vawa protections and the u visa - florida council against ... · ina 101(a)(15)(u) created by...

VAWA Protections and the U Visa

August 30, 2012

Sabrina Salomon, Esq.Vida Legal AssistanceMiami, Florida

How Did Congress Decide to Serve and Protect Immigrant Victims?

VAWA Self‐petitioning VAWA defenses against deportationU visas for crime victims T visas for trafficking Victims

Salomon - Aug-2012 Adapted from IWP Legal Momentum

U visaNon-immigrant visa designed to provide

immigration status for non-citizens who are assisting or willing to assist authorities investigating crimes

Must have suffered “substantial physical or mental abuse” as the result of one of the following forms of criminal activity:

The Purpose of VAWA’s Immigration Protections:

Strengthen the ability of the criminal justice system to prosecute perpetrators of crimes against immigrant victims

Enhance protection for immigrant victims Remove immigration status as a tool that undermined both of the above; or as a power and control tool.


Why immigration relief needed?

Abusers rely on undocumented status of victims to avoid investigation and /or prosecution

Victims reluctant to access law enforcement for fear of immigration consequences

Critical witnesses deported or not allowed to return to the United States

Immigrant crime victims left with no recourseSalomon - Aug-2012 Adapted from IWP Legal Momentum

The Importance of Immigration Status Ability to obtain valid state issued identification

Ability to work legally (self‐sufficiency) Improved ability to win custody and protect children

More access to protection orders Breaks isolation Protection from deportation and removal Better access to housing


U VISA PURPOSES

Law Enforcement: Overcome victim fear of detection; encourage reporting and other cooperation

Humanitarian: protect vulnerable victims; assist domestic violence and other crime survivors


SOURCES INA 101(a)(15)(U)◦ Created by Victims of Trafficking and Violence Prevention Act Sec. 1513. ◦ Amended by Violence Against Women and Department of Justice Reauthorization Act of 2005

Interim Regulation Effective October 17, 2007◦ 53014 Federal Register Vol. 72, No. 179

USCIS Memoranda


Factors Affecting Immigrant Victim’s Willingness to Call Police for Help Positive Factors:◦ Cultural considerations◦ \Length of time in the United States◦ Whether she had spoken to one or more persons about the violence◦ Whether or not her children witnessed the abuse◦ Whether she had a protection order

Negative Factor:◦ Victim’s immigration status


BENEFITS

Lawful U visa status for 4 years◦ Longer if victim help still required and has not applied for permanent residence

Employment AuthorizationMay apply for permanent status after 3 years


BRIEF HISTORY U Visa Created in 2000, but no regulations until 2007.

Until Regulations of 10/07USCIS granted “interim relief” to prima facie eligible applicants

Only U visa itself available now


REQUIREMENTS Victim of designated crime Suffered substantial abuse as result of crime Applicant determined “admissible” to U.S. Was/Is/Will Be helpful in:◦ Investigation OR◦ Prosecution

Can’t unreasonably refuse to help Law Enforcement must certify helpfulness


Who can certify?

Police Departments Prosecutor Judge Immigration Officer State or Federal Agency Employee◦ Child Abuse Worker◦ EEOC


VICTIM SPECIFICS Has to be a victim, not a witness◦ Victim must suffer direct or proximate harm◦ Witness may be victim of threats, tampering

Can’t be culpable in qualifying crime◦ Victim ineligible for U visa if threat to public safety◦ Other crimes not absolute bar

Child or incompetent victim◦ Guardian may provide helpfulness…◦ But only the victim gets the U visa

Homicide or Manslaughter◦ Child, parent or spouse = “victim”


Eligible Crimes for U‐Visa domestic violence rape torture trafficking incest sexual assault abusive sexual contact prostitution sexual exploitation female genital mutilation being held hostage murder manslaughter peonage involuntary servitude

slave trade kidnapping abduction unlawful criminal restraint false imprisonment blackmail felonious assault obstruction of justice perjury extortion witness tampering attempt, conspiracy or solicitation to

commit any of above‐listed crimesOr any similar activity in violation of

federal, state, or local criminal law.


SUBSTANTIAL ABUSEI‐918 Requests Showing Of: Nature and Severity of Injury Inflicted Severity of Harm Suffered ◦ includes aggravation of existing condition

Severity of Perpetrator’s Conduct Duration of Infliction of Harm Extent to Which There is Permanent or Serious Harm to Appearance, Health, Physical or Mental Soundness

Includes Pattern of Abuse (esp. DV)


ADMISSIBILITY USCIS Determines whether applicant is “admissible” to U.S.

Applicants submit fingerprints Inadmissibility Grounds:◦ Crimes◦ Health◦ Immigration Violations

Applicant may seek discretionary waiver◦ USCIS weighs positive/negative factors


ROLE OF LAW ENFORCEMENT

ROLE OF LAW ENFORCEMENT◦ Determine crime occurred◦ Determine applicant was victim◦ Certify whether victim was/is helpful

ROLE OF USCIS◦ Determine eligibility for U visa◦ Determine admissibility


LAW ENFORCEMENT AGENCY CERTIFICATION

I‐918 Supplement B◦ May only be signed by Agency Head OR◦ Officer(s) with supervisory authority designated by Agency Head to sign Supplement B


HELPFULNESS IS CERTIFIED BY LAW ENFORCEMENT

Law Enforcement Agency makes initial determination whether victim:◦ Is Helpful; Was Helpful; Is Likely to Be Helpful◦ In Investigation◦ OR Prosecution ◦ Has not refused reasonable request for cooperation


CONTINUING HELPFULNESS? Applicant may not refuse reasonable request for information before or after U visa grant.

Ongoing helpfulness only required if still needed for investigation or prosecution.◦ If investigation/prosecution closed, continued helpfulness not required.


BROAD INTERPRETATION OF HELPFULNESS PERMITTED Some parameters set by Statute, Regulations and USCIS Memoranda◦ Includes “was helpful in investigation”, not just prosecution◦ U visa available to victims of past crimes –even before 2000◦ U visa available where perpetrator not caught (or identified)


I‐918 SUPPLEMENT BLaw Enforcement Certification Basic Information about agency and crime Briefly describe investigation and victim’s

role in it Describe known or documented injury to

victim Briefly describe victim helpfulness in

investigation Signed by designated supervisory official


PARTNERSHIPS FOR EFFECTIVE USE OF U VISA 1

Law enforcement confidence in system is key Nonprofit organizations want to guard against abuse of system.

Nonprofits can facilitate communication between applicant and law enforcement


U Visa Resources

Information about U visa: ◦ USCIS U Visa Fact Sheet 9/5/2007◦ Instructions to I‐918 ◦ Instructions to I‐918 Supplement B


8/31/2012Salomon - Adapted from IWP NOW Legal Defense and Education Fund

Resources…

www.nationalimmigrationproject.org

www.asistaonline.org

www.uscis.gov

If you have questions, contact Sabrina Salomon at [email protected]

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