At the time of this election and all of us waiting with bated breath to see the swearing-in of Joe Biden as the new President of the United States, I thought this would be a good opportunity to remember the history of the Violence Against Women Act (VAWA) passed 26 years ago in 1994 by the US Congress, co-sponsored by the then-senator of Delaware, Joe Biden. The very same Joe Biden sponsored VAWA into law, which is about to take leadership of our country.
VAWA was signed into federal law by President Bill Clinton. At my firm, Shepelsky Law Group, we use VAWA in our practice daily to save women and men from domestic violence and legalize them in the U.S.
History of VAWA
The Violence Against Women Act of 1994 (VAWA) is a US federal law (Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act, H.R. 3355) signed as Pub.L. 103–322 by President Bill Clinton on September 13, 1994 (codified in part at 42 U.S.C. sections 13701 through 14040).
The Act provided $1.6 billion toward investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors chose to leave un-prosecuted. The Act also established the Office on Violence Against Women within the Department of Justice.
VAWA was cosponsored by Senator Joe Biden (D-DE) and Senator Orrin Hatch (R-UT) in 1994 and gained support from a broad coalition of advocacy groups. The Act passed through Congress with bipartisan support in 1994, clearing the United States House of Representatives by a vote of 235–195 and the Senate by a vote of 61–38, although the following year House Republicans attempted to cut the Act’s funding. In the 2000 Supreme Court case the United States v. Morrison, a sharply divided Court struck down the VAWA provision allowing women the right to sue the accused in federal court. By a 5–4 majority, the Court overturned the provision as exceeding the federal government’s powers under the Commerce Clause.
VAWA’s USE IN IMMIGRATION LAW
The Immigration Reform Act of 1990 created the “battered spouse waiver,” which allows victims of domestic violence who obtained conditional permanent residency based on their marriage to a U.S. citizen to file an application to remove that conditionality without the assistance of their spouse if they are in an abusive relationship. The Violence Against Women Act (VAWA) of 1994 included provisions to allow noncitizen victims of domestic violence to obtain immigration relief independent of their abusive spouse or parent through a process called “self-petitioning.” The Battered Immigrant Women Protection Act of 2000 (VAWA 2000) created new forms of immigration relief for noncitizen victims of violent crime (“U” visas) and victims of sexual assault or trafficking (“T” visas). Finally, the Violence Against Women Act of 2005 expanded these protections and included some victims of elder abuse.
The enactment of VAWA 1994 culminated an effort begun in 1990 to draft and pass what became this landmark legislation. Vice President Joseph Biden, then Senator from Delaware, initiated this effort when he submitted to Congress a preliminary proposal to address the issue of violence against women, sparking a long-awaited national conversation about violence prevention and services. Working closely with the staff of the Senate Judiciary Committee, Legal Momentum (then NOW Legal Defense and Education Fund) brought experts and organizations together in the Task Force on the Violence Against Women Act to help draft and pass the legislation. This initial coalition has become the very large and diverse National Task Force to End Sexual and Domestic Violence, which continues to collaborate to help draft and pass each VAWA reauthorization.
VAWA’s EXTENSIVE IMPACT IN U.S.
VAWA and its subsequent reauthorizations have vastly improved services for victims of sexual and domestic violence and stalking, as well as education and training about violence against women for victim advocates, health professionals, law enforcement, prosecutors, and judges. The numerous new legislative provisions include a ban on states charging rape victims for forensic sexual assault examinations and the criminalization of stalking by electronic surveillance.
In its original enactment, VAWA was designed to improve criminal justice responses to domestic violence and increase the availability of services to those victims. VAWA 2000 and VAWA 2005 reauthorized the grant programs created by the original VAWA and expanded the initial mandate to address not only domestic violence but sexual assault and stalking as well, and specifically took into account the needs of underserved populations. VAWA 2000 improved protections for battered immigrants, sexual assault survivors, and victims of dating violence. It enabled domestic violence victims who flee across state lines to obtain custody orders without returning to jurisdictions where they may be in danger and improved enforcement of protection orders across state and tribal lines. VAWA 2005 continued to improve upon these laws by providing an increased focus on access to services for communities of color, immigrant women, and tribal and Native communities. New programs under VAWA 2005 include the Court Training and Improvements, Child Witness, and Culturally Specific programs.
VAWA requires a coordinated community response (CCR) to domestic violence, sexual assault, and stalking, encouraging jurisdictions to bring together players from diverse backgrounds to share information and use their distinct roles to improve community responses to violence against women. These players include victim advocates, police officers, prosecutors, judges, probation and corrections officials, health care professionals, leaders within faith communities, and survivors of violence against women.
Who is eligible to file the I-360 VAWA Self-petition?
VAWA self-petitions are available to:
- Spouses and former spouses of abusive U.S. citizens or lawful permanent residents. Divorced spouses may self-petition if the termination of the marriage was related to the abuse and if the application is filed within two years of the termination of the marriage.
- Children of abusive citizens or lawful permanent residents who file before turning 25.
- A noncitizen parent of an abused noncitizen child, even if the non-citizen parent is not herself abused.
- Non-citizen spouses whose children are abused by the child’s other U.S.-citizen or LPR parent.
- In addition to proving abuse, a self-petitioner must also prove:
- Good faith marriage if the abuser is a spouse or step-parent.
- The relationship to the abuser.
- The immigration status of the citizen or LPR spouse, parent, or child.
- Good moral character.
- Residence with the abusive family member.
- Parent-child relationship if the applicant is a non-abusive noncitizen parent whose U.S.-citizen or LPR spouse perpetrated the abuse.
What is VAWA Cancellation of Removal?
VAWA Cancellation of removal is a form of relief designed to keep victims of abusive U.S.-citizen or LPR spouses or parents from being deported. It is a form of relief that a noncitizen victim can seek in immigration court after being placed in removal proceedings.
Successful cancellation of removal results in LPR status for the victim, and his or her noncitizen children ultimately receive a green card as well.
To qualify for VAWA cancellation of removal, a victim must prove:
- He or she has been battered or subjected to extreme cruelty by a U.S.-citizen or LPR spouse or parent.
- Physical presence in the United States for 3 years.
- Good moral character.
- That removal would cause extreme hardship.
- That certain inadmissibility grounds do not apply or that she qualifies for a waiver of inadmissibility.