Immigration Remedies for Victims of Crimes Against Women

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Immigration Remedies for Victims of Crimes
Against Women presented by Susheela Varky, Staff
Attorney, Virginia Poverty Law
Center susheela_at_vplc.org, [phone], x. 33,
www.vplc.org, based on materials developed by
Natalie Nanasi, Staff Attorney, Tahirih Justice
Center, Natalie_at_tahirih.org, 571.282.6161 ext.
18311, www.tahirih.org, and Immigrant Legal
Resource Center, www.ilrc.org Presented on
____________, to members of VSBs Young Lawyers
Conference
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AGENDA

• A few immigration basics
• Violence Against Women Act (VAWA)
  Self-Petitions and Battered
• Spouse Waivers for spouses of abusive U.S.
  citizens or Permanent
• Residents
• The U visa for victims of violent crimes such
  as domestic violence,
• rape, and sexual assault
• The T visa for survivors of human
  trafficking, including sex
• trafficking and labor trafficking
• Gender-based asylum for women fleeing
  persecution such as
• domestic violence, honor crimes, FGM/C, widow
  rituals, forced
• marriage

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What agencies make up Immigration?

• Department of Homeland Security
• US Citizenship Immigration Service (USCIS)
• US Immigration Customs Enforcement (USICE)
• US Customs Border Patrol (USCBP)

• Department of Justice
• Executive Office for Immigration Review (EOIR)
• Board of Immigration Appeals (BIA)

• Federal Circuit Courts of Appeals

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Immigration Basics Immigrants v. Nonimmigrants

• Immigrants
• Lawful Permanent Residents (LPRs) may permanently
  reside in the US and legally work in the US
• Common ways to obtain permanent residency
• Family-sponsored immigrants
• Employment-based immigrants
• Diversity Immigrants
• Refugees and Asylees

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Immigration Basics (continued)

• Nonimmigrants
• Nonimmigrant status temporary period of time.
• Because they are restricted to the activity
  consistent with their nonimmigrant category, the
  most significant issue is whether the person may
  lawfully work in the US.
• Obtained at a US Consulate abroad or within the
  US by asking the USCIS for a change of status
  from one nonimmigrant category to another.

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Immigration Basics (continued)

• Nonimmigrant Status Categories (e.g.)
• Temporary Visitors (B-2 visa)
• Academic Students (F-1 visa)
• Temporary Workers (H-1B visa)
• Fiancée/Fiancé of U.S. Citizen (K-1 visa)

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• VAWA Self-Petitions
• and
• Battered Spouse Waivers

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Elements of VAWA

• Identity of the Petitioner
• Evidence of the Abusers Legal Status in the
  United States (U.S. Citizen or Lawful Permanent
  Resident)
• Evidence that the Petitioner and Abuser Married
  in Good Faith
• Evidence that the Petitioner and Abuser Shared
  Residence
• Evidence of Physical, Mental and/or Sexual Abuse
• Evidence of Good Moral Character of the
  Petitioner

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Any Credible Evidence

• Identity
• Abusers Legal Status
• Good Faith Marriage

• Passport
• Drivers License

• Copy of Green Card, naturalization certificate
  or U.S. birth
• certificate

• Marriage Certificate
• Photographs (wedding pictures)
• Letters, cards and emails
• Birth Certificates of their children
• Copies of any immigration petitions/applications
  filed on her behalf

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Evidence, Continued
Shared Residence Abuse

• Bills with both names
• Joint leases or rent receipts
• Joint Tax Returns or bank account statements
• Any court or legal documents regarding their
  relationship

• Any police records or reports
• Medical records as evidence of physical abuse
• Photographs of injuries
• Protective Order paperwork
• Supporting letters, affidavits or declarations
  from witnesses,
• counselors, therapists, shelter workers,
  counselors, social workers, victim
• witness advocates, friends, relatives, clergy

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Benefits of an Approved VAWA

• Employment Authorization Document (work permit)
• A VAWA Self-Petition is not an application for
  Permanent Resident Status (i.e. an application
  for a Green Card)
• An approved VAWA self-petition allows the
  applicant to either apply for permanent residency
  in the U.S. or at a U.S. Consulate/Embassy
  abroad.
• If the applicant is/was married to a USC, then
  she can file for permanent residency and for a
  work permit at the same time she files her VAWA
  Self-Petition.

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Battered Spouse Waivers What is Conditional
Residency?

• Conditional permanent residency is given to
  individuals who have obtained their permanent
  residency through their marriage to a U.S.
  Citizen or Lawful Permanent Resident spouse, if
  the marriage is less than two years old.
• Conditional permanent residency expires after two
  years.
• Prior to expiration, the conditional resident and
  her spouse must jointly submit a petition to have
  the conditions removed from the permanent
  residency.
• Purpose - deter marriage fraud

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Battered Spouse Waivers Removal of Conditions
To qualify for a waiver of the joint filing
requirement because of domestic violence, the
conditional resident must demonstrate that she
entered the marriage in good faith, but she or
her child was subject to battery or extreme
cruelty by the spouse/parent. The result of an
approved waiver or a jointly filed application is
the issuance of a permanent (or unconditional)
green card.
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The U Visa Helping Immigrant Victims of
Crime
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Background/Policy

• Congress created the U Visa in an effort to
  strengthen the ability of law enforcement
  agencies to detect, investigate and prosecute
  crimes against immigrants.
• Recognition of importance of victim witness
  cooperation
• Recognition that immigration status affects
  likelihood of cooperation
• Created as part of the Victims of Trafficking and
  Violence Prevention Act of 2000
• Regulations not issued until September 16, 2007
  (seven years later!)
• Interim rule in effect as of October 16, 2007
• Comments due on November 16, 2007 and final rule
  to be promulgated thereafter.

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Elements of the U Visa

• The applicant has suffered substantial physical
  or mental abuse as a result of having been a
  victim of certain criminal activity
• The applicant possesses information concerning
  that certain criminal activity
• The applicant has been helpful, is being helpful,
  or is likely to be helpful to law enforcement
  official
• The criminal activity described violated the laws
  of the United States or occurred in the United
  States.

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Certain Criminal Activity

• One or more of the following or any similar
  activity in violation of Federal, State, or
  local criminal law
• Sexual assault or abusive sexual contact
• Rape
• Domestic violence
• Felonious assault
• Kidnapping or Abduction
• False imprisonment or unlawful criminal restraint
• Other eligible crimes include trafficking,
  manslaughter, murder, torture, prostitution,
  female genital mutilation, being held hostage,
  blackmail, peonage, involuntary servitude, slave
  trade, extortion, witness tampering, obstruction
  of justice, and perjury
• Attempt, conspiracy, or solicitation to commit
  any of the above

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Defining a Victim

• Direct victim
• Direct and proximate harm
• Bystanders who suffer unusually direct injury
• Indirect victim
• Certain family members if direct victim is
  deceased due to murder or manslaughter, or
  incapacitated or incompetent
• Grey area - minor U.S. citizen child victim
  with undocumented parents

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Substantial Abuse

• The abuse can be either physical or mental
• Factors to be considered include
• The nature of the injury inflicted or suffered
• The severity of the perpetrators conduct
• The severity of the harm suffered
• The duration of the infliction of the harm
• The extent to which there is permanent or serious
  harm to the appearance, health, or physical or
  mental soundness of the victim
• No single factor is a prerequisite, case-by-case
  determination

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Helpfulness

• The U Visa is available to those who are
  helpful regardless of whether the investigation
  or prosecution results in a conviction.
• Ongoing responsibility to cooperate
• Certifying official can withdraw certification
• DHS can contact certifying official
• A parent or guardian can fulfill the cooperation
  requirement for incompetent or incapacitated
  victims, or victims under 16 at the time of
  criminal activity

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Law Enforcement Certification

• Law Enforcement Certification Form (I-918, Supp
  B) can be signed by
• Traditional law enforcement agencies such as
  police or prosecutors
• Judges
• Other agencies that have criminal investigative
  jurisdiction in their respective areas of
  expertise, such as Child Protective Services,
  Equal Employment Opportunity Commission, or
  Department of Labor.
• Must be signed by either the head of the agency
  or an individual specifically designated by the
  head of the agency.
• Expires six months after date of signature.

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Evidence

• Evidence of Crime / Victims Helpfulness
• Evidence of Abuse
• Any Credible Evidence Standard

• Police report
• Arrest warrant
• Court disposition
• Protective Order, if applicable
• Crime as described in state or federal code

• Medical Records
• Photographs
• Supporting letters, affidavits or declarations
  from witnesses, counselors, therapists, shelter
  workers, counselors, social workers, victim
  witness advocates, friends, relatives, clergy

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Benefits of the U Visa

• Lawful U status for four years for principal
  applicant
• Employment Authorization for 4 years
• Derivatives must file I-765 after the U Visa is
  approved to obtain EAD.
• Can petition for derivatives (I-918 Supplement A)
• For applicants under 21 victims spouse,
  children, parents and unmarried siblings lt 18
  years
• For applicants 21 or older victims spouse,
  children
• Can apply to adjust status to LPR after three
  years

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The T Visa Helping Victims of Trafficking
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Elements of the T Visa

• A victim of a severe form of trafficking
• Physically present in the U.S. on account of the
  trafficking
• Complied with any reasonable request for
  assistance in the investigation and prosecution
  of acts of trafficking and
• Would suffer extreme hardship involving unusual
  and severe harm upon removal.

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Severe Form of Trafficking

• Sex trafficking
• a person is induced to perform a commercial sex
  act
• by force, fraud, or coercion or
• a person under the age of 18 is induced to
  perform a
• commercial sex act
• Labor/services trafficking
• (1) recruitment, harboring, transportation,
  provision, or
• obtaining of a person for labor or services
• (2) through the use of force, fraud, or coercion
• (3) for the purpose of subjection to involuntary
  servitude,
• peonage, debt bondage, or slavery

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Physically Present

• Applicant must be present in the U.S.
• Presence must be on account of the trafficking
• Presence must be continuous (or exit/reentry must
  also be related to trafficking)
• No clear chance to leave
• If applicant escaped traffickers before law
  enforcement involvement, s/he must show that s/he
  did not have a clear chance to leave the U.S.

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Assisted Law Enforcement

• Primary evidence
• I-914B, Law Enforcement Certification (DOJ, FBI,
  ICE, etc.)
• Continuous Presence (temporary form of relief
  requested by law enforcement that allows victim
  to remain in US to testify against trafficker)
• Secondary evidence
• Letters or other correspondence detailing efforts
  to obtain I-914B or clients cooperation with
  federal law enforcement
• I-914B signed by local law enforcement
• Letters from local enforcement
• If applicant is under 18, s/he is exempt from
  this requirement
• Success of investigation and/or prosecution does
  not effect eligibility

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Extreme Hardship

• Factors
• Age, circumstances
• Need for, and access to, physical and mental
  health care
• Access to U.S. courts to redress acts of
  trafficking
• Access to support services or lack of services in
  home country
• Likelihood of revictimization in home country and
  authorities ability to protect
• Likelihood that culture/social practices would
  penalize victim of trafficking
• Likelihood that trafficker or associates would
  retaliate or
• Risk to safety caused by civil unrest or armed
  conflict.
• Notes
• Hardship should not be based on economic harm/
  opportunity.
• VSC has not yet denied a T-visa based on failure
  to show extreme hardship (ILRC, 2006).

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Benefits of the T Visa

• Lawful T status for four years for principal
  applicant
• Employment Authorization for 4 years
• Derivatives must file I-765 after the T Visa is
  approved to obtain EAD.
• Can petition for derivatives (I-914 Supplement A)
• For applicants under 21 victims spouse,
  children, parents and unmarried siblings lt 18
  years
• For applicants 21 or older victims spouse,
  children
• Can apply to adjust status to LPR after three
  years or close of investigation
• Eligible for same public benefits as a refugee
• Survivors over 18 require certification from the
  Office of Refugee Resettlement
• Survivors under 18 are immediately eligible for
  benefits.

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Gender-Based Asylum
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• Asylum may be granted to applicants who are
  defined as refugees under the Immigration and
  Nationality Act
• any person who is outside any country of such
  persons nationality . . . and who is unable or
  unwilling to avail himself or herself of the
  protection of that country because of past
  persecution or a well-founded fear of future
  persecution on account of race, religion,
  nationality, membership in a particular social
  group, or political opinion.

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On Account Of

• Race
• Religion
• Nationality
• Political Opinion (actual or imputed)
• Membership in a Particular Social Group

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Membership in a Particular Social Group

• Common, immutable characteristic
• Members of the group cannot change, or should not
  be required to change, this characteristic
  because it is fundamental to their identity or
  conscience
• Female Genital Mutilation, Honor Crimes, Forced
  Marriage

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Alternative Asylum Grounds

• The applicants actual or imputed political
  opinion that she is a woman who believes that
  wives should be able to lead their lives without
  being dominated by their husbands
• The applicants religious beliefs that differ
  from her husbands religious beliefs concerning
  the proper role of women in society
• The applicants membership in a particular social
  group of women who challenge their husbands
  domination.