The Violence Against Women Act (VAWA) provides special protection for non-citizen spouses and children who have suffered battery or extreme cruelty at the hands of a U.S. citizen or lawful permanent resident (LPR). VAWA lets them break free of the abuser's control and file a self-petition for immigration status. To do so, however, the applicant must be able to prove that the abuse occurred.
To help with that process, this article discusses what qualifies as abuse.
Safety and Privacy Considerations for Victims
Be sure to consider the privacy of your computer, smartphone, or tablet when seeking help online or over the phone. Some victims might use the same device, network, or phone plan as the abuser, allowing the abuser to see the victim's search or call history or otherwise track their activity. Many smart devices contain cameras or GPS tracking that can be used to locate and monitor your whereabouts. An abuser can even slip a small tracking device in your car, bag, pocket, or other belongings without your knowledge. If you're concerned about your privacy or safety, several organizations provide assistance and resources, including National Domestic Violence Hotline and RAINN. You can also check out our Resources for Victims of Crime.
The legal definition of abuse in connection to immigration matters is fairly broad, and does not always need to involve physical injury. Here is what the U.S. Citizenship and Immigration Services regulations say:
". . . the phrase 'was battered by or was the subject of extreme cruelty' includes, but is not limited to, being 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. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), 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 are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen or lawful permanent resident spouse, must have been perpetrated against the self-petitioner or the self-petitioner's child, and must have taken place during the self-petitioner's marriage to the abuser."
(See 8 C.F.R. § 204.2(c)(vi).)
We expand on these and other types of abuse that have been held to qualify applicants for VAWA protection below.
Physical violence as a form of abuse is fairly self-explanatory. It might include punching, slapping, kicking, or otherwise hurting the victim. It might be done with or without weapons or other instrumentalities. It could include threats of future violence, as well.
Medical and police reports, as well as photos of bruises and so on, can be very helpful in proving this types of abuse.
To qualify as abuse, the violence or threats of violence need not be limited to the immigrant spouse or child. If the U.S. abuser harms, harasses, or threatens to harm the immigrant's children or other family, friends, pets, or contacts, that too is considered a form of abuse.
An abuser might humiliate a spouse or child, or cause them to fear the consequences if they fail to comply with the abuser's demands or attempt to leave.
Recognized ways of carrying this out include chastising or making fun of the victim in public, clenching fists, displaying weapons, giving warning looks, placing themselves in close physical proximity to the victim, and picking up the phone or otherwise threatening to contact the immigration authorities to have the immigrant deported. This is a classic pattern of keeping the victim trapped in an abusive relationship, and is recognized as grounds for VAWA protection.
The U.S. abuser might refuse to give the victim access to any money, and prevent them from looking for a job; or take action to have them terminated from an existing job.
Some abusive spouses have been known to stalk or harass victims while they were at their workplace, which not only causes embarrassment, but can lead directly to the victim getting fired or quitting.
Immigrants are already vulnerable to social isolation, being in a new culture and perhaps unfamiliar with the language. Abusers can readily take advantage of the situation and refuse to let the immigrant victim use the telephone or car, contact friends or family, leave the house for schooling, English language classes, a job, religious worship, or social or other activities, and so forth.
The abuser might give orders as to whom the victim can and cannot see. In some cases, the imposed isolation amounts to forced detention.
Forced sexual activity, including threats of force or any unwanted sexual conduct, are all recognized forms of abuse. In fact, they qualify as both battery and extreme cruelty. This can include not only forced sexual activity with the abuser, but also with others, including forced prostitution.
The very reason for VAWA's enactment was the tendency of abusers to use their control over the victim's immigration status as a means of leverage. Abusers might threaten to call the authorities and tell the immigrant lies about their rights in the U.S., such as the right to social services and protection by the police and U.S. courts. These are also recognized forms of abuse.
Some abusers become extremely jealous of the spouse's ability to attract other admirers, and accuse them of flirtation and infidelity. The abuser might also become overly vigilant, for example snooping through the victim's mail or email, checking up on the victim frequently at work or at home, trying to gain information from friends, family, or employers, following the victim's car or other trips outside the home, and so forth. This creates not only anxiety, but public humiliation.
Yelling, screaming, insulting, or otherwise mistreating the immigrant verbally can also qualify as abuse.
If you need help starting the green card process through a VAWA petition, see a local immigration attorney or a nonprofit serving immigrants. To get an idea of what is involved in the process, see Process to Get a Green Card Under VAWA.