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| USCIS Memo on Good Moral Character in VAWABased selfpetitions |
| January 25, 2005 |
On October 28, 2000, the President signed the Victims of Trafficking and Violence
Protection Act (VTVPA), Pub. L. 106-386. Title V of the VTVPA is entitled the
Battered Immigrant Women Protection Act (BIWPA), and contains several provisions
amending the self-petitioning eligibility requirements for battered spouses and
children contained in the Immigration and Nationality Act (INA or the Act). Those
provisions were established by the Violence Against Women Act of 1994 (VAWA).
The purpose of this memorandum is to inform U.S. Citizenship and Immigration Services
(USCIS) adjudicators at the Vermont Service Center (VSC) of the change in the
law concerning determinations of good moral character made in connection with
VAWA-based self-petitions (Forms I-360).
Sections 204(a)(1)(A) and (B) of the Act contain the self-petitioning eligibility
requirements for battered spouses and children. One of the eligibility requirements
is that a self-petitioner must demonstrate that he/she is a person of good moral
character. A VAWA-based self-petition will be denied or revoked if the record
contains evidence to establish that the self-petitioner lacks good moral character.
The inquiry into good moral character focuses on the three years immediately preceding
the filing of the self-petition, but the adjudicating officer may investigate
the self-petitioner's character beyond the three-year period when there is reason
to believe that the self petitioner may not have been a person of good moral character
during that time. A self-petitioner's claim of good moral character will be evaluated
on a case-by-case basis taking into account the provisions of section 101(f) of
the Act and the standards of the average citizen in the community. Prior to the
enactment of the BIWPA, a finding of good moral character could not be made in
a battered spouse or child case filed under the VAWA immigration provisions if
the self-petitioner committed an act or had a conviction that was included in
section 101(f) of the Act. Section 1503(d) of the BIWPA has amended section 204(a)(1)
of the Act to make an exception for battered spouses and children in certain circumstances.
Step 1: Determine whether the alien is subject to section 101(f) of the Act.
Section 101(f) of the Act describes the classes of aliens who are statutorily
ineligible to be considered persons of good moral character. If the VAWA self-petitioner
has committed an act or has a conviction that places him or her into one of the
classes contained in section 101(f) of the Act, the adjudicator is barred from
making a finding of good moral character unless the self-petitioner demonstrates
that the amendments made to section 204(a)(1) of the Act apply to him or her.
Section 204(a)(1)(C) of the Act as amended provides USCIS with the discretion
to make a finding of good moral character despite an act or conviction that would
be a disqualifying act or conviction under INA§ 101(f) or that would otherwise
adversely reflect upon a self-petitioner's moral character. A finding of good
moral character may be made if: 1) the act or conviction is waivable for purposes
of determining inadmissibility or deportability under INA § 212(a) or §
237(a); and 2) the act or conviction was connected to the alien's having been
battered or subjected to extreme cruelty. This change applies to all self-petitioners,
including those who file under INA § 204(a)(1)(A)(v) or § 204(a)(1)(B)(iv)
as self-petitioners living abroad, despite the fact that these situations are
not specifically referenced in INA § 204(a)(1)(C).
Step 2: Determine whether a waiver would be available.
If the adjudicator determines that the self-petitioner has committed an act or
has a conviction that renders the self-petitioner inadmissible under section 212(a)
of the Act or deportable under section 237(a) of the Act, and that would bar a
finding of good moral character, he/she should next determine whether a waiver
would be available for the act or conviction. The evidence submitted by the self-petitioner
must address whether a waiver would be available for the act or conviction at
issue (this includes the waivers created by the BIWPA found at sections 212(h)(1),
212(i)(1), 237(a)(7), and 237(a)(1)(H) of the Act). It is important to note that
the adjudicator does not have to find that a waiver would be granted, only that
one would be available for filing at the time the adjustment of status application
(or visa application) is filed.
In situations where an adjudicator questions whether a waiver would be available
because the act or conviction involves a violent or dangerous crime, he/she should
consult 8 CFR 212.7(d). That provision discusses the circumstances in which a
waiver of a violent or dangerous crime may be available. If the adjudicator determines
that an act or conviction constitutes an aggravated felony as defined in section
101(a)(43) of the Act, he/she should refer the case for issuance of a notice to
appear (NTA) in accordance with the guidelines set out in the Service Center NTA
SOP.
Attached to the memorandum as Attachment 1, is a chart indicating which bars to
establishing good moral character contained in section 101(f) of the Act are for
acts or convictions that may be waived and which are not. This chart is intended
to serve as a quick point of reference for adjudicators. To view Attachment 1
click
here
Also attached, as Attachment 2, is a quick reference guide for authorities affecting
false testimony determinations under section 101(f)(6) of the Act. If the adjudicator
is not certain whether a particular act or conviction may be waived, the adjudicator
and his/her supervisor should seek legal guidance from the VSC Counsel prior to
making a final determination. To view the Attachment 2 click
here
Step 3: Determine whether the act or conviction is "connected" to the
battering or extreme cruelty.
If the adjudicator determines that a waiver would be available for the act or
conviction at issue, he/she should next determine whether the act or conviction
is "connected" to the battering or extreme cruelty. In order for an
act or conviction to be considered sufficiently "connected" to the battering
or extreme cruelty, the evidence must establish that the battering or extreme
cruelty experienced by the self-petitioner compelled or coerced him/her to commit
the act or crime for which he/she was convicted. In other words, the evidence
should establish that the self-petitioner would not have committed the act or
crime in the absence of the battering or extreme cruelty. To meet this evidentiary
standard, the evidence submitted must demonstrate:
- The circumstances surrounding the act or conviction, including the relationship
of the abuser to, and his/her role in, the act or conviction committed by
the self-petitioner; and
- The requisite causal relationship between the act or conviction and the
battering or extreme cruelty.
In order for a connection to be found, the battering or extreme cruelty must have
been perpetrated by the self-petitioner's qualifying USC or LPR spouse, intended
spouse, former spouse, or parent. However, self-petitioners are not required to
establish that the act or conviction that would bar a finding of good moral character
occurred during the marriage to the self-petitioner's qualifying USC or LPR spouse.
If the self-petitioner establishes that there was battering or extreme cruelty
during the marriage as well as prior to the marriage to the qualifying USC or
LPR spouse, the adjudicating officer may find that the self-petitioner has established
the required "connection" between the act or conviction, even if it
occurred prior to the marriage.
When determining whether a sufficient connection exists between the alien's disqualifying
act or conviction and the battering or extreme cruelty suffered by the alien,
the adjudicating officer should consider the full history of the domestic violence
in the case, including the need to escape an abusive relationship. The adjudicating
officer should consider all credible evidence that is in compliance with 8 U.S.C.
§ 1367 when making this determination. The credibility and probative value
of the evidence submitted by the self-petitioner is a determination left to the
discretion of the adjudicating officer.
Step 4: Determine whether the self-petitioner warrants a finding of good moral
character in the exercise of discretion.
Whether a self-petitioner is a person of good moral character is, in accordance
with section 204(a)(1)(C) of the Act, a discretionary determination to be made
by the adjudicating officer. For example, even if the evidence submitted by a
self-petitioner establishes that (1) a waiver for his or her disqualifying act
or conviction is available, and (2) the requisite connection exists between his
or her disqualifying act or conviction and the battering or extreme cruelty he
or she suffered, the adjudicating officer may nevertheless find that the severity
or gravity of the self-petitioner's act or conviction warrants an adverse finding
of good moral character in the exercise of discretion.
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