In Toro v. Sec’y, a native from Venezuela came to the United States on a B-2 Tourist Visa. She married a Cuban citizen in Orlando, Florida. After a year, Toro and her husband filed a Form I-485 for permanent resident status under section 1 of the CAA. The requirements for permanent residency under section 1 of the CAA provides that any alien who is a native or citizen of Cuba and who has been inspected and: (1) admitted or paroled into the United States subsequent to January 1, 1959 and; (2) has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion and under such regulation as he may prescribe, to that of an alien lawfully admitted for permanent residence if (3) the alien makes an application for such adjustment and; (4) the alien is eligible to receive an immigrant visa and; (5) is admissible to the United States for permanent residence. As such, United States Citizenship and Immigration Services (USCIS) denied Toro’s husband’s petition because of his criminal history rendering him inadmissible to the United States and in turn, Toro, as a derivative beneficiary, was denied as well.On January 31, 2008, Toro self-petitioned as a battered spouse of a Cuban alien, under section 1 of the CAA, to adjust her status to permanent lawful resident. USCIS denied Toro’s application and she appealed to the Administrative Appeals Office (AAO), which dismissed her claim. Relying on Quijada-Coto, decided in 1971 by the Board of Immigration Appeals, the AAO concluded that because Toro’s husband must be admissible to the United States and was not, Toro had no qualifying relationship with a Cuban alien for purposes of section 1 of the CAA. Toro filed a complaint in the district court alleging that USCIS’s denial of her self- petition was contrary to law and congressional intent.

 

This article further discussed that although, Toro could not successfully self-petition under Violence Against Women’s Act (VAWA) as a battered spouse because she would have the same problem (she was not married to a legal permanent resident or a citizen), there is an alternative solution for Toro. She could petition for a U-Visa. The case note discusses the pros and cons of a U-Visa as well.  For example, there is a 10,000 visa cap for each fiscal year and they go quickly.  Another issue with the U-Visa is that the victim needs to report the abuse to the police and assist in the prosecution of the abuser.  This may not be feasible for many domestic violence victims. The case note also examined the immigration laws as it pertains to domestic violence survivors in Canada and advocates for immigration reform in the context of domestic violence.

Sources:

Westlaw ; USCIS; Government of Canada

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