Providing Civil Legal Services for Immigrant Victims of Dome

VAWA

-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

Immigrant Victims of Domestic Violence and Sexual Assault: A Holistic Approach to Providing Civil Legal Services

Johnna Bailey, Community Legal Center

Shayla Purifoy, Memphis Area Legal Services

Who Is Eligible to Self-Petition Under VAWA?

What a VAWA Self-Petitioner must Prove:

Abused spouses of USCs & 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 children 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)

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

Qualifying Criminal Activity

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

U Visa Certification (Form I-918, Supplement B)

U Non-immigrant Visa

Grounds of inadmissibility (INA § 212; 8 USC § 1182)

Health-related grounds

Criminal and related grounds

Security and related grounds

Public charge

Illegal entrants and immigration violators

False claim to U.S. citizenship

Persons previously removed

Aliens unlawfully present

U visa applicants may apply for a waiver of inadmissibility for most grounds found under INA § 212(a).

Admissibility

Helpful Resources:

Original certification required – without it there is no case

Must be completed & signed by the head of the certifying agency or any person specifically designated by the head of the agency to sign such certifications, or a Federal, State, or local judge

Certification must have been signed within 6 months immediately preceding the submission of the petition

Will not be conclusive evidence of any of the eligibility requirements.

DHS Law Enforcement U Cert guide: http://www.dhs.gov/xlibrary/assets/dhs_u_visa_certification_guide.pdf

Judges and Magistrate Guide to Certification:

http://iwp.legalmomentum.org/immigration/u-visa/tools/judges/JUDGES%20TOOLKIT2.23.11.pdf/view

• Legal standard for all foreign nationals applying for a legal status to either enter or extend stay in U.S.

• Must be “admissible” to the U.S.

***Visa overstay does not require waiver of inadmissibility for U visa

All U visa principal and derivative applicants must demonstrate admissibility or seek a waiver of inadmissibility

- October 2000 under Victims of Trafficking and Violence prevention Act (VTVPA), for non-citizen victims of crime.

- Reluctance to help in the investigation/prosecution of criminal activity for fear of removal from the U.S.

U Non-immigrant Visa

- To strengthen the ability of law enforcement agencies to investigate & prosecute cases of domestic violence, sexual assault, trafficking of aliens & other crimes while offering humanitarian protection to victims of such crimes.

-Provides a way to remain in the U.S. to assist in an investigation/prosecution of perpetrators

Cooperation?

Benefits/Limitations

Cooperation with Law Enforcement

Helpful means: assisting law enforcement in the investigation or prosecution of the qualifying criminal activity of which he/she is a victim.

Principal U Visa Applicants Must Prove:

Non-immigrant legal status for up to 4 years (possible extensions)

Path to citizenship

Family members may be eligible to apply for the U visa as a derivative. Derivative relationship must exist at the time I-918 filed, at time adjudicated, & 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

FAMILY LAW &

Civil Legal Services

1. Substantial mental or physical abuse

2. Immigrant (or in the case of a child under 16, the parent or guardian) possesses info concerning criminal activity; &

3. The criminal activity violated U.S. law or occurred in the U.S.; &

4. Immigrant cooperates with authorities investigating or prosecuting the crime

CLC, MALS, YWCA

Orders of Protection

Divorces

Child Support

Visitation

Housing Issues

Legal System

Immigration legal issues, Civil legal (divorce, custody, child support, orders of protection), benefits, social services, advocacy, resources

Abusers often file divorces, attempt to gain custody, and immigrant victims face other civil legal issues that may encourage returning to the abuser where the immigrant victim/survivor has no support.

Wrap Services Around the Victim