How VAWA Cancellation of Removal Differs From a Self-Petition

A person in removal proceedings who was abused by a U.S. citizen or permanent resident spouse or parent has two VAWA tools, and they are decided by different people. The VAWA self-petition on Form I-360 goes to USCIS. VAWA cancellation of removal under INA 240A(b)(2) is an application to the immigration judge, filed on Form EOIR-42B, and if granted it ends the case with a green card. The requirements overlap but are not the same, and the differences decide which track, or both, a respondent should pursue.

Who can apply for VAWA cancellation of removal

The applicant must be in removal proceedings before an immigration judge. The applicant must have been battered or subjected to extreme cruelty by a spouse or parent who is or was a U.S. citizen or lawful permanent resident, or must be the parent of a child who was battered or subjected to extreme cruelty by the child’s citizen or resident parent. A former spouse qualifies, and unlike the self-petition there is no requirement that the application be filed within two years of a divorce. Men and women qualify equally. Our VAWA and humanitarian protection practice screens every respondent with a history of family abuse for this defense, because it is often missed when the abuse ended years before the Notice to Appear.

The five requirements

The judge must find five things. The battery or extreme cruelty, proven by any credible evidence, with the same breadth the self-petition uses: physical violence, threats, isolation, financial control and psychological abuse. Three years of continuous physical presence in the United States immediately before the application. Good moral character during that three-year period, with a provision allowing the judge to overlook an act or conviction connected to the abuse. No conviction for an aggravated felony and no inadmissibility or deportability under the criminal, security and marriage fraud grounds the statute lists. And extreme hardship to the applicant, the applicant’s child or the applicant’s parent if the applicant were removed.

The hardship element has no counterpart in the self-petition, and it is where cancellation cases are won or lost.

Why the three-year clock is different

In ordinary cancellation of removal, service of a Notice to Appear stops the clock on continuous presence, so a person who has been here for nine years but received the charging document at year nine and a half cannot accrue more time. VAWA cancellation is different by statute. The issuance of the charging document does not stop the three-year period, so a respondent who had been present for two years when the Notice to Appear was served can continue to accrue time and become eligible during the proceedings. Absences of more than 90 days at once or 180 days in total normally break continuity, but the statute excuses absences connected to the abuse. Those two provisions make VAWA cancellation available to respondents who would be shut out of the ten-year form of cancellation.

Self-petition versus cancellation: the key differences

Both routes lead to permanent residence, but they diverge on several points:

• The decision-maker: USCIS adjudicates the I-360 on paper; the immigration judge decides cancellation after a hearing with testimony and cross-examination by government counsel.
• Divorce timing: the self-petition must be filed within two years of a divorce connected to the abuse; cancellation has no such deadline.
• Hardship: cancellation requires extreme hardship; the self-petition does not.
• Presence: cancellation requires three years of continuous physical presence; the self-petition has no presence requirement.
• Shared residence: the self-petition requires that you lived with the abuser at some point; cancellation does not list that element.
• Children: a child cannot derive status from a parent’s cancellation grant directly, but the statute directs that the child of a parent granted VAWA cancellation receive parole and be treated as having a pending petition.

The requirements for the USCIS route are set out in our post on who can file a VAWA self-petition.

Pursuing both at the same time

A respondent who qualifies for both should usually file the I-360 with USCIS and the EOIR-42B with the court. The I-360 is often faster and is decided without the respondent having to testify about the abuse in open court. If USCIS approves it and the respondent is an immediate relative of a citizen abuser, the judge can adjudicate adjustment of status in court and the cancellation application becomes unnecessary. If the abuser is a permanent resident and no visa number is available, cancellation may be the only route to a green card inside the proceedings. While USCIS works, we ask the judge for a continuance under the framework the Board of Immigration Appeals has set for pending petitions, which is part of the broader approach described in our removal defense practice and in our post on what to expect in removal proceedings.

Proving extreme hardship

The hardship inquiry in VAWA cancellation is tailored to abuse. Regulations direct the judge to consider the nature and extent of the abuse, the need for access to courts and protective orders in the United States, the availability of services and protection in the home country, the abuser’s ability to reach the applicant abroad, the likelihood of the abuser’s family or associates causing harm there, and the effect on the applicant’s children, including the possibility that the abuser would obtain custody. Medical and psychological evidence, country condition reports on domestic violence enforcement, and declarations from counselors carry the most weight. Because the judge’s decision is discretionary and appealable, we build the record with the Board of Immigration Appeals in mind from the first filing.

If you are in immigration court and the abuse you suffered came from a citizen or resident spouse or parent, VAWA cancellation may be a defense the government has not mentioned to you. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our VAWA and humanitarian protection page or schedule a consultation.