Understanding the “Battered” or “Extreme Cruelty” Elements Under the Violence Against Women Act (VAWA)
If you have recently entered the United States as a visitor, met a U.S. citizen, fell in love and have gotten married, you have the option to petition the United States Citizen and Immigration Service (USCIS) to reside permanently in the U.S. and file for a green card. This may all happen quickly and you may not have realized what kind of person you are getting involved with. For example, your new U.S. citizen spouse may not treat you with the respect and love that you had expected. In the worst case scenario, your new spouse may abuse, beat or torment you. The abuse may be physical or mental. If you have married a U.S. citizen and applied for a green card based on that relationship and have been battered or subject to extreme cruelty, contact the experienced lawyers at The Law Firm of Shihab & Associates today for a consultation.
If you have been battered, abused or subjected to extreme cruelty, you may be able to petition the U.S. government for relief under the Violence Against Women Act (VAWA). If you have a claim under VAWA, you may self-petition and obtain a green card even after you have divorced the abusing spouse. This article provides a brief description of VAWA, outlines some of the acts which may constitute “extreme cruelty” for VAWA purposes and also provides relevant information for establishing a credible claim. Contact the competent immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA for a consultation. Our immigration lawyers have experience and success with similar unfortunate situations and will gently take care of your case with the utmost confidentiality and sensitivity. We understand what you are going through and have the knowledge to help you cope with your situation. Often times, you will need the assistance of medical or other professionals to assess your situation and we can advise you on the best course of action that will help you overcome these challenges. Contact us for a consultation.
Violence Against Women Defined
To get relief under VAWA, a battered noncitizen must prove that she has been battered or subject to extreme cruelty by a spouse who is or was a U.S. citizen and who entered into the marriage in good faith. Battered is described as an act or threatened act of violence, or an act or threatened act of forceful detention which results or threatens to result in physical or mental injury. The definition of a “battered” spouse includes physical harm. The question becomes, what is your relief if your U.S. citizen spouse has not physically harmed you – what if the harm is mental?
Extreme Cruelty includes Psychological Harm
Extreme cruelty provides an inquiry into an individual's experience of mental or psychological cruelty, an alternative measure of domestic violence that can also be assessed on the basis of objective standards. Ultimately, the question of whether an individual has experienced domestic violence in either its physical or psychological manifestation is a clinical one. Hence, extreme cruelty has been held broad enough to encompass the following:
- psychological or sexual abuse or exploitation;
- rape, molestation, incest (if the victim is a minor); or
- forced prostitution.
Hence, the inquiry is whether the victim has been the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. It should also be analyzed whether there has been psychological or sexual abuse or exploitation, including rape, molestation, incest . . . or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that is a part of an overall pattern of violence.
Which Nonphysical Acts Constitute Extreme Cruelty?
Courts hold that “nonphysical actions” rise to the level of “extreme cruelty” when they are “tactics of control … intertwined with the threat of harm in order to maintain the perpetrator's dominance through fear.” Alternatively, nonphysical actions that are “mere unkindness” do not rise to the level of “extreme cruelty.” The USCIS has stated that marital tensions and incompatibilities and other outside sources that put severe strains on marriage do not, by themselves, constitute the extreme cruelty envisioned by the statute. Hence, it is very important to consult a psychologist or psychiatrist for a professional examination to determine whether or not you have been subject to extreme cruelty. A determination that you have developed “Battered Women’s Syndrome" (BWS) has been held to constitute probative evidence of extreme cruelty and a competent doctor is able to make that determination.
Good Faith Marriage Must be Determined
In order to establish a claim under VAWA, it must be proven that the marriage was entered into in “good faith” not just in order to get immigration papers. VAWA claims are established through showing that the foreign national entered into a marriage in good faith, and then the U.S. citizen spouse began to batter or subject his spouse to extreme cruelty.
How to Contact UsIf you have questions about a VAWA related issue, and/or you need help in an immigration process, please call The Law Firm of Shihab & Associates to consult with an attorney. Our law firm handles various matters including deportation and removal, green cards and permanent residence, family immigration, immigrant visas, non-immigrant visas, employment visas, and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.