W orking with immigrant victims of domestic violence presents a series of

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2 Immigration Options for Immigrant Victims of Domestic Violence By Julie E. Dinnerstein W orking with immigrant victims of domestic violence presents a series of challenges. Battered immigrant women may fear deportation more than they fear their batterers, and that fear of deportation means that a battered immigrant woman initially may fear you, the service provider and representative of the outside world, as much as, or even more than, the batterer himself. Hand and hand with fear is a lack of knowledge about immigration law, about non-immigration-related supports and protection that may be available to a battered immigrant woman and her children (e.g., shelter, counseling, police protection, public assistance), and about her own immigration status. Your work with an immigrant victim of domestic violence, as with any victim of domestic violence, must begin with gaining her trust. You can do so both by listening to her concerns and priorities, which may not be the same as your own, and by letting her know that you are there to help her find solutions that work for her, not to tell her what to do or to contact immigration authorities. Familiarity with common barriers that immigrant victims fleeing domestic violence face, with various immigration status, and with possible immigration law remedies as well as immigration attorneys and representatives in your area able to handle your clients cases if you are not able to do so yourself will put you in the best position to serve your immigrant clients. Julie E. Dinnerstein Director, Immigration Intervention Project Center for Battered Women s Legal Services Sanctuary for Families 67 Wall St., Suite 2211 New York, NY ext. 259 julie@sffny.org I. Common Barriers for Immigrant Victims of Domestic Violence Almost all domestic violence victims face barriers in their efforts to escape abusive partners. However, immigrant victims barriers are unique or affect them in a distinct manner. When serving immigrant victims, you should watch for these special issues. A. Lack of Money Lack of money is a primary reason why immigrant domestic violence victims cannot escape. According to a study by Ayuda, a nonprofit organization based in Washington, D.C., 67.1 percent of battered immigrants (compared to 40 percent of U.S. citizens) cite lack of money as the reason that they stay with their abusers. 1 Immigrant (as opposed to U.S. citizen) victims of domestic violence are particularly vulnerable to economic pressure to stay with the batterer because they are more likely to have limited or no English proficiency; less likely to have immigration status and thus less likely to be authorized to work legally in the United States; more likely to be ineligible for public benefits or, if eligible, fear immigration consequences of seeking public benefits; 1 Mary Ann Dutton et al., Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Legal and Policy Implications, 7 GEORGETOWN JOURNAL ON POVERTY LAW AND POLICY 245, (2000). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

3 more likely to be rejected by their community for leaving; less likely to have backup child care from friends and family; and more likely not to have the education, training, or work experience necessary for employment. In sum, money matters. A woman who cannot come up with an alternate plan for providing food, clothing, and shelter for herself and her children is unlikely to leave an abusive home where, at least, such necessities may be covered. Even more than with citizen domestic violence victims, basic financial-resource planning must be part of the discussion that you have with your client. B. Fear of Consequences in the Home Country Immigrants leave many friends and family members behind when they come to the United States, and abusive partners may well have long arms that reach all the way back to the home country. Even if an immigrant victim of domestic violence is able to find adequate protection from her abuser in the United States, chances are slim that she can protect her children, siblings, parents, and friends back home from an abusive partner who has connections in the home country and an ability and the will to travel there. Rarely can anyone in the United States do anything to protect these friends and family members in the home country. Realize that while you are engaged in safety planning for the woman sitting in your office, she may be calculating safety risks for friends and family back home. C. Fear of Losing Custody of the Children For a variety of reasons, immigrants fear that if they separate from an abusive partner, they will lose their children. In many countries in the world, children, either by custom or by law, go to the father, not the mother, when a couple splits up. Regardless of the rules and practices in the home country, many immigrants assume that their abusive partners will be awarded custody because of their superior command of English, their superior economic resources, their stronger family and community supports, and, above all, their immigration status. Friends and abusive partners alike often tell immigrant victims (who just as often believe them) that judges adjudicating custody will have them deported while their children remain behind with the abusers. To advocate on behalf of immigrant domestic violence victims, you should know how family court judges in their area handle custody battles in which one parent does not have immigration status, and, if you are representing such parents, you should be prepared to argue that domestic violence, not immigration status, is the key issue when making a custody determination. D. Fear of Deportation Coloring every aspect of fear that noncitizen victims of domestic violence experience is their terror at the prospect of deportation. 2 Many noncitizens cannot distinguish between immigration officials and other government officials, particularly those who wear uniforms (the police) or robes (judges) or who work in imposing buildings such as courts (attorneys). While the actual risk to domestic violence victims of government officials alerting federal immigration authorities about their actual (or purported) unlawful presence varies from location to location, the fear that all government officials are in collusion to deport immigrants is real and overwhelming for most noncitizen victims of domestic violence. When serving noncitizen victims of domestic violence, you need to know the policies and practices of government and other social service workers in their area and the likelihood of these noncitizens being reported to federal immigration authorities through contact with systems designed to help and support domestic violence victims. 2 The term removal is the formal name for deportation proceedings initiated by the U.S. government on or after April 1, Section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No , 110 Stat. 3009, created removal proceedings. 428 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

4 II. Immigration Status The foreign-born population in the United States is growing rapidly. In 1990 foreign-born persons made up 7.9 percent of the population. 3 By 2003 that figure had increased to 11.7 percent, which means that 33.5 million people living in the United States were foreign born. 4 There are a wide variety of immigration status and more than sixty different kinds of visas that foreign-born persons may have. Or they may have no immigration status at all or may fit into more than one category and be changing their status. Also, more than forty-five different categories may give a noncitizen the basis for employment authorization. Simple statements such as she has a work permit or she has a social security number do not give sufficient information for an analysis of the client s immigration status. In the following subsections I discuss the various immigration status and categories that you are most likely to encounter among immigrant victims of domestic violence: U.S. citizens, lawful permanent residents, conditional permanent residents, refugees and asylees, T visa holders, deferred action, and permanently residing in the United States under color of law (commonly known by the acronym prucol ). A. U.S. Citizens Under the U.S. Constitution, [a]ll persons born or naturalized in the United States... are citizens of the United States. 5 Persons born outside the United States still may be citizens by birth if born in certain U.S. territories. 6 Or they may be citizens because one or both of their parents are U.S. citizens. 7 From the perspective of an immigration lawyer working for a nonprofit organization, a citizen often is considered to be someone who may not be deported; is eligible to vote; may (if 21 years of age or over) sponsor parents, spouses, siblings, and children for immigration status; and has no immigration bars to eligibility for public benefits. 8 However, when working with immigrants, do not forget the naturalized portion of the Constitution s definition of U.S. citizen. Many immigrants whom you serve, including those with limited English proficiency, may be naturalized U.S. citizens who, whether or not they realize it, generally have nothing to fear from federal immigration authorities. 9 Further, many immigrants whom you serve are lawful permanent residents who may be eligible for naturalization, which protects immigrants and their children from the harsh consequences of immigration laws They often do not realize the importance of becoming naturalized; if you are working with families in 3 U.S. CENSUS BUREAU, NO. P23-206, PROFILE OF THE FOREIGN-BORN POPULATION IN THE UNITED STATES: 2000, at 9 (Dec. 2001), 4 LUKE J. LARSEN, U.S. CENSUS BUREAU, NO. P20-551, THE FOREIGN-BORN POPULATION IN THE UNITED STATES: 2003, at 1 (Aug. 2004), 5 U.S. CONST. amend. XIV, 1. 6 See, e.g., 8 U.S.C. 1402, Immigration and Nationality Act (INA) 302 (2004) (Puerto Rico); 8 U.S.C. 1403, INA 303 (2004) (certain persons born in the Canal Zone or Republic of Panama); 8 U.S.C. 1405, INA 306 (2004) (the Virgin Islands); 8. U.S.C. 1406, INA 307 (2004) (Guam). 7 See 8 U.S.C. 1401, INA 301 (2004) (describing nationals and citizens of the United States at birth); see also 8 U.S.C. 1409, INA 309 (2004) (children born out of wedlock); cf. 8 U.S.C. 1408, INA 308 (2004) (nationals but not citizens of the United States at birth). 8 Cf. 8 U.S.C. 1451, INA 340 (2004) (outlining certain limited circumstances for revocation of naturalization, which, in turn, would allow for the rare situation in which a U.S. citizen could be subject to the INA and deported). Citizen does not appear to be defined in the INA. 9 See 8 U.S.C. 1101(a)(23), INA 101(a)(23) (2004) (defining naturalization ). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

5 which any of the members are lawful permanent residents, consider it part of your ethical duty to inform them. B. Lawful Permanent Residents Lawful permanent residents are foreign national[s]... granted the privilege of living and working permanently in the United States. 10 They are popularly known as green card holders, legal permanent residents, permanent residents, or residents. While lawful permanent residents may live in the United States permanently, their rights are more limited than those of U.S. citizens. For minor infractions, such as marijuana possession or shoplifting, lawful permanent residents may be deported or refused entry after short trips abroad. 11 They may sponsor only spouses and unmarried children. 12 By contrast, U.S. citizens also may sponsor parents (when the U.S. citizen is 21 or over), siblings, and married children. 13 Lawful permanent residents have access to some, but not all, public benefits. 14 They are eligible for federally funded financial aid. 15 And they may serve in the U.S. military. 16 If they spend extended time abroad (e.g., caring for a sick relative, or, in the case of young lawful permanent residents, being cared for by family members abroad), they may lose their resident status. 17 In the 2002 fiscal year, the most recent year for which statistics are available, the United States granted lawful permanent resident status to just over one million people. 18 More than 60 percent of those grants were to immigrants sponsored by family members. 19 While most immigrants do not know the exact statistics, they are aware that most people get green cards through family sponsorship. For women relying on abusive husbands for sponsorship, this awareness contributes to a sense of being trapped in a violent home without any realistic possibility of escape. C. Conditional Permanent Residents Immigrants who are sponsored by their spouses or stepparents may be granted conditional rather than permanent resident status when they first are granted 10 U.S. Citizenship and Immigration Services, How Do I Become a Lawful Permanent Resident While in the United States?, (last modified Nov. 10, 2003); see also 8 U.S.C. 1101(a)(20), INA 101(a)(2) (2004) ( The term lawfully admitted for permanent residence means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. ) U.S.C. 1101(a)(13)(C)(v), INA 101(a)(13)(C)(v) (2004) U.S.C. 1153(a)(2), INA 203(a)(2) (2004) U.S.C. 1151(b)(2)(A)(i), INA 201(b)(2)(A)(i) (2004) (parents); 8 U.S.C. 1153(a)(4), INA 203(a)(4) (2004) (siblings); 8 U.S.C. 1153(a)(3), INA 203(a)(3) (2004) (married children). Like lawful permanent residents, U.S. citizens may sponsor spouses and children. 8 U.S.C. 1151(b)(2)(A)(i), INA 201(b)(2)(A)(i) (2004) (spouses and unmarried minor children); 8 U.S.C. 1153(a)(1), INA 203(a)(1) (2004) (adult unmarried children) U.S.C (2004) (describing limited eligibility of qualified aliens, including lawful permanent residents, for certain federal programs). 15 See 20 U.S.C. 1091(a)(5) (2004); 34 C.F.R (a)(2)(ii) (2004); see also Policy Development Division, Student Financial Assistance Programs, U.S. Department of Education, Policy Bulletin: Welfare Reform Legislation (July 30, 1997), (hereinafter Policy Bulletin); Letter from Elizabeth M. Hicks, Deputy Assistant Secretary for Student Financial Assistance Programs, U.S. Department of Education, to Dear Colleague, GEN-98-2 (Jan. 1998), U.S.C (2004); see generally Margaret D. Stock, When Your Client Fights for Uncle Sam: No Card Soldiers and Expedited Citizenship, 8 BENDER S IMMIGRATION BULLETIN 1889 (2003) (describing the general requirement of lawful permanent resident, U.S. national, or U.S. citizenship status as well as exceptions during time of war). 17 See 8 U.S.C. 1101(a)(20), INA 101(a)(20) (2004); 8 U.S.C. 1101(a)(27), INA 101(a)(27)(A) (2004); In re Huang, 19 I. & N. Dec. 749 (Bd. Immigration App. 1988); see generally Deborah F. Buckman, Annotation, Abandonment of Lawful Permanent-Resident Status, 193 A.L.R. FED. 673 (2004). 18 U.S. DEPARTMENT OF HOMELAND SECURITY, 2002 YEARBOOK OF IMMIGRATION STATISTICS 6 (2003). 19 Id. 430 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

6 residence. 20 Spouses who have been married for less than two years when they are granted green cards as well as spouses who enter the United States on fiancé(e) (K-1) visas are granted what is officially known as conditional permanent residence and more popularly known as a temporary green card. 21 Similarly children whose sponsoring stepparent has been their stepparent for less than two years when a green card is granted as well as children who enter the United States on children of fiancé(e) (K-2) visas also are granted conditional permanent residence. 22 Conditional permanent resident status is conferred for two years, although the status continues beyond the initial two-year grant until federal immigration authorities formally act to terminate such status. 23 They may terminate the status only on a finding that the underlying marriage was improper (essentially a finding that the marriage was entered into for purposes of immigration fraud) 24 or the conditional permanent resident failed to file a petition to remove the condition or attend any required personal interviews or both. 25 Immigrants with conditional permanent resident status are treated in law just as lawful permanent residents. 26 The only difference is that conditional permanent residents must apply, generally in the last ninety days of the two-year period for which such status has been granted, to remove the condition on their resident status or show good cause for their failure to do so. 27 Domestic violence victims filing battered spouse or child waivers may file at any time during the two-year period of conditional residence or later. 28 D. Refugees and Asylees Refugees and asylees are persons (1) who have fled their native countries or fear returning to such countries; (2) have sought a safe haven in the United States; and (3) officially have been recognized by the U.S. government as refugees. 29 Amid controversy in this area, the U.S. government has been granting asylum status to an increasing number of domestic violence victims. 20 See Immigration Marriage Fraud Amendments of 1986, Pub. L. No , 100 Stat (creating conditional permanent resident status). 21 See generally 8 U.S.C. 1186a, INA 216 (2004) (describing conditional resident status, the procedures for removing the condition on such status, and the possibility of losing such status). 22 Id U.S.C. 1186a(b), INA 216(b) (2004); 8 U.S.C. 1186a(c)(2), INA 216(c)(2) (2004). Although the card that most conditional permanent residents have expires after two years, the status does not. Practically speaking, while your client cannot give proof of status to a new employer, a public benefits official, or a financial aid officer, a conditional permanent resident with an expired card lawfully may continue to work, receive public benefits, or receive federally funded financial aid, among other benefits, until a federal immigration officer actually terminates her immigration status. 24 See 8 U.S.C. 1186a(b), INA 216(b) (2004); 8 U.S.C. 1186a(c)(3), INA 216(c)(3) (2004). 25 See 8 U.S.C. 1186a(c)(2), INA 216(c)(2) (2004) U.S.C. 1186a(e), INA 216(e) (2004) U.S.C. 1186a(c), INA 216(c) (2004). 28 See 8 U.S.C. 1186a(c)(4), INA 216(c)(4) (2004); see generally 8 U.S.C. 1186a, INA 216 (2004), for an absence of timing requirements for (c)(4) waivers. The three hardship waivers available under INA 216(c)(4) are extreme hardship, divorce, and battered spouse or child waivers. For more information on the battered spouse or child waiver, see infra III.A See 8 U.S.C. 1101(a)(42), INA 101(a)(42) (2004) (defining refugee ). The term asylee does not appear to be defined in the INA; but see 8 U.S.C. 1158, INA 208 (2004) (governing the granting of asylum status). General immigration law relating to refugees and asylees is available at 8 U.S.C. 1157, INA 207 (2004); 8 U.S.C. 1158, INA 208 (2004); 8 U.S.C. 1159, INA 209 (2004). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

7 Refugees and asylees are granted status indefinitely, but they may lose it if they voluntarily return to their home countries. 30 Refugees and asylees generally have better, less restricted access to public benefits than lawful permanent residents. 31 They may receive federally funded financial aid, but they have limited rights to share their immigration status with spouses and unmarried minor children. 32 Like lawful permanent residents, refugees and asylees risk losing their immigration status on the basis of minor criminal infractions. 33 Refugees and asylees may apply for lawful permanent resident status after having held refugee or asylee status for one year. 34 E. T Visa Holders Some people brought into the United States for the purpose of commercial sexual exploitation or forced labor are eligible for trafficking visas (commonly known as T visas). 35 Victims of sex trafficking frequently are forced into abusive intimate relations with their traffickers or pimps. You may first encounter a victim of trafficking as a victim of domestic violence in an abusive relationship with her boyfriend or husband and only later learn that the abusive partner is also your client s trafficker or pimp or both. In most respects, U.S. law treats trafficking victims with T visas in the same way as refugees and asylees. The most significant difference involves the application for lawful permanent resident status. Whereas refugees and asylees must wait only one year to apply for such status, T visa holders must wait three years and meet additional requirements to be granted lawful permanent resident status. 36 F. Deferred Action Deferred action is among the more difficult immigration categories for nonimmigration lawyers to understand, but it is critical in the world of domestic violence. Almost all victims of domestic violence who are married to abusive U.S. citizens or lawful permanent residents and who file Violence Against Women Act (VAWA) self-petitions to obtain immigration status are granted deferred action. 37 From when the VAWA self-petition is approved to when lawful permanent resident status is granted a period that could last for several years the approved VAWA selfpetitioner s only immigration status is deferred action. Domestic violence vic U.S.C. 1158(c)(2)(D), INA 208(c)(2)(D) (2004). 31 Compare 8 U.S.C. 1612(a)(2)(A) (2004) (granting access to federal benefit programs during the first seven years of status for asylees, refugees, and those granted similar relief) with id. 1612(a)(2)(B) (requiring lawful permanent residents to have the equivalent of a ten-year work history before being granted access to federal benefit programs). 32 See 8 U.S.C. 1157(c)(2), INA 207(c)(2) (2004) (refugees); 8 U.S.C. 1158(b)(3), INA 208(b)(3) (2004) (asylees). 33 See generally 8 U.S.C. 1227, INA 237 (2004). 34 See 8 U.S.C. 1159(a), INA 209(a) (2004) (refugees); 8 U.S.C. 1159(b), INA 209(b) (2004) (asylees). 35 See 8 U.S.C. 1101(a)(15)(T), INA 101(a)(15)(T) (2004), 8 U.S.C. 1184(o), INA 214(o) (2004) (describing statutory requirements for a T visa); see also 8 C.F.R (2004) (describing regulatory requirements for a T visa); see generally Sheila Neville & Susana Martinez, The Law of Human Trafficking: What Legal Aid Providers Should Know, 37 CLEARINGHOUSE REVIEW 551 (March April 2004) U.S.C. 1255(l), INA 245(l) (2004). 37 See Memorandum from Michael D. Cronin, Acting Executive Associate Commissioner of the Office of Programs, Immigration and Naturalization Service, to the Vermont Service Center (Sept. 8, 2000); Memorandum from Michael D. Cronin, Acting Associate Commissioner of the Office of Programs, Immigration and Naturalization Service, to Regional Directors, Immigration and Naturalization Service (Dec. 22, 1998). For a discussion of this practice, see generally Christoph Hoashi-Erhardt & Stephen Yale-Loehr, Self-Petitions for Battered Immigrant Spouses and Children, 6 BENDER S IMMIGRATION BULLETIN 1227 (2001). 432 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

8 tims who apply for interim relief under U visa legislation intended to help crime victims also are granted deferred action. 38 Deferred action, though not a particularly common immigration status among immigrant population groups at large, is a status that large numbers of immigrant victims of domestic violence either have or hope to obtain. Deferred action is not really a status, and it is not defined by statute. Essentially, in certain situations, federal immigration authorities, by policy choice and through their sole discretion, choose to grant deferred action to certain immigrants. In granting deferred action, federal immigration authorities make an affirmative statement that (1) the immigrant in question is in the United States; (2) the immigrant may or may not be lawfully present; (3) the immigrant appears to wish to stay in the United States indefinitely; and (4) federal immigration authorities, by administrative choice, are deferring the action of initiating removal proceedings against the immigrant. 39 Deferred action status may be taken away at any time. While immigrants maintain deferred action status, they are protected from removal proceedings and may apply for an employment authorization document (popularly known as a work permit). 40 Deferred action is a form of prucol status (which I discuss in the next subsection) and is the basis for eligibility for certain public benefits in New York and several other states. 41 Deferred action does not allow for the sponsoring of relatives or the application for lawful permanent resident status. Persons with deferred action status may not travel outside the United States. Deferred action status is not a basis for receiving federally funded public benefits or financial aid. 42 However, some people with deferred action status for example, VAWA selfpetitioners may have an independent reason for accessing federally funded benefits U.S.C. 1101(a)(15)(U), INA 101(a)(15)(U) (2004), 8 U.S.C. 1184(p), INA 214(p) (2004) (describing statutory requirements for a U visa); Memorandum from William R. Yates, Associate Director of Operations, U.S. Department of Homeland Security, to Paul E. Novak, Director of the Vermont Service Center, U.S. Department of Homeland Security (May 6, 2004); Memorandum from William R. Yates, Associate Director of Operations, U.S. Department of Homeland Security, to Director of the Vermont Service Center, U.S. Department of Homeland Security (Oct. 8, 2003); Memorandum from Michael D. Cronin, Acting Executive Associate Commissioner for the Office of Programs, Immigration and Naturalization Service, to Michael A. Pearson, Executive Associate Commissioner for the Office of Field Operations, Immigration and Naturalization Service (Aug. 30, 2001). 39 See Immigration and Naturalization Service Operations Instruction 103.1(a)(ii) (in effect before June 15, 1984) or 242.1(a)(22) (in effect from June 15, 1984, to June 24, 1997); Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, (1999) (Clearinghouse No. 51,915) (describing deferred action as an exercise in administrative discretion, developed without express statutory authorization which means that... no action will thereafter be taken to proceed against an apparently deportable alien (quoting 6 CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE 72.03[2][h] (1998))); see also Memorandum from Johnny N. Williams, Executive Associate Commissioner of the Office of Field Operations, Immigration and Naturalization Service, to Regional Directors, the Deputy Executive Associate Commissioner for Immigration Services, and General Counsel, Immigration and Naturalization Service (June 12, 2002) (Clearinghouse No. XX,XXX) (listing grants of deferred action as a period[] of stay authorized by the Attorney General ). 40 See 8 U.S.C. 1324a, INA 274A (2004); 8 C.F.R. 274a.12(c)(14) (2004). 41 See N.Y. SOC. SERV. 122(c) (Consol. 2003) (describing immigrant eligibility for state-funded cash assistance and medical insurance programs); N.Y. SOC. SERV. 158(g) (Consol. 2003) (describing immigrant eligibility for state-funded cash assistance program); see Aliessa v. Novello, 754 N.E.2d 1085, 1098 (N.Y. 2001) (Clearinghouse No. 52,429) (holding that the U.S. and New York State Constitutions required New York to grant state-funded Medicaid to persons with permanently residing under color of law (prucol) status on the same terms as other New York residents). For a state-by-state review of immigrant eligibility for public benefits, including references to states that continue to rely on the concept of prucol persons in determining eligibility for public benefits, see NATIONAL IMMIGRATION LAW CENTER, GUIDE TO IMMIGRANT ELIGIBILITY FOR FEDERAL PROGRAMS (4th ed. 2002). 42 See 8 U.S.C. 1641(b) (2004) (which defines qualified aliens for public benefit purposes but does not include persons with prucol status); Policy Bulletin, supra note 15 (which does not list prucol as a category of immigrant eligible for financial aid); see also Hicks, supra note 15 (which does not list prucol as a category of immigrant eligible for financial aid) U.S.C. 1641(c) (2004) (defining as qualified aliens those who need public benefits to escape domestic violence and who have established a prima facie case for a Violence Against Women Act (VAWA) self-petition or have an approved VAWA self-petition). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

9 G. Permanently Residing Under Color of Law Permanently residing under color of law is not an immigration status; rather, it is a concept used in state-funded public benefits. 44 The idea behind the prucol concept is that many immigrants are in the United States with the full knowledge of federal immigration authorities (a knowledge generally based on an application for some kind of permanent immigration status that has not yet led to any kind of formal immigration status) where the government is making no effort to deport them. The driving theory behind the prucol concept is not that these immigrants are in any way protected from deportation but that, for the time being, the government can be said to have acquiesced in the immigrants presence. 45 Of course, the government may decide at any time to deport such immigrants. In addition to finding proof that your client has made her presence known to federal immigration authorities and indicated her intent to stay, you will also want to know if federal immigration authorities are seeking to deport your client. While you cannot always find this out, if you have the client s alien number, you can contact the immigration court s automated information system at to find out about any past or current proceedings against your client. III. Immigration Law Remedies The fundamental problem with the U.S. immigration system is that many more people would like to immigrate to the United States than the law allows. Immigrants may not simply apply for permanent immigrant status; rather, they must have some kind of supporting application or petition establishing eligibility. Eligibility categories can be divided roughly into four categories: family, 46 humanitarian, 47 employment, 48 and diversity lottery. 49 Since 1990, through both legislation and case law, feminist activists have fought successfully to create relief for immigrant victims of domestic violence in both the family and humanitarian categories. While the relief can be significant for those who qualify, many, perhaps a majority of, immigrant victims of domestic violence are not eligible for any of the forms of relief I describe in this article. 44 Before passage on August 22, 1996, of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. Law No , 110 Stat. 2105), which severely limited immigrants access to public benefits, the prucol concept had been developed and used under federal law relating to public benefits. Since August 22, 1996, only a limited number of states, including New York, have continued to use the prucol concept in determining immigrant eligibility for public benefits. See also supra note See, e.g., 42 C.F.R (2004) (describing an immigrant who is prucol as a noncitizen who is residing in the United States with the knowledge and permission of the Immigration and Naturalization Service (INS) and the INS does not contemplate enforcing the alien s departure. The INS does not contemplate enforcing an alien s departure if it is the policy or practice of INS not to enforce the departure of aliens in the same category, or if from all the facts and circumstances in a particular case it appears that INS is otherwise permitting the alien to reside in the United States indefinitely. ); Lewis v. Thompson, 252 F.3d 567, (2d Cir. 2001) (citing Berger v. Heckler, 771 F.2d 1556, (2d Cir. 1985)) (stating that prucol status... is an amorphous and elastic one, which includes at least those aliens who are residing in the United States with the INS s knowledge and permission and whom the INS does not contemplate deporting ). 46 See 8 U.S.C. 1151(a)(1), INA 201(a)(1) (2004); 8 U.S.C. 1151(b)(2), INA 201(b)(2) (2004); 8 U.S.C. 1153(a), INA 203(a). 47 See generally 8 U.S.C. 1157, INA 207 (2004) (refugees); 8 U.S.C. 1158, INA 208 (2004) (asylees). Other humanitarian provisions are scattered throughout the statute and apply to distinct groups of immigrants. See, e.g., 8 U.S.C. 1101(a)(15)(T), INA 101(a)(15)(T) (2004); 8 U.S.C. 1184(o), INA 214(o) (2004) (trafficking victims); 8 U.S.C. 1101(a)(15)(U), INA 101(a)(15)(U) (2004); 8 U.S.C. 1184(p), INA 214(p) (2004) (certain crime victims). 48 For the principal provisions, see 8 U.S.C. 1151(a)(2), INA 201(a)(2) (2004); 8 U.S.C. 1153(b), INA 203(b) (2004). 49 See 8 U.S.C. 1151(a)(3), INA 201(a)(3) (2004); 8 U.S.C. 1153(c), INA 203(c) (2004). 434 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

10 In this section I review six distinct forms of relief: battered spouse or child waivers, VAWA self-petitions, and VAWA cancellation, which are variations on family-based immigration, and asylum and U and T visas, which are humanitarian forms of relief. 50 A. Family-Based Immigration For domestic violence victims, family sponsorship is perhaps the most important basis for achieving lawful permanent resident status. Of the more than one million people who are granted lawful permanent resident status each year in the United States, more than 60 percent are sponsored by family members. 51 These figures include almost 300,000 spouses of U.S. citizens, 100,000 children of U.S. citizens, and another almost 85,000 spouses or children of lawful permanent residents. 52 No annual cap is put on the number of spouses and children of U.S. citizens allowed to apply for lawful permanent resident status each year. 53 However, the number of spouses and children of lawful permanent residents who may apply is strictly limited. 54 The family sponsorship process for obtaining permanent immigration status takes several years. The sponsoring spouse s or parent s signature is required on certain forms to initiate the process, and the sponsor generally must participate in the final interview before the granting of immigration status. In light of the length of time involved in becoming a lawful permanent resident and the necessity of the sponsor s involvement, the dilemma for battered immigrants becomes clearer whether waiting out the abuse is worth it to get the coveted green card, the passport to freedom. Three forms of immigration relief battered spouse or child waivers, VAWA selfpetitions, and VAWA cancellation are meant to help battered immigrants caught in this trap. 1. Battered Spouse or Child Waivers The general rule for conditional permanent residents is that they must file, during the ninety-day period immediately before the second anniversary of having been granted status, a joint petition with the sponsoring spouse or parent to remove the condition on their status. 55 However, a waiver of the joint filing requirement is available to domestic violence victims. Battered spouse or child waivers are available to conditional permanent residents where the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her citizen... spouse or... parent Please be aware that this article does not contain sufficient information to train you to provide legal services in any of these areas. Rather, I intend generally to familiarize you with these forms of immigration relief. Resources for representing clients in battered spouse or child waivers, VAWA self-petition and cancellation cases, and U and T visa cases are available from the National Immigration Project, Immigrant Survivors of Domestic Violence and Sexual Assault, at (last visited Sept. 7, 2004). Resources for representing gender-based asylum seekers are available from the Center for Gender and Refugee Studies, at (last modified Aug. 25, 2004) (the center is staffed by two of the country s leading experts in this field, Karen Musalo and Stephen Knight). 51 Department of Homeland Security, supra note Id. at 7. Note that the data break down spouses and children of U.S. citizens but lump together spouses and children of lawful permanent residents U.S.C. 1151(b)(2)(A), INA 201(b)(2)(A) (2004) U.S.C. 1151(a)(1), INA 201(a)(1) (2004). 55 See 8 U.S.C. 1186a(c)(1)(A), INA 216(c)(1)(A) (2004) U.S.C. 1186a(c)(4)(C), INA 216(c)(4)(C) (2004); see also 8 C.F.R (2004). Note that the requirement mentioned in 8 C.F.R (e)(3)(iii) for an evaluation of a professional recognized by the [Immigration and Naturalization] Service as an expert in the field is no longer required since this regulatory provision has been overridden by statute. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No , 40,703, 108 Stat. 1796, 1955 (amending 8 U.S.C. 1186a(c)(4), INA 216(c)(4), requiring the consideration of any credible evidence ). To apply for a battered spouse or child waiver, use Form I-751, available at Clearinghouse REVIEW Journal of Poverty Law and Policy September October

11 The conditional permanent resident whose petition to have her condition removed is granted is a lawful permanent resident. The lawful permanent resident status dates back to when the conditional permanent resident status was granted. 57 In many cases, by the time the battered spouse waiver is approved, the immigrant (who must wait five years after becoming a lawful permanent resident or conditional permanent resident) will be eligible to apply to become a naturalized U.S. citizen VAWA Self-Petitions Immigrant victims of domestic violence who have not yet become conditional permanent residents or lawful permanent residents and who are married to or are the children of abusive U.S. citizens or lawful permanent residents may file VAWA self-petitions. 59 The VAWA selfpetitioner must either be the spouse or child of the abusive U.S. citizen or lawful permanent resident at the time of filing, or the relevant spousal or parent-child relationship must have ended in divorce due to domestic violence within the two years preceding the filing. 60 VAWA selfpetitioners whose abusive spouse or parent has lost immigration status during the past two years in connection with having committed domestic violence also remain eligible to self-petition. 61 Like those seeking battered spouse or child waivers, VAWA self-petitioners must establish both the abuse suffered and the goodfaith marriage or parent-child relationship with abusive U.S. citizens or lawful permanent residents. 62 VAWA self-petitioners also must establish good moral character and joint residence with their abusive spouses or parents. 63 The successful VAWA self-petitioner is granted deferred action status, which must be renewed each year. 64 VAWA 57 See 8 U.S.C. 1186a(e), INA 216(e) (2004). The statute refers only to backdating for naturalization, but this practice is followed across the board in other contexts. 58 Under the plain words of 8 U.S.C. 1430(a), INA 319(a) (2004), those with approved battered spouse or child waivers should be eligible to apply to become naturalized U.S. citizens after three years of conditional permanent resident or lawful permanent resident status. Unfortunately a current federal immigration authority policy memorandum does not support this position. See Memorandum from William Yates, Deputy Executive Associate Commissioner of the Office of Field Operations of the Immigration Services Divisions, to Regional Directors, District Directors, Officers-in-Charge and Service Center Directors (Oct. 15, 2002). 59 See 8 U.S.C. 1154(a)(1)(A)(iii), INA 204(a)(1)(A)(iii) (2004) (spouse of U.S. citizen); 8 U.S.C (a)(1)(a)(iv), INA 204(a)(1)(A)(iv) (2004) (child of U.S. citizen); 8 U.S.C (a)(1)(b)(ii), INA 204(a)(1)(B)(ii) (2004) (spouse of lawful permanent resident); 8 U.S.C. 1154(a)(1)(B)(iii), INA 204(a)(1)(B)(iii) (2004) (child of lawful permanent resident); see also 8 C.F.R (c) (2004) (spouse of U.S. citizen or lawful permanent resident); 8 C.F.R (e) (2004) (child of U.S. citizen or lawful permanent resident). However, as of September 2004, the regulations have not been updated to reflect the Battered Immigrant Women Protection Act of 2000 incorporated into the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No , 114 Stat To apply for a VAWA self-petition, use Form I-360, available at U.S.C. 1154(a)(1)(A)(iii) (II)(aa)(CC)(ccc), INA 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc) (2004); 8 U.S.C. 1154(a)(1)(A)(iv), INA 204(a)(1)(A)(iv) (2004); 8 U.S.C. 1154(a)(1)(B)(ii) (II)(aa)(CC)(ccc), INA 204(a)(1)(B)(ii)(II)(aa)(CC)(ccc) (2004); 8 U.S.C. 1154(a)(1)(B)(iii), INA 204(a)(1)(B)(iii) (2004). Note that innocent bigamy victims who believed themselves to be lawfully married are also eligible for VAWA self-petitions. 8 U.S.C. 1154(a)(1)(A)(iii)(II)(aa)(BB), INA 204(a)(1)(A)(iii)(II)(aa)(BB) (2004); 8 U.S.C. 1154(a)(1)(B)(ii)(II)(aa)(BB), INA 204(a)(1)(B)(ii) (II)(aa)(BB) (2004) U.S.C. 1154(a)(1)(A)(iii)(II)(aa)(CC)(bbb), INA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb) (2004); 8 U.S.C. 1154(a)(1)(A)(iv), INA 204(a)(1)(A)(iv) (2004); 8 U.S.C. 1154(a)(1)(B)(ii)(II)(aa)(CC)(aaa), INA 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa) (2004); 8 U.S.C. 1154(a)(1)(B)(iii), INA 204(a)(1)(B)(iii) (2004) U.S.C. 1154(a)(1)(A)(iii), INA 204(a)(1)(A)(iii) (2004) (spouse of U.S. citizen); 8 U.S.C. 1154(a)(1)(A)(iv), INA 204(a)(1)(A)(iv) (2004) (child of U.S. citizen); 8 U.S.C. 1154(a)(1)(B)(ii), INA 204(a)(1)(B)(ii) (2004) (spouse of lawful permanent resident); 8 U.S.C. 1154(a)(1)(B)(iii), INA 204(a)(1)(B)(iii) (2004) (child of lawful permanent resident). 63 For requirements that VAWA self-petitioners establish good moral character, see 8 U.S.C. 1154(a)(1)(A)(iii)(II)(bb), INA 204(a)(1)(A)(iii)(II)(bb) (2004); 8 U.S.C. 1154(a)(1)(A)(iv), INA 204(a)(1)(A)(iv) (2004); 8 U.S.C. 1154(a)(1)(B)(ii)(II)(bb), INA 204(a)(1)(B)(ii)(II)(bb) (2004); 8 U.S.C. 1154(a)(1)(B)(iii), INA 204(a)(1)(B)(iii) (2004). For requirements that VAWA self-petitioners establish joint residence with their abusive spouses or parents, see 8 U.S.C. 1154(a)(1)(A)(iii)(II)(dd), INA 204(a)(1)(A)(iii)(II)(dd) (2004); 8 U.S.C. 1154(a)(1)(A)(iv), INA 204(a)(1)(A)(iv) (2004); 8 U.S.C. 1154(a)(1)(B)(ii)(II)(dd), INA 204(a)(1)(B)(ii)(II)(dd) (2004); 8 U.S.C. 1154(a)(1)(B)(iii), INA 204(a)(1)(B)(iii) (2004). 64 See supra note Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

12 self-petitioners who are the current or former spouses or children of U.S. citizens may immediately apply for lawful permanent resident status. VAWA selfpetitioners who are the current or former spouses or children of lawful permanent residents generally must wait several years before applying to become lawful permanent residents VAWA Cancellation VAWA cancellation is specifically intended for domestic violence victims who are in removal proceedings (popularly known as deportation proceedings) and who have or had a qualifying relationship with an abusive U.S. citizen or lawful permanent resident. 66 As with battered spouse or child waivers and VAWA self-petitions, the qualifying relationship may be a spousal relationship or a parent-child relationship. 67 An immigrant with a child in common with a U.S. citizen or lawful permanent resident who abused the child also is eligible to file for VAWA cancellation. 68 Like VAWA self-petitioners, those seeking VAWA cancellation must establish good moral character. 69 Those seeking VAWA cancellation have two additional requirements not part of the criteria for battered spouse or child waivers or VAWA selfpetitions. They must establish three years of continuous physical presence in the United States 70 and extreme hardship to themselves, their parents, or their children were they to be deported. 71 A person granted VAWA cancellation of removal is granted lawful permanent resident status in the United States. 72 B. Humanitarian-Based Immigration America s approach to humanitarian issues in immigration law dates back to the aftermath of World War II both the postwar refugees and the Cold War. Western powers drafted the United Nations Convention Relating to the Status of Refugees (the Refuge Convention) based on their understanding of persecution during World War II. 73 The United States did not sign onto the Refugee Convention but in 1968 did ratify the subsequent United Nations Protocol Relating to the Status of Refugees (the Refugee Protocol), which incorporated most of the provisions of the Refugee Convention. 74 The Refugee Protocol s protection provisions became part of U.S. statutory law in The paradigm of the Refugee Convention and Protocol is that of a government actor 65 A discussion of the priority date system, in which VAWA self-petitioning spouses and children of lawful permanent residents are under preference category 2A, is beyond the scope of this article. Additional information relating to priority dates and the waiting period for family members of lawful permanent residents is available at the U.S. Department of State s monthly Visa Bulletin, For more information on the preference system, see Charles Wheeler, Family-Based Immigration, in this issue. 66 See 8 U.S.C. 1229b(b)(2), INA 240A(b)(2) (2004); see also 8 C.F.R , (2004). To apply for VAWA cancellation, use Form EOIR-42B, available at U.S.C. 1229b(b)(2)(i)(I), INA 240A(b)(2)(I) (2004); 8 U.S.C. 1229b(b)(2)(i)(II), INA 240A(b)(2)(II) (2004). Note that, as with VAWA self-petitions, innocent victims of bigamy are also eligible for VAWA cancellation. 8 U.S.C. 1229b(b)(2)(i)(III), INA 240A(b)(2)(III) (2004) U.S.C. 1229b(b)(2)(i)(I), INA 240A(b)(2)(I) (2004); 8 U.S.C. 1229b(b)(2)(i)(II), INA 240A(b)(2)(II) (2004) U.S.C. 1229b(b)(2)(iii), INA 240A(b)(2)(iii) (2004) U.S.C. 1229b(b)(2)(ii), INA 240A(b)(2)(ii) (2004) U.S.C. 1229b(b)(2)(v), INA 240A(b)(2)(v) (2004) U.S.C. 1229b(b)(2)(a), INA 240A(b)(2)(a) (2004) (indicating the circumstances under which [t]he Attorney General may cancel removal of, and adjust the status [to that] of an alien lawfully admitted for permanent residence for certain immigrant victims of domestic violence). 73 Convention Relating to the Status of Refugees, opened for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S Refugee Act of 1980, Pub. L. No , 94 Stat. 102 (codified as amended in scattered sections of 8 U.S.C.). For a comprehensive review of the U.S. response to refugees and asylum seekers from World War II through the passage of the Refugee Act of 1980, see Deborah Anker & Michael Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO LAW REVIEW 9 (1981). Clearinghouse REVIEW Journal of Poverty Law and Policy September October

13 targeting and persecuting with a genocidal ferocity identifiable groups within society the model of Nazi persecution during World War II. Over the years, both in the United States and other signatory countries, the understanding of the kinds of refugees who merit protection under the Refugee Convention and Protocol has expanded (albeit reluctantly) to include those who suffer harm at the hands of private actors in a variety of circumstances. However, Refugee Convention and Protocol protection provisions require that the harm suffered by the asylum seeker must be on account of some particular demographic characteristic (race, religion, nationality, political opinion, or membership in a particular social group). 76 In addition to its compliance with certain international treaties on refugee protection, the United States has a distinct post World War II tradition of creating humanitarian legislation to afford a series of hybrid immigration forms of relief to particular groups of people at particular moments. Grants of asylum are in accordance with the international tradition of the Refugee Convention and Protocol, whereas issuances of U and T visas, which afford immigration relief to noncitizen victims of certain crimes, predominantly associated with gendered harms, fit within the distinctive, almost ad hoc, tradition of providing humanitarian relief for a host of internal and geopolitical reasons. 1. Asylum To be eligible for a grant of asylum, a person must establish that she has been subject to past persecution or has a well-founded fear that she will be subject to future persecution on account of her (1) race or (2) religion or (3) nationality or (4) membership in a particular social group or (5) political opinion where the persecution is (a) committed by the government in the applicant s home country or (b) the government in the applicant s home country is unable or unwilling to protect the victim from persecution. 77 The applicant generally must file within one year of entry into the United States unless there are changed circumstances or extraordinary circumstances. 78 No specific statutory provisions relate to gender-based asylum claims. Although the Immigration and Naturalization Service proposed specific regulations relating to gender-based asylum claims, these regulations have never been implemented. 79 A famous and unresolved case, In re R.A., about a Guatemalan victim of domestic violence is pending before Atty. Gen. John Ashcroft. 80 However, many victims of domestic violence, female genital mutilation, honor killing, and similar genderrelated harms have prevailed on genderbased asylum claims under the criteria described above U.S.C. 1101(a)(42), INA 101(a)(42) (2004) (defining the term refugee for purposes of asylum); 8 U.S.C. 1231(b)(3)(A), INA 241(b)(3)(A) (2004) (describing noncitizens to be granted withholding of removal due to threats to life or freedom in their home countries). 77 See 8 U.S.C. 1101(a)(42), INA 101(a)(42) (2004); 8 U.S.C. 1158, INA 208 (2004); see also 8 C.F.R et seq., et seq. (2004). While withholding of removal under 8 U.S.C. 1231(b)(3), INA 241(b)(3) (2004), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as implemented by 8 C.F.R (2004), are forms of immigration relief similar to asylum and generally sought at the same time as asylum, discussion of these forms of relief is beyond the scope of this article U.S.C. 1158(2)(B), INA 208(2)(B) (2004) (generally requiring that asylum applications be filed within one year of arrival in the United States); 8 U.S.C. 1158(2)(D), INA 208(2)(D) (2004) (providing exceptions to the one-year rule for both changed circumstances and extraordinary circumstances). To apply for asylum, use Form I-589, available at 79 See 65 Fed. Reg (proposed Dec. 7, 2000). 80 In re R.A., 22 I. & N. Dec. 906 (Bd. Immigration App. June 11, 1999) (Interim Decision No. 3403), vacated and remanded on other grounds, In re Rodi Alvarado Pena, Op. Atty. Gen (Jan. 19, 2001) (Reno order), recertified to the Attorney General, Op. Atty. Gen (Feb. 21, 2003) (Ashcroft order) (Clearinghouse No. 55,763). See, e.g., Rachel L. Swarns, Ashcroft Weighs the Granting of Political Asylum to Abused Women, NEW YORK TIMES, March 11, 2004, at A20; George Lardner Jr., Ashcroft Reconsiders Asylum Granted to Abused Guatemalan: New Regulations Could Affect Gender-Based Persecution, WASHINGTON POST, March 3, 2003, at A2; Monica Rhor, U.S. Asylum Ruling Awaited for Woman who Alleges Abuse: Ashcroft to Decide Case that Could Add a Class of Victims, BOSTON GLOBE, Feb. 19, 2004, at A7. 81 Sanctuary for Families, with the support of pro bono attorneys, has won several gender-based asylum cases on behalf of clients. See, e.g., In re [redacted], [Alien No. redacted] (New York, N.Y. Immigration Ct. March 10, 2003) (Clearinghouse No. 55,775). 438 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004