, not just females who’re being abused by American citizen spouses, but men; and it doesn’t have to be an opposite-sex spouse. If you’re in a same sex marriage and you’re being abused- Anybody can apply for this benefit as long as they file, as long as they fulfil the requirements of that I’m going over now, so it could be a male-on-male, female-on-female, the abuser could be male or female and so could the victim. If you’re in an abusive immigration-through-marriage case, you don’t have to stay in for two years, you can apply for a waiver under VAWA and we can get you a green card without that abuser…The law doesn’t want you staying in there, I don’t want you staying in there, nobody who cares about you wants you stay in the abusive marriage and you don’t have to.

Alright, let’s see, the other thing that you have to do is prove that you entered the marriage in good faith. If this was some kind of faked up Green Card marriage and those happen; you’re not gonna be able to get a VAWA waiver on that because you’ve already lied to the government once. So, that and again the good faith and bona fides are things I talked about in the very beginning of this broadcast, stuff like live-together, stuff like joint bank accounts, lease together, proof that you are together, affidavits from your community, people said, “ yes, they’re a perfectly normal couple. We saw them all the time. They represented as husband and wife.” I’ve often said the ultimate evidence that it’s a bona fide marriage is having a child together. Interestingly, a lot of times the counselling records that might use to prove a VAWA waiver case, prove the abuse to say, where you know these people have been to a social or mental health worker. Those counselling records also help to prove that the marriage was a good faith marriage, that it was a bona fide. People who are not in bona fide marriages don’t go to counsellor to try and keep them together. So that sort of evidence that you went to group counselling can not only be used to prove the abuse, the, you know, the mental health worker went taking note of these people yelling at each other or husband’s yelling at wife all the time; But it can also be used to prove that the marriage was in fact bona fide and good faith again, and the thinking there is that people don’t go trying to save some faked-up marriage…because it’s…it was never real to begin with, there’s nothing to say. So, if you can, that’s, those are the requirements, that’s it.

You don’t have to prove that you’re in a, I would think that you have to be innocent yourself , you can’t be counter-abusing or procuring your own abuse but then that can, that can take a lot of forms, that’s a much longer conversation than I’m prepared to get in here and it’s actually not in the field of…the professional field I’m in. But I do want you all to think about this pretty seriously because I know that there are lots of people that are in marriages that are abusive. When the marriage is between a citizen and a non-citizen and the non-citizen needs that marriage to stay together for two years so they can get their unconditional permanent residence. That’s an unequal power level for the vast majority of people who are not sadistic, who are not mentally ill, that unequal power level does not manifest in abuse. This is relatively rare, I’m talking about… I see lots of it but what I’m talking about is the ones where there’s, you know, something’s going wrong and I think that that may reveal again the unfortunate consequence of a combination of unequal bargaining power between the citizen and non-citizen and perhaps something else.

Oh boy, sorry about that…the little iPhone I was recording this on fell over in the middle of live and it was kind of shocking and I’m back on now and I was talking about the domestic abuse waiver of the two-year requirement in immigration-through-marriage cases. You know we, most people talk about the tears, when we talk about the explains, we talk about the tears, again there’s an exception where there is demonstrable abuse between the citizen or by the citizen or permanent resident spouse of the non-citizen non-permanent resident spouse.

My name is Joe Murphy, I’m a lawyer here with Allegheny Immigration group. We’re in Pittsburgh, Pennsylvania. Immigration law is Federal law and because of that I practice all over the United States. Right now, I’m working with people in Pittsburgh, Philadelphia, Ohio, West Virginia, Virginia, Maryland, Seattle and San Francisco. We can make it easier on you with modern technologies like email, video conferencing, and online sign-up and pay. So, don’t be afraid to reach out. We can use the technology and if you need for a hearing, I can jump on a plane.

I practice primarily family and humanitarian immigration. So that means I handle immigration through family relationships like marriage. And also, humanitarian things, people that been trafficked, people that are victims of crimes, and people that are seeking asylum in the United States. If you have a question about the topic I discussed today, or any of the topic of that sort, please feel free to contact me. My office number is 412-521-2000. My cell, text and Whatsapp number are all the same number, 412-973-3442. I really like the Whatsapp so if you don’t have that yet, I encourage you to get it, it’s a free app, it’s encrypted end-to-end and it’s international so it’s great in my business. It’s also easy for me to keep track of people and my clients. There’s video, voice and text.

Hey Sammy, how are you? I was just talking Sammy about the 2-year marriage requirement that is that people who marry a citizen and want to get a Green Card or an unconditional Green Card have to get into that marriage and stay married for two years; and the recourse that the non-citizen has when they get abused. There’s an exception to that 2-year rule where the non-citizen spouse is being abused and that’s part of the Clinton era Violence Against Women Act. I’m really sorry coming in at the end cause you’re a lot of fun usually and ask good questions. But I was just about to sign off and I know I owe you a call later tonight so I will. But anyway, thank you for watching tonight.

My name is Joe Murphy. I’m with Allegheny immigration Group. Again, my office is 412-521-2000. My cell, text and Whatsapp and I like that Whatsapp, that number is 412-973-3442. Don’t hesitate to reach out to me. I talk to people from the minute I get up to the minute I go to bed. And I’m happy to do it. So, people call me all the time and you can too and I hope that you do. Thank you for watching and good night.

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