Transcript Advanced VAWA and U Visa San Francisco, California October

Working with Clients on U
Visa Declarations
The declaration tells how
applicant’s circumstances meet
the legal requirements for a
benefit.
Declaration Basics
• Form
– Signed under penalty of perjury
– Relevant Requirements Sections
– Divided into short paragraphs
– Generally chronological within sections
– Must be credible
– Must be relevant to legal requirement
Credible
• Detailed and Specific
– Should not say “He would always”
– Use at least three very detailed, specific
examples
• Consistent
• Supported by other documentation
Relevant
• Declaration should focus on, in order of
priority:
– Helpfulness in Reporting crime
– Helpfulness in Telling Police What Happened
– Helpfulness in Follow Up
– Details of the criminal activity
– Substantial Abuse
– Eligibility for Inadmissibility Waiver
Working with your client on declarations
about Domestic Violence
• Demystify
• Avoid Retrauma
• Relevance
• Details
• Context
DEMYSTIFY
• Figure out at the beginning how she wants you to record her story.
Most clients prefer that we are facing them, either using a notepad
or keyboard (keyboard is much easier later).
• Let her know why you’re asking each question.
• Explain legal requirements and role of declaration in showing how
she meets them.
• Explain that an immigration case focuses on different issues than
divorce or child custody, so some things that are very important (like
infidelity) to her may not be needed for the declaration.
• Explain that it may take a few sessions to finish it. Assure her that
most people can’t remember everything in one session
• If she remembers something else later, ask her to write it down to
tell you the next time.
• Assure her that you want to hear the story however it comes out,
and that later you can work together to put it into chronological
order.
Avoid Retrauma
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Make sure tissues and water or tea are immediately available.
Make sure you are in a private workplace.
Tell her that no matter what, the appointment will only be two hours (to
prevent exhaustion), and that you’ll let her know when there are about 10
minutes left so the two of you can wrap up. That’s why there are at least two
appointments for the declaration.
Tell her that working on a declaration can be upsetting, and you want her to
have control over the appointment so it doesn’t become traumatic.
Ask her if there are things she wants you to do if the session becomes too
upsetting (like calling a friend or taking a break)
Start and end the interview with mundane matters, including:
– Completing biographic information on forms, fee waivers, etc.
– Talking about her good moral character for waiver.
– Brainstorming where to get additional documentation/evidence.
Don’t obviously look at the time, but have a way to know when it’s 10
minutes before the end of the interview, and tell her it’s time to recap and
figure out what you’ll be doing next time.
Details
• Explain that detail is very important – that you
want to help her paint a picture of the events for
the USCIS officer who will read her declaration.
• Permit her to tell story at her own pace, but
• Ask concrete questions to get more detail when
there are opportunities to do so.
• It might help to put a reminder note next to your
narrative so you’ll remember to come back to
that incident for more detail.
Context
• Describing Abuse: U Visas are for crime victims. Everything
else in the application process can be empowering, but the
declaration is one place to permit the tone to be more
passive.
– “He screamed at me” is more relevant to showing abuse
than “we argued,” and is just as true.
– “He pulled my hair” is more relevant to showing abuse
than “we started slapping eachother and I tried to push him
away and he grabbed my hair,” and just as true.
• Describing Helpfulness. U visas are for people who help law
enforcement, and the tone in this part of the declaration
should be active, with specific examples of how helpful s/he
was.
– “I told the police everything that had happened and told
them I wanted him arrested” is more relevant as “I
answered all of their questions and made a report,” and
just as true.
How She Meets Requirements:
Start with the police report
• Go over the police report(s) with her to
find out whether it is accurate, and how
and why it is inaccurate. The accurate
parts can serve as the foundation for
the U Visa declaration. Inaccurate parts
should be addressed in the declaration
as well.
The DV Crime
• Briefly, what led up to it
• Very specific details of the crime. Give at least
two details about each aspect, including:
– Where did things start? Did they move to another
place?
– Where were the perpetrator and victim in relation to
each other at any given time?
– What exactly did the perpetrator say?
– How did perpetrator assault and injure her?
• Hit, choke, punch, shove, etc.
Helpfulness: the Key to the U
• How police got involved
• Interactions with police at the scene
• What was said about wanting perpetrator
arrested or charged?
• [Corrections in police report if needed]
• Follow Up
How Police Got Involved
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Who Called the Police? How?
What did operator say?
How long did it take for police to arrive?
What happened during that time?
How did they come in/identify themselves?
Answering Questions
about the Crime
• How were you and police officers able to communicate?
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Was an interpreter available? How?
Spanish fluent officer?
Language access line?
Family member? Who?
Friend or neighbor
• What specific questions did they ask?
– List three specific words they used.
• What specific answers did you give?
– List three specific words you used
• Did you tell police about other incidents?
– What did you say?
Want Perpetrator Arrested?
• Did you say you wanted the perpetrator
arrested?
• Did you say you wanted the perpetrator
“charged” or that you wanted to press
charges?
• How did they ask?
• What did you think they meant?
• What did you say exactly?
Problems With Helpfulness in
Report
• What problems are there, and why?
• Do you think the police officer(s) understood you
well?
• What do you think they missed?
• Did police leave you with anything?
• DV resource card or pamphlet?
• Business card of patrol officer or detective?
• Number of the police report?
Follow Up: Criminal Case
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Was the perpetrator arrested?
Was the perpetrator jailed?
How long was he in jail?
Were charges brought against him (was
he ordered to go to court? Were you
subpoenaed to go to court?)
• Were you contacted by the District
Attorney’s office?
• Then what happened?
Follow Up: Victim Self Protection
• Did you get an Emergency Protective Order from the police?
• Did an investigator from the police department call you? If so, what
happened?
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Was the call in your language?
If not, what did you do?
Did you call back?
What happened when you called back?
Did a domestic violence advocate call you? If so, what happened?
Did you get a Temporary Restraining Order?
Did you get a Restraining Order After Hearing?
Has the perpetrator violated the RO?
If so, did you call the police?
What happened?
If you let him come back, why?
Then what happened?
Substantial Abuse: This is not the
time to be stoic
• Abuse from this incident AND history of abuse
• Physical injury
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Intensity of pain
Duration of pain
Permanence of injury or scarring
Restriction of activity
• Emotional harm
– Humiliation
– Completeness of control
– Trauma checklist factors (sleeplessness, despair,
etc.)
Describing Substantial Abuse
in DV Cases
• Domestic Violence strongest elements
– Battery: physical abuse and/or threats
– Emotional cruelty – two aspects
• Abuser’s intent to dominate, control, humiliate, subjugate
• Applicant was/felt dominated, etc.
• USCIS does not generally consider the following
DV unless they are directly linked to intent to
dominate, control, humiliate, subjugate
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Abandonment
• Infidelity
Drug use
• Spouse is a jerk
Inattentiveness
• Emotional or financial stinginess
Rude to family or friends
Request for Inadmissibility Waiver
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Just one paragraph if one minor violation, More details for more violations
Equities (can use worksheet)
– Good parent – examples
– Good worker – examples
– Attend religious institution, donate, volunteer
– Support family in US and/or home country
– Good community member (volunteering, etc)
– Helped law enforcement and would do it again
Hardships to self and family if she has to leave US (can use worksheet)
– If she has to leave kids in US
– If she has to take kids with her out of US
– Fear of perpetrator
– Fear of crime/no protection
– Living conditions
– Education
– Ability to support self and family
Non-DV Crime: Sexual Assault
• Describe Crime like DV crime
• Describe Helpfulness like DV crime
• Substantial Abuse: High Risk of retrauma:
– Ideally, sexual assault counselor will work on the
declaration with the applicant or write a supporting letter
with details so that the applicant only needs to state in the
declaration: I was the victim of a violent sexual assault on
00/11/2222 in Oakland, California. I suffered extreme mental
anguish and am still seeing a counselor to learn to cope.
– If this isn’t possible, we need to strategize about how to
approach the declaration, depending on the trauma involved
and resources available to the client.
• Equities and Hardships for waiver like DV crime.
Non-DV Crime: Felonious Assault
• Describe crime like DV crime
• Describe helpfulness
– Where perpetrator identified/caught easier
– Where perpetrator not identified/caught, much
more detail
• Describe substantial abuse like DV crime.
• Equities and hardships like DV crime.
Helpfulness in Felonious Assault
Case: Perpetrator Identified
• If perpetrator identified, describe
helpfulness like DV or sexual assault
cases.
– Who called police?
– What questions asked and answered?
– Follow up after incident by police
– Follow up after incident by prosecutors
– What ultimately happened to perpetrator?
Helpfulness in Felonious Assault
Case: Perpetrator Not Identified
• This is harder: need a strong declaration
as well as a Supplement B. Include
details about what the client told the
police, e.g. about:
– gang activity in the area
– threats against her and/or friends/family
– crime in the area
– own (non)involvement in gang, group, etc.
Perpetrator Not Identified: Need
Very Specific Details
• Give very specific details about what client did to try to identify
perpetrator.
– Not: I asked everyone I knew to call the police if they knew anything.
– Instead: On February 27, I talked to Mauricio to see what he could
remember about the shooting. He said he saw a black car drive away,
but was too occupied with calling the ambulance that he didn’t think to
get the license plate. On February 28, John and Phillip tole me that
they’d heard that other people had been attacked by a group of
teenagers like I was. I asked if they would call the police to report that,
and John said he wouldn’t, but Phillip said maybe. I gave him the
number of Sergeant Brown and urged him to call.
– Or; . “I knocked on the doors of six apartments in my building and talked
with four people, including James, Julia, Helen and John. James, Julia
and Helen said they hadn’t seen anything, but John told me that he’s
seen a green car in the parking lot before I got shot. I called Detective
Jones and told him what John had told me