Violence Against Women Act (VAWA) and the U Visa – Two Forms of Relief for Immigrant Crime Victims R. MIKE BORLAND Borland & Borland, Attorneys at Law, P.C. 213 N MAIN ST. MIDLAND, TX (432) Board Certified, Immigration and Nationality Law, Texas Board of Legal Specialization

The Purpose of VAWA’s Immigration Protections: Strengthen the ability of the criminal justice system to prosecute perpetrators of crimes against immigrant victims Enhance protection for immigrant victims Remove immigration status as a tool that undermined both of the above; or as a power and control tool.

Why is immigration relief needed? Abusers rely on undocumented status of victims to avoid investigation and /or prosecution Victims reluctant to access law enforcement for fear of immigration consequences Critical witnesses deported or not allowed to return to the United States Immigrant crime victims left with no recourse

The Importance of Immigration Status Ability to obtain valid state issued identification Ability to work legally (self ‐ sufficiency) Improved ability to win custody and protect children More access to protection orders Breaks isolation Protection from deportation and removal Better access to housing

Those Eligible to File for VAWA Relief – Abused Spouse Spouse: You may file for yourself if you are, or were, the abused spouse of a U.S. citizen or permanent resident. You may also file as an abused spouse if your child has been abused by your U.S. citizen or permanent resident spouse. You may also include on your petition your unmarried children who are under 21 if they have not filed for themselves.

Those Eligible to File for VAWA Relief – Parents and Children Parent: You may file if you are the parent of a U.S. citizen, and you have been abused by your U.S. citizen son or daughter. Child : You may file for yourself if you are an abused child under 21, unmarried and have been abused by your U.S. citizen or permanent resident parent. Your children may also be included on your petition. You may also file for yourself as a child after age 21 but before age 25 if you can demonstrate that the abuse was the main reason for the delay in filing.

Eligibility Requirements for a Spouse You are married to a U.S. citizen or permanent resident abuser or your marriage to the abuser was terminated by death or a divorce (related to the abuse) within the 2 years prior to filing your petition, or your spouse lost or renounced citizenship or permanent resident status within the 2 years prior to filing your petition due to an incident of domestic violence, or you believed that you were legally married to your abusive U.S. citizen or permanent resident spouse but the marriage was not legitimate solely because of the bigamy of your abusive spouse.

Eligibility Requirements for a Spouse: Abuse You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident spouse: – You have been abused by your U.S. citizen or permanent resident spouse, or – your child has been subjected to battery or extreme cruelty by your U.S. or permanent resident spouse. You entered into the marriage in good faith, not solely for immigration benefits. You have resided with your spouse. You are a person of good moral character.

Eligibility Requirements for a Child Qualifying parent/child relationship: – You are the child of a U.S. citizen or permanent resident abuser, or – you are the child of a U.S. citizen or permanent resident abuser who lost citizenship or lawful permanent resident status due to an incident of domestic violence. You have suffered battery/extreme cruelty by your U.S. citizen or permanent resident parent. You have resided with your abusive parent. You are a person of good moral character; a child less than 14 years of age is presumed to be a person of good moral character.

Eligibility Requirements for a Parent Qualifying parent/son or daughter relationship: – You are the parent of a U.S. citizen son or daughter who is at least 21 years of age when the self-petition is filed, or – you are the parent of a U.S. citizen son or daughter who lost or renounced citizenship status related to an incident of domestic violence, or – you are the parent of a U.S. citizen son or daughter who was at least 21 years of age and who died within 2 years prior to filing the self-petition. You have suffered battery or extreme cruelty by your U.S. citizen son or daughter. You have resided with the abusive son or daughter. You are a person of good moral character.

VAWA Filing Process You must complete the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant,. Self-petitioning battered or abused spouses, parents or children of U.S. citizens or permanent residents pay no fees. This leads directly to a “Green Card” if the petition is approved.Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant If you are living abroad at the time of filing the self-petition, you may file Form I-360 if: – the abuser is an employee of the U.S. government, – the abuser is a member of the uniformed services, or – you were subjected to battery or extreme cruelty in the United States.

VAWA vs. U Visa VAWA does NOT require a law enforcement certification that the victim was helpful to police, although police reports related to the abuse are very helpful. The disadvantage of VAWA is that it ONLY applies to abused Spouses, Parents and Children of USC’s and Lawful Permanent Residents.

U Visa Background Created by the Victims of Trafficking and Violence Protection Act (VTVPA) of 2000 Goal – to encourage undocumented crime victims to come forward and cooperate with law enforcement Renewed approval in 2013

U VISA PURPOSES Law Enforcement: Overcome victim fear of detection; encourage reporting and other cooperation Humanitarian: protect vulnerable victims; assist domestic violence and other crime survivors

U Visa Requirements – § 101(a)(15)(U) “the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity…” “the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) possesses information concerning criminal activity…” “the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful” to Federal, State, or local authorities in the investigation or prosecution of the crime “the criminal activity… violated the laws of the United States or occurred in the United States…”

Direct Victims 8 CFR (a)(14) – Direct victims – victim “directly and proximately harmed by qualifying criminal activity” Self-explanatory – Example: Dora, a 14 year-old undocumented girl, is raped. She calls the police and testifies against her rapist in court. Under the U visa provision, Dora a is a direct victim.

Indirect Victims In certain circumstances, individuals other than the victim can apply for a U visa: – Where the victim is an alien child under 16, the parent, legal guardian, or other family member, may apply for principal U visa status. – Example: Juan is an undocumented Colombian man. His 8 year-old daughter, Ana, who is also undocumented, is the victim of sexual abuse by her neighbor. Juan contacts the police, encourages Ana to talk with them, and accompanies her to all court appointments. Under the new regulations, Juan can apply for a U visa.

Derivatives Can be derivatives whether in the U.S. or abroad; if abroad, the visa will be forwarded to a U.S. embassy/consulate abroad and the derivative can use the visa to travel to the U.S. If principal applicant is under 21 – Derivatives = principal’s spouse, children, unmarried siblings under 18 (on filing date of principal’s petition), and parents If principal applicant is over 21 – Derivatives = principal’s spouse and children Form I-918, Supplement A

Qualifying Crimes – INA §101(a)(15)(U)(iii) Qualifying crimes under the statute – [R]ape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes – “or any similar activity” also encompassed by statute for related, non-enumerated crimes

Law Enforcement Certification Most crucial element of U visa application and what makes the U visa so unique – very few visas require documentation from law enforcement agencies Form I-918, Supplement B Must be completed by law enforcement official designated by each agency Must certify that applicant is assisting investigation or prosecution, has in the past, or will in the future

Ineligibility for the U Visa: The I-192 Waiver Grounds of inadmissibility in immigration law apply, even though most applicants are already in the U.S. – See INA § 212 for grounds of inadmissibility If any of these grounds apply, the applicant must file an I-192 waiver. – Until the alien turns 18, no unlawful presence is counted The recent trend seems to be that applications filed with the I- 192 have a better chance of faster adjudication than those filed without the I-192. If applicants have any of these issues, please contact referring non-profit agency (LAF, NIJC, etc.) before filing.

BROAD INTERPRETATION OF HELPFULNESS PERMITTED Some parameters set by Statute, Regulations and USCIS Memoranda Includes “was helpful in investigation”, not just prosecution U visa available to victims of past crimes – even before 2000 U visa available where perpetrator not caught (or identified)

Benefits under the U Visa If client’s application is approved, she will receive the following: – A work authorization card (EAD) valid for 4 years, which can be used to obtain a valid social security number and driver’s license; – Protection against removal (deportation); – After 3 years in U visa status, the possibility to apply for a green card; – The ability to travel for a limited number of individuals. The same benefits will result for derivative family members with approved U visa applications.

Fees I $0 I $545 (NO fee waivers available) Fingerprints - $80 (fee waiver available) – Clients under 14 or over 80 do not need to be fingerprinted. – Clients should be encouraged to pay this if at all possible.

What We Do… Our office screens clients who wish to apply for U Visas or VAWA relief without charge. If the client is unable to pay, we often file these visa applications as a pro bono project of our firm or at a significantly reduced cost

References and sources: Sabrina Salomon, Esq. Vida Legal Assistance Miami, Florida Nora Phillips, Equal Justice Works Fellow Legal Assistance Foundation of Metropolitan Chicago USCIS publications.