Finding Compassion in Immigration Law The U and T Visas Gail Pendleton (dl), Plymouth, MA Gloria Goldman, Tucson, AZ Suzanne Tomatore, NY, NY Goals Identify when these options may help your clients Identify allies you need to work with Flag eligibility issues and possible hurdles
Hypothetical Seema: What Immigration Options? Husband wants custody to send young daughters back for FGM You discover her marriage to him was forced in home country, as was FGM When she got here, he already had a wife here and they turned her into a maid for them She suffered emotional, mental and physical abuse from him and his wife (she has CPO) Trafficking Into Servitude U.S. TVPA 18 USC Section 1590 Recruiting, harboring, transporting, providing, or obtaining by any means Any person for labor or services in violation of laws prohibiting slavery, involuntary servitude, debt bondage or forced labor
Sex Trafficking U.S. TVPA 18 USC Section 1591 Recruiting, enticing, harboring, transporting, providing, or obtaining a person by any means Or benefiting financially or by receiving anything of value Knowing that force, fraud or coercion will be used To cause a person to engage in a commercial sex act or Causing a minor to engage in a commercial sex act Power and Control Economic abuse Isolation Emotional abuse Physical and/or sexual abuse Exhaustion, overwork, sleep and food deprivation Immigration status Degradation, denial of privacy, hygiene Drug dependence Threats and intimidation Trafficking victim and their family members
Smuggling v. Trafficking Autonomy Documents withheld Loss of freedom Physical, sexual, or psychological abuse No $$$ or little $$$ for work Beyond DOL violations Common Industries of Forced Labor Agriculture Construction Criminal activity Domestic work Factory Restaurant Adult entertainment industry
Interviewing Victims PTSD Shame Inability to trust others Safety issues Mistrust of authorities No self-identification Details may be vague Identification documents unavailable Confidentiality and limits Who are the traffickers? Often same country or same background as victim Small organized networks, often familybased Boyfriends, husbands, family members Diplomats, consular officials, wealthy and powerful community members Employment agencies
Methods of Traffickers Promises of a better life Marriage Love Education Promises of work Employment agencies Travel agencies Entertainment agencies Different forms of transportation Varying routes Changing flights frequently Traveling in small groups Victim Stories Yesenia M., an immigrant from Mexico, was brought to the United States at the age of 17 to work as a babysitter. She worked nine months caring for his two small children. Her tasks included cooking, cleaning, bathing, laundry, and yard work. Yesenia did not have her own room and seldom had a moment s rest. She was not paid for her work and not allowed to speak to anyone outside the family, let alone travel by herself. Yesenia also endured three incidents of sexual abuse and rape by her employer and trafficker. Desperate to leave her miserable situation, Yesenia befriended a woman at church who helped her escape from her trafficker. Once Yesenia escaped, she was determined to bring her trafficker to justice by contacting the appropriate authorities and cooperating in their investigation. Since her escape, Yesenia cooperated in the investigation and prosecution of her trafficker. She has received a T visa and compensation from her trafficker. She will be starting a business with her settlement. Her trafficker received a prison sentence, had to forfeit property, and will be deported.
Immigration Remedies: T-visa Enables certain victims of human trafficking to live and work in U.S. for three years Can apply for adjustment of status to lawful permanent resident Can petition to have spouses and children accompany (or parents if under 21) Cap of 5,000 visas annually Who Is Eligible For A T Visa? Is or has been victim of severe form of trafficking in persons Is present in U.S., American Samoa, Northern Marianas on account of trafficking Has complied with reasonable request for assistance in investigation or prosecution of acts of trafficking Children under 18 do not need to meet this Would suffer extreme hardship involving unusual and severe harm upon removal
Public Benefits Can include food stamps, cash assistance, job training Immigration status necessary for FN trafficking victims to access public benefits U.S. citizen victims can access public benefits Alternatives Continued Presence Don t forget regular routes SIJs for children VAWA self-petitioning VAWA cancellation Asylum Deferred action
U Basics: Dual Purpose To help law enforcement To help victims Overview of Eligibility Helpfulness, victim of crime and information possession = certification + other support Substantial abuse/harm from crime Admissible or in national/public interest
U Visa Crimes 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 Differences: which to choose? U visas must have law enforcement certification T visas can have law enforcement certification or show attempt to cooperate T visas have better benefits, same as refugees May have access to case management, food stamps, job training, match grant, SSI, cash assistance, Medicaid T visa holder may be able to adjust faster to LPR Consider the cap: There are 10,000 U visas available each year and the cap has been reached for the last two years. There are 5,000 T visas available have Don t forget to check other immigration options, family petition, etc. Has your client been a crime victim before? i.e. trafficking victim but was raped before (or during) trafficking and cooperated with police at that time. Can you get a U visa certification on that crime instead?
Working with Law Enforcement Why do you have to do this? Remember purpose of the laws Basic certification requirements Supervisors Who Can Certify Can be U supervisors Letter from agency head designating U supervisors to attach to every cert Non-crim agencies Do they detect or investigate crimes? Regs say Child Protective Services, Equal Employment Opportunity Commission, and Department of Labor, but still show law/regs/personnel policies-- empower to detect crimes even if refer for charging/prosecution?
Building Relationships with LEOs Who do they already work with? DV/SA/public safety committees? Work with your DV/SA partners (if you don t know them, we will connect you) Whose opinion do they care about? Other influencers? E.g., mayors, clergy, be creative What do you think they think about lawyers or immigrants rights advocates? Examples: Gloria & Suzanne Working with NGOs Who to target in LEO agencies Victim advocates
Before meeting with LEO Prepare materials that are simple and easy to follow including flow charts, contacts, etc. Meet with your team and develop strategies as to messengers, one or two goals to accomplish (mainly, keep communications open and develop relations). Schedule meeting with LEO and peers. Try to have an officer, DA, etc as your partner in sending message. Principles of Working Together Identify each other s goals and priorities Acknowledge where they may conflict but Find common ground Every person in this country has the right to due process and justice. If a class of victims fears accessing justice, public safety is at risk.
Main myths Anyone can ask to work, so not being legal means you just didn t try Being undocumented means you re a criminal Getting a green card is easy There s lots of fraud Explore Crimes as Categories Categories: explore them with LEOs What crimes do you use to investigate/prosecute domestic violence? E.g., choking, stalking, harassment, lots of possible crimes, depending on facts These all count as long as you say in your cert that it was in the DV context and give some facts What could you use here for child abuse?
More Training/Advocacy/Tools CIS does training for LEOs Also willing to answer LEO questions by email or phone (but will not discuss individual cases) Tools for LEOs by DHS Preparing Ts: Practice Pointers Civil litigation and T visas Don t wait for status to pursue civil litigation or DOL filings: can harm hardship argument for T visa and possibly harm settlement in civil matter Track attempts to obtain law enforcement certifications Send faxes, letters, emails, phone logs, etc. and keep the paper trail Diplomatic immunity of trafficker is not an issue for a T visa Affidavit is the strongest piece of evidence However, if there is a deposition, affidavit, transcript or other sworn document it may be possible to use this instead of doing a full affidavit. Affidavit can then focus only on hardship. Beware of sworn inconsistent statements!
U Prep Practice Pointers Obtain Police Report Obtain Medical/Hospital Records Use victim advocates to help get story, document substantial abuse/harm and reach LEOs More U Prep PPs Psych evaluation to document substantial harm Detailed statement by victim in her own voice Know the victim s background (arrests; deports; life history) Do 192 (inadmissibility) up front Provide "road map" cover letter and index to documents
Resources on T & U Visas AILA VAWA/U Committee Alyssa Reed = AReed@LichterImmigration.com ASISTAhelp.org gailpendleton@comcast.net (Gail Pendleton) traffickinglaw-subscribe@yahoogroups.com Rescue & Restore Campaign-HHS http://www.acf.hhs.gov/trafficking/ Freedom Network USA http://www.freedomnetworkusa.org/ Q & A
Additional U Information Look for more in-depth article in forthcoming AILA advisory compilation Who s the Victim? Cert must be clear on this! Indirect. Direct v. Bystander If possible, do direct = proximate harm CIS recognizing 2 kinds of indirect Children and other incompetent e.g., sexual violence Close family members of murder victims
Ongoing Help? Despite what form says, LEOs don t really have to do another cert at adjustment Statute places burden on CIS not victim or LEOs BUT, if they think there was fraud or person used them and then stopped being helpful, can contact CIS Adjustment show didn t unreasonably refuse additional assistance Don t really need new cert Just show why you can t get it and provide evidence that case is over or no further help was requested Substantial Abuse/Harm Impairment of emotional or psychological soundness Substantial factors include: the nature of the injury; severity of perpetrator s conduct; severity of harm suffered; duration of infliction of harm; permanent or serious harm to appearance; health, physical or mental soundness. aggravation of a victim s pre-existing conditions.
Overcoming Inadmissibility Use (d)(14) waiver For everything but being a Nazi National or public interest What is this? General arguments, make specific to your client Connection to victimization Think good moral character Think VAWA & T extreme hardship factors Crimes Connection to victimization may not be enough Show contrition and how changing life so won t happen again Would your neighbor want this person living next to her?