Does the CIS actually investigate "battered spouse" petitions? or just grant it (even without police reports?)
How does one share the family court rulings on abuse allegations with the CIS?
How long does the CIS take to grant said petition?

Normally, CIS doesn't "actually" investigate (in person, if that's what you mean) immigration benefit applications or petitions that they receive, VAWA cases included. I think it's mathematically impossible much as they want to or have to. But VAWA itself has been receiving so much incremental changes procedurally in the last couple of years to accommodate wider beneficiaries such as those with removal orders and trafficking victims.

A police report is one of the strongest documentary evidence to establish abuse, although it's not a single must-have document to be attached to Form I-360. Affidavits by disinterested persons, court documents (e.g.TROs), doctor's diagnoses, media coverage, and so on and so forth, can help to establish a prima facie case against the USC or LPR abuser that can work in the self-petitioning victims' favor.

A VAWA case just like any other immigration benefit application is discretionary depending on the weight of evidence submitted to overcome the burden of proof. If the claim is highly convincing, favorable adjudication time could last only in a matter of four to six months.

hi,,well this will bring up another question ,,honestly i didnt get some of ur answer,,well lets say the i-130 for example,,,what kind of background checks the immigration will do on the beneficiarie?local police record or federal or what?iam sure that they do at some point,,bcoz it doesnt make since if they dont check anybody,,specially the ppl who have a previous status?what do u think?and let's say that someone have an i-130 pending,and he have a previous status in the u.s and got in trouble once with the immigration but hes case was dissmesed ,,will this ganna hurt hes new i-130 to get it proved,,if no criminal record and no feloney's? and if not,,what about when it get to the nvc?or the embassy ,,iam sure they will c that ,,but is it ganna get denied bcoz of that or no?ther was no judgment ,,the case was dissmised and waived by both the judge and the immigration?what do u think?

The situation is that she kidnapped the child and went to a shelter. Her TRO was denied by the court. There was a police report of child abuse that was showed that it was her false allegation.
There are affidavits from neighbours and the pre-school that she was not physically or mentally abused; this will be on record at the custody hearing in early August.
what would it do to her VAWA application is if the family court session transcript which shows that she if abusing VAWA to stay in the country wound up with the USCIS?

Mike, wait a minute, I responded in the context of the question. Because the spirit of the OP's concern is if the USCIS will "actually" investigate the veracity of the abuse, that's why I responded accordingly along the same premise. Of course, the same matter can't be treated as the same and equal to the routine "background check" of each and every immigration benefit applicant so much so after the events of 9/11. I hope you get what I mean.

i do,,thnx,,but this is the part that i got at the beggening,,bubt what iam saying is ,,if its ganna hurt if u have a previous issue with the immigration and like i said it was dissmesed and waived by both the judge and the immigration? thats my question ,,is it ganna hurt to get it proved ,,or after it gets to the embassy?

Mike, now I saw the point where you're confused, but sorry I'll answer Klinus first and I'll get back to you afterwards.

Klinus, based on your posts here's how I read the situation (correct me if I'm wrong). You're the father, a USC, and your alien wife kidnapped your child and she filed a TRO to deny you any access to your child, and she's claiming that you're abusing her physically and mentally. She's filing an I-360 under VAWA to gain immigration benefit. Am I right in my reading?

Mike::

Yes, I am the USC father. She filed a TRo which was DENIED. I expect that she will claim physical and mental, I have depositions that will rubbish her allegations - in family court.

If she waited till the final divorce decree, which being a contested custody case could take 3 years (at least I can do that0 during which time she will be out of status. further since her status is unknown, I will ask and for (and probably recieve) full custody, with, according to CA Family Code 3048 her having only supervised visitation. That is why I suspect that she will try to file a 360.
How will the Vermont Service Center react to the Family court transcripts (which include at least 50 neighbors who are royally pissed off at her kidnapping the kid and making him live ina shelter for a month)

quote:

Originally posted by mike_2007:
i do,,thnx,,but this is the part that i got at the beggening,,bubt what iam saying is ,,if its ganna hurt if u have a previous issue with the immigration and like i said it was dissmesed and waived by both the judge and the immigration? thats my question ,,is it ganna hurt to get it proved ,,or after it gets to the embassy?

Mike, here's the point, I'll distinguish the two cases by form.

Klinus' question is about I-360 under VAWA, will CIS investigate if the applicant is actually abused? Yes, but only through documentary evidence.

For your part about I-130, will the CIS investigate your relationship with your petitioner? Yes, but through marriage or birth certificates only.

But both alien applicants for both application/petition will be background checked by the USCIS.

Regarding your question about a "previous issue" with immigration and it's possible effects on a pending I-130, it's details should be assessed and scrutinized by an immigration practitioner who can give you a clearer scenario and who can recommend the best relief possible.

What documentation? There are three police reports the first that happened when she called the cops after I cut up her (my) credit card, the secodn when she broke open my study door and made an "unfounded" child abuse claim and third when she kidnapped the child. Everybody who knows the two of us have testfied that she is, well, a little nuts. Importantly that includes three people who saw her and talked to her just before she left for the shelter.
Unless she lies....

If as you claim her abuse allegation is unfounded, then her I-360 will be denied. But it's up to the USCIS to make such a determination based on the merits of the documentary evidence that she will provide. You know, she may also seek assistance from the "shelter" to advance her own side of the story, and of course you cannot deny her an equal protection of the law that she is likewise entitled to like yourself. But all in all, it's very difficult when only your side of the picture is out in the open. Sorry.

Mike:

One more question: is the only way that she can get a waiver before the divorce decree is vAWA?

The reason that I ask the question is that we would have established by August that there was no mental or physical abuse; if she suddenly says that she had authorization to stay we would ask the court to conder her perjury in terms of a custody decision.

Honestly I don't care if she stays or goes; just stay away from my son, the damage to whom she has done will take years to repair...

Mike:

1) the shelter actually called the cops - which is highly unusual
2) my attorney came from the DA's office and will ensure that the gory details get to ICE from the DA's office

Just call me RN please, not Mike. I wouldn't have minded it if I was a man, but I'm not.

Pardon me, but this is going to be my last take on this thread.

I simply feel uncomfortable blabbering around without knowing her own version of the whole situation.

If you filed a petition before on her behalf and she's currently a conditional GC holder, she could file Form I-751 on her own 90 days before her GC second anniversary with documentary proof that your marriage was entered into in good faith, plus a divorce decree. Without a divorce decree, her I-751 will be denied.

Good luck, buddy.

This message has been edited. Last edited by: Rough Neighbor,

quote:

Originally posted by klinus:
Mike:

One more question: is the only way that she can get a waiver before the divorce decree is vAWA?

The reason that I ask the question is that we would have established by August that there was no mental or physical abuse; if she suddenly says that she had authorization to stay we would ask the court to conder her perjury in terms of a custody decision.

Honestly I don't care if she stays or goes; just stay away from my son, the damage to whom she has done will take years to repair...

I am going to supplement Rough Neighbor here. There are other ways for her to get green card, but it depends on how she arrived in the country and how long she has resided in the US.

As for the VAWA claim, it will depend in the evidence she provides. Being denied a TRO may or may not help her case. If will not hurt her case either. For a TRO to be granted beyond the initial 14 day period, the court must decide whether you will harm her, seek retribution, or harass her in the future. If no indication is found, then the TRO will be denied. The court does not rule, generally, on the validity of the abuse claim. The court may use physical and/or emotional abuse as an indication, but that is as far as it goes.

Your divorce is strictly a state matter only and the court generally does not see any justification of her legal status, current or future, as subject unless a child is involved. And if the child is involved (assuming she is the natural mother), the court looks at what is in the best interest of the child. That may not include you or her, for that matter. The court may award you physical custody, but both of you will have joint custody. If you have joint custody where she can visit the child, you must oblige under the decree of the court. If you don't, you will be in contempt of the court and the court may remove you as legal guardian. It is not in their jurisdiction. Additionally, claiming perjury will also be dubious unless you can show from her testimony that she did lie in the TRO case.

quote:

Originally posted by klinus:
Mike:

1) the shelter actually called the cops - which is highly unusual
2) my attorney came from the DA's office and will ensure that the gory details get to ICE from the DA's office

1. Shelter's do call the cops for independent verification if one goes to a woman's shelter claiming abuse.
2. Your attorney may have come from the DA and is probably fighting for you, however, I don't think the attorney can use immigration status in civil proceedings. It will prejudice the decision that the court will set up a higher standard for immigrants to follow. That alone will invalidate any divorce decision favorable to you.

If you do place immigration status as evidence. it opens up the Pandora's box where she can attack you personally. If you have not followed the procedures when you were married to adjust the status, if you are using immigration status as a control mechanism, if you want to use her immigration status that she is not entitled to any benefit from you, then you will be made to look more like a controller than anything else.

Hudson:
I apologize fo the long post. She has been in the country since March, 2004 and she came without a visa (Canadian citizen). She had been in the country a long time (20 years ago)
The marriage deteriorated the moment she got her conditional. She wanted to take our child to Canada for his nephew’s wedding; I refused since he had just started a new pre-school and had had ear and adenoid surgery. She said she was going to take him nevertheless. The only way to prevent her from taking him from the country was the automatic restraining order that comes with the petition.
We had had earlier conversations about the imminent breakdown of the marriage. I offered to file the I-751 (through her relatives, the Church and a court approved mediator), if she agreed to split physical custody. Her response was that the court would award her sole legal and physical custody and that she did not need me for immigration purposes.
3 weeks after my filing the divorce petition, and after stealing my wallet, passport and causing $1000 worth of damage to my separate property house, she kidnapped the child and headed to a shelter, She filed a TRO, which was denied by the family court. She is claiming child abuse in the TRO, which was invalidated by the police, the child’s doctor and the pre-school. She is also asking for sole legal and physical custody, and is likely to be claiming physical and mental cruelty as the basis for that. In that scenario, the family court will rule on the validity of the claim,
In terms of a “different standard for immigrants” California Family Code § 3048(b)(1) contains the following factors that a court must consider in determining whether there is a risk of abduction: whether a party has previously taken, enticed away, kept, withheld, or concealed a child in violation of the right of custody or of visitation of a person; whether a party has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of the right of custody or of visitation of a person; whether a party lacks strong ties to the state; whether a party has strong familial, emotional, or cultural ties to another state or country, including foreign citizenship, which is considered only if evidence exists in support of another factor specified in the section; whether a party has no financial reason to stay in the state, including whether the party is unemployed, is able to work anywhere, or is financially independent; whether a party has engaged in planning activities that would facilitate the removal of a child from the state, including quitting a job, selling a primary residence, terminating a lease, closing a bank account, liquidating other assets, hiding or destroying documents, applying for a passport, applying for a birth certificate or school or medical records, or purchasing airplane or other travel tickets, with consideration given to whether a party is carrying out a safety plan to flee from domestic violence; whether a party has a history of a lack of parental cooperation or child abuse, or there is substantiated evidence that a party has perpetrated domestic violence; and whether a party has a criminal record.
This is the argument that we are asking for supervised visitation, and joint legal custody. The best interests of the child is the status quo, which is to continue to stay in California, which cannot be guaranteed when he is with her, given the fact that she has already demonstrated her penchant for kidnapping; further the enforcement arm of the Family Court, the DA considers her enough of a flight risk that they made her surrender her passport (which they would not have asked of an USC). Also, her current argument is that she has permanent resident status in the country; other than using VAWA, that will not happen until post divorce decree and that said decree will not happen until the custody is determined. If she does suddenly have status, we will ask that argue that she got it by falsely claiming VAWA, which the court will already have proven unfounded…
I will be in full compliance with the family court decisions – I live here.
By definition, once I filed for divorce, filing I-751 would be perjury. There is adequate evidence – from unbiased third parties – that I offered to do the I-751 so the concept of “using immigration status as a control mechanism” is just nor the case.

I am a woman and have been a victim of domestic violence myself.

klinus.... do you love your child? If you do, then stop fighting.. it's getting too ugly and it badly hurts your child.

Absolutely I love my child. Unfortunately he is in a shelter because his (completely verifiably) unabused mother is faking VAWA.
God knows what damage has been done so far.

i'm going to court early August so that he can come back to the home he has lived in all his life, his own bedroom, and most importantly go back to the speech delay program that he was part of.

IF I don't "fight" child abuse will continue; this is happening in court and he does not see it and that is significantly less damage than being in a shelter with drug addicts.

I will accept the decision that the court makes.