Immigration Remedies for Survivors of Domestic Violence. April 4, 2017

Transcription

1 1 Immigration Remedies for Survivors of Domestic Violence April 4, 2017

2 Introduction Immigrants can be particularly vulnerable to crimes like human trafficking, domestic violence and child abuse. Why? Language barriers, separation from family and friends, lack of understanding of U.S. laws, fear of deportation, fear of law enforcement, cultural differences. Congress created several forms of immigration relief for survivors of domestic violence, human trafficking and child abuse We are talking about the most common types of relief: VAWA Self Petitions and Battered Spouse Waivers and U Non-Immigrant Status (U Visas) 2

3 VAWA SELF PETITIONS AND BATTERED SPOUSE WAIVERS

4 4 Happy Marriage Scenario What normally happens? 1. Step 1: Establish a valid relationship File I-130 Petition for alien relative: United States Citizens (USCs) or Legal Permanent Residents (LPRs) may file Immigrant Relative Petitions (on Form I-130) for his/her spouse. 2. Step 2: establish eligibility for immigrant visa/lpr status through adjustment of status application (if here, I-485) or consular processing abroad (DS260) 3. Step 3: if the marriage is less than 2 years at the time of filing, LPR status gained through USC/LPR spouse is conditional The USC or LPR spouse must again cooperate with and submit documents to USCIS in order to remove the conditions. Thereafter, the former alien spouse has permanent LPR status. USC or LPR must cooperate with and provide proof to USCIS in order for alien (non-usc/non-lpr) spouse to receive legal permanent resident (LPR) status, as evidenced by a green card. An interview with immigration officials is required with both spouses participating.

5 What happens when there is domestic violence? Many batterers use their partner s immigration status as a means of controlling their victims. How? Failing to file immigration papers on behalf of a spouse or family member Filing an I-130 family-based petition and later withdrawing it Threatening to contact immigration officials Contacting immigration officials and/or proving false information Why? Participation of the spouse is required at numerous stages: Filing I-130, Filing I-485, Filing to Remove Conditions, Appearance at USCIS interview.

6 6 What can Survivors do? Violence Against Women Act Congress enacted & subsequently has reauthorized legislation that provides avenues for abused men & women to obtain LPR status without their abusive spouse s cooperation.

7 7 VAWA Self-Petition VAWA Self-Petition filed with Form I-360 If the client/self petitioner does not have status Who can file? Abused spouses of USCs and LPRs Non-Abused spouses of USCs or LPRs whose children are abused Abused children of USCs and LPRs (under 25) Abused parents of USC

8 VAWA Self Petition Requirements for ABUSED SPOUSES 1. Marriage to a USC or LPR or divorced from USC or LPR within the past 2 years; 2. Alien or alien s child subject to battery or extreme cruelty during the marriage; 3. Entered marriage in good faith; 4. Joint residency with abuser; and 5. Good Moral Character as defined by INA 101(f). 8

9 9 1. Married to a USC or LPR or divorced from USC or LPR within past 2 years You must prove the existence of a valid marriage. Marriage is valid if it is recognized in the place where it was performed Post U.S. v. Windsor, 133 S. Ct. 2675, marriage includes legal same-sex marriages. Includes bigamous spouses if in good faith Evidence: Passports, birth certificates, green card, driver s license, etc. Marriage license Divorce Decrees.

10 10 2. Battery or extreme cruelty Includes physical violence or threats of physical violence, acts which result or threaten to result in physical or mental injury, psychological or sexual abuse or exploitation; and Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. Evidence: Petitioner s affidavit & others supporting affidavits. Orders of Protection & Court documents (ACS, Family, Criminal, Supreme) Police reports (DIR) Medical reports Photos Affidavits of counselors or therapists.

11 11 3. Entered the Marriage in Good Faith The marriage may not have been entered into for the primary purpose of circumventing the immigration laws (sham marriage). In other words, the marriage can not have been entered into solely for the purpose of obtaining immigration relief. Evidence: Affidavit of Petitioner & supporting affidavits of others. Children born of the marriage Correspondence such as letters, text messages, cards, & s between Petitioner & his/her USC or LPR spouse Photographs (dating, marriage, subsequent relationship) Joint leases, tax returns, mortgages, bank statements, utility bills Life insurance policies, retirement accounts

12 4. Joint Residency With Abusive Spouse The applicant must have resided jointly with the abuser for some period of time after the date of marriage. Evidence: Correspondence addressed to both parties at same address. Utility bills. Tax returns. Leases including both parties. Letters from landlord or neighbors. Medical or school records. 12

13 5. Good Moral Character INA 101(f): Not strictly defined but excludes persons who: Are a habitual drunkard; Engaged in prostitution within the last 10 years; Engaged in commercialized vice; Involved in smuggling; Committed acts of moral turpitude (not political crimes, petty offense, or under 18 and more than 5 years ago); Convicted 2 or more offenses for which the aggregate sentence is 5 years or more; Convicted or Admitted to violation laws relating to controlled substances (not for < 30 grams of marijuana); Earned income principally from illegal gambling; Given false testimony for the purposes of obtaining an immigration benefit; Incarcerated for more than 180 days as a result of a conviction; Convicted of an aggravated felony; Engaged in polygamy; One who at any time has engaged in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom).

14 VAWA exceptions: 1. If the act or conviction is waivable for the purposes of determining whether the self-petitioner is admissible or deportable; and 2. The act or conviction was connected to the abuse suffered by the self-petitioner. What do you do if your client has any convictions? 1. gather as much evidence of the underlying charges including certificates of disposition. 2. Talk to an immigration specialist, terms like aggravated felony and crime of moral turpitude are terms of art. USCIS requires criminal conviction checks from every jurisdiction in which the applicant has lived for at least 6 months in the last three years. 14

15 15 Standard for Adjudication VAWA applications must be evaluated using an any credible evidence standard (INA 240A(b)(2)(D)) despite contrary codes of federal regulation that have yet to be updated such as CFR 216.5(e)(3) Who reviews the application? Vermont Service Center; created in 2000 Adjudicates all VAWA self-petitions/battered Spouse Waivers (also U & T visas) Officers specially trained on domestic violence and collaborate on fraud detections

16 16 What forms do I file? G-28 (attorney form) I-360 (no fee) Familiarize yourself with the forms. All forms are available on the USCIS website. Always check to make sure the forms you are filing are the most current version of the form. All of the forms also have instructions, reading through these forms before you prepare them is helpful.

17 17 Approved Self-Petitions Victims with approved self-petitions receive deferred action. Deferred Action Protection from removal proceedings & permission to apply for work authorization on form I-765 pursuant to 8 CFR 274a.12 (c) (14). May be eligible for some public benefits (food stamps/medicaid) with approval notice.

18 VAWA Self-Petitioner Adjustment of Status ( AOS ) on Form I-485. Approved Self-Petitioners, married to LPRs, may apply for AOS when visa is available Check U.S. State Dep. s visa bulletin. If abusive LPR spouse had previously submitted a Petition for Alien Relative on Form I-130, the Self- Petitioner may capture the priority date from the I-130 for visa availability. Self-Petitioners, married to USCs, may file for LPR status on Form I-485 concurrently with form I-360 No wait for visa availability. Self-Petitioners married to USCs can also file for work authorization on form I-765 concurrently with Form I-485 pursuant to 8 CFR 274a.12 (c) (9). 18

19 19 Forms for Adjustment of Status I-485 and 2 photographs G-325A I-864W I-693. I-765 if filing the I-360 concurrently or if client needs work authorization Note: There are fees for the I-485 which can be waived based on inability to pay (8 CFR 103.7(c)(1), USCIS Policy Memorandum dated 03/13/2011; PM ). Use Form I-912 to request fee waiver.

20 20 Additional Considerations In order to apply to adjust status, one must be admissible to the US. Grounds of inadmissibility are found in INA 212(a) Pay special attention to how your client entered the US, if he/she left the US and returned again. Accruing unlawful presence and leaving the United States can trigger certain bars to adjustment of status which may be waivable. Convictions which may affect the ability to adjust. This is a different analysis than good moral character, though some issues overlap.

21 Waivers for Grounds of Inadmissibility There are waivers available for several grounds of inadmissibility Most waivers require a showing of extreme hardship to a USC or LPR parent or spouse (in some cases, child) There are distinct waivers only available to VAWA selfpetitions, some of which allow a self-petitioner to show hardship to herself and/or her child(ren)

22 22 Battered Spouse Waivers If the abusive spouse has started the immigration process: Waiver of joint application for removal of conditional LPR status pursuant to INA 216(c)(4)(C)). Filed on Form I-751. There is a fee for this petition which may be waived based on inability to pay (8 CFR 103.7(c)(1). Use Form I-912 to request a fee waiver. Requirements: 1) Conditional LPR Status; 2) Alien or alien s child subject to battery or extreme cruelty; 3) Entered marriage in good faith.

23 23 1) Conditional LPR status Evidence: Conditional Green Card. Approved I-485, adjustment of status application. 2) Subject to Extreme Cruelty: same standard 3) Entered Marriage in Good Faith: same standard

24 U NON IMMIGRANT STATUS U VISAS

25 25 Introduction to U Visas A U Nonimmigrant Visa is for victims of statutorily enumerated crimes who cooperate in the criminal investigation/prosecution of the crime. The term visa is a misnomer. Applicants receive U Nonimmigrant Status. If s/he has a derivative outside of the US, that person will receive a visa.

26 26 Why? Congress made findings that: Immigrant women and children are often targeted to be victims of crimes committed against them in the United States, including rape, torture, kidnapping, trafficking, incest, domestic violence, sexual assault, female genital mutilation, forced prostitution, involuntary servitude, being held hostage or being criminally restrained. All women and children who are victims of these crimes committed against them in the United States must be able to report these crimes to law enforcement and fully participate in the investigation of the crimes committed against them and the prosecution of the perpetrators of such crimes.

27 27 Purpose Create a new nonimmigrant visa classification will facilitate the reporting of crimes to law enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status. It also gives law enforcement officials a means to regularize the status of cooperating individuals during investigations or prosecutions. Providing temporary legal status to aliens who have been severely victimized by criminal activity also comports with the humanitarian interests of the United States.

28 28 U VISA STATUTORY LIST OF CRIMES Abduction Abusive Sexual Contact Blackmail Domestic Violence Extortion False Imprisonment Felonious Assault Female Genital Mutilation Fraud in Foreign Labor Contracting Hostage Taking Incest Stalking Involuntary Servitude Torture Kidnapping Trafficking Manslaughter Unlawful Criminal Murder Restraint Obstruction of Justice Witness Tampering Peonage Perjury Prostitution Rape Sexual Assault Sexual Exploitation Slave Trade

29 29 U VISA STATUTORY LIST OF CRIMES Includes attempt to commit, conspiracy to commit, or solicitation to commit any crime on statutory list Substantially similar crimes may also qualify USCIS decides if a crime listed on the certification is a qualifying crime

30 U visa Requirements INA 101(a)(15(U), 214(p), 8 CFR ) Substantial physical or mental abuse as a result of having been a victim of one of the following criminal activities: 2) The immigrant possesses information concerning that criminal activity; 3) Helpfulness to Law Enforcement Agency; 4) the criminal activity violated US laws or occurred in the U.S.; 5) Personal Statement/Affidavit of Victim. 30

31 1) Substantial physical or mental abuse Regulations provide a broad definition of substantial abuse: impairment of emotional or psychological soundness. Applicant s declaration is the main document that USCIS will review, other documentation of your client s suffering should be included where at all possible. 8 C.F.R (b)(1). Evidence in support of abuse or harm should include details re: the nature of the injury, the severity of the perpetrator s conduct, the severity of the harm suffered, the duration of the infliction of harm, any permanent or serious harm experienced, health and physical or mental soundness, and any aggravation of a victim s pre-existing conditions. 31

32 Substantial physical or mental abuse (cont.) Proof of this (besides victim s Affidavit) may include: Medical Reports Photos Police Reports Court Documents, Orders of Protection Counselor/psychologist/therapist letter Other letters/affidavits of support 32

33 2) Possesses information concerning that criminal activity Where your client is the direct victim of the crime, this is not difficult and often overlaps with substantial physical/mental abuse proof. Evidence: Victim Affidavit Police Reports Court Documents Counselor/psychologist/therapist letter Other letters/affidavits of support 33

34 34 3) Helpfulness to Law Enforcement Certification on Form I-918 Supplement B Must state: The official signing the certificate is authorized to do so; The agency is a federal, state, or local law enforcement agency, prosecutor, judge, or other authority having responsibility for the detection, investigation, prosecution, conviction, or sentencing of a qualifying criminal activity; The petitioner has been a victim of a qualifying criminal activity; Petitioner possesses information regarding that activity; Petitioner has been, is being, or will likely be helpful to the investigation; and The criminal activity violated U.S. law, or occurred within the United States, or its territories and possessions

35 35 Who Can Certify A Certifying Official from a Certifying Agency: Certifying agency means a Federal, State, or local law enforcement agency, prosecutor, judge, or other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity. This definition includes agencies that have criminal investigative jurisdiction in their respective areas of expertise. Certifying official :(i) The head of the certifying agency, or any person(s) in a supervisory role who has been specifically designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf of that agency; or (ii) A Federal, State, or local judge.

36 Common Certifying Agencies in New York City NYPD District Attorney s Office Administration for Children s Services Family Court Criminal Court 36

37 4) Criminal activity violated US laws or occurred in the U.S. 37 This information must also be included in Form I-918 Supplement B per 8 CFR Best Practice: include a copy/copies of relevant statute/s.

38 38 5) Personal Statement/Affidavit Must be included Make sure to include information regarding all legal requirements per INA 101(a) (15)(U). In particular, pay special attention to the harm element Try to make affidavit as internally consistent as possible, and address any inconsistencies may be due to PTSD, etc. If you cite a document in affidavit, be sure to include doc in application. Or, explain why it s unavailable in the affidavit. Make sure the affidavit is consistent with documentation

39 39 Eligible U Visa derivative family members INA 101(a)(15)(U)(ii) & 8 CFR (a)(10). For Petitioners 20 yrs. old & younger: derivatives include: spouse, children, parents, & unmarried siblings under 18. For Petitioners 21 yrs. & older: derivatives include spouse & children. Who is a child? Unmarried/Under 21 Must be under 21 at the time of filing Child should remain unmarried until adjustment

40 40 Excluded from Derivative Status A qualifying family member who committed the qualifying criminal activity in a family violence or trafficking context which established the principal alien s eligibility for U nonimmigrant status shall not be granted U-2, U-3, U-4, or U-5 nonimmigrant status. 8 CFR (f)(1).

41 41 What forms do I file? Familiarize yourself with the forms. All forms are available on the USCIS website. Always check to make sure the forms you are filing are the most current version of the form. All of the forms also have instructions, reading through these forms before you prepare them is helpful.

42 42 Forms for Principle Applicant G-28 (attorney form) I 918: This is the substance of the U Nonimmigrant Status Application Part 3, Questions 1-22: Yes answers require an affidavit of explanation. Parts to pay special attention to: Entries into the US (EWI?), multiple entries, Valid Travel Documents, Arrests/Crimes of Moral Turpitude I 918 Supplement B: this is the certification. You can not sign/alter the form. You must submit the original. I 765: Form I-918 includes a question regarding employment authorization; check yes. In the past, this sufficed for the principle applicant, however, because of wait times, we advise filing a separate I-765 for the principle applicant based upon deferred action.

43 43 Forms for Derivatives If the client has any children who are also without status, you will file a I 918 Supplement A on their behalf. What gets filed in addition to the Supplement A? A G-28 for each derivative I-765 if present in the US Fee waiver (I-912) if needed I-192 if needed 2 passport photos Valid travel documents

44 44 I-192, Application for Advance Permission to Enter as Nonimmigrant U visa petitioners must file Form I-192 to request waivers of inadmissibility issues listed under INA 212(a). USCIS has discretion to waive all inadmissibility grounds for U Visa Petitioners except Nazi persecutions, genocide, acts of torture, extrajudicial killings if DHS determines it s in public or national interest. INA 212(d)(14), 8 CFR VAWA 2013 specifically exempts U Visa applicants from the public charge grounds of inadmissibility

45 Common forms of inadmissibility Many U applicants will trigger inadmissibility for being present without admission or parole or for unlawful presence and other inadmissibility issues arising from being undocumented. Examples: Entry without inspection; Use of false documents; Multiple arrests/convictions; Crimes of moral turpitude; Alien smuggling; Unlawful presence Unlawfully present more than 180 days, but less than one year, and then departed 3 year bar; INA sec (a)(9)(B)(i)(I) Unlawfully present more than one year, and then departed 10 year bar; INA sec. 212(a)(9)(B)(i)(II) Unlawful presence plus EWI permanent bar; INA sec. 212(a)(9)C)

46 46 Intent behind the waivers Congress targeted the most vulnerable victims of crimes, especially the undocumented, because they are the most afraid to access justice for fear of removal. Denying U visas because applicants are undocumented undermines the purpose of the U visa because victims will not be willing to report crimes for fear of deportation. It is therefore generally in the national and public interest to grant waivers to those whose inadmissibility is directly connected to being undocumented.

47 47 How to demonstrate public interest? Cooperation with authorities (especially in open cases) Good conduct/reformed; Lack of arrests, civic engagement How has the applicant or their children contributed to the community? Extenuating circumstances; Hardship to the USC family members Juxtapose the applicant s and applicant s children s situation and needs in US against what would happen if they are returned to the home country; The impact of loss of access to US courts and criminal justice system. For example: ability to obtain and enforce orders of protection; Connections the perpetrator or perpetrator s family has in the home country and risk that application &/or applicants children would be harmed

48 48 I-912, Request for Fee Waiver Form I-192 Fee of $585 can be waived pursuant to INA 245(l)(7). You will also use this form to request a fee waiver for the filing of the I-765 (employment authorization) for any derivatives present in the US. You may need to provide a supplemental affidavit or documentary evidence proving income (particularly if the client is receiving a meanstested benefit for herself or children).

49 49 U-1 Visa Cap Reached for 2017 Only 10,000 U visas issued each year Processing times as of 3/2/17 (June 9, 2014) Until U-1 visas may be issued again on 10/01/17 for fiscal year 2018, USCIS will issue Deferred Action (DA) for Petitioners otherwise eligible for U visa and also place Petitioners on U visa waitlist. Petitioner may apply for EAD based on DA.

50 50 Duration of U Visa Status U Visas are issued for a period of 4 years pursuant to INA 214(p)(6) and (8) CFR (g)(1). U visa holders may apply for LPR status after 3 years. INA 245(m). Client will need to demonstrate continuous presence in the United States for three years No absences greater than 90 days/180 days total Will need to show presence through documentation advise clients to maintain records.

51 Cultural Competency The client s comfort with you and trust in you is crucial to your ability to represent them Be aware of one s own cultural worldview and cultural differences. Understand that Culture shapes an individual s perception of, and reaction to, violence; Culture can directly impact an individuals ability to access help and support services; Culture can directly impact an individuals willingness to access help and support services; Culture can impact someone s belief/view of the legal system;

52 Issues that may come up in the interview Minimizing or erasing the abuse Having difficulty remembering Disorganized thoughts/ Going off on tangents Language barriers Speak with the interpreter in advance about how they will interpret; Explain to your client who the interpreter is; When using the interpreter, still speak to your client; If you think there is a miscommunication or mistranslation, say something; Be wary of idioms Judgment Resistance in providing information. Talk to your client, explain why you are asking certain questions.

53 Legal Remedies For Battered Immigrants 53 USC or LPR (Has Status) Married to USC or LPR VAWA Self Petition (I 360/I 485) Immigration Undocumented Unmarried If Victim of Qualifying Crime, may be eligible for a U Visa Status Married to Spouse without USC or LPR Status If Victim of Qualifying Crime, may be eligible for a U Visa Conditional Resident Battered Spouse Waiver (I 751)

54 54 Useful Websites To inquire about a specific T, U, or VAWA case, contact VSC by phone or . Phone: (802) specific to VAWA cases: hotlinefollowupi360.vsc@dhs.gov specific to T and U cases: hotlinefollowupi918i914.vsc@dhs.gov You must become a member, but it s free & easy. search for visa bulletin

55 55 Amanda Beltz Acting Associate Director Matrimonial and Family Law Unit (212)