Coleman Jackson, Esq.
Oct 02, 2013
Before the 2005 amendments to Section 101(b)(1)(E) of the Immigration and Nationality Act (INA), to file a self-petition for immigration to the United States of America, adopted alien children were required to demonstrate that they had completed two years of legal custody and residence with the United States citizen or lawful permanent resident adoptive parent. There weren’t any exceptions even if those adoptive parents were abusive to the adopted child. Due to this, abused adopted children were required to remain in the abusive household for at least two years.
Section 805(d) of VAWA 2005 eliminated these two requirements (2 years legal custody and 2 years residence) in amending the definition of an adopted child under INA section 101(b)(1)(E)(i) for a child who has been battered or subjected to extreme cruelty by the adoptive parent or by household family members of the adoptive parent.
The 2005 VAWA changes allow abused adopted children to leave an abusive household without adversely affecting their eligibility to file a VAWA self-petition. The abused child submits a petition for classification as a lawful permanent resident under INA section 204. The child still must show a valid adoption and that (s)he shared a residence for some period of time with the abusive adoptive parent.
For confidential advice and thorough assistance in specific abusive situations consult an experienced Immigration Attorney.
A self-petition by an abused child must satisfy the following requirements:
Removal of 2 Year Legal Custody and 2 Year Residency Requirement
- A legal adoption took place. That is, the adoption is completed before the adopted child’s 16th birthday (or 18th if the child is the birth sibling of another child 16 or under who was adopted by the same adoptive parent at the same time)
- The adoptive parent(s) had two years of legal custody, and two years of residence with the child.
However, section 805(d) of VAWA 2005 amended INA section 101(b)(1)(E)(i). The 2005 amendments to the Violence Against Women’s Act removed the two year legal custody and the two year residency requirement for adopted children who were battered or subjected to extreme cruelty by their adoptive parent(s) or household family members.
Applicability of 101(b)(1)(E)(i)
The amendment to 101(b)(1)(E) is applicable to a child who is the beneficiary of a Form I-130, Petition for Alien Relative, and to the self-petitioning child filing a VAWA-based Form I-360, Petition for American, Widow(er) or Special Immigrant.
If the self-petitioning child demonstrates that he or she was battered or subjected to extreme cruelty by the adoptive parent or by member(s) of the adoptive parent’s household, then in this type of case, the child is not required to establish two years legal custody and two years residency with the adoptive parent.
Self-Petitioning Child of Abusive USCs and LPRs (Generally)
INA section 204 allows for alien children of abusive U.S. citizens and lawful permanent residents to self-petition for classification as lawful permanent residents (Green Card). The child self-petitioner is required to provide evidence that (s)he:
- Is the child of a U.S. citizen or lawful permanent resident
- Is eligible to be classified under INA section 201(b)(2)(A)(i) or 203(a)(2)(A)
- Resides or has resided with the abusive U.S. citizen or abusive lawful permanent resident parent
- Has been battered by or has been subjected to extreme cruelty perpetrated by the U.S. citizen or lawful permanent resident parent or member of their household
- Is a person of good moral character
Self-Petitioning Adopted Child of Abusive USCs and LPRs
The VAWA 2005 amendments to the definition of an adopted child (i.e., the removal of the two year custody and two year residency requirements for abused adopted children) do not remove the need for adopted children to establish all other requirements for self-petitioning children under INA section 204. The self-petitioning adopted child is required to provide evidence demonstrating that (s)he:
- Was legally adopted before attaining age 16, or before attaining age 18 if the child is the birth sibling of another child who was adopted by the same adoptive parent
- Was legally adopted by a U.S. citizen or lawful permanent resident, or that his or her adoptive parent is legally married to a U.S. citizen or lawful permanent resident
- Resided for some period with the abusive U.S. citizen or abusive lawful permanent resident
- Was battered by or subjected to extreme cruelty perpetrated by the U.S. citizen parent or lawful permanent resident parent or a member of the U.S. citizen’s or lawful permanent resident’s family residing in the same household
- Is a person of good moral character
Filing from Outside the United States
There is no statutory requirement that a self-petitioning adopted child be living in the United States at the time the self-petition is filed. The filing requirements found in INA sections 204(a)(1)(A)(v) and 204(a)(1)(B)(iv) relating to a self-petitioning spouse, intended spouse, or child living abroad of a U.S. citizen or lawful permanent resident shall be applicable to self-petitions filed by an abused adopted child.
Late-filing After Age 21
The provisions of INA section 204(a)(1)(D)(v) which provide continued eligibility to file as a self-petitioning child after attaining age 21, if the abuse was one central reason for the delay in filing, shall be applicable to self-petitions filed by an abused adopted child.
Standard of Proof
The standard of proof applied in the adjudication of a self-petition filed by an abused adopted child is “preponderance of the evidence”. This evidentiary standard is met if the self-petitioning child submits sufficient evidence to establish that the facts of the case are more likely true than not true.
A copy of the legal adoption decree issued by the appropriate civil authority, or other relevant credible evidence of the self-petitioning child’s legal relationship to the abuser should be submitted with the I-360. If a copy of the legal adoption is unavailable, the self-petitioning adopted child should provide any other credible evidence to demonstrate that a legal adoption took place. Additionally, the self-petitioning adopted child must provide credible evidence demonstrating the following:
- Some period of shared residence with the abusive parent
- The self-petitioning child’s good moral character, if age 14 and over
- The battery and/or extreme cruelty perpetrated by the U.S. citizen or lawful permanent resident parent or perpetrated by a member of that parent’s family residing in the same household
- The abuser’s U.S. citizenship or lawful permanent resident status
Consideration of Evidence
United States Citizenship & Immigration Services (USCIS) adjudicators will consider all relevant, credible evidence when making a determination regarding claims to all eligibility requirements. The determination of what evidence is credible and the weight to be given that evidence is within the sole discretion of USCIS.
This blog is written by
Coleman Jackson, PC | Immigration & Tax Law Firm. www.cjacksonlaw.com | 214-599-0431(English) | 214-599-0432(Spanish)