Immigration Remedies for Victims of Crimes Against Women presented by Susheela Varky, Staff Attorney, Virginia Poverty Law Center (804) , x. 33, based on materials developed by Natalie Nanasi, Staff Attorney, Tahirih Justice Center, ext , and Immigrant Legal Resource Center, Presented on ____________, to members of VSB’s Young Lawyers Conference

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 AGENDA 2

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 3

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 4

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. 5

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) 6

VAWA Self-Petitions and Battered Spouse Waivers 7

–Identity of the Petitioner –Evidence of the Abuser’s 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 Elements of VAWA 8

Identity Abuser’s Legal Status Good Faith Marriage Passport Driver’s License Copy of Green Card, naturalization certificate or U.S. birth certificate Marriage Certificate Photographs (wedding pictures) Letters, cards and s Birth Certificates of their children Copies of any immigration petitions/applications filed on her behalf “Any Credible Evidence” 9

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 Evidence, Continued 10

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. Benefits of an Approved VAWA 11

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. o Purpose - deter marriage fraud Battered Spouse Waivers: What is Conditional Residency? 12

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. Battered Spouse Waivers: Removal of Conditions 13

The U Visa: Helping Immigrant Victims of Crime 14

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. 15

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. 16

“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 17

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 18

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 perpetrator’s 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 19

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 20

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. Law Enforcement Certification 21

Evidence of Crime / Victim’s Helpfulness Evidence of Abuse “Any Credible Evidence Standard” Evidence –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 22

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: victim’s spouse, children, parents and unmarried siblings < 18 years –For applicants 21 or older: victim’s spouse, children Can apply to adjust status to LPR after three years 23

The T Visa: Helping Victims of Trafficking 24

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. Elements of the T Visa 25

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 26

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. Physically Present 27

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 client’s 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 28

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). Extreme Hardship 29

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: victim’s spouse, children, parents and unmarried siblings < 18 years –For applicants 21 or older: victim’s 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. Benefits of the T Visa 30

Gender-Based Asylum 31

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 person’s 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.” 32

Race Religion Nationality Political Opinion (actual or imputed) Membership in a Particular Social Group On Account Of … 33

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 Membership in a Particular Social Group 34

The applicant’s 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 applicant’s religious beliefs that differ from her husband’s religious beliefs concerning the proper role of women in society; The applicant’s membership in a particular social group of women who challenge their husband’s domination. Alternative Asylum Grounds 35