Transcript Document

TRAINING ON LEGAL RIGHTS OF
IMMIGRANT CRIME VICTIMS IN THE U.S.:
IMMIGRATION, LANGUAGE ACCESS,
FAMILY LAW, PUBLIC BENEFITS AND
SERVICES
MEXICAN CONSULATE
ATLANTA, GEORGIA
APRIL 7, 2014
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 1
INTRODUCTIONS
• Judge Lora Livingston
• Travis County Court, Austin, Texas
• Leslye Orloff
• National Immigrant Women’s Advocacy
Project
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 2
IMMIGRANT DEMOGRAPHICS
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 3
U.S. Immigrant Demographics
• “Immigrant” = born outside the U.S.
• 40.4 million immigrants in U.S (MPI 1/13)
• 12.5% U.S. population (MPI 12/10)
• Among foreign born
• 45%are naturalized citizens
(MPI 1/13)
• 32.4% are lawful permanent residents (MPI 10/12)
• 64.9% (8.5 million) eligible to naturalize (MPI 10/12)
• 11.6 million undocumented (DHS OIS 3/12)
• Today over 27% of U.S. population are immigrants or
children of immigrants
• (US Census)
• 24.3% of children under age 17 live with at least one
immigrant parent (MPI 1/14)
• 93% of children with 1+ immigrant parents are U.S.
citizens (MPI 1/14)
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 4
Top Individual Countries of Origin
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Mexico – 28.9%
China/Hong Kong/Taiwan – 5.5%
India -- 4.6%
Philippines – 4.5%
Vietnam – 3.1%
El Salvador -- 3.1%
Korea -- 2.7%
Cuba -- 2.7%
Dominican Republic -- 2.2%
Guatemala – 2.1%
-Data taken from the Migration Policy Institute Data Hub 2011
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 5
Proportion of Immigrant Population
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Colombia 1.7%
Germany 1.5%
Haiti 1.5%
Peru 1.0%
Japan 0.8%
France 0.4%
Argentina 0.4%
Ireland 0.3%
-Data taken from the Migration Policy Institute Data Hub 2014
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 6
Immigrant Demographics
• 80% of immigrants are living in the U.S.
legally
• 1/3 of foreign-born population are
naturalized U.S. citizens
• 1/3 of permanent residents were at one
time undocumented
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 7
Children in Immigrant Families
• 85% of immigrant families are “mixed status”
(including at least 1 U.S. citizen, often a child)
• 1 in 5 children is the child of an immigrant
• 18% (5 and older) speak a language other than
English at home
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 8
State By State Immigrant
Demographics
• www.niwap.org/go/statedemographics
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 9
DYNAMICS OF DOMESTIC
VIOLENCE EXPERIENCED BY
BATTERED IMMIGRANTS
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 10
Research Among Immigrant
Women Found
• Similar results lifetime abuse rates for
immigrant women in the U.S. 33-50%
• Immigrant women also have high rates of
sexual assault, particularly during the first
two years after arrival in the U.S.
• Victimization of immigrant children also
high, including child sexual abuse
• Multiple immigrant populations studied
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 11
Domestic Violence Prevalence and
Severity
• U.S. in general: 22.1% (NIJ)
• Immigrant women: 30-50%
• Research has found that immigrant victims
– Stay longer
– Have fewer resources
– Sustain more severe physical and emotional
consequences of abuse
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 12
Connection Between Abuse and
Control Over Immigration Status
• Abuse rates among immigrant women
• Lifetime as high as 49.8%
• Those married to citizens and lawful
permanent residents – 50.8%
• U.S. citizen spouse/ former spouse abuse
rate rises to 59.5%
• Almost three times the national average
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 13
Coercive Control Over Immigration
Status
• Among abusive spouses who could have
filed legal immigration papers for victims:
– 72.3% never file immigration papers.
– The 27.7% who did file had a mean delay of
3.97 years.
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 14
Immigration Related Abuse
• Refusal to file immigration papers on
spouse/child/parent’s behalf
• Threats or taking steps to withdraw an
immigration case filed on the victim’s behalf
• Family or work based visas
• Forcing victim to work with false documents
• Threats/attempts to have her deported
• Calls to DHS to turn her in – have her case denied
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 15
Immigration-Related Abuse
• Keeps victims from
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Seeking help
Calling police
Cooperating in prosecutions
Getting protection order
• Affects victims documented and
undocumented
• 65% of immigrant victims report some form of
immigration related abuse (NIJ)
• Locks victims in abusive relationships
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 16
Immigration Related Abuse as Coercive
Control
• Any time relationship and control over
victim’s immigration status
• Family Violence
• Sexual Assault in the workplace
• Cohesive control (Mary Ann Dutton)
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Isolation
Intimidation
Economic Abuse
Immigration related abuse
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 17
Immigration Related Abuse as a
Lethality Factor
• 10 times higher in relationships with
physical/sexual abuse as opposed to
psychological abuse
• Lethality factor can predict abuse escalation
• Corroborates existence of physical and
sexual abuse
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 18
Sexual Assault Among Immigrant
Women
• Immigrant women are particularly vulnerable to
recurrent sexual assault
• School aged immigrant girls are twice as likely to
have suffered sexual assault as their non-immigrant
peers to have suffered sexual assault
• Increased vulnerability may stem from
– Increased isolation
– Break-up & restructuring of families during
immigration process
– younger immigrant girls being actively targeted by
sexual assault perpetrators who see them as
particularly legally and socially vulnerable
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 19
Tools
• “Are You Safe At Home?” and “Know Your
Rights” brochures
• “Breaking Barriers” and “Empowering
Survivors” Manuals
• Conference materials available at
niwap.org/go/Mexico
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 20
WHY IS LANGUAGE ACCESS IMPORTANT?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 21
Importance of Language Access
• Services and legal protections
effectively closed to victims without
language access
• Medical records, counseling records,
and police report with incorrectly
interpreted information can:
– Lead to “conflicts” between testimony and
written records
– Undermine victim/witness credibility
• No access violates federal law
7/7/2015
Legal Momentum
22
What is LEP?
• Limited English Proficiency
– English is not primary language
– Limited ability to read, write, speak or understand English
– Language for LEP individuals can be a barrier
• Access to benefits or services,
• understanding and exercising legal rights
• complying with responsibilities
• understanding other information provided by Federally funded
programs and activities.
– Determination is by person, not by agency
7/7/2015
Legal Momentum
23
LEP Definition
U.S. Department of Justice
LEP Definition
• Individuals who do not speak English as
their primary language And
• Who have a limited ability to read, speak,
write, or understand English can be limited
English proficient, or "LEP."
• These individuals may be entitled language
assistance with respect to a particular type
or service, benefit, or encounter.
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Laws Governing Law Enforcement Agency Provision of Language
Assistance to Limited English Proficient Persons
Civil Rights Act of 1964 Title VI: prohibits national origin
discrimination by programs receiving federal funding or assistance.
– This includes all law enforcement agencies
Lau v. Nichols (1973): U.S. Supreme Court held
• “failing to take reasonable steps to ensure MEANINGFUL access
for LEP persons is national origin discrimination under Title VI”
Presidential Executive Order 13166 (2000): Title VI language
access requirements apply
– to all federally conducted and funded programs and activities
U.S. Department of Justice Clarifying Memorandum Regarding
Limited English Proficiency and Executive Order 13166 (2001):
– Where the denial or delay of access may have life or death or
other serious implications, the importance of the full and
effective delivery of LEP services is at its zenith.
Federal Agency Guidance on Language Access
• DOJ Department of Justice Guidelines: (2002)
– Shall provide information about and offer free
language assistance services to LEP individuals
whom they encounter
• Applies to police, courts, justice system
See Source of Law Handout
Omnibus Crime Control and Safe Streets Act of 1968
42 U.S.C. § 3789d(c)(1) Nondiscrimination
requirements
• “No person in any State shall on the ground of race,
color, religion, national origin, or sex be excluded
from participation in, be denied the benefits of, or be
subjected to discrimination under or denied
employment in connection with any programs or
activity funded in whole or in part with funds….” -from any of the following federally funded programs
Federally Funded Programs
Bureau of Justice Assistance (BJA)
Bureau of Justice Statistics (BJS)
Community Capacity Development Office (CCDO)
Drug Courts Program Office (DCPO)
National Institute of Justice (NIJ)
Office for Victims of Crime (OVC)
Office of Juvenile Justice and Delinquency Prevention (OJJDP)
Sex Offender Sentencing, Monitoring, Apprehending,
Registering and Tracking Office (SMART)
– Office on Violence Against Women (VAWA)
– Trafficking Victims Protection Act (TVPA)
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National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 29
WHO IS COVERED?
• Public and private entities receiving federal
financial assistance (recipients) are “covered
entities”
– HHS
• Health care
• Benefits
– DOJ
• Courts
• Law enforcement
• Victim services
– HUD
• Shelter
• Housing
7/7/2015
Legal Momentum and HHS OCR
30
Timeliness of Services
• Interpretation should be provided in a timely manner
• Language assistance should be provided
– at a time and place that avoids the effective denial of the
service, benefit, or right at issue or the imposition of an undue
burden on or
– delay in important rights, benefits, or services to the LEP
person.
• In providing law enforcement, health, and safety services, and
when important legal rights are at issue
– Provision of language accessible services essential
– Denial or delay could have
– Serious or life-threatening implications
• In cases involving victims, timeliness is of the utmost
importance!
– Plan ahead
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 31
DOJ Courts Letter (2010)
• Dispensing justice fairly, efficiently, and
accurately is a cornerstone of the judiciary.
Policies and practices that deny LEP persons
meaningful access to the courts undermine
that cornerstone.
• Court systems receiving federal financial
assistance, either directly or indirectly, must
provide meaningful access to LEP persons
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 32
DOJ Model Guidance
• Police provide free language access to
– LEP persons who request it
– When officer decides it is helpful to the criminal
investigation or prosecution
• Police will inform members of the public
that language assistance is available free of
charge
• Language access provided in persons
primary language
See: DOJ Limited English Proficiency Guidelines
Exigent Circumstances
• Use the most reliable temporary interpreter
available to address exigent circumstances
– Fleeing suspect
– Weapons
– Life threatening to the officer /victim/or public
• Once exigency passes
– Seek an interpreter
• Bilingual personnel HR approved
• Pacific interpreters
• Contract /volunteer interpreters
See: Steps for Obtaining an Interpreter Handout
How Interpretation Benefits Law Enforcement
• Affects case outcome avoids
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Case being dismissed
Lesser charge
Conviction overturned
Prosecutor decides not to prosecute
• Improves officer safety
– Correctly identify victim and perpetrator
• Primary aggressor determination
– LEP persons with interpreters are better able to
follow law enforcement directions
• Improves integrity and quality of the
investigation
– Reduces impeachment evidence at trial
HHS Office of Civil Rights (2000):
– Agencies are in compliance when materials
regularly provide in English, vital documents and
notices that interpreters are translated into
regularly encountered languages in a jurisdiction.
– Definition : Regularly encountered languages =
10% or 3,000, whichever is less, of the
population in the jurisdiction
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 36
Vital Documents to Translate
• Notice of free language services
• Legal rights and outreach information
• Notice of rights and eligibility for agency
services
• Law enforcement/Justice system materials
• Intake forms
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 37
Immigrant Victims Legal Rights
Brochures: Immigration, Family, Benefits
• DHS – With NIWAP modifications
– Spanish, Mandarin, English, Korean, Russian
• Are You Safe at Home
– Arabic, French, Gujarati, Haitian Creole, Hindi,
Korean, Russian, Spanish, Tagalog and Vietnamese
(Japanese in progress)
• Know Your Rights
– Arabic, French, English, Spanish, Tagalog, (Korean
and Japanese in progress)
• Rights and Options
– Arabic, French, Hindi, Spanish, Russian
7/7/2015
Legal Momentum
38
Data on LEP Survivors and
Quality of Services Provided
• Service providers reported most LEP clients were
Spanish speakers, followed by Portuguese, Russian
and Korean.
• In cases when LEP clients called the police for help,
the officer:
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spoke the victim’s language 12% of the time
identified the victim’s language 42.6% of the time
spoke with an unqualified interpreter 30% of the time
used a language line 7% of the time
used a qualified interpreter 10.4% of the time
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 39
LEP Survivors Experiences
• Unqualified interpreters included:
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Children of the victim or the perpetrator (24.3% of cases)
Friend of neighbor (22.9% of cases)
An adult relative (17.8% of cases)
A person who claimed to know the victim’s language who was
not a friend, neighbor or relative (9.8% of cases)
• Inability to communicate and lack of knowledge about U
visa, VAWA or legal rights and options for immigrant
survivors were the most commonly cited reasons for
police not taking a report
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 40
Sexual Assault Victims
Domestic Violence Victims
The police responding to the call
for help only spoke to the
perpetrator who spoke English
in 8.1% of cases.
Victims were referred to
culturally or linguistically
appropriate victim services in
29.3% of cases.
Police did not take a report in
54.4% of cases.
Police only spoke to the
perpetrator in English in 10.7% of
cases.
Victims were referred to culturally
or linguistically appropriate
services in 19.7% of cases.
Police did not take a report in
51.3% of cases.
Human Trafficking Victims
Police spoke only with the perpetrator
who spoke English in 4.84% of cases.
Victims were referred to culturally or
linguistically appropriate victims
services in 17.6% of cases.
Police did not take a report in 67.8% of
cases
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 41
Key Findings with LEP Survivors and LE
• Police treatment of immigrant and LEP clients was rated more
favorably in larger jurisdictions, and worsened as jurisdiction
type got smaller.
• Law enforcement agencies that had a collaborative relationship
with service providers on outreach to LEP communities more
likely to use a qualified interpreter or a language line
• Respondents reported that their LEP clients face challenges not
only in dealing with law enforcement but in gaining access to
public resources (health, housing, education) and therapy and
victim counseling.
• Language access has a profound impact on the willingness of a
client to report their crime.
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 42
Role Consulates, Advocates,
Attorneys Can Play
• Be proactive
• Create relationships that foster better
language access
• Plan ahead for each individual case
– Is there a system in place
– If not, advocate for one, document problem,
have a back up plan
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 43
Complaint Procedure
• Complaint form through Office of Civil
Rights, Compliance and Review
• Department of Justice will look favorably on
intermediate steps that recipients take given
that compliance will take time
7/7/2015
Legal Mometnum and KY Health and Family Services
44
Questions and Answers
• Language Access
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 45
BASIC IMMIGRATION RELIEF:
SCREENING FOR IMMIGRATION RELIEF AND
UNDERSTANDING THE VARIOUS FORMS OF
RELIEF AVAILABLE TO IMMIGRANT VICTIMS
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 46
Learning Objectives
• Understand the basic immigration relief
available to immigrant victims
• Screen for immigration relief and
undertake/participate in preparation of the
immigration case
• Identify cases which require immigration
attorney representation
• Learn how to help immigrant survivors file
VAWA self-petition and U-visa applications and
how doing so benefits the custody case
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 47
Benefits for Victims
Protection from deportation
Enhanced safety for victim
Financial independence from perpetrator
Legal work authorization (6-7 months of filing)
VAWA confidentiality
Temporary legal immigration status
Protections for family members
Greater ability to gain/maintain custody of her
children
• Better access to victim services, health care, and
benefits
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National Immigrant Women's Advocacy Project at the
American University Washington College of Law
48
7/7/2015 … 48
Potential Immigration Remedies
• Applications filed with DHS
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VAWA self petition
Battered spouse waivers
U-visa (crime victims)
T-visa (victims of trafficking)
Special Immigrant Juvenile Status
Deferred Action for Childhood Arrivals (DACA)
• Forms of relief from removal- granted by
Immigration Judge
– VAWA cancellation of removal
– VAWA suspension of deportation
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 49
VAWA SELF-PETITIONING
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 50
General VAWA Self-Petitioning Requirements
• Subjected to Battery or Extreme Cruelty
• By a U.S. Citizen or Permanent Resident
– spouse,
– parent,
– adult son/daughter (over 21)
• With Whom self-petitioner resided
– No time period required
• Good Moral Character
• Good Faith Marriage
How is “extreme cruelty”
defined?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 52
Forms of Extreme Cruelty
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Emotional Abuse
Economic Abuse
Sexual Abuse
Coercion
Deportation threats
Immigration related
abuse
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Intimidation
Social Isolation
Degradation
Possessiveness
Harming pets
Factors that can constitute extreme cruelty
• Correlate strongly with physical & sexual abuse
– Isolation
– Intimidation
– Economic Abuse
– Employment Related Abuse
– Immigration related abuse
• Threats to kill or cause bodily harm
• Threats to harm children or family members
• Threats to take away children
• Threats to take away money
Approved VAWA petitions
• Protection from deportation and detention
– deferred action status.
• Legal work authorization
– 6 months if abuser citizen spouse (26.1%)
– If abusive spouse is lawful permanent resident
– 1 year 46.8% to 13-18 months 27.1%
• Ability to apply for lawful permanent
residency through VAWA
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 55
WHAT KINDS OF EVIDENCE COULD A
VICTIM SUBMIT TO PROVE BATTERING
OR EXTREME CRUELTY?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 56
Proof of Extreme Cruelty or Battery
• Self-petitioner’s
declaration
• Others’ declarations
(family, neighbors, friends,
faith communities,
workplace, school)
• Domestic abuse service
providers (shelters, crisis
lines, support groups)
• Protection orders
• Criminal court records
• E-mails, notes, letters,
voicemails
• Photos: injuries, broken
windows, furniture
• Medical records (injuries,
scars, PTSD, migraines,
insomnia)
• Vet records
• Counselors (marriage,
religious, mental health)
• Police reports
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 57
VAWA self-petitioning available
• If case filed within 2 years of marriage
termination
• Bigamy?
• Child abuse up to age of 25 to file
• Step children up until divorce
• Credible evidence standard of proof (police
report, protection order, medical records
NOT required)
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 58
VAWA self-petitioners get:
• Deportation: Protection from deportation soon after filing.
• Immigration Benefits for Children:
– VAWA self-petitioners’ children receive immigration benefits
– VAWA cancellation parole into US visa process required
• Public Benefits: As qualified immigrants (≈ 3 months)
Employment authorization:
– Citizen abuser (≈ 6 months);
– Lawful permanent resident abuser (≈ 12 months).
• VAWA confidentiality: protections against the release of
information and reliance on abuser provided information
• Lawful permanent residency
– Citizen perpetrator apply upon approval (1 year)
– Lawful permanent resident perpetrator (≈ 5+ years)
59
VAWA victims get following protections
• Deportation: Protection from deportation shortly after filing.
• Immigration Benefits for Children:
– VAWA self-petitioners’ children receive immigration benefits
– VAWA cancellation parole into US visa process required
• Public Benefits: As qualified immigrants (≈ 3 months)
• Employment authorization:
– Citizen abuser (≈ 6 months);
– Lawful permanent resident abuser (currently ≈ 6 months,
past ≈ 15 months)
• VAWA confidentiality: protections against the release of
information and reliance on abuser provided information
• Lawful permanent residency
– Citizen perpetrator apply upon approval (1 year)
– Lawful permanent resident perpetrator (≈ 5+ years)
60
Conditional Residence & Battered
Spouse Waivers
• Battered Spouse Waiver
• Waives the joint filing requirement and two year wait for
full lawful permanent residency
• Requires proof of
– Good faith marriage to U.S. citizen and
– Battered or subjected to extreme cruelty by the citizen
spouse
• Court’s role:
– Findings of fact regarding abuse in divorce or custody
proceedings
– Issuance of protection order
– Information available at court about victim’s immigration
options
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 61
VAWA Cancellation Elements
• Relationship to abusive party (broader than selfpetition)
– Mother of a child abused by the child’s other parent
who is a USC or LPR even when no marriage
– More than 2 years have passed since divorce from the
abuser
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Battered or Subject to Extreme Cruelty
Good moral character
Extreme Hardship to return to the home country
Three years physical presence in the U.S.
Not inadmissible
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 62
Screening for Red Flags
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Alcohol abuse
Drug trafficking
Drug abuse or addiction
Illegal gambling
False testimony for immigration
purposes
Penal confinement
Genocide, torture, killings,
violations of religious freedom
Child Protective Services
intervention
Communicable disease
Physical or mental disorder
Any criminal convictions
Unlawful voting
Polygamy
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Prostitution
Human trafficking
Money laundering
Terrorist activities
Espionage
Communist
Public charge
Immigration violation
Misrepresentation for
immigration purposes
Stowaway
“Alien smuggling”
Draft evasion
Previously deported
Unlawfully present
Unlawful entry
International child abduction
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 63
VAWA Specialized Unit Effective
• The non-partisan Congressional Research
Service noted that DHS has incorporated
safeguards for adjudicating these cases and
there is no empirical evidence of fraud.
• DHS uses a high degree of diligence and
vigilance in adjudicating these cases
– Requests for further evidence rate (DHS 20072011)
• 74% VAWA cases
• 18.3% family visa petition cases
Immigration Relief Tools
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Glossary of terms
Red flags list
Identifying survivors screening tool
Remedies comparison screening tool
Self-petitioning flow charts for adults/children
U-visa flow chart
Evidence checklists:
– Self-petitioning
– U-visa
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 65
Questions and Answers
• VAWA Self-petitioning
• VAWA cancellation of removal
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 66
THE U-VISA FOR CRIME VICTIMS
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 67
Crime Victim (“U”) Visa Requirements
• Victim of a qualifying criminal activity
• Has been, is being, or is likely to be helpful
• Suffered substantial physical or mental
abuse as a result of the victimization
• Possesses information about the crime
• Crime occurred in the U.S. or violated U.S.
law
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 68
“Investigation or Prosecution”
Includes:
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Detection
Investigation
Prosecution
Conviction
Sentencing
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 69
Criminal activities covered by the U-visa?
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Stalking
Prostitution
Female Genital Mutilation
Blackmail
Extortion
Manslaughter
Murder
Felonious assault
Witness tampering
Involuntary servitude
Slave trade
Being held hostage
Kidnapping
Abduction
Peonage
False Imprisonment
Fraud in Foreign Labor Contracting
Obstruction of justice
Perjury
Attempt, conspiracy or solicitation
to commit any of these crimes
• Any similar activity
•
•
•
•
•
•
•
•
•
•
•
•
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 70
Why “Criminal Activity” and not
limited to “Crimes”?
• U visa protection available even when:
Investigation does not result in prosecution
Victim helpful in investigation does not testify at trial
Abuser eludes arrest
Criminal case dismissed
Victim comes forward makes report and police or
prosecutors decide not to prosecute
– Prosecution but no conviction
– Victim of listed criminal activity but another crime
prosecuted
– Prosecution cannot take place (diplomats, no
extradition)
–
–
–
–
–
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 71
U Visa Criminal Activities
Domestic violence 39.4-45.9%
Human trafficking – labor 25% , sex 24.2%
Rape, sexual assault, incest 9.3%
Felonious assault, murder, manslaughter 9.9%
Kidnapping, being held hostage, unlawful
criminal restraint, torture 8.47%
• Blackmail, extortion, perjury, obstruction of
justice, attempts, conspiracy, solicitation 5.3%
•
•
•
•
•
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 72
What protection is there for family
of U Visa applicants?
• Adult victims:
– Spouse
– Children
• Victims under 21 at time of criminal activity
– Spouse
– Children
– Parents
– Unmarried siblings under 18 (at the time of
filing)
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 73
“Physical or Mental Abuse”
• Injury or harm to the victim’s physical
person
• Impairment of the emotional or
psychological soundness of the victim
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 74
What is substantial physical or
emotional abuse?
• Decided based upon each individual’s experience
• Case-by-case determination using these factors:
–
–
–
–
–
nature of the injury inflicted or suffered;
severity of the perpetrator’s conduct;
the severity of the harm suffered;
the duration of the infliction of harm;
permanent or serious harm to victim’s
• appearance,
• health,
• physical, and mental soundness
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 75
Substantial Abuse (continued)
• No one factor is required
• Can include pre-existing conditions
• Can consider the severity of the
perpetrator’s conduct even if the actual
impact is less than intended by the
perpetrator
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 76
Victim Must Additionally Prove:
• Physical or mental abuse as a result of the criminal
activity
• Disclose criminal history, if any:
–
–
–
–
Immigration law definition of “aggravated felony”
Discretionary waivers available
No waiver if history of espionage or terrorism
Victim will be fingerprinted
• Immigration history including violations, if any:
– Misrepresentation on an immigration application
– Removal proceedings
• Information about family members who may also
receive U-visas
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 77
Who can certify?
• Police officer
– Local and State police
– Federal
– University
•
•
•
•
•
•
Prosecutor (State and Federal)
Judge
Immigration Officer
Adult and Child Protective Services
EEOC, DOL and state labor agencies
Other authority with responsibility for
investigation or prosecution of criminal activity
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 78
Other Federal, State or Local
Agencies
• Agencies with criminal investigative
jurisdiction
• In areas of expertise
• Including but not limited to
– Child Protection Services Worker
– Adult Protective Services Worker
– EEOC
– Department of Labor
– AFT, FBI
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 79
DHS Roll Call Video 1
• http://niwap.org/training/DHS-roll-call/
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 80
What the U-visa Certification Form
Asks From a Certifier:
• What criminal activity occurred?
• Identify the victim
– Include any findings regarding injuries
• Helpfulness of the victim
– Current,
– Past, OR
– Willingness to be helpful
• Any family members implicated in the crime
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 81
Common Concerns of
Law Enforcement
• Does not want to confer citizenship on victim
• Certifications are going to create an administrative
backlog
• Belief that undocumented immigration status is a
criminal federal offense
• It’s the responsibility of Homeland Security, not of
the local police
• Victim is uncooperative or no longer helpful
• Victim has a criminal history
• Crime occurred a long time ago or the case is closed
• Perpetrator cannot be found, identified, or is dead
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 82
DHS Roll Call Videos
• http://niwap.org/training/DHS-roll-call/
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 83
The U-visa Process
Government official signs certification
Victim files U-visa application
DHS adjudication – grants/denies U-visa
U visa or wait-list approval
Can apply for green card after 3 years
Can apply for citizenship 5 years after green
card
• Benefits:
•
•
•
•
•
•
– U visa recipients are lawfully present for federal
health care purposes.
– Some states give benefits upon filing of the U visa
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 84
U-visa Application Victim Flow Chart
Criminal
activity
occurs.
IF: The victim has been helpful, is being helpful, or is likely to be helpful to law enforcement
OR
The victim is under 16 years of age and victim’s parent, guardian, or next friend has been helpful, is being helpful, or is likely to be helpful to law enforcement
OR
The victim is 21 years of age or older and is deceased due to the criminal activity, incapacitated, or incompetent;
the spouse and/or children under 21 of the victim have been helpful, are being helpful or are likely to be helpful to law enforcement
OR
The victim is under 21 years of age and is deceased due to the criminal activity, incapacitated, or incompetent;
the victim’s spouse, children, parents, or unmarried siblings under 18 have been helpful, are being helpful or are likely to be helpful to law enforcement
THEN
Victim (or legal representative) seeks I-918B, Law Enforcement Certification.
(if victim is not working with a service provider, law enforcement officers can refer victims at this point.)
Victim submits U-visa application to the Victims and Trafficking Unit of USCIS
showing that the victim meets each of the U-visa eligibility requirements.
The application includes*:
• U visa application form – Form I-918
• Law Enforcement Certification – Form I-918, Supplement B
• Documents related to victim’s identification
• Victim’s signed statement describing the facts of the victimization
• Any information related to victim’s criminal history, including arrests
• Any information related to victim’s immigration history, including prior
deportation
• Any information related to victims health problems, use of public benefits,
participation in activities that may pose national security concerns, and moral
turpitude
• Any information related to the victim’s substantial physical or mental abuse
suffered
• Other documentation such as police reports, medical records, letters of support
from service providers.
Eligible family members can also apply.
* Other administrative documentation is also required. More information is
available at www.legalmomentum.org.
Law Enforcement provides victims with:
1. I-918 Law Enforcement Certification signed in blue ink and completed by
a. the head of the certifying agency; OR
b. a person in a supervisory role specifically designated
by the head of the agency to sign certifications
2. Any supporting documentation such as reports and findings; and
3. In the case of 1b) a letter from the head of the agency designating
another person to sign the certification (designee letter).
Within about 6 months,
victim receives
decision on U-visa
application. If approved,
victim receives work permit.
If applications
for family members are
approved and they are
abroad, consular processing
begins.
Within about 1 month,
victim receives receipt
notice from USCIS
confirming filing
of U-visa application.
After 3 years, U-visa holders (victims) apply
for lawful permanent residence (“green
card”)
The application includes:
• Adjustment of Status Application- Form I485
• Any information related to the victim’s
continuous presence in the U.S. since
obtaining U-visa status
• Any information indicating that USCIS
should
exercise its discretion to grant lawful
permanent residence
• Any information indicating that the U-visa
holder has not unreasonably refused to
cooperate with an ongoing investigation
or prosecution
Eligible family members can also apply.
Prepared by the National Immigrant Victims Access to Justice Partnership (2010). This project was supported by Grant No. 2009-DG-BX-K018 awarded by the Bureau of
Advocacy
Project
at the
Justice Assistance. The Bureau of Justice National
Assistance is aImmigrant
component of theWomen's
Office of Justice
Programs, which
also includes
the Bureau of Justice Statistics, the National
7/7/2015
Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions
in this
American
University
Washington
College
of
Law
document are those of the author and do not represent the official position or policies of the United States Department of Justice.
… 85
U-visa Facts and Benefits
• Only 10,000 U-visas can be granted annually
• The U-visa grants a temporary 4 year stay
• Work authorization ( ≈ 6-7 months)
• Limited state benefits in a few states
• Lawful permanent residency after 3 years if
– Cooperation or not unreasonably refuse to cooperate
– + humanitarian need, family unity or public interest
• U.S. citizenship after 5 years of lawful permanent
residency+ proof of good moral character
86
Which U-Visa Recipients Can Obtain
Lawful Permanent Residence?
• Did not unreasonably refuse to cooperate
in the detection, investigation or
prosecution of criminal activity; AND
– Humanitarian need, OR
– Family unity, OR
– Public interest
• Homeland Security review of cooperation
and the reasonableness of non-cooperation
is required for lawful permanent residency
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 87
Comparison: VAWA vs. U-visa
•
•
•
•
•
•
•
•
•
•
VAWA Self-Petition
Abuser: spouse, former
spouse, parent, 21+ USC
child
Abuser USC or LPR
Children included
No cooperation with law
enforcement required
No proof of harm
Criminal involvement can cut
off access to relief
Qualified immigrant = public
benefits
One year wait for work
authorization
Protection from deportation
for 1 year
Green card after approval if
abuser is a citizen, or 3+
years wait if abuser is LPR
•
•
•
•
•
•
•
•
•
•
U-visa
Abuser: anyone
Any status
Children included
Cooperation in detection,
investigation or prosecution
required
Substantial physical or
emotional abuse
Crimes can be waived
PRUCOL less benefits access
One year wait for work
authorization
If in immigration
proceedings, case expedited
Green card after 3 years if
can show cooperation +
either humanitarian need,
public interest or family
unity
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 88
THE T VISA FOR HUMAN
TRAFFICKING VICTIMS
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 89
Questions and Answers
• U Visa
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 90
Requirements for a T visa
• Must be victim of a severe form of trafficking in
persons
• Victim must be physically present in U.S., American
Samoa, or Commonwealth of the Northern Mariana
Islands, or at a port of entry thereto, on account of
the trafficking
• Has complied with any reasonable request for
assistance in the investigation or prosecution of acts
of trafficking; OR
• Has not attained the age of 18; AND
• Would suffer extreme hardship involving unusual
and severe harm upon removal
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 91
A severe form of trafficking in
persons means:
• Sex trafficking in which a commercial sex act is
induced by force, fraud or coercion, or in which
the person induced to perform such act has not
attained 18 years of age; or
• 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.
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 92
Force, Fraud, or Coercion
•
•
•
•
•
Debt servitude
Surveillance
Physical barriers
Threats to safety
Physical isolation from
protections
• Psychological isolation
• Threats to deport or
contact law
enforcement
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 93
Human Trafficking simplified
• Process:
–
–
–
–
Recruiting,
Transporting,
Obtaining,
Moving
• Means:
– Force,
– Fraud, or
– Coercion
• End:
– Labor or
– Commercial Sex
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 94
Trafficking v. Smuggling
• Crime against a person
• Contains an element of
coercion
• Subsequent
exploitation
• Trafficked people
treated as victims
• Unauthorized border
crossing
• No coercion
• Facilitated entry by
another person
• Smuggled people
treated as criminals
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 95
Identifying Trafficking Victims
• Case may not initially appear to be trafficking
–
–
–
–
–
–
Prostitution
Pornography
Domestic violence
Labor problems
Child welfare
Domestic workers
• How U visa trafficking differs from
– T visa trafficking
– Continued presence
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 96
Screening for Human Trafficking
• Recruitment
• Was the victim recruited by someone?
• What kind of job in the U.S. was offered to the
victim?
• How much money was promised to the victim
and by whom?
• Did the victim sign a contract?
– What were the terms of the contract?
• Was the victim sold?
– By whom?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 97
Screening: Migration
• Was the victim kidnapped or coerced into
migration?
– How?
•
•
•
•
How did the victim obtain documents?
Which documents were obtained?
How did the victim travel to the U.S.?
Was a fee paid for organizing the victim’s
migration?
– By whom and to whom?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 98
Screening for Human Trafficking
• Arrival
– Did the victim have control over his/her
identity documents?
– What happened to the victim’s identification
documents after arrival?
– Did the employer/trafficker use the victim’s
identity for another purpose?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 99
Screening: Work Conditions
• Was the victim placed into debt bondage?
– By whom?
• Were working conditions different than what the victims
expected?
– How?
• Was the victim’s movement restricted?
– How?
•
•
•
•
Was the victim living and working at the same place?
Was the victim chaperoned, guarded, incarcerated?
Was the victim paid and at what rate?
How many hours a day did the victim work?
– Could they predictably leave work?
– Time off?
– Allowed to rest if sick?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 100
Working Conditions continued:
• Was the victim allowed to communicate with
family members? Other workers? Make friends?
• Was the victim able to quit working for the
employer and get a job somewhere else?
• What strategies were used to coerce the victim?
–
–
–
–
–
Physical assault or torture
Sexual assault, rape, sexual harassment/abuse?
Incarceration, imprisoned or physically isolated?
Denial of medical care, food, clothes, basic necessities?
Did the victim attempt to escape?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 101
Screening for Human Trafficking
• Psychological Coercion
– Debt bondage?
– Threats of physical abuse, harm or retaliation?
– Others abused in front of victim?
– Victim’s family members threatened?
– Threats to report victim for deportation/jail?
– Verbally abused, humiliated or degraded?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 102
T-visa Facts and Benefits
• 5,000 U-visas can be granted annually
• The T-visa grants a temporary 4 year stay live and work
in the U.S.
• Work authorization ( 6 months 2/2014)
• Adult: Can petition for victim’s spouse/children
• Under 21 child: Can petition spouse, children, parents +
siblings under 18
• Family members can include their children
• Lawful permanent residency after 3 years
• U.S. citizenship after 5 years of lawful permanent
residency+ proof of good moral character
103
Questions and Answers
• T Visa
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 104
Special Immigrant Juvenile Status
• Jurisdiction over the care, custody or
dependency of a minor child
• PLUS – finding that reunification with at
least one parent is not viable due to
– Abuse, abandonment, neglect
– VAWA 2005 Abuse includes battery
• AND Not in the child’s best interest to be
returned to their home country
105
Range of Court Orders in Which
Findings Can be Made
• Court order, finding, declaration
• Awarding custody or
• Any order involving placing a child with an–
– Agency
– Department
– Individual
•
•
•
•
Non abusive parent
Grandparent
Kinship care
Other
106
Types of proceedings SIJS findings
•
•
•
•
•
•
•
•
•
•
•
Custody
Divorce
Legal Separation
Motions for a declaratory
judgment
Dependency
Delinquency
Termination of parental rights
Guardianship
Materials: SIJS Examples Provided By Case http://niwaplibrary.wcl.american.edu/reference/
additional-materials/materials-for-adjudicatorsPaternity
and-judges/tools-for-courts/family-law/SIJSProceedings-Chart.pdf/view
Child support
Criminal cases
107
What Children with SIJ Status Receive
•
•
•
•
•
•
Protection from deportation and removal
Legal permanent residency
Government issued ID
Legal work authorization
Eligibility for driver’s license
As lawfully present children in D.C.
– Health care
– Some may get benefits open to unaccompanied refugee minors
– Programs and services open to all undocumented persons
• Eligible for citizenship after five years
• SIJ’s may NEVER file family petition for natural parents
U Visa vs. SIJS
U Visa
SIJS
• Cannot file for immigration
relief for abusive parent
• Abuse or battering or
extreme cruelty by DHS
• Cannot file for immigration
relief for abusive parent
• Abuse, abandonment, neglect
by family court
• No findings regarding
viability of reunification
• Less family law implications
• Benefits: Limited includes
Health Care
• Requires finding that
reunification not viable
• Greater family law
implications
• Benefits: Same as lawful
permanent resident
– Can include extreme cruelty
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 109
DEFERRED ACTION FOR
CHILDHOOD ARRIVALS (DACA)
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 110
Temporary protections for immigrants who
entered US as children
• Came to the United States under the age of sixteen;
• Has resided in the United States for a least five years
preceding the date of this memorandum and is present
in the United States on the date of this memorandum;
• Is currently in school, has graduated from high school
or GED, or is an honorably discharged veteran of the
Coast Guard or Armed Forces of the United States;
• Has not been convicted of a felony offense, a significant
misdemeanor offense, multiple misdemeanor offenses,
or otherwise poses a threat to national security or public
safety; and
• Is not above the age of thirty
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 111
DACA vs. SIJS
SIJS
DACA
• Could eventually file for
either parent depending
on the type of status
• Work authorization
• Driver’s license
• No family law implications
• Benefits: Limited
• Could eventually file for nonabusive parent depending on
the type of status
• Cannot file for immigration
relief for abusive parent
• Abuse, abandonment, neglect
by family court
• Requires finding that
reunification not viable
• Work authorization and
driver’s license only after
lawful permanent residency
• Benefits: Same as lawful
permanent resident
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 112
Avenues to Lawful Permanent
Residency for DACA Children
• VAWA self-petition
– Self or parent
• VAWA cancellation of Removal
– Self or parent
• U Visa
– Self or parent
• T Visa
– Self or parent
• SIJS
– Self
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 113
Help Needed for DACA Children
• Distribute information about crime victim
related relief
• Safely screen for eligibility
• Connect to resources and trained agencies
who can help children and youth file
– NIWAP Directory
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 114
Questions and Answers
• SIJS
• DACA
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 115
Screening and Safety Planning In the
Context of Immigration Enforcment
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 116
VAWA Protections In a Time of Increased
Immigration Enforcement
• Increased funding = greater likelihood of
DHS response to perpetrator’s calls
• Need to be aware of local law enforcement
practices regarding immigrants
• Transportation issues for victims
– to courts
– to services
• Secure Communities and the dangers of
dual arrest
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 117
Secure Communities
• Secure Communities is an information sharing
program between federal, state, and local law
enforcement agencies
• When individuals are arrested, they are
fingerprinted
• Fingerprints sent to FBI and ICE and checked
against immigration records.
• Secure Communities program resulted in an
89% increase in the percentage of convicted
criminals removed by ICE (Oct 2011)
• 2014 jurisdictions can opt out of program
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 118
VAWA Confidentiality
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 119
VAWA Confidentiality
• Non-Disclosure: DHS cannot disclose VAWA
information to anyone
– Victims with VAWA confidentiality protected cases filed
• Abuser-Provided Information: DHS barred from
making inadmissibility or deportability decisions
based solely upon information provided by abusers,
including family members of abusers
– All victims
• Location Prohibitions: Enforcement locational
prohibitions
– All persons
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 120
Non-Disclosure: Protecting
Immigration Files
• Prohibits from disclosing of any information relating to
someone who has filed one of the eligible self-petitions,
a T or a U visa.
• Applies to Departments of:
– Justice
– Homeland Security
– State
• Disclosure rules extend to
– Everyone
– Not only crime perpetrator
• Disclosure rules generally bar access by government
officials
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 121
Non-Disclosure: Protecting
Immigration Files: Exceptions
• Legitimate law enforcement/national security
purposes only in manner that protects the
confidentiality of the information
• Judicial Review of immigration case only (Hawke)
• Agency to whom victim has applied for public
benefits only for benefits granting purposes
• Limitation ends when application for relief is denied
on substantive grounds and all opportunities for
appeals have been exhausted
• If no denial, confidentiality continues
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 122
Relying on Abuser Provided
Information
• The government cannot gather and/or use
information provided solely by a perpetrator
or his or her family members to make adverse
determination regarding admissibility or
deportability
• The victim does not have to have filed or even
qualify to file a VAWA, T or U visa immigration
application
• Need only prove that the individual is a
protected immigrant
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 123
Location Prohibitions:
Immigration judge to dismiss case if any part of an
enforcement action occurs at:
• A shelter
• Rape crisis center
• Supervised visitation center
• Family justice center
• Victim services program or provider
• Community based organization
• Courthouse in connection with any
– Protection order case, child custody case, civil or criminal
case involving or related to domestic violence, sexual assault,
trafficking, stalking
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 124
Location Prohibitions
• This enforcement location bar applies in all
cases and does not require victimization
• But if there is an enforcement action at one of
these locations:
– the Immigration Court Notice to Appear must
include a certification by a DHS official
– confirming that none of the VAWA confidentiality
prohibitions were violated
– DHS Policy
• VAWA Confidentiality Enforcement
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 125
New Courthouse Enforcement Policy
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 126
DHS VAWA Confidentiality
Computer System
• Directs use of new “red flag” “384” computer
system to identify victim who have already
filed for or have been granted victim-based
immigration relief
• Reminds immigration officers, agents,
attorneys about immigration law protections
for
– Victims of domestic violence
– Crime victims
– Human trafficking victims
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 127
Preventative Strategies
• File skeletal immigration applications
• Provide victims with proof of filed VAWA, T
or U case
• Object to discovery of information
contained in or about the immigration case
in family court proceedings
• Have copies of DHS policies to advocate
when violations happen
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 128
Relying on Information, Locational
Prohibitions: Preventative Strategies
• Provide victims with proof of victimization
• Work with DHS and local law enforcement to screen for
victimization
• Prevent and not pursue actions against victims
• Train personnel who work at prohibited locations
• File skeletal immigration applications
• Advise victim and everyone working with the victim
about these protections…they may need to advocate on
the spot
• Distribute copies of DHS policies
– 384 Computer system
– Pending applications
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 129
WHERE ELSE IS DHS NOT SUPPOSED TO
CONDUCT ENFORCEMENT ACTIVITIES?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 130
Where else is DHS not supposed to
conduct enforcement activities?
•
•
•
•
Schools
Places of Worship
Funerals
Religious Activities
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 131
When Violations Happen
•
Advocate on the spot---provide
–
–
–
–
–
•
proof of victimization,
Copy of the statute
DHS enforcement policy
DHS complaint system
DHS 384 system
Collect information about the violating officer
– Name
– Agency
– Badge Number
•
•
Work it up the chain to a supervisor
File a formal complaint– penalties of up to $5000 per incident against the violating officer individually
– Also disciplinary actions
•
Advocate for release from detention/jail, termination of immigration
proceedings, granting immigration relief
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 132
Additional DHS Policies That Help
• Most immigrants without criminal histories
• Parents, caretakers, children, the disabled
• Crime victims and witnesses
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 133
DHS Humanitarian Release
2007 expanded in 2008
• Breastfeeding mothers
• Sole/primary caregivers of children
• Screening in detention done
– In English/Spanish
– Oral and writing
• Release as
– Order of recognizance
– Order of supervision
– Alternatives to Detention
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 134
DHS Memos
• DHS Enforcement priorities
– Halting removal proceedings against immigrants with
pending applications likely to be approved (8.20.10 and
2.4.2011)
– Low priority immigrants vs. high priority immigrants
(3.3.2011)
– Prosecutorial discretion (6.17.2011)
– DHS and White House Directives regarding immigration case
processing (8.18.2011)
– Protections for immigrants who came to US as children
(6.15.2012)
• Protections for crime victims
– Initiation of VAWA confidentiality computer check system
(12.21.2010)
– Prosecutorial discretion for crime victims (6.17.2011)
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 135
DHS Prosecutorial Discretion Not to Initiate Removal
Against Crime Victims and Witnesses
• Minimize the effect that immigration enforcement may
have on the willingness and ability of
– Victims of crime
– Witnesses to crime
– Individuals pursuing legitimate civil rights complaints
– To call the police and pursue justice
• Designed to stop immigration officials from acting
– When local police make dual arrests
– Leading to victims being arrested and having their
fingerprints turned over to DHS
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 136
DHS and White House Working to Ensure
Enforcement Conforms to DHS Priorities
• In the civil immigration context DHS is confronted
with more administrative violations than resources
• By favorably exercising prosecutorial discretion,
DHS decides not to assert the full scope of its
enforcement authority available to the agency in
“low priority” cases on a case by case basis
• Prioritize use of enforcement personnel,
detention space and removal assets on:
–
–
–
–
National security
Border security
Public safety
Integrity of the immigration system
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 137
Positive factors
Length of time in US (including lawful presence)
Circumstances of arrival, manner of entry
Presence in the U.S. since childhood*
Pursuit of education: US high school/college
Person/close family, veteran/military particularly combat*
Community/family ties, contributions
Ties to/conditions in home country
Age – minor, elderly*
USC/LPR spouse, parent, child
Person who suffers from serious mental or physical
disability or serious health condition*
• Primary caretaker of child, person with mental/physical
disability, seriously ill parent
• Crime victim or witness*
•
•
•
•
•
•
•
•
•
•
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 138
Other positive factors
•
•
•
•
Pregnant or nursing women
Spouse is pregnant or nursing
Nationality renders removal unlikely
Long time lawful permanent residents
• Likely to be granted immigration relief as
– spouse, child of a citizen of lawful permanent resident
– Domestic violence, trafficking or victim of other serious
crime
– Crime victim
– Asylee/refugee
• Victims and Witnesses cooperating or has cooperated
with federal, state or local law enforcement authorities,
such as ICE, federal or state prosecutors, Department of
Labor, or National Labor Relations Board, among others
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 139
Negative Factors to Consider
• Clear risk to national security*
• Serious felons, repeat offenders, or individuals with a
lengthy criminal record of any kind*
• Known gang members or other individuals who pose a
clear danger to public safety*
• Individuals with an egregious record of immigration
violations, including those with a record of illegal re-entry
and those who have engaged in immigration fraud*
• Criminal history, including arrests, prior convictions, or
outstanding arrest warrants
• Immigration history, including any prior removal,
outstanding order of removal, prior denial of status, or
evidence of fraud
• Whether the person poses a national security or public
safety concern
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 140
White House and DHS Announcements
(August 18, 2011)
• Requires DHS attorneys to review all immigration
court cases and
– “Totality of the circumstances”
– Case by case review
– Administratively close “low priority cases”
• With ability to apply for work authorization
– Includes review final orders of removal in compelling
cases
• Future cases screened for priority and removal not
initiated if “low priority”
• Three tier system
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 141
Parental Interest Directive Aug 2013
• Factors that prevent detention of parents – DHS screens for
– Parent or legal guardian of citizen or legal permanent resident child
– Primary caretaker of a minor child
– Encourages prosecutorial discretion
• Immigrant parents generally are a low priority for removal
• If parent detained
– Placement near children and family court
– New DHS procedures to bring parents to family court to participate
in cases involving children
– Facilitate visitation
– Help children travel with deported parent –obtain passports for
children
– Bring deported parents back to the US for custody and parental
rights cases
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 142
A New Era In Safety Planning
With Immigrant Survivors
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 143
Safety Planning and Action Steps for
Immigrant Survivor
• Tools
– New safety planning flow chart
– Immigrant victim brochure
• Documentation victim can carry with her
– Evidence that immigration case has been filed
– Civil protection order
• Understand and intervene early in child
welfare system
• Victim must tell DHS enforcement officials
that she has children
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 144
Safety Planning Challenges Related to
Enhanced Immigration Enforcement
• Immigration screening as early as possible essential
• Cannot assume by name or sight that victim is or is
not an immigrant
• Changes in strategy – Immigration case filed before
– CPO, family or criminal court case
– Victim travels to new location
• Give client number of consular notification if she is
detained – essential particularly if she has children
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 145
Application for VAWA, T or U immigration status
improves immigrant victims access to public
assistance
• Screen for immigration case already filed
• Screening + Filing (VAWA, T or U) =
– Lawful Presence
• Filing for immigration benefits required for VAWA
self-petitioners to become qualified immigrants
eligible for federal public benefits
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 146
Early Victim Identification, Certification &
VAWA/U-Visa Filing
• Cut off perpetrator’s ability to trigger the victim’s
deportation
• Help victim secure
– Protection from deportation
– Release from detention
– Swift adjudication of immigration case for victims
detained or in immigration proceedings
• Provide victim security & support
• Victim can more safely cooperate in criminal case
against perpetrator
• Set victim on path to legal work authorization
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 147
IMMIGRANT SURVIVOR WALKS THROUGH
THE DOOR OF YOUR AGENCY
HIGH
Is the survivor eligible for
immigrant relief under either
VAWA or the U-visa?
Gather information/evidence of crime
victimization that could be used to
elicit favorable prosecutorial discretion
on humanitarian grounds for the
survivor, including the following
factors:



Survivor of a crime (never called
the police)
Parent of USC children
School children2, 3
File/Serve abuser with notice of a Civil
Protection Order (and/or any other
family court proceeding, if applicable)
to deter abuser from committing
further violence against survivor
Abuser attempts to get
survivor removed from the U.S.
by reporting the survivor to DHS
NO
YES
What is the risk level of the survivor being
subjected
to immigrant enforcement or
DHS
immigration-related retaliation from the abuser?
File for immigrant relief through
either VAWA or the U-visa
[Survivor’s case is flagged in the
VAWA 384 computer system to
prevent immigration enforcement]1, 2
File/Serve abuser with notice of a Civil
Protection Order (and/or any other
family court proceeding, if applicable)
to deter abuser from committing
further violence against survivor
Abuser attempts to get
survivor removed from the U.S.
by reporting the survivor to DHS
[Wait approximately 9 months –
one year for VAWA/U-Visa]
Gather information/evidence of crime
victimization that could be used to elicit
favorable prosecutorial discretion on
humanitarian grounds for the survivor,
including the following factors:


DHS
stops
enforcement2, 4
File for a Civil Protection Order to
deter abuser from committing
further violence against survivor
Abuser attempts to get
survivor removed from the U.S.
by reporting the survivor to DHS

Victim’s representative/ advocate/attorney
provides evidence gathered for DHS + copies
of DHS memos when DHS arrives2, 3
LOW
DHS
enforcement
stopped because of
384 system
(protection from
deportation)
Survivor of a crime (never called
the police)
Parent of USC children
School children2, 3
Provide information for survivor to be
released on humanitarian grounds,
if eligible
IF APPROVED…
[Approved petition grants survivor work
Survivor isProject
released from
National
Immigrant Women's Advocacy
at the
authorization]
detention.
American University Washington College of Law
Survivor
is detained
in immigration
custody
Request a stay of
removal with DHS-ICE to
buy time to determine
what other options are
available to the
survivor4
Determine that the
survivor is eligible for
U-visa or VAWA, file
for immigration
remedy and ask for
expedited processing4
IF APPROVED…
Case against survivor
is automatically
dismissed even if
U-visa or VAWA
status has not been
approved2, 4
7/7/2015 … 148
If Victim is Detained
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 149
Public Advocate: Contact Field Liaison
• Helpline: 1-888-351-4024
• Assistant Field Office Emails: National List
– http://www.ice.gov/about/offices/enforcementremoval-operations/ero-outreach/contact.htm
• Encourages crime victims that were arrested and
subject to ICE detainer to call ICE’s Law Enforcement
Support Center (LESC) at their toll-free number: (855)
448-6903
– Enables ICE to take prompt action on immigrants
against whom enforcement would be inappropriate
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 150
HIS Victim Advocates
• HSI Victim Assistance Specialists and
Forensic Interviewers
– NIWAP can provide you the contact information
of the advocate in your jurisdiction
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 151
Steps to Secure Release From Detention
• Request stay of removal with DHS-ICE
– Buy time to determine options available to survivor
• Determine survivor eligible for VAWA or U-visa, file for
immigration remedy, and ask for expedited processing
– (if approved) Case against survivor automatically dismissed
even if VAWA or U-visa status not yet approved
• Gather information/evidence for favorable prosecutorial
discretion
• Survivor of crime
• Parent of USC children
• School children
• Provide information for survivor to be released on
humanitarian grounds
– (if approved) Survivor released from detention
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 152
Online Detainee Locator System
• ICE includes limited personal information about
detainees in a publicly searchable Internet database.
It is intended to assist family members, friends, and
legal representatives in locating persons in custody.
• ICE may not disclose information about any
individual who has applied for benefits under VAWA
or a T or U Visa without that person’s consent.
• A victim can check a box on the consent form that
says she does not consent to ICE disclosing
information about her status and location in the
database. If she does not complete the form, ICE will
not enter information about the detention.
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 153
Telephone Service for Detainees
• SP Telecom, at www.detaineescallhome.com
or 1-845-342-8000 provides reduced cost
telephone service for detainees and their
families
• The service provides each caller with
telephone numbers local to the facility of
the detained individual.
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 154
DHS Crime Victim Notification
• When perpetrator is in DHS custody
• Victim must register with DHS to be
informed of
– “release related activates”
– Receive information about relocation of the
offender
– Present victim impact statement to immigration
judge in perpetrator’s removal case
– 1-866-872-4973 (toll free)
– 202-732-5876 (fax)
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 155
Questions and Answers
• VAWA Confidentiality
• Prosecutorial Discretion
• Safety Planning
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 156
Lunch Break
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 157
Immigration Status Issues and
Family Law Cases
Special considerations for cases
involving non-citizen family
members
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 158
Immigration status not relevant to establishing
jurisdiction in family court cases
•
•
•
•
Protection order case
– domestic violence crime committed in state or
– victim needs protection in state
Divorce case
– residency of party in state
– Legal immigration status not required to establish residency under
state family laws
Custody case
– (UCCJEA, Federal PKPA, Hague Convention) often the home state of
children
Child support case
– where child or non-custodial parent lives
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 159
Impact of Divorce
• VAWA self-petitioners
– Must file within two years of final divorce
• Spouses and children of visa holders ends legal
immigration status in the United States:
– Students, Persons with legal work visas, Diplomats
• Divorce cuts off access to lawful permanent residency for
spouses and children of people seeking lawful permanent
residency based on:
– Employment based
– Asylum
– Family based
– Cancellation of removal applicants
• Annulment
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
160
7/7/2015 … 160
Annulment Instead of Divorce
• Annulment can lead to a marriage fraud finding that
– Permanently bars approval of any visa petition
– Is a ground for deportation
– Can lead to an unfavorable exercise of discretion by an
immigration judge not to immigration relief
• Impact on
– Spousal support
– Property division
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
161
7/7/2015 … 161
Protection Orders and
Immigrant Victims
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 162
Protection Orders and
Immigration Status
• Issuance of a protection order has no effect on
immigration status of the abuser
• Violation of a protection order is a deportable offense
– Violations of “ the portion of a protection order that
involves protection against credible threats of violence,
repeated harassment, or bodily injury to the person or
persons for whom the protection order was issued is
deportable”
– Not custody and support provisions
• Dangers for victims of a protection order issued against
her
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 163
Creative Protection Order Remedies
• Catch all provisions included in all state statutes
• Offer any additional relief that may potentially
– Curb future abuse, harassment
– Interfere with abuser/perpetrators ability to exert
power and/or control
– Offer victim remedy-relief for past abuse
– Help victim overcome victimization and build new post
abuse life
• Nexus With Victimization
• Opportunity for courts to counter immigration
related abuse
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 164
CREATIVE REMEDIES
What creative protection
order remedies might help
an immigrant victim?
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
165
Victims Who Stay:
Full Contact Protection Orders
• No state’s protection order statute requires
separation of the parties
• In virtually every state victims cannot violate
their own protection orders
– Contrary to statutory intentions; and
– Against public policy to prosecute abused women
for complicity in violating their own orders.
• Provisions
– No abuse
– Counseling
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
166
Suggestions for Court Orders that
help VAWA applicants: Examples
• Cooperate in and not withdraw any
immigration case filed on the victim’s behalf
• Turn over documents/evidence in abuser’s
control that she needs for her immigration
case. E.g.,
– Passports
– Identification documents
– Copies of documents from any immigration case
filed on the victim’s or the children’s behalf
– Love letters
– Family photos
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 167
A protection order or discovery can help
a victim obtain needed evidence:
• Marriage
certificate
• Wedding/family
pictures
• Birth certificates
• Love letters
• Copies of joint
leases/utility bills
• Police, medical,
court documents
about the
relationship,
• Copy of abuser’s
green card or
passport
National Immigrant Women's Advocacy Project at the American
University Washington College of Law
168
Protection order or discovery
continued
•
•
•
•
School records
Medical records
Employment records
Social security
number information
• Health insurance
• Children’s birth
certificates
• Letters and other
mail addressed to the
victim and to the
abuser at the same
address
• Copy of I-130
petition
National Immigrant Women's Advocacy Project at the American
University Washington College of Law
169
Catch-all Provisions Preventing
Immigration Related Abuse
• Defendant must obtain prior court approval
before contacting any government agency
(immigration officials, CPS, IRS, Welfare etc.)
concerning the petitioner except
– Police emergency
– Subpoena
• Cooperate in and not withdraw any case he
has filed for petitioner with immigration
authorities
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 170
Provisions that Deter Parental
Kidnapping
• Not remove the children from the court’s
jurisdiction
• Turn over passports of parties and/or children
• Sign statement that no visa or passport should
be issued to children absent court order.
• Supervised visitation
• Bond
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 171
Important Economic Provisions
• Maintain medical, car, house insurance, mortgage, rent,
utility and/or debt payments
• Child support and spousal support
• Injunctions against third party institutions not to
respond to acts by the abuser that would harm her
(banks, retirement funds, utility companies)
• Taxes
– Turn over income tax statements
– Victim named trustee for receipt of tax return funds,
respondent ordered to sign check
– Victim awarded exclusive right to claim children as tax
exemptions
– Respondent pays victim ½ of return
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 172
Custody of Children
in Immigrant
Families
Best Interests and Immigration
• Not factors:
– Immigration status
– English language proficiency
• Laws discouraging no award of custody to abuser
apply equally to immigrant victims
• Immigration information distracts the judge from
best interest factors in the statute
• Immigrant victims in custody cases will qualify for
– VAWA, U visa
– DHS victim/witness protections
– Humanitarian Release
174
Custody
• Factors typically considered:
-status quo
-primary caregiver
-division of labor within the household
-stability/ability
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 175
Temporary v. Final Orders
• Temporary Orders – temporary injunction
– Protection order
– Divorce
– Custody case
• Final Orders – permanent injunction
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 176
Travel Restrictions
• U.S. passport restrictions
• Who can apply for the child’s passport
– From any country the child could obtain one
• One party can be ordered to turn over the
passport
• Hague convention countries
• Non-Hague countries
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 177
Possession/Access – Visitation
•
•
•
•
•
•
Standard Possession Order
Supervised visits
Safe Visitation Exchanges
Court Ordered Visitation Centers
Telephone access, e.g., Skype or Face Time
Consulate role
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 178
Is immigration status relevant to
custody?
• Relevant to: Immigrant crime victim presents
evidence of immigration related abuse, power
and control suffered
– Either not filing or withdrawing immigration papers
– Threats to turn victim in for deportation
– Part of history of violence
• Not relevant to:
– Core primary caretaker determination
– Evaluation of parenting skills
– Best interests of the child determination
– Requirements regarding custody awards to non-abusive
parent
179
Facts
• Lack of legal immigration status does not mean
– Deportation is eminent
– Parent is likely to flee U.S.
– Victim parent does not qualify for immigration relief
• Legal immigrants/naturalized citizens are more
likely to flee with children
– When have been threats of kidnapping children
– When they are dual nationals
– Because they can travel freely to and from U.S.
180
Myths
• Myth: Need to be awarded custody to give
child immigration benefits
– FACT: Parent can apply for child to have
immigration benefits whether or not they
have custody
• Timing of citizenship may differ with custody
• Myth: Undocumented parent cannot receive
public benefits for the child
– FACT: Incorrect, they can apply for “child
only” benefits
181
Myths and Facts
• MYTH:
– Undocumented parent cannot financially support child
• FACTS:
– Immigrant victim would have work authorization but
batterer never filed papers (Catch 22)
• Immigrant victim parents are likely eligible for immigration
benefits that include:
– legal work authorization
– some access to benefits
• Child/Spousal support can be ordered
• Economic relief
– Housing
– Health care
182
Myths and Facts
• MYTH: Parent undocumented, detained or deported
can be a basis for termination of parental rights?
• FACT: Constitutional right to custody absent
unfitness
• Overriding presumption that parent child
relationship is constitutionally protected and
• In child’s best interest to stay with/be reunited with
their parent
• Applies to all families without regard to
– Immigration status; detention or deportation
• Child’s best interests not comparison of natural vs.
adoptive parent’s cultures, countries, or financial
means
183
Travis County Standing Order in
Family Law Cases
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 184
Standing Orders That Could Go Into
Effect Upon Filing Family Court Case
• Vary by local/state jurisdiction
• Provides protection to both parents
• Violation enforced by contempt of court
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 185
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 186
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 187
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 188
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 189
Child Support
• Child Support Factors
– Income (formulas)
– Special needs
– State guidelines
– Wage withholding
– Parents earning unreported income
– Minimum wage presumption
• Payments through court or state
disbursement centers
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 190
Questions and Answers
•
•
•
•
Custody
Visitation
Child support
Protection Orders
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 191
How children end up in state custody
• Someone makes a report of child abuse or
neglect
–
–
–
–
Hospital
School
Neighbor
Family member
• Parent does not show up to pick up a child
–
–
–
–
Parent arrested for a crime
Detention/deportation
Death
Hospitalization
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 192
What happens next?
• Removal proceeding
• Court enter the order placing the child
– Relative
– Kinship care
– Foster care
– Guardianship in place
– Power of attorney
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 193
How Victims End Up In DHS Custody
•
•
•
•
•
•
•
•
•
Abusers/crime perpetrators report them
Employers or co-workers report them
Traffic stops
Immigration enforcement at the worksite
Reports by CPS
Reports by welfare worker
Reports by health care providers
Reports by others
Victims call the police for help and police
– Make a dual arrest
– Arrest the victim
– Language access issues
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 194
If the parent has been detained
• Parental interest directive
• Immigration and customs enforcement
hotline
• Detainee locator
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 195
Things to keep in mind…
• Cultural considerations
– Discipline
• Consulate role
– Cultural awareness
– Education of
• Prosecutors
• Child Protective Services
• Judges
– Expert witnesses
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 196
If there has been a report of abuse,
neglect or abandonment
•
•
•
•
Investigation by Child Protective Services
Court hearings
Court ordered services
0-18 months to get the children back
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 197
Before Parental Rights Can be
Terminated: Federal law requires
• Child protective services has to make
reasonable efforts to reunify the family
• Place the child in the most family like
setting
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 198
Maria Luis Case
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 199
Immigrant Parents’ Constitutional
Right to Custody of Their Children
• Constitutional right to custody absent unfitness
• Overriding presumption that:
– Parent-child relationship is constitutionally protected
– In children’s best interest to stay with/be reunited with
their parent(s)
– Cultural comparisons improper
• Applies to all families without regard to:
– Undocumented immigration status
– Immigration detention
– Deportation
• Child’s best interest is most important
In re Interest of Angelica L., 277 Neb. 984 (2009)
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 200
A family reunited
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 201
Key Factors
• Need for early Consular notification
• Lack of language access to system
• Lack of information about immigrant parent
victim’s legal rights
• Limited or lack of eligibility for public-funded
services
• Limited timeframe for filing termination of
parental rights (TPR) petitions under the
Adoption and Safe Families Act
– conflict with immigration case time frames
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 202
Questions and Answers
• Child Abuse and Neglect
• Termination of Parental Rights
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 203
Immigrant Victims’ Legal
Rights to Access Benefits,
Housing, Legal Services,
Victim Services and
Protections
National Immigrant Women's Advocacy Project at the
American University Washington College of Law
7/7/2015 … 204
Overview of Barriers for
Immigrant Survivors
• Language access
• More legal rights tools needed
– For benefits staff
– For victim advocates and attorneys
• Immigration and benefits law confusing
• Not enough help for survivors filing for immigration
protections
• Survivors afraid to seek benefits
– VAWA 2013 – public charge exception
• Apparent conflict between state laws/policies and federal
benefits and services access laws
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 205
Review of Resources and
Materials
• Materials available at go link
– Government: statutes, policies, regulations
– Screening and benefits identification tools
– Detailed benefits legal research, legislative history information
supports advocacy/educating benefits providers
• VAWA, T and U visa benefits tools
– Screening tools
– Benefits flow charts
– Program eligibility tools
• State Benefits charts
–
–
–
–
–
TANF
Medicaid
SSI
Food Stamps –SNAP
Education
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 206
Immigrant Benefit Classifications
• Citizens
• “Qualified Immigrants”
– Entering U.S. before Aug. 22, 1996
– Entering U.S. on or after Aug. 22, 1996 subject to 5 year bar on
federal means tested public benefits (e.g. TANF, Medicaid, Child
Care, SSI, Food Stamps)
• Lawfully Residing
– Health care access is provided and states (includes Kansas) can
opt to offer state funded benefits to lawfully residing
immigrants
• Undocumented Immigrants
• PRUCOL (Permanently Residing Under Color of Law)
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 207
Lawful Presence Defined
• Lawful presence includes immigrants who have:
– Qualified immigrants
• VAWA upon prima facie or approval
• T upon bona fide or approval
– Persons granted nonimmigrant status
• Approved U and T visas
• Work visas
• Student visas
– Children who have applied for special immigrant juvenile
status
– Deferred action
– Humanitarian parole
– TPS
– Persons with approved visa petitions
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 208
Access to Benefits and Services Grows As
Victims Pursue Immigration Relief
• Programs and services all undocumented survivors can
access
• Filing immigration case leads to
–
–
–
–
–
PRUCOL
Lawful presence
Continued presence
HHS certification or eligibility letter
State benefits access to some programs in some states
• Prima facie determination in VAWA or T visa case leads to
– Qualified Immigrant Status
• Federal public benefits
• Federal Means tested public benefits
• State funded benefits
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 209
Help Open to All Immigrants Without
Regard to Immigration Status
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 210
What services, programs,
benefits can
undocumented immigrant
survivors legally access?
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 211
Attorney General’s List of Required Services
• In-kind services
• Provided at the community level
• Not based on the individuals income or
resources
• Necessary to protect life & safety
• Programs covered by this AG order are open
to all persons
• State and local governments CANNOT impose
immigrant access restrictions
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 212
Benefits available to all immigrants:
Crisis counseling and intervention
Child and adult protection services
Violence and abuse prevention
Crime victim assistance
Short-term shelter or housing assistance for the
homeless, victims of domestic violence, or for
runaway, abused, or abandoned children
• Medical and public health services
– including treatment and prevention of diseases
and injuries and mental health, disability, or
substance abuse assistance necessary to protect
life or safety
•
•
•
•
•
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 213
Benefits and Services continued
• Help during adverse weather conditions
• Soup kitchens, community food banks and
nutrition programs for seniors and others
requiring special assistance
• Activities designed to protect the life and safety of
workers, children, youth and community residents
• Any other programs, services, or assistance
necessary for the protection of life or safety
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 214
Other Federal Benefits Available to ALL Immigrants
Elementary and Secondary education
School lunch and breakfast
WIC
Immunizations, testing, and treatment of communicable
diseases
• Community Services Block Grant funded programs
– ESL
– Vocational Training
– Transitional shelters
– Community gardens
•
•
•
•
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 215
Health Care For Undocumented Immigrants
•
•
•
•
•
Services necessary to protect life and safety
Community and migrant health clinics
State funded programs
Post assault health care paid by VOCA funds
Emergency Medicaid
8/31/10
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 216
Emergency Medicaid
• Available only in cases where the person needs
treatment for medical conditions with acute
symptoms that could:
– place the patient’s health in serious jeopardy;
– result in serious impairment of bodily functions;
or
– cause dysfunction of any bodily organ or part
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 217
What Various States Offer Under
Federal Emergency Medicaid
•
•
•
•
•
•
•
Labor and Delivery (emergency and most states normal)
Severe and acute
Urgent pharmacy needs
Mental health
Inpatient substance abuse
72 hour release of drugs without prior approval
No SSN is required to receive emergency services under
Hawaii law
8/31/10
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 218
Federally Qualified Health Centers Offer
• Primary care
• Diagnostic, laboratory
and radiological
services
• Prenatal care
• Post-assault health care
• Cancer and other
disease screening
• Well child services
• Immunizations
• Blood test screening
• Eye, ear and dental
screenings for children
• Family planning services
• Preventative dental
services
• Pharmaceutical services
• Emergency medical and
dental services
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 219
State-by-State Charts Addressing Immigrant Victim
Access to the Following:
• Health care access by immigration status by state
–
–
–
–
•
•
•
•
•
Emergency Medicaid
Forensic Examinations
Post-Assault Health Care
Pre-Natal Care
TANF Replacement Programs
Child Care
SNAP (Food Stamps)
LIHEAP
SSI
• Education
Available at
Niwaplibrary.wcl.american.edu
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 220
When children qualify and their parents do not:
• If a child qualifies for benefits as a citizen or
“qualified immigrant” the benefits granting
agency may ONLY ask questions about the child’s
eligibility
• No questions may be asked about the
immigration status or social security number of
the child’s parent if the parent is not applying for
additional benefits for themselves
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 221
Application for VAWA, T or U immigration status
improves immigrant victims access to public assistance
• Screen for immigration case already filed
• Screening + Filing (VAWA, T or leads to
– Lawful Presence
• Filing for immigration remedy is required for
immigrants to become “qualified immigrants” to
eligible for federal public benefits
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 222
Qualified Immigrant Access to Federal Public Benefits
• All qualified immigrants can access some federal
public benefits
– Which benefits they can access depends on:
• Immigration status
• When they entered the United States
• Whether they meet heightened program
requirements for some programs
• What benefits are offered by the state
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 223
Immigration Options and Benefits Available
VAWA self-petition
– PRUCOL upon filing
– Prima facie = Qualified
Immigrant
– Self-petitioner and children
Battered spouse waiver
– Qualified Immigrant
– Can avoid deeming
T visa
– PRUCOL upon filing
– Benefits access like refugees (7
years) need HHS certification
– Qualified Immigrant with bona
fide determination
Continued Presence
– Benefits access like refugees
– Need HHS certification
U visa
– PRUCOL upon filing
– Lawfully present upon approval
Family Based Visa Petition
Approved + Battering or
Extreme Cruelty
– Qualified Immigrant
– Not required to file for
VAWA
Special Immigrant Juvenile
– PRUCOL upon filing
– Qualified Immigrant upon
approval and receipt of
lawful permanent residency
Deferred Action (DACA)
– PRUCOL upon filing
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 224
Federal Benefits Immigrant Restrictions
• Only programs that as a matter of law have
immigrant restrictions are those categorized as:
– “federal public benefits” or
– “federal means-tested public benefits”
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 225
Examples of “Federal Public Benefits”
• US Agency
Funded/Provided:
– Grants
– Contracts
– Loans
– Professional or
commercial licenses
• Drivers licenses
• Federally Funded Benefits
for
– Retirement
– Welfare
– Health
– Disability
– Postsecondary education
– Public or assisted housing
– Food assistance or
– Unemployment
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 226
Only considered a Federal Public
Benefit if:
• Payment made or assistance provided directly to:
– An individual
– A household
– A family eligibility unit
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 227
Who are “Qualified Immigrants”?
Lawful permanent residents
Refugees and asylees
Cuban/Haitian entrants
Veterans
Amerasians
Trafficking victims filing for or with T-visas
Persons granted conditional entry
Persons paroled into U.S. one year or more
Persons granted withholding of deportation or
cancellation of removal
• Persons who (or whose child) has been battered or
subject to extreme cruelty by a U.S. citizen or lawful
permanent resident spouse or parent
•
•
•
•
•
•
•
•
•
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 228
How does and immigrant victim prove
that they are a “qualified immigrant”?
• Family-based immigration cases
– Prima facie determination in VAWA self-petition or
cancellation
– Approved VAWA self-petition or VAWA
suspension/cancellation
– Approved visa petition filed by an abusive spouse or parent
• Trafficking victims
– Prima facie determination in a T-visa case
– Approved T-visa
– Continued Presence
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 229
Partial List of Federal Public Benefits/Community
Programs Open to All “Qualified Immigrants”
•
•
•
•
•
•
•
•
•
•
•
Public and assisted housing
Post-secondary educational grants & loans
Access to most subsidized child care
Low income and residential energy assistance programs
Disability benefits
Assistance to developmentally disabled
Job opportunities for low income individuals
Adoption assistance
Foster care
Social services block grant programs
Supportive housing for the elderly or disabled
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 230
Education
• DHS does not require universities to ask
about immigration status of applicant or
enrolling students
• Immigrants eligible for student federal
student loans
– VAWA self-petitioners and their children
– Permanent residents including SIJS
– Trafficking victims
– Refugees/asylees
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 231
Federal Means-Tested Public Programs Have
Most Limited Immigrant Access:
• TANF
– 5 yr. bar if entered the U.S. after August 22, 1996
• SSI
– Lawful permanent residents only if 40 quarters or work
credit + “qualified immigrant” status and 5 year bar if
entered the U.S. after August 22, 1996
– Refugee
– Trafficking victim
– Veteran and “qualified immigrant” spouses, children
• Food Stamps
– “Qualified Immigrants” 5 year bar post August 22, 1996
• Medicaid and Child Health Insurance Program
– Health Care reform opened up access to immigrants who are
“lawfully present”
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 232
Federal Food Stamps
• “Qualified immigrant” children under 18 (no 5 year bar)
• Refugees, persons granted asylum or withholding of
deportation/removal, Cuban/Haitian entrants,
Amerasian immigrants, persons granted Iraqi or Afghan
special immigrant status, and victims of trafficking (upon
receipt of status and as lawful permanent residents)
• “Qualified immigrant” adults after 5 year bar
• Lawful permanent residents with 40 quarters work
history
• Veterans & active military and their “qualified
immigrant” spouses and children
• “Qualified immigrants” receiving disability
• Hmong and Laotian tribe members lawfully present
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 233
Immigrants and Health Care Reform
• Naturalized Citizens same as U.S. Born Citizens
• Legal immigrants
– Subject to individual mandate and tax penalties (unless low income)
• Lawfully present immigrants
–
–
–
–
May purchase for state insurance exchanges (no wait)
Eligible for tax credits and cost-sharing reductions (no wait)
Eligible for state’s temporary high risk pools and basic health plans
5 year bar to Medicaid for “qualified immigrant” low income nonpregnant adults
• Undocumented immigrants
–
–
–
–
Exempt from individual mandates
Cannot purchase from state insurances exchanges & no tax credit
No Access to Medicare, Medicaid or CHIP
Only HHS funded unrestricted health care and emergency Medicaid
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 234
Immigrants and Health Care Reform
• Citizen or lawfully present children of
undocumented immigrant parents
– May purchase child-only coverage on state insurance
exchanges
– Are eligible for premium tax credits and reduced costsharing
– May be eligible for Medicaid or CHIP
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 235
Federally Funded Medicaid and CHIP for
“lawfully residing” children and pregnant women
• Lawfully present + Medicaid state residency rules
• Lawfully present =
– Lawful permanent residency
– Approved visa petition + application for lawful
permanent residency filed
– Persons fleeing persecution (e.g. refugees, asylees,
withholding, conditional entrants
– Humanitarian immigrants (e.g. Cuban Haitian Entrants,
TPS, DED, Deferred Action Status)
– Parolees (lawfully present) if parole for 1yr + (also
qualified immigrants)
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 236
Federally Funded Medicaid and CHIP for “lawfully
residing” children and pregnant women
– VAWA self-petitioning applicants and their children
– VAWA cancellation and suspension applicants
– T visa holders, applicants and continued presence and
their children
– U visa holders includes their children
– Temporary visa holders (e.g. student, visitor, work)
– Citizens of Micronesia, the Marshall Islands, and Palau
– Long term residents in the process of obtaining lawful
permanent residency or not likely to be returned home
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 237
Child Care: Immigrant Restrictions Depend on
Funding source CCDF vs. TANF
• Child Care Development Fund
– Only the citizenship/immigration status of the child considered
(child is the primary beneficiary of the child care benefit)
– Open to “qualified immigrants” and victims of trafficking and their
children
– CCDF child care open to all without immigration restrictions if
• Subject to public educational or Head Start standards, or
• Eligibility determined by a non-profit organization
– CCDF parents have the right to choose their child care provider, (e.g.
relative, a family child care home, or child care center)
– Provider may be required to have an SSN
– State agencies cannot require an SSN from persons seeking CCDFfunded child care and cannot deny the benefit to families that do not
provide an SSN (even if TANF funds included in CCDF)
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 238
TANF Funded Child Care
• “Qualified immigrants” who entered the U.S. before Aug. 22,
1996.
• 5 year bar applied to all other qualified immigrants
• Refugees and asylees
• Persons granted withholding of removal
• Amerasian immigrants
• Cuban/Haitian entrants
• Victims of trafficking and their children
• Veterans and active duty military personnel, their spouses,
un-remarried surviving spouses, and children, who are
“qualified” immigrants
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 239
JACKPOT! Most Public
Benefits Access for Victims
Prima Facie
Pre 8-22-96
VAWA Self
Petitioner or
Cancellation
QUALIFIED!
Post 8-22-96
Approval
STOP!
5-YEAR BAR, BUT…
States
Materials U Visa Benefits Eligibility Bench Card http://niwaplibrary.wcl.american.edu/publicbenefits/memos-and-tools-for-advocates/U-VisaVictim-Benefits-Eligibility-Process.pdf
Lawfully Present
Health care
Kids
Food Stamps
240
State Benefits (varies by state)
No federal public benefits until lawful
permanent residency except health care
U VISA
Approved
Approval = Lawfully Present = Health Care
Pending
Materials U Visa Benefits Eligibility Bench
Card http://niwaplibrary.wcl.american.edu/publicbenefits/memos-and-tools-for-advocates/UVisa-Victim-Benefits-Eligibility-Process.pdf
241
PRE T-VISA
Law Enf.
Continued Presence
HHS
Request
FILE T-VISA
Vermont issues ‘bona fide’
letter*
Office of Refugee
Resettlement
APPROVED T-VISA =
QUALIFIED Immigrant
Certification for Adults
Materials T Visa Benefits Eligibility Bench Card http://niwaplibrary.wcl.american.edu/reference/ad
ditional-materials/materials-for-adjudicators-andjudges/tools-for-courts/benefits/TraffickingVictims-Benefits-Eligibility-Process.pdf
Full Benefits
242
Technical Assistance and Materials
• Power Point presentations and materials for
this conference at niwap.org/go/Consulates
• NIWAP Technical Assistance:
– Call (202) 274-4457
– E-mail [email protected]
• Web Library:
www.niwaplibrary.wcl.american.edu
National Immigrant Women's Advocacy Project American
University Washington College of Law
7/7/2015 … 243
QUESTIONS & ANNOUNCEMENTS
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 244
Thank you!
National Immigrant Women's Advocacy Project,
American University, Washington College of Law
7/7/2015 … 245