Prima Facie Review of Form I-360 When Filed by Self-Petitioning Battered Spouse/Child [62 FR 60769] [FR 74-97]

DOCUMENT NUMBER: FR 74-97

FEDERAL REGISTER CITE: 62 FR 60769

DATE OF PUBLICATION: November 13, 1997

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 204

[INS No. 1845-97]

RIN 1115-AE77

Prima Facie Review of Form I-360 When Filed by Self-Petitioning

Battered Spouse/Child

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interm rule with request for comments.

SUMMARY: This interim rule amends the Immigration and Naturalization Service (Service) regulations to enable the Service to review Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, filed by a battered spouse or child, to determine whether a prima facie case has been established. Recent legislation broadened the definition of aliens who qualify for public assistance to include battered aliens, and specifically those aliens whose self-petitions have been approved and those who file a self-petition w hich establishes a prima facie case for immigrant classification under the Violence Against Women Act.

DATES: Effective Date : This interim rule is effective November 13, 1997.

Comment Date : Written comments must be submitted on or before January 12, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street NW., Room 5307, Washington, DC 20536, Attn: Public Comment Clerk. To ensure proper handling, please reference the INS number 1845-97 on your correspondence. Comments are available for public inspection at this location by calling (202) 514-3291 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT: Karen FitzGerald, Staff Officer, Residence and Status Branch, Immigration and Naturalization Service, 425 I Street, Room 3214, Washington, DC 20536, telephone (202) 514-5014.

SUPPLEMENTARY INFORMATION:

Background

The Immigration and Nationality Act (the Act) allows a citizen or lawful permanent resident (LPR) of the United States to seek immigrant status for certain alien relatives from the Service. In order to receive this benefit, a visa petition must be filed on behalf of the alien relative and approved by the Service. The alien must then qualify for immigrant visa issuance abroad or adjustment of status in the United States.

Historically, the initiation of the visa petition process was solely at the discretion of the U.S. citizen or LPR relative. For that reason, the citizen or LPR effectively controlled the ability of an alien spouse or child to regularize his or her immigration status. Congress, in the Violent Crime Control and Law Enforcement Act of 1994 (the Crime Bill), Public Law 103-322, dated September 13, 1994, recognized the potential for misuse of this discretion within households where domestic violence occurs. Titl e IV of the Crime Bill, the Violence Against Women Act (VAWA), contains provisions which enable these battered spouses and children to self-petition for immigrant classification, thus limiting the ability of an abusive citizen or LPR to use the immigration laws to perpetuate further violence against a spouse or child residing in the United States.

Interim Rule

On March 26, 1996, the Service published an interim rule at 61 FR 13061, establishing the eligibility requirements for battered spouses and children using the self-petitioning process. The Service received numerous comments which are under consideration as the final rule is prepared for publication. This rule does not in any way alter the eligibility or evidentiary requirements set forth in that interim rule.

Impact of New Legislation

Since the Service published its interim rule, Congress has enacted new legislation that affects the ability of most aliens to receive public assistance. In the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Congress mandated that only "qualified aliens," as defined by statute, were eligible for public assistance. Section 501 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), amended the definition of "qualified alien" to include battered aliens, including certain aliens who file or have approved self-petitions. This "qualified alien" status is afforded not only to aliens with approved self-petitions, but also to those who file a self-petition which establishes a prima facie case for immigrant classification.

Purpose of Establishing a Prima Facie Case

At the present time, the Service adjudicates the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant, and issues a notice of approval to those self-petitioning spouses and children who demonstrate eligibility. Upon approval of the self-petition, the applicant is a "qualified alien" for purposes of the PRWORA. Often, however, the initial submission does not comply with all of evidentiary burdens required for the Service to adjudicate the self-petition. In such cases, pursuant to Service regula tions, self-petitioners are generally sent a request for evidence which sets forth the deficiencies of the application and allows the applicant 60 days in which to submit supplemental documentation. The applicant may be granted an additional 60 days at the discretion of the Service pursuant to current regulations at 8 CFR 204.1(h).

However, because battered aliens can be "qualified aliens" without approval of the petition, the Service must also evaluate the petition and the evidence submitted in support of the petition to determine if the alien has established a prima facie case. Although the statute affords benefits to those who establish prima facie eligibility, neither the statute nor the legislative history adequately details the requirements for establishing this eligibility. Conventional dictionary definitions are of little assi stance in this regard. Without standards, determinations could be made inconsistently and with varying constancy to Congressional intent, which would be detrimental to the purpose of the statute and to the individual petitioner trying to meet it. This interim rule explains the standards to be utilized by the Service in determining whether the petitioner has established a prima facie case.

Requirements for Demonstrating a Prima Facie Case

The prima facie determination will be made only after a self-petition has been filed with the Service, and the decision to issue that Notice of Prima Facie Case (Notice) rests solely with the Service. In evaluating whether a self-petitioner has established a prima facie case, the Service must have evidence of each of the required elements of the self-petition as detailed in Service regulations at § 204.2(c)(1) and (e)(1). Accordingly, self-petitioners should submit Form I-360 and credible relevant evidence in support of the petition addressing each of the statutory elements as detailed in the instructions accompanying Form I-360: (1) existence of the qualifying relationship; (2) the citizenship or immigration status of the abuser; (3) the self-petitioner's eligibility for immigrant classification; (4) residence in the United States; (5) evidence that, during the qualifying relationship, the petitioner and abuser resided together in the United for some unspecified period of time; (6) battery or extreme cruelty ; (7) good moral character; (8) extreme hardship; and (9) in the case of a self-petitioning spouse, good faith marriage. The elements and evidentiary requirements are set forth in 8 CFR § 204.2(c)(1) and (e)(1).

If the Service determines that a petitioner has demonstrated prima facie eligibility, a Notice of Prima Facie Case will be issued. The Notice is neither a benefit nor immigration status in its own right, and an applicant cannot apply solely for a Notice of Prima Facie Case. The decision to issue such a notice rests solely with the Service. Applicants are encouraged to submit full documentation at the earliest possible time. However, bona fide candidates for self-petitioning should not postpone filing the pe tition because they are unable to immediately comply with all of the regulatory requirements.

As an example, an applicant who has been unable to obtain police reports from each place of residence during the past 3 years could submit other supporting documentation which addresses the good moral character element of the adjudication. For the purpose of making a prima facie determination, an affidavit from the applicant stating he or she has never been arrested and is a person of good moral character may be considered acceptable for purposes of establishing a prima facie case. However, on its own, this affidavit is not sufficient to meet the evidentiary burden of § 204.2(c)(2)(v) and (e)(2)(v). Before final adjudication, the applicant must still submit police reports or, if they are unavailable, some other type of documentation as required by those provisions.

The Service's decision to issue or not to issue a Notice will not be a factor in the adjudication of the underlying petition, nor will it constitute a binding determination of the credibility of the evidence submitted. Prima facie evidence will not always fully or completely satisfy the evidentiary burdens, and may be contradicted by evidence, documentation, or affidavits (or any other credible evidence) which come to the attention of the Service after a favorable prima facie determination has been made. Se lf-petitioners should be aware that such situations may result in the denial of the I-360 petition, even if a favorable prima facie determination was initially made. Conversely, the Service's decision not to issue the Notice of Prima Facie Case is not fatal to the underlying petition.

The prima facie evaluation will consist of an initial review of the Form I-360 and the supporting documentation. Applicants who set forth a prima facie case will receive a Notice of Prima Facie Case to document their "qualified alien" status for public benefits. The Notice is valid until the Service has adjudicated the petition. At present, the Service intends to issue the Notice with a validity period of 150 days, which exceeds the time required for adjudication in the majority of these cases. In those few cases when the Service is unable to complete the adjudication within the 150-day period, the applicant will be able to request an extension pursuant to the instructions on the Notice. Because the Notice is intended solely for the purpose of enabling petitioners to apply for public benefits within the United States, the Service will only issue the Notice to petitioners residing in the United States.

Filing and Initial Processing

Because the prima facie determination is not a separate benefit granted by the Service, the procedures that an applicant must follow are those set forth in the interim rule. The only procedural change concerns the filing of the Form I-360. As a result of the Direct Mail Notice published at 62 FR 16607 on April 7, 1997, all I-360 petitions filed by a self-petitioning spouse, child, or parent on behalf of a battered child, must be mailed directly to the Vermont Service Center, 75 Lower Weldon Street, St. Alba ns, VT 05479. Self-petitioners will be provided with documentation indicating the Service has received the self-petition (Notice of Receipt). After reviewing the petition, the Service will mail applicants notification of the status of the petition. Regardless of whether a Notice of Prima Facie Case is issued, applicants who receive notice of an adverse preliminary finding will have the opportunity to respond with additional evidence or arguments. The self-petitioner will be advised by the Service as to the additional evidence or documentation needed to support the petition, and will be provided the opportunity to submit this additional evidence until the Service makes a final decision.

Good Cause Exception

The Service's implementation of this rule as an interim rule, with provisions for post-promulgation public comments, is based upon the "good cause" exceptions found at 5 U.S.C. 553(b)(B) and (d). It is in the public interest to provide prima facie determinations, which will enable qualifying spouses and children to apply for public assistance benefits. These resources and services may be critical to some applicants as they seek safety and independence from the abuser.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities because of the following factors: This rule addresses the grant of immigration benefits to certain individuals based on a family relationship to an abusive citizen or lawful permanent resident of the United States. This rule affects individuals, not small entities, and the economic impact is not significant.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to and approved by the Office of Management and Budget.

Executive Order 12612

The regulations adopted herein will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act

This interim rule does not impose any new reporting or recordkeeping requirements. The information collection requirements contained in this rule have been previously approved by the Office of Management and Budget under the provisions of the Paperwork Reduction Act. The clearance number for this collection is contained in 8 CFR 299.5, Display of control numbers.