Child Status Protection Act and VAWA

The Child Status Protection Act (CSPA) prevents children who are either self-petitioning applicants or derivates from aging out of VAWA protection when they turn 21. [See INA §§ 101(f), 203(h), and 204(a)(1)(D)(iii)].

USCIS issued an interpretive memo on August 17, 2004, detailing how CSPA affects VAWA self-petitioners, derivatives, and grantees seeking adjustment of status. ['Yates Memo"].

Children who have been the victim of domestic violence or abuse may file a self-petition for VAWA relief. In order to qualify, these children must be unmarried and under 21 on the date they file the I-360 Petition. If they are over 21 or married on the date of application, they are precluded from filing a self-petition. VAWA 2005 added one exception for individuals who were eligible to self-petition when they were under 21 but failed to file before turning 21 if the domestic abuse was at least one central reason for the filing delay. [INA § 204(a)(1)(D)(v)].

Children may also obtain VAWA relief based on their being named on an I-360 petition filed by their parent due to the parent's being the victim of domestic violence or abuse. these children are classified as derivative beneficiaries, provided they are unmarried and under 21 on the day the I-360 is filed.

DHS Reverse Policy on Asylum Applications for Victims of Domestic Violence

As the New York Times reported July 16, 2009, the Obama Administration, announced in a Supplemental Brief submitted to the Board of Immigration Appeals, a 180 degree reversal from the prior position taken by former Attorney General MuKasey on the question of whether the government recognizes claims for asylum from victims of domestic violence. All of these claims fall under the protection category of "Membership in a Particular Social Group."

The BIA in 1999 issued a precedent decision in Matter of R-A-, 22 I&N Dec. 906 (BIA 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008), which has not conclusively decided the issue of whether asylum claims can be based upon domestic violence.

However, for the first time, the attorneys for the Department of Homeland Security have articulated two scenarios that they acknowledge would fall within the criteria of a grant of asylum. In the brief submitted to the BIA, the DHS attorney states, "the Department will offer here alternative formulations of 'particular social group' that could, in appropriate cases, qualify aliens for asylum or withholding of removal." Pg. 5.

The government brief continues and holds, "that the particular social group in asylum and withholding claims based on domestic violence is best defined in light of the evidence about how the respondent's abuser and her society perceive her role within the domestic relationship." Pg. 14. DHS puts forward two possible formulations of the social group, "Mexican women in domestic relationships who are unable to leave" or as "Mexican women who are viewed as property by virtue of their positions within a domestic relationship." Id.

The change by the Obama Administration is dramatic and will potentially open the door to women who have suffered domestic violence at the hands of the abusive spouses. Many thanks to Karen Musalo from the Center for Gender and Refugee Studies at UC Hastings School of Law in San Francisco, California.