Finding Protection under US Immigration Law

Transcription

1 Finding Protection under US Immigration Law A Guide to Remedies for Undocumented Immigrant Survivors of Violence BY SOPHIE FEAL AND EMMA BUCKTHAL 4 CRIMINAL JUSTICE n Spring 2016

2 Undocumented immigrant victims of violence historically have been extremely reluctant to seek justice for the crimes perpetrated against them because to do so inevitably requires the involvement of law enforcement. Those who have no status in the United States understand full well that if they contact the police, immigration authorities may follow behind, and deportation back to their native countries might be the ultimate consequence of coming forward. In the past, this meant that battered spouses remained in abusive marriages, victims of human trafficking did not attempt to flee from their tormentors, and those who were victimized by criminal acts did not report the offense to police, making communities less safe for all of us. Fortunately, in the past two decades, Congress recognized this troubling dynamic and its serious consequence on the necessary enforcement of our criminal laws. In 1994, the Violence Against Women Act (VAWA) authorized self-petitioning for permanent residence to those married to a US citizen or a lawful permanent resident who are subjected to domestic violence. It also created a special waiver allowing victims of domestic violence who attained a conditional residence of two years to become full permanent residents without further assistance from abusive sponsoring spouses. Then in 2000, an amendment to VAWA, the Victims of Trafficking and Violence Protection Act (Pub. L. No , 114 Stat. 1464), created special visas for victims of violent crimes and victims of human trafficking who cooperate with law enforcement in the investigation and prosecution of those offenses. Even asylum, which may not be an obvious form of relief in such cases, has more recently evolved to include women who have experienced domestic violence as potential members of a particular social group for the purposes of establishing asylum protection in the United States. The benefits these provisions of law have afforded immigrant survivors of violence are invaluable for their safety and stability, and to resolving serious affronts against our society as a whole. Identifying Undocumented Immigrant Survivors of Violence Initially, it is critical to recognize that an undocumented immigrant victim may not be easily identifiable by SOPHIE FEAL has practiced immigration and nationality law for over 25 years. She is the supervising immigration attorney at the Erie County Bar Association Volunteer Lawyers Project in Buffalo, New York, where she concentrates her practice in deportation defense. She may be reached at sfeal@ecbavlp.com. EMMA BUCKTHAL is a staff immigration attorney with the Volunteer Lawyers Project, where she focuses her legal work on representing immigrant survivors of domestic violence and human trafficking before the US Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and immigration courts. She may be contacted at ebuckthal@ecbavlp.com. advocates and law enforcement because of cultural differences, language barriers, and/or the ever-present fear of deportation, which has taught this community to stay quiet. Survivors of human trafficking, for example, have often been psychologically and physically brutalized by their traffickers and are much too afraid to cooperate with law enforcement or even sympathetic advocates. Domestic violence survivors often come from countries where male dominance is the norm and may not recognize themselves as having been unlawfully abused. Moreover, many countries offer no legal protection, let alone social safety nets other than sympathetic family members, so survivors may be unaware that any such assistance even exists. In addition, they tend to be unfamiliar with US laws and our legal system. Domestic violence experts advise that simply asking someone, particularly an immigrant who is not familiar with US social and legal norms, Are you a victim of domestic violence? may result in a failure to identify survivors of abuse because some, particularly those from countries where physical abuse of wives and children is not considered inappropriate, let alone illegal, will not see themselves as victimized. Also, some may not identify themselves as such because they deem their own experiences not bad enough to constitute a violation of the law. Instead, it is recommended that advocates and attorneys ask a series of neutral, open-ended questions beginning with, Are you in a relationship? Follow-up questions could then include: How do you feel about that relationship? Does your partner ever do anything that makes you feel scared or not safe? and Has your partner ever done anything to hurt you? These indirect, nonleading questions help spot survivors who may not initially self-identify as abused. Similarly, experts have noted that human trafficking survivors may manifest the following symptoms of their ordeal: a disorientation about their location and the current date, missing identity documents, unusual debt, untreated illnesses or injuries, a constant presence at a worksite, and/or an unexplained fear that does not appear logical to the advocate. Even during the first meetings and interviews, untrusting human trafficking survivors often do not speak candidly about their situation due to the effects of trauma and the constant threats and coercion they have suffered at the hands of their traffickers. Therefore, key questions to ask might include: What would happen to you if you left your job? Are there rules about coming and going to work, whom you can talk to while at work, or what you can say to them? Do you have to do different work than what you were promised when you accepted your job? and Can you tell me about your travel to the United States? Once survivors of violence have been identified and their safety and basic needs, such as housing and health care, have been assured by appropriate community resources and organizations, it is essential CRIMINAL JUSTICE n Spring

3 to determine whether immigration relief is available to those who have no status. Because most undocumented persons are very concerned about their legal status, and particularly whether they will be deported by US officials, or can obtain employment authorization to become economically self-sufficient, interviews of survivors should be conducted with care for their safety and comfort. Trust and rapport are also essential to establish before diving into the most difficult questions. What follows are forms of relief available to undocumented survivors of violence. Collecting corroborative evidence, such as relevant police and medical reports, and preparing an accurate and detailed sworn statement from the survivor, to prove all the requirements for each form of relief, is a critical step that should be generally undertaken as soon as possible. In some instances, however, this will not be abused spouse no longer requires the sponsorship of a USC or an LPR spouse. She or he can self-petition and hence leave the abusive marriage and still become a permanent resident. (See 8 U.S.C. 1154(a)(1)(A), (B).) The VAWA self-petitioner must prove, by any credible, relevant evidence, that she or he has been battered or subjected to extreme cruelty. These terms are defined as 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. This includes abusive acts that, in and of themselves, may not initially appear violent but that are part of an overall pattern of violence. (8 C.F.R (c)(vi).) In addition, the self-petitioner must also prove (1) the existence of a valid marriage, which could include proof the previous marriages were legally terminated (a bigamous marriage will only qualify if the self-petitioner VAWA s extreme cruelty standard allows immigrants who have not been physically abused to qualify for relief if the extreme cruelty is part of an overall pattern of control through psychological means. feasible immediately. In one such case, we met a Frenchspeaking African woman who was already traumatized from the persecution she and her family had suffered in her home country, including the brutal killing of a beloved uncle. In her desperate attempt to flee the persecution, she fell into the hands of traffickers, was brought to the United States on a fraudulent document, and was held hostage as a sex slave for approximately five months. Simply speaking with her counsel and a social worker about the persecution and trafficking she had endured caused the woman profound psychiatric symptoms and retraumatized her as may be expected with those who have posttraumatic stress disorder. Therefore, as advocates, we had to pull back, and first allow our client to obtain psychiatric help, including needed medication to ease her symptoms. Only after she received some therapy and treatment was it appropriate for us to begin working on the legal case. VAWA Self-Petition for Permanent Residence In the traditional family-based petitioning process under US immigration law, a lawful permanent resident (LPR) or US citizen (USC) sponsors his or her foreignborn spouse to obtain permanent residence (also known as green card status) by first filing an immigrant petition. (See generally 8 U.S.C. 1153(a)(2), 1154(a) (1).) The role of the LPR or USC spouse in the process remains essential until the foreign-born spouse obtains the green card, either in the United States or through a US Consulate abroad, and sometimes, even afterward, as explained below. Under VAWA, an believed she or he was legally married and a marriage ceremony was actually performed, and so long as the bigamy was committed by the USC spouse and all other requirements of the law are met); (2) that the marriage was entered into in good faith and not solely to gain an immigration benefit; (3) that the abusive spouse is a USC or an LPR; (4) that the self-petitioner is of good moral character as defined in 8 U.S.C. 1101(f); and (5) that the couple resided jointly during the marriage, although not necessarily in the United States. Moreover, the self-petitioner need not live with the abuser when the petition is filed. VAWA provisions also apply to the child of the foreign-born spouse when such child was abused by the USC or LPR spouse. Children who were not abused by the USC or LPR spouse may also be included as derivatives on the abused spouse s VAWA self-petition. Self-petitioners may come to the attention of an attorney through direct contact, or as referrals from crisis social workers or shelter advocates while still in the abusive marriage or having recently escaped it. Often cases will not involve deportation (also known as removal) proceedings because the immigrant has never been encountered by immigration authorities. Other times, the cases are more tragic, such as when the abused spouse attempts to flee an abusive marriage, and the LPR or USC spouse involves the police or immigration authorities, resulting in the detention of the undocumented domestic violence survivor by Immigration and Customs Enforcement (ICE). In these situations, she or he risks being placed in removal 6 CRIMINAL JUSTICE n Spring 2016

4 proceedings. Obviously, removal proceedings add another layer of stress to the already victimized spouse as described in the scenario that follows. Defense to removal proceedings. In 2011, our office met a young Eastern European woman named Eva after a concerned community member contacted our office seeking help for her. When we spoke to Eva, she told us that she had come to the United States the previous summer through a special work and travel program. She then met and fell in love with a USC who worked near her. At the end of the summer, they decided to marry and have Eva s new husband petition for her permanent residence. Unfortunately, Eva did not know that her husband had a long history of domestic violence and contact with the police. He began physically and sexually abusing her within weeks of their wedding. Although Eva attempted to seek help by calling 911, her husband was a master at preventing her from actually speaking to the police. Therefore, she never managed to file a police report against him. Moreover, Eva later explained to us that, at the time of the abuse, she did not know that she could seek protection in a domestic violence shelter because there were no such shelters in her native country. About eight months into their marriage, Eva decided to flee her husband s mistreatment and continual manipulation. In retaliation, he called the police, reported his wife as the abusive party, and also contacted ICE to report her as having violated the terms of her visa by overstaying in the United States. ICE then arrested, detained, and placed Eva in removal proceedings. ICE also denied her a bond, a decision upheld by the immigration court in Buffalo, because her husband had stated to law enforcement that she was dangerous and he had successfully obtained an order of protection against her. Hence, Eva also endured seven months of detention in a county jail while completing her case before the immigration court. Eva filed a VAWA self-petition as a defense against removal and, as is not uncommon in these cases, had to overcome a number of obstacles both in and out of court. In court, the immigration judge consistently doubted her claim of abuse by the USC husband. The judge questioned why she had failed to leave the marriage or seek any help, had neglected to mention the abuse when ICE arrested her, and only mentioned it after being placed in removal proceedings and obtaining counsel. Outside of court, we had to contend with representing a client who, due to her detention, lacked access to key evidence, such as proof of the bona fides of her marriage and joint residence with her spouse, and the financial resources to afford the required police clearances needed to prove good moral character. She was also held by immigration authorities in a rural county jail some two hours south of Buffalo, which required us to communicate with her almost exclusively by telephone as we prepared her sworn affidavit. With perseverance and help from Eva s mother in Europe (via Skype), in addition to support and donations from Eva s local ethnic community, we collected sufficient evidence for the US Citizenship and Immigration Services (USCIS) to approve her self-petition. The immigration judge then terminated Eva s removal case. She was finally released from detention and soon approved for permanent residence. Extreme cruelty. Those assessing an immigrant domestic violence survivor s eligibility to selfpetition should keep in mind that VAWA s extreme cruelty standard allows immigrants who have not been physically abused to still qualify for this relief so long as the extreme cruelty is part of an overall pattern of control through psychological means, such as emotional abuse, humiliation, degradation, isolation, and economic deprivation or coercion. More calculating abusers tend to prefer these means of control to physical violence for their relative subtlety and to evade criminal liability. Our client Sarah, an East Asian woman, personified this abhorrent trend. After she was widowed, she joined an online dating service and met a highly educated, professional USC going through a divorce. He was kind, and they bonded over their losses and fell in love upon meeting in person in Sarah s native country. Sarah s husband then obtained a fiancée visa for her to travel to the United States to marry him. After Sarah arrived here, was married, and settled in, her husband changed drastically, though he never once abused her physically. Instead, he verbally and psychologically humiliated and insulted her, and would not allow her to work or obtain a driver s license. Sarah was forced to use her young step-son s bicycle as her only means of transportation around their rural town. He also denied her access to basic information about their family finances, and tracked all of her online activity, even every keystroke she made on her computer. Sarah sank into a deep depression. A local domestic violence agency referred Sarah to us. In preparing her case, we drafted an extensively detailed personal statement about her husband s controlling acts, the dynamics of her relationship, and Sarah s mental health and sense of well-being both before and after the mistreatment. We supplemented Sarah s statement with affidavits from her domestic violence advocate and concerned friends. USCIS recognized Sarah s situation as abusive, approved her self-petition, and then granted her permanent residence in short order. Hardship Waiver of Conditional Basis of Permanent Residence Another scenario that arises in violent marriages involves removing the foreign-born spouse s conditional residency so she or he may gain permanent residence. A conditional residency of two years is granted to the immigrating spouse when, at the time the residency is conferred, the marriage is less than CRIMINAL JUSTICE n Spring

5 two years old. Ninety days prior to the expiration of the conditional residency, the couple is expected to file a joint petition to remove the condition, along with further evidence that the marriage is bona fide. (8 U.S.C. 1186a(a).) Unfortunately, some immigrant spouses remain in abusive marriages to make certain they can duly file the joint petition, even though the requirement may be waived. There is a waiver available to those conditional residents who are no longer in the marriage, by separation or divorce, because of domestic violence. (See 8 U.S.C. 1186a(c)(4).) It requires evidence of battery or extreme cruelty and a good faith marriage. U Visa Given that some undocumented immigrant victims of domestic violence are not married to a USC or an LPR, and as such do not qualify to self-petition, obtaining a U visa may be a viable option to pursue when the client has suffered domestic violence. Our client Isabel, a migrant farmworker residing in a rural county east of Rochester, New York, never married her abusive partner but lived with him for 12 years though he terrorized her and continued to stalk her after she fled from his violence. Even if she had married him, Isabel would not have qualified under VAWA because her partner was also undocumented, and was not a USC or an LPR as required by law. However, she met the legal criteria for a U visa because she (1) had suffered substantially as a result of 13 years of domestic violence; (2) possessed information concerning her abuser s criminal acts and helped local authorities by reporting her abuser to them numerous times; and (3) was the victim of a qualifying crime, domestic violence, that violated US law. (8 U.S.C. 1101(a)(15)(U).) In order to obtain a U visa, one must first be the victim of a qualifying crime. The list of such crimes, virtually all of which involve violence, is rather extensive and may be found at 8 U.S.C. 1101(a)(15)(U)(iii). In addition to domestic violence, it includes such offenses as felony assault, sexual assault, and sexual abuse, as well as female genital mutilation. Even offenses committed outside the country may serve as qualifying crimes, if committed on US military installations, Native American territory, or US possessions, or so long as the crime was committed in violation of a US law providing for extraterritorial jurisdiction, such as laws that prohibit child sex tourism or the recruitment of child soldiers. Additionally, U visas may also be available to undocumented parents of USC children who are victims of crime. To prevail on a U visa application, as set forth above, the survivor must prove, through any credible and relevant evidence, to have suffered substantially from the criminal act. Substantially is defined at 8 C.F.R (b)(1) to involve both psychological and physical abuse. Relevant to this determination are the severity and duration of the injury suffered and the permanence of the harm, even by the aggravation of a preexisting condition such as past trauma. As a result, although the reported offense underlying the U visa application does not involve injury, in its adjudication, USCIS will consider the full pattern of abuse or other incidents in the survivor s life to determine whether the abuse sufficiently qualifies as substantial. For example, Flor suffered 11 years of domestic violence. She never reported to law enforcement authorities any of her husband s brutality, death threats, or even his attempt to make her drink alcohol he had laced with rat poison. When Flor finally fled from their home in the Midwest to a shelter near Rochester, New York, she regularly received threatening calls from her estranged spouse, which she reported to the police with the help of her advocate. Although the threatening phone calls alone, which constituted the qualifying crime of aggravated harassment under New York law, did not substantially injure Flor, USCIS considered the full history of her life with her husband, found she had suffered substantially, and granted her a U visa. For the U visa, it is imperative that a law enforcement official certify that the survivor has been, is, or will be helpful to the investigation or prosecution of the crime in question. A law enforcement agent for certification purposes is a police officer, prosecutor, judge, officer of the Department of Homeland Security (immigration authorities), or a state or federal agency employee such as one from Child Protective Services, Department of Labor, Equal Employment Opportunity Commission, etc. In Isabel s case, the county sheriff s office signed the certification. In Flor s case, it was furnished by the local police department of a village in Upstate New York. In another matter we handled, in which a young man from Mexico, living in the Midwest, had witnessed a gang shooting and was the victim of an attempted murder and felonious assault, we obtained a U visa with a certification from a federal agency that had been investigating the gang s activities for several years. Our client had been able to positively identify for the federal agents not only those who assaulted him, but other members of the gang as well. Obtaining the required certification can often be the most challenging hurdle to overcome in these matters. Currently, law enforcement agencies issue or deny certifications at their sole discretion. Some overwhelmed agencies have opted to spare limited staff resources by refusing to consider any requests for U visa certifications. Others have adopted arbitrary policies, such as imposing a statute of limitations of as little as 60 days on a request for certification after the crime occurs, or denying certifications for survivors who themselves have any history of police contact. As a result, U visa practitioners often believe that their clients eligibility for this relief ultimately depends on luck of the draw for where the crime against them was committed. In October 2015, California became the first state to pass a law that requires law enforcement officials to certify that an immigrant crime victim has been helpful in 8 CRIMINAL JUSTICE n Spring 2016

6 an investigation of crimes. Advocates believe this new law will address concerns regarding arbitrary and inconsistent U visa certification policies or denials. Survivors of violence and their dependents who receive U visas are permitted to live and work in the United States for a period of four years. After accruing three years presence in U status, they may apply for permanent residence so long as they continue to hold U status, have been physically present in the United States for three years, and have not refused to assist authorities in the investigation or prosecution of the qualifying crime, and their continued presence in the United States is justified for family unity, for humanitarian reasons, or is otherwise in the public interest. On closing a U visa case, we always recommend that our clients save evidence of their physical presence, avoid traveling outside the United States (doing so may trigger complicated inadmissibility concerns upon return), and avoid criminal activity because it will likely prejudice their future application for permanent residence as outlined below. T Visa Human trafficking, which has in recent years garnered extensive national and international media attention, involves luring individuals with false promises of employment and a better life. Traffickers mostly take advantage of the poor and unemployed, those who lack access to social safety nets, or those in very vulnerable situations such as the African woman mentioned earlier. Human trafficking involves trafficking recruiting, harboring, or moving people both for sexual exploitation and for labor, such as involuntary servitude, debt bondage, or slavery. Its victims are recruited and maintained in the trafficking relationship through force, fraud, and coercion. On September 25, 2012, President Barack Obama eloquently remarked to the Clinton Global Initiative in New York City: It ought to concern every person, because it is a debasement of our common humanity. It ought to concern every community, because it tears at our social fabric. It ought to concern every business, because it distorts markets. It ought to concern every nation, because it endangers public health and fuels violence and organized crime. I m talking about the injustice, the outrage, of human trafficking, which must be called by its true name modern slavery. (See Smuggling should be differentiated from trafficking. Trafficking involves force, fraud, or coercion by definition and is a continuous relationship in which one party is violently exploited. Its victims are forced into servitude and cannot escape their situation without grave risk. On the other hand, in true smuggling situations though obviously not lacking in danger for the smuggled person the relationship is mutually agreed upon and involves the exchange of payment for the smuggling. It then concludes after the smuggling occurs. Some smuggling situations, like in Lourdes s case below, may become trafficking situations, and both are clearly illegal acts under US law. However, one who has been only smuggled into the United States will not qualify for a T visa. In the beginning, our client Lourdes thought she was being smuggled to the United States to escape the brutal gang violence in her native country and to reunite with her husband, who was living and working on the East Coast after having obtained temporary legal status. Lourdes s journey from Central America was relatively uneventful until she arrived at a border stash house in Mexico where immigrants are held until they can be crossed into the United States. There she was raped and overheard the smugglers making plans to force her into prostitution once in the United States. Luckily, Lourdes managed to escape immediately and avoided a terrible fate. Immediately after escaping, however, she encountered US immigration authorities, was arrested and detained in South Texas, and then ordered removed by an immigration court to her country. Out of deep fear and shame, she never said a word about what had happened to her. Some two months later, while awaiting her removal, ICE transferred Lourdes to a county jail in Upstate New York. En route to New York, she began to feel safer and more confident, and told immigration officials about her trafficking experience. She then agreed to participate in an investigative interview with immigration authorities, who referred her to our office for legal representation upon learning about her ordeal. It was clear that she was eligible for a T visa. T visas are available to those immigrants who have been subjected to a severe form of trafficking in persons as defined at 8 U.S.C. 1101(a)(15)(T). The survivor must be physically present in the United States on account of the trafficking and must comply with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking (unless under the age of 18, or unable to cooperate due to physical or psychological trauma). (8 C.F.R (g), (h).) However, no signed certification of this compliance is required as with the U visa. Finally, the survivor must show that she or he would suffer extreme hardship involving unusual and severe harm if removed from the United States as set forth in 8 C.F.R (i). Lourdes was able to meet all of these legal requirements. In addition, because she was only 18 years old at the time, the law allowed her to apply for her husband, as well as for her parents and younger siblings, as derivatives on her case. After applying for Lourdes s T visa, we secured her CRIMINAL JUSTICE n Spring

7 release from immigration detention. Her application was approved, and the applications for her family members were approved about one year later. Similar to U visa holders, our client and her family will be eligible to apply for their permanent residence after three years. T visa holders may also apply for adjustment to permanent residence prior to accruing the three years presence in T status if the Department of Justice confirms that the investigation and prosecution of the trafficking is complete. Derivatives need not accrue three years presence in T status. Compared to U visas, T visas provide clients additional benefits. Only 10,000 principal U visas are available per year. Due to the large number of qualifying survivors, this category is always oversubscribed. USCIS has maintained a wait list since early While on the wait list, survivors and their family members qualify for deferred action and employment authorization. However, until they receive their U visa grant, they do not begin accruing time toward their permanent residence and their derivatives cannot travel to the United States. Although only 5,000 principal T visas are available per year, USCIS has granted less than 1,000 every year. As a result, obtaining a T visa provides clients a faster path to permanent status and family reunification. T status also confers eligibility for federal financial aid and public assistance, which are not available with U status. Choosing the Best Remedy In order to become a permanent resident of the United States, an applicant must be admissible. (See 8 U.S.C. 1182(a).) Criminal convictions, past removal orders, or fraud committed against the government, for example, may affect one s admissibility. Therefore, where a survivor is eligible for more than one form of relief, it will be wise to pursue multiple applications before eventually deciding on the client s ultimate option because the ability to waive a ground of inadmissibility varies. First, filing a VAWA self-petition provides a direct route to permanent residency, without the threeyear waiting period required by U and T visas, so it may be a preferable option for that reason. While VAWA does offer some special waivers of inadmissibility for qualifying victims of domestic violence, other grounds of inadmissibility, such as controlled substances convictions or prior removal orders, are difficult, if not impossible, to waive under VAWA. Conversely, nearly any ground of inadmissibility may be waived for a U or T visa applicant, rendering U and T visas a more viable option for clients with criminal backgrounds or complex immigration histories. (8 U.S.C. 1182(d) (14).) For principal victims under age 21, U and T visas may also be preferable tools for family reunification, given that parents and siblings may become U and T derivatives, as in Lourdes s case above, but cannot derive any status under VAWA. For the reasons mentioned above, T visas are usually preferable to U visas. Despite this, some trafficking survivors, like our client Ana from Central America, are not eligible for T visas, but are for U visas. When we met Ana, she was clearly the victim of sex trafficking. She had been romanced while working in Mexico, then forced into prostitution there by her boyfriend, before being trafficked from Mexico to Queens, New York, for commercial sex. Luckily, she escaped her traffickers and departed the United States for her native country, fearing she would be found and harmed again by her abusers. She never contacted law enforcement or a social services agency for help. Three years later, Ana returned to the United States, fleeing the brutal gang violence that is ravaging that region of the world. She brought with her a young son who had been born in Central America. US immigration authorities encountered them and placed both Ana and her son in removal proceedings immediately upon their arrival, but did not detain them. While reporting to ICE as ordered, Ana mentioned her trafficking experience, participated in an investigative interview, and was referred to our office for help. We determined that she was ineligible for a T visa because she was not present in the United States on account of the trafficking she had suffered in the past, as required for eligibility, due to her departure and the unrelated reason for her return to the United States. For U visa purposes, however, presence in the United States on account of the qualifying crime is not a requirement, and human trafficking is indeed a qualifying crime. Ana would be eligible for a U visa if she continued cooperating in the investigation of her trafficking, and we obtained the required law enforcement certification. After a great deal of advocacy, we did obtain a U visa certification for Ana from a state agency involved in an independent investigation of the location in Queens where she had been held captive and forced to prostitute herself a few years earlier. Asylum In 2014, the Board of Immigration Appeals (BIA) issued a precedential decision holding that women who had experienced domestic violence may be deemed a member of a particular social group for the purposes of establishing asylum in the United States. (In re A-R-C-G-, 26 I&N Dec. 388 (B.I.A. 2014).) While the decision deservedly captured the attention of US media as it was certainly a very important precedent, its rationale is not as broad as it may have appeared in the headlines. A foreign national is eligible for asylum in the United States if she can prove that she has been persecuted in the past, or has a well-founded fear of persecution in the future, by the government of her country, or group that the government is unable or unwilling to control, on account of her race, religion, nationality, political 10 CRIMINAL JUSTICE n Spring 2016

8 opinion, or membership in a particular social group. (8 C.F.R (a).) There absolutely must be a nexus between the persecution and at least one of these five protected grounds to prevail. The social group ground has evolved in the past 25 years as immigration advocates attempted to seek protection for various groups of persecuted people. A social group is legally defined as a group that shares immutable characteristics that cannot, or should not be expected to, change. In 1990, the BIA held that homosexuality was a particular social group. (In re Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990).) At the height of the Somali civil war, the BIA found that a family clan constituted a particular social group (In re H, 21 I&N Dec. 337 (B.I.A. 1996)), and then ruled that a woman who was threatened with female genital mutilation constituted a member of such a group (In re Kasinga, 21 I&N Dec. 357 (B.I.A. 1996)). A few years later, the BIA found that a Moroccan woman who had been severely abused by her father because she did not share his ultra-orthodox Muslim religious views was entitled to asylum. Although this finding was made on account of her religious beliefs and not due to her membership in a particular social group, it provides a foundation for domestic violence related asylum claims. (See In re S-A-, 22 I&N Dec (B.I.A. 2000).) In 1995, years of dedicated litigation began on this critical issue, culminating a decade later in a victory before a local immigration judge on an asylum claim involving domestic violence. (In re R-A-, 22 I&N Dec. 906 (B.I.A. 1999), vacated, 22 I&N Dec. 906 (A.G. 2001), remanded, 23 I&N Dec. 694 (A.G. 2005), remanded, 24 I&N Dec. 629 (A.G. 2008).) Nonetheless, the BIA has kept the definition of social group narrow and, as such, asylum cases based on domestic violence may be challenging to win despite the first precedential decision on the law in The BIA makes quite clear in In re A-R-C-G that the asylum applicant in that case prevailed in her claim because she was able to prove that she (1) had suffered repugnant abuse that reached the level of persecution; (2) had attempted to seek the help of law enforcement, who would not get involved in a domestic dispute, and thus she could show the government of her country was unwilling to protect her; and (3) belonged to a particular social group comprised of Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination. Therefore, these cases require careful preparation and an extraordinary amount of proof that may be challenging to obtain. What is important to note in these matters is that the mere existence of domestic violence in a relationship is not sufficient to prove eligibility for asylum given that the social group must be particularized and not so broad as to encompass victims of domestic violence as a whole. The BIA has held that particularity requires that the group is defined in a manner sufficiently distinct that the group would be recognized in the society in question as a discrete class of persons. (In re S-E-G-, 25 I&N Dec. 579, 584 (B.I.A. 2008).) Alternatively, the abuse may be on account of one of the other protected grounds as reasoned in the Moroccan case cited above. Emboldening Undocumented Immigrant Survivors of Violence Migrants are often vulnerable to perpetrators of abuse due to their lack of immigration status and consequently dire economic circumstances. The existence of legal relief for immigrant survivors bolsters their courage so that they can denounce to the appropriate authorities, and to our society as a whole, those who do them wrong, without the intense fear of retribution. As a result, perpetrators of serious criminal offenses are convicted and punished. One of our U visa clients, as an example, was beaten so severely by her abuser that she gave birth prematurely to a child who soon died. Emboldened by knowing that she had a safe future in the United States, our client testified before the grand jury and was willing to testify again at trial. Ultimately, the man who so viciously mistreated her pleaded guilty to both manslaughter and second degree assault. Nearly 10 years later, he remains in prison. Our client, on the other hand, is a lawful permanent resident, works to support herself and a young son, and is doing quite well. All the forms of relief outlined in this article provide an essential step toward gaining safety and security for undocumented survivors of violence. Realistically, we know all too well that we cannot offer legal solutions to everyone who seeks our help, but sometimes we have also found that creativity, diligence, and perseverance allow us to overcome an obstacle standing in the way of viable relief. When we do succeed, we are very proud to see our clients accomplishments once they hold lawful status. Flor is now a supervisor at the factory where she works and is making strides toward supporting herself. Last fall, she also bravely spoke up about her experiences at a hearing on the funding of civil legal service before New York s Chief Judge Jonathan Lippman. An East African client who was subjected to female genital mutilation and consequently won asylum in the United States is studying at a local community college while working in fast food to support herself. Finally, two of the trafficking survivors we represented are currently studying to become registered nurses. They both told us that they consider nursing a valuable way to contribute to the communities they have adopted, as well as a good job that will allow them to support themselves and their children. n CRIMINAL JUSTICE n Spring