ADVANCED SELF PETITIONS AND U VISAS FOR ADVOCATES. Edna Yang Political Asylum Project of Austin

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1 ADVANCED SELF PETITIONS AND U VISAS FOR ADVOCATES Edna Yang Political Asylum Project of Austin

2 LEGAL ADVOCATE v. ATTORNEY Advice Advocacy Relationship with client Affidavit Documentation Confidentiality Conflict of Interest Advice Advocacy Submission of Immigration Documentation Affidavit Documentation Confidentiality Conflict of Interest Immigration History legal consequences

3 Requirements of a VAWA Self-Petition Battery or Extreme Cruelty Abuse inflicted by the United States Citizen or Legal Resident Spouse or Parent Good Faith Marriage Residence with the Abuser Good Moral Character

4 Be Aware of Potential Pitfalls The Self-Petitioning Process will eventually lead to legal permanent residency for your clients, so it is important to spot any issues that could cause problems at the adjustment of status stage early so you can prepare for them and so you can fully explain any possible problems and the subsequent consequences to your client.

5 Preliminary Questions Marital status? Immigration status of the abuser? If divorced or widowed, when? Are any of the children approaching 21? Have deportation/removal proceedings been instituted against either party? Have criminal charges been brought?

6 Cases Needing Special Attention ****These are the cases where full participation of an immigration attorney is essential to avoid putting client at risk**** RED FLAGS: Complicated Immigration History (previous deportation, numerous entries, false claims to citizenship) ANY Criminal Record Question on Fraudulent Marriage (Bigamy, Married for immigration benefit) Using fraudulent documents It is important to note and red flag any use of false documents because it can affect the applicant s ability to adjust her status to a legal permanent resident. There are VAWA waivers available that can be used to overcome many of these issues.

7 U VISA PURPOSES Law Enforcement overcome victim fear of detection/deportation encourage reporting and cooperation to create safer communities for everyone Humanitarian protect vulnerable victims assist domestic violence and other crime survivors

8 REQUIREMENTS Must be the victim of designated crime (see list) Suffered substantial abuse as result of crime Was OR Is OR Will Be helpful in: Investigation OR Prosecution Can t unreasonably refuse to help, unless a minor Law Enforcement must certify helpfulness

9 DEFINING OUR ROLES legal and advocate Severity of Harm Suffered Nature and Severity of Injury Inflicted Severity of Perpetrator s Conduct Duration of Infliction of Harm Permanent or Serious Harm to Appearance, Health, Physical or Mental Soundness Includes Pattern of Abuse (esp. DV) Admissibility to the U.S.

10 DEFINING ROLES (CONT.) ROLE OF THE LAW ENFORCEMENT AGENCY Determine crime occurred Determine applicant was victim Certify whether victim was OR is OR will be helpful ROLE OF USCIS Determine eligibility for U visa Determine admissibility to the U.S.

11 Case Study for Discussion #1 You are an advocate that works at a FV/SA shelter in a rural area. You are serving an immigrant survivor who you believe qualifies for VAWA relief as a Self- Petitioner. You have tried, but cannot locate a lawyer and the closest non-profit is 3 hours away. You have been to a number of trainings in VAWA.

12 Case Study for Discussion #1 QUESTIONS Should you file her VAWA application? What are the ramifications if you do or do not? Is your decision ethical? Why or why not? Does your decision/answer change depending on whether the non-profit can represent her.

13 Case Study for Discussion #2 You are an advocate for an immigrant survivor. Your client has an attorney representing her in her family and her immigration case for free as the client is indigent. They had a consultation the day before. The attorney has a signed release and calls you the next day and says she needs you to be the interpreter and translator in this case b/c the attorney doesn t speak Spanish and cannot afford the language line or any other interpreter. The court does not provide interpreters either.

14 Case Study for Discussion #2 QUESTIONS What do you do? Is this ethical? What is your specific role in this case? What do you do if the client asks you legal advice since she cannot understand the lawyer? What do you do if the lawyer asks you to change the client s mind about a decision?

15 Case Study for Discussion #3 You are a legal assistant/legal caseworker in a legal office. Your office is referred for intake for a client through a local shelter. You are going to meet with the client. The shelter believes that the client is U visa eligible, but the client does not want to report the abuse. She does want to know her legal options. You complete the intake an realize she may have many other avenues of relief, not just the U. You schedule a follow up with the client. The shelter advocate calls you and the attorney and states that she has reported the crime to the police and believes the U case should go forward.

16 Case Study for Discussion #3 - QUESTIONS What do you do? How do you preserve your relationship with the shelter? How do you make sure the client s needs/desires are met?

17 BREAK TIME!! Please be back in 10 Minutes

18 CONFIDENTIALITY ISSUES

19 History of VAWA 1996 Confidentiality Protections 1990 Battered Immigrant Confidentiality Not Effective Abusers Able to stalk victims using immigration authorities Convincing government personnel to disclose information about VAWA cases to abusers; endangering victims Providing information that undermined victim s immigration case Triggering arrests and enforcement actions at courthouses, shelters

20 Illegal Immigration Reform and Immigrant Responsibility Act of IIRAIRA Improved VAWA confidentiality Prohibited reliance on abuser/family member provided information Prohibitions on use and disclosure of information in VAWA immigration case Disciplinary sanctions and fines Access to public benefits for battered immigrants VAWA cancellation of removal

21 VAWA 2000 Allowed battered immigrants to obtain lawful permanent residency without having to leave the United States Helped spouses of military and state department employees Help for battered immigrants not covered by VAWA Domestic Violence Victim Waiver

22 VAWA 2000 Brought Further Help for Immigrant Victims A crime victim U visa to offering access to immigration protections of immigrant victims left out of VAWA 1994 Remedies for immigrant victims of sexual assault A T visa offering relief to victims of human trafficking Expansion of access to OVW funding for programs serving immigrant victims Added U visa victims to VAWA confidentiality

23 VAWA 2005 immigration relief to more DV victims In addition to the U visa option the following victims can newly self-petition Child abuse and incest victims have until age 25 to file VAWA self-petitions Elder abuse victims abused by USC son/daughter can self-petition SIJS no contact with abusive parent Adopted kids no 2-year custody

24 Three Prongs of VAWA Confidentiality Protections Prohibits disclosure of information (VAWA, T and U immigration relief) Cannot rely on perpetrator provided information to harm victim ANY victim (VAWA, T or U listed crime) Locational prohibitions Any victim

25 Prohibitions of Enforcement in Violation of VAWA Confidentiality DHS not to rely on information from an abuser or his family to harm a victim including removal or denial of her case DHS certification requirements imposed to assure that DHS did not rely on abuser or perpetrator provided information

26 Locational Prohibitions Immigration judge to dismiss case if any part of an enforcement action occurs at A shelter Rape crisis center Supervised visitation center Family justice center Victim services program or provider Community based organization Courthouse in connection with any Protection order case, child custody case, civil or criminal case involving or related to domestic violence, sexual assault, trafficking, stalking Mandatory training of all DHS officers

27 DHS Training Explanation 8 U.S.C (commonly referred to as the 384 confidentiality provision) prohibits disclosure of ANY information relating to an alien who is a VAWA self petitioner, VAWA cancellation, T or U visa applicants. The prohibition remains in effect until the application for relief is denied and all opportunities for appeal of the denial have been exhausted. In addition to DHS, it applies to family court officers, criminal court judges, and law enforcement officers Limited exceptions: legitimate law enforcement purpose Statistical purposes (without identifiers or locational information) Public benefit application purposes

28 VAWA Confidentiality Violations Consequences of violations Each violation Disciplinary action and/or $5,000 fine for the individual Dismissal of the immigration proceeding against the non-citizen Violations include Seeking or using information from a prohibited source Disclosing or permitting disclosure of information in or about any VAWA, T or U visa case Making a false certifications in a Notice to Appear

29 QUESTIONS? COMMENTS?

30 Edna Yang Political Asylum Project of Austin (PAPA) 314 E. Highland Mall Blvd. Suite 501 Austin, TX (512) x 202 ednay@papais.org