VAWA Cancellation of Removal

In this section you will find information, case law, and other resources designed to stop removal proceedings for victims subjected to abuse by a United State Citizen (USC) or Lawful Permanent Resident (LPR) spouse or parent.

    Legislative History

    First VAWA Memo 1995

    Implementation of the Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizen or Lawful Permanent Residents.

    VAWA 2000 Legislative History: Congressional Record

    See third column, paragraph that begins "sixth" this is very helpful language and practitioners should cite what congress said about extraordinary circumstances for showing for VAWA motions.

    VAWA Cases in Removal/Confidentialify Provisions

    ICE Memorandum on VAWA Privacy Provisions (January 22, 2007)

    This ICE memo provides interim guidance concerning the expanded confidentiality protections of the VAWA 2005 and the legislation's requirements that ICE issue a certificate of compliance in certain circumstances.

    Memos/Legislation on VAWA Cancellation

    ICE Memorandum: Interim Guidance Relating to Officer Procedure Following  Enactment of  VAWA 2005 (January 22, 2007)

    ICE memo focusing on confidentiality, determining admissibility or deportability solely by information from people involved in the battery or extreme cruelty, etc. 

    USCIS Interoffice Memorandum: Disposition of Cases Involving Removable Aliens (July 11, 2006)

    This is one of the several memoranda discussing CIS discretion to not place non-citizens in removal proceedings in certain circumstances, including VAWA (p. 2) (but read the whole memo). Read along with other documents in this section.

    USCIS Memorandum on Prosecutorial Discretion; The OPLA Memo (October 24, 2005)

    This memo lists out instances in which CBP, CIS, and ICE should not issue Notices to Appear, as well as other options after filing the Notices to Appear.

    ICE Memorandum: Exercising Prosecutorial Discretion to Dismiss Adjustment Cases (October 6, 2005)

    General memo on when ICE may join or move to dismiss proceedings when adjustment of status applications are pending; may be helpful to those who prefer to adjust outside of proceedings.

    USCIS Memorandum: Adjudicating Forms I-212 for Aliens Inadmissible Under Section 212(a)(9)(C) or Subject to Reinstatement Under Section 241(a)(5) in light of Gonzalez v. DHS 508 F.3d. 1227 (9th Cir. 2007) (May 19, 2009)

    This policy memorandum (PM) supersedes and rescinds entirely the March 31, 2006 memorandum entitled, "Effect of Perez-Gonzalez v. Ashcroft on adjudication of Form I-212 application filed by aliens who are subject to reinstated removal orders under INA 241(a)(5)' (the "Perez-Gonzalez" memorandum).

    Paul Virtue Memo on Any Credible Evidence Standard and Extreme Hardship Factors (10/16/1998)

    This old memo has excellent language near the end on the "any credible evidence" standard -- "documentary requirements"-- and why it exists. The discussion of "extreme hardship" is no longer relevant to VAWA self-petitions but may be helpful to those seeking VAWA cancellation, where that requirement still exists. Click here to access the Paul Virtue Memo on Any Credible Evidence Standard and Extreme Hardship Factors in word version.

    Resources for VAWA Cancellation Cases

    EOIR Practice Manual (March 2008)

    In 2006, the Attorney General instructed the Director of the Executive Office for Immigration Review, in consultation with the Immigration Judges, to issue a  practice manual for the parties who appear before the Immigration Courts. This directive arose out of the public's desire for greater uniformity in Immigration Court procedures  and a call for the Immigration Courts to implement their "best practices" nationwide.

    8 CFR 1240.58 EOIR VAWA Extreme Hardship Factors

    Electronic Code of Federal Regulations, sub-part F for suspension of deportation and voluntary departure on extreme hardship factors. 

    VAWA Cases in Removal/Deportation Proceedings

    Adjustment Issues

    Court Denies Adjustment for VAWA Self-Petitioner Who Filed to Marry K-1 Fiancee (10/3/2013)

    The Fifth Circuit denied the petition for review, finding that although the petitioner's VAWA self-petition was granted, she was not eligible to adjust status under INA 245(d) because she did not fulfill the conditions of the K-1 visa from a prior relationship.

    BIA Authority

    VAWA Cancellation BIA Unpublished Decision on Merits, Good Moral Character, Exercise of Discretion, A-M Distinguished: Matter of M-L-M-A (8/5/2014)

    BIA disagreed with the IJ's determination that respondent is statutorily ineligible for special rule cancellation of removal (although respondent was divorced from her abusive husband and subsequently had a long-term relationship  with another man, she had not previously been granted cancellation of removal  based on her abusive marriage and had significant equities that merited a favorable exercise of discretion). 

    VAWA Cancellation BIA Unpublished Decision on Good Moral Character, Exercise of Discretion, A-M Distinguished (1/13/2014)

    BIA overturned IJ decision finding on good moral character (IJ should look to past 3 years, not much older asylum fraud, and old fraud is not sufficient to find GMC lack under "catchall" GMC provision), and overturned IJ exercise of discretion. Distinguished from A-M (end of relationship with abuser does not preclude VAWA).

    VAWA Cancellation BIA Unpublished Decision, Reopening Proceedings to Apply for Suspension of Deportation as the Parent of a Child who has been Battered or Subjected to Extreme Cruelty by his or her LPR Parent (8/27/2013)

    BIA reopened proceedings to allow respondent (subject to final order of deportation, due to VD entered by IJ more than 5 years ago) to apply for suspension of deportation as the parent of a child who has been subjected to extreme cruelty by his LPR parent. Acknowledged motion time and number limitations do not apply to VAWA motions. 

    VAWA Cancellation BIA Unpublished Decision on Extreme Cruelty to Child in Common (3/5/2012)

    BIA finds that death of child does not terminate eligibility for relief based on abuse in child in common (no marriage) and discusses extreme cruelty to child. 

    VAWA Cancellation BIA Unpublished Decision on Adjustment for Fiancee (10/12/2011)

    BIA concedes approved VAWAs who entered on fiancee visas may adjust if abuser was sponsor. 

    VAWA Cancellation BIA Unpublished Decision on Merits, and Good Moral Character: Matter of A-M (9/21/2009)

    BIA disagreed with the IJ's determination that respondent is statutorily ineligible for special rule cancellation of removal (although respondent was divorced from her abusive husband and subsequently had a long-term relationship with another man, she had not previously been granted cancellation of removal  based on her abusive marriage and had significant equities that merited a favorable exercise of discretion). 

    VAWA Cancellation BIA Unpublished Decision, Reversal Finding Good Faith Marriage, Extreme Cruelty, and Good Moral Character (3/13/2008)

    BIA overturned IJ decision, finding good faith marriage, extreme cruelty (close review of facts), and a connection between good moral character and being subjected to abuse.

    VAWA BIA Unpublished Decision on Motion to Reopen to Apply for Suspension of Deportation (5/11/2007)

    Unpublished decision approving special VAWA motion to reopen for VAWA suspension of deportation.

    VAWA Cancellation BIA Unpublished Decision on Extreme Cruelty, Extreme Hardship, and Divorce from Abuser at Time Filing (1/20/2006)

    BIA affirms IJ finding of extreme cruelty, extreme hardship, and qualifying for VAWA cancellation after divorce from abuser.

    VAWA Suspension BIA Unpublished Decision on Credibility and Extreme Hardship (7/14/2003)

    BIA overturns IJ, discussing credibility and extreme hardship.

    VAWA Suspension BIA Unpublished Decision, Witnessing Abuse is Extreme Cruelty to Child (11/29/2001)

    BIA affirms IJ finding that witnessing abuse is extreme cruelty to child and discusses hardship factors. 

    VAWA Suspension BIA Unpublished Decision, on Good Moral Character Extreme Hardship (11/18/1999)

    BIA overturns IJ denial finding good moral character despite crimes and other violation and discusses special VAWA factors on extreme hardship in EOIR regulations.

    Matter of T: Deportation Proceedings  (November 25, 1959)

    Where evidence of fraud of marriage to a U.S. citizen was found insufficient to support respondent's deportation under section 241(c) of the Immigration and Nationality Act, deportation on invalid visa charge under section 241(a)(1) is also precluded when predicated upon the same evidence of fraudulent marriage. Act of 1952- Section 241(a)(1) [8 U.S.C. 1251 (a)]-Inadmissible at time of entry, not nonquota immigrant.

    Domestic Violence - "Crime of Violence"

    VAWA BIA Decision, Domestic Violence is not a "Crime of Violence", under CA Laws (Sanudo 8/1/2006)

    This BIA decision states that a conviction for domestic battery in violations of section 242 and 243(e)(1) of the California Penal Code does not qualify categorically as a conviction for a "crime involving moral turpitude" within the meaning of section 237(a)(2)(A)(ii) of the INA, nor does it qualify as a "crime of violence" under 18 U.S.C. section 16 (2000) of the act.

    VAWA Motions to Reopen 

    Amicus Brief/VAWA Motions to Reopen 

    Amicus Brief of the NNEVAIW, Legal Momentum, FVPF, and ASISTA Immigration Assistance for the 8th Circuit (April 22, 2011) 

    Amicus brief of the NNEVAIW, Legal Momentum, FVPV, and ASISTA Immigration Assistance in support of respondent's appeal on remand from the United States Court of Appeal for the Eight Circuit.

    Motion for Leave to File Amici Curiae Brief and Appendix of Authorities In Support of Petitioner and Reversal (August 13, 2010)

    Motion for Leave to File Amici Curiae Brief and Appendix of Authorities in Support of Petitioner and Reversal in Leiva-Mendoza vs. Holder, an Appeal in the 8th Circuit, by the National Network to End Violence Against Immigrant Women, Legal Momentum, the Family Violence Prevention Fund and ASISTA Immigration Assistance Project.

    Sanchez 's Decision: VAWA Motion to Reopen to Apply for Cancellation of Removal, Ineffective Assistance of Counsel - 7th Circuit (October 14, 2007)

     7th Circuit ruling that VAWA permits the filing of a motion to reopen and the Board has the independent power to accept such a motion, whether or not an attorney mentioned this law before the Immigration Judge. 

    Amicus Brief Sanchez vs AAO, Requesting the Court to Reverse the BIA Determination and Remand the Case for Consideration of Petitioner's VAWA Cancellation Application for the 7th Circuit (November 8, 2006)

    Amicus brief submitted by the National Network to End Violence Against Immigrant Women, written by David R. Fine, Kirkpatrick & Lockhart Nicholson, Graham LLP, Harrisburg, PA.

    ICE Email on VAWA Motions to Reopen (August 1, 2006)

    ICE headquarters email to chief counsel posted on VAWA experts on 8//1/2006.

    Amicus Brief/Extreme Cruelty

    Decision Brief Luis-Hernandez, 9th Circuit Appeal (July 2013)

    The seminal VAWA case in the 9th circuit, articulating the broad definition of extreme cruelty and the ameliorative purpose of the law.

    Amicus Brief Luis-Hernandez, 9th Circuit Appeal (October 2012)

    The seminal VAWA case in the 9th circuit, articulating the broad definition of extreme cruelty and the ameliorative purpose of the law, written by Thomas C. Means and Valerie Hinko, Crowell & Moring, Washington, D.C.

    Amicus Brief Leiva-Mendoza, 8th Appeal Circuit (8/13/2010)

    Amicus brief for the National Network to End Violence Against Immigrant Women, Legal Momentum, the Family Violence Prevention Fund and ASISTA Immigration Assistance Project, discusses extreme cruelty in the form of children witnessing abuse in the home, providing the history and purpose of VAWA as context and social science background.

    Decision Brief Lopez-Umanzor, 9th Circuit Appeal (May 2005)

    The seminal VAWA case in the 9th circuit, articulating the broad definition of extreme cruelty and the ameliorative purpose of the law.

    Amicus Brief Lopez-Umanzor, 9th Circuit Appeal (July 2004)

    The seminal VAWA case in the 9th circuit, articulating the broad definition of extreme cruelty and the ameliorative purpose of the law, written by Associate Director Gail Pendleton and submitted by the National Immigration Project of the National Lawyers Guild, Boston, MA.

    Amicus Brief on Extreme Cruelty to Children (November 2001)

    Amicus brief submitted by Peter B. Work, Jessica R. Herrera and Jeffrey A. Spector, Crowell & Morning LLP, Washington, D.C.

    AAO Appeals

    AAO Practice Manual

     This Practice Manual will be updated periodically. The tables below detail the changes made to this Practice Manual since its initial publication on January 14, 2015.