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July 2012 Verve: Protecting Immigrant Victims of Domestic Violence

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Battered immigrants with undocumented status are a particularly vulnerable population. Beyond language barriers and cultural differences, abusers often threaten the victim’s immigration status, causing a fear of both reporting the abuse to law enforcement and reaching out for the community services that are critical to successfully moving forward safely. For immigrant women with children, an abuser’s threat of deportation is exponentially more effective, as these victims believe they are faced with the choice of continuing to suffer the abuse in silence or being deported and permanently separated from their citizen children. As the 2012 Violence Against Women Act (VAWA) Re-Authorization battle continues, DVCC360 highlights how VAWA’s currently helps organizations like the DVCC keep battered immigrant victims safe and how some of the most debated proposals in the re-authorization effort would detrimentally impact these critical protections.

 

VAWA IMMIGRATION  PROTECTIONS

Legal status is crucial to a victim feeling safe enough to seek help. In fact, according to one study, victims without legal status are half as likely to call the police as those with legal status.1 Abusers understand this and use it to perpetuate the abuse. Nearly 75% of women in one survey reported that, even though they were eligible for legal status, their abusers never filed the immigration applications on their behalf.2 Abusers who did eventually file immigration applications for eligible spouses waited almost 4 years to do so.3  During this time, abusers continued to use their “power” over the victim’s immigration status to control, threaten, isolate, harass and coerce.4  Recognizing exactly why battered immigrants are particularly at risk of continued abuse, VAWA created two life-saving avenues for these victims to seek legal status and, with it, their independence. The first, created by the original VAWA in 1994, is the “Form I-360 Self-Petition,” which allows an immigrant victim who is married to a U.S. Citizen or a Legal Permanent Resident to petition for legal status independently of their spouse. The second, created by the 2000 VAWA reauthorization, is the “U-Visa,” which provides temporary status to crime victims who have been, are being, or are likely to be cooperative with the investigation and prosecution of the abuser. For years, these protections have played a key role in the efforts of immigrant victims and their advocates to eliminate immigration status as a tool to perpetuate abuse, exploitation and control.

 

HR 4970 ELIMINATES KEY PROTECTIONS

Unfortunately, the proposals contained in HR 4970, which passed through the U.S. House of Representatives in May, would eliminate both the Self-Petition and the U-Visa as viable solutions for immigrant victims of domestic violence in our community - undoing nearly two decades of bi-partisan commitment to the protection of this vulnerable population. Among other things, HR 4970 functionally removes longstanding confidentiality protections, implemented to protect victims from retaliation; decreases the degree of expertise and specialization in the review of these petitions; creates arbitrary restrictions on the ability of crime victims to seek the protections of a U-Visa; and eliminates the eligibility of U-Visa holders to seek permanent residency.

 

Confidentiality is Critical for Victims

The fact that a battered immigrant has sought status using either of these remedies is statutorily confidential under 8 U.S.C. § 1367.5  Many applicants are likely still living with the abuser, as their undocumented status severely limits their alternative options. Statistically, the most dangerous time for a victim is when she takes steps to leave the abusive relationship, and achieving independent legal status is the biggest step an immigrant victim can take. Recognizing this, VAWA has, from its inception, set out stringent confidentiality requirements: individuals and agencies receiving and reviewing applications have been prohibited from disclosing either the fact of the application or any of the information contained therein. This confidentiality is fundamentally necessary to protect the physical safety of applicants. However, HR 4970 would gut VAWA’s confidentiality protections by allowing USCIS officers to interview the abuser as part of the petition process, “tipping them off that a victim has filed a VAWA self-petition.”6   This would unquestionably put victims in danger. Local attorney Jon Jessen specializes in immigration law and has successfully worked with a number of battered immigrants in our community. He anticipates that this revision contained in HR 4970 would have an immediate detrimental impact on the safety of this population. “Having met with victims on a regular basis, I know that one of the greatest fears in filing a VAWA petition is that the abuser will find out about the application and retaliate. Unlike a U visa application, a VAWA petition does not require the victim to have reported the incident to the police. In the majority of VAWA cases I have handled, the police have not been notified of the abuse and a public arrest has not occurred. The victim, therefore, does not have any formal protection in the form of a protection order. Without this type of protection, alerting the abuser to the victim’s VAWA petition will increase the odds that she will be victimized again.”

In addition to tipping off the abuser to the victim’s VAWA petition, revisions contained in HR 4970 would also fundamentally change the abuser’s ability to influence the process. Currently, USCIS is prohibited from considering the uncorroborated assertions of an alleged abuser. However, HR 4970 would allow the abuser to actively rebut the victim’s claims of abuse and require that USCIS officers actually consider the abuser’s assertions in adjudicating the battered woman’s petition, regardless of whether those assertions are uncorroborated – even where the assertions are the only source of negative information brought to the attention of the USCIS investigator during the review process.7 Beyond jeopardizing the physical safety of applicants, opening the petition process to allow an abuser’s participation in such a manner undercuts the very purpose for which both the VAWA Self-Petition and the U-Visa were created – to eliminate a tool of abuse and exploitation. Instead it would provide the abuser with a unique opportunity to affirmatively block a victim’s access to legal status, and in doing so continue to hinder a victim’s efforts to move on from abuse.

 

Proposed Changes to U-Visa Eviscerate a Viable Path to Safety

Our communities are safest when crime victims feel they can come forward, report the abuse and have the abuser held accountable. The availability of U-Visa protections encourages victims to not only come forward and report the abuse, but also to continue to cooperate fully with law enforcement and prosecutorial efforts. HR 4970 would make it harder for victims to obtain U-Visas by placing arbitrary limitations on law enforcement’s ability to certify that a victim has been or is likely to be cooperative8 and would eliminate the availability for U-Visa holders to petition for permanent residency. Domestic violence advocates agree that these changes would result in fewer immigrant victims reporting abuse to law enforcement.

By applying for a U-Visa, battered immigrants necessarily expose themselves and their undocumented status to federal immigration officials and local law enforcement. Currently, U-Visa holders are eligible to petition for permanent residency after three years. HR 4970 would eliminate this eligibility. As a consequence, upon the expiration of their U-Visas, battered immigrants would be forced to either leave the U.S. voluntarily – leaving behind their homes, their jobs, and the support system that was critical to their success in moving away from abuse – or risk deportation. Faced with this reality, very few battered immigrants will view the U-Visa as the lifeline to safety that it currently is. This would necessarily decrease the number of victims willing to report abuse and cooperate with authorities – hindering important and legitimate law enforcement objectives and negatively impacting the safety of our entire community.

Beyond removing the opportunity for U-Visa holders to apply for permanent residency, HR 4970 makes it exponentially harder for battered women to obtain the protections of the U-Visa in the first place by requiring USCIS officials to consider that the victim applicant’s cooperation with law enforcement did not lead to an investigation and/or prosecution of the reported offense and by requiring an ongoing investigation and/or prosecution at the time of the application. Connecticut Legal Services attorney Massiel Zucco has worked with many of our community’s battered immigrants in seeking the protections of a U-Visa and foresees a direct link between the proposed revision(s) and the safety of local immigrant victims. “HR 4970 unreasonably links the adjudication of U-Visas to the status of the investigation or prosecution of the crime. There are many valid reasons why a case may never be fully investigated or prosecuted that have nothing to do with the merits of a victim’s case, particularly given the prevalent usage of batterer intervention diversionary programs in Connecticut’s criminal courts.” Says Zucco, “For many of the battered women I have worked with in my time at CLS, the current U-Visa structure has served as the foundation for a safer life and economic independence from their batterers. HR 4970 would make it exponentially more difficult for battered women to obtain these critical protections for reasons that are completely beyond their control.” And Zucco agrees that the overall impact of the proposed revisions around the U-Visa would reach beyond the safety of the individual victim. “It would functionally eliminate the utility of a U-Visa for battered immigrants, and, as a consequence, frustrate the very purpose behind its creation – to encourage immigrant victims of crime to come forward and assist law enforcement in keeping our community safe.”

Eliminating Specialized Review of VAWA Immigration Applications

VAWA has always recognized the unique subtleties involved in domestic violence and placed a high value on developing expertise. In keeping with this idea, VAWA Self Petitions and U-Visa applications have been adjudicated by specially trained officers within a centralized unit of the Department of Homeland Security (DHS) – the Vermont Service Center. Proposals outlined in HR 4970 would remove VAWA adjudications from this specially trained unit and instead scatter that authority across USCIS district offices around the country – delegating responsibility to DHS officers who may not have sufficient expertise and, as a result, may be less likely to make accurate credibility determinations. And HR 4970 doesn’t stop there. In addition to eliminating specialized review of VAWA applications, HR 4970 establishes an “extremely onerous adjudication process”  – particularly for those pursuing a VAWA Self-Petition – by requiring two investigators, two interviews and two different USCIS offices to review the application. In a recent statement, Eleanor Pelta, President of the American Immigration Lawyers Association, reflected, “Nowhere in our immigration law do we require such scrutiny of an applicant. This process adds insult to injury for victims of abuse and creates administrative burdens for DHS adjudicators. It’s a waste of government resources.”10 

In short, the proposals passed through the U.S. House of Representatives create both administrative burdens and serious safety implications that will functional eliminate safety tools that have been instrumental in our community’s efforts to keep battered immigrants safe and help them successfully move on from abuse. Supporters of the proposals contained in HR 4970 claim that these domestic violence immigration protections under VAWA open the floodgates for immigration. They further claim the process is ripe for fraud. However, all VAWA applications are currently processed through a centralized, specially trained unit in Vermont in order to promote efficiency and deter fraud, and before an application for either immigration remedy is ever submitted, there is a mountain of corroborating documentation that each victim must collect which is screened with a high level of scrutiny. The number of U-Visas issued each year is capped at 10,000 – a cap that was reached for the first time in 2010.11 In fact, even though the U-Visa was created in the 2000 VAWA re-authorization, due to implementation issues, USCIS did not begin granting U-Visas until 2008.12 Of the 13,300 U-Visa applications received by USCIS during that time, only 65 had been granted through the end of 2008.  Since then, approximately 25,986 U-Visa petitions have been granted nationally, representing only 77% of all applications in 2009, 2010 and 2011.13  Additionally, in FY2011, USCIS approved approximately 6,260 VAWA self-petitions, representing only 68% of all applications reviewed.14 More importantly, according to the Congressional Research Service, “While some suggest that VAWA provides opportunities for dishonest and enterprising immigrants to circumvent U.S. immigration laws, reliable empirical support for these assertions is limited.”15 

Neither the VAWA Self-Petition nor the U-Visa is an easy path to legal status. Yet, for women who are suffering daily from abuse and exploitation, both provide a light at the end of the tunnel. They are invaluable tools in our community’s efforts to help keep immigrant victims of domestic violence safe, and DVCC360 will continue to advocate for their retention. In the meantime, the VAWA protections reviewed herein are only the beginning. In more broadly considering our community’s capacity to keep battered immigrants and their children safe from abuse, DVCC360 encourages all of our community partners to reflect on the immense challenges that battered immigrants face and how all of our agencies/organizations can work collaboratively to achieve the culturally competent and long term wrap-around care that is essential for these women and their children to thrive independently. In that spirit, for more information on best practice approaches for advancing the safety of battered immigrants, the following is a collection of useful resources and training materials:

  •             Enhanced Safety Planning and Advocacy for Immigrant Survivors - Casa de Esperanza: National Latin@ Network (available at: https://www.casadeesperanza.org/national-latino-network/training_archives/enhancing-safety-planning-and-advocacy-for-immigrant-survivors/);
  •             Resources for Working with Immigrant Women – Futures Without Violence (available at: http://www.futureswithoutviolence.org/section/our_work/women_and_girls/_key_resources_immigrant_women);
  •             Training Materials for Advocates and Representatives – ASISTA (available at: http://www.asistahelp.org/en/access_the_clearinghouse/training_materials/);
  •             Assisting Immigrant Victims of Domestic Violence (Advocate’s Guide; Law Enforcement Guide; Prosecutor’s Guide) – Battered Women’s Justice Project (available at: http://www.bwjp.org/articles/article-list.aspx?id=20);
  •             Special Collection: Immigrant Women & Domestic Violence – National Online Resource Center on Violence Against Women (VAWnet.org) (available at: http://www.vawnet.org/special-collections/DVImmigrant.php).
  • Local resources and assistance for Latina victims of domestic violence are also available 24/7 through the DVCC’s Spanish only EsperanzaCT Project (website: www.EsperanzaCT.org; and hotline: (203) 663-6641).

 

 

Barriers to Battered Immigrants Seeking or Obtaining Help:

  •             Abusive partners threaten deportation;
  •             Language barriers;
  •             Lack of familiarity with U.S. social system(s);
  •             Fear that she will be treated with insensitivity, hostility and/or discrimination;
  •             Patriarchal cultural attitudes and victim blaming;
  •             Pressure from within the immigrant population to maintain a positive image of their community.

Runner, Michael et. al., pg. 4, “Intimate Partner Violence In immigrant and Refugee Communities,” A Report by the Family Violence Prevention Fund for the Robert Wood Johnson Foundation (March 2009).

“[D]omestic Violence is a serious crime and a public safety issue that cannot be fully addressed if all victims are not safe, and all perpetrators are not held accountable.”

“Immigration Provisions of S. 1925: Myths v. Facts,” at pg. 2 (www.4vawa.org).

 

 

 

 

1.         See Orloff, Leslye et al., Battered Immigrant Women’s Willingness to Call for Help and Police Reponse, 13 UCLA Women’s L. J. 43, 60 (2003).

2.         See Ruiz-Velasco, M. and Huang, G., “Immigration Provisions of S. 1925: Myths v. Facts,” Immigration Committee of the National Task Force to End Sexual and Domestic Violence, available at: http://4vawa.org/pages/vawa-fact-sheets (last visited 6/1/2012).

3.           Id.

4.           See Fisher Praeda, M. & Olavarria, C., pg. 2, “Preparing the VAWA Self-Petition and Applying for Residence,” Battered Immigrants and Immigrant Relief, Legal Momentum (2004)

5.           See 8 U.S.C § 1367.

6.           See “Talking Points for H.R. 4970,” AILA Advocacy, American Immigration Lawyers Association, AILA InfoNet Doc. No. 12050470 (Posted 5/4/12).

7.           Section 801 of HR 4970 would require USCIS to consider all evidence submitted by the abuser, even if such evidence is the sole, uncorroborated source of negative information about the victim. See “AILA Opposes House VAWA Bill (H.R. 4970),” available at http://www.aila.org/content/default.aspx?docid=39618  (last visited July 2012).

8.         See Section 802, H.R. 4970: Violence Against Women Reauthorization Act of 2012, 112th Congress, 2011-2012 (requiring: the crime to be reported within 60 days; that the statute of limitations for prosecuting the crime has not lapsed; the criminal activity be actively under investigation or prosecution; and that the petitioner must provide information that will assist in identifying the perpetrator.

9.         See “House Passes VAWA Bill Putting Battered Immigrants at Greater Risk of Violence, AILA InfoNet Doc. No. 120517671 (posted May 16, 2012), available at: http://www.aila.org/content/default.aspx?docid=39672.

10.         Id.

11.       U.S. Citizenship and Immigration Services, “USCIS Reaches Milestone: 10,000 U Visas Approved in Fiscal Year 2010,” available at: http://www.aila.org/content/default.aspx?docid=39672 (last visited July 2012).

12.       Zota, Sejal, pg. 6, “Law Enforcement’s Role in U Visa Certification,” UNC School of Government Immigration Law Bulletin, Issue No. 2 (June 2009).

13.       See Kandel, W., at pg. 33, “Immigration Provisions of the Violence Against Women Act,” Congressional Research Service (May 15, 2012).

14.         Id. at pg. 5.

15.         Id. at pg. 3.