Fostering Collaboration: Advocates and Government Officials Working Together To Help U-Visa Victims

1. Fostering Collaboration: Advocates and Government Officials Working Together To Help U-Visa Victims OVW Grantee Training Lexington, Kentucky November 12, 2007

3. Materials Overview Manual CD

4. Learning Objectives Foster collaboration between government officials and advocates on U visa certification Build skills in preparing U visas Understand why U visa access is important for Victim safety Criminal investigations and prosecutions

5. How collaboration helps victims Models for collaboration � Introduction Overview of the training

6. Immigrant Victims & The Violence Against Women Act -- History

7. The Immigration Marriage Fraud Act of 1986 (IMFA) Presumption that all marriages were fraudulent Imposed conditional residency Required joint petition Battered Spouse Waiver -- A pre-VAWA attempt to help battered immigrants Did not help anyone whose spouse never filed

8. What Could Battered Immigrants Expect for Help in 1993? Abusive spouses with legal immigration status had total control over the their spouses and children Lock victims in abusive relationships Keep victims from calling police or seeking help Avoid prosecution

9. VAWA 1994 -Immigration VAWA self-petitioning battered spouses and children of U.S. citizens and Lawful permanent residents VAWA suspension of deportation Defense against deportation VAWA credible evidence standard Connection with VAWA goals Improve victim safety and offender accountability Stories

10. VAWA 2000 Allowed battered immigrants to obtain lawful permanent residency without having to leave the United States Helped spouses of military and state department employees Help for battered immigrants not covered by VAWA Domestic Violence Victim Waiver

11. Domestic Violence Victim Waiver Congressional recognition that some victims will have convictions Ongoing problem despite VAWA 1994 legislation (e.g.dual arrests, mutual protection orders) If self-defense Required to look behind state court ruling and independently decide Violated own protection order Domestic violence related crime Look to relationships not characterization of crime in state court case Limitations Not primary perpetrator No serious bodily injury

12. VAWA 2000 Brought Further Help for Immigrant Victims U-visa immigration protections for immigrant victims left out of VAWA 1994 Help for immigrant sexual assault victims T visa for victims of human trafficking

13. Understanding Behind U and T visas If victims are too afraid to come forward -- No prosecutions Deportation no longer a tool in the hands of perpetrators Need cooperation in investigations Not only prosecutions

14. Congress recognized that Prosecutions are also affected by circumstances beyond victim�s control Key is her willingness to be or having been helpful to police and prosecutors Role of certification Provide expertise on crimes Verify helpfulness

15. �Investigation OR Prosecution� Used to Assure Access to T and U Visas When: Prosecutor Drops the case Never brings charges Decides not to call visa victim as a witness Rapist cannot be served with a warrant Police violate search and seizure laws Court Dismisses the case Perpetrator acquitted

16. VAWA 2005 immigration relief to more DV victims In addition to the U visa option the following victims can newly self-petition Child abuse and incest victims have until age 25 to file VAWA self-petitions Elder abuse victims abused by USC son/daughter can self-petition SIJS � no contact with abusive parent Adopted kids � no 2-year custody

17. Reason VAWA Works for Immigrant Victims Interconnectedness of immigrant victims needs Access to legal immigration status removes deportation barrier Brings legal work authorization, a path to economic independence When immigrant victims no longer fear deportation and have access to a means for economic survival They have dramatically increased access to all other programs, services and protections designed to help victims of violence against women More likely to be able to safely choose to assist in prosecution of her abuser

18. U VisaBasicsGretchen HuntWalter Laramie

19. Immigrant Crime Victim Visas (�U�) What is it? Legal immigration visa for victims of listed criminal activity who are willing to be helpful in an investigation or prosecution Good for four years Extension authorized w/certification that needed to assist in investigation or prosecution With employment authorization May lead to permanent residency

20. Crime Victim (�U�) Visa Requirements Substantial physical or emotional abuse from criminal activity Possesses information about criminal activity If victim under 16 on date of crime (parent, guardian or next friend may possess information) Criminal activity must have occurred in U.S. or otherwise violate U.S. law Certification from government official (signed in the past 6 months) stating that victim has been, is likely to be or is being helpful to an Investigation or prosecution of criminal activity

21. What crimes are covered under the �U� visa? Rape Torture Trafficking Incest Domestic violence Sexual assault Prostitution FGM

22. Crimes Covered -- Continued Blackmail Extortion Manslaughter Murder Felonious assault

23. Enumerated crimes non-exclusive Includes criminal activities where the nature/elements of the offense are substantially similar Wide variety of state/federal criminal statutes Victim qualifies to U-visa even when: Criminal activity that qualifies for U-visa protection may occur during the commission of another crime not listed Prosecutors/police charge perpetrator for non-listed crime Example: Investigating embezzlement or drug offense and discover that the perpetrator also abusing his wife (DV victim qualifies)

24. Who might be helped by the U Visa?

25. 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)

26. Evidence to Prove that Applicant is a Victim of U-Visa Listed Criminal Activity

27. �Physical or Mental Abuse� Injury or harm to the victim�s physical person Impairment of the emotional or psychological soundness of the victim

28. 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

29. 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

30. Evidence to Prove: Physical abuse or injury Severity of perpetrator�s conduct Emotional abuse or injury

31. Who can file as a �direct victim� of criminal activity ? As a result of U-visa listed criminal activity Person has suffered direct harm Person is proximately harmed Bystanders who can qualify only if Suffered unusually direct injury as a result of a U-visa listed crime (e.g. miscarriage) Decided on case-by-case basis Can include family members of citizen or lawful permanent resident crime victims Victims can offer U-visa protection for certain family members

32. Indirect Victims Murder, manslaughter cases or Incompetent or incapacitated victim Indirect Victim of an adult: spouse, children under 21 years of age Indirect Victim of an under 21 year old victim at the time of the crime: parents and siblings under age 18 Many indirect victims may also be entitled protection as family members of victims

33. Witness Tampering, Obstruction of Justice, Perjury - Perpetrator Avoids or frustrates the efforts to Investigate Arrest Prosecute Or otherwise bring to justice Manipulates/uses the legal system to abuse, exploit or impose control over victim Victim directly or proximately harmed Crimes independent of other listed crimes

34. 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)

35. U-visas for family members of crime victims Children include those born after U-visa approval Cannot include the perpetrator No need to show extreme hardship No need for separate certification from prosecutor

36. Who can certify? Police officer Prosecutor Judge Immigration Officer Other authority with responsibility for investigation or prosecution of criminal activity

37. Other Federal, State or Local Agencies Agencies with criminal investigative jurisdiction In areas of expertise Including but not limited to Child Protection Services Worker EEOC Department of Labor

38. �Investigation or Prosecution� Includes: Detection Investigation Prosecution Conviction Sentencing

39. What other kinds of agencies might be included?

40. What is certification? Required part of U-visa application Signed by the head of agency OR Designated supervisor Any persons in supervisory role Anticipates multiple designated supervisors Certification includes that U-visa criminal activity occurred (cite violation of U.S./state/local law) Victim has has been, is being,likely to be helpful

41. What steps might you take to work with certifying agencies in your community? Police Prosecutors Judges Others

42. Criminal waivers Waivers available for violent or dangerous crimes or security related issues DHS discretion to grant waiver in extraordinary circumstances No waiver for genocide, torture, extrajudicial killing or Nazis Victims must file waiver request with evidence that waiver is in the public or national interest

43. Culpability Victims cannot be culpable for the same incident of criminal activity being investigated or prosecuted for which they are seeking U-visa protection �This exclusion does not apply to an alien who committed a crime other than the one under investigation or prosecution, even if the crimes are related.�

44. Application Process Filed with Vermont Service Center Limit of 10,000 principal visas per year (placed on wait list for next year if cap met) Seek permanent residency after three years of physical presence. Must show grounds of Public interest, Family Unity or Humanitarian need AND Victim cannot unreasonably refused to cooperate

45. Other Important Issues Grant of U-visa leads to termination of any removal case against victim Victims can file from abroad directly at Vermont VAWA Unit

46. Collaboration and relationship building with ICE and Border Patrol Karen Saunders Assistant Agent In ChargeBorder Patrol

47. Issues Regarding Reporting Abusers to Border Patrol Deportation instead of prosecution not necessarily a deterrent. In domestic violence cases many abuser return and are fearless because were never prosecuted Chilling effect on reporting of domestic violence in immigrant communities

48. Effects of Removal Benefits Removal of criminal element Disadvantages Financial Immigration status effect on victim Family dissolution Border Illusion Emotional

50. The Border Illusion Deportations provide false sense of security for victims of domestic violence Most removals are administrative procedures Perpetrators are likely to return illegally 90 % of DV cases are pled down to misdemeanors Felony conviction and prison time is needed for Immigration Prosecution under AUSA guidelines 8 USC 1326: Illegal re-entry after removal of Aggravated Felon Up to 20 years if convicted

51. Areas Where DHS and Community Can Collaborate Learn to identify immigrant victims Domestic violence Sexual assault Other U visa listed crimes Know community resources to help immigrant victims Be familiar with legal immigration options for immigrant victims

52. Avoid being used by the abuser Be wary if the person making the call appears to be a spouse, parent or family member Do not act on tips that an undocumented immigrant can be found at a Shelter Victim services program Courthouse � particularly family or protection order court

53. VAWA Confidentiality

54. History of VAWA 1996 Confidentiality Protections Despite VAWA immigration protections perpetrators were -- Able to stalk victims using immigration authorities Convincing government personnel to disclose information about VAWA cases to abusers; endangering victims Providing information that undermined victim�s immigration case and/or resulted in her immigration arrest, detention, deportation Triggering arrests and enforcement actions at courthouses, shelters

55. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 --IIRAIRA VAWA confidentiality Prohibited reliance on abuser/family member provided information in any case without regard to whether the victim immigration relief eligible Prohibited on use and disclosure of information in VAWA immigration case Disciplinary sanctions and fines

56. VAWA Confidentiality DHS cannot disclose regarding any of the following VAWA protected cases to anyone VAWA self-petition VAWA HRIFA VAWA Cubans VAWA NACARA T visa U visa Battered spouse waiver including the existence of the case

57. VAWA 2005 Enacted January 5, 2006 - significant changes to the forms of relief available to immigrant vicitms Required that immigration enforcement actions not be taken at specified locations without certification that victim safety and confidentiality provisions were not violated Added penalties for violations of mandatory certifications

58. Locational 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

59. Mandatory training: DHS officers should not undertake enforcement at these locations

60. DHS Explanation 8 U.S.C. � 1367 (commonly referred to as the �384 confidentiality provision) prohibits disclosure of ANY information relating to an alien who is a VAWA self petitioner, VAWA cancellation, T or U visa applicants. The prohibition remains in effect until �the application for relief is denied and all opportunities for appeal of the denial have been exhausted.�

61. Sec. 287(g) Added By IIRAIRA With VAWA Confidentiality Allows state/local law enforcement to �perform functions of immigration officer� They are to �perform the function of an immigration officer� �Have knowledge of, and adhere to� federal immigration laws All NOT Some Subject to sanctions for VAWA confidentiality violation in the same manner at DHS employees

62. Violations-Sanctions Consequences of violations Each violation Disciplinary action and/or $5,000 fine for the individual Dismissal of the immigration proceeding against the non-citizen Violations include Seeking or using information from a prohibited source Disclosing or permitting disclosure of information in or about any VAWA, T or U visa case Making a false certifications in a Notice to Appear

63. Limited Exceptions Legitimate law enforcement purpose Statistical purposes and Congressional oversight (without identifiers or locational information) Public benefit application purposes Judicial review in a manner that protects confidentiality After prior written consent to waive confidentiality by victim, including for purposes of referral to victim and legal services To federal prosecutors to comply with constitutional obligations

64. Protection afforded to information released through any exception Agencies receiving information �whether governmental or nongovernmental are governed by the confidentiality provisions and restrictions set out in 8 U.S.C. 1367� (VAWA confidentiality) �In addition to DHS, it applies to family court officers, criminal court judges, and law enforcement officers� Thus agencies subject penalties for violation (including fines and dismissal of case against the immigrant victim)

65. VAWA Confidentiality Violation � Red Flags (Case Examples) Enforcement actions occurred at Courthouse Shelter Release of protected information ICE officer gave abuser victim�s �A� number and allowed him to make copies of the victim�s U visa case file VAWA cancellation case information was given on court�s taped information system allowing abuser to track down the victim at court. Tapes from victims� VAWA cancellation case released to abuser�s attorney

66. Red Flag� Case Examples Continued Use of abuser provided information ICE officer relied upon information provided by a USC batterer and child abuser to issue an NTA and seek arrest of his alien spouse who was in hiding with their children at a shelter. Abuser repeatedly went to ICE office to report his wife as an overstay. ICE arrested his abused wife who was ultimately released granted legal immigration status.

67. HQ Guidance All enforcement actions (including mailing an NTA) at a sensitive location should be cleared though the local ICE Office of Chief Counsel This provisions applies to all enforcement actions taken on or after February 5, 2006.

68. Working with Immigrants and U-Visas Officer Miguel Rodriguez Officer Shannon Gahafer

69. A Model for Developing Trust From Community Policing With Immigrant Community Getting to know the community Providing information to protect victims of crime Providing a tool for Officers to be able to assist immigrant community

70. Population Estimate Immigrant population in Lexington-Fayette Urban County has been estimated as high as 40,000 people Total population 270,000 people Over 150 languages in the Kentucky public school system

71. Improving Language Access to Police Prior to mid 1990�s the Immigrant population in Lexington was seasonal. Due to a thriving local economy and very low unemployment rate Lexington became an attractive area for individuals looking for jobs. In the mid 1990�s workers brought their families and began to settle in this community.

72. History of Language Program Signs of a permanent Immigrant population Police contacts with Immigrants grew rapidly (Victims, perpetrators, witnesses etc.) Police lacked language and cultural skills to provide quality service

73. Classroom Work During the Classroom Portion the Students Learn: Language Instruction Cultural Awareness

74. Cultural Awareness Students are exposed to Latino Culture through lectures, guest speakers and discussions Students acquire a heightened sensitivity to the Latino Culture

75. Lessons Learned Officer�s safety is heightened A stranger in a strange land Communication (Two ways)

76. Advance Language Program 2001 Winner Weber Sevey Award From IACP 2005 Finalist Innovations in American Government Awards From Harvard University

77. Other Efforts To Build Trust With Immigrant Victims Spanish literature such as awareness pamphlets and information sheets Spanish answering machine for the administrative desk Participating in activities with the Latino Community

78. Getting The Word Out Obstacles Partnerships Building Trust

79. Officer Rodriguez�s Card

80. How Media is Used to Reach Immigrant Victims Monthly Spanish Radio Show (Radio Vida 1440 AM) Monthly Spanish/English Column on newspaper (La Voz) Public Announcement in Spanish for Radio and Television

81. Benefits Vs. Cost The program will enhance community relations Increases interaction and communications Increases understanding of cultural differences

82. Benefit of Outreach Programs to Immigrant Victims Give officers a new skill and insight Enhances officer�s safety Creates an opportunity for interaction with the community

83. U visa Certification experiences Collaboration What agencies Understanding of U visa Relationships with Non-Gov Agencies Providing certifications

84. Building Relationships Legal Services Community Groups Immigrants Rights Community Centers

85. My First Case

86. Practical Exercises Based on our experiences with U visa Certifications

87. Best Practice Research the case You or your agency are or will have been responsible for overseeing the investigation Contact the victim and/or attorney; if necessary Sign the certification

88. Questions and Answers

89. Officer M. Rodriguez Officer S. Gahafer 150 E. Main St./ CLEAR Unit Lexington, KY 40507 mrodrigu@lfucg.com 859-258-3600 859-425-2384

90. U-Visa Certification: From an Victim Advocate�s PerspectiveMonica CastillonVictim Advocate

91. Introduction Who What Where Why I do what I do

92. How U-visa certifications are handled in our prosecutors office: Who is responsible for filling out certification application?

93. Strategies with Prosecutors How to explain the U visa to prosecutors

94. Hypothesis  Herstory Case synopsis How getting U-Visa work permit can change her life Be an advocate inside the agency as well as outside

95. U Visa Application Certification ExerciseMaria Alvarenga and Gretchen Hunt

96. Hypo #1 Sima has been admitted to a local hospital for injuries received during a rape. She was assaulted with a gun handle and has received lacerations to the head. She also has a broken arm. Sima is reluctant to say what happened to her and to talk to the police. She does not speak English well and she is afraid of the police. She came to U.S. on a student visa, which has expired. She is now working.

97. Hypo #2 Margo is 28 years old and was arrested for prostitution after an undercover bust. Margo speaks Russian mostly. She seems very afraid. Police really want to get the �Pimp� but he always gets away. Margo tells you that she is not a prostitute. That �Luther� makes her do these ugly things.

98. Hypo #3 Juanita is a victim of manslaughter. She was killed by her husband. While investigating, police discovered that Juanita�s mother, Raquel, was a witness of the crime. Raquel has recently arrived from Chile, and does not have her green card. The offender calls ICE and reports that Juanita�s family is in the country illegally. ICE has been looking for Raquel but she has disappeared.

99. HYPO #4 The Local Immigrant Free Clinic & Center calls police. Upon arrival, police are told that they have a victim of Domestic Violence, who is very afraid of her boyfriend John, they have a child in common, and the abuse is getting worse. The last time she was beaten was a week ago. She was beaten with the telephone. She needs to get medical attention now. She is also undocumented. She has been advised that the police will help her if she reports the crime. She has agreed to do so.

100. HYPO #5 Bubba was arrested for burglarizing the apartment of his mother Mary, an elderly lady. The Lopez brothers, who live in the apartment across the hall from Mary�s were witnesses to this crime. The Lopez brothers keep to themselves and work two jobs six days a week. After telling the detectives what they saw, they have now changed their minds about testifying. Detectives found out that Bubba had his friend Ricky intimidate the Lopez brothers by breaking their car, smearing feces on their door, following them around, staring at them and showing them what appears to be a gun, knocking on their door at all hours of the night, and telling them that ICE is going to get them. The Lopez brothers have seen Ricky doing this and have seen Bubba near by when these things are happening.

101. Preparing the U visa Application Interactive Exercise and View From Adjudicator�s Perspective

102. Complete and Sign the Petition The Form I-918 U-visa petition form will be rejected if it is not signed. The petition may be denied if all sections are not completed. Initial evidence must accompany the petition. Missing initial evidence may be grounds for denial.

103. Include Biometric Fee The fee for the I-918 petition form is waived. A biometric fee of $80.00 is required for the petitioner and derivatives ages 14 � 79. Petitioner may request waiver of the biometric fee.

104. Required Initial EvidenceCertification Properly and Timely executed Supplement B, �U Nonimmigrant Status Certification� Any additional evidence the petitioner wants considered establishing that they meet of the eligibility requirements. Statement by the petitioner describing the facts of the victimization If inadmissible, Form I-192 inadmissibility waivers

105. What is additional evidence? Any credible evidence establishing the petitioner�s eligibility. May include but is not limited to: Trial transcripts Court documents Police reports Affidavits from medical personnel, police, judges, other witnesses, etc. News articles

106. Petitioner�s Statement The petitioner�s statement is a strongly suggested form of additional evidence for other VAWA petitions. The petitioner�s statement is required initial evidence for the Form I-918 U visa application

107. What will DHS consider? DHS will consider all credible evidence including: Information on the petition Information on Certification Form Petitioner�s statement All submitted additional evidence All evidence submitted with an earlier request for interim relief Any documentation submitted to DHS by the petitioner in the past

108. Interim Relief An earlier grant of interim relief means only that the petitioner submitted �prima facie� evidence for eligibility. A grant of interim relief does not bind DHS to approve the U-visa application I-918

109. U StatusCertification Form, Supplement B DHS will give a properly executed Supplement B Certification significant weight when adjudicating the petition DHS will not consider the certification to be conclusive evidence that the eligibility requirements have been met.

110. Similar Activity Nature and elements of offense are substantially similar to statutorily listed criminal activity May include a qualifying criminal activity discovered during the investigation or prosecution of a non-qualifying crime by an individual who does not investigate/prosecute the qualifying criminal activity

111. Certification of Similar Activity Certify a qualifying criminal activity Explain how the criminal activity being investigated/prosecuted is similar to qualifying activity Substantially similar nature and elements Discovered during investigation of non-qualifying criminal activity If possible, qualifying activity should be referred to a responsible agency and possible additional certification