Family Based Green Cards

On October 28, 2000, the President signed the Victims of Trafficking and Violence Protection Act (VTVPA), Pub. L. 106-386. Title V of the VTVPA is entitled the Battered Immigrant Women Protection Act (BIWPA), and contains several provisions amending the self-petitioning eligibility requirements for battered spouses and children contained in the Immigration and Nationality Act (INA or the Act). Those provisions were established by the Violence Against Women Act of 1994 (VAWA). The purpose of this memorandum is to inform U.S. Citizenship and Immigration Services (USCIS) adjudicators at the Vermont Service Center (VSC) of the change in the law concerning determinations of good moral character made in connection with VAWA-based self-petitions (Forms I-360).

Sections 204(a)(1)(A) and (B) of the Act contain the self-petitioning eligibility requirements for battered spouses and children. One of the eligibility requirements is that a self-petitioner must demonstrate that he/she is a person of good moral character. A VAWA-based self-petition will be denied or revoked if the record contains evidence to establish that the self-petitioner lacks good moral character. The inquiry into good moral character focuses on the three years immediately preceding the filing of the self-petition, but the adjudicating officer may investigate the self-petitioner’s character beyond the three-year period when there is reason to believe that the self petitioner may not have been a person of good moral character during that time. A self-petitioner’s claim of good moral character will be evaluated on a case-by-case basis taking into account the provisions of section 101(f) of the Act and the standards of the average citizen in the community. Prior to the enactment of the BIWPA, a finding of good moral character could not be made in a battered spouse or child case filed under the VAWA immigration provisions if the self-petitioner committed an act or had a conviction that was included in section 101(f) of the Act. Section 1503(d) of the BIWPA has amended section 204(a)(1) of the Act to make an exception for battered spouses and children in certain circumstances.

Step 1: Determine whether the alien is subject to section 101(f) of the Act.

Section 101(f) of the Act describes the classes of aliens who are statutorily ineligible to be considered persons of good moral character. If the VAWA self-petitioner has committed an act or has a conviction that places him or her into one of the classes contained in section 101(f) of the Act, the adjudicator is barred from making a finding of good moral character unless the self-petitioner demonstrates that the amendments made to section 204(a)(1) of the Act apply to him or her.

Section 204(a)(1)(C) of the Act as amended provides USCIS with the discretion to make a finding of good moral character despite an act or conviction that would be a disqualifying act or conviction under INA§ 101(f) or that would otherwise adversely reflect upon a self-petitioner’s moral character. A finding of good moral character may be made if: 1) the act or conviction is waivable for purposes of determining inadmissibility or deportability under INA § 212(a) or § 237(a); and 2) the act or conviction was connected to the alien’s having been battered or subjected to extreme cruelty. This change applies to all self-petitioners, including those who file under INA § 204(a)(1)(A)(v) or § 204(a)(1)(B)(iv) as self-petitioners living abroad, despite the fact that these situations are not specifically referenced in INA § 204(a)(1)(C).

Step 2: Determine whether a waiver would be available.

If the adjudicator determines that the self-petitioner has committed an act or has a conviction that renders the self-petitioner inadmissible under section 212(a) of the Act or deportable under section 237(a) of the Act, and that would bar a finding of good moral character, he/she should next determine whether a waiver would be available for the act or conviction. The evidence submitted by the self-petitioner must address whether a waiver would be available for the act or conviction at issue (this includes the waivers created by the BIWPA found at sections 212(h)(1), 212(i)(1), 237(a)(7), and 237(a)(1)(H) of the Act). It is important to note that the adjudicator does not have to find that a waiver would be granted, only that one would be available for filing at the time the adjustment of status application (or visa application) is filed.

In situations where an adjudicator questions whether a waiver would be available because the act or conviction involves a violent or dangerous crime, he/she should consult 8 CFR 212.7(d). That provision discusses the circumstances in which a waiver of a violent or dangerous crime may be available. If the adjudicator determines that an act or conviction constitutes an aggravated felony as defined in section 101(a)(43) of the Act, he/she should refer the case for issuance of a notice to appear (NTA) in accordance with the guidelines set out in the Service Center NTA SOP.

Attached to the memorandum as Attachment 1, is a chart indicating which bars to establishing good moral character contained in section 101(f) of the Act are for acts or convictions that may be waived and which are not. This chart is intended to serve as a quick point of reference for adjudicators. To view Attachment 1 click here

Also attached, as Attachment 2, is a quick reference guide for authorities affecting false testimony determinations under section 101(f)(6) of the Act. If the adjudicator is not certain whether a particular act or conviction may be waived, the adjudicator and his/her supervisor should seek legal guidance from the VSC Counsel prior to making a final determination. To view the Attachment 2 click here

Step 3: Determine whether the act or conviction is “connected” to the battering or extreme cruelty.

If the adjudicator determines that a waiver would be available for the act or conviction at issue, he/she should next determine whether the act or conviction is “connected” to the battering or extreme cruelty. In order for an act or conviction to be considered sufficiently “connected” to the battering or extreme cruelty, the evidence must establish that the battering or extreme cruelty experienced by the self-petitioner compelled or coerced him/her to commit the act or crime for which he/she was convicted. In other words, the evidence should establish that the self-petitioner would not have committed the act or crime in the absence of the battering or extreme cruelty. To meet this evidentiary standard, the evidence submitted must demonstrate:

• The circumstances surrounding the act or conviction, including the relationship of the abuser to, and his/her role in, the act or conviction committed by the self-petitioner; and
• The requisite causal relationship between the act or conviction and the battering or extreme cruelty.

In order for a connection to be found, the battering or extreme cruelty must have been perpetrated by the self-petitioner’s qualifying USC or LPR spouse, intended spouse, former spouse, or parent. However, self-petitioners are not required to establish that the act or conviction that would bar a finding of good moral character occurred during the marriage to the self-petitioner’s qualifying USC or LPR spouse. If the self-petitioner establishes that there was battering or extreme cruelty during the marriage as well as prior to the marriage to the qualifying USC or LPR spouse, the adjudicating officer may find that the self-petitioner has established the required “connection” between the act or conviction, even if it occurred prior to the marriage.

When determining whether a sufficient connection exists between the alien’s disqualifying act or conviction and the battering or extreme cruelty suffered by the alien, the adjudicating officer should consider the full history of the domestic violence in the case, including the need to escape an abusive relationship. The adjudicating officer should consider all credible evidence that is in compliance with 8 U.S.C. § 1367 when making this determination. The credibility and probative value of the evidence submitted by the self-petitioner is a determination left to the discretion of the adjudicating officer.

Step 4: Determine whether the self-petitioner warrants a finding of good moral character in the exercise of discretion.

Whether a self-petitioner is a person of good moral character is, in accordance with section 204(a)(1)(C) of the Act, a discretionary determination to be made by the adjudicating officer. For example, even if the evidence submitted by a self-petitioner establishes that (1) a waiver for his or her disqualifying act or conviction is available, and (2) the requisite connection exists between his or her disqualifying act or conviction and the battering or extreme cruelty he or she suffered, the adjudicating officer may nevertheless find that the severity or gravity of the self-petitioner’s act or conviction warrants an adverse finding of good moral character in the exercise of discretion.

Source: http://www.visapro.com/Immigration-News/?a=168&z=13