*Briefs- Violence Against Women Act-VAWA Self-Petitions, Suspension of Deportation and Cancellation of Removal

VAWA Self-Petition Cases

Esteban Cabezas (2010) Appeal to the United States Citizenship and Immigration Services Administrative Appeals Office. Amicus submitted by Legal Momentum, National Network to End Violence Against Immigrant Women, and represented by Andrew Taylor, of a denial of a VAWA self-petition by the United States Citizenship and Immigration Services, Vermont Service Center. This case raises important issues about the any credible evidence standard to be applied in VAWA self-petitioning cases and on immigration related abuse and the role this abuse plays as part of a pattern of extreme cruelty.

Topics Addressed in this Amicus Brief:

  • The Preponderance of the Evidence Standard is Satisfied by Credible Evidence that is Consistent Internally and Externally with Available Information………….5
  • Applicant Submitted Credible Evidence that his Spouse Subjected him to Battery and Extreme Cruelty………9
  • USCIS Erroneously Rejected Applicant’s Credible Evidence of his Good Faith Marriage…..17

Arguijo v. USCIS (July 24 2020) US Court of Appeals 7th Circuit. The National Immigrant Women’s Advocacy Project filed an Amicus brief in the 7th Circuit in support of NIJC’s appeal represented by K&L Gates LLP. The Seventh Circuit overturned the District Court and The Court handed down its decision on March 12, 2021 confirming that in the context of the Violence Against Women Act “stepchild” status survives divorce. Divorce between the natural parent and the abusive stepparent does not cut a stepchild victim off from VAWA immigration relief, including self-petitioning.

Topics Addressed in this Amicus Brief:

  • The district court’s and USCIS’s interpretation of the term “stepchild” as requiring an existing marriage ignores the plain text of 8 U.S.C. § 1101(b)(1)(B). ……………………………………………….. 4
  • Read as a whole, 8 U.S.C. § 1154(a)(1)(A)(iv) and § 1101(b)(1)(B)unambiguously provide that stepchild status starts with, but does not end, with marriage. …………………………………………………………………… 4
  • In other statutory contexts, Congress has been explicit with its intent that divorce terminates stepchild status, suggesting that no such termination occurs in the instant context. ……………………… 6
  • The definition of stepchild in 8 U.S.C. § 1101(b)(1)(B) is clear when read within the overall context of VAWA’s underlying purpose and relationship to the INA. ……………………………………………………… 7
  • Even if 8 U.S.C. § 1101(b)(1)(B) is susceptible to USCIS’s urged interpretation, this Court should not adopt that reading since it leads to absurd results and overlooks the impact of the very abuse VAWA seeks to mitigate. ………………………………………………………………………………………………….. 9
  • USCIS’s reading of the statute is meaninglessly formal and would yield absurd results.………………………………………………….. 9
  • The proper meaning of the statute recognizes what science confirms: In the context of abuse, a stepparent abuser creates enduring and psychological trauma for the victim. …………………………… 10

Geidy Mavely Soto Alvarado And Mauricio Antonio Garcia Soto v. Merrick Garland (June 13 2023) US District Court of Rhode Island. NIWAP, represented by Crowell and Moring, led an amicus brief that was joined by Harvard Law School professors and clinics, the ACLU, the Rhode Island Coalition Against Domestic Violence, and all of the major women shelters in Rhode Island. This brief argued that USCIS had misinterpreted VAWA 2000 amendments that were designed to allow VAWA self petitioners to divorce, file their self petitions, and after filing remarry with no impact that would lead to denial of the application. In this case an immigrant for self petitioner remarried year and ½ after filing but before her self-petition case was approved and USCIS revoked or approved self petition. Amici won a motion to reopen the District Court’s denial of the self petitioner’s case and the trial will proceed on the merits. Map is being represented in this case by Crowell and Moring.

Topics Addressed in this Amicus Brief:

  • USCIS Did Not Have Discretion to Deny or Revoke Ms. Soto Alvarado’s Petition on the Basis of Remarriage. ………………………………………………………….. 16
  • The First Circuit’s Decision in Bernardo Is Distinguishable Because USCIS’s Decision Here Was Not Discretionary. ………………………………………… 20
  • The Court Should Grant Plaintiffs’ Motion Because Adjudication of Subject Matter Jurisdiction Under 8 U.S.C. 1154(h) in This Case is Vital to Achieving Congress’s Intent.……………………………… 21

VAWA Cancellation of Removal and Suspension of Deportation Cases

Aguilar-Jimenez, (2002) Board of Immigration Appeals. Amicus brief, represented by Crowell & Moring, discussing the “extreme cruelty” and “extreme hardship” standards in the context of requests for suspension of deportation under VAWA, specifically that extreme cruelty includes the psychological and emotional abuse imposed on a child who is forced to watch as a parent is battered by another parent.

Topics addressed in this Amicus Brief:

  • Congress Enacted VAWA to Protect Immigrant Women and Children from Domestic Violence and VAWA Should be Uniformly Applied
  • The History and Intent of VAWA…………………..8
  • VAWA Remedial Provisions……………………………11
  • In VAWA Suspension Cases the Court Must Understand and Consider the Nature and Impact of Domestic Abuse in Making the “Extreme Hardship” Determination……15
  • Extreme Hardship Factors Should Be Interpreted To Fulfill The Goals Of VAWA In Suspension Of Deportation Cases……………….15
  • Factors That Relate To The Nature And Effect Of Domestic Abuse Must Be Examined In Making the Extreme Hardship Determination
  • A Child Who Witnesses Domestic Violence Against a Loved One Has Suffered Extreme Cruelty Under the VAWA Provisions and Must be Protected from Further Cruelty…………………………33
  • The 4,000 Cap of Section 309(C)(7) is Merely a Limit on the Number of Applicants Entitled to an Adjustment of Status Following a Grant of Suspension and not a Limitation on the Number of Applicants Entitled to Suspension of Deportation………..52-53

Laura Luis Hernandez v. Ashcroft, (2002) U.S. Court of Appeals for the 9th Circuit. NOW Legal Defense Fund, represented by Crowell & Moring, submitted this amicus brief describing the dynamics of domestic violence and extreme cruelty experienced by immigrant victims and the legislative history and purpose of the Violence Against Women Act’s immigration provisions offering suspension of deportation for immigrant victims of battering or extreme cruelty. The 9th Circuit sited the material contained in the brief in its opinion.

Topics Addressed in this Amicus Brief:

  • VAWA Provisions Must be Interpreted to Protect Domestic Violence Victims as Congress Intended……3
  • “Extreme Cruelty” Encompasses Physical, Psychological and Emotional Abuses…..11
  • Domestic Violence Is Universally Recognized to Include Physical, Psychological and Emotional Components………………….12
  • The Acts That Occurred in the United States Constitute “Part of an Overall Pattern of Violence Qualifying as “Extreme Cruelty”……………….26
  • Domestic Violence Often Manifests as a Cycle……………….27

Perales v. Ashcroft, (2003) U.S. Court of Appeals 10th Circuit. Legal Momentum, represented by National Immigration Project of the National Lawyers Guild, BIA, Arnold and Porter, submitted this amicus brief discussing the any credible evidence standard and the definition of battery or extreme cruelty in an immigrant victim’s Violence Against Women Act suspension of deportation case.

Topics Addressed in this Amicus Brief:

  • VAWA’S Ameliorative Intent is Evidenced in the Legislative History……………………………….2
  • The Social Science on Domestic Violence Supports Perales’ Testimony…………………………………………………………..9
  • The Board of Immigration Appeals and Immigration Judge Failed to Follow Congressional Intent and to Examine the Social Science When They Found Perales’ Testimony on Marital Rape Incredible………………………………….…14
  • Credible and Corroborated Evidence Supports Finding that the Petitioner Suffered Extreme Cruelty……………………………………………19

Rosalina Lopez-Umanzor, (2004) Board of Immigration Appeals and the U.C. Court of Appeals for the 9th Circuit (2004). Women’s Legal Defense and Education Fund and others, represented by John Tehranian O’Melveny & Myers LLP and Kirkpatrick and Lockhart, submitted these amicus briefs discussing violations of a victim’s due process rights when an immigration judge denies the victim the opportunity to present expert testimony on domestic violence in a cancellation of removal case and presenting social science data that influences how judges should make credibility determinations in VAWA cancellation of removal cases.

Topics Addressed in this Amicus Brief:

  • Judge Warren’s Actions in the Proceedings Below Constituted a Flagrant and Resounding Assault on Lopez-Umanzor’s Due Process Rights…………………….8
  • Judge Warren’s unbridled usurpation of the prosecutorial function represented an impermissible violation of due process and the separation of roles in the courtroom…………..9
  • Warren’s Reliance on Impermissible Speculation, Subjective Evaluation, and Unsubstantiated Conjecture in Reaching His Adverse-Credibility Finding Constitutes Reversible Error…………….25

Obiaga and Berrocal v. Ashcroft, (2005) U.S. Court of Appeals 9th Circuit. Legal Momentum, represented by National Immigration Project, submitted this amicus brief discussing any credible evidence rules and extreme cruelty in VAWA Cancellation of Removal cases. (National Immigration Project of the National Lawyers Guild).

Topics Addressed in this Amicus Brief:

  • EOIR Must Implement the Ameliorative Intent of VAWA’s Immigration Provisions…….4
  • Congress Mandated a Special ‘Any Credible Evidence’ Standard in VAWA Immigration Cases……5
  • Ms. Obiaga’s Proffered Evidence Met the Any Credible Evidence Standard………8

Nvart Idinyan (formerly Nvart Huckfeldt) (August 9 2005) Board of Immigration Appeals. The National Network to End Violence Against Immigrant Women, represented by Crowell and Moring, filed this amicus in support of the immigration judge’s finding that plaintiff qualified for cancellation of removal under VAWA and refuting DHS assertion that once a victim reached a “safe house” she should no longer have access to VAWA provisions. Decision: https://niwaplibrary.wcl.american.edu/pubs/nvart-decision

Topics Addressed in this Amicus Brief:

  • None Of The Evidence DHS Cites In Support Of Its Argument That Stems Directly From The Abuser, Vaughn Huckfeldt, May Be Considered To Make An Adverse Determination Of 11 Admissibility Or Deportability Against The Respondent In This Case, And Should Be Stricken From The Record.
  • The Legislative Intent of the Violence Against Women Act Was Clearly to Include Such Persons as the Respondent in the Class of Aliens Eligible Under INA § 240A(b)(2).
  • The Respondent Has Met Her Burden Of Establishing That She Suffered Abuse And Is Therefore Eligible For Relief Under INA § 240A(B).
  • The Respondent Met Her Burden Of Showing That Her Removal Would Cause Extreme Hardship To Herself And Her United States Citizen 9-Year Old Son.
  • DHS Was Not Deprived Of Its Right To Present Its Case.
  • The Immigration Judge Was Correct In His Finding That Ms. Idinyan Did Not Commit Marriage Fraud.

Kewan, (August 8 2005) U.S. Court of Appeals for the 9th Circuit. Northwest Immigrant Rights Project submitted an amicus brief discussing research data and the dynamics of domestic violence against male victims and VAWA’s gender neutrality offering protection to both male and female victims.

Topics Addressed in this Amicus Brief:

  • The Immigration Judge had no authority to reject the legal findings made by U.S. Citizenship and Immigrations Services in denying his application for adjustment of status under INA § 245(a)……………….3
  • Unlawful decisions cannot be shielded from judicial review…….11
  • Male Victims…………………19

Sanchez v. Gonzalez, (2006) U.S. Court of Appeals for the 7th Circuit. Legal Momentum, The National Network to End Violence Against Women, and others, represented by K&L Gates, submitted this amicus brief discussing the Violence Against Women Act’s legislative history and purpose and the special motion to reopen provisions designed for immigrant victims filing VAWA cancellation of removal cases. The trial court and BIA failed to offer Sanchez access to VAWA’s motion to reopen provisions. Additionally, Sanchez’ trial counsel was unfamiliar with VAWA’s special rules and provided Ms. Sanchez with ineffective assistance of counsel.

Topics Addressed in this Amicus Brief:

  • The Board Of Immigration Appeals Erred By Failing to Apply Section 825(a)(1) Of The Violence Against Women Act, 8 U.S.C. § 1229a(7)(c)(iv), And Department of Justice Reauthorization Act of 2005 To Ms. Sanchez’ Motion To Reopen …………………………………………………………… 3
  • In enacting the Violence Against Women Act and subsequent amendments and reauthorizations, Congress made clear its intent to offer additional protections to immigrant women who have been victims of domestic violence …………………………………………………. 4
  • The Board of Immigration Appeals Erred In Its Determination That Ms. Sanchez’ Former Counsel Did Not Offer Ineffective Assistance When He Withdrew Her Application For VAWA Cancellation Of Removal…………………………………………………. 12
  • In enacting VAWA and its progeny, Congress intended immigration tribunals and reviewing courts to consider the special circumstances affect immigrants who have been victims of domestic violence……………………………………… 12

Ramirez-Avila, (January 26 2006) Board of Immigration Appeals. Legal Momentum and others, represented by Arnold and Porter, submitted this amicus brief discussing the Violence Against Women Act’s lesser extreme hardship standard and the approach to be taken in VAWA cancellation of removal cases with regard to good moral character.

Topics Addressed in this Amicus Brief:

  • VAWA’S Cancellation of Removal Statute was Enacted to Protect Battered Immigrants and Congress has Continued and Strengthened that Protection in Subsequent Legislation…….…………. 10
  • The Immigration Judge Failed to Apply VAWA-Specific Immigration Statutes When Evaluating Ms. Ramirez’s Credibility and the Potential Hardship of her Removal………………….15
  • Immigration Judges Must, Under VAWA, Consider the Nature and Impact of Domestic Abuse when Evaluating a Battered Immigrant’s Credibility..……………………17
  • Immigration Judges Must Understand and Consider the Nature and Impact of Domestic Abuse when Considering “Extreme Hardship” in VAWA Cases……………. 30
  • Under VAWA,”Battery” and “Extreme Cruelty” Encompass Physical, Psychological and Emotional Abuse, and Ms. Ramirez Presented Evidence of Both ……..……39
  • VAWA’S Good Moral Character Requirement Recognizes the Difficulties of Enduring and Attempting to Escape from Violent Relationships………….. 41

Rosario v. Holder (May 10 2010) US Court of Appeals 2nd Circuit. National Network to End Violence Against Immigrant Women respectfully moves pursuant to Federal Rule of Appellate Procedure for 29 for leave to file an amicus brief in support of Appellant Josefa Rosario. Client placed in removal proceedings, concedes removability and applies for VAWA Cancellation of Removal. IJ denies cancellation based on finding that there is not substantial evidence of battery to the extent envisioned by the statute and not substantial evidence of extreme hardship. BIA affirms IJ. The decision was wrong because the IJ ignored an analysis of extreme cruelty completely and even though Ms. Rosario and her witness were found to be credible – focused on the lack of police reports and medical records – thereby holding her to a standard higher than the any credible evidence standard. Battery and extreme cruelty are non-discretionary determinations that can be reviewed by that court. Ms. Rosario has now filed brief with 2nd Circuit.

Topics Addressed in this Amicus Brief:

  • This Court has Jurisdiction to Review the BIA’s Cancellation Denial Here…..4
  • Congress Intended VAWA to Protect Domestic Violence Victims; It Should be Applied to Best Fulfill the Clear Congressional Intent
  • Ms. Rosario Qualifies for VAWA Relief Because She Suffered Both Battery and Extreme Cruelty

Leiva-Mendoza v. Holder (August 22 2011) United States Court Of Appeals For The 8th Circuit. Legal Momentum, represented by Crowell & Moring, submitted this amicus brief which discusses how a child’s witnessing of serious domestic violence perpetrated against their parent is a basis for granting VAWA cancellation of removal to children who witness domestic violence perpetrated against their parent even in cases in which the children have not themselves been abused. This amicus brief provided the court with the relevant research data on harm to children of witnessing abuse in the home and argued that requiring proof of “actual harm” to the child is not required to prove “extreme cruelty.”
Topics Addressed in this Amicus Brief:

  • Noncitizen Parents of Children who Have Been Subjected to Extreme Cruelty by their U.S. Resident Parent Remain Eligible for VAWA Cancellation Regardless of the Subsequent Mortality of their Children…………………..7
  • The Immigration Judge Applied an Incorrect Legal Standard by Requiring Evidence of “Actual Harm” as a Prerequisite to a Determination of “Extreme Cruelty”……………….10
  • The Psychological Abuse Associated with a Child Witnessing Intentional Acts of Domestic Violence Against her Mother Constitutes “Extreme Cruelty” as a Matter of Law………………………….………… 15

Matter of MA (March 23, 2020) Board of Immigration Appeals. In the Matter of M-A. (2020). NIWAP was lead amicus in an appeal to the Board of Immigration Appeal in a case of first impression challenging an Immigration Judge’s denial of VAWA cancellation of removal to an LGBTQ+ immigrant victim of spouse abuse who suffered multiple VAWA confidentiality violations including Immigration and Custom’s Enforcement informing the court they planned to call the perpetrator as a witness, submitting an affidavit by the perpetrator that the immigration judge relied upon to deny the victim VAWA cancellation of removal, the immigration court failing to remove the victim’s case from the publicly available computer system and numerous other VAWA confidentiality violations. The brief provided detailed legislative, regulatory and policy history on VAWA confidentiality and discussed each of the numerous VAWA confidentiality violations occurring in this case by Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, the immigration judge and the immigration courts.
Topics Addressed in this Amicus Brief:

  • Legislative History of VAWA and its Confidentiality Provisions…………………………………………………………………………………….. 3
  • VAWA Confidentiality Violations in Mr. M.A’s Immigration Proceedings………………………………………………………………………………………………….. 13
  • The Board Must Sanction the Egregious VAWA Confidentiality Violations that Occurred in this Case………………….. 23

Aylaliya Assefa Birru v. Barr (January 11 2021) 9th Circuit Court of Appeals. NIWAP, represented by
Baker McKenzie, is lead amicus in a brief on behalf of an immigrant domestic
violence victim who is seeking relief under the Violence Against Women Act’s domestic violence victim
waiver in her VAWA cancellation of removal case. The Board of Immigration Appeals and the
immigration judge denied her the ability to present evidence of waiver eligibility.

Topics Addressed in this Amicus Brief:

  • Social science research demonstrates that applying the DV Victim Waiver to the Aggravated Felony Provision under VAWA Cancellation is important in protecting battered immigrant women.. ……….. 7 
  • Battered women who acted in self-defense should be entitled to the protection under VAWA Cancellation regardless of their conviction of aggravated felony. ………………………………………..7 
  • The VAWA Incorporation Provision unambiguously applies the DV Victim Waiver to Paragraph (iv) of VAWA Cancellation based on the words of the statute. ……………………………………………………….. 16 
  • The legislative history of the provisions at issue supports that Congress intended the DV Victim Waiver to apply to Paragraph (iv) of VAWA Cancellation via the VAWA Incorporation Provision….. 18 
  • The Board’s proposed reading of Paragraph (iv) would render the DV Victim Waiver to VAWA Cancellation meaningless. …………………………… 22