Opening Doors: Setting New Immigration Precedent with Violence Against Women Act

When Jennifer Arguijo was 11 years old, she and her siblings left Honduras to join their mother and stepfather—a US citizen—in the United States. Four years later, she ran away from home to escape her stepfather’s abuse. Her mother later divorced her stepfather and died shortly after.

Under a provision of the Immigration and Nationality Act, enacted as part of the Violence Against Women Act (VAWA), a child who has endured domestic violence at the hands of a US citizen immediate relative can self-petition for a change in immigration status. Regarding the definition of stepchildren, the INA stipulates that the child must be under 18 at the time of the parents’ marriage, and that the petition must be filed before the child turns 21. Jennifer qualified on both counts, so she petitioned for a change in immigration status.

Years later, her petition was rejected by United States Citizen and Immigration Services (USCIS) because she no longer qualified as a stepchild under the agency’s interpretation of the applicable rule.

The challenge to USCIS’s decision revolved around one central question: Did Jennifer no longer qualify as a stepchild because she did not maintain a continuing relationship with her abuser after her mother divorced him?

The National Immigrant Justice Center asked a pro bono McDermott team to take on the appeal.

THE OBJECTIVE:

Jennifer’s McDermott legal team, most recently including Emilie O’Toole, sought to establish that she was in fact eligible to petition for status under the VAWA provision—despite the divorce and Jennifer’s decision not to maintain a relationship with her abusive stepfather. To do so, they would have to challenge the application of the long-established Board of Immigration Appeals rule in Matter of Mowrer in the VAWA context, setting a new precedent that would give other abuse survivors the opportunity to petition for a change in their own immigration status.

For years, to determine who could legally be considered a stepchild, USCIS had followed the Mowrer rule—established years before the passage of VAWA in a context absent abuse—which held that a stepchild ceased to be a stepchild upon divorce or the death of either parent. Under Mowrer, Jennifer wouldn’t qualify to petition for immigration status as a relative, because she was not “currently” a stepchild after ending her relationship with her stepfather following the divorce.

The McDermott team argued that the application of Mowrer was improper in the abuse context, because to require a survivor to remain in the power of their abuser is antithetical to the protections that VAWA was intended to provide.

THE OUTCOME:

Following a complicated procedural history that spanned eight years, the US Court of Appeals for the Seventh Circuit ruled in Jennifer’s favor, reversing a lower court decision, and recognizing her as a stepchild. She is now a US citizen.

The Court’s clear and decisive holding that a stepchild remains a stepchild for the purposes of protection under the VAWA provision, even after divorce or death, has established a new precedent and opened the door to a change in immigration status for other abuse survivors who might otherwise have been abandoned by a system intended to protect them.

GO FURTHER:

Despite facing roadblocks, delays and disappointments for nearly a decade, Jennifer and her McDermott team persevered. Recognizing the injustice of Jennifer’s situation, her team of lawyers remained passionate and focused on their central arguments throughout the process.

Roadblocks included a fight to obtain discovery from USCIS to uncover the agency’s past policies and rationale regarding stepchildren. Additionally, in court, government lawyers repeatedly advanced an idea that Jennifer had better alternate paths available to her in pursuing immigration status—an alluring argument that sounded reasonable on its face but ultimately did not hold up. In preparing for argument before the Seventh Circuit, Jennifer’s legal team anticipated and thoroughly prepared to combat those claims and follow-up questions from the panel of judges. Ultimately the Court came down on their side.

Recognizing the absurdity of interpreting “stepchild” to exclude someone like Jennifer in the VAWA context, Judge Easterbrook noted in the opinion, “Does anyone think that Cinderella stopped being the wicked stepmother’s stepchild once Cinderella’s natural father died, ending the marriage? She was still a stepchild even after she married Prince Charming and moved to the palace.”

Emilie O’Toole, one of Jennifer’s lawyers, said, “As a child, Jennifer was brought into a terrifying, abusive environment here in the US. It has taken an enormous amount of persistence, but to see her vindicated in this way is extremely gratifying. We’re also thrilled that Jennifer’s victory will help others who have survived abuse at the hands of a stepparent.”