Cultural Perspectives Panel

Transcription

1 Cultural Perspectives Panel ~~~~~ Fatuma Hussein Rashida Mohamed Olga Alicea Barbara Taylor Dolly Barnes Moderated by: Holly Stover

2 WABANAKI TRIBES OF MAINE Domestic Violence and Sexual Assault Services Aroostook Band of Micmac s Family Support Services Maliseet Domestic Violence & Sexual Assault Program Penobscot Nation Domestic Violence and Sexual Assault Services Passamaquoddy Tribe at Indian Township Passamaquoddy Peaceful Relations Aroostook Band of Micmac, Family Support Services, 7 Northern Road, Presque Isle, ME Office: 207/ or 800/ Fax: 207/ Maliseet Domestic Violence and Sexual Assault Program, 690 Foxcroft Road, Houlton, ME Office: 207/ Hotline: 207/ Fax: Penobscot Nation, Domestic Violence & Sexual Assault Services, 12 Wabanaki Way, Indian Island, ME Office: 207/ Hotline: 207/ Passamaquoddy Peaceful Relations, P O Box 343, Perry, ME Office: 207/ Ext 266 Hotline: Fax: 207/

3 LEGAL ISSUES FOR IMMIGRANT VICTIMS OF DOMESTIC VIOLENCE, CRIMES AND TRAFFICKING Important Points: There is a lot of information on this topic. There are a few important things to bring out of this presentation: Recognize there are additional factors that arise when a noncitizen is the victim of domestic violence. This will affect how the victim works with law enforcement. Don t call Immigration first. The victim has been told by her abuser if she calls the police she will get deported. This will make it more difficult to get the victim to trust you, seek safety, or cooperate in a criminal investigation. You don t need to know all of the details about VAWA, U and T visas. You only need to recognize the issues and refer victims to legal assistance. For U and T cases, you only need to sign a law enforcement certificate; you don t file the application for the victim. You don t need to decide if the victim meets all the requirements Immigration will decide that. Contact ILAP or another immigration lawyer for assistance. If the victim qualifies for a visa she will need a lawyer to help her file the application. Immigration will not prepare the application or documentation for her, they only adjudicate the applications. The Immigrant Legal Advocacy Project provides free and low fee immigration services to individuals living in Maine, including VAWA, U and T cases. Immigrant Legal Advocacy Project (ILAP) 309 Cumberland Avenue, Suite 201 Portland, Maine Phone: , Fax: Cumberland Avenue, Suite 201 P.O. Box Portland, Maine ph fax

4 I. GOVERNMENT AGENCIES IMMIGRATION BASICS A. Department of Homeland Security (DHS): This agency was created by the Homeland Security Act of 2002 and is comprised of many federal agencies including the three agencies that were formerly Immigration and Naturalization Services (INS): U.S. Citizenship & Immigration Services (USCIS): This agency adjudicates immigration petitions and applications including green cards, citizenship, and work permits. Immigration and Customs Enforcement (ICE): This agency handles investigations, detention and removal (deportation) of noncitizens. ICE also has the authority to grant a noncitizen deferred action to delay their deportation. Customs and Border Protection (CBP): This agency handles customs and border issues. B. Department of State (DOS): This agency issues nonimmigrant and immigrant visas to noncitizens that live abroad and are coming to the U.S. II. SOURCE OF LAW A. Immigration and Naturalization Act (INA): 8 U.S.C. 1101, et seq. B. Code of Federal Regulations: 8 C.F.R , C.F.R. 40.1, et seq. III. IMMIGRATION STATUS A. Citizens: There are several ways an individual may become a U.S. citizen: Birth: Persons born in the U.S. are citizens. Acquisition: Citizenship may be acquired at the time of birth through one or both parents. This complicated determination depends upon many factors including the law in effect at the time of birth and how much time the parent(s) spent living in the U.S. Derivation: Citizenship can be derived at the time a parent naturalizes. This depends upon several factors including the age of the child at the time the parent naturalizes. Naturalization: An individual can naturalize after meeting certain requirements, including a period (usually five years) of permanent resident status. B. Noncitizens: Noncitizens are foreign born individuals who are not citizens. Under the INA, there are two categories of noncitizens: non-immigrants and immigrants. 2

5 Non-Immigrants: Those individuals that are in the U.S. temporarily. These visas have letters from A to V. Some common types of non-immigrants include: B-2 Visitors F-1 Students H-1B Professional workers H-2a Short term agricultural workers H-2b Short term non-agricultural workers J-1 Exchange visitors Immigrants: Those individuals that are in the U.S. with the intent to stay here permanently. The INA defines an immigrant as every alien except an alien who is within one of the following classes of nonimmigrant aliens. INA 101(a)(15); 8 U.S.C. 1101(a)(15). Permanent Residents ( green card holders): The paths to permanent residency are very limited. Most people become permanent residents through family or employment. Other ways include: refugees and asylees, the diversity lottery, registry for individuals in the U.S. since 1972, and some country specific laws for individuals meeting specific requirements. Refugees and Asylees: Those individuals who fled from their home countries and have a well-founded fear of being persecuted by their governments because of race, religion, nationality, political opinion or social group. Refugees apply for refugee status abroad and are resettled in the U.S. The U.S. signed a UN treaty agreeing that it will take a certain number of refugees each year. Asylees come to the U.S. some other way, typically using a nonimmigrant visa, and then apply for asylum status from within the U.S. Both refugees and asylees may apply for permanent resident status one year after receiving asylee/refugee status. Other: Those in the process of applying for status: Those who have applied for an immigration status and are waiting for a decision. This may be an application filed affirmatively with USCIS or in removal proceedings in front of an immigration judge. Temporary Protected Status (TPS): Those from countries that DHS has designated for TPS status due to a civil war or natural disaster. To qualify, an individual must have been present in the U.S. at the time of designation and must meet other requirements. TPS is a temporary status that ends when DHS determines it is safe for people to return to their home country. TPS does not lead to permanent residency. Undocumented: Those who do not currently have immigration status. They may have entered the U.S. without a visa or they may have fallen out of status since they arrived. Someone who is undocumented may actually qualify for legal status. Examples include: domestic violence victims, children who have been abused, neglected or abandoned, those who qualify for asylum or temporary protected status. 3

6 IV. TYPES OF IMMIGRATION DOCUMENTS: There are many different types of immigration documents. The important thing to know is that it is often difficult to determine someone s immigration status by looking at their documents. A. Certificate of Naturalization: 4

7 B. I-551 Permanent Resident Card (there are many different versions): Front of Current Permanent Resident Card Back of Current Permanent Resident Card Front of Previous Permanent Resident Card Back of Previous Permanent Resident Card 5

8 C. Employment Authorization Document (EAD). The EAD card or work permit lists a category code (such as C8) to indicate why that individual is authorized to work. Front of Current EAD Card Back of Current EAD Card D. I-94 Arrival Departure Card. Most non-immigrants are given an I-94 card upon arrival at the airport. The card usually (but not always) has a stamp showing the visa type and permitted length of stay. An expired I-94 card does not mean the person is out of status as he or she may have filed an application to change or extend status. A refugee is also given an I-94 card when he/she enters the country. This card does not expire. E. Other letter or document. Examples include but are not limited to: form I-797 USCIS application receipt notice, Immigration Judge Order, and Immigration Court hearing notice. 6

9 Some individuals may not have a document to prove their status (for example, if they have filed an application but have not received a filing receipt). V. THE PROCESS OF APPLYING FOR IMMIGRATION STATUS A. Non-Immigrants. An individual can apply for a non-immigrant visa with the Department of State at the U.S. Consulate abroad. If approved, a visa is placed in his/her passport, allowing admission to the U.S. within a certain time period. Sometimes the visa will permit multiple entries and other times only one. At the airport, a CBP officer will provide the individual an I- 94 card with a stamp that states the type of visa and the length of stay in the U.S. A nonimmigrant may apply to change or extend status once in the U.S. C. Permanent Residents. For family-based cases, there are two steps to obtaining permanent residency: 1. Visa Petition. The petitioning family member first must file a visa petition with USCIS. This is to prove the family relationship. If it is a marriage-based petition, they must prove that they have a good faith marriage. Once the visa petition is approved, the beneficiary of the petition may apply for legal permanent residency. 2. Application for Permanent Residency. The beneficiary of a visa petition applies for permanent residency and must prove she is not subject to any bars. During this stage, the petitioning family member must submit an affidavit of support to prove an ability to support the intending immigrant. Adjustment of Status. In some cases, an individual who is already in the U.S. may apply for adjustment of status to become a legal permanent resident without leaving the country. A person who entered without a visa or who is no longer in legal status will usually not qualify for adjustment of status. Consular Processing. Those living outside the U.S. and those who do not qualify for adjustment of status must apply for an immigrant visa at the U.S. Consulate abroad. If the individual spent time out of legal status in the U.S., that person will not be allowed to come back for a period of three or ten years, unless they qualify for a special waiver. 7

10 DYNAMICS OF DOMESTIC VIOLENCE AND IMMIGRANT VICTIMS Domestic violence is about power and control. When the victim is not a US citizen, the batterer will use immigration status as a means of control, even if the victim has legal status. There are three scenarios we most often see: US Citizen Abuser and Immigrant Victim The couple may have met abroad, over the Internet or while the immigrant was traveling, studying or working in the U.S. In some cases, the victim comes on a fiancé visa and the abuse begins after she arrives in the US. An immigrant does not automatically get legal status upon marriage to a U.S. citizen. The US citizen has the language, community, connections, and understanding of our culture and will use this to isolate the immigrant victim. The US citizen has control over the immigration process. He must file the visa petition and the affidavit of support in order for his wife to obtain status. The abuser will instill a fear of deportation in the victim. He will convince her that she has no legal rights in the U.S. and that she will get deported if she calls the police or participates in the legal process. He will tell her that she will be separated from their US born children if deported. The victim may come from a country where domestic violence is tolerated and/or police are corrupt and do not protect victims. So she will be fearful of contacting the police or cooperating in a legal case. Both Abuser and Victim are Refugees In many cases, the abuser and victim were married before coming to the United States and came together as refugees. There may be a perceived power imbalance if the abuser was the principle refugee in the case. He may tell his wife she is only here because of him, although this is not true because, once in the U.S., their immigration cases are independent of each other. The abuse may have started back home where laws and customs don t protect victims. There may be a lack of acceptance of domestic violence within the refugee community. The victim may want to avoid having the abuser deported. Domestic violence is a deportable offense and even a refugee can be deported. Both Abuser and Victim are Undocumented The abuse may have started back home where the laws don t protect victims and/or police don t enforce the laws. The victim may not have come to the U.S. willingly; her abuser may have forced her. The victim will fear deportation if she calls the police or cooperates in the legal process. She will fear separation from her children, especially if they were born in the U.S. The victim might fear the abuser will also be deported if he is convicted of a domestic violence offense. Back home she would face an even greater danger if he blames her for getting him deported. 8

11 VISAS FOR VICTIMS OF DOMESTIC VIOLENCE, CRIMES AND TRAFFICKING VAWA: For spouses, children and parents of legal permanent residents or US citizens. Background: The Violence Against Women Act (VAWA) was passed in 1996 and has been amended several times. It provides an avenue for some noncitizen domestic violence victims to self-petition for legal permanent residency. VAWA is available to spouses, children and parents of abusive US citizens and legal permanent residents. Purpose: The purpose of VAWA was to address the problem of abusers who refuse to file visa petitions on behalf of their spouses; and victims who are afraid to leave their abusers for fear of deportation. Often a victim is still in legal status at the time of marriage. When her spouse refuses to file the visa petition, she falls out of legal status and is often married for years and has children born in the U.S. but never adjusts her status. This lack of status or ability to work makes it difficult for a victim to become self-sufficient or to move out on her own. VAWA allows a victim to leave her abuser and file for permanent status on her own. VAWA Relief, an immigrant victim of domestic violence may self-petition to obtain legal permanent residency (her green card ) on her own, without her spouse. Privacy Protections: VAWA prohibits immigration from using information from an abuser to start an investigation or to deport someone. They are also prohibited from sharing any information in a VAWA application. Requirements for VAWA: In order to qualify under VAWA, an applicant must prove the following: 1. Spouse of U.S. citizen or lawful permanent resident (note: VAWA is also available for children and parents of abusive citizens and permanent residents). o Even if they are already divorced or the abuser is dead (within two years). o Even if it was a bigamous marriage and therefore not legal, as long as the victim didn t know about this at the time of marriage. o Even if the abuser has lost his immigration status because he was deported for a domestic violence conviction or for violating a protection order. 2. Battered or subjected to extreme cruelty (this includes emotional abuse) by U.S. citizen or permanent resident spouse in the United States; Evidence includes: protection orders, police reports, medical records, as well as the victim s own statement and affidavits of witnesses. 3. Good faith marriage to the abuser; Evidence includes documents showing a marital relationship such as joint bank accounts, bills, joint health or car insurance policies, photos, children s birth certificates, letters from friends and witnesses, etc. 9

12 4. Good moral character. This can be an issue if they get mutual protection orders, if the abuser calls DHHS on the victim, or if the victim has a substance abuse problem or criminal history. Other types of VAWA Relief: o Cancellation of Removal: This is for domestic violence victims who are placed in removal ( deportation ) proceedings. An applicant must prove she has been in the US for three years. She may qualify even if she was not married to the abuser, as long as they have children together. o Conditional Residents: Someone who gets her green card through a spouse during the first two years of marriage normally has to file a joint application with her spouse in order to remove the condition and make her residency permanent. There is a VAWA provision so a domestic violence victim can file a self-petition to make her residency permanent on her own. U VISAS: For certain crime victims. U Visas were created under the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) to allow noncitizen victims of certain crimes to obtain a U Visa which gives them temporary legal status that can lead to permanent residency. The purpose of this law was to encourage victims to come forward and report crimes. It was also meant to protect victims and give them legal status so they may remain in the US to assist the prosecution and to rebuild their lives. A U visa is valid for four years and can lead to legal permanent residency. Requirements for a U Visa 1. The victim must have suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity, including but not limited to: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes. 2. The victim must possess information concerning that criminal activity. 3. The victim must show she has been helpful, is being helpful or is likely to be helpful to a Federal, State, or local law enforcement official; to a Federal, State, or local prosecutor; to a Federal or State judge, to the Department of Homeland Security; or to other Federal, State, or local authorities investigating or prosecuting the criminal activity; 10

13 Needs to have a Certification signed by a law enforcement official, indicating the potential criminal statutes implicated, and certifying that the noncitizen victim or victim s parent is being, has been, or is likely to be helpful in the investigation. A U visa is still available even if the case is over, if charges have not yet been pressed, or if no charges will be pressed because the abuser is no longer in the state or there is insufficient evidence to get a conviction. Congress intended for the U visa to be broad and generous to meet the objective of encouraging victims to report crimes and cooperate in the criminal process. Law Enforcement only has to sign the certification, verifying that she was a victim and that she was, is or will be helpful in the investigation. The victim files her application with Immigration, proving all of the other requirements. 4. The criminal activity must have violated the laws of the United States or occurred in the United States. T VISAS: For trafficking victims T Visas were also created under the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) to allow victims of severe trafficking to apply for a T Visa to allow them to remain legally in the United States. A T visa is valid for three years and can lead to legal permanent residency. Requirements for a T Visa: 1. Victim of a severe form of trafficking in persons. Severe Trafficking in Persons means: Sex trafficking in which a commercial sex act is induced by force, fraud or coercion, or the victim was under 18 years of age; or Labor related trafficking: the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery; An applicant can submit a Law Enforcement Agency (LEA) Endorsement Form I-914, Supplement B as primary evidence that he or she is a victim of severe trafficking. Although not required, it is strongly recommended. If an applicant doesn t have one, they need to explain why. It must be signed by supervising official responsible for the investigation or prosecution. 2. Physically present in the United States on account of such trafficking; 3. Complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking (or is under the age of 15); 4. Would suffer extreme hardship involving unusual and severe harm upon removal. 11

14 HOW CAN LAW ENFORCEMENT OR VICTIM ADVOCATES HELP THOSE WHO MIGHT BE ELIGIBLE FOR VAWA, U VISA, OR T VISA RELIEF? FOR ALL CASES Call ILAP or another immigration lawyer for assistance before contacting Immigration. A victim will be very fearful of immigration authorities and she will assume that Immigration is going to deport her, as her abuser has told her they will. She will be more likely to help in the investigation of a case if she first feels that she has legal options and support. These cases are extremely complicated and require a lot of preparation and documentation. A client will not be able to prepare these applications on her own. Immigration will not complete the forms or prepare the documentation for her. They only adjudicate the applications. FOR DOMESTIC VIOLENCE VICTIMS (WHETHER VAWA OR U) o If assisting a domestic violence victim in collecting her things from the home, remind her to collect all of her immigration and identity documents (passport, etc.). If there is time and it is safe, it is also helpful to get any documents relating to her relationship with the abuser (photographs of them together; joint accounts; joint car, health or life insurance policies); and copies of his birth certificate, and any prior divorce certificates. o Provide detail about the abuse in the police report. o Ask the victim about any past incidents of abuse (that may have gone unreported) and make sure to include this in the police report. o Encourage the victim to seek medical treatment, if appropriate. o Provide affidavits to the victim, if needed by her immigration advocate. FOR U VISA CASES For Law Enforcement, assign someone in your office to be the designated person to sign U Visa Certifications. Assist with signing a certification. Remember that you do not have to decide whether the victim qualifies for a U visa and you do not have to complete the application for her. You only have to sign the U certification to verify that she was a victim and that she has, is or will be helpful in the investigation or prosecution of that crime. The victim and her immigration lawyer will complete the rest of the application and provide evidence of all the other requirements. Immigration will make a decision as to whether or not she qualifies for a U visa. FOR T VISA CASES Assist with signing an I-914 Law Enforcement Agency Endorsement form. 12