; or (2) is a VAWA self-petitioner, as defined in section 101(a)(51) of the Immigration and Nationality Act, with a pending application for relief. 5. Prohibition on detention of certain victims with pending petitions and applications Section 236 of the Immigration and Nationality Act ( 8 U.S.C. 1226 ) is amended by adding at the end the following: (a) Prohibition on detention of certain victims with pending petitions and applications (1) In general Notwithstanding any other provision of this Act, there shall be a presumption that the non-citizen described in paragraph (2) should be released from detention. The Secretary of Homeland Security shall have the duty of rebutting this presumption, which may only be shown based on clear and convincing evidence, including credible and individualized information, that the use of alternatives to detention will not reasonably ensure the appearance of the non-citizen at removal proceedings, or that the non-citizen is a threat to another person or the community. The fact that a non-citizen has a criminal charge pending against the non-citizen may not be the sole factor to justify the continued detention of the non-citizen. (2) Non-citizen described A non-citizen is described in this paragraph if the non-citizen— (A) has a pending application under section 101(a)(15)(T), 101(a)(15)(U), 101(a)(27)(J), 106, 240A(b)(2), or 244(a)(3) (as in effect on March 31, 1997)