JUDICIAL RESPONSE TO IMMIGRATION ISSUES IN THE COURTROOM, ASISTA Goals Participants will be better able to: Identify the challenges and barriers that immigrant DV/SA survivors face when going to court Examine how immigration issues may impact judicial proceedings related to DV/SA, including the U and T certification process Assess how criminal and civil findings intersect with an immigration matter September 7 & 8, 2017 Page 1 of 17
Challenges and Barriers What are you seeing in the courtroom? Barriers to Accessing Services Language Access Past experiences in home country Fear of removal Practical Economic Fear of family separation September 7 & 8, 2017 Page 2 of 17
Immigration Power & Control Wheel From Futures without Violence 2017 Survey of Advocates Survey conducted by: NNEDV, Tahirih Justice Center, ASISTA, National DV Hotline, APIGBV, Casa de Esperanza September 7 & 8, 2017 Page 3 of 17
Overlap in Legal Matters Considerations Federal immigration policy and law Civil Protection Order State and local immigration policy Family law matter Criminal Matter The Courtroom and Immigration September 7 & 8, 2017 Page 4 of 17
Congressional Action Special routes to immigration status VAWA self-petitions U visas T visas Battered spouse waiver for conditional residents Others Access to public benefits Necessary to protect life and safety VAWA self-petitioners as qualified aliens for benefits Access to legal services LSC funded orgs may serve victims of trafficking, DV, or SA without regard to citizenship status Access to language services (Limited English Proficiency) Immigration benefits VAWA selfpetition Spouse or child of USC or LPR or parent of adult USC son or daughter Suffered battery or extreme cruelty Joint residency with abuser Good moral character For petitions based on marriage: show good faith marriage U visa Victim of Qualifying Crime full list at INA 101(a)(15)(u)(iii) Suffered substantial physical or mental abuse as a result of victimization; Had information about the crime; Was, is, or will be helpful in the investigation or prosecution of the crime. Crime occurred in US or violated U.S law Admissible or eligible for a waiver under INA 212(d)(14) national or public interest T visa Victim of severe form of trafficking Physically present in the U.S. On account of the trafficking; Complied with reasonable requests for help in the investigation or prosecution of trafficking Would suffer extreme hardship if had to return to home country. September 7 & 8, 2017 Page 5 of 17
Protection Orders can Reduce the level of violence Provide documentation for immigration case VAWA U T visa context * Court docs by themselves not enough to grant application Use as way to assist survivors getting the information they need from the abuser Help shift balance of power in a relationshiop U and T Visas September 7 & 8, 2017 Page 6 of 17
U Visa Crimes Abduction Hostage Prostitution Unlawful criminal restraint Abusive Sexual Contact Blackmail Incest Rape Other related crimes Involuntary Servitude Sexual Assault Domestic Violence Kidnapping Sexual Exploitation Extortion Manslaughter Slave Trade False Imprisonment Murder Stalking Female Genital Obstruction of Torture Mutilation Justice Felonious Assault Peonage Trafficking Fraud in Foreign Labor Contracting Perjury Witness Tampering *includes attempt, conspiracy or soliciation Certifying Agencies Federal, State, or local law enforcement agency, Federal state or local judge Federal, State, or local prosecutor s office, Federal and State Departments of Labor, EEOC, NLRB Other investigative agencies that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity September 7 & 8, 2017 Page 7 of 17
Investigation or Prosecution Detection Investigation Prosecution Conviction OR Sentencing Of qualifying criminal activity U visa Certification Requirement for U visa application to proceed Certify 3 key elements: Applicant was victim of qualifying crime Applicant had knowledge about the crime Was, is or will be helpful in the investigation or prosecution of the crime September 7 & 8, 2017 Page 8 of 17
Hypo Alia and Ivan were dating, when she tried to break up with him, Ivan got upset and slashed her tires. He also took compromising pictures from her phone and posted them on social media. Alia testified at trial and Ivan was convicted. Her immigration attorney asks you sign a U visa certification. Questions Is this a DV related crime? Can you certify? Are there ethical problems in signing? Will you sign the form? If not, what else can you do to help? Do you detect these crimes in your courtroom? If so, how? How else could she have been helpful other than testifying? September 7 & 8, 2017 Page 9 of 17
Severe Form of Trafficking From: Coalition Against Slavery & Trafficking (CAST) T visa declarations Declarations NOT required but helpful to show that: 1. The applicant is a victim of a severe form of trafficking; and 2. The applicant has complied with reasonable requests from law enforcement in an investigation or prosecution of human trafficking What is meant by reasonable request? September 7 & 8, 2017 Page 10 of 17
Identifying Trafficking Can arise in other criminal activity How do you help other actors to identify trafficking? Immigration Status as Issue in Civil Matters September 7 & 8, 2017 Page 11 of 17
Hypo Sami is married to Rafael, a LPR. Rafael becomes physically abusive. Sami files a petition for a protection order and a complaint for divorce and custody of their son Antonio based on the DV. Rafael s answer alleges Sami just married him because he is a citizen, although no paperwork for status was filed. Rafael files a cross petition against Sami and seeks full custody of Antonio. He alleges that it s not in the best interest of the child for Sami to get custody because he is undocumented, and so not allowed to legally work to support Antonio. Rafael also alleges Sami will take Antonio back to El Salvador. Questions: How would you approach this case? What facts related to immigration status seem relevant to custody and support? To what degree is it relevant to best interest of the child? How do you know whether the generalizations made are true? How should judges handle evidence of immigration status? Is one party using immigration status as a weapon against the other? How would you respond to discovery requests made about immigration status or pending immigration applications? September 7 & 8, 2017 Page 12 of 17
Red Flags for Manipulation One party provides the court negative info about the other s immigration status Be alert to the possibility that this is a form of abuse and control DHS sees behavior as evidence of battery/extreme cruelty, court should make findings in the PO May use the immigration system as weapon of control What Can You Do? Refer to local resources Don t allow abuser intervention and intimidation Correct victim misinformation Everyone gets due process (including those without status) Relevant legal standards Available court resources (improve them) Community outreach: status irrelevant; interpretation available Explain rights and remedies to all parties and ensure they understand them September 7 & 8, 2017 Page 13 of 17
Role of Custody in Power and Control Fear of losing children is the one of top reasons that immigrants survivors of violence stay with their abusive partners. Survivor believes abuser will get custody: Abuser s immigration status Survivor s lack of knowledge about our laws Immigration Status in Custody and Child Support Provisions of Protection Orders Abuser may try to raise survivor s immigration status in an effort to gain an advantage in temporary custody and support issues in a protection order Part of pattern of abuse Abuser may say that survivor is flight risk due to lack of status No way to work because s/he does not have work authorization Victims are often undocumented because of their abusers or status is connected to his visa. September 7 & 8, 2017 Page 14 of 17
Allegations of Flight Risk Court Should Treat This As Any Other Case In Which a Threat of Child Kidnapping is Alleged If abuser alleges that it is relevant because the children will be removed from the U.S. court should seek evidence of the victim s: Connections to the US Plans to leave Whether has purchased airline tickets Whether her deportation is imminent Countering Allegations: Deportation Lack of immigration status does not necessarily mean deportation is imminent Court can consider expert testimony on likelihood of deportation instant case Many immigrant domestic violence victims will now have options for legal immigration status (VAWA or U visa) September 7 & 8, 2017 Page 15 of 17
Discovery Requests on Immigration Status When do you see this? How do you address it? What factors go into your decision? Intersections with Criminal Law September 7 & 8, 2017 Page 16 of 17
Potential Consequences of DV/SA Deportation Bar to Lawful Permanent Residence Bars to Naturalization (good moral character) When would this apply? For US Citizens Barrier to immigrating fiancées Bar to immigrating spouses and children Resources Immigration Options for Victims of Crime www.asistahelp.org Immigration Legal Resource Center www.ilrc.org National Immigrant Women Advocacy Project http://niwaplibrary.wcl.american.edu/ Immigration Consequences of Crimes www.criminalandimmigrationlaw.com www.nationalimmigrationproject.org www.ilrc.org Hague Domestic Violence Project www.haguedv.org September 7 & 8, 2017 Page 17 of 17