Transcript Title of Presentation

Immigration Protections for Immigrant Survivors of Domestic Violence
PILI 2012 Educational Luncheon Seminar Series
June 27, 2012
About the National Immigrant
Justice Center
The National Immigrant Justice Center (NIJC), a program of Heartland
Alliance for Human Needs & Human Rights, promotes human rights and
access to justice for immigrants, refugees, and asylum seekers through
legal services, policy reform, impact litigation, and public education.
Throughout its 30-year history, NIJC has been unique in blending
individual client advocacy with broad-based systemic change.
• NIJC serves more than 8,000 immigrants annually with the support of a
professional legal staff and a network of over 1,000 pro bono attorneys.
• NIJC represents hundreds of asylum seekers each year.
• NIJC provides direct legal representation to survivors of domestic
violence and trains pro bono attorneys to handle cases involving domestic
violence.
Overview of
Domestic Violence
Domestic Violence is a pattern of gender
based intimate partner, dating, or family
violence with a central dynamic of power
and control.
Domestic Violence is One Form of
Gender Violence
domestic
violence
forced
marriage
etc…
rape/sexual
assault
dowry
attacks/killings
GENDER
VIOLENCE
gender
affiliation
murders
acid attacks
sex selective
abortion &
infanticide
honor
crimes
trafficking
female
genital
mutilation
Domestic Violence Tactics Used by
Abusers to Exert Power and
Control
Emotional Abuse
Isolation
Intimidation
Economic Abuse
Power
And
Control
Using Citizenship or
Residency Privilege
Sexual Abuse
Physical Abuse
Threats
The Cycle of Abuse
The Honeymoon
Denial
Explosion
TensionBuilding
CULTURAL BARRIERS
 Language limitations
 Extreme Isolation
 Cultural ideas of family shame and honor
 Close-knit communities
 Role of religion
 Lack of familiarity with the legal system
Immigration
Remedies
•
•
•
•
VAWA
U-visa
T-visa
Asylum
The Violence Against
Women Act (VAWA)
 The Violence Against Women Act was signed into
law by President Clinton in 1994 as part of a larger
crime bill to address domestic violence, sexual
assault and stalking
 VAWA was amended in 2000 and 2005. VAWA
includes special provisions for battered immigrants
that allows them to gain legal immigration status
without relying on their abusive USC or LPR
spouses, parents, or children
 INA § 204; 8 C.F.R. § 204
Who Is Eligible to Self-Petition
Under VAWA?
 Abused spouses of USCs and LPRs;
 Non-abused spouses of USCs or LPRs whose
children are abused (need not be children of
abuser);
 Abused children (must meet the definition of a
“child” under INA § 101(b)) of USCs or LPRs;
 Abused sons and daughters of USCs and LPRs
may file until age 25 if central reason for delay is
abuse (VAWA 2005);
 Abused intended spouses, meaning a spouse
who entered into a bigamous marriage in good
faith. See INA § 204(a);
 Abused parents of USC children (VAWA 2005)
Self-Petitioners Must Prove
 Status of Abuser (USC or LPR)
 Marriage Requirements
 Legal Marriage
 Good Faith Marriage
 Battery or extreme cruelty
 Residency Requirements
 Self-petitioner lived with abuser
 Self-petitioner’s current residence
 Good Moral Character (3 years prior)
• See INA § 204
Standard of Proof
“Any credible evidence” standard applies
to VAWA self-petitions. 8 C.F.R. §
204.2(c)(2)(i).
VAWA Benefits
 Deferred Action
 Employment Authorization
 Can include derivative, unmarried
children (under 21 years)
 Includes children outside the United States
 May be eligible to apply for adjustment
of status (LPR status)
U Nonimmigrant Visa
What is the
U Nonimmigrant Visa?
•
•
•
•
The U Visa for non-citizen victims of crime was created in October
2000 as part of the Victims of Trafficking and Violence Prevention
Act “VTVPA” See INA § 101(a)(15)(U)
Alien victims may not have legal status and, therefore may be
reluctant to help in the investigation or prosecution of criminal
activity for fear of removal from the United States.
The U visa was created to strengthen the ability of law enforcement
agencies to investigate and prosecute cases of domestic violence,
sexual assault, trafficking of aliens and other crimes while offering
humanitarian protection to victims of such crimes.
Provides a mechanism to remain in the United States to assist in an
investigation/prosecution of those who have perpetrated crimes
against them.
Benefits/Limitations
•
Non-immigrant legal status for up to 4 years
(possible extensions)
•
Path to citizenship
•
Family members may also be eligible to
apply for the U visa as a derivative of
principal applicant.
 Derivative relationship must exist at the time
I-918 filed, at time adjudicated, and at time
of admission.
 Victim prohibited from petitioning for
derivative U status for family member who
committed battery, extreme cruelty or
trafficking against victim which established
eligibility for U status
•
Annual cap of 10,000 U visas per fiscal year
Principal U Visa
Applicants Must Prove:
 Immigrant suffered substantial mental
or physical abuse as a result of having
been a victim of certain criminal
activity; and
 Immigrant (or in the case of a child
under 16, the parent or guardian)
possesses information concerning that
criminal activity; and
 The criminal activity violated U.S. law
or occurred in the U.S.; and
 The immigrant has been helpful, is
being helpful, or is likely to be helpful
to a Federal, State or local authority
investigating or prosecuting the crime
•
INA § 101(a)(15)(U); 8 CFR § 214.14
Standard of Proof
“Any credible evidence” standard applied
to U visa applications
8 C.F.R. § 214.14(c)(4)
Qualifying Criminal Activity
Involves one or more of the following or any similar activity in violation of U.S. Federal, State, or
local criminal law:
Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Abusive sexual conduct
Prostitution
Sexual exploitation
Female genital mutilation
Being held hostage
Peonage
Involuntary servitude
Slave trade
Kidnapping
Abduction
Unlawful criminal restraint
False imprisonment
Blackmail
Extortion
Manslaughter/Murder
Felonious assault
Witness tampering
Obstruction of justice
Perjury
***Includes attempts, conspiracy, or solicitation to commit any of the above.
Case Example
Ana is a Mexican citizen who entered the United States
without inspection in 2000. In 2002, Ana married Juan who
is undocumented, and the couple later had two U.S. citizen
children. During the marriage, Juan did not let Ana leave
the house without his permission. He controlled all the
money, and often threatened to have her deported. On one
occasion, Juan repeatedly hit Ana and she called the
police. Juan fled before the police arrived, however Ana still
filed a police report. Thereafter, she took her children to a
domestic violence shelter and obtained a civil order of
protection. She is seeking a divorce. Juan continues to call
her and threaten her.
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What Is A T Visa?
Enables certain victims of human trafficking to live and
work in U.S. for three years
Can apply for adjustment of status to lawful permanent
resident
Can petition to have spouses, children (or parents if
under 21) and siblings under 18 accompany if can
demonstrate extreme hardship if family member not
given derivative status
Cap of 5,000 visas annually
ELIGIBILITY FOR T VISA
• Victim of severe form of trafficking
• Victims under age 18 or has complied with any
reasonable request for assistance in
investigation or prosecution
• Applicant physically in U.S. due to trafficking
• Applicant will suffer extreme hardship involving
unusual and severe harm if removed
• Applicant has not engaged in trafficking
• Applicant is admissible
Asylum: Definition
 An individual is eligible for asylum if she meets the definition
of a refugee. Immigration & Nationality Act (INA) §
208(b)(1)(A).
 A refugee is “any person who is outside any country of such
person’s nationality . . . and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or herself
of the protection of that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” INA § 101(a)(42)(A)
• Definition based on international law: UN Protocol Relating to
the Status of Refugees, Art I(2)
 Statutory and regulatory standards: INA § 208; 8 CFR § 208
Asylum: Elements
1. “Well-Founded Fear”
2. of “Persecution”
3. Perpetrated by the government or an entity the
government cannot control
4. On account of the following factor(s)
– Race
– Religion
– Nationality
– Political Opinion
– Membership in a Particular Social Group
How Domestic Violence Issues
May Arise in Asylum Cases
• Partner Abuse Claims
Ana grew up in El Salvador. Ana met Juan at her job and
they began dating. Juan became controlling and began
verbally abusing Ana. After a few months, Juan began to
physically abuse Ana. While beating her, he often told her
that she was his woman. Ana called the police during one
violent incident, but the police only detained him for 24
hours and then let him go. When Juan returned home, he
grabbed a pair of scissors and threatened to cut out Ana’s
tongue for calling the police. Ana fled El Salvador two days
later and entered the United States to seek asylum.
How Domestic Violence Issues
May Arise in Asylum Cases
• Partner Abuse Claims
Michael and Steven are a gay couple from Zambia that has
been together for three years. Michael becomes jealous
easily and often construes Steven’s interactions with other
men as romantically charged. He monitors Steven’s
telephone conversations and demands to know where
Steven has been whenever he goes out. If Steven is away
longer than Michael thinks is necessary to complete a
particular task, Michael becomes furious and punches
Steven and threatens to kill him. Michael tells Steven he
would rather see them both dead than see Steven with
another partner. On one occasion he tried to set the bed
on fire while Steven slept. Steven has tried to leave
Michael but Michael has threatened to expose Steven’s
sexual orientation to others if he ever leaves.
How Domestic Violence Issues
May Arise in Asylum Cases
• Family Abuse Claims
Charlotte is a 19 year old girl from Mongolia. When she
was very small, her father died. Her mother could not
afford to care for her and sent her to live with her uncle and
his wife and children. In her uncle’s home, Charlotte was
forced to work hard very hard for long hours. She was not
allowed to attend school. She was not allowed to leave the
home by herself. When Charlotte did not finish her chores,
her aunt beat her. When Charlotte was about twelve, her
older cousin began sexually abusing her. Charlotte
managed to escape one day when the family was away
and made her way to the United States where she applied
for asylum.
THANK YOU!
Time for Questions and Comments