Asylum then VAWA

[zadrie 0]

Hi I filed for asylum and was while my case is pending, I am in removal. The case was sent to the immigration judge and I am supposed to appear in may 2011. In 2009 I got married to my husband (from my country but US citizen) whom I known for 5 years and was dating for 2. the marriage was real. we had a daughter together. 6 months into the marriage, I got pregnant with our second child. since he did not want the pregnancy, he started abusing me, physically and mentally. the police was called several times and I got an EPO against him. I almost lost our unborn child and had to move into a women shelter with my daughter. he filed for divorce and for custody of the child while I was pregnant. I got primary custody and he started telling everyone that the marriage was a scam and that I lured him into marrying him!!? I was appointed a social worker. she signed an affidavit for me, I had hospital note, was going through therapy and due to that, my son was born prematurely. After I filed my I-360, I got a letter from immigration telling me that they are not going to considered my case unless they get more files from another office (from my asylum I think. my questions are:

1- did anybody received such letter and what happened? where their I-360 considered and approved?

2- do you think my asylum case is going to hinder my VAWA case?

3- what might happen with my case

Thank you for your honest replies

[JimVaPhuong 4,863]

Did you marry before or after you were placed in removal? Did you apply for adjustment of status based on the marriage?

A VAWA petition will not automatically stop removal proceedings, but cancellation of removal based on VAWA is possible if you meet the requirements. Have you been continuously present in the US for three years (no absences of more than 90 days, nor accumulated absence of more than 180 days)? Are you a person of "good moral character"? (Never been convicted of any crimes, etc.) Can you prove you would suffer "extreme hardship" to yourself or your children if you were deported?

If you don't have an immigration lawyer, you should probably get one. Yours is not the sort of situation where a "do it yourself" solution is recommended.

[zadrie 0]

is yes to all the above. I have a lawyer but she doesn't know what she is doing. she told me herself that itwas her first time dealing with vawa. she is the one who file for my asylum and unfortunately she is all I can afford. I am going to ask her if I'm eligible for cancelation of removal. thank you very much for your help!

[zadrie 0]

should my attorney file for cancelation of removal on the date of the hearing or before?

[JimVaPhuong 4,863]

is yes to all the above. I have a lawyer but she doesn't know what she is doing. she told me herself that itwas her first time dealing with vawa. she is the one who file for my asylum and unfortunately she is all I can afford. I am going to ask her if I'm eligible for cancelation of removal. thank you very much for your help!

I presume you mean "yes" to the questions about qualifying for cancellation of removal. The question about when you married is also important. In fact, it may be critical. USCIS is required to presume that any marriage entered into after removal proceedings have begun was obtained for the purpose of a evading immigration law. This substantially raises the bar for either adjusting status based on the marriage, or proving "good faith" for a VAWA petition. If you were married before removal proceedings began, but the abuse occurred after, then they will strongly suspect the claim of abuse is a ploy to avoid deportation. I'm just saying that you're playing to a very tough audience with USCIS, and the timing of events can greatly affect just how tough they are going to be.

The only thing worse than not having an attorney when you need one is having an attorney that doesn't know what they're doing. Hiring an incompetent attorney because it's all you can afford is like hiring a blind surgeon because he'll perform your operation for a dollar. The chances of them doing more harm than good is enormous. Perhaps you should look into the charitable organizations that assist battered women, like Catholic Charities. They may be able to hook you up with a better attorney at little or no cost.

should my attorney file for cancelation of removal on the date of the hearing or before?

I don't have any direct experience with cancellation of removal. This is something your attorney should be advising you about. However, since your attorney is a neophyte - I think you should file as soon as you have the evidence to submit. The objective is to AVOID the deportation hearing, and instead have a hearing on your cancellation request.

[zadrie 0]

thx once again. we were married after the removal proceeding began. The abuse occurred 8 months into the marriage when I got pregnant with our second child. you are right about the attorney, I'm going to look into the charities to see if they can help me. Thank you very much

[LIFE'SJOURNEY 970]

You REALLY need a lawyer, start looking for a good one. Getting married after being put into deportation, doesn't sit well with immigration.

Edited August 11, 2010 by LIFE'SJOURNEY

[JimVaPhuong 4,863]

thx once again. we were married after the removal proceeding began. The abuse occurred 8 months into the marriage when I got pregnant with our second child. you are right about the attorney, I'm going to look into the charities to see if they can help me. Thank you very much

Ouch!

Ok, your problems are quite serious. As I said before, USCIS is required to presume your marriage is a sham because you got married after you entered removal proceedings. You didn't file to adjust status based on the marriage, but instead filed a petition to adjust status on your own using VAWA. Now you're going to file for cancellation of removal based on VAWA.

Let me tell you what this is going to look like to the immigration judge...

Your asylum case is dead. The judge is going to think you knew that the next step would be deportation. If you were an LPR then you could apply for cancellation of removal with 5 years presence in the US, but you're not an LPR. Under normal circumstances, that would mean you'd need 10 years presence to apply for cancellation of removal. You haven't been in the US long enough to qualify. The judge is going to think that you knew you didn't have a snowball's chance in he!! of successfully adjusting status by marrying a US citizen after you were placed in removal proceedings, and the only option left to both stop the removal and get a green card was a VAWA petition. The judge is going to think you planned this. The only way you're going to convince them otherwise is with a truckload of evidence.

You really do need a very good lawyer.

[zadrie 0]

I applied for adjustment of status based on the marriage, the case was still pending when the abuse began It wasn't planned at all because if it was only to get a green card, I would have never accepted to carry 2 of my husbands children, I would have never lived with him. I know the judge might see it that way but I can prove the abuse. It is after I was in the safe house that my social worker talked to me about vawa. I didn't know that your status could be adjust through domestic violence. I have 2 kids, less than 3yo and am the sole care giver. If they send me home, I am not going to be able to keep fighting their dad for support and they won't get health insurance back home. Right now, I am just going to work hard to try to afford a better lawyer. Thanks you for your help

[JimVaPhuong 4,863]

I applied for adjustment of status based on the marriage, the case was still pending when the abuse began It wasn't planned at all because if it was only to get a green card, I would have never accepted to carry 2 of my husbands children, I would have never lived with him. I know the judge might see it that way but I can prove the abuse. It is after I was in the safe house that my social worker talked to me about vawa. I didn't know that your status could be adjust through domestic violence. I have 2 kids, less than 3yo and am the sole care giver. If they send me home, I am not going to be able to keep fighting their dad for support and they won't get health insurance back home. Right now, I am just going to work hard to try to afford a better lawyer. Thanks you for your help

I'm not saying that any of the picture I painted in my previous post is true. I'm only saying what this is going to look like to an immigration judge. The only factor that changed from the scenario I outlined is that you did attempt to adjust status through the marriage, but the timeline remains the same and it's the timeline that's going to look very suspicious to the judge. It's going to look like you're trying every available avenue to avoid deportation and get a green card. At this point, you have pursued two other paths to obtaining legal status in the US, and the qualifying circumstances for both paths occurred AFTER you were placed in removal proceedings. This automatically makes those circumstances suspicious.

There are plenty of immigrants who have married US citizens and had children, and their marriages were fraudulent. There are plenty of immigrants who have claimed abuse, and presented evidence of the abuse, but they were never really abused. For pete's sake, there are websites dedicated to teaching people how to pull this stuff off. The judge has no way of knowing for certain that you aren't one of these people. You and your attorney have to convince him that you're not.

By all means, do everything you can to get a better lawyer.

[zadrie 0]

you are right, the judge might see it that way. The only think that I can do know is work so that I Will be able to afford a good lawyer to take careand also pray lol! Thank you very much Jim, you've been a great help!

[zadrie 0]

Hi! I have been gone for so long waiting for some news from uscis. here is what happened

06/16/10 I360 filed

10/03/10 touched

5/20/11 RFE requested (proof that we live together at the same address)

06/20/11 RFE received, case resumed and asked to wait for 60 days

What do you think? How long do they usually handle RFE

My lawyer also filed a motion to continue the asylum case which was granted. She also called USCIS bcoz the case was past the 5 months processing time and they told her that I had a strong case and that they were doing FBI background checks on me and my ex-husband. shortly afterwards I received the RFE.

Thank you so much

[Married2009 32]

Good luck!

[zadrie 0]

Thank you!

[zadrie 0]

My VAWA has been approved today 07/11/11!! Married2009, it was right after i read your reply!! thanks everybody. I'm gonna talk to my lawyer n c what's next