IT’S Valentine’s Day and Malena woke up to a bouquet of bright red roses and a box of chocolates by her bedside. There was a handwritten note from her husband, George, that said “I love you.” This made Malena smile. It’s times like these that she forgets her husband’s temper when he’s tired from work or when he’s had a little too much to drink while out with the boys. The thing is, when you look at Malena you see a happy and carefree stay-at-home mom who loves her husband and her young children. She has no bruises on her body; no scars on her face. Yet every night when George comes home from work, he forces Malena to have sex with him. When Malena does not cook the food right, he yells insults at her – calls her “idiot,” “stupid,” “retarded” and cusses at her calling her “whore,” “bitch,” etc. George also does not let Malena drive or leave the house by herself and prefers to drive her around if she needs to go anywhere. George also gives Malena an allowance every month so she has some “spending money.”
Malena is an undocumented alien and she is afraid that if she tells anyone about George’s behavior, George, who is a U.S. citizen, will call immigration and she will be deported and she will never see her children again.
Leroy is a lawful permanent resident (green card holder) who has been living with his girlfriend of 3 years, Yolanda, who is a U.S. citizen. While chasing each other around the house one weekend, Yolanda slipped and hit her face on the door. A “concerned” neighbor heard loud noises and yelling, and thinking she was “helping,” called the police. Leroy was taken to the station for questioning. Leroy’s does not speak nor understand English very well. Leroy is charged with misdemeanor battery and is set to appear in court in a couple of weeks.
Does Leroy have to worry about being deportable?
VAWA Self Petition. The spouse or child of a U.S. citizen or a Lawful Permanent Resident, or the parent of a U.S. citizen, who is battered or subject to extreme cruelty may file a self-petition independently of the abusive U.S. citizen or Lawful Permanent Resident.
The spouse or child must demonstrate that he or she resided with the U.S. citizen or Lawful permanent spouse or parent; was battered or subject to extreme cruelty during the marriage (or, in the case of a spouse self-petitioner, the child was battered or subjected to extreme cruelty); the marriage was entered into in good faith; s/he is otherwise eligible for immediate relative or preference status; and has good moral character.
In Malena’s case, she might have a strong case as a battered spouse – even though she has not suffered any physical harm by George. Each application will be reviewed and examined on a case-by-case basis, and given the whole picture, Malena might just be able to show that she is a battered spouse or has suffered extreme cruelty from George. If so, a VAWA Self-Petition will enable her to adjust her status without having to rely on George.
Deportability Issues. A non-citizen, even if a Lawful Permanent Resident (green card holder) for ten years, is liable to be deportable if s/he commits or is convicted of certain crimes, even if it’s “just a misdemeanor.” A conviction for domestic violence for example – as what is happening with Leroy, can make a non-citizen deportable.
A Criminal Conviction’s Negative Impact on Immigration Status. The Record of Conviction (ROC) details an individual’s criminal history – his/her arrest, what s/he plead to, and the final judgment/sentence. The relief(s) available to an individual facing removal/deportation proceedings will depend largely on that individual’s record of conviction.
If you are a non-citizen, it is best to consult both with a criminal attorney and with an experienced criminal immigration attorney who handles deportation defense before pleading to anything in criminal court.
No two cases are exactly the same. Consult with an experienced and competent immigration attorney immediately, and more importantly prior to filing any applications with the USCIS, or prior to pleading to anything in any court, in order to explore their options and possible legal ramifications that they might be facing. As always, be wary of online tools that offer immigration help or notarios who are not licensed to practice law.
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Atty. Lilli Berbano Baculi is an associate attorney with Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; (916) 449-3923; [email protected]. For general information visit www.chuatinsayvega.com.
