1 / 73

Representing Immigrant Survivors of Domestic Violence and Sexual Assault

Representing Immigrant Survivors of Domestic Violence and Sexual Assault . VAWA & U Visas. August 14, 2009 Winston & Strawn LLP. www.immigrantjustice.org. About the National Immigrant Justice Center.

Download Presentation

Representing Immigrant Survivors of Domestic Violence and Sexual Assault

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. Representing Immigrant Survivors of Domestic Violence and Sexual Assault VAWA & U Visas August 14, 2009 Winston & Strawn LLP www.immigrantjustice.org

  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 maintains a 90 percent success rate in representing asylum seekers. • Since 2004, NIJC has litigated over 100 due process and asylum cases in the federal courts in conjunction with pro bono attorneys. • In FY 2007, NIJC successfully represented 24 individuals seeking protection in the United States before the U.S. Seventh Circuit Court of Appeals.

  3. NIJC’s Pro Bono Projects • What we do: • Case screening, assessment and acceptance • Placement with pro bono attorneys • Case management • Attorney support and technical assistance

  4. Pro Bono Opportunities with NIJC • Asylum • Detention • SIJS • VAWA & U-visas • Citizenship • I-730s & Asylee Adjustments

  5. Pro Bono Case Assignment Process • List of available cases, with brief description, sent out to our pro bono attorney network bi-monthly • Conflicts Check • Case Assignment • NIJC remains “of counsel” • NIJC provides on-going support and assistance • Pro bono attorney will set-up initial interview with client within 1-2 weeks of case assignment • Applications should be filed as soon as possible (8-12 weeks recommended preparation and filing time) • Pro bono attorney remains attorney of record throughout duration of case • If pro bono attorney cannot continue with case, must make efforts to reassign internally and notify NIJC

  6. Interviewing Your Client • Find volunteer interpreter, if necessary • Safety check • Stress confidentiality • Refer to counseling or other services, as needed • Sign Release of Information and Retainer Agreement • Build a relationship of trust • Physical and emotional space • Avoid legalese • Learn about client's family, and immigration and criminal history (i.e. prior marriages, children or other family members living in U.S., criminal history, entries/exits in the U.S., prior immigration applications filed or problems with immigration) • Explain domestic violence using P&C wheel • Explain application process, fees/fee waivers and processing times • Review list of documents that will be needed for filing

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

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

  9. How Abusers Can Misuse Immigration Privilege • Failing to file immigration papers on behalf of family member • Filing an I-130 petition (or other application) and later withdrawing it • Threatening to contact immigration officials • Contacting immigration officials for the purpose of reporting family members • Providing immigration officials with false information about family members

  10. Cultural Barriers Facing Immigrants • Language limitations • Extreme Isolation • Cultural ideas of family shame and honor • Close-knit communities • Role of religion

  11. Basic Overview of Family Based Immigration • Obtaining lawful permanent residence through family members • Grounds of inadmissibility • Waivers of grounds of inadmissibility • Family based immigration and domestic violence

  12. Laws and Reference Sources • Immigration & Nationality Act (Title 8 of U.S. Code) • Title 8 of Code of Federal Regulations • Agency Policy Memoranda and Guidance • Board of Immigration Appeals (BIA) and Federal Circuit Case Law • Kurzban’s Immigration Law Sourcebook • USCIS website (www.uscis.gov) • American Immigration Lawyers Association (AILA) • ILRC • NLG/NIP • Asista

  13. DV: domestic violence LPR: lawful permanent resident “green card” USC: US citizen EWI: entry without inspection VAWA: Violence Against Women Act U Visa: visa for victims of certain crimes AOS: Adjustment of Status - the process applying for LPR (in the U.S) Consular Processing: applying for LPR (outside of the U.S.) USCIS & DHS. U.S. Citizenship & Immigration Services was created as part of the Department of Homeland Security in 2002 (former INS) RFE: Request for Evidence PRD: Priority Date EOIR: Executive Office for Immigration Review IJ: Immigration Judge ICE: Immigration and Customs Enforcement CBP: Customs & Border Protection EAD: Employment Authorization Document (“work permit”) DA: Deferred Action Terms and Acronyms

  14. Family Preference System v. Immediate Relatives • LPRs can petition for certain relatives. Due to limits placed on the number of visas available to such beneficiaries, persons who are not immediate relatives must wait to apply for LPR status. The waiting time depends on the status of the petitioner and the type of relationship between the petitioner and beneficiary. • Department of State Visa Bulletin: www.state.gov/travel

  15. Obtaining Lawful Permanent Residency through Family-Based Petition • U.S. citizens can petition for: • Parents = immediate relative • Spouses = immediate relative • Children (under 21/unmarried) = immediate relative • Adult, married children • Siblings • LPRs can petition for: • Spouses • Unmarried children

  16. Applying for Lawful Permanent Residence • Two-Step Process • Step 1: filing a visa petition form (Form I-130) • Step 2: applying for an adjustment of status (Form I-485)

  17. STEP 1: Filing an I-130 Petition for Alien Relative (Priority Date) • If the beneficiary is an immediate relative can usually take both steps together • When the I-130 is approved, a PRD is set. The PRD is usually the same as the date on which I-130 was received by USCIS. The PRD establishes the date on which an applicant can take the second step and apply to adjust to LPR status.

  18. STEP 2: Filing Form I-485 Application for Lawful Permanent Residence • Once an individual has an approved visa petition or current priority date, she can apply to adjust her status in the United States • If a person cannot adjust status to lawful permanent residence in the United States, she may consular process in her home country

  19. INA § 212(a) and Grounds of Inadmissibility • 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

  20. Waivers for Grounds of Inadmissibility • There are waivers available for several grounds of inadmissibility • Under VAWA, applicants can obtain special waivers for certain (but NOT ALL) grounds of inadmissibility • Under U Visa, applicants can obtain waivers for almost all grounds of inadmissibility

  21. The Violence Against Women Act (VAWA) • 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 US citizen or LPR spouses or parents INA § 204; 8 CFR 204

  22. VAWA Process • Affirmatively –self-petition before USCIS • Defensively – adjustment of status based on VAWA or cancellation of removal before Immigration Court

  23. Who Is Eligible to Self-PetitionUnder VAWA? • Abused spouses of U.S. citizens and LPRs; • Non-abused spouses of US citizens 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 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)

  24. Special VAWA Provisions • An immigrant is still eligible to self-petition within two years following the occurrence of the following events: • Death of USC (Not LPR) • Divorce • Deportation where there is a connection to the domestic violence

  25. Self-Petitioners Must Prove • 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

  26. Standard of Proof • “Any credible evidence” standard applied to VAWA self-petitions • 8 CFR § 204.2(c)(2)(i)

  27. Client Affidavit • Ok for client to write in her own in native language and translate • Can have client prepare with counselor or other advocate • Take what client wrote and organize in chronological order • Fill in important details • Must be comprehensive and address all eligibility requirements

  28. Abuser’s Immigration Status • U.S. birth certificate • U.S. passport • Resident Alien Card • Application for Marriage License • Child’s birth certificate • Request to search service records (if abuser legalized his or her status with USCIS)

  29. Good Faith Marriage • Self-petitioner cannot have entered into a marriage for the primary purpose of circumventing the immigration laws. 8 CFR § 204.2(c)(1)(ix). • KEY FACTOR is whether she intended to establish a life with spouse at the time of marriage.

  30. Battery or Extreme Cruelty • Is defined broadly to include “being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury.” • 8 CFR § 204.2(c)(2)(vi). • See Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) for thorough legal analysis of what constitutes “extreme cruelty.”

  31. Good Moral Character • Must establish good moral character for the three years preceding the filing of the self-petition • See 8 CFR 204.2(c)(1)(vii) and (c)(2)(v). • See INA § 101(f)

  32. Confidentiality Provisions • Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 prohibits all DHS and DOJ employees from providing information about a self-petitioner to 3rd parties • Section 384 similarly prohibits DHS from making any decisions about removability based solely on information provided by the abuser 8 CFR § 1367

  33. Filing Fees • Form I-360 ($0) • Form I-765 without adjustment ($340) • Form I-485 ($1010 14 years or $930 under 14 years or if filing with one adult/parent, then $600) • All fees should be in form of money order and payable to “Department of Homeland Security” • Fee waiver request should be in form of notarized client affidavit demonstrating “inability to pay” and include evidence of income/expenses

  34. Filing Procedures for VAWA Self-Petitioners File necessary applications and supporting evidence: • Detailed, argumentative cover letter & index of documents • G-28, Notice of Representation • Form I-360 (self-petition) with evidence supporting all requirements • Form I-765 (employment authorization – if eligible to adjust, otherwise, must wait until VAWA is approved) • Two passport photos if filing I-765 • Form I-485 (adjustment application) • Two passport photos if filing I-485 • G-325A, Biographic Information • I-693, Medical Exam • I-864W, Affidavit of Support Exemption • Fee Waiver Request, if applicable

  35. Filing Tips … • *Derivatives* • All foreign documents must be translated. Translator must certify that he/she is competent in both languages to render an accurate translation • Two-hole punch at top of application packet and bind with metal prong fasteners or binder clip • DO NOT use spiral binding • Place each application (I-360, I-485 & I-765) into a separate envelope • Write in large red letters 1) the type of application, 2) VAWA, and 3) “with fee waiver request” (if applicable) • Place all envelopes into one mailing envelope • Send via certified mail or overnight delivery

  36. Where to File • Self-petition and all accompanying applications are sent to: USCIS Vermont Service Center Attn: VAWA Unit 75 Lower Welden Street St. Albans, VT 05479-0001

  37. After Filing the Self-Petition • You will receive Form I-797, Notice of Action, indicating Receipt of your filing within about 2 weeks. • You will receive Form I-797, Notice of Action, indicating establishment of a prima facie case. • You will not hear anything else for approximately 10 months.

  38. U.S. Department of Justice Bureau of Citizenship and Immigration Services RECEIPT NUMBER EAC-99-000-99999 NOTICE DATE February 21, 1999 PAGE 1 of 1 CASE TYPE I-360 Petition for Amerasian, Widow(er), or Special Immigrant RECEIPT DATE March 2, 1998 Petitioner Ochoa, Graciela FILE NUMBER A76 000 999 Ochoa, Graciela Attn: Sherizaan Minwalla ESQ Midwest Immigrant and Human Rights Center 208 S. LaSalle, Suite 1818 Self-Petitioning Spouse of U.S.C. or L.P.R. ESTABLISHMENT OF PRIMA FACE CASE Prima Facie Notice • It is NOT an approval notice • It may be used to obtain public benefits

  39. Outcomes of Self-Petition • Request for Evidence (RFE) • Approval • Notice of Intent to Deny (NOID) • Denial

  40. I-360 Approval and Deferred Action • Deferred Action initially valid for 15 months and renewable in 12-month increments • Low priority for removal from the United States • Legal basis for employment authorization • If I-485 was concurrently filed with I-360, application will be transferred to local district office for scheduling of interview and adjudication

  41. Employment Authorization • You can file for employment authorization once the VAWA self-petition has been approved; or • You can file employment authorization if filing an I-485 with the VAWA self-petition • Employment Authorization may be renewed annually, provided there is still a legal basis for eligibility See 8 C.F.R. 274a.12

  42. Adjustment of Status Interview • Purpose – To adjudicate I-485 and determine admissibility • Officer does not have authority to re-adjudicate I-360 or question validity of decision • What to bring • Originals with translations (birth certificates, marriage certificates) • Passport of I-94 (only if client has these) • Govt. issued form of photo identification • All prior work permits • Translator (non-relative, over age 18, with photo ID)

  43. Sample VAWA Case Maria is a 32 year old Mexican citizen who entered the United States without inspection in 1997. She has not left the U.S. since entering at that time. In 2002, Maria married Alberto who is an LPR, and together they have two U.S. citizen children. Maria also has another child from a previous relationship who was born in Mexico. Maria’s husband was physically and verbally abusive throughout their marriage. Alberto always threatened her with calling immigration and never filed any papers for her. In December of 2008, Maria obtained an order of protection and moved into a domestic violence shelter. Maria is now seeking a divorce.

  44. History of U Visa • 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 protection to victims of such crimes. • Provides a mechanism to remain in the U.S. to assist in an investigation/prosecution of those who have perpetrated crimes against them.

  45. Legal Basis • Victims of Trafficking and Violence Protection Act, Pub. L. 106-386, October 28, 2000 • INA § 101(a)(15)(U) • 8 CFR § 214.14 • Trafficking Victims Protection Reauthorization Act, Pub. L. 108-193 • Violence Against Women and Department of Justice Reauthorization Act, Pub. L. 109-162, January 5, 2006

  46. U Interim Relief • Regulations implementing the U nonimmigrant status provisions of the INA were not published until September 2007. • Before the regulations were published, USCIS established a program to provide interim relief to those who appeared to be eligible for U nonimmigrant status; this was in the form of deferred action and employment authorization. • Between October 28, 2000 (date of enactment for VTVPA) and October 17, 2007 (effective date of U visa regulations), USCIS granted 10,846 individuals interim relief.

  47. Benefits & Limitations • Can apply for adjustment after 3 years in U nonimmigrant status • Annual cap of 10,000 per fiscal year • Can apply for family members. Derivative Relationship must exist at the time I-918 filed, at time adjudicated, and at time of admission. *Exception: Qualifying family members who were granted interim relief may use their age on the date of the U interim relief filing to prove eligibility http://www.uscis.gov/files/pressrelease/AFMUpdate_Ch39.pdf • 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

  48. U Visa Requirements • 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 *Any credible evidence standard applies

  49. Involves one or more of the following or any similar activity in violation of Federal, State, or local criminal law: Rape Torture Trafficking Incest Domestic Violence Sexual Assault Abusive Sexual Contact Prostitution Sexual Exploitation Female Genital Mutilation Being Held Hostage Peonage Involuntary Servitude Slave Trade Kidnapping Abduction Unlawful Criminal Restraint False Imprisonment Blackmail Extortion Manslaughter Murder Felonious Assault Witness Tampering Obstruction of Justice Perjury Includes attempts, conspiracy, or solicitation to commit any of the above. Qualifying Criminal Activity

  50. U Visa Certification(Form I-918, Supplement B) • Certification required • Must be completed and 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 package • Will not be conclusive evidence of any of the eligibility requirements.

More Related