Battered Immigrant Women and the Law: What Advocates Need to Know Post September 11, 2001

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1 WASHINGTON STATE COALITION AGAINST DOMESTIC VIOLENCE Vol. 4, No. 2 Pages June 2002 Battered Immigrant Women and the Law: What Advocates Need to Know Post September 11, 2001 About This Issue This issue updates our January 1999 issue, reflecting changes in the law and new protections for battered immigrants, a result of the Battered Immigrant Protection Act of This issue also discusses how the tragic events of September 11, 2001 have changed the legal and social landscape for non-citizens living in our communities. In response to the September 11, 2001 attacks, government agencies have placed more emphasis on scrutinizing immigrants in our communities, and these efforts have had, and will continue to have, serious repercussions for immigrant victims of domestic violence. It is crucial that advocates be involved in the policy discussions that have direct impact on some of the most targeted domestic violence survivors in our state. We must ensure that the legal protections that have been created for battered immigrants are not undermined in the quest to prevent future terrorist acts. Law Enforcement Cooperation with the Immigration and Naturalization Service (INS) Threatens the Safety of Battered Immigrant Women 1 by Grace Huang In 1996, Congress authorized the Attorney General to make agreements with state and local governments permitting them to enforce immigration laws. Prior to September 11, 2001, lack of state and local interest, along with opposition from immigrant advocacy and business groups, effectively stopped these agreements from being entered into. Many immigrants, documented or undocumented, fear any contact with law enforcement. Advocates need to know that police do not have the right to enforce immigration law based on various federal court decisions interpreting federal law. $% The Bush administration now hopes to put these provisions into effect, and some local governments are considering entering into these agreements. The Attorney General also plans to make a national announcement that all law enforcement agents have the inherent authority to implement immigration laws even without the special agreements noted above, despite a long history of case law indicating to the contrary. This means that police officers could check people s immigration status, decide if they are in the U.S. legally, and send them to INS for deportation. For example, a New Tools to Assist Battered Immigrants Stepping Back: Reviewing Self-Petition Under VAWA Resources #$!"

2 !" pilot project to give some Florida police officers authority to arrest undocumented immigrants would merge the roles of local law enforcement and the INS in new ways, sparking fears in immigrant communities. 2 In Washington state, some law enforcement officials say their limited resources prevent them from adding responsibilities currently handled by the Justice Department. 3 However, despite the funding limits, many law enforcement agencies already cooperate with the INS by referring immigrants they detain, including the Seattle Police Department and the Whatcom County Sheriff s Department. 4 Other law enforcement officials indicated that authorizing local law enforcement to review immigration status while checking on unrelated complaints gives the public more bang for their buck. 5 Though the law permits local governments to enforce certain provisions of immigration law, they are potentially exposing themselves to legal liability for actions that violate individuals' civil rights. Places that have done this in the past have had to pay significant fines for the civil rights violations that flow from interrogations and arrests based on race. For example, the town of Georgetown, Texas settled a civil rights suit brought by U.S. citizens and lawful permanent residents whose homes had been entered and searched by three city police officers and the INS without consent or search warrants. The small town of Georgetown was required to pay $42,500 to the plaintiffs as part of the settlement. In Chandler, Arizona, the Chandler Police Department conducted a joint operation with the INS Border Patrol in July As a result of the joint operation, a $35 million civil rights lawsuit against the City of Chandler was brought by U.S. citizens and legal permanent residents, who alleged that U.S. citizens and legal permanent residents were stopped for no apparent reason other than their skin color, Mexican appearance, or use of the Spanish language. More costly than the financial burden to the city in defending and settling the lawsuit was the lost trust between members of the community and the police. If law enforcement chooses to expand their duties to include the policing of immigration matters, local police should be prepared for a reduction in reporting of serious crimes. Non-citizens will become reluctant to report crime to local police, thus encouraging criminals to further victimize these communities and spread into the community at large. This type of collaboration will endanger many immigrant victims of crime and undermine federal protections for these victims under the Violence Against Women Act. It forces local law enforcement to choose between their duty to protect and a duty to enforce federal immigration law. Congress recognized the need to address the problem of battered immigrant women by passing the VAWA provisions that allow victims of abuse the ability to obtain legal immigration status independent of their abusers. The effectiveness of these provisions relies on local police responding to domestic violence calls and courts issuing Protective Orders. If police are seen as agents of the INS... many battered immigrants will be reluctant to call the police because they fear questions about immigration status. If police are seen as agents of the INS in the eyes of the community, many battered immigrants will be reluctant to call the police because they fear questions about immigration status. Battered immigrants may also be reluctant to report domestic violence if they think that their abusers will be turned in to the INS. Often, deportation of the abuser is not in the best interests of the battered immigrant. For example, she may be blamed by her home-country community for his deportation and ostracized for her actions, or she may depend on his employment income to provide housing and support for the family. For years, domestic violence advocates have worked with law enforcement to spread information about these protections for battered immigrants and encourage reporting of crime. These efforts have resulted in improved community policing and safety for immigrant women and children. Inform battered immigrants about &

3 How can battered immigrants protect themselves in this changing environment of cooperation between local law enforcement and the INS? their basic rights. The basic and critical rights are: Every immigrant has the right to remain silent and to refuse to answer any questions until consulting with a lawyer. If a battered immigrant is undocumented, it is critical that she does not reveal her country of origin or place of employment to the police or INS, and she should not sign anything before consultation with a lawyer. If law enforcement detain the battered immigrant or turn her over to INS, she has the right to a hearing with an immigration judge and the right to have an attorney represent her at hearings and in interviews with INS (though there is no right to a free attorney). Let her know she should not give up her right to a hearing or an attorney. Let her know she should insist on a hearing, especially if she is detained. If detained by law enforcement, make sure she has contact information for a public defender and an immigration advocate such as Northwest Immigrant Rights Project. Advocates can practice not answering questions with immigrant clients. For example, if a police officer or other government official wishes to ask questions about a suspected crime, practice telling the officer: I wish to remain silent; I want to speak to a lawyer. Police officers should not ask her about her immigration status. But if they ask, she does not have to answer their questions. Additionally, immigrants should know that the INS and the police do not have the right to enter her house without a warrant or her permission. Let her know that she has the right to close the door. However, if an individual gives law enforcement or the INS permission to enter their home, they may enter legally. For instance, if you open the door and ask them to step inside as a courtesy only, you are probably giving them permission to search your home. If police respond and inquire about immigration status, advocates can encourage the victim to assess if she can safely write a letter to the appropriate police department, telling them what happened. Offer to assist her in drafting and submitting the letter to the police department or, if she does not feel safe doing so, to contact the Washington Alliance For Immigrant and Refugee Justice for assistance ( ). 1 Partially adapted from materials developed by Gail Pendleton of the National Immigration Project, Sheridan, Mary Beth, Activists say immigrants trust at issue, The Washington Post, March 6, McGann, Chris, Police balk at watching for illegal immigrants, Seattle Post-Intelligencer, May 2, Id. 5 Morey, Mark, Alarms Raised Over Local Police Enforcing Immigration Laws, Yakima Herald, May 6, Grace Huang is the Public Policy Coordinator of the Washington State Coalition Against Domestic Violence. Grace s advocacy work also includes her participation as an advisory board member of the National Network on Behalf of Battered Immigrant Women. Ms. Huang can be contacted at , ext.121 or grace@wscadv.org. '

4 !" New Tools to Assist Battered Immigrants by Grace Huang How has immigration law affecting abuse victims changed over time? Historically, one of the most common ways for someone to obtain lawful, permanent status in the United States has been sponsorship by a family member who has status. This includes a parent or a spouse who is a U.S. Citizen (USC) or Lawful Permanent Resident (LPR). Because gaining legal status can depend on another family member, immigration law can become a tool abusers use to control battered immigrants. Early American immigration law was based on notions that treated wives and children as property of their husbands and fathers. This statutory authority gave male USCs and LPRs control over the immigration status of their immigrant wives. However, women could not file applications for their male immigrant spouses. The Immigration and Nationality Act of 1952 (INA) created gender neutrality, making it possible for either husband or wife to apply for permanent legal residency for an immigrant spouse. In 1986, the Immigration Marriage Fraud Amendments were passed to address concerns about fraud, changing the spousal application process, and creating the status of Conditional Permanent Resident. If a couple has been married for less than two years at the time the immigrant spouse obtains her LPR Status, she is granted LPR status with a condition on it. Conditional residents and their spouses generally must file a joint petition to remove the condition two years after the immigrant spouse obtains LPR status. However, the joint petitioning requirement had the unfortunate effect of placing battered immigrants at the mercy of their abusers and at risk of continuing abuse. In 1990, due in large part to lobbying by the domestic violence advocacy community, the Immigration Act of 1990 created important amendments to the immigration law, allowing good faith and battered spouse/extreme cruelty waivers, so that battered immigrants could apply for the conditional residence to become permanent without the cooperation of the abuser. However, because many abusers never filed an initial petition for Conditional Permanent Resident for their spouses, this only solved part of the problem. In the Violence Against Women Act (VAWA) of 1994, Congress added two provisions to help battered immigrants: 1. "VAWA self-petitioning," an application that could be filed by a survivor, and 2. "VAWA suspension of deportation, which was a defense a victim could use if she had been put into deportation proceedings. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) included several beneficial elements for immigrant survivors of domestic violence, including confidentiality protections and waivers that INS could grant in cases where the applicant was not eligible to apply for legal status. In 2002, the Battered Immigrant Protection Act fixed numerous procedural and practical problems found in the implementation of VAWA, as well as created a new non-immigrant U visa for victim witnesses who may be ineligible to take advantage of the protections found in VAWA. non- What is the new "U" immigrant visa? Certain crime victims will have the possibility of obtaining legal status in the United States with a U visa. The visa allows victims who suffer "substantial physical or mental abuse" as a result of certain crimes, including domestic violence and sexual assault, to apply to remain in the United States if they can provide certification from law enforcement, a prosecutor, judge, INS officer or other official that the individual has been helpful in an investigation or prosecution of a crime. For example, certification could be a letter on agency stationary stating that the individual has been helpful in the investigation or prosecution of a crime. (

5 What can I do to help someone who might be eligible for a U visa? As of June 2002, guidelines for obtaining a U visa have not been established. However, INS Headquarters has instructed local INS offices to provide applicants who appear eligible for a U visa with assistance. Advocates must work with an immigration attorney before taking any action. In the meantime, inform your local law enforcement officers, prosecutors, and judges that they may be able to assist crime victims by providing certifications that they have been helpful or are likely to be helpful in the investigation or prosecution of a crime. Inform them that immigration law does not require that a prosecution has gone forward, or that a conviction has been obtained. Let law e n f o r c e m e n t k n ow t h a t providing information for a police report will likely be sufficient to be considered helpful in the investigation or prosecution of a crime for the purposes of a U visa. Help the battered immigrant get assistance from an immigration expert. Because the U visas are new in immigration law, many immigration lawyers may be unaware of them, so they should be connected with experts who participate in the National Network on Behalf of Battered Immigrant Women (see Resources on pg. 154). There may be temporary measures the battered immigrant can secure before getting a U visa. Stepping Back: Reviewing Self-Petition Under VAWA Who is eligible to self-petition under VAWA? VAWA provides that an immigrant spouse or child (unmarried under age 21) who has been abused by a spouse or parent who is a U.S. Citizen (USC) or Lawful Permanent Resident (LPR) can apply for legal immigration status without the involvement of the abuser. It also allows a parent of an abused child to apply. What else do self-petitioners have to show to win their cases under VAWA? She is a person of good moral character. She married the abuser in good faith (not to get immigration status). She is, or was, married (within the last two years) to the USC/LPR. Abuse happened during the marriage. How can a battered immigrant prove everything necessary to win her case? Many items can be used to show that a battered immigrant meets the above criteria. Often, the most important evidence is the battered immigrant s personal statement. You and your client should work with an immigration attorney or advocate on how best to collect documentation to support her case. Evidence of abuse, for example, may include court orders, photos, police reports, medical records, letters from service providers, friends, or relatives. Many other forms of evidence are extremely useful. Evidence of a good faith marriage may include photos, sentimental letters or cards from the battering spouse to the survivor, and birth certificates of children born to the relationship. The types of evidence that are available to survivors of domestic violence vary from woman to woman. Be prepared to be creative in brainstorming useful materials. Can someone who has never been the victim of physical abuse successfully selfpetition? Probably. If she can prove she has experienced other abuse from her spouse or parent, such as isolation, degradation, economic abuse, harassment, or threats, she can be successful in self-petitioning. Most often the evidence will come in the form of her personal statement, and advocates can be crucial in helping her identify emotionally abusive tactics. What if a battered immigrant has a criminal history? In these situations, advocates should always seek the assistance of an immigration attorney or immigration advocates who are trained in working on cases involving the intersection between immigration and criminal law. In Washington state, advocates can get technical assistance from the W a s h i n g t o n D e f e n d e r s (

6 !" Immigration Project (see Resources on pg. 154). What if a battered immigrant is not legally married to the abuser? Generally, a battered immigrant must be or have been married to the abuser to self-petition under VAWA. Due to changes in the law in 2000, a battered immigrant may self-petition if her USC or LPR abuser died in the past two years, if the marriage ended within the last two years and the self-petitioner can show a connection between the termination of marriage and the abuse, or if the abuser is or was a bigamist, but the self-petitioner was unaware of the bigamy. Also, under the Battered Immigrant Protection Act of 2000, an unmarried survivor may be eligible for the new U visa available for crime victims, discussed previously. What if my client s abuser is...immigrant domestic violence survivors, documented or not, are eligible for the same legal protections as are documented women. undocumented? May my client still be eligible for VAWA? violence survivors, documented or not, are eligible for the same legal protections as are documented women. Like all survivors of domestic violence, immigrants should have access to whatever services are necessary to ensure their personal safety. They may obtain court orders, including protection orders and family law settlements, medical care, or shelter protection. In addition, many battered immigrants, even if they are not yet permanent residents, may be eligible for public benefits and legal services. Immigrants should always be educated in how to use the police so as not to heighten their risk of ending up in removal proceedings. Remind a battered immigrant client that no matter what her immigration status is, her safety is always important. She should not be afraid of calling the police for help from abuse. Police records and court orders that document abuse are In addition, an immigrant survivor who has never been legally married to her abuser may be eligible for a defense in deportation proceedings, called Cancellation of Removal. To qualify, the battered immigrant and the abuser (who has to have legal residency status) must have a child together and she must be able to prove that the abuser has abused the child. Cancellation of Removal cases are extremely complicated and no immigrant should pursue protection under these or other immigration laws without first consulting an expert....while it is important to rely on police protection, undocumented immigrant survivors should not discuss their immigration status, reveal false documents or disclose their country of origin to the police. Only if the abuser was previously an LPR and lost his status within the previous two years due to an incident of domestic violence. If the abuser has never had status or it has been more than two years since he lost his status, there is no protection available under VAWA. However, she may be eligible for immigration relief under other provisions of immigration law, including the new U visa, and should seek advice from an expert. What legal protections, benefits, or services are available to battered immigrants other than in immigration law? Generally, immigrant domestic often, in fact, crucial pieces of evidence in supporting her immigration case, as well as in a family law case. And remember, while it is important to rely on police protection, undocumented immigrant survivors should not discuss their immigration status, reveal false documents or disclose their country of origin (

7 to the police. How do I help a battered immigrant with safety planning? In addition to the comprehensive safety planning that advocates review with all survivors, other factors that you should consider when assisting battered immigrants include: Anticipate and think through how a non-english speaking survivor will provide information to law enforcement when an interpreter is not present. If she is undocumented, she should not reveal her status, offer false documents or disclose her country of origin. In some circumstances, providing information about her undocumented status may jeopardize her. Think through ways to access help if she is stopped by INS agents. For example, if her abuser informs INS to pick her up, she should a l w a ys h a v e c e r t a i n telephone numbers available to arrange for care for her children and request legal assistance. Remind her that she has the right not to answer any questions, because the information she provides might be used against her in removal proceedings. Also, she has a right to a hearing before an immigration judge, and she shouldn t sign any papers without consulting with an immigration attorney. Encourage her to make copies of all her documents. She should consider giving them to trusted friends or finding other safe hiding places that she can easily access. These documents should include information useful to proving elements of her VAWA case, such as the abuse or good faith marriage. Grace Huang is the Public Policy Coordinator of the Washington State Coalition Against Domestic Violence. Grace s advocacy work also includes her participation as an advisory board member of the National Network on Behalf of Battered Immigrant Women. Ms. Huang can be contacted at , e x t o r grace@wscadv.org. The A-Files Publication and Reprinting The A-Files is produced by the Washington State Coalition Against Domestic Violence (WSCADV). For more information, contact Leigh Hofheimer, WSCADV Program Coordinator, at 1402 Third Avenue, Suite 406, Seattle WA 98101, phone: (206) x104, TTY: (206) , fax: (206) , or Leigh@wscadv.org. This publication was supported by funding from the Washington State Department of Social and Health Service, Children s Administration, Division of Program and Policy. Points of view in this publication are those of the authors and do not necessarily represent the official position or policies of the Washington State Department of Social and Health Services. The contents of this publication may be reprinted with permission of the Washington State Coalition Against Domestic Violence. Any reprinting must be accompanied by the following acknowledgement: This material was reprinted from the publication entitled Battered Immigrant Women and the Law: What Advocates Need to Know Post September 11, 2001, A-Files, Washington State Coalition Against Domestic Violence, Vol. 4. No. 2, pgs , June 2002, and must also include the name of the author and article of the section being reprinted. ()

8 !" *!+ Organizations that offer low-fee immigration legal assistance to domestic violence survivors: Northwest Immigrant Rights Project (NWIRP) offers confidential immigration-related legal advice and representation to immigrant survivors of domestic violence. NWIRP also provides training and written materials on immigration law, and gives referrals to private immigration attorneys. Call the Seattle office at (206) or the Granger office at (509) Some offices of Columbia Legal Services provide assistance to immigrant survivors of domestic violence in some immigration-related proceedings. Call (800) in Western Washington, (800) in Central Washington, and (800) in Eastern Washington. In addition, there are immigration legal services for individuals in the Vancouver/Portland area at Lutheran Family Services at (360) Organizations that offer technical assistance: Washington Alliance for Immigrant and Refugee Justice Western Washington: (206) , Eastern Washington: (509) , website: Washington Defenders Immigration Project [for criminal issues] Phone: (206) , NOW Legal Defense and Education Fund Immigrant Women Program Phone: (202) , website: Publications: Somewhere to Turn: Making Domestic Violence Services Accessible to Battered Immigrants: A How to Manual for Advocates and Service Providers, NOW Legal Defense and Education Fund, $30, website: Washington Public Assistance for Immigrant Victims of Domestic Violence, Northwest Justice Project, website: Review numerous publications from the Family Violence Prevention Fund. Phone: (415) , website: (

9 #$!", Advocates have an opportunity to push for change with law enforcement, prosecutor agencies and the Immigration and Naturalization Service (INS). Advocates can build partnerships with immigrant rights organizations (listed below) to improve community safety for battered immigrants. Working with allies to improve INS response to battered immigrants: Participate in the Immigrant and Refugee Network Against Domestic Violence, a network of the Washington State Coalition Against Domestic Violence (WSCADV). This network consists of diverse organizations and community members working with immigrant and refugee communities to end domestic violence through community advocacy and organizing. Contact Lupita Patterson at WSCADV, , ext. 113 for information. Participate in the National Network on Behalf of Battered Immigrant Women. Learn about current policies and trainings related to battered immigrant women or obtain technical assistance materials. Contact IWP@Nowldef.org for assistance. Participate in the Washington Alliance for Immigrant and Refugee Justice (WAIRJ). WAIRJ is a coalition of community groups, service providers, individuals, immigrant rights organizations, churches, and unions allied to advance the human and civil rights of immigrants. Contact WAIRJ at (206) or info@wairj.org. Improving law enforcement and prosecutor response to battered immigrants: Encourage law enforcement and prosecutor agencies to avoid undermining the trust of immigrant communities by: adopting explicit policies discouraging reporting of non-citizens to INS, avoiding joint enforcement operations with INS, including raids on neighborhoods and workplaces, and promptly addressing racist or anti-immigrant misconduct by law enforcement officers. Ask law enforcement and prosecutors to consider the impact and severe consequences of deportation. Individuals could face persecution, starvation, separation from children, or other serious deprivation in their homeland. Encourage police and prosecutors to establish liaisons with immigrant communities and develop specific policies that reflect immigrant communities concerns and the goals of public safety. Encourage police and prosecutors to meet with local immigrant organizations and community groups to explain the role of the police and immigrants rights under the U.S. legal system, while emphasizing that police serve and protect all communities, regardless of status or national origin. Ask immigrant crime victims to provide descriptions of their experiences to WAIRJ (see above) to document discriminatory conduct by law enforcement. ((

10 !" Washington State Coalition Against Domestic Violence Founded in 1990 by formerly battered women and their allies, the Coalition is a non-profit agency comprised of over 200 members. Our mission is to end domestic violence through advocacy and action for social change. The Coalition was organized to share resources, develop common strategies and strengthen community responses to domestic violence statewide. You can contact the Coalition through our website: or: Seattle Office Olympia Office rd Ave. 101 N. Capitol Way Suite 406 Suite 302 Seattle, WA Olympia, WA phone: phone: fax: fax: TTY: TTY: (-

11 WSCADV rd Avenue Suite 406 Seattle, WA NONPROFIT ORGANIZATION U.S. POSTAGE PAID OLYMPIA, WA PERMIT NO. (

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