Homeland Security Investigations Amy Valenzuela Supervisory Special Agent Immigration Options for Crime Victims

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1 Homeland Security Investigations Amy Valenzuela Supervisory Special Agent Immigration Options for Crime Victims

2 DHS Structure DHS Immigration & Customs Enforcement Secret Service Citizenship & Immigration Services Customs & Border Patrol Coast Guard Transportation Security Administration Homeland Security Investigations Enforcement & Removal Operations Vermont Service Center VAWA Unit 2

3 HSI has one of the broadest investigative jurisdictions of all the Federal law enforcement agencies. HSI does much more than just immigration violations : Customs Fraud Intellectual Property Rights Child Exploitation/Sex Tourism/Images of Child Abuse Child Pornography Identity and Benefits Fraud/Human Rights Violators Gang Investigations 3

4 Money Laundering/Financial Crimes/Bulk Currency Smuggling Weapons Smuggling/Export Enforcement/Counter- Proliferation Worksite Enforcement Human Smuggling Human Trafficking 4

5 Challenges for Undocumented Victims Fear/distrust of Law Enforcement Fear of deportation Isolation due to language & cultural differences Threats by offenders Safety concerns for family in home country Traumatic bonding (Stockholm Syndrome) Lack of resources 5

6 Background Victims may not have legal status in the U.S. and therefore may be reluctant to help in the investigation or prosecution of criminal activity for fear of removal from the United States. The T, U, and VAWA visas were created to strengthen the ability of law enforcement agencies to investigate and prosecute cases of trafficking, domestic violence, sexual assault and other crimes while offering protection to victims of such crimes. Provides a mechanism for victims to remain in the U.S. to assist in an investigation/prosecution of those who have perpetrated crimes against them. 6

7 Legal Basis Victims of Trafficking and Violence Protection Act, Pub. L , October 28, CFR and 8 CFR Trafficking Victims Protection Reauthorization Act, Pub. L (2003) Violence Against Women and Department of Justice Reauthorization Act, Pub. L , January 5, 2006 Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 Violence Against Women Reauthorization Act of

8 Visas for Victims These are Visas that allow beneficiaries to obtain lawful permanent residency, Green Card, through adjustment of status T Visas for victims of Severe Human Trafficking U Visas for victims of specific crimes who assist Law Enforcement VAWA Visas for DV victims married to USC or LPR For more information on Nonimmigrant status visit: 8

9 Trafficking vs Smuggling Smuggling Trafficking Purpose Obtain illegal entry into the US Recruiting, transporting, harboring or receipting persons by force or coercion for the purpose of exploitation Consent Consent to be smuggled May or may not have consented, or initial consent rendered meaningless by coercive or abusive actions of the traffickers Result Ends with arrival into the US Involves ongoing exploitation 9

10 How is Trafficking different from Smuggling? Trafficking & Smuggling: Similarities and Differences Trafficking Legal, illegal, or no border crossing Legal or illegal documents Documents Taken Coercion & repeated exploitation Restricted movement/control Commodity: an Individual Crime against an Individual $$$ Profitable Business Involving Humans Criminal Networks Smuggling Illegal border crossing Illegal documents (false or stolen) Voluntary Commodity: a service, movement Crime against the State

11 T Visa Eligibility Is or has been a victim of a severe form of trafficking in persons: Sex trafficking in which a commercial sex act is induced by fraud, force, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery 11

12 T Visa Requirements Physical presence in the U.S., American Samoa, Northern Mariana Islands, or a POE on account of such trafficking; Is or has been a Victim of a severe form of trafficking in persons (federal definition); Compliance with any reasonable request for assistance in the investigation or prosecution of acts of trafficking (or is under 18 years old); and The alien would suffer extreme hardship involving unusual and severe harm upon removal. 12

13 Adjustment of Status: T Visas 3 years physical presence or physical presence in U.S. for a continuous period during the investigation or prosecution of acts of trafficking and in opinion of the AG, the investigation or prosecution is complete, whichever period of time is less; Good moral character during period of nonimmigrant status; Compliance with reasonable requests for assistance and extreme hardship involving unusual and severe harm upon removal. 13

14 U Visa Eligibility 1. Victim of qualifying criminal activity who has suffered substantial physical or mental abuse as a result of having been a victim of the criminal activity; and 2. Qualifying Crime occurred in the U.S./violated U.S. law; and 3. Possesses information concerning the crime; and 4. Has been, is being, or is likely to be helpful to authorities in the investigation or prosecution of the crime. Note: I-918B Supplement certification is also required from criminal justice officials (Law Enforcement, Prosecutor, Judge or others *) 14

15 Victim Definitions Direct Victim: Generally defined as one who is directly and proximately harmed by qualifying criminal activity (direct victim). For a U Visa, must have suffered substantial physical or mental abuse as a result of the crime. Indirect victims (Criminal activity includes murder & manslaughter) - Example: Direct victims are deceased in murder and manslaughter crimes or victim not available or sufficiently able to help in investigation or prosecution - Then victim status passed to: spouses, children, if victim is under 21 parents, unmarried siblings under 18 Bystanders: Those who witness violent crime and suffer unusually direct injury (e.g. pregnant woman who witnesses violent crime and miscarries the fetus) 15

16 Definitions (cont) Culpable victims: Not eligible for U status if culpable for activity being investigated or prosecuted. Culpability does not apply to commission of criminal activity other than the one being investigated or prosecuted e.g. rape victim who was being smuggled or a smuggled alien subsequently kidnapped and assaulted (but the victim will need a I-192 Waiver) 16

17 Physical or Mental Abuse/Injury List of qualifying criminal activities found at 8 USC 1101(a)(15)(U) Not a list of specific statutory violation but a list of general categories of criminal activity Victim needs to be able to show proof of physical/mental abuse (USCIS determines) May occur during the commission of non-qualifying criminal activity (e.g. human smuggling, witness intimidation or drug crimes) Includes criminal activity that violates federal, state, and/or local statutes 17

18 Qualifying Crimes Involves one or more of the following or any similar activity in violation of Federal, State, or local criminal law:* Abduction Incest Rape Abusive Sexual Contact Involuntary servitude Sexual Assault Blackmail Kidnapping Sexual Exploitation Domestic Violence Manslaughter Slave Trade Extortion Murder Torture False Imprisonment Obstruction of Justice Trafficking (Human) Felonious Assault Peonage Unlawful Criminal Restraint Female genital mutilation Perjury Witness Tampering Hostage Taking Prostitution Other Related Crimes New for 2013, Stalking and Labor Fraud Includes attempts, conspiracy, or solicitation to commit any of the above. May include above crimes if committed during commission of non-qualifying crimes. 18

19 Information About Crime Victim must possess information about the criminal activity of which he or she is a victim Must have knowledge of the details (specific facts) that would assist in the investigation or prosecution When victim less than 16 years, or is incapacitated, parent, guardian or next friend may possess info (age on date of crime) Has been, is being, or is likely to be helpful in the investigation or prosecution of the crime (continued helpfulness) Does not need arrest, prosecution, or conviction 19

20 Petitioning Procedures Self-petitioning; can apply from outside U.S. Petitioners file Form I-918; fees waived upon request Principals apply for family members at same time or after granted status (derivatives, doesn t count against 10,000) Waiver (I-192) needed for all victim criminal activity (to include illegal entry, part of package going to USCIS) Petitions adjudicated by specially-trained unit, 10,000 statuses available per year Must have signed I-918B Supplement, LEA certification Derivatives should apply at same time as primary, need separate EAD request and separate I-192 Parents can apply on behalf of child victims, UDA parents can apply if USC child is victim 20

21 Benefits Employment Authorization Docs (EAD) when granted status May be paroled into US to assist with prosecution Referrals to NGOs/CBOs Can apply for adjustment after 3 years in U nonimmigrant status, U Visa good for 4 years Can apply for qualifying family members Annual cap of 10,000 per year (derivatives don t count) 22,000 cases backlogged as of July 2015 No public benefits like T Visa 21

22 Certification I-918B Certification by LEA mandatory for U Visa approval. Must be completed and signed by the head of the certifying agency or any person specifically designated by the head of the agency to sign such certifications. Who can sign? LE, Prosecutors, Judges or others *) (no black ink) Certification must have been signed within 6 months immediately preceding the submission of the petition package. Certification by LEA does not guarantee approval of the U-Visa from USCIS. 22

23 Review I-918B Certification is from a federal, state or local law enforcement official that demonstrates: The alien has been a victim of a qualifying crime; The criminal activity violated U.S. law or occurred within the U.S. or territories; The alien possesses information about the qualifying crime; The alien has been, is being, or is likely to be helpful in the investigation or prosecution of the criminal activity; There is no legal obligation for an agency to sign a certification, but an alien is ineligible for U status without one. Head of agency or designee must sign. 23

24 T Visa Victim of a severe form of trafficking in persons Form I-914 (Supplement B is optional but preferred) 5,000 statuses available per fiscal year Valid for 4 years but may be extended (hard) May apply for adjustment of status after 3 years (or earlier). Comparison U Visa Victim of qualifying criminal activity, including trafficking Form I-918 (Supplement B is required) 10,000 statuses available per fiscal year Valid for 4 years but may be extended (hard) May apply for adjustment of status after 3 years. Follow up letter from Certifying Agency 24

25 VAWA (DV) Visa 1. Have or had a qualifying relationship (legal marriage) with the abusive spouse, or, is a parent or child of the abuser. 2. Abuser must be a USC or LPR 3. Live or lived with the abuser (applicant must be able to show proof) 4. Been a victim of battery or extreme cruelty (proof needed) 5. Good moral character (applicant must prove last 3 years) 25

26 Spouse Good faith marriage VAWA Eligibility File within 2 years of divorce, death or removal of abusive spouse for DV Abused in U.S. or by USC/LPR while overseas with US Govt Parent of a child who was abused by USC Parent Parent Child is USC Reside with and abused by USC child (2 year limit applies) Child Child of USC abuser & under 21 (25 if delay caused by abuse) Reside with & abused by USC parent, abused in U.S./overseas with US Govt All must be of good moral character 26

27 Petitioning Procedures Self-petitioning; can apply from outside U.S. Petitioners file Form I-360; fees waived if requested and justified Approval means Deferred Action status, allows EAD (can request deferred action during process) Can apply for LPR Status (I-485) after specified time frame Petitions adjudicated by specially-trained unit No limit on VAWA Visas 27

28 Points of Contact Rudy Bustamante, Community Relations Officer Office: Cell: Marc Tetzlaff, Victim Assistance Specialist Office: Cell: SA Richard Regimballe, Parole Coordinator Office: Cell:

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