VAWA cancellation is a defense to deportation for people who have suffered physical or emotional abuse by a US citizen or permanent resident spouse or parent. It also protects parents of children who have suffered abuse by a US citizen or permanent resident parent or step-parent. If successful, the applicant avoids deportation and instead receives a green card (permanent residence). Although it is based on the “Violence Against Women Act,” this defense is available to people of any gender and sexual orientation.
This protection is related to regular (or “10 year”) cancellation of removal for non-permanent residents but has different rules. It requires showing only 3 years of physical presence. The hardship standard is lower and can include hardship to the applicant herself.
Most people who qualify for VAWA cancellation can also take a more direct path to a green card through the I-360 Self-Petition and I-485 Application for Adjustment of Status. However, VAWA cancellation has several advantages. Unlike the I-360, VAWA cancellation is available at any time, even many years after a marriage ends by death or divorce. And for people who are in removal proceedings, a pending cancellation of removal application allows them to apply for a work permit, which is not available for people who only have an I-360 pending.
This defense is for people who do not have any immigration status, who are losing their immigration status in proceedings, or who are permanent residents but aren’t eligible for Cancellation of Removal for Lawful Permanent Residents and or other more generous defenses for permanent residents.
To win, the applicant must prove:
- That she was “battered or subjected to extreme cruelty” (including physical or emotional abuse) by her US citizen or permanent resident spouse or parent, or that her child was “battered or subject to extreme cruelty” by a US citizen or permanent resident parent. For more information about this standard, click here
- That she was present in the United States for at least 3 years before the trial. Unlike with regular cancellation of removal, the start of removal proceedings does not “stop the clock.”
- That she was a “person of good moral character” for the three years before her hearing. This generally means that she has paid her taxes and does not have certain disqualifying criminal convictions.
- That her deportation would cause extreme hardship to herself, her child, or her parent. This lower than the “extreme and exceptionally unusual” hardship standard for regular 42B cancellation. Unlike regular 42B cancellation, hardship to the applicant herself counts, as does hardship to qualifying relatives who are not US citizens or permanent residents.
- That she “merits a favorable exercise of discretion” – in other words, she must convince the judge that she deserves to stay in the US even though she doesn’t have status.
Once the application for cancellation of removal is filed with the court, the applicant can apply for a work permit, which she renews every year while she is waiting for her final hearing (trial).
At the trial (“individual hearing”), the judge will review the documents the applicant and the prosecutor have submitted. The attorney helps the applicant and witnesses speak to the judge about the case, and offers legal argument for why the applicant qualifies and deserves to win. A prosecuting attorney representing Immigration and Customs Enforcement (ICE) usually opposes the case and cross-examines each witness, trying to convince the judge that she should deny the case and deport the applicant. If the judge denies the case, she usually orders the applicant deported. If she approves the case, the applicant becomes a permanent resident.