Pursuant to INA §§ 240A(b)(2)(A)(i)-(v), the following are requirements for a non-LPR in removal proceedings to apply for cancellation of removal under the special rules for battered spouses and children:
Is an alien who has been battered or subject to extreme cruelty by a USC or LPR spouse [this includes a spouse who the non-LPR thought he or she was legitimate married to but was not on account of the spouse's bigamy] or parent, or is the parent of a child of a USC or LPR parent who was battered or subject to extreme cruelty; and has been continuously physically present in the United States for at least 3 years preceding the date of the application for cancellation of removal; and
It is important to note that in the case the battery was committed by a USC or LPR spouse, the marriage must have been bona fide at the time it was entered into. Pursuant to regulations found in 8 C.F.R. § 204.2(c)(H), marriage fraud [see article] would render a non-LPR ineligible to claim status as a spouse.
In order to qualify for VAWA cancellation, the non-LPR must have been subjected to battery or extreme cruelty by a USC or LPR spouse or parent. The standard for “battery” does not require a “heightened level of violence” that has to meet a state criminal law definition.1 Courts have reached different conclusions on whether the “extreme cruelty” standard is discretionary and whether it is subject to judicial review.2
Regulations found in 8 C.F.R. § 204.2(c)(vi) for who may self-petition under VAWA include the following non-extensive list of types of abuse that may constitute “battery or extreme cruelty”:
Any act or threatened act of violence [including forceful detention];Psychological or sexual abuse or exploitation [including rape, molestation, incest (if the victim is a minor), or forced prostitution]Acts that may not in and of themselves constitute violence, but taken together constitute an overall pattern of violence.
The continuous physical presence requirement for VAWA cancellation is only 3 years instead of 10 for general non-LPR cancellation. Unlike for regular non-LPR cancellation, the stop time rule on continuous physical presence does not trigger with the issuance of a notice to appear (NTA), and continuous physical presence will continue to accrue until cancellation is requested. However, as is the case in regular non-LPR cancellation, the commission of a crime that would render the alien inadmissible or deportable stops the accrual of continuous physical presence pursuant to INA § 240A(d)(1).
In the required 3 years of continuous presence, the applicant may not have a single absence from the United States in excess of 90 days, or have been absent in excess of 180 days total, in order to meet the continuous physical presence requirement. However, pursuant to INA § 240A(b)(2)(B), absences of impermissible lengths may be excused provided that the applicant demonstrates that the absences were connected to his or her abuse at the hands of the USC or LPR spouse or parent.
The applicant for VAWA cancellation must have been a person of GMC for the requisite continuous physical presence period. Please follow this link in order to learn more about bars to establishing GMC. Pursuant to INA § 240(b)(2)(C), something that would otherwise constitute a bar to GMC will not apply if the applicant demonstrates that the act or conviction causing a bar to GMC was connected to the battery or extreme cruelty that the applicant suffered.
In order to be eligible for special rule cancellation for battered spouses and children, an applicant may not be inadmissible for a crime committed that is covered by INA §§ 212(a)(2) or (3), and may not be deportable for a crime committed under INA §§ 237(a)(1)(G)(2)-(4), or have been convicted of an aggravated felony. You may learn more about the prohibited offenses by reading the section that covers them in our article about regular cancellation of removal for non-LPRs [see section].