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Welcome To America: An Immigrant’s Story – Maria Solutions

Vawa Solutions: What you should do when applying for Vawa

Welcome to America: An Immigrant’s Story. Part three of Maria’s story and Solutions Interview. 

Maria lived in Guatemala with her abusive husband who is a US citizen. She fled to America with her youngest child, leaving her older child, who has cerebral palsy, behind with her grandmother. She had crossed the border and made her way to New York. We talked about the problems she would face and some of the things to do and avoid doing while she is in the US.

Now, I know this is Andres’s favorite part of these segments, the “solutions” segment. This is where you get to hear from an immigration attorney, immigration advocate, author, and television personality, Andres Mejer, about how to solve your immigration problems.

Andres, I know you are passionate about helping people solve immigration problems, so let’s get started.

Andres: Thank you. I’m so looking forward to explaining what Maria’s progress is going to look like and what our options are. And I’m excited to explain it to everybody, hopefully, help people along the way.

Question 1 

Mark: So, Andres, last time we talked about Maria’s problem being somewhat unique because she was living outside of the US with her husband who is a US citizen. She had originally claimed asylum, but you said that may not be the best solution for her. Tell me what do you think is her best option here? 

Andres: So remember, we talked about asylum and VAWA. So she’s going to be put into removal. So what happens, she comes, you present self at the border. Remember, she’s an adult with a minor child, right? So she’s going to be interviewed, they’re going to have what’s called the credible fear interview, she will likely be found credible, for two reasons. One, because the story is compelling. But secondly, remember her husband’s a US citizen, and she has two US citizen children. So it is sufficiently unusual, that she will likely be released relatively quickly and put on a bus or plane or something towards New York or towards New Jersey, where her aunt lives now. But she’s going to be in removal. So she is going to have to present herself to court because she’s telling the officer, hey, I’m going to New Jersey, the court should be in New Jersey, mistakes happen. So they give her what’s called a notice to appear. That’s the charging document that begins the removal process. Now when I look at it, I will know where she needs to go. So she’s gonna have a number starts with letter A, and it’s nine digits, and it’s on every document, including the notice to appear, I can go online or call the one 100 number to find out when she has a court appearance. Why is that important? Because the courts are completely and totally disorganized right now. It is a disaster. So the complaint might say New York or it might say Texas, or it might say, New York. Now if it says anything other than New Jersey, we’re gonna have to communicate with that court and advise them that she lives in New Jersey that’s called the motion to change venue. So that happens a lot. It shouldn’t. When she comes in saying hey, here’s where I’m going. Here’s my address, and she’s released to that state that the court, the closest court should be the one. But again, we’re seeing lots of mistakes. That’s not always what happens. So if it’s not New Jersey, that needs to be what’s called the motion to change venue to go to New Jersey. Let’s put that issue aside for the moment. Again, why is that relevant? Well, she’s in New Jersey, she has to go to court in Texas. That’s difficult to get through. She might not be able to get there remember, doesn’t have employment authorization yet and may not have a job. I mean, if she has a quarter a year from now, it’s one thing she has a quarter one month. She just got there, she may not even know where she lives. She may not have $5 yet to even buy diapers for kids how she’s going to get to Texas or Arizona or Florida or California wherever she was apprehended at the border?

Question 2

Mark: Even though she was living outside of the US, Maria still may qualify for VAWA, that’s great. But, what would be different if she were living in the US but did not have legal status?

Andres: Okay, good question if she was in the United States, so let’s say she got here, whether she got here legally through a visa, or her husband filed for her to come, or she entered here illegally and married a US citizen and has the same situation. So point is, she didn’t have to make this long trek from Guatemala to the US and present himself at the border, because she was already here, however she got there. How is that different? Well, she wouldn’t be filing for asylum. That’s number one. Because she’d be in the country, likely more than one year, she would likely not qualify for asylum sure option would be VAWA only. While we’re on number one. Number two, she likely wouldn’t be in removal, so she wouldn’t have to go to court. So the process would be easier. Remember, VAWA is a subset or very similar to a family-based application. In a family-based application, you reach her husband, you need to, you need to first document that the relationship is legitimate, and that they married for the right reasons, not just to get immigration benefits. And secondly, she can change status, where she goes from either an immigrant overstay or an illegal entry to a lawful permanent resident VAWA has the same criteria but adds that she suffered extreme cruelty. Now, if she’s in removal, she can’t file both components at the same time, in a family based application you found for I-130. And then you fall in for I-45. And there are a lot of other forms. It’s not just two, but those are the two big ones that document the relationship is the I-30. And then the change of status is the I-45. Because VAWA allows her to file inside United States, even though she might have entered without inspection, that is not the case in a family-based application. So I’ve just confused everybody, let me try to back that up a little bit. When someone files for you, a relative, parent, spouse or child, again, you got to document that the relationship is legitimate. The second is your change of status. Now that could be either inside the US or outside, if you’re inside, well, you don’t need a waiver, generally speaking, and you’re gonna get employment authorization. If it’s outside, you might have to wait for a visa, you might have to travel out not might, you will have to travel outside the United States. And sometimes you need a waiver before you file. So the process is longer, it becomes more expensive, and you don’t get employment authorization while that happens, the In a VAWA scenario that almost never happens, you always will be able to change the status in the United States, and you may not get employment authorization, by the way only because you might not yet be able to file for that second component. And that’s what happens when someone’s in removal. You can file for both stages at the same time because you’re dealing with two different agencies. So USCIS will adjudicate the document the relationship part, but they can approve. When I say adjudicate I mean approved or denied. So the USCIS can’t approve or deny a green card because you’re in removal that goes to the judge. So if she’s inside the United States, she’s up when this happens, right? Because in both scenarios, she’s now inside the United States. But once she presented stuff at the border and say, Hey, I’m afraid to go back. And then the other one, she’s the question you just asked me, she’s already here. So we’re not filing for asylum, we’re only talking about VAWA. And in the VAWA situation, if she’s already here, she’s going to get employment authorization, she’s going to be able to work right away, she’s going to be able, her process might still take two or three years, but there’s no judge involvement. There’s no trial. Now, if she’s in removal, so the scenario where we’re in now, she presented up at the border, she’s going to file the I-360. That’s the form that documents the relationship and proves that she suffered extreme cruelty. That’s going to get adjudicated by USCIS. Once that gets approved, she could request employment authorization. But put that issue aside for a moment. Once that’s approved, she has the choice, she can ask the judge to remand the case back to USCIS. So get her out of removal, and then file the I-45, the change of status, or she could file the I-45 and go forward with a trial and part of the judge. Now, she might request remand and the judge may deny it, but probably not in her circumstances. But again, this assumes that that component, the I-60 gets approved. It’s not automatic. It’s not simple, sometimes it takes a long time. And I really hope she has an attorney who’s done it before. Because doing it without an attorney is not impossible. It’s just difficult. Because there’s no room for error. If you make a mistake, and your case gets denied, you might get deported, you might not get a second shot. Whereas if she wasn’t in removal, if she gets denied, she could just file again, or she could appeal it. Not that she can appeal it when she’s in removal. But again, there’s less room for error. So I would almost always almost suggest the case get remanded down because then she’s no longer in removal proceedings. If for whatever reason, the officer denies it. Well, they might put her into removal. But then she gets a second shot at it. And then she gets an agency that evaluates it, and we’ll give her a decision, essentially telling her Hey, here’s why we think there’s a problem here. Here’s why we’re denying your decision. And now you can fix that, to the extent that it’s fixable. So I’d much rather get it out of the courts. There’s a backlog of almost 2 million cases in the immigration courts, the delays are catastrophic. The level of mistakes that I’m seeing by judges and the court is I’ve never seen it in any court in the country, not federal court, not state court, not Municipal Court. It is the most dysfunctional system I have ever seen. So absolutely anything I can do to avoid the courts, I will, because I can’t predict their outcome, what they did yesterday, they might not do tomorrow, even if they want to. I mean, we’re seeing decisions by judges on motions we never filed, and we’re getting changes to court appearances. without any notice. It’s just complete chaos, you file a motion, and you don’t get a decision. You call the court. No one calls you back, you write a letter, no one responds, it’s completely and totally broken. So to the extent, we can avoid it, we do. And that’s a major difference is being in removal. And being in removal today with a dysfunctional court system means sometimes we have to have hard conversations with clients. And they’re like, Are you kidding me? You must be lying to me. No court would do that. Well, unfortunately, that is the problem is we’re having erratic decisions by sometimes erratic judges, not purposefully, I’m sure they’re some of them are really doing the best that they can. But it is a broken system. I hope I answered your question

Mark: Absolutely. Absolutely miserable, eyes opened, think about how disorganized they are. And then maybe, as a function of time laws were passed. It just caused this chaos layers of chaos.

Andres:I mean, it’s part of it. But really what you have is, so even before Trump was elected, there was immigration reform was necessary. We were seeing an uptake of cases. And the courts were struggling. And there was already a backlog of 500 to 700,000 cases, for 300 judges so everything was taking longer. Then you bring someone like Trump into the system, who did his absolute best to break the system, he worked really hard at doing that. He made sure that every case was going to removal, and that officers did not have discretion. Judges couldn’t terminate cases, judges couldn’t delay cases, and judges were punished for doing what they felt was right. So all of a sudden, you’re having decisions that are erratic, that have to be appealed. And it’s, it’s like putting oil on a fire. It just blows up. So we try to avoid it as best as we can.

Question 3

Mark:: If Maria’s husband was abusive, but he was not a US citizen, is VAWA still an option? What if he was just a green card holder or maybe he never set foot in the United States?

Andres: In order to qualify for VAWA, you need to have a qualifying relative parent, spouse or child who’s a US citizen or lawful permanent resident meaning a green card holder. Now he wouldn’t be a green card holder if he never stepped foot in the states, because green card holder lawful permanent resident means your permanent residency is in the US, not outside of the US. And but lets for purposes of conversation, let’s assume he was a green card holder, and he got a job outside the United States, and he asked for permission to live outside of the United States during that contract period, and to not lose his green card that’s viable, that’s doable. But it’s not likely only because we’re talking about, you know, they already have two kids, and he’s been out of the United States for many years. So it’s not likely that he’s a green card holder, but it is possible. And there is no real difference. Other than when she files for a documented relationship, in this case, extreme cruelty, it’s called form I-360, she might have to wait for a visa to become available until she can file for the change of status, maybe. But he or she would have to do that anyway because she’s on removal. Now, that depends on the visa bulletin, which is managed through the Department of State. So it’s possible she could file for both at the same time. It just depends on whether there’s a visa available at the time if the spouse is a US citizen. It’s called an immediate relative, in part because there’s a visa immediately available. So if not an immediate relative green card holder, maybe there’s a visa, maybe there’s not we have to look at that particular month and say, Can we file and it may be that you can’t file both at the same time, but again, here because she’s in removal, she wouldn’t be filing both at the same time anyway.

Question 4

Mark: In that case, is asylum now an option?

Andres: Okay, so let’s take a step back. She’s coming to the United States for asylum, or VAWA, VAWA is the better option, because I can remove the court? Right? So you asked me that before, I might not have done a good job at answering it. But let me answer the question for the moment what’s better asylum or VAWA? VAWA is better because I can avoid a trial in front of the judge in some circumstances, because of the chaos I’d rather do that. doesn’t mean she doesn’t have a good asylum case. But with a backlog of millions of cases, chances are she’s going to be seen quicker and get her case decided faster if it’s a VAWA. And it’s out of the court system. Now, if her spouse is not a US citizen or not a lawful permanent resident VAWA is not an option. Because she would need to have a parent or spouse that abused her who’s a US citizen locum resident, we know she doesn’t have that her children are two in six months, right? So they’re not causing abuse. They’re not causing extreme cruelty. And her parents we know have never been the United States. So that’s not an option. If your spouse is not a green card holder or a US citizen she doesn’t have that was an option for only recourse is asylum. And that’s like, most of the asylum seekers that we’re seeing. Almost none of them have VAWA as an option. They have asylum or especially will get juvenile if they happen to be under 21. That’s a subject for another day because today, she doesn’t qualify Special Immigrant juvenile. She is an adult and she’s married. So she’s over 21. And she’s married. So she clearly does not qualify for that. But VAWA is her best course again, we can avoid the courts. She has if you recall, we explained in the first or second episode that she actually took photos of one of the worst abuse she ever got when she was tied up. And her husband hit her with a mop with handled bruising her and beating the heck out of her. Well, she took photos of that. So she can document the abuse. It’s not just her word. And for a VAWA scenario. Extreme it’s the title is actually battery or extreme cruelty. So by battery, I mean hey, and she can show it. So based on the facts that we know if it’s presented well, she will get approved. Her I-360 will be approved. And then if she has a halfway decent attorney and a somewhat okay judge, the judge will once the I-360s are approved. She has nothing that disqualifies her. There really is no reason for the judge to say no let me insist on a trial in front of me. Almost all of them will today under this administration and the present rules, will grant a motion to remand the case down to USCIS. So now she’s no longer in removal. And USCIS is going to interview her to give her a green card. And because she has nothing that disqualifies her, and they’ve already approved, that it’s a legitimate relationship, she suffered extreme cruelty. Unless she shows up at the interview and gives contradictory information, she will become a lawful permanent resident.

Question 5

Mark: OK, now what are the options for her kids? Mario is here with her, dad is a US citizen. What is he possibly eligible for? 

Andres: So both of her kids are US citizens, their citizens born abroad. Now, the problem here is, if they’re born in the United States, their birth certificate shows, born United States automatic citizenship, since they’re born of the marriage. Where parent were this case, the father is a US citizen, that’s after 2000. And father lived in the United States for more than five years. We don’t know that for a fact. But let’s say that we do. Right. So he lived almost his entire life in the US. And he happens to speak Spanish. It’s one of the reasons why he was given this job in Guatemala, working for a US Contract. And again, those are facts, we don’t know, let’s assume that it’s true. But even if he doesn’t speak Spanish, it doesn’t really matter. But it’s irrelevant for this. It just goes to whether it’s a legitimate relationship or not, but they have two kids. So chances are, that’s a good relationship, or at least a legitimate relationship. Maybe not with the abuse, maybe not good, is bonafide. But the problem becomes, how do we prove it? Right. So if they did what they should have done, the father took the kids to the US embassy and registered them as his kids. And they would have become, they would have gotten a certificate of a child born abroad, sort of a citizen born abroad. And they would have us passports. That is what my father did. When I was born in Chile. My father was an Israeli citizen. I was born in Chile. And he went to the Israeli embassy, I had the equivalent of an Israeli social security number and an Israeli passport. I was born an Israeli citizen, even though I was born outside the United States. So here, it’s the same thing. Now, let’s assume that didn’t tap it. Okay, so now, do the children even have passports from anywhere? I don’t know. How does she bring them into the United States without his permission? Well, that’s a challenge, right? Here, she’s coming. Let’s look for another way. Let’s say he wasn’t abusive. Let’s say she just didn’t want to be with him anymore. And now she takes the kids kidnaps them outside the country and goes somewhere else. Well, that could be a crime, could call the police. He could try the file, you know, kidnapping charges, were that successful or not as a different story. And those aren’t the facts that we have here. But understand that that’s a possibility. If tomorrow, I decide I’m going to leave my spouse and take my kids with me and go to Chile or Israel. What’s my wife gonna do? Maybe she’s not a citizen there. Maybe she doesn’t speak the language there. How did you know? On what basis do I have to do that? So again, that does become a problem in some circumstances. here to answer your question, the real problem is, well, can we document with the kids so let’s say that Maria had a tourist visa, to come to the United States, because maybe they traveled here to visit for the holidays, you know, to meet his parents and his family. So his family could meet her. So let’s say they had that. So that means the children were US citizens, the children had passports, and she had her visa, so she was able to come to the United States, you wouldn’t have to ask for asylum. She could just come and then file for VAWA. Then we would avoid this problem. If that didn’t happen. She didn’t have a visa and the children didn’t have a passport from anywhere. Well, that’s one of the reasons why she makes the long trek the way that she doesn’t and presents herself at the border. Now she could file the so in the US it is forms N-600. citizen born abroad. We’re asking for a certificate of citizenship. If she could prove the document if she could prove that the husband leaves the United States and the husband was a US citizen and the father of the kids, meaning that first typically the children show that the US Citizen’s Father is the father. She could just go and directly file for a passport in the US without getting the certificate. But I’d rather go through USCIS I’d rather file for N-600. Because there I get a decision and I can appeal it or otherwise, if I have to deal with the Department of State, they’re a nightmare. You think the immigration courts are bad? Department of State is almost as bad. I mean, have we all heard of the Hillary Clinton email lawsuits that happen? Well, those were lawsuits against the Department of State. And some of them are still going on. Because they’re so backed up on getting documents. So the challenge, proving the citizenship or relationship of the kids is just what did they do when the children were born? If they have nothing, and I have clients that don’t, they’re here without birth certificates without passports, and you know, now they want to get married, well, how did they get married, they can prove that they are who they are. So it really does become a challenge. But when there’s a will, there’s a way

Question 6

Mark: So VAWA sounds like the best option for Maria and other immigrants who have been physically or psychologically abused by their US citizen spouse. And, it sounds like the children of US citizens born in other countries are US citizens. 

So things are looking pretty good for Maria and her family, but what if immigration officials don’t believe Maria was abused? I mean, won’t they say, “you already tried to claim asylum, and now you are just making things up to stay in the US.”

What will she need to prove that she was abused?

Andres: Well, first of all, she can file an alternative. She’s not limited to filing only one thing. That’s number one. Secondly, she might not have known all of her options when she came to the border. Right? I mean, she’s, she’s fleeing for her life. That doesn’t mean she understands US immigration law. But so she shouldn’t be punished for that. Number one. Number two. She claimed asylum. That doesn’t mean that she filed for asylum. Right now, the requirements are she has to file an application within one year of her entry. Now, that is changing. And in the future, the regulations the Biden administration has proposed, say, if she gets so credible fear interview, if she’s found credible, that is considered for an asylum application. And that’s a big deal. Because then she met that requirement. Initially. The downside is she might not have had counsel at the time. So her presentation, she doesn’t know what she doesn’t know. She doesn’t know how to present it. She doesn’t know what they’re asking for. So maybe she makes a mistake and says the wrong thing. And all of a sudden she’s not found credible. So that’s a possibility.

Question 7

Mark: What if ultimately, immigration officials don’t buy it? What if they conclude that her claim is not valid? Will she be deported? 

Andres: In short, yes. Now, she files for something asylum Vala. Both have that. Right. Maybe she goes to trial on both of them, maybe she’s denied on both of them, then that decision becomes final in 33 days. If she doesn’t appeal it. So she had a choice. She either accepts the judge’s decision, or appeals the judge’s decision. By the way, if she wins, the primary client security could also appeal that decision. Right. So just because she’s happy, the result doesn’t mean the government’s happy with the result. Now, if she files for, let’s say, she files an asylum application and VAWA application, and the I-360 gets approved. And then she goes and asks the judge to terminate proceedings and remanded down to USCIS, and they do so. Right. So what happens to our asylum Fight? Well, the judge may ask her to withdraw it. It’s possible with prejudice or without prejudice. But for purposes of conversation, she gets remanded back to USCIS and then USCIS grants her or her green card. What absolutely no. So now she’s withdrawn her asylum application, and her VAWA is denied. But in this example, it would likely be denied because she commits a crime, or there’s something else that happens after the fact. Because we know I-360 was already approved. So we know she’s documented that As she was married to a US citizen, that she’s a good moral person, and that she suffered extreme cruelty. Now she’s being interviewed by an asylum officer, I’m sorry, by a USCIS officer, not an asylum officer. And maybe she lied. Maybe there are inconsistencies in her story. Maybe she’s she committed a subsequent crime, like shoplifting that we talked about before. And it might negatively impact her case. Or maybe she committed a crime while she was in Guatemala subjected to the abuse. While she’d have to prove that the crime was a result of the abuse, not something else. And now, again, if she’s denied, she can appeal to the Board of Immigration Appeals. There will be a briefing scheduled, maybe it’s gonna be an oral argument, and then there’s going to be a decision. That decision again becomes final only if it doesn’t get the appeal. And if it gets appealed, it goes to the circuit court. In New Jersey, we’re in the third circuit, so we’ll go to the Third Circuit Court of Appeals, then there’s a decision there that decision is final unless it gets appealed to the Supreme Court, United States. And that’s the final logline. Now, you can request to follow the appeal, the Supreme Court doesn’t mean the Supreme Court is gonna accept it. And at any point where Immigration Appeals, or the Third Circuit Court, or the Supreme Court might say, hey, you know what, there was a problem at the trial level and could remand the case back to the trial level to fix something maybe now we’re eight years later, the law changed. Maybe the facts changed. Maybe she was accused of a crime. And then the case was decided, and then she was ultimately not convicted of that crime. So but the fact that she was charged, the judge might have found that she wasn’t a good moral person, you’re a good example. I have a case right now, where someone was accused of horrible sexual abuse of a minor. Right. But it was an accusation. The other day, the case was improving. He was placed on probation. And a year later, the charges would have been dismissed. But he’s been detained by the federal government, he’s not been able to complete the requirements of probation. So the government has tried to argue that he’s not a good moral person because we don’t know why he was put on probation, which is irrelevant, or because he might not comply with the requirements of probation. And he could ultimately be convicted of the crime. But our position is the government can’t have it both ways. Either release him and let him comply. Let him at least try for dough, but you can’t punish him for not having done it when you haven’t let him do it. So again, this is where the law is constantly evolving and constantly changing. But that is one scenario that could impact Maria if she’s accused of a crime, while this is going on. Depending on the severity, even after she gets a green card, if she commits a serious enough crime, they could try to put her into removal and take away her green card. The only people that can commit crimes and not get deported are typically US citizens.


Mark: Wow, as usual, Andres, you have really shared a lot with us today. It sounds like Maria’s life is going to turn around for the better.

Now that we have talked about some of the options available to abused spouses, everyone is wondering how to go about applying for VAWA. What is the process? How much does it cost? How long does it take?

Well, I am wondering that too, but we will have to wait for next week’s segment to find out. Next time, we will answer all of those questions and more. So be sure to leave any questions you have for us in the comments and don’t forget to like and subscribe to see more content like this.

Also, if you have an immigration problem that you or a family member needs help with, please tell us about it in the comments section. We may feature your situation in future episodes and hopefully solve your immigration problems too. 

Who knows, you may be the next person to hear, “Welcome to America.”

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