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IMMIGRATION REMEDIES FOR SURVIVORS OF VIOLENCE Dominique C. Quevedo, Senior Attorney The Legal Aid Foundation of Los Angeles The Landscape Women (and men) who are victims of battery and/or extreme cruelty and other serious crimes that occurred in the United States or violated a U.S. law Individuals sexually assaulted and harmed in other ways in the workplace Young children fleeing child abuse and gang warfare who come to the U.S. unaccompanied Women (and men) fleeing domestic violence in their home country Individuals whose spouse files a family-based immigrant petition and who are later subjected to domestic violence Children and teenagers abused or abandoned by their parent(s) Children, men and women forced into sexual slavery or forced labor Unaccompanied minors - countries of origin Source: Department of Homeland Security, May 27, 2014 Potential Immigration Remedies Asylum SIJS U Visa Potential Immigration Remedies T Visa VAWA Battered Spouse Waiver ASYLUM - Elements Well-founded fear Reasonable probability Both subjective and objective fear Afraid to return (subjective) Fear is objectively reasonable Lower than preponderance of evidence One-in-ten probability INS v. Cardoza-Fonseca, 480 U.S. 481 (1987) Asylum - Elements Of Persecution: Not defined by Immigration Nationality Act (INA) Idea: Serious threat to life and freedom Behavior that threatens death, imprisonment or substantial harm Indicators: unlawful prosecution, arrest, interrogation, torture, beatings, harm to family members, rape Asylum - Elements By the government of home country Source of persecution must be gov’t, a quasi-official group or person(s) or groups that the gov’t is unwilling or unable to control Can be non-state actors, such as family members On account of one of the five protected grounds(nexus): Race Religion Nationality Political Opinion Membership in a Particular Social Group Asylum - Benefits Remain in the U.S. Apply for Legal Permanent Residence after 365 in asylee status Work authorization without conditions Path to U.S. citizenship Special Immigrant Juvenile Status (SIJS) Eligibility Be under 21 years of age Unmarried Have been declared a dependent upon a juvenile court of the U.S. or legally committed or placed youth in custody of a dept. of the state or an individual or entity appointed by a state or juvenile court SIJS - continued Eligibility – con’t: Juvenile court must also find that: Reunification with one or both parents is not viable due to abuse, neglect or abandonment or a similar basis under state law; and It is not in the young person’s best interest to be returned to his country of nationality or last residence SIJS - Benefits Legal Permanent Residency Path to citizenship Benefits U Nonimmigrant Status Definition Victim of a serious crime that resulted in substantial physical/mental harm where victim can provide certification from law enforcement official. U Nonimmigrant Status Requirements Victim of certain criminal activity INA § 101(a)(15)(U)(iii) Suffered substantial physical/mental harm Has been helpful, is being helpful or is likely to be helpful in investigation or prosecution Applicant must be admissible Occurred in U.S. or violated U.S. laws U Nonimmigrant Status To qualify for U nonimmigrant status, immigrant must have been the victim of certain crimes, which include: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, stalking, sexual exploitation, kidnapping, manslaughter, murder, or any similar activity* U Nonimmigrant Status - Benefits U nonimmigrant status expires after four years Can apply for LPR status after three years of continuous physical presence in the United States. Path to U.S. citizenship Access to benefits Human Trafficking - T Visa Victims trafficked for: Forced labor: Examples: restaurant work, agricultural work, domestic work, factory work, or illegal enterprises such as selling drugs and serving as decoys in smuggling cases Sexual exploitation: Examples: prostitution, use in pornography Human Trafficking The term ''severe forms of trafficking in persons'' means: (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 has not attained 18 years of age; or (B) the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery (Victims of Trafficking and Violence Prevention Act of 2000) T Visa - Benefits Path to green card Path to citizenship Access to benefits Violence Against Women Act (VAWA) Abused non-citizen child or spouse of U.S. citizen or legal permanent resident Abused parent of a U.S. citizen Child (whether abused or not) of a parent who was abused by a U.S. citizen or permanent resident spouse VAWA Requirements for marriage-based cases: Abuser is or was a U.S. citizen (USC) or legal permanent resident (LPR) Self-petitioner is (or was) legally married to USC or LPR abuse; marriage was in “good faith” Self-petitioner subjected to “battery or extreme cruelty” during the marriage Self-petitioner lived with abuser Self-petitioner resides in U.S. (certain exceptions exist if living abroad**) Self-petitioner is a person of good moral character VAWA - Benefits Legal permanent residency Path to citizenship Benefits Battered Spouse Waiver Conditional Resident: A person who immigrates through a visa petition filed by their spouse within 2 yrs. of the date that they marry. Intended for immigrant spouses who obtained LPR status through a regular family-based petition filed by a USC or LPR spouse and who suffered battery or extreme cruelty during the 2 years of conditional residency. Questions/Discussions Dominique C. Quevedo The Legal Aid Foundation of Los Angeles 601 Pacific Avenue, Long Beach, CA 90802 (562) 304-2528 [email protected]
