Eligibility for Special Rule (VAWA) Cancellation

Non-Lawful Permanent Residents (non-LPRs) facing removal proceedings who are victims of domestic violence may be eligible to apply for cancellation of removal under special rules designed to protect battered spouses and children (INA § 240A(b)(2)(A)(i)-(v)). To qualify, the non-LPR must meet several key requirements:

1. Victim of Abuse: The non-LPR must have been battered or subjected to extreme cruelty by a U.S. citizen (USC) or Lawful Permanent Resident (LPR) spouse or parent. This includes situations where the non-LPR believed they were in a legitimate marriage but were not due to the abuser’s bigamy. It also includes being the parent of a child of a USC or LPR who experienced such abuse.
2. Continuous Physical Presence: The non-LPR must have been physically present in the United States for at least three years immediately before applying for cancellation of removal.
3. Good Moral Character: The non-LPR must demonstrate good moral character (GMC) during this required period of continuous physical presence.
4. Admissibility and Criminal History: The non-LPR must not be inadmissible or deportable under specific sections of the Immigration and Nationality Act (INA) and must not have been convicted of an aggravated felony.
5. Extreme Hardship: The non-LPR must demonstrate that their removal would cause extreme hardship to themselves, their child, or their parent.

If the abuse was committed by a USC or LPR spouse, the marriage must have been entered into in good faith (bona fide). Marriages found to be fraudulent, as defined in 8 C.F.R. § 204.2(c)(H), will disqualify a non-LPR from claiming spousal status for these protections.

Subject to Battery or Extreme Cruelty

To be eligible for VAWA cancellation, a non-LPR must have experienced battery or extreme cruelty from a U.S. citizen (USC) or Lawful Permanent Resident (LPR) spouse or parent. “Battery” in this context doesn’t require a level of violence that meets a specific state criminal law definition. Courts have varied in their interpretations of “extreme cruelty,” particularly regarding whether it is a discretionary determination and subject to judicial review.

The regulations (8 C.F.R. § 204.2(c)(vi)) provide examples of abuse that may qualify as battery or extreme cruelty for those self-petitioning under VAWA. This list is not exhaustive and includes:

• Any act or threatened act of violence, including forceful detention.
• Psychological or sexual abuse or exploitation, such as rape, molestation, incest (if the victim is a minor), or forced prostitution.
• A pattern of abusive acts that, while not violent on their own, collectively demonstrate an overall pattern of violence.

Continuous Physical Presence

The continuous physical presence requirement for VAWA cancellation is only 3 years instead of 10 for general non-LPR cancellation. Unlike for regular non-LPR cancellation, the stop time rule on continuous physical presence does not trigger with the issuance of a notice to appear (NTA), and continuous physical presence will continue to accrue until cancellation is requested. However, as is the case in regular non-LPR cancellation, the commission of a crime that would render the alien inadmissible or deportable stops the accrual of continuous physical presence pursuant to INA § 240A(d)(1).

In the required 3 years of continuous presence, the applicant may not have a single absence from the United States in excess of 90 days, or have been absent in excess of 180 days total, in order to meet the continuous physical presence requirement. However, pursuant to INA § 240A(b)(2)(B), absences of impermissible lengths may be excused provided that the applicant demonstrates that the absences were connected to his or her abuse at the hands of the USC or LPR spouse or parent.

Good Moral Character (GMC)

The applicant for VAWA cancellation must have been a person of GMC for the requisite continuous physical presence period. Pursuant to INA § 240(b)(2)(C), something that would otherwise constitute a bar to GMC will not apply if the applicant demonstrates that the act or conviction causing a bar to GMC was connected to the battery or extreme cruelty that the applicant suffered.

Inadmissibility and Deportability

In order to be eligible for special rule cancellation for battered spouses and children, an applicant may not be inadmissible for a crime committed that is covered by INA §§ 212(a)(2) or (3), and may not be deportable for a crime committed under INA §§ 237(a)(1)(G)(2)-(4), or have been convicted of an aggravated felony. You may learn more about the prohibited offenses by reading the section that covers them in our article about regular cancellation of removal for non-permanent residents.

Extreme Hardship

While standard cancellation of removal for non-LPRs requires demonstrating “exceptional and extremely unusual hardship” to a qualifying relative, the special rules for battered spouses and children have a less stringent requirement. Applicants under these special rules need only show that “extreme hardship” would result from their removal. This hardship can be to the applicant, their parent, or their child. Beyond the general factors considered for extreme hardship, specific circumstances related to the abuse suffered are also relevant.

The regulations at 8 C.F.R. § 1240.20(c) explain that the factors outlined in 8 C.F.R. § 1240.58, which pertain to suspension of deportation for battered spouses and children, also apply to VAWA cancellation cases. These factors include:

1. The nature and extent of the physical or psychological impact of the abuse.
2. The consequences of losing access to U.S. courts and the criminal justice system, including the ability to obtain and enforce protective orders, pursue criminal investigations and prosecutions, and participate in family law proceedings related to child support, maintenance, custody, and visitation.
3. The likelihood of harm to the applicant or their children by the abuser’s family, friends, or others acting on their behalf in the home country.
4. The applicant’s and/or their children’s need for social, medical, mental health, or other support services for domestic violence victims that are unavailable or not reasonably accessible in the home country.
5. The existence of laws and social practices in the home country that could punish the applicant or their children for being victims of domestic violence or for attempting to leave an abusive household.
6. The abuser’s ability to travel to the home country and the willingness and capacity of authorities there to protect the applicant and/or their children from future abuse.

Discretionary form of Relief

Cancellation of removal is a discretionary form of relief. Accordingly, an immigration judge may deny cancellation due to mitigating factors even when an applicant appears otherwise eligible for cancellation of removal relief.

Annual Cap on Adjustment of Status

Each VAWA cancellation grant counts toward the 4,000 per year fiscal year cap that we describe here in the article on regular non-LPR cancellation of removal. The same procedures for granting temporary relief apply for VAWA cancellation cases.

Parole of Family Member

The child of a non-LPR granted special rule cancellation or the parent of a non-LPR child granted special rule cancellation may be paroled into the United States until his or her status may be adjusted.

LPRs May Apply

The Board of Immigration Appeals (BIA) held in 2009 that LPRs, despite the statute only referring to non-LPRs, may apply for special rule cancellation of removal for battered spouses and children.