Immigration Protections for Immigrant Survivors of Domestic Violence

1. Immigration Protections for Immigrant Survivors of Domestic Violence PILI 2012 Educational Luncheon Seminar Series June 27, 2012

2. 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.

3. 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.

4. Domestic Violence is One Form of Gender Violence

5. Domestic Violence Tactics Used byAbusers to Exert Power and Control Emotional Abuse Isolation Economic Abuse Power And Control Intimidation Sexual Abuse Using Citizenship or Residency Privilege Physical Abuse Threats

6. The Cycle of Abuse The Honeymoon Denial Tension- Building Explosion

7. 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

8. VAWA U-visa T-visa Asylum Immigration Remedies

9. 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 The Violence Against Women Act (VAWA)

10. Who Is Eligible to Self-PetitionUnder 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)

11. 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 Self-Petitioners Must Prove

12. Standard of Proof “Any credible evidence” standard applies to VAWA self-petitions. 8 C.F.R. § 204.2(c)(2)(i).

13. 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)

14. U Nonimmigrant Visa

15. 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. What is the U Nonimmigrant Visa?

16. 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

17. 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

18. Standard of Proof “Any credible evidence” standard applied to U visa applications 8 C.F.R. § 214.14(c)(4)

19. 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 Involuntary servitude Torture Slave trade Trafficking Kidnapping Incest Abduction Domestic violence Unlawful criminal restraint Sexual assault False imprisonment Abusive sexual conduct Blackmail Prostitution Extortion Sexual exploitation Manslaughter/Murder Female genital mutilation Felonious assault Being held hostage Witness tampering Peonage Obstruction of justice Perjury ***Includes attempts, conspiracy, or solicitation to commit any of the above.

20. 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. 20

21. 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

22. 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

23. 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: Definition

24. 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 Asylum: Elements

25. 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.

26. 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.

27. 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.

28. Time for Questions and Comments THANK YOU!