When the Victim is an Immigrant: Opportunities, Pitfalls & Ethical Issues in Applying for Victim’s Visas

1. When the Victim is an Immigrant: Opportunities, Pitfalls & Ethical Issues in Applying for Victim’s Visas CLE Presented by Angela L. Williams The Law Offices of Angela L. Williams, LLC 4235 Baltimore Ave Kansas City, MO 64111 816-531-2166 (T) 816-531-2444 (F)angie.williams@me.com www.williamslawkc.com For the Kansas Coalition against Sexual & Domestic Violence October 12, 2010 Topeka, KS

2. My Client is an Immigrant. Now what? In all representation, it is important to verify the whether the client is a US citizen. Non-citizens, especially undocumented people may have immigration options.

3. Kansas Code of Professional Conduct

4. Kansas Rules of Professional Conduct

5. Kansas Rules of Professional Conduct

6. Types of “Victim’s” Visas • U Visa- Crime victim’s visa • T Visa- Visa for the victims of Human Trafficking • VAWA-Violence Against Women Act- Visas for abused spouses or children of US Citizens or Permanent Residents • Juvenile Visas- Special Juvenile Immigrants or Unaccompanied Minors • Deferred Action-Temporarily Stops Physical Deportation

7. U Visas • Visa for Victims of Crimes • Goal- to encourage undocumented people to report crimes and cooperate with law enforcement • Can be found at INA § 101(a)(15)(u)-Definitions; §214(p)-Numerical limits and procedure; §245(m) adjustment of status: & 8 CFR §214 • Requires the person 1. Was a victim of a crime listed in the regs or other serious crime; 2. The person has information important to the investigation of the case 3. The person was or is being helpful; 4. The person suffered “permanent harm” as a result of being a victim; 5. The application must include a certification from investigating body, a prosecutor or judge of the persons helpfulness.

8. U Visas Continued • If approved gives the person and certain derivatives legal status and the right to work for 3 years • At the end of 3 years the person may self petition for Lawful Permanent Residency • After 5 years of Residency the person my self petition for US Citizenship • Waives almost everything except genocide and being a Nazi

9. T Visas • Be a victim of a severe form of trafficking in persons • Be physically present in the US as a result of the trafficking • Comply with any reasonable request for assistant or prosecution • Have Suffered extreme hardship involving unusual and severe harm upon removal from the US

10. T Visas • Can self petition • Some family members can be included • Eligible to work in the US • 4 year visa • May self petition for Lawful Permanent Residency After 4 years • Pro- No need for the certification • Con- Higher level of proof of meeting the trafficking definition

11. VAWA • Not just for women, can be abused men or children (USC or LPR) or parents (USC only) • Abuser must be USC or LPR: This statute takes the place of the Abusing Petitioner • Self Petitioning • Is or was married to USC or LPR/child of USC or LPR or Parent of USC

12. VAWA • Subjected to battery or extreme cruelty by the abuser • Resides or resided with the abuser • Good moral character • Pro- Do not need a sponsor and is self petitioning, can work, can remarry after petition is approved, can have derivatives; can apply to 751 as well as initial residency; Can apply for residency immediately if you qualify; 3 years to NATZ

13. VAWA • Cons: GMC not auto-waived like with U’s and T’s; Criminal history might make you ineligible; Multiple entries, deportations, Voluntary returns might make you ineligible; If married to a LPR you have to wait for the priority date; Common law marriage very hard to prove: No benefit if abuser is undocumented (though U might be available)

14. Children • Children can qualify for U’s, T’s & VAWA either as the stand alone victim or as a derivative to mom or dad • Abused, abandoned or neglected children- SIJS- Special immigrant juvenile status- Requires a guardian, maybe even one parent, needs state court action followed by immigration petition that takes them directly to LPR

15. Children • Juveniles in State Juvenile Court system • Juveniles in Federal Custody • MUST have a state juvenile court dependency order • Dept of Health and Human Services has responsibility for care and custody of unaccompanied minors in federal custody • May be able to file an asylum application in some situations

16. Children • Pros- One Stop Shop from undocumented to LPR; waives many things but not everything; Gives you until 21 to apply for the immigration benefit; Quick adjudication (180 days); Eligible to work; Cannot apply for abusive parents • Cons- have to be under 18 to get the state order but you have until 21 to apply for the immigration benefit; have to have a state court finding that the child needs a guardian not solely for immigration purposes; tricky if there are multiple entries or if even 1 parent of the child is in the US (though not impossible)

17. Ethical considerations in working with victims Look always to the Professional Rules in deciding how to approach a potential victim situation. K. Y. C. Know Your Client

18. You may be the first person to hear this story • Representing victims means building a trust relationship with them. • This relationship sometimes takes time to develop • Be aware of your own limitations and preconceptions • Be courteous and do not dismiss what the person is saying

19. Considerations • Be aware of the cultural and social implication of what the client is telling you • Be aware that you will probably not get the whole story the first time • Be aware that depending on the trauma to the victim their story might be disjointed and have later remembered details • Be aware they may even lie because of shame or embarrassment

20. Follow the Code • 1.2 Scope of representation- A lawyer shall abide by the client’s decision concerning the lawful objectives of representation • May limit the scope of representation • May not counsel client to do anything criminal or fraudulent but can discuss the consequences of these course of actions • 2.1 Counselor: Advisor- Says that sometimes the best advice is that other types of professional help is necessary

21. Other Ethical Dilemmas • Conflicts of interest (1.7) • Confidentiality (1.6) • Duty of Candor Toward the Tribunal (3.3) • Clients with Diminished Capacity (1.14)

22. When the relationship goes bad… • 1.16 Client-Lawyer Relationship: Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: • (1) the representation will result in violation of the rules of professional conduct or other law; • (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; • (3) the lawyer is discharged; or • (4) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent. • (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: • (1) the client has used the lawyer's services to perpetrate a crime or fraud; • (2) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; • (3) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; • (4) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or • (5) other good cause for withdrawal exists.

23. Duty of Meritorious Claims Most important: Client is fully aware and informed on the risks and benefits of the application so he or she can make an informed decision • Just barely not fraud? • Somewhere in between Does that mean 100% winnable?

24. Other issues • Victim’s Statement • Your job as the editor or re-writer or transcriber • Working with very traumatized people • Working with translators/interpreters • What if the client has cold feet later? • What if he or she is still living with the abuser? • Working with difficult police, prosecutors or court victim’s advocates

25. Questions?