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(vii) Primary evidence for an adopted compliance with this requirement, the child or son or daughter. A petition may petitioner has the burden of estabbe submitted on behalf of an adopted lishing that he or she exercised prichild or son or daughter by a United mary parental control during that peStates citizen or lawful permanent riod of residence. resident if the adoption took place be- (C) Legal custody and residence ocfore the beneficiary's sixteenth birth
curring prior to or after the adoption day, and if the child has been in the
will satisfy both requirements. Legal legal custody of the adopting parent or
custody, like residence, is accounted parents and has resided with the adopt
for in the aggregate. Therefore, a break ing parent or parents for at least two
in legal custody or residence will not years. A copy of the adoption decree,
affect the time already fulfilled. To issued by the civil authorities, must
meet the definition of child contained accompany the petition.
in sections 101(b)(1)(E) and 101(b)(2) of (A) Legal custody means the assump
the Act, the child must have been tion of responsibility for a minor by an adult under the laws of the state and
under 16 years of age when the adop
tion is finalized. under the order or approval of a court of law or other appropriate government
(3) Decision on and disposition of petientity. This provision requires that a
tion. The approved petition will be forlegal process involving the courts or warded to the Department of State's other recognized government entity
Processing Center. If the beneficiary is take place. If the adopting parent was in the United States and is eligible for granted legal custody by the court or adjustment of status under section 245 recognized governmental entity prior of the Act, the approved petition will to the adoption, that period may be be retained by the Service. If the peticounted toward fulfillment of the two- tion is denied, the petitioner will be year legal custody requirement. How- notified of the reasons for the denial ever, if custody was not granted prior and of the right to appeal in accordto the adoption, the adoption decree ance with the provisions of 8 CFR 3.3. shall be deemed to mark the com- (4) Derivative beneficiaries. A spouse or mencement of legal custody. An infor- child accompanying or following to mal custodial or guardianship docu- join a principal alien as used in this ment, such as a sworn affidavit signed
section may be accorded the same prefbefore a notary public, is insufficient
erence and priority date as the prinfor this purpose.
cipal alien without the necessity of a (B) Evidence must also be submitted
separate petition. However, a child of to show that the beneficiary resided
an alien who is approved for classificawith the petitioner for at least two
tion as an immediate relative is not elyears. Generally, such documentation
igible for derivative classification and must establish that the petitioner and
must have a separate petition approved the beneficiary resided together in a
on his or her behalf. familial relationship. Evidence of parental control may include, but is not
(5) Name change. When the petilimited to, evidence that the adoptive
tioner's name does not appear on the parent owns or maintains the property
child's birth certificate, evidence of the where the child resides and provides fi
name change (such as the petitioner's nancial support and day-to-day super
marriage certificate, legal document vision. The evidence must clearly indi
showing name change, or other similar cate the physical living arrangements
evidence) must accompany the petiof the adopted child, the adoptive par
tion. If the beneficiary's name has been ent(s), and the natural parent(s) for the
legally changed, evidence of the name period of time during which the adop
change must also accompany the petitive parent claims to have met the res
tion. idence requirement. When the adopted (e) Self-petition by child of abusive citchild continued to reside in the same izen or lawful permanent resident-(1) household as a natural parent(s) during Eligibility. (i) A child may file a self-pethe period in which the adoptive parent tition under section 204(a)(1)(A)(iv) or petitioner seeks to establish his or her 204(a)(1)(B)(iii) of the Act if he or she:
(A) Is the child of a citizen or lawful permanent resident of the United States;
(B) Is eligible for immigrant classification under section 201(b)(2)(A)(i) or 203(a)(2)(A) of the Act based on that relationship;
(C) Is residing in the United States;
(D) Has resided in the United States with the citizen or lawful permanent resident parent;
(E) Has been battered by, or has been the subject of extreme cruelty perpetrated by, the citizen or lawful permanent resident parent while residing with that parent;
(F) Is a person of good moral character; and
(G) Is a person whose deportation would result in extreme hardship to himself or herself.
(ii) Parent-child relationship to the abuser. The self-petitioning child must be unmarried, less than 21 years of age, and otherwise qualify as the abuser's child under the definition of child contained in section 101(b)(1) of the Act when the petition is filed and when it is approved. Termination of the abuser's parental rights or a change in legal custody does not alter the self-petitioning relationship provided the child meets the requirements of section 101(b)(1) of the Act.
(iii) Citizenship or immigration status of the abuser. The abusive parent must be a citizen of the United States or a lawful
permanent resident of the United States when the petition is filed and when it is approved. Changes in the abuser's citizenship or lawful permanent resident status after the approval will have no effect on the self-petition. A self-petition approved on the basis of a relationship to an abusive lawful permanent resident will not be automatically upgraded to immediate relative status. The self-petitioning child would not be precluded, however, from filing a new self-petition for immediate relative classification after the abuser's naturalization, provided the self-petitioning child continues to meet the self-petitioning requirements.
(iv) Eligibility for immigrant classification. A self-petitioner is required to comply with the provisions of section 204(c) of the Act, section 204(g) of the Act, and section 204(a)(2) of the Act.
(v) Residence. A self-petition will not be approved if the self-petitioner is not residing in the United States when the self-petition is filed. The self-petitioner is not required to be living with the abuser when the petition is filed, but he or she must have resided with the abuser in the United States in the past.
(vi) Battery or extreme cruelty. For the purpose of this chapter, the phrase "was battered by or was the subject of extreme cruelty” includes, but is not limited to, being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen or lawful permanent resident parent, must have been perpetrated against the selfpetitioner, and must have taken place while the self-petitioner was residing with the abuser.
(vii) Good moral character. A self-petitioner will be found to lack good moral character if he or she is a person described in section 101(f) of the Act. Extenuating circumstances may be taken into account if the person has not been convicted of an offense or offenses but admits to the commission of an act or acts that could show a lack of good moral character under section 101(f) of the Act. A person who was subjected to abuse in the form of forced prostitution or who can establish that he or she was forced to engage in other behavior that could render the person excludable under section 212(a) of the Act would not be precluded from being found to be a person of good moral character, provided the person has not been convicted for the commission of the offense or offenses in a court of law. A self-petitioner will also be found to lack good moral character, unless he or she establishes extenuating circumstances, if he or she willfully failed or refused to support dependents; or committed unlawful acts that adversely reflect upon his or her moral character, or was convicted or imprisoned for such acts, although the acts do not require an automatic finding of lack of good moral character. A self-petitioner's claim of good moral character will be evaluated on a case-bycase basis, taking into account the provisions of section 101(f) of the Act and the standards of the average citizen in the community. If the results of record checks conducted prior to the issuance of an immigrant visa or approval of an application for adjustment of status disclose that the self-petitioner is no longer a person of good moral character or that he or she has not been a person of good moral character in the past, a pending self-petition will be denied or the approval of a self-petition will be revoked.
(viii) Extreme hardship. The Service will consider all credible evidence of extreme hardship submitted with a self-petition, including evidence of hardship arising from circumstances surrounding the abuse. The extreme hardship claim will be evaluated on a case-by-case basis after a review of the evidence in the case. Self-petitioners are encouraged to cite and document all applicable factors, since there is no guarantee that a particular reason or reasons will result in a finding that deportation would cause extreme hardship. Hardship to persons other than the self-petitioner cannot be considered in determining whether a self-petitioning child's deportation would cause extreme hardship.
(2) Evidence for a child's self-petition, (i) General. Self-petitioners are encouraged to submit primary evidence whenever possible. The Service will consider, however, any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Service.
(ii) Relationship. A self-petition filed by a child must be accompanied by evidence of citizenship of the United States citizen or proof of the immigration status of the lawful permanent resident abuser. It must also be accompanied by evidence of the relationship.
Primary evidence of the relationship between:
(A) The self-petitioning child and an abusive biological mother is the selfpetitioner's birth certificate issued by civil authorities;
(B) A self-petitioning child who was born in wedlock and an abusive biological father is the child's birth certificate issued by civil authorities, the marriage certificate of the child's parents, and evidence of legal termination of all prior marriages, if any;
(C) A legitimated self-petitioning child and an abusive biological father is the child's birth certificate issued by civil authorities, and evidence of the child's legitimation;
(D) A self-petitioning child who was born out of wedlock and an abusive biological father is the child's birth certificate issued by civil authorities showing the father's name, and evidence that a bona fide parent-child relationship has been established between the child and the parent;
(E) A self-petitioning stepchild and an abusive stepparent is the child's birth certificate issued by civil authorities, the marriage certificate of the child's parent and the stepparent showing marriage before the stepchild reached 18 years of age, and evidence of legal termination of all prior marriages of either parent, if any; and
(F) An adopted self-petitioning child and an abusive adoptive parent is an adoption decree showing that the adoption took place before the child reached 16 years of age, and evidence that the child has been residing with and in the legal custody of the abusive adoptive parent for at least 2 years.
(iii) Residence. One or more documents may be submitted showing that the self-petitioner and the abuser have resided together in the United States. One or more documents may also be submitted showing that the self-petitioner is residing in the United States when the self-petition is filed. Employment records, school records, hospital or medical records, rental records, insurance policies, affidavits or any other type of relevant credible evidence of residency may be submitted.
(iv) Abuse. Evidence of abuse may include, but is not limited to, reports and affidavits from police, judges and other
court officials, medical personnel, (vi) Extreme hardship. Evidence of exschool officials, clergy, social workers, treme hardship may include affidavits, and other social service agency per- medical reports, protection orders and sonnel. Persons who have obtained an other court documents, police reports, order of protection against the abuser and other relevant credible evidence. or taken other legal steps to end the (3) Decision on and disposition of the abuse are strongly encouraged to sub
petition—(i) Petition approved. If the mit copies of the relating legal docu
self-petitioning child will apply for adments. Evidence that the abuse victim
justment of status under section 245 of sought safe-haven in a battered wom
the Act, the approved petition will be en's shelter or similar refuge may be
retained by the Service. If the self-petirelevant, as may a combination of doc
tioner will apply for an immigrant visa uments such as a photograph of the
abroad, the approved self-petition will visibly injured self-petitioner sup
be forwarded to the Department of ported by affidavits. Other types of
State's National Visa Center. credible relevant evidence will also be considered. Documentary proof of non
(ii) Notice of intent to deny. If the prequalifying abuse may only be used to
liminary decision on a properly filed establish a pattern of abuse and vio
self-petition is adverse to the self-petilence and to support a claim that
tioner, the self-petitioner will be proqualifying abuse also occurred.
vided with written notice of this fact (v) Good moral character. Primary evi
and offered an opportunity to present dence of the self-petitioner's good
additional information or arguments moral character is the self-petitioner's before a final decision is rendered. If affidavit. The affidavit should be ac- the adverse preliminary decision is companied by a local police clearance based on derogatory information of or a state-issued criminal background which the self-petitioner is unaware, check from each locality or state in the self-petitioner will also be offered the United States in wh the self-pe- an opportunity to rebut the derogatory titioner has resided for six or more information in accordance with the months during the 3-year period imme- provisions of 8 CFR 103.2(b)(16). diately preceding the filing of the self- (iii) Petition denied. If the self-petipetition. Self-petitioners who lived
tion is denied, the self-petitioner will outside the United States during this
be notified in writing of the reasons for time should submit a police clearance, the denial and of the right to appeal criminal background check, or similar
the decision. report issued by the appropriate au
(4) Derivative beneficiaries. A child of a thority in the foreign country in which
self-petitioning child is not eligible for he or she resided for six or more
derivative classification and must have months during the 3-year period immediately preceding the filing of the self
a petition filed on his or her behalf if
seeking immigrant classification. petition. If police clearances, criminal background checks, or similar reports
(5) Name change. If the self-petiare not available for some or all loca
tioner's current name is different than tions, the self-petitioner may include
the name shown on the documents, evian explanation and submit other evi
dence of the name change (such as the dence with his or her affidavit. The
petitioner's marriage certificate, legal Service will consider other credible
document showing the name change, or evidence of good moral character, such
other similar evidence) must accomas affidavits from responsible persons
pany the self-petition. who can knowledgeably attest to the (6) prima facie determination. (i) Upon self-petitioner's good moral character. receipt of a self-petition under paraA child who is less than 14 years of age graph (e)(1) of this section, the Service is presumed to be a person of good shall make a determination as to moral character and is not required to whether the petition and the supsubmit affidavits of good moral char- porting documentation establish acter, police clearances, criminal back- “prima facie case" for purposes of 8 ground checks, or other evidence of U.S.C. 1641, as amended by section 501 good moral character.
of Public Law 104-208.
(ii) For purposes of paragraph (e)(6)(i) proof of legal termination of the parof this section, a prima facie case is es- ents' prior marriages, if any, issued by tablished only if the petitioner submits civil authorities must accompany the a completed Form I-360 and other evi- petition. If the father's name on the dence supporting all of the elements birth certificate has been legally required of a self-petitioner in para- changed, evidence of the name change graph (e)(1) of this section. A finding of must also accompany the petition. prima facie eligibility does not relieve (ii) Primary evidence if petitioner is a the petitioner of the burden of pro- legitimated son or daughter. A child can viding additional evidence in support be legitimated through the marriage of of the petition and does not establish his or her natural parents, by the laws eligibility for the underlying petition. of the country or state of the child's
(iii) If the Service determines that a residence or domicile, or by the laws of petitioner has made a "prima facie the country or state of the father's rescase" the Service shall issue a Notice idence or domicile. If the legitimation of Prima Facie Case to the petitioner. is based on the natural parent's marSuch Notice shall be valid until the riage, such marriage must have taken Service either grants or denies the pe- place while the child was under the age tition.
of eighteen. If the legitimation is based (iv) For purposes of adjudicating the on the laws of the country or state of petition submitted under paragraph the child's residence or domicile, the (e)(1) of this section, a prima facie de- law must have taken effect before the termination:
child's eighteenth birthday. If the (A) Shall not be considered evidence legitimation is based on the laws of the in support of the petition;
country or state of the father's resi(B) Shall not be construed to make a dence or domicile, the father must determination of the credibility or pro- have resided-while the child bative value of any evidence submitted under eighteen years of age--in the along with that petition; an
country or state under whose laws the (C) Shall not relieve the self-peti- child has been legitimated. Primary tioner of his or her burden of com- evidence of the relationship should plying with all of the evidentiary re- consist of petitioner's birth certificate quirements of paragraph (e)(2) of this and the parents' marriage certificate section.
other evidence of legitimation (f) Petition for a parent—(1) Eligibility. issued by civil authorities. Only a United States citizen who is (iii) Primary evidence if the petitioner is twenty-one years of age or older may an illegitimate son or daughter. If a petifile a petition on behalf of a parent for tion is submitted on behalf of the classification under section 201(b) of mother, the petitioner's birth certifithe Act.
cate, issued by civil authorities and (2) Evidence to support a petition for a showing the mother's name, must acparent. In addition to evidence of company the petition. If the mother's United States citizenship as listed in name on the birth certificate is dif$ 204.1(g) of this part, the petitioner ferent from her name as reflected in must also provide evidence of the the petition, evidence of the name claimed relationship.
change must also be submitted. If the (i) Primary evidence is petitioner is a le- petition is submitted on behalf of the gitimate son or daughter. If a petition is purported father of the petitioner, the submitted on behalf of the mother, the petitioner must show that the benebirth certificate of the petitioner show- ficiary is his or her natural father and ing the mother's name must accom- that a bona fide parent-child relationpany the petition. If the mother's name ship was established when the petion the birth certificate is different tioner was unmarried and under twenfrom her name as reflected in the peti- ty-one years of age. Such a relationtion, evidence of the name change must ship will be deemed to exist or to have also be submitted. If a petition is sub- existed where the father demonstrates mitted on behalf of the father, the or has demonstrated an active concern birth certificate of the petitioner, a for the child's support, instruction, and marriage certificate of the parents, and general welfare. Primary evidence to