BECOMING CULTURALLY COMPETENT Immigration Protections for Victims of Domestic Violence and Other Crimes National Association of Social Workers-AZ Continuing Education Series April 27, 2012 9:00 a.m. 12:00 p.m. Presented by: Mary V. Day, Immigration attorney Southern Arizona Legal Aid, Inc. Governor s Office for Children, Youth & Families Division for Women Southern Arizona Battered Immigrant Women Project Mission: Safety and empowerment for immigrant women and children who are victims of domestic violence and other crimes Introduction to Immigration Status DV: Power and Control Tactics U.S. Citizen by birth or naturalization or acquired/derived Lawful Permanent Resident (LPR) has a green card LPRs may apply for U.S. citizenship after 3 or 5 years Two major categories of documented ( legal ) non-citizens: Nonimmigrant limited time, specific purpose Immigrant may apply for lawful permanent residence Undocumented immigrants ( illegal aliens ): May have entered illegally May have entered with valid document then overstayed Deferred Action Status undocumented but low priority for removal (approved VAWA) Emotional abuse Economic abuse Sexual abuse Using children Manipulation Threats Intimidation Isolation Physical abuse Coercion DV: Barriers to Seeking Help Societal or religious taboos Economic barriers Lack of information Lack of services Lack of transportation Fear of retaliation by abuser or abuser s family Immigrant DV/Crime Victims: Barriers to seeking help Lack of knowledge and/or misinformation about the legal system in the U.S. Fear and mistrust of the police and judicial system Fear of deportation threats by abuser Fear of losing custody of children 1
Immigrant DV/Crime Victims: Barriers to seeking help Social isolation lack of support, no family or friends in US, no one who speaks her/his language Economic barriers - Lack of employment authorization, no SSN, limited job opportunities, limited knowledge of English, financial dependence on abuser Language, cultural and religious barriers Legislative History Violence Against Women Act (VAWA) 1994 Federal recognition of domestic violence, sexual assault and stalking Funding for services for criminal justice reform and victim safety Protection for immigrant victims of domestic violence: VAWA self-petition for abused spouses and children of USCs and LPRs Victims of Violence and Trafficking Protection Act (VTVPA, or VAWA 2000) Expanded access to self-petitioning for abused spouses and children Created U visas and T visas for victims of certain crimes VAWA 2005 Broader protections for self-petitioners, U and T visa applicants Parents abused by adult USC children may file VAWA self-petitions VAWA Self-Petitions Immigration protection for abused spouses and children of U. S. Citizens and Lawful Permanent Residents Immigrating to the U.S. through a Relative Petition U.S. citizen (USC) sponsors immigrant spouse, child, or parent by filing I-130 petition Lawful permanent resident (LPR) sponsors immigrant spouse or child by filing I-130 petition No employment authorization and no right to live in U.S. until immigrant files I-485 (green card) application Spouse or child of LPR must wait to file the I-485 application sometimes several years USC or LPR sponsor may withdraw I-130 at any time, which cancels I-485 and terminates the immigration process Relative Petition vs. VAWA Self-Petition Relative Petition VAWA Self-Petition Who Qualifies to File a Self-Petition under VAWA? USC or LPR sponsor files I-130 Immigrant files I-485 If sponsor = USC, file I-130 and I- 485 at the same time If sponsor = LPR, may wait 3-4 years or more to file I-485 No work permit until immigrant files I-485 I-485 interview requires sponsor s presence USC or LPR Sponsor can withdraw I-130 at any time, which cancels immigration process Abused immigrant files I-360 self-petition Abused immigrant files I-485 If abuser = USC, file I-360 and I-485 at the same time If abuser = LPR, may wait 3-4 years or more to file I-485 Work permit and deferred action upon approval of I-360 Abused immigrant goes to I-485 interview by him/herself USC or LPR relative has no control over immigration process Abused spouses and children (under 21) of US citizens Abused parents of adult (age 21+) US citizens Abused spouses and children (under 21) of lawful permanent residents (LPRs) Parent of a child who was abused by the parent s US citizen or LPR spouse Self-petitioners may include children under 21 as derivatives 2
VAWA Self-Petition Requirements Legal marriage to USC or LPR or intended marriage invalid due to abuser s bigamy or divorced from USC/LPR within the last 2 years OR unmarried child under 21 of USC or LPR child is defined in INA 101; includes stepchildren limited exception for late filing to age 25 OR parent of adult (age 21 or over) USC son or daughter If spouse, married in good faith (not solely to immigrate) Resided together at some time Battery or extreme cruelty during the marriage or parent-child relationship Good moral character Battery or Extreme Cruelty For purposes of INA 240A(b)(2)(A)(i), battery or extreme cruelty includes, but is not limited to... any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation... shall be considered acts of violence. Other abusive actions may also be acts of violence... including acts that, in and of themselves, may not initially appear violent but that are part of an overall pattern of violence. 8 C.F.R. 204.2(c)(1)(vi). What evidence is acceptable? Any credible evidence standard applies to all selfpetition requirements Applicant s own statement is primary evidence Evidence of abuse may include reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel.... Other forms of credible relevant evidence will also be considered. 8 C.F.R. 204.2(c)(2)(iv). Benefits of an Approved VAWA Self-Petition Employment authorization Deferred action status (limited protection from deportation) Possible eligibility for public benefits Ability to apply for LPR status (green card) if eligible U Visas Immigration protection for immigrant victims of crimes who cooperate with law enforcement Purposes of the U Visa Law Enforcement Purpose: Overcome immigrant victims fear of deportation Encourage reporting of crimes and cooperation from victims Humanitarian Purpose: Protect vulnerable victims Help domestic violence and other crime survivors - Victims of Trafficking and Violence Prevention Act, Section 1513 3
U VISA REQUIREMENTS Applicants for the U visa must file Form I-918 (No Fee required) with documentation demonstrating: U Visa Requirements Applicant is the victim of a crime listed in the U visa statute Applicant has suffered substantial physical or mental abuse as a result of having been a victim of the crime Applicant (or if under 16, parent, guardian, or next friend) possesses information concerning the crime Applicant (or parent/guardian if minor victim) has been helpful, OR is being helpful, OR is likely to be helpful in the future in investigation OR prosecution of the crime Applicant is admissible or will apply for waiver of inadmissibility Rape Torture Trafficking Incest Domestic violence Sexual assault U Visa: Listed Crimes Abusive sexual contact Prostitution Sexual exploitation FGM 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 Attempt, conspiracy or solicitation of any listed crime Or any similar criminal activity U Visa: Definition of Victim Direct Victims: Victim suffers direct and proximate harm as a result of the criminal activity Bystanders may qualify if they suffer unusually direct injury (e.g., pregnant bystander miscarries) Indirect Victims: Murder and manslaughter surviving relative may be indirect victim Parent of minor child who is direct victim U Visa: Helpfulness Requires that the victim: has been helpful OR is being helpful OR is likely to be helpful in the future During: Investigation of the criminal activity OR Prosecution of the criminal activity * Law enforcement must certify victim s helpfulness with form I-918 Supplement B U Visa: Helpfulness No requirement that perpetrator be arrested or prosecuted is likely to be helpful requirement Reporting the crime or giving a statement to police is enough to be helpful No time limits has been helpful requirement crime may have occured before U Visa statute existed investigation or prosecution may be closed 4
U Visa: Certification Law enforcement official must complete and sign USCIS Form I-918 Supplement B Official s signature on I-918 B certifies that: Person was a victim of criminal activity Victim (or guardian/next friend) possesses info Victim has been, is being, or will likely be helpful Certifying official must confirm basic information about crime and that the crime occurred in the United States or in violation of U.S. law U Visa: Certification Who can sign Form I-918 Supplement B? Federal, state, local law enforcement agency Police, Prosecution, Judge Anyone with responsibility for detection, investigation, prosecution, conviction, or sentencing of the perpetrator of the criminal activity Signature by head of agency or designated individual Best practice: Have a policy in place for who will sign certifications Date of signature on Form I-918 Supplement B must be within 6 months of date of filing of the U visa application U Visa: Continuing Helpfulness Applicant may not refuse a reasonable request for assistance before or after U Visa application is granted No affirmative requirement of continuing assistance; if investigation or prosecution is closed, continued helpfulness is not required Law enforcement can withdraw certification if victim later unreasonably refuses to cooperate Most law enforcement agencies interpret helpfulness as as helpful as s/he was able to be U Visa: USCIS Adjudication Applicants must show that they have suffered substantial harm as result of being the victim of the crime Applicants must disclose all charges, arrests, even traffic tickets Applicants with inadmissibility issues (criminal or immigration history) must apply for I-192 waiver USCIS may waive any inadmissibility grounds but terrorism or persecution I-192 waiver is discretionary: positive factors must outweigh negative criminal/immigration history U Visa: Benefits to crime victims U Visa permission to live in US for 4 years Employment authorization card valid up to 4 years Primary victim may include derivatives: Adult victims may include spouse and children under 21 Child victims may include parents and siblings under 18 May apply for LPR status (green card) 3 years after U Visa approval U Visa : Benefits to Law Enforcement U Visa can be used as a tool to: Identify and prosecute criminals Encourage reporting of crime Overcome obstacles to victim cooperation Provide humanitarian relief 5
U Visa: Benefits to Law Enforcement For certifications of past crimes, crimes not prosecuted, and crimes without arrests: Victim services: helps victims rebuild lives Encourages victims to report crimes in future Track record of U Visa certifications creates community confidence in police, climate of cooperation with law enforcement, promotes community safety Contact with an Abused Immigrant Do not assume the victim is undocumented Do not ask for immigration status or documents Do not call ICE or Border Patrol, or use them for translation Do not use suspected abuser or other family members as translators Link victim with a victim service agency Link victim with an immigration attorney or agency experienced in VAWA/U Visa cases How to Assist Immigrant Crime Victims Inform immigrant crime victims of their rights in encounters with immigration authorities right to speak to an attorney before saying or signing anything right to a hearing before an immigration judge right to request release on bond right to be represented by an attorney Refer immigrant crime victims to immigration law experts, NOT to immigration authorities Online Resources National Network to End Violence Against Immigrant Women www.asistaonline.org Immigrant Legal Resource Center www.ilrc.org National Immigration Project www.nationalimmigrationproject.org Family Violence Prevention Fund www.fvpf.org USCIS website www.uscis.gov Immigration Legal Services in Southern Arizona SOUTHERN ARIZONA LEGAL AID, INC. Tucson: 2343 E. Broadway (520) 623-9461 (Tucson office serves Pima and Santa Cruz Counties) Bisbee: 2 Copper Queen Plaza (520) 432-1639 (Bisbee office serves Cochise, Graham and Greenlee Counties) ASYLUM PROGRAM of AZ PROYECTO VAWA Tucson: 140 W Speedway (520) 623-0344 (Pima Co.) Pinal, Santa Cruz, Yuma, Cochise, Graham, Greenlee Co.: by referral The Southern Arizona Battered Immigrant Women Project is supported by U.S. Department of Justice Office on Violence Against Women Grant # 2008 WR-AX-0036 6