How Immigration Laws Impact Immigrant Victims of Domestic Violence
Alicia came to Iowa in 1982. She is married to a legal permanent resident. Her spouse said she must have thirteen children with them in order to prove her love. Alicia had eight children and three miscarriages. She sustained repeated rapes, beatings, and constant threats to herself and her children. Still, she had yet to "prove her love" in the eyes of her spouse.
A major factor complicated Alicia's case. Her spouse never filed immigration documents on her behalf. He constantly used her lack of immigration status to threaten to report her to immigration authorities if she left them. Her spouse said he would get custody of the children before she was deported. Alicia lived in fear of being deported and the loss of her children. She did not contact the authorities about the abuse or seek help for almost twenty years. Alicia did not have a social security number, documents to get a job, or a driver's license. Iowa requires proof of immigration status in order to issue a driver's license. She was left financially dependent on her spouse, trapped in the abusive relationship. Unfortunately, Alicia's case is not unique.
Congress recognized the abuse of immigrant women and children due to their lack of immigration status. The Violence Against Women Act ("VAWA") was passed. In 2000, Congress expanded VAWA's protections in the Victims of Violence and Trafficking Prevention Act ("VTVPA"). This law created two new kinds of visas for people who are neither immigrants nor citizens, and are victims of certain crimes of violence. The two new visas are the "U visa" and "T visa."
1. VAWA SELF-PETITION
The law lets eligible relatives of a U.S. citizen or lawful permanent resident ("LPR") immigrate to the United States. The Citizenship and Immigration Service ("Service") approves all visa petitions filed by the sponsor citizen or LPR on behalf of a beneficiary. Family members rely on the sponsor to file a petition. A sponsor may fail to file a petition. He or she might file a petition but retract it, or fail on purpose to reply to a request for more information. If the sponsor controls all the beneficiary's mail, he or she may never know when to appear for interviews or proceedings. Such failure can result in placing the beneficiary in removal proceedings (deportation). The beneficiary could face removal without taking part in proceedings. Sponsors can thus use the immigration process to manipulate another person.
The VAWA self-petition process removes much of this power. Immigrant victims of domestic violence can by-pass a sponsor by submitting their own visa petition. To be eligible, the immigrant victim of abuse must first prove five things:
- The person must meet the eligibility requirements that apply under a family-based petition; and
- The person must be married or intend to marry in good faith; and
- The person must be of good moral character; and
- The person must have lived with the abuser; and
- The person must have suffered battery or extreme mental cruelty.
In 2000, this self-petition process was amended. The remedy was extended even to survivors who have divorced their spouses. Applicants must prove "a connection between the abuse and the divorce." Even if the U.S. citizen spouse died, lost or renounced his or her immigration status or citizenship, the applicant still qualifies. Any of these events must have happened within two years of filing the self petition. Children of an abusive U.S. citizen or LPR parent are also eligible to self-petition. All approved VAWA self-petitioners are eligible for employment authorization.
2. THE U VISA
Many immigrant victims of domestic violence, sexual assault, and other crimes of violence do not qualify for the VAWA self-petition remedy. The lack of immigration status and the threat of being turned over to immigration authorities deter many immigrants from reporting crimes or helping investigate or prosecute a case. As a result, law enforcement officers and prosecutors are left with less evidence and no victim to assist.
In response to this problem, Congress created the U visa. To qualify for a U visa, the applicant must prove:
- She suffered substantial physical or mental abuse as a result of having been a victim of criminal activity; and
- She has information concerning that criminal activity; and
- She assisted, is assisting, or is willing to assist in the investigation or prosecution of the criminal activity; and
- the criminal activity took place in, or violated the laws of, the United States. Among other crimes, the U visa covers rape, torture, trafficking, incest, domestic violence or attempt, conspiracy, or solicitation to commit any of these crimes.
In Iowa, the City of Des Moines is working with the Iowa Coalition Against Domestic Violence Legal Clinic to develop a protocol. The purpose of the protocol is to enhance law enforcement's ability to investigate and apprehend accused criminals, while protecting cooperating immigrant victims. This type of partnership is crucial to addressing the multiple needs of immigrant victims, and insuring effective law enforcement.
3. THE T VISA
The second visa for someone who is neither an immigrant nor a citizen under the VTVPA is the T visa. For a non-immigrant to be eligible, he or she must:
- be the victim of a severe form of trafficking; and
- be physically present in the U.S or at a port of entry on account of trafficking; and
- comply with requests to help investigate or prosecute trafficking; and
- be likely to suffer extreme hardship involving unusual and severe harm if removed from the U.S.
The law defines "severe forms of trafficking" as:
(A) sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act was not yet 18; or
(B) recruiting, harboring, transporting, provision, or getting a person for labor or service, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
To qualify for public benefits, victims must be certified by the Department of Health and Human Services ("HHS"). Once certification is issued, applicants will be eligible for the same public benefits as refugees. HHS has delegated certification authority to the Office for Refugee Resettlement.
BEYOND IMMIGRATION STATUS
Immigration laws are closely related to family law and criminal law. Immigrants in divorce, custody or protective order cases should talk with a local immigration expert and domestic violence expert. Lawyers need to be sure judges are aware of the dynamics of domestic violence, as well as the dire results if the abuser prevents the victim from stabilizing his/her immigration status. Above all, our legal system must know how abusers use the civil legal system to keep control over the victim. Abusers often file family law cases knowing their spouses do not have the means to hire a lawyer. They often know a spouse's lack of knowledge about their rights here will tip the scales of justice.
Likewise, it is crucial for lawyers who represent immigrants in criminal cases to work with an immigration lawyer who knows the impact of a criminal conviction on immigration status. This is especially true where the defendant is also an abuse victim. Failure to do so may result in the unwarranted deportation of the immigrant survivor.
(This resource was writtenby Sonia Parras Konrad, Director of the MUNA Legal Clinic of the Iowa Coalition Against Domestic Violence. MUNA stands for "Mujeres Unidas por un Nuevo Amanecer" which in English is Women United for a New Dawn. She is also Co-Chair of the National Network to End Violence Against Immigrant Women and the Co-Director of ASISTA, a national immigration program dedicated to providing advanced national technical assistance on immigration remedies for immigrant survivors of domestic violence and trafficking.)