The First Annual Con$umer Law

Transcription

1 and present The First Annual Con$umer Law Session 5: The Intersection of Immigration and Consumer Law 11:45 AM - 12:45 PM

2 Vicente Omar Barraza, Principal, Attorney at Law John Richard Laris, Associate Attorney F Ambaum Blvd SW Burien, WA Fax U Non-Immigrant Visa Spotting Immigration Relief Options for Consumers Key elements: Victim who is Non-Legal Permanent Resident ( LPR ) or citizen Qualifying criminal activity (defined broadly) Suffered substantial physical or mental abuse Cooperation with authorities o WSP, local law enforcement, courts, Department of Licensing, federal Department of Labor or State L+I, Social Security Administration, DSHS, CPS, other federal, state, or local administrative agencies Categories of Crimes Abduction Abusive Sexual Contact Blackmail Domestic Violence Extortion False Imprisonment Female Genital Mutilation Felonious Assault Fraud in Foreign Labor Contracting Hostage Incest Involuntary Servitude Kidnapping Manslaughter Murder Obstruction of Justice Peonage Perjury Prostitution Rape Sexual Assault Sexual Exploitation Slave Trade Stalking Torture Trafficking Witness Tampering Unlawful Criminal Restraint Other Related Crimes* *Includes any similar activity where the elements of the crime are substantially similar. Also includes attempt, conspiracy, or solicitation to commit any of the above and other related crimes. Some Key Take Aways U-Visa does not require a prosecution, much less a conviction, as long as there is a government investigation in which potential criminal charges are at issue. Evidence of unrelated criminal activity identified in the course of an investigation may give rise to a claim. Benefits Avoid deportation Obtain work authorization in around 12-months May eventually qualify for residency and naturalization In many cases, can include immediate relatives in petition

3 Page 2 of 2 From 8 CFR (14)(ii) A petitioner may be considered a victim of witness tampering, obstruction of justice, or perjury, including any attempt, solicitation, or conspiracy to commit one or more of those offenses, if: (A) The petitioner has been directly and proximately harmed by the perpetrator of the witness tampering, obstruction of justice, or perjury; and (B) There are reasonable grounds to conclude that the perpetrator committed the witness tampering, obstruction of justice, or perjury offense, at least in principal part, as a means: (1) To avoid or frustrate efforts to investigate, arrest, prosecute, or otherwise bring to justice the perpetrator for other criminal activity; or (2) To further the perpetrator's abuse or exploitation of or undue control over the petitioner through manipulation of the legal system. (iii) A person who is culpable for the qualifying criminal activity being investigated or prosecuted is excluded from being recognized as a victim of qualifying criminal activity. Consumer Law Examples Loan Modification Fraud Undocumented couple paid $6,000 for loan modification assistance Victims of fraud Made report to DFI In the course of the DFI investigation, the perpetrator lied to DFI Victims may be eligible for U Visa relief Mobile Home Title Fraud Seller prepares false title documents for entry into the public record Suborning Perjury Unauthorized bankruptcy preparer prepares petition containing material misrepresentations and instructs debtor to lie to the court about preparation services Car Dealer Car dealer prepares false income documents to submit to the bank to qualify for loan. Car dealers regulated by DOL and car title documents are prepared under penalty of perjury or false statements provisos. Wage Theft Sexual harassment at work Threats to report to immigration

4 Ann Benson, Directing Attorney - (360) Jonathan Moore, Immigration Specialist - (206) , X104 Washington Defender Association s Immigration Project 110 Prefontaine Place S., Suite 610 Seattle, Washington U Visa Applications for Immigrant Victims of Crimes December, 2011 Since 2000, certain crime victims who are helpful to a police investigation of the crime can apply for a U-visa which grants legal immigration status. 1 After 3 years in U-visa status the person can apply to be a lawful permanent resident (LPR). U-visa-holders can get work authorization and are eligible for some public benefits To qualify for a U-visa, the applicant must satisfy the following criteria: 1. The crime must have occurred in the U.S. or have violated U.S. law Applicant must have suffered "substantial physical or mental abuse" as a victim of a qualifying criminal activity 3 3. The victim must possess information about the criminal activity He or she must help or have helped with the investigation or prosecution of the crime (or be willing to do so in the future), 5 and obtain a certification on Form I-918 Supplement B, U Nonimmigrant Status Certification, from the law enforcement agency that he or she has cooperated with, signed within six months of filing the U-visa application. 5. The Department of Homeland Security s (DHS) Citizenship & Immigration Services (CIS) must approve the U-visa application and any waivers of inadmissibility, in the exercise of discretion. There are no appeals of a waiver denial. The qualifying criminal activity of which the person was a victim must be one of the following kinds, in violation of Federal, State, or local criminal law: 1 8 USC 1101(a)(15)(U) 2 See 8 USC 1101(a)(15)(U)(i)(IV) 3 See 8 USC 1101(a)(15)(U)(i)(I); Physical or mental abuse means injury or harm to the victims physical person, or harm to or impairment of the emotional or psychological soundness of the victim. 8 CFR (a)(8). For more on the substantial abuse definition see 8 CFR (b)(1). 4 See 8 USC 1101(a)(15)(U)(i)(II); The alien must possess specific facts regarding the criminal activity leading a certifying official to determine that the petitioner has, is, or is likely to provide assistance to the investigation or prosecution of the qualifying criminal activity. 8 CFR (b)(2) 5 See 8 USC 1101(a)(15)(U)(i)(III); 8 CFR (b)(3)

5 Abduction Abusive Sexual Contact Blackmail Domestic Violence Extortion False Imprisonment Felonious Assault Female Genital Mutilation Hostage Incest Involuntary Servitude Kidnapping Manslaughter Murder Obstruction of Justice Peonage Perjury Prostitution Rape Sexual Assault Sexual Exploitation Slave Trade Torture Trafficking Unlawful Criminal Restraint Witness Tampering Or: any similar activity.

6 Attempt, conspiracy, or solicitation to commit any of these crimes count as qualifying activity. 6 The perpetrator of the crime need not have had any particular relationship to the victim. Domestic violence is just one qualifying type of criminal activity. Law Enforcement Certification of Helpfulness to the Investigation of the Crime is a Requirement: The certification that the applicant has been helpful, is being helpful, or is likely to be helpful in the investigation of the criminal activity 7 can come from a Federal, State or local law enforcement official, prosecutor, judge or other authority investigating or prosecuting the criminal activity. 8 Charges do not need to be filed nor a conviction obtained in order to receive the certification. No agency is required to do a certification. Certification must be submitted as part of the U-visa application. The Department of Homeland Security s (DHS) Citizenship and Immigration Services (CIS) will decide whether to grant a U-visa. Even with a law enforcement certification the decision by DHS is separate and discretionary. Approval is not automatic. However, the noncitizen will not be eligible for U nonimmigrant status without a certification. Practice Tip: Defenders should ask non-citizen clients who are undocumented or in need of immigration relief if they have ever been a victim of one of the designated types of criminal activity and if they reported it to the police or had been involved with the investigation of that crime. If so, seek immigration legal assistance for further U-visa eligibility screening. One agency in Washington that assists some immigrants with U- visas is the Northwest Immigrant Rights Project, (206) (W. Washington), or (509) (E. Washington.) People with prior criminal history are not barred from seeking a U-visa, although they may need a discretionary waiver. 6 See 8 USC 1101(a)(15)(U)(iii); The term any similar activity refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities. 8 CFR (a)(9). 7 See 8 USC 1101(a)(15)(U)(i)(III). 8 See 8 USC 1184(p).

7 Additional U Visa Information: In addition to the statutory provision at 8 USC 1101(a)(15)(U), the requirements are spelled out in more detail in the implementing federal regulations at 8 Code of Federal Regulations (CFR) A person who is culpable for the qualifying criminal activity being investigated or prosecuted is excluded from being recognized as a victim of qualifying criminal activity. 9 Some family members may also receive U visa derivative beneficiary status, whether or not they are in the United States. 10 Only 10,000 petitioners can receive U status per fiscal year, 11 not including derivative beneficiaries. 12 Discretionary waivers for most grounds of inadmissibility, including inadmissibility for criminal convictions, are available if it is in the public or national interest. 13 Generally, the authorized period of stay for a noncitizen individual in U-visa status is no longer than four years. However the period may be extended if a Federal, State, or local law enforcement official, prosecutor, judge, or other authority investigating or prosecuting criminal activity certifies that the noncitizen s presence in the US is required to assist in the investigation or prosecution of the crime. 14 Lawful Permanent Resident Status U-visa holders who have three years of continuous physical presence can apply to become lawful permanent residents (LPRs or green-card holders), if their continued presence in the United States is justified on humanitarian grounds to ensure family unity, or is otherwise in the best interest of the public CFR (a)(14)(iii) 10 See 8 USC 1101(a)(15)(U)(ii); 8 C.F.R (f). These family members include spouse, children, unmarried siblings under 18, and parents if the principal petitioner is less than 21 years old; and spouse and unmarried children under 21 if the principal petitioner is 21 years or older on the date of application. 11 See 8 USC 1184(p)(2)(A). 12 See 8 USC 1184(p)(2)(B). 13 See 8 USC 1182(d)(14) 14 See 8 USC 214(p)(6) and 8 CFR (g) 15 See 8 USC 1255(m)(B)

8 To be eligible, the individual must not have declined any reasonable request to continue to cooperate with the investigation or prosecution of the crime committed against them. 16 Confidentiality Provisions Protecting Victims (or Alleged Victims): The confidentiality provisions of the Violence Against Women Act, or VAWA, at 8 USC 1367, generally prohibit third-party disclosure of any information relating to applicants for relief under VAWA, including applicants for U-visa status. 17 These provisions include prohibiting DHS from using information from the alleged perpetrator of the substantial physical or mental abuse and the criminal activity as the sole basis for arresting and charging a noncitizen with removability. 18 Disclosing to anyone, other than a sworn officer or employee of DHS, DOJ, or DOS for agency purposes, any information which relates to beneficiary of a U visa application is prohibited. 19 There are various exceptions to these prohibitions, including for law enforcement and judicial review purposes. 20 Although the issue has not been addressed in the Ninth Circuit, the Eighth Circuit has held in dicta that 8 USC 1367(a)(2) does not provide for exclusion of evidence as a remedy for a violation, at least in criminal cases, and that the statute was not violated by disclosure to the US Attorney for prosecution. 21 It has been argued 22 that this decision conflicts with the goals of VAWA 2000 to help battered immigrants leave abusive relationships and to decrease domestic violence Id USC 1367(a)(1)(E). 18 See 8 USC 1367(a)(1)(E) and 8 CFR (e) 19 See 8 USC 1367(a)(2) and 8 CFR (e). 20 See 8 USC 1367(b). 21 U.S. v. Maswai, 419 F.3d 822 (8th Cir. 2005). 22 See Laura Jontz, Eighth Circuit to Battered Kenyan: Take A Safari-Battered Immigrants Face New Barrier When Reporting Domestic Violence, 55 Drake L. Rev. 195, 216 (2006). 23 Victims of Trafficking and Violence Protections Act of 2000, Pub. L. No , 1502, 114 Stat. at 1518.

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12 RCW 9A RCW 9A RCW 9A U.S. Code U.S. Code 1001 RCW Perjury 1 st Degree Perjury 2 nd Degree False Swearing Perjury (Federal) False Statements (Federal) Mortgage Fraud A person is guilty of perjury in the first degree if A person is guilty of perjury in the second degree if A person is guilty of false swearing if Whoever (1) having taken an oath, (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the It is unlawful for any person in any official proceeding he or she makes a materially false statement which he or she knows to be false with intent to mislead a public servant in the performance of his or her duty he or she makes a materially false statement which he or she knows to be false he or she makes a false statement which he or she knows to be false before a competent tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be administered that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or under an oath under an oath under an oath (2) in any declaration, certificate, verification, or statement required or authorized by law. required or authorized by law. required or authorized by law. under penalty of perjury as permitted under section 1746 of title 28, United States Code willfully subscribes as true any material matter which he does not believe to be true is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; in connection with making, brokering, obtaining, or modifying a residential mortgage loan (1) Employ any scheme, device, or artifice to defraud or materially mislead any borrower during the lending process defraud or materially mislead any lender defraud or materially mislead any person or engage in any unfair or deceptive practice to directly or indirectly: (2) Knowingly make (3) Use or facilitate the use of any misstatement, misrepresentation, or omission during the mortgage lending process knowing that it may be relied on by a mortgage lender, borrower, or any other party to the mortgage lending process any misstatement, misrepresentation, or omission knowing the same to contain a misstatement, misrepresentation, or omission during the mortgage lending process with the intention that it toward any person in the lending process or obtain property by fraud or material misrepresentation in the lending process be relied on by a mortgage lender, borrower, or any other party to the mortgage lending process