Lawyers Manual - Unified Court System

326 Lori Cohen
if the victim has been convicted of, or admitted to, certain criminal acts, and the
representative should work with an experienced mentor to address these issues. 72
Extreme Hardship
A hurdle for the VAWA cancellation applicant not found in a battered
spouse waiver or VAWA self-petition is the requirement that her removal from
the United States would cause “extreme hardship” to herself or to her child or
parent. The regulations provide examples of extreme hardship. 73
The Application Process for VAWA Cancellation and a
Cautionary Note
To file an application for VAWA cancellation, a victim must submit an
“Application for Cancellation of Removal and Adjustment of Status for Certain
Nonpermanent Residents” 74 with the immigration court, along with her personal
statement and all supporting documents. The filing fee is waivable upon a
showing of inability to pay. If the applicant prevails, the immigration judge may
grant her permanent resident status. Unlike the VAWA self-petition, the children
of a victim cannot be included as “derivative” beneficiaries (although they may
be eligible to file a separate claim for VAWA cancellation). Once the mother
obtains permanent residence, however, the children will be granted parole,
allowing her to file a visa petition on their behalf. The parole will continue until
the children can adjust status to lawful permanent residence. 75
While the prospect of attaining a green card through the immigration courts
may appear preferable to waiting years for an immigrant visa to become
available through the affirmative filing of a VAWA self-petition with USCIS, the
advocate should beware: immigration practitioners typically avoid having their
clients placed in removal proceedings. Although a domestic violence victim may
have a meritorious case, she risks losing and being removed from the United
States. An attorney considering whether to have a client placed in removal
proceedings should consult an experienced immigration practitioner. Even if
attorney and client ultimately agree that removal proceedings offer the best
route for relief, in overburdened jurisdictions like New York it may be difficult
to convince the immigration authorities to process such a request.