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I am in removal proceeding. Can I file VAWA I-360 then apply I-485 with USCIS or my only option is VAWA Cancellation of Removal

Kirksville, MO |

I have been married for almost 5 years to a USC. He is my first husband. We filed AOS I-130/I-485 twice, the first set denied since he was on military training and didn't accompany me to interview. He didn't give me enough notice to arrange reschedule. The 2nd set was pending but then denied due to me being in proceeding (long story short, I was not at fault when detained by police and transferred to ICE, I showed ICE pending AOS but they proceeded anyway). Since I was not able to work and became dependent on husband, he turned spiteful and made my life a living hell. I want to know what is my option, can I file I-360 and I-485 concurrently with USCIS, or since I am under proceeding I can only go for VAWA Cancellation of Removal in front of Immigration Judge?

Attorney Answers 3

Posted

You need to see an experienced immigration attorney regarding your matter. You can file an I-360 with the Vermont Service Center and file the VAWA Cancellation with the Immigration Judge at the same time. However, because you are already in removal proceedings, you cannot file an I-485 concurrently with your I-360 because jurisdiction relating to the I-485 is now with the IJ. USCIS will entertain jurisdiction only if and after the IJ terminates proceedings, even if conditionally.

Unless you believe you have a very strong case of battery or extreme cruelty by your USC spouse, I would suggest that you focus on the I-360 because the Vermont Service Center is much more sympathetic and the standard of proof is much lower, requiring only "any credible evidence". If it is approved, you can then file an I-485 with the IJ. The VAWA cancellation is much harder to obtain because you need to show extreme hardship, among other things.

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Asker

Posted

Thank you for such a clear answer. It helps me a lot.

Obadan Unuigbojie Iziokhai

Obadan Unuigbojie Iziokhai

Posted

You welcome. Goodluck.

Posted

It doesn't sound as if you've tried the most obvious thing: to hire an immigration attorney.

This advice does not form an attorney-client relationship and is merely informative. It should not by itself be relied upon to address a legal concern.

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Sorry if I appear to be ignorant of the importance of having an experienced representative, I did have a lawyer but just had to fire him recently due to no communication. I am looking for a new one. Thank you.

Gunda Johanna Brost

Gunda Johanna Brost

Posted

I didn't mean to make you sound ignorant and apologize if it came across that way. I am surprised your attorney did not advise you of the importance that both you and your husband have to attend the interview - unless that advice was ignored. Secondly if you had AOS pending that should have closed removal proceedings, unless I'm missing information. In any event, yes, do have an immigration attorney help you.

Posted

I highly recommend you hire an immigration attorney with experience handling VAWA cases. If you were subjected to battery or extreme mental cruelty by your US citizen husband, you have a couple options. But, you need to get started right away. You could file an I-360 (by itself) and then ask ICE to administratively close your removal case while it is pending. But, they may not consider admin closure until the I-360 is approved. You cannot file an I-485 with USCIS until your removal case is terminated. If ICE will not admin close or terminate, then your only option will be VAWA Cancellation. You should discuss the pros and cons of your options with a qualified immigration lawyer. Are you scheduled before the Kansas City Immigration Court? When is your first hearing? I am in the St. Louis area and would be happy to consult with you. There are also many other good immigration attorneys in St. Louis and Kansas City. Best of luck!

My response to your question is for informational purposes only, and is not legal advice, nor does it create an attorney-client relationship.

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Obadan Unuigbojie Iziokhai

Obadan Unuigbojie Iziokhai

Posted

Actually, VAWA Cancellation is not her only option if ICE refuses to terminate proceedings. Even if administrative closure is granted, USCIS does not automatically get jurisdiction since she still has to recalender the matter before the IJ before the matter can proceed. Since the IJ has jurisdiction over the I-485, she can, and should file the I-485 with him if the I-360 is approved, whether or not proceedings are terminated. In my experience, adjustment with the IJ is much less difficult and less time consuming than with the USCIS, and a far better option than VAWA Cancellation.

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