Transcript Immigrant Victims of Domestic Violence and the State Courts

Immigrant Women and
Domestic Violence
Jewish Women International
March 4, 2010
Leslye Orloff
Immigrant Women Program
www.legalmomentum.org/iwp
[email protected]
(202) 326-0040
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Learning Objectives
• Recognize the dynamics of domestic
violence experienced by immigrant
women
• Help immigrant victims access help
available to all immigrant victims both
documented and undocumented
• Screen victims for immigration relief
eligibility
• Identify public benefits victims and their
children can access
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U.S. Immigrant Demographics
• “Immigrant” defined as born outside the
U.S. (and not a U.S. citizen)
• Today 25% of U.S. population are
immigrants or children of immigrants
• 18% (5 and older) speak a language
other than English at home
• 85% of immigrant families are “mixed
status”, including at least 1 U.S. citizen,
often a child
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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
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Domestic Violence Prevalence
Rates 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
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Connection Between Abuse and
Control Over Immigration Status
• Immigrant women lifetime abuse rates as
high as 49.8%
• % reporting abuse married to citizens or
lawful permanent residents 50.8%
• U.S. citizen spouse/ former spouse
abuse rate rises to 59.5%
• Almost three times the national average
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The Power of Control Over
Immigration Status
• Of spouse 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.
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Immigration-Related Abuse Lock’s
Immigrant Women in Abusive
Relationships
• Keeps victims from
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seeking help
Getting protection order
Calling police
Cooperating in prosecutions
• Affects victims documented and undocumented
• 65% of immigrant victims report some form of
immigration related abuse (NIJ)
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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
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Factors Affecting Immigrant Victim’s
Willingness to Call Police for Help
• Positive Factors:
– Length of time in the United States
– She had spoken to 2 or more persons about
the violence
• (46% know other women victims)
– Her children witnessed the abuse
– She had a protection order
• Negative Factor:
– Victim’s immigration status
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Immigration Status Affects
Willingness to Call Police
• Significant difference between victims
willingness to call the police related to their
immigration status:
– Stable (citizen/permanent resident) - 34.4%
– Temporary (temporary visa) - 16.7%
– Undocumented - 14.8%
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Protecting Immigrant
Mothers, Protects Children
– Immigrant victims who receive help including
immigration relief child abuse likelihood drops
significantly (77% to 23%).
– Children of help seekers 20% less likely to
have abuser threaten them
– One third less likely to have abuser threaten to
take them away from their mother
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NIJ Funded CPO Study Found
• With advocates support immigrant
victims will use and benefit from justice
system assistance
– 60.9% first learned about CPOs from their
advocates
– 81% got CPO with help from advocate
– 96% found them helpful
– However, 68.3% of violations immigrant
related abuse
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Systemic Barriers
• Barriers are in systems not women
• Provide assistance-support to overcome
and remove systemic barriers including:
– Language access
– Fear of deportation
– Fear of losing custody/access to children
– Misinformation about the legal system
– Economic survival
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Open to all immigrant victims
(including the undocumented)
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Protection Orders
Emergency Shelter
Transitional Housing
Legal Services
Child Custody and Support
Services for Domestic Violence, Child and Elder
Abuse, Sexual Assault and Crime Victims
• Adult and Child Protective Services
• Police Assistance
• Have Their Abusers Criminally Prosecuted
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Assistance for all immigrants
Necessary to Protect Life and Safety
• Offered in-kind, at the community level, and not based on
the individuals income or resources –
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Crisis counseling and intervention
Child and adult protection services
Violence and abuse prevention
Victim assistance
Treatment of mental illness or substance abuse
Help during adverse weather conditions
Soup kitchens
Community food banks
Short-term shelter or housing assistance for the homeless, victims
of domestic violence, or for runaway, abused, or abandoned
children (*Includes emergency shelter and transitional housing up
to two years.*)
– Nutrition programs for seniors and those requiring special
assistance
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Health Care Open to All
Immigrants
• Community health clinics
• State funded programs
• Post assault health care paid by VOCA
funds
• Immunizations, testing, and treatment of
communicable diseases
• Emergency Medicaid
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Federally Qualified Health
Centers
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Community Health Centers
Migrant Health Centers
Open to all
Underserved populations unable to pay
www.nachc.com
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
• Pre or post 8/22/96?
– What benefits are offered by the state
• NILC.org and legalmomentum.org (CHARTS)
– Whether they meet heightened program
requirements for some programs
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Who are “Qualified Immigrants”?
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Lawful permanent residents
Refugees and asylees
Cuban/Haitian entrants
Veterans
Amerasians
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
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Partial List of Federal Public
Benefits/Community Programs
Open to All Qualified Immigrants
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Public and assisted housing
Post-secondary educational grants & loans
Social services block grant programs
Child care
Low income energy assistance program
Disability benefits
Assistance to developmentally disabled
Job opportunities for low income individuals
Federal Means-Tested Public
Program Access Limited By:
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TANF (5 yr bar post 8/22/96)
SSI (most restrictive)
Medicaid (5 yr bar post 8/22/96)
SCHIP (5 yr bar post 8/22/96)
Exception to 5 year bar for under 21
year old lawfully residing
• children and
• pregnant women up to 60 days post partum
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Food Stamps for
Qualified Immigrant:
• Children under 18
– regardless of date of entry
• Receiving disability benefit
– regardless of date of entry
• Persons who have been qualified
immigrant for five years or more
• Refugees
• Human Trafficking victims
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When one family member
qualifies and others do not:
• If a family member qualifies for benefits
as a citizen or qualified immigrant the
benefits granting agency may only ask
questions about the person’s eligibility
• No questions may be asked about the
immigration status of the any family
member not applying for additional
benefits for themselves
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History and Purpose of
Violence Against Women
Act Immigration
Provisions
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The Importance of Immigration
Status
• Ability to work legally
• Path to lawful permanent residency and ultimately
citizenship
• Protection from deportation
• Opens up more access to publically funded benefits,
health care and services
• Severs dependence on potential abusers
• Better access to housing
• Ability to travel to and from the U.S. (with some
exceptions)
• More access to protection orders
• Improved ability to win custody and protect children
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Until VAWA Immigration Law
Historically Gave:
• Employers and Family members the ability
control the immigration status of an immigrant
– Spouse
– Child
– Worker
• Citizen, permanent resident, work visa holder
controls
– Whether to file
– When to file
– Whether immigrant worker or family member can
attain or keep legal immigration status
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Potential Immigration Remedies
Domestic Violence Abuse Victims
• Applications filed DHS
– VAWA self petition
– Battered spouse waivers
• Spouses of citizens with 2 year green cards avoids joint
filing requirement
– U visa (crime victim visa)
– T visa (trafficking victim visa)
• Forms of relief from removal- granted by Immigration
Judge – only for spouse or child abuse
– VAWA cancellation of removal
– VAWA suspension of deportation
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General VAWA Self-Petitioning
Requirements
• Subjected to Battery or Extreme Cruelty
• By a U.S. Citizen or Permanent Resident
– Spouse (must file within 2 years of divorce)
– parent,
– adult son/daughter (over 21)
• With Whom self-petitioner resided
– No time period required
• Good Moral Character
– Generally requires lack of criminal history
• Good Faith Marriage
– only if the abuser was a spouse or step-parent
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Battering Under Immigration Law:
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All forms of physical violence
Domestic violence
Sexual assault
Physical assault
Attempts to do physical harm
Criminal threats
Extreme Cruelty Under
Immigration Law
• All physical and
sexual abuse
• Emotional Abuse
• Economic Abuse
• Sexual Abuse
• Coercion
• Deportation threats
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Intimidation
Social Isolation
Degradation
Possessiveness
Harming pets
Threats
Attempts
VAWA self-petition process
• Prima facie determination  public benefits
• Approval of VAWA self-petition 
employment authorization, no deportation
• After VAWA approval, file for permanent
residency (green card)
– If abuser is U.S. citizen, self-petitioner can
immediately seek permanent residency
– If abuser is permanent resident, self-petitioner may
have to wait up to or over 7 years to file
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Crime Victim (“U”) Visa Requirements
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Substantial physical or emotional abuse from
criminal activity
Possesses information about criminal activity in
the US or violates US law
Victim has been, is likely to be or is being helpful
to detection, investigation or prosecution of
criminal activity
Must include certification from a government
official
Can lead to lawful permanent residency
Criminal activities covered by
the “U” visa?
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Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Prostitution
FGM
Blackmail
Extortion
Manslaughter
Murder
Felonious assault
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Witness tampering
Involuntary servitude
Slave trade
Being held hostage
Kidnapping
Abduction
Peonage
False Imprisonment
Obstruction of justice
Perjury
Attempt, conspiracy or
solicitation to commit any of
these crimes
Any similar activity
Who can certify?
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Police officer
Prosecutor
Judge
Immigration Officer
Other authority with responsibility for detection,
investigation or prosecution of criminal activity
• Including but not limited to
– Adult Protective Services
– Child Protection Services
– EEOC
– Department of Labor
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Substantial physical or emotional abuse?
• Case-by-case determination considering individual
experience and the following 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
• No one factor is required
• Can include pre-existing conditions
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Lawful permanent residency
for U visa holders
• Available to U visa holders who demonstrate
– Humanitarian Need or
– Family Unity
– Public Interest, AND
• That the victim did not unreasonably refuse to
cooperate in with law enforcement officials
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VAWA confidentiality
• DHS barred from making inadmissibility or
deportability decisions based solely upon
information provided by abusers, including
family members of abusers
• DHS cannot disclose VAWA information to
anyone (except in limited circumstances)
• Enforcement locational prohibitions
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DHS barred from any part of an
enforcement action occurring at:
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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
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Safety Planning for Immigrant
Victims and Their Children:
Filing Early for Immigration Relief
• Family courts considering immigration status as a
factor in custody cases
• State Abuse and Neglect agencies intervening to
take children from undocumented parents
• Triggered by
– reports from health care system, other government
agencies (Maria Luis – Nebraska)
– Increased immigration enforcement against immigrant
parents (Encarnacion Bail – Missouri)
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Immigrant Parents’ Constitutional
Right to Custody of Their Children
• Constitution right to custody absent finding of 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; and
– Whether or not the parent is
• In immigration detention or deported
• Child’s best interests not comparison of natural vs.
adoptive parent’s
– cultures, countries, or financial means
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Abuser’s Raising Immigration Status
of Non-abusive Immigrant Parent in
Custody Proceedings
• Presumptions against awarding custody to
abusers in most state laws
• Abusers raise immigration status to gain
advantage in custody cases
• Abusers will try to use discovery in the family law
case to obtain information about VAWA
immigration case
– Hawke v. U.S.
– Legal Momentum’s tool kit for family lawyers
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Materials Available from
www.legalmomentum.org/iwp
• Manuals on legal rights of immigrant domestic
violence and sexual assault victims
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Immigration relief
Family law issues
Public benefits
Language access
Adult self-petitioning flow chart
Child self-petitioning flow chart
State by state benefits and health care charts
U visa tool kits