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Transcript
The Office on Violence Against Women’s
Transitional Housing Assistance Program
Grantee Orientation
December 11th & 12th, 2012
Working with Immigrant & Undocumented Survivors
Immigration Remedies
Table of Contents
Title of Document
Page Length
Access to Services that Help Battered Immigrants…………………………23
DHS U-Visa Certification Guide………………………………………………20
Immigration Toolkit-Spanish…………………………………………………..27
Immigration Toolkit-English…………………………………………………...25
Immigration Remedies………………………………………………………...46
Know your Rights – ACLU…………………………………………………….24
U-Visa – FBI Article……………………………………………………………..6
U-Visa Toolkit…………………………………………………………………..43
Page 1 of 1
4.1
Access To Programs And Services That Can Help
Battered Immigrants1
By Cecilia Olavarria, Amanda Baran, Leslye Orloff, and Grace Huang
Chapter Overview
Despite recent legal changes that restrict immigrant access to many forms of public assistance, battered
immigrants continue to remain eligible for a wide array of programs and services. In recognition of the
special needs of victims of domestic violence, the federal government has lifted many of the restrictions it
otherwise imposes on immigrant access to legal and social services, allowing nonprofit organizations to
provide a variety of services to battered immigrants regardless of their immigration status.2
This chapter highlights several important types of assistance that nonprofit organizations serving immigrant
victims of domestic violence may provide and discusses the requirements that service providers must meet
when working with battered immigrant populations. Specifically, the chapter describes shelter services,
victim compensation, legal assistance, and other types of federal benefits that organizations may provide to
battered immigrants. Next, it discusses federal laws prohibiting service providers from discriminating on the
basis of national origin and requiring them to provide services without regard to immigration status when
necessary to protect the life and safety of a victim.
1
We wish to gratefully acknowledge Jody Feder of Yale Law School, Maunica Sthanki of Louisiana State University, Anne
Cortina of Yale Law School, and Autumn Brietstein of the University of Michigan School of Law for their contributions in the
preparation of this chapter.
2
It is important to note that despite immigrant restrictions on government services, nonprofit charitable organizations have no
legal obligation to inquire about the immigration status of persons who seek their services, nor do they have a legal
obligation to report this information to the Immigration and Naturalization Services (now CIS, the United States Bureau of
Immigration and Customs Enforcement). 8 U.S.C.S. § 1642(d).
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Access to Shelter
INTRODUCTION
According to federal law and orders issued by the U.S. Attorney General, undocumented shelter residents
qualify for federally funded emergency and short-term shelter and housing programs, as well as other forms
of state and federally funded assistance necessary to “protect life and safety.” In addition, service providers
who receive funds under other federal programs may help undocumented immigrants if they provide
assistance regardless of income eligibility criteria. As a result, shelters can use certain types of federal
funding to house undocumented women and to provide other social services to battered immigrants without
penalty. This section discusses the legal and funding guidelines that permit and require domestic violence
shelters to provide assistance to all battered immigrant women regardless of immigration status by treating
them as they would any other battered woman or shelter resident.
With recent changes in federal immigration and welfare laws, there has been much concern in the domestic
violence advocacy community about providing shelter and transitional housing services to battered immigrant
women. Two major fears were whether shelter advocates could house undocumented residents without risk
of losing federal funds and whether battered immigrants could qualify for shelter services or certain other
types of public assistance in the first place. As a matter of law, battered immigrant women have full access to
government funded domestic violence shelters and services even if they are undocumented. Furthermore,
federal laws and decisions confirm that domestic violence service providers should provide shelter services,
emergency services, short-term housing, domestic violence services, counseling, and most other services to
undocumented battered women in the same manner that these services are available to all other battered
women. Programs that turn away undocumented battered immigrants risk being charged with discrimination
in violation of Federal law and loss of federal funding.
While the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (commonly referred to as
PRWORA or the Welfare Reform Act) and the Illegal Immigration Reform and Immigrant Responsibility Act
(IIRAIRA) cut certain benefits for certain immigrants. Congress and the U.S. Attorney General have affirmed
that public benefits should be available to help battered immigrants rebuild their lives after leaving their
abusers. Thus, many battered immigrant women remained eligible for and were granted increased access to
public benefits. These amendments underscore Congress' commitment to ensuring that battered immigrant
women have full access to services and protection from ongoing abuse.
Moreover, all battered immigrants qualify for federal, state, and locally supported emergency and short-term
shelter programs, regardless of immigration status. This understanding is derived from the Welfare Reform
Act, IIRAIRA, orders of the U.S. Attorney General, the Fair Housing Act, the McKinney Homeless Act, the
Violence Against Women Act (VAWA), and guidance issued by federal agencies that serve domestic
violence victims. This section will explain how each of these legislative acts and executive decisions protect
a battered immigrant's right to shelter services and other types of public assistance, exempt shelters and other
domestic violence service providers from the U.S. Citizenship and Immigration Services (CIS) verification
and reporting guidelines, prevent discrimination against immigrants, and allow federal funds to be allocated
to shelters and other organizations serving battered immigrants.
PROVISION OF SHELTER SERVICES UNDER WELFARE REFORM AND THE U.S. ATTORNEY
GENERAL'S LIST OF SERVICES NECESSARY TO PROTECT LIFE AND SAFETY
The Welfare Reform Act put in place major changes to the welfare system in an effort to “promote[s] work
over welfare and self-reliance over dependency.”3 However, while Congress wanted to shrink the rolls of the
welfare system, it acknowledged that some people still needed assistance and could not be abandoned. To
assist these needy persons, the bill "retains protections for those who experience genuine and intractable
hardship.”4 Congress recognized that "qualified aliens" are exempt from certain federal benefits cutoffs.5
3
H.R. REP. NO. 104-725, at 261 (1996).
Id.
5
The term “qualified alien” refers to non-citizens who are nonetheless eligible for public benefits.
4
2
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Battered immigrant women and children abused by U.S. citizen or lawful permanent resident spouses, former
spouses, or parents are included in this qualified alien exemption category.6
Moreover, while state and local government officials are allowed to contact the BCIS for information on a
person’s immigration status, the Welfare Reform Act does not explicitly require them to do so. 7 The Act is
written in this way as a compromise to offer officials the flexibility not to report when doing so would be
contrary to other state interests (i.e., prosecuting crimes or protecting victims of domestic violence).
The Welfare Reform Act also gives the U.S. Attorney General the authority to exempt certain programs from
any restrictions on immigrant access to services and benefits, even if they are state or federally funded.
Programs that meet the following criteria are required to provide services to all persons without regard to
immigration status. These programs are also completely exempt from any requirements that they verify or
report the immigration status of persons seeking or receiving their services. To be exempt, programs must:
•
•
•
•
offer in-kind services8
provide services at the community level
provide services regardless of the individual’s income or resources and
be necessary to protect life or safety9
The following public assistance programs provided by community-based agencies have been designated by
the U.S. Attorney General to be open to all persons, even undocumented immigrants, without regard to
immigration status:10
•
•
•
•
•
•
•
•
•
•
•
•
•
Crisis counseling and intervention programs;
Services and assistance relating to child protection;
Adult protective services;
Violence and abuse prevention;
Services to victims of domestic violence or other criminal activity;
Treatment of mental illness or substance abuse;
Short-term shelter or housing assistance for the homeless, victims of domestic violence, and
runaway, abused, or abandoned children;
Programs to help individuals during periods of adverse weather conditions;
Soup kitchens;
Community food banks;
Senior nutrition programs and other nutritional programs for persons requiring special assistance;
Medical and public health services and mental health disability or substance abuse assistance
necessary to protect life and safety; and11
Activities designed to protect the life and safety of workers, children, and youths or community
residents.
When the U.S. Attorney General specified what programs were to be open to all persons, domestic violence
shelters and service providers were specifically included.12
6
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 501(c), 110 Stat. 3009-625
(1996).
7
H.R. REP. NO. 104-725, at 383 (1996).
8
"In-kind" services are those that involve the provision of goods or services, not cash payments, to persons. These services
could include food, clothing, shelter, legal assistance, counseling, etc.
9
AG Order No. 2049-96, 61 Fed. Reg. 45,985 (Aug. 30, 1996); AG Order No. 2170-98, 63 Fed. Reg. 41,662, 4166 (Aug. 4,
1998) (to be codified at 8 C.F.R. pt. 104).
10
AG Order No. 2049-96, 61 Fed. Reg. 45,985 (1Aug. 30,1996); see also Attorney General's list included in the Appendix to
this Manual.
11
This definition includes: immunizations for children and adolescents, AIDS and HIV services and treatment, tuberculosis
services, and treatment for sexually transmitted diseases. See Claudia Schlosberg, Not qualified Immigrants' Access to
Public Health and Emergency Services After the Welfare Law , available at
www.healthlaw.org/pubs/19980112immigrant.html (1998).
12
Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation. AG
Order No. 2049-96, 61 Fed. Reg. 45,985 (Aug. 30, 1996).
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| Battered Immigrants’ Access to Services
By being included in the above list, shelters are legally permitted and required to offer their services equally
to battered immigrant women as to all other battered women without regard to immigration status.
Furthermore, as nonprofit, charitable organizations, shelters can legally provide services and are explicitly
allowed to do so without asking any questions about immigration status and without any immigration status
verification of those being served. Additionally, nonprofit, charitable organizations, including shelters,
cannot be penalized for failing to verify immigration status.
IIRAIRA AND REPORTING REQUIREMENTS
In November of 1997, the U.S. Attorney General issued guidelines that specifically state “nonprofit charitable
organizations” are not required to inquire into immigration status or ensure that applicants are "qualified
aliens" before providing them services or benefits.13 This is true even when the nonprofit organization is
using funds deemed federal public benefits (e.g., TANF funds) to provide services to an immigrant who may
be undocumented.14 If a shelter administers TANF funds for its residents, the shelter may provide those
funds to all residents who otherwise qualify, without regard to immigration status. In so stating, the
Department of Justice indicated that its commitment to helping battered immigrants and others who truly
need assistance from these programs is more important than identifying the immigration status of applicants.
Thus, as a matter of federal law, shelters and other domestic violence service providers can be assured that
they can and are required under the U.S. Attorney General's and the Department of Health and Human
Service’s directives to provide shelter and other services to protect the lives and safety of all battered women,
even those who are in the country without legal papers.
The U.S. Attorney General's guidance states, “A nonprofit charitable organization that chooses not to verify
cannot be penalized . . . for providing federal public benefits to an individual who is not a U.S. citizen, U.S.
non-citizen national, or qualified alien."15
The only exception to this is if the state TANF agency or other nonexempt entity has verified the immigration
status of the immigrant domestic violence victim following verification procedures set forth by the U.S.
Attorney General. If a government entity notifies a shelter that a particular immigrant does not meet
verification requirements, TANF funds could not be used to house that immigrant.16 Even in those
circumstances, the undocumented battered immigrant would continue to be fully eligible for all other shelter
services except TANF, Medicaid, or other programs which are federal means-tested public benefits. The
shelter simply would not apply for TANF funds for that resident but would be able to use funds it receives
from other sources. These sources could include other state, local or federal government funds, foundation
grants, grants from ecumenical programs, and funds from other sources raised by domestic violence
programs. (See the discussion of unrestricted federal funding programs later in this section and the chapter
on benefits elsewhere in this manual.)
13
Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996, AG Order No. 2129-97, 62 Fed. Reg. 61,344, 61,345 (Nov.
17, 1997).
14
U.S. Department of Health and Human Services, Policy Q’s &A’s – Immigrants, available at
http://www.acf.dhhs.gov/programs/ofa/polquest/immigran.htm (date revised Jan. 30, 2001).
15
AG Order No. 2129-97, 62 Fed. Reg. 61,344, 61,346 (Nov. 17, 1997).
16
This problem would only arise if a battered immigrant sought benefits from a public benefits agency for which she did not
qualify. It could also arise if she applied for benefits for her children and the benefits-granting agency verified her
immigration status despite the fact that she was not applying for benefits for herself. Verifying the immigration status of a
non-applicant is a violation of federal law. For this reason, we highly recommend that battered immigrants not apply for
benefits unless they are accompanied by an advocate who is familiar with the U.S. Attorney General's Guidance and HHS
policy directives regarding procedures requiring that agencies only ask about immigration status and social security number
information for the persons on whose behalf the benefits are being sought. See AG Order No. 2129-97, 62 Fed. Reg.
61,344 (Nov. 17, 1997). See also Verification of Eligibility for Public Benefits, AG Order No. 2170-98, 63 Fed. Reg. 41,662,
41,662-65 (Aug. 4, 1998); DEP’T OF HEALTH AND HUMAN SERV. AND DEP’T OF AGRICULTURE, POLICY GUIDANCE REGARDING
INQUIRIES INTO CITIZENSHIP, IMMIGRATION STATUS AND SOCIAL SECURITY NUMBERS IN STATE APPLICATIONS FOR MEDICAID,
STATE C HILDREN’S HEALTH INSURANCE PROGRAM (SCHIP), TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF), AND FOOD
STAMP BENEFITS, available at www.hhs.gov/ocr/immigration/triagency.html (last modified Sept. 21, 2000).
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DISCRIMINATION
THE U.S. ATTORNEY GENERAL'S GUIDANCE
Service providers who help women escape abusive relationships must be aware that programs receiving
federal funds are required to provide services in a nondiscriminatory manner. Congress has consistently
upheld the right of immigrants to be free from discrimination based upon their immigration status. The U.S.
Attorney General's guidelines for implementing the Welfare Reform Act acknowledge that Title VI “prohibits
discrimination on the basis of race, color, or national origin in any program or activity . . . that receives
federal funds or other federal financial assistance.”17 The guidelines further state:
This prohibition applies to disparate treatment, as well as to the utilization of facially
neutral procedures . . . that have the effect of discriminating against individuals because of
their race, color, or national origin . . . A benefit provider that denies benefits or delays
determinations of eligibility on the basis of an individual's race, color or national origin
may violate Title VI. A benefit provider may violate Title VI if it concludes that applicants
are ineligible for benefits because they have ethnic surnames or origins outside the United
States, or because they look or sound foreign. It also may violate Title VI if it acts upon the
assumption that applicants with these characteristics are illegal aliens, or if it imposes
additional eligibility requirements on ethnic or racial minorities because of their ethnicity or
race.18
When nonprofit organizations exempt from CIS verification and reporting requirements ask about or attempt
to verify status before providing services or assistance, they risk violating the prohibitions of Title VI.19
Furthermore, protection against national origin discrimination under Title VI encompasses individuals with
limited English proficiency (LEP). Under Executive Order 13166, federal agencies are required to ensure
that programs who are recipients of federal financial assistance provide meaningful access to their programs
and activities for LEP individuals.20 Thus, if federally funded organizations that serve immigrants refuse to
assist individuals who speak another language, they violate the prohibition against LEP discrimination.
Because Executive Order 13166 requires each federal agency to issue specific guidance regarding compliance
with the LEP nondiscrimination policy, organizations that receive federal funding should consult the relevant
agency for additional guidance. In conjunction with Executive Order 13166, the Department of Justice
provides a list of agency guidance on their website.21
THE FEDERAL FAIR HOUSING ACT
Domestic violence shelters should further be aware that their services are subject to the Fair Housing Act,
which prohibits discrimination on the basis of race, national origin, color, religion, sex, familial status, or
disability.22 Shelters fall under the rubric of fair housing because they are considered "dwellings" under the
law. A dwelling is defined as "any building, structure, or portion thereof which is occupied as, or designed or
intended for occupancy as, a residence by one or more families."23 The term residence is not defined by the
statute, but courts have developed interpretations through case law. The courts have set forth various tests to
determine whether a building is a "dwelling" and thereby bound to operate in compliance with the provisions
of the Fair Housing Act.
17
AG Order No. 2129-97, 62 Fed. Reg. 61,344, 61,360 (Nov. 17, 1997).
Id.
19
Verification, Reporting and Confidentiality, 6 in National Immigration Law Center in IMMIGRATION AND WELFARE
RESOURCE MANUAL: 1998 EDITION (National Immigration Law Center ed., 1998).
20
Improving Access to Services for Persons With Limited English Proficiency, Exec. Order No. 13,166, 65 Fed. Reg. 50,121
(Aug. 16, 2000).
21
Available at www.usdoj.gov/crt/cor/13166.htm.
22
Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et
seq.
23
42 U.S.C. § 3602(b).
18
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| Battered Immigrants’ Access to Services
For example, in the case of Baxter v. City of Belleville, the court looked to the objective intent of the director
of the facility. 24 In that case, the facility was an AIDS hospice and the director installed a kitchen unit in the
building. The court determined that the objective intent of the director was to use the building as a residence
because he installed a kitchen where there previously had been none.25 The court further determined that
persons living at the hospice were not “mere transients”, but rather were residents with the intent to return to
that dwelling.26 Preliminarily, the court found that adding kitchen units for individuals who would remain
there temporarily or permanently made the building a residence. In turn, the AIDS hospice was bound by the
provisions in the Fair Housing Act and could not discriminate against any individual on the basis of race, sex,
national origin, color, religion, race, familial status, or disability. Similarly, domestic violence shelters are
equipped with kitchens and their residents live there for an unspecified period of time while seeking other
more permanent housing arrangements.
A later case also determined that a shelter for the homeless was a "dwelling" under the Fair Housing Act.
Woods v. Foster, decided in 1995, further defined the term "dwelling" and what buildings fit into that
definition.27 In this case, the court deemed a homeless shelter to be a "dwelling" based on the intent of the
visitor rather than the visitor’s length of the stay at the shelter. The court stated, "Although the shelter is not
designed to be a place of permanent residence, it cannot be said that the people who live there do not intend
to return – they have nowhere else to go."28
Women staying in domestic violence shelters have the intent to return there while they are shelter residents,
however short their stay may be. Most shelters even have requirements that residents return to the shelter by
a specified time each night. Furthermore, domestic violence shelter residents have no other safe place to
reside because the violence in their homes has forced them to flee and seek shelter. The intent of the women
is to return to the shelter because she has no other place where she may safely return. For some period of
time, each woman who stays at a shelter intends to return there the next night.
These cases clarify that domestic violence shelters are bound by the Fair Housing Act. Failure to comply
with this Act could put a shelter at risk of lawsuits or government enforcement actions. In order to protect
themselves, it is advisable that shelters develop protocols for screening potential residents that are not based
on any of the discriminatory factors prohibited under the Act such as race, national origin, language
capabilities, or immigration status.
IMMIGRANT ACCESS TO FEDERALLY FUNDED PROGRAMS
The only federal programs from which immigrant access is restricted by the Welfare Reform Act or IIRAIRA
are federal means-tested public benefits and federal public benefits.29 The only federal funds that fall into
these categories are federal funds paid directly to an individual, a family unit, or a household. (For more
detailed rules regarding these categories of federal programs, see the Benefits Chapter.) Thus, all state or
federal funds provided to a shelter or other service provider to assist the organization in its work with battered
women fall within the definition of “federal public benefits.” Federal and state funding of domestic violence
shelters or service programs are not “federal public benefits” and are not subject to any immigrant access
restrictions.
“Federal public benefits” often include direct monetary assistance (e.g., TANF, Food Stamps, Medicaid, and
SSI). Nevertheless, not all of the benefits or services paid by federal public benefit programs count as
“federal public benefits” under the law. Some benefits or services under such programs “may not be
provided to an ‘individual, household, or family eligibility unit’ and, therefore, do not constitute ’Federal
public benefits’ as defined by PRWORA.”30 For example, Food Stamps are federal public benefits.
24
720 F. Supp. 720, 731 (S.D. III. 1989).
Id.
Id.
27
884 F. Supp. 1169 (N.D. III 1995).
28
Id. at 1173.
29
8 U.S.C.S § 1611-1613.
30
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of “Federal Public
Benefit,” 63 Fed. Reg. 41,658 (Aug. 4, 1998).
25
26
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However, food provided by a shelter or food bank is not a federal public benefit even if some or all of the
food is purchased with federal dollars. Similarly, TANF funds that are paid to support the work of a shelter
are not federal public benefits.31
Immigration and welfare reform legislation place no new restrictions on immigrant access to other federally
funded services. Since each of the programs listed below are grants awarded to nonprofit organizations and
other programs that provide services to domestic violence victims, crime victims, and the homeless, federal
dollars awarded by these programs are not “federal public benefits” and do not impose any restrictions on
immigrant access. Programs that receive funds from any of the sources listed below must make their services
available to all to avoid being in violation of federal discrimination and fair housing laws.
In addition to the specific programs listed below, funds that benefit battered immigrants are also available
under the Victims of Crime Act (VOCA) programs, which are discussed separately later in this chapter. The
appendix of this manual provides a list of some of the major federally funded programs that fall both within
and outside the category of “federal public benefit” programs. Some federal agencies have also published
guidances that list which of their programs are considered federal public benefits, which service providers
may wish to consult. Programs deemed “federal public benefits” may only be accessed by battered
immigrants who are qualified aliens, but programs not deemed federal public benefits are open to all
immigrants without regard to immigration status.
DEPARTMENT OF JUSTICE FUNDING
The Violence Against Women Act (VAWA)
Passed in 1994 and amended in 2000, The Violence Against Women Act has designated more than $1 billion
in state grants to fund expanded shelter and related social services for battered women, a national domestic
violence hotline, domestic violence research efforts, and educational programs for judges, police, prosecutors,
and other court personnel.32
The Victims of Trafficking and Violence Protection Act of 2000 describes
underserved populations as:
“populations underserved because of geographic location (such as rural isolation),
underserved racial and ethnic populations, populations underserved because of special
needs (such as language barriers, disabilities, alienage status, or age), and any other
population determined to be underserved by the State planning process in consultation with
the Attorney General.”33
The definition of “underserved populations” includes immigrant communities by specifically incorporating
alienage status as well as cultural, ethnic, and language minority populations. Additionally, under VAWA,
procedures set forth in the plan to ensure equal distribution of grant funds require states to consider the needs
of underserved populations. These include those immigrant populations underserved because of ethnic,
racial, cultural, or geographic isolation.34
Under VAWA, alienage status is included in the list of underserved populations making assistance to
immigrant victims of violence eligible for VAWA funding. Programs that receive grant funding from the
Department of Justice’s Office on Violence Against Women (OVW) can use those funds to help clients who
are immigrant victims of domestic violence, sexual assault, and trafficking. Programs are encouraged to seek
funding to provide assistance to underserved populations, including immigrant victims. It is also important to
note that programs receiving OVW funding can use that funding to serve immigrant victims even if such
services were not highlighted in the grant application.
31
U.S. Department of Health and Human Services, Policy Q’s & A’s – Immigrants, available at
www.acf.dhhs.gov/programs/ofa/polquest/immigran.htm (last modified Jan. 2001).
32
Julie Goldscheid & Susan J. Kraham, The Civil Rights Remedy of
the Violence Against Women Act, 29 CLEARINGHOUSE REV. 505, 506 (1995).
33
Pub. L. No. 106-386, § 1103, 114 Stat. 1464, 1496, codified at 42 U.S.C. § 3796gg-2.
34
S. REP. NO. 103-138, (1993).
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VAWA aims to ensure that all battered women, regardless of nationality, language ability, or immigration
status, receive equal access to domestic violence services that will free them from further abuse. VAWA
grants are therefore not restricted based on alienage or national origin.
The OVW administers several grant programs, including: STOP grants (Services, Training, Officers, and
Prosecutors; described below), Grants to Encourage Arrest Policies and Enforcement of Protection Orders,
Rural Domestic Violence and Child Victimization Enforcement Grants, Legal Assistance for Victims Grants,
and Grants to Reduce Violent Crimes Against Women on Campus. Programs that receive OVW grants must
provide services without immigration restrictions and can use OVW grant funds to provide assistance to
battered immigrants in immigration matters.35
STOP Grants
STOP grants (Services, Training, Officers, and Prosecutors) are given to states to develop and strengthen the
criminal justice response to violence against women.36 State grants are allocated by formula to various
activities, with 30 percent of the funds dedicated to victim services, 25 percent allocated to police, 25 percent
earmarked for prosecutors, 5 percent set aside for state courts, and 15 percent dedicated to a discretionary
category. 37 The program is intended to train law enforcement officers, court personnel, and prosecutors to
respond more effectively to violent crimes against women. Funds may be used for training, expanding
domestic violence units, strengthening victim services, and providing assistance to victims of domestic
violence and sexual assault in immigration matters.
The U.S. Attorney General has issued guidelines relating to the use of federal monies and the manner in
which states disburse their allotted share. The most critical guideline for this discussion requires that states,
“...recognize and address the needs of underserved populations.” STOP funding is fully available to
programs working to help all domestic violence victims including battered immigrants. Specifically
identifying the alienage status and language barriers to many domestic violence programs, the program helps
battered immigrants by improving the language accessibility of the justice system, increasing services in
other languages, and developing outreach programs to be conducted in previously underserved immigrant
communities.
Grants to Encourage Arrest Policies and Enforcement of Protection Orders
Grants to Encourage Arrest Policies and Enforcement of Protection Orders (Arrest Program grants) are
designed to encourage state and local governments to treat domestic violence as a serious problem by
requiring the coordinated involvement of the entire criminal justice system. Funds may be used for executing
mandatory and pro-arrest programs, developing policies and training in criminal justice agencies for domestic
violence case tracking, and educating judges about domestic violence. Special consideration is given to
programs that develop innovative approaches to responding to domestic violence in categories such as
outreach to traditionally underserved populations, coalitions between businesses and the criminal justice
system to ensure the safety of women in the community, and stopping domestic violence by police officers
within the community. Applicants are required to enter into formal collaborations with nonprofit
organizations serving victims of domestic violence.
Grants to Reduce Violent Crimes Against Women on Campus
The Campus Program is intended to strengthen the higher education community’s response to sexual assault,
stalking, domestic violence, and dating violence crimes on campuses and to encourage alliances between
campuses and local criminal justice and victim advocacy organizations. The goals of the program are to
assist institutions of higher learning to create a coordinated community response to end violence against
women on campuses and ally themselves with local non-profit victim advocacy and civil justice
35
Pub. L. No.106-386, § 1201, 114 Stat. 1464, 1504, codified at 42 U.S.C. § 3796gg-6.
Violence Against Women Act of 2000,. Pub. L. No. 103-322, § 40121. 108 Stat. 1796, 1911, codified at 42 U.S.C. §
3796gg-1.
37
Violence Against Women Act of 2000, Pub. L. No. 106-386, § 1103, 114 Stat. 1497.
36
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organizations. Grant funds may be used for training, creation and development of victim services programs,
installing data collection and communication systems, and other programs of the like. Priority consideration
will be given to programs that address enumerated “special interests”.
The amount of funding disbursed hinges on a variety of factors including the scope of activities proposed and
the number of students served. Applicants are required to submit a copy of their application to the agency
that administers STOP grants. To enhance victim safety and hold perpetrators accountable, applicants are
discouraged from proposing any activities that may compromise victim safety.
Rural Domestic Violence and Child Victimization Enforcement Grants
The Rural Domestic Violence and Child Victimization Enforcement Grants are designed to enhance services
available to victims and children by encouraging community involvement in developing a coordinated
response to domestic violence, dating violence, and child abuse. A state is considered rural if it has a
population of 52 or fewer persons per square mile or the largest county has less than 150,000 people. In rural
states, eligible applicants are state and local governments and public and private entities. Non-rural states
may apply on behalf of rural jurisdictions in their states. Eligible applicants also include tribal governments
in rural and non-rural states. At least five percent of the funding for this program must be available for grants
to Indian tribal governments.
States are encouraged to administer this program through the same agency that administers the STOP grants,
unless there is a compelling reason to place responsibility for rural programs with a different agency. Again,
to enhance victim safety and hold perpetrators accountable, applicants are discouraged from proposing any
activities that may compromise victim safety.
HUD AND HHS GUIDANCE ON PROGRAMS FOR BATTERED IMMIGRANTS
Federal agencies that administer grant programs serving domestic violence victims- HUD and HHS- have
issued guidance with respect to shelter services for battered immigrants. Since many of the federal agency
grant programs are bound by the same rules discussed above, including the Title VI prohibition against
discrimination on the basis of national origin, the Attorney General’s list of services necessary to protect life
and safety, and the definition of federal public benefit, the agency guidance generally tends to reiterate these
rules and delineate how they apply to the agency’s programs specifically. Thus, the HUD and HHS guidance
on provision of services to immigrants are addressed only briefly here.
HUD guidance on services to battered immigrants clarifies that both emergency and short-term shelter for
victims of domestic violence have been deemed by the Attorney General to be services necessary to protect
life and safety. HUD emphasizes that HUD-funded programs that provide emergency shelter and transitional
housing for up to two years, but that do not consider the recipient’s income or resources when providing
assistance, must make their services available to all needy individuals, including battered immigrants who
may be undocumented and/or not qualify for other types of federal means-tested benefits.38 HUD emphasizes
that organizations that disregard the laws and guidance with respect to services for battered immigrants are
subject to sanctions. Organizations receiving HUD funding who turn undocumented immigrants who are
victims of domestic violence away from shelter or transitional housing risk losing federal funding.
Likewise, HHS guidance clarifies that battered immigrants are eligible for services provided by domestic
violence shelters and other domestic violence programs, that receive HHS funding under the Family Violence
Prevention and Services Act, community and migrant health centers, Community Services Block Grant,
substance abuse, mental health, and maternal and child health programs. 39 Many of these programs provide
services that are considered necessary for the protection of life and safety, while others are open to all persons
38
Letter from the Secretary of the U.S. Department of Housing and Urban Development to HUD Funds Recipient (Jan. 19
2001) (on file with author).
39
OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF HEALTH AND HUMAN SERV., ACCESS TO HHS-FUNDED SERVICES FOR IMMIGRANT
SURVIVORS OF DOMESTIC VIOLENCE, available at http://www.hhs.gov/ocr/immigration/bifsltr.html (date revised Jan. 30, 2001).
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without regard to immigration status because they do not meet HHS’s definition of federal public benefit
programs.40
HUD – McKinney Homeless Act Funding
In the eyes of the law, domestic violence shelters are considered homeless shelters because they help battered
women who would otherwise be homeless. Some domestic violence programs receive McKinney Homeless
Act funds as programs which allow homeless individuals and families to move to more permanent housing
within twenty-four months... .”41 This Act places no alienage restrictions on those persons who can access
emergency shelter and short-term or transitional housing facilities, nor does it require operators of McKinney
Act-funded programs to inquire into the immigration status of their residents.42 Under the McKinney Act,
shelter services must be available to all needy individuals, and shelters receiving McKinney Act funds may
use those funds to serve all battered immigrants, including undocumented battered immigrants.
HHS – Family Violence Prevention and Services Act Funding
FVPSA (Family Violence and Prevention Services Act) grants are awarded to states for distribution to
support programs that provide services to battered women. This funding provides services to domestic
violence victims and their dependents. Funded services include shelter, counseling, preventive activities, and
outreach. The Family Violence Prevention and Services Act funds the national domestic violence hotline and
has at times specifically provided discretionary grants directed toward improving domestic violence services
to immigrant and migrant communities. Further, FVPSA funds can be used to serve battered victims without
regard to their immigration status.43
FVPSA also urges states to devote a portion of their FVPSA funding to improve their services to underserved
populations. FVPSA further allows the individual states to determine the underserved population within their
borders and create better programs for that population. Consistent with the intention of Congress in passing
the Violence Against Women Act, which contained amendments of FVPSA, funds may be used to serve
underserved immigrant battered women. Programs serving battered women with FVPSA funds must serve
any victim of domestic violence without regard to immigration status.44 Programs that receive FVPSA
funding who turn undocumented or non-citizen battered women away from receiving services risk HHS
sanctions.
CONCLUSION
Despite recent legislation that generally treats immigrants more harshly, battered immigrant women and
children have been consistently singled out for additional protection by that very same legislation. An
examination of current statutes and grant programs reveals that the federal government remains committed to
protecting battered immigrants without regard to their immigration status.
Therefore, shelters and other domestic violence programs need not fear opening their doors to any immigrant
who needs their services. In fact, shelters that do turn immigrant women away may actually open themselves
up to federal enforcement actions for discrimination. Shelters and transitional housing programs that receive
some form of federal funding must provide emergency shelter, transitional housing for up to two years, and
40
Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA); Interpretation of “Federal Public
Benefit,” 63 Fed. Reg. 41,658 (Aug. 4, 1998).
41
See Stewart B. McKinney Homeless Act of 1987, 42 U.S.C. § 11301.
42
42 U.S.C. §§ 11301-11302.
43
OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF HEALTH AND HUMAN SERV., ACCESS TO HHS-FUNDED SERVICES FOR IMMIGRANT
SURVIVORS OF DOMESTIC VIOLENCE, available at http://www.hhs.gov/ocr/immigration/bifsltr.html (date revised Jan. 30, 2001).
44
OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF HEALTH AND HUMAN SERV., ACCESS TO HHS-FUNDED SERVICES FOR IMMIGRANT
SURVIVORS OF DOMESTIC VIOLENCE, available at http://www.hhs.gov/ocr/immigration/bifsltr.html (date revised Jan. 30, 2001).
(“In most cases, HHS-funded programs serving domestic violence victims are available to all immigrants who have been
abused when those programs do not impose eligibility criteria, such as income. These programs include, but are not limited
to, FVPSA-funded programs, community and migrant health centers, Community Services Block Grant (CSBG), substance
abuse, mental health and maternal and child health programs.”).
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other domestic violence services to all battered women, including those who are undocumented. Battered
immigrant women, like battered women from other underserved populations, desperately need access to the
protection provided by battered women’s shelters and other social services programs. In many communities,
cutting off battered immigrants from shelter programs isolates them from the only service providers in their
community who are domestic violence experts. The information in this section can be used to educate other
advocates, state officials, and local grant programs about keeping shelters and other social services programs
open and accessible to everyone who needs them.
Access to Victims of Crime Act (VOCA) Funds
INTRODUCTION
Although all battered immigrants can legally access shelter, transitional housing, and domestic violence
services, many will not qualify to access the full range of public benefits that they may need for economic
survival apart from their abusers. Despite their need for economic resources, battered immigrants may be
restricted in their ability to access many of the financial safety nets available to non-immigrant victims of
domestic violence. These restrictions prevent many battered immigrants from being economically selfsufficient, and force them to remain in abusive relationships to survive or care for their children’s needs.
Crime victim compensation and assistance programs may provide one source of relief and services for
battered immigrants to help them cover expenses related to their victimization by their abuser.
The Victims of Crime Act (VOCA) established two major formula grant programs for the states – one for
victim compensation and the other for victim assistance. The Crime Victims Fund, derived from fines,
penalty assessments, and bond forfeitures from convicted federal offenders, is the source of the federal funds
provided to the states. State programs serve victims of domestic violence, sexual assault, and child abuse.
Thus, battered immigrants may be eligible for VOCA services and compensation to help end the violence in
their lives.
VOCA grants were created to 1) provide direct victim services including safety services (e.g., repairing
broken locks), information about how they can participate and understand the criminal justice system, and
funds to stabilize life circumstances, and 2) provide victim assistance funds for agencies that respond to the
physical and emotional needs of crime victims.45 VOCA provides funding that states can use to support
programs, including domestic violence shelters and services that assist battered women who are crime
victims.
States receiving VOCA funds are required to "identify gaps in available services [to] … 'underserved'
victims, [which include] … non-English speaking residents ... [and] members of racial or ethnic minorities
….”46 The requirement further notes that each state has the discretion to determine who the underserved
population is within their borders. The formal grant requirements do not exclude any group of persons. In
fact, this requirement allows states to incorporate undocumented immigrants into the group of persons
entitled to better services due to inadequate services in the past.
In addition to these state formula grant programs, VOCA funds are also available for victims of federal
crimes under the Federal Crime Victim Assistance Fund, which supports activities similar to those conducted
under the state programs described below.
VICTIM COMPENSATION
Victim compensation programs vary by state, but all programs reimburse victims for crime-related expenses,
including: medical costs; mental health counseling; funeral and burial costs; and lost wages. Federal funds
45
DEPARTMENT OF JUSTICE, FINAL PROGRAM GUIDELINES, http://www.ojp.usdoj.gov/ovc/welcovc/scad/guides/vaguide.htm (last
updated June 23, 2004).
46
Id.
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provide a portion of the state compensation program budgets. State funds provide the remainder of the
budget, and state laws govern the precise types of compensation available.
In some states, compensation is available for other domestic violence related needs, such as counseling for
children who witness domestic violence or lost support (paid to a victim if reporting the crime leaves the
victim without financial support from the offender). Domestic violence victims can also benefit from state
compensation statutes that cover the following expenses:
•
•
•
•
•
•
Moving expenses for victims
Legal expenses
Wages lost while attending legal proceedings related to the case
Hotel rooms
Housing and utility deposits
Emergency expenses.
These types of financial compensation may provide victims with the temporary assistance they need to leave
their abusers. Emergency financial aid payments may be particularly useful for immigrant victims of
domestic violence whose economic resources are limited.
In some states, domestic violence victims may have difficulty complying with the state’s conditions for
receiving victim compensation. VOCA requires victim compensation programs to “promote victim
cooperation with the reasonable requests of law enforcement authorities.”47 Individual states, however, have
victim compensation requirements at odds with the circumstances of many victims of domestic violence. For
instance, some states require victims to report the crime to law enforcement within seventy-two hours,
cooperate with the police and prosecution, and submit a timely application, in order to receive victim
compensation benefits.
Battered immigrants may be particularly unable to comply with strict victim compensation rules. For
instance, a battered immigrant may be unaware of a seventy-two-hour reporting requirement or unable to
communicate effectively in English. They are unlikely to know that they are eligible for victim compensation
benefits until an informed victim advocate or immigrant rights advocate who speaks their language informs
them of these laws. Alternatively, the victim may be reluctant to call the police because her abuser has said
the police will deport her or because of prior experiences with repressive police forces in her home country.
Similarly, battered immigrants may be afraid to work with the police or prosecutors because of
misperceptions of the United States legal system, or because of language and cultural barriers. Advocates
working with battered immigrants should inform them about VOCA eligibility and assist them in filing
timely applications.
Battered immigrant victims of sexual assault who qualify for U-visas because they are crime victims must be
willing to report the crime to law enforcement or other government officials (e.g., prosecutors and the
EEOC). To qualify they must obtain a certificate from a government official stating that they have been, are
being, or will be helpful in an investigation or prosecution of criminal activity. Further, U-visa crime victims
will not qualify for public benefits, so victim assistance funds can provide critical financial support to help
them bridge the gap between leaving abuser, and attaining work authorization, based on their U-visa, and
securing employment. Advocates should conduct careful safety planning with immigrant victims whose only
option for attaining legal immigration status is thru the U-visa to help them determine whether they can safely
report the crime to officials and cooperate in any resulting investigation or prosecution. If so, advocates
should encourage reporting in a timely manner consistent with state VOCA eligibility rules so that the
immigrant victim can also receive VOCA support based on her report of the crime to law enforcement.
Many states are revising their victim compensation policies to be more responsive to the dynamics of
domestic violence. These changes are likely to benefit battered immigrants as well. Several states have
changed their seventy-two-hour reporting requirements, instead requiring a report to be made within a
47
42 U.S.C. § 10602(d)(2).
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reasonable period of time. This should enable victims of domestic violence to get to a safe place and protect
themselves prior to pursuing criminal charges. In New York, victims of domestic violence may be
compensated even if they do not initiate criminal cases against their abusers, but rather seek orders of
protection in Family Court.48 This policy recognizes that victims of domestic violence may have justifiable
reasons for failing to prosecute. These reasons may include fear for their safety based on their abusers’ threats
or prior violence.
California’s guidelines permit a report to be made by a battered women’s shelter employee, friend, relative,
neighbor, or clergy person, in addition to the victim. This provision can help battered immigrants who do not
speak English, or who are unaware of victim compensation benefits, receive assistance from others in filing
claims. The state also interprets “lack of cooperation” narrowly, recommending that victims receive benefits
unless they actively interfere with police or prosecution efforts to hold perpetrators accountable. This
standard gives greater protection to victims of domestic violence whose fears of retaliation may prevent them
from testifying against their abusers in criminal cases.
Finally, in states that retain the seventy-two-hour reporting requirement, many battered immigrants may only
find their way to an advocacy program after the seventy-two-hour time limit has expired. In these cases
advocates should advise battered immigrants about the types of assistance available to them under VOCA,
explain the seventy-two-hour reporting rules, and offer to help her file the required police report should she
experience any future incident of domestic violence. In light of the on-going nature of domestic abuse,
victims who may be cut off from VOCA relief for a prior domestic violence incident may apply should they
be victimized in the future.
VICTIM ASSISTANCE
VOCA funds awarded to states support more than 5,000 community-based organizations serving several
million crime victims each year.49 Battered immigrants may require services provided by these domestic
violence shelters, rape crisis centers, and victim services programs in police departments, prosecutors’
offices, hospitals, and social services agencies. Victim assistance programs provide desperately needed relief,
such as crisis intervention, counseling, emergency shelter, criminal justice advocacy, and emergency
transportation.
Crime victim assistance programs must certify that they provide assistance to victims of sexual assault,
spousal abuse, or child abuse. Additionally, they must certify that they fund programs that serve historically
underserved populations of victims of violent crime.50 Since battered immigrants are often underserved in
their communities due to cultural or language barriers, this VOCA provision should foster the development
by providers of improved programs for battered immigrants with the use of VOCA funds.
IMMIGRANT ELIGIBILITY FOR VICTIM COMPENSATION AND VICTIM ASSISTANCE
In most states, immigration status is not a bar to receiving victim compensation benefits or victim assistance
benefits.51 Victim compensation administrators do not require applicants to identify their immigration
status,52 and have no duty to inquire about immigration status under either federal or state law. Rather,
victims are eligible for benefits when they have been injured in the state and meet the conditions set forth in
the state’s guidelines.
Specifically, VOCA funds are only available to states whose victim compensation programs “make[s]
compensation awards to victims who are nonresidents of the State on the basis of the same criteria used to
48
NY FAM. CT. ACT § 446(g) .
Office for Victims of Crime, U.S. Department of Justice, OVC Fact Sheet: State Crime Victim Compensation and
Assistance Grant Programs (last modified April 19, 2001);
http://www.ojp.usdoj.gov/ovc/publications/factshts/compandassist/welcome.html
50
42 U.S.C. § 10603(a)(2)(B).
51
Telephone Interview with Dan Eddy, Executive Director, National Association of Crime Victim Compensation Boards (Nov.
20, 1997).
52
Telephone Interview with Laurie Schipper, Iowa Coalition Against Domestic Violence (Dec. 8, 1997).
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make awards to victims who are residents of such State.”53 State victim compensation statutes cover victims
injured in the particular state regardless of their residency in the state.54 Thus, immigration status should also
be irrelevant to receipt of victim compensation benefits. The VOCA guidelines confirm that:
the term ‘nonresident’ must, at a minimum, include anyone who is a resident in one state
but victimized in another. A state may, at its discretion, broaden its definition of
nonresident to include anyone victimized in the state regardless of whether the victim is a
United States resident.55
Further underscoring the legislative intent of VOCA to provide compensation and services to all victims,
regardless of their national origin, the VOCA nondiscrimination provision states:
No person shall on the ground of race, color, religion, national origin, handicap, or sex be
excluded from participation in, denied the benefits of, subjected to discrimination under, or
denied employment in connection with, any undertaking funded in whole or in part with
sums made available under this chapter.56 (Emphasis added)
Thus, services to battered women and crime victims funded by VOCA must offer their services
equally to all persons without regard to immigration status. As with VAWA- and HUD- and HHSfunded services for domestic violence victims, programs offering victims’ services funded under
VOCA that discriminate risk violating VOCA and other federal antidiscrimination laws. Battered
immigrants and other immigrant crime victims have the same access to VOCA-funded services as all
other crime victims.
Further, VOCA-funded services are among the services necessary to protect life and safety that are
open to all individuals without regard to immigration status.57 With regard to victims’ compensation
payments that can be made directly to crime victims, VOCA and most state victim compensation
statutes do not discriminate against battered immigrants based on immigration status. Further,
VOCA benefits have not been identified by either the Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA) or the Illegal Immigration Reform and Immigrant Responsibility
Act (IIRAIRA) as one of the “federal public benefits” programs, a designation which would restrict
immigrant access. Thus, victim compensation benefits should be accessible for both battered
immigrants and other immigrant crime victims without regard to immigration status.
CONCLUSION
VOCA grants are an important yet often overlooked source of funds for battered immigrants. Because many
immigrants are ineligible for assistance under the primary federal public benefit programs such as TANF,
Food Stamps, and Medicaid, VOCA grants can fill an important gap in the social safety net for battered
immigrants who leave their abusers, allowing them to access cash assistance, medical care, and shelter during
their time of need. Since VOCA program requirements vary from state to state, advocates and attorneys
representing battered immigrants should become familiar with the program rules in their states. Consult the
web site for the Department of Justice’s Office for Victims of Crime at http://www.ojp.usdoj.gov/ovc/ to find
a listing of state contacts for victim compensation and assistance programs.
53
42 U.S.C. § 10602(b)(4).
Even if residency were an issue, state residency laws focus on where a person intends to reside permanently. These
laws do not consider immigration status. See Family Law Chapter of this manual for full discussion on residency laws.
55
42 U.S.C. § 10601, et seq.
56
Id.; See http://www.ojp.usdoj.gov/ovc/welcovc/scad/guides/voca.pdf
57
AG Order No. 2129-97, 62 F.R. 61344 (Nov. 17, 1997); AG Order No. 2170-98, 63 F.R. 41664 (Aug. 4, 1998).
54
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Access to Legal Services
INTRODUCTION
Currently, the availability of free or low-cost legal services for battered immigrants is somewhat limited.
Nevertheless, battered immigrants seeking legal assistance do have several options. One such option is found
among the loose network of stand-alone nonprofit legal services providers that assist low-income clients in
cities and towns across the country. Many of these nonprofit legal assistance organizations, however, receive
funding from the federal government, most notably under the auspices of the federally funded Legal Services
Corporation (LSC). Although organizations that receive LSC funds are barred from using their federal
dollars to assist most immigrants who are non-citizens, they may use non-LSC money to provide free legal
services to certain groups of battered immigrants regardless of their immigration status. Thus, LSC-funded
organizations are an important potential source of free legal assistance for immigrants who are victims of
domestic violence.
A second major source of legal services for battered immigrants stems from programs that receive grants
from the Department of Justice’s Office on Violence Against Women (OVW). Several OVW grant programs
can be used to provide legal assistance to battered immigrants. Funds from OVW’s STOP, Rural, Legal
Assistance for Victims, Arrest, and Campus grant programs may be used to provide immigration assistance to
battered women.58
Legal Assistance for Victims (LAV)59 grants are the most significant source of OVW funding for legal
services for domestic violence victims. The Violence Against Women Act of 2000 created a LAV grant
program designed to improve the legal aid available to domestic violence victims. These grants allow
organizations to assist all victims of domestic violence, stalking, or sexual assault with a wide range of legal
matters that arise as a result of the abuse or violence. LAV grantees are explicitly authorized to provide a
broad range of legal services to battered immigrants, including representation in immigration cases to certain
groups of battered immigrants. Programs that receive both LAV and LSC funding were, however, subject to
LSC grant program restrictions regarding the groups of undocumented battered immigrants they can serve.
Programs that receive no LSC funding or receive LAV but not LSC funding have no restrictions on providing
services to undocumented battered immigrants. Both LSC- and VAWA-funded legal services for battered
immigrants are discussed in greater detail below.
LEGAL SERVICES CORPORATION SERVICES FOR BATTERED IMMIGRANTS
In 1996, Congress passed a law prohibiting any organization that receives Legal Services Corporation (LSC)
funding from providing legal assistance to undocumented immigrants and many lawfully present noncitizens.60 This law originally even prohibited a LSC-funded organization from using non-LSC funds to
provide legal assistance to ineligible non-citizens. Since most legal services offices at the time relied solely
or primarily on funding from the LSC, this meant that most legal services offices could no longer represent
many non-citizens. LSC-funded organizations could, however, provide brief service and consultation by
telephone, and normal intake and referral services to anyone, regardless of their citizenship or immigration
status.61
The following year, Congress amended this law to ameliorate some of its harsh effect on battered women and
abused children.62 The amendment permits LSC-funded organizations to use non-LSC funds to represent
certain victims of domestic abuse on matters directly related to the abuse, even if these abuse victims would
otherwise be ineligible for legal representation from the LSC funded organization because of their
58
For a list of OVW-funded grant programs, please visit the OVW website at
http://www.ojp.usdoj.gov/vawo/applicationkits.htm.
59
Formerly called Civil Legal Assistance Grants.
60
Legal Services Corporation Appropriations Act of 1996, Pub. L.No. 104-134, § 504 (a) (11), 110 Stat. 1321 (1996).
61
45 C.F.R. § 1626.3, 1626.6(a).
62
45 C.F.R. § 1626.2(g).
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immigration status.63 LSC-funded legal services offices can now represent non-LSC eligible battered
immigrant women, regardless of their immigration status, on matters directly related to domestic abuse, if
they raise non-LSC funds to do so.64
LSC-funded organizations may only, however, represent non-LSC eligible battered immigrant women who
have been battered by either a spouse, a parent, or a member of the spouse's or parent's family residing in the
same household as the immigrant when the spouse or parent consented to the battery. The law allows
representation only on issues directly related to the abuse. Therefore, non-LSC eligible immigrant women
who are not married but who are battered by their boyfriends or the fathers of their children may not be
served by a LSC-funded organization.
REPRESENTATION OF NON-CITIZENS
Battered women need to have access to the assistance of legal services program lawyers for help in obtaining
protection orders, child and spousal support, child custody, divorce, and immigration benefits. In many
communities, legal services lawyers are the only lawyers in the community with significant expertise and
experience assisting battered women and children. Confusion about which non-citizens may receive legal
assistance from LSC-funded programs and which funds governmental and non-governmental programs may
use for this representation has reduced battered immigrant’s access to legal services below that which is
legally required. For this reason it is important for battered women advocates and immigrant rights advocates
to know which non-citizens legal services programs are authorized. In order to assist clients in obtaining
much needed services, advocates also need to be familiar with the broad range of services that have been
deemed directly related to the abuse. Advocates should work with their local LSC-funded programs to
encourage them to represent battered immigrants by using non-LSC funding. Also, advocates should
consider working with legal services programs with experience representing battered women to jointly raise
non-LSC funds that can be used to provide legal services to battered women and children who are noncitizens.
Many non-citizen battered immigrant women and abused immigrant children are eligible to receive legal
services because they qualify for assistance under federal law. LSC-funded organizations may represent U.S.
citizens and the following non-citizens using federal LSC dollars:
•
Lawful permanent residents;
•
Lawful conditional residents;
•
Immigrants who are married to U.S. citizens and who have filed an application for adjustment of
status to lawful permanent resident status where such application has not been rejected;
•
Immigrants who are parents or unmarried children under the age of 21 of U.S. citizens who have
filed an application for adjustment of status to lawful permanent resident status and such application
has not been rejected;
•
Immigrants who have been admitted as refugees or granted asylum;
•
Immigrants who have been granted conditional entry pursuant to INA § 203(a)(7) as in effect on
March 31, 1980 because of persecution or fear of persecution on account of race, religion, or
political opinion or because of catastrophic natural calamity; and
•
Immigrants who are lawfully present in the U.S. as a result of withholding of deportation.
The following groups of domestic violence victims are the only other non-citizens who may receive legal
representation from an LSC-funded organization regardless of their citizenship or immigration status. A
63
64
Legal Services Corporation Appropriations Act of 1997, Pub. L. No. 104-208, § 504(a)(11), 110 Stat. 3009 (1996).
Id.
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victim of domestic violence may receive services if the legal assistance is directly related to the preventing or
obtaining relief from the battery or cruelty and she meets the following criteria:
•
The applicant has been battered or subjected to extreme cruelty in the United States by a spouse or a
parent, or by a member of the spouse's or parent's family residing in the same household as the
immigrant, when the spouse or parent consented or acquiesced to such battery or cruelty.
•
The applicant's child has been battered or subjected to extreme cruelty in the United States by a
spouse or parent of the immigrant or by a member of the spouse's or parent's family residing in the
same household as the immigrant, when the spouse or parent consented or acquiesced to such battery
and the immigrant did not actively participate in such battery.65
The first prong of eligibility for battered immigrant women and abused immigrant children to receive services
from an LSC-funded organization requires that the client have been battered or subjected to extreme cruelty.
"Battered or subjected to extreme cruelty" is defined as including, but not limited to:
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. Psychological or sexual
abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced
prostitution shall be considered acts of violence. Other abusive actions may also be acts of
violence under certain circumstances, including acts that in and of themselves may not
initially appear violent but that are a part of the overall pattern of violence.66
This definition is fairly expansive. It parallels the definitions contained in immigration law and is broader
than most protection order statutes because it includes some forms of emotional abuse. The definition of
battering or extreme cruelty is limited however to battering or extreme cruelty that occurs within the United
States.67
To be eligible for representation by an LSC-funded organization, the battered immigrant woman or child
must have suffered abuse at the hands of:
•
•
•
a spouse
a parent
a member of the spouse’s or parent’s family residing in the same household as the battered
immigrant68
Note that the relationship with the abuser is the chief relationship. If the abuser is a spouse, former spouse, or
parent, the battered immigrant may receive a variety of legal services on issues directly related to the abuse,
regardless of whether the abuser has or does not have any form of legal immigration status.
The preamble to the LSC regulations states that the terms "spouse" and "parent" are terms of relationships
that are generally regulated by state law. The LSC regulations do not expand the generally recognized legal
meanings of these terms under state law, nor do they define them. The preamble directs that LSC-funded
organizations should defer to the local law defining spouse and parent or the federal law that would apply in a
particular case.69 It is important to note that the immigration law definition of parent includes step-parents
and could include children up to the age of twenty-one.70 This federal law definition of the parent/child
relationship should be used by LSC-funded programs where it may be broader than local or state laws.
Advocates should look to state definitions of spouse and parent, particularly those included in state domestic
65
Legal Services Corporation Appropriations Act,104 P.L. 134, § 504(a)(11).
45 C.F.R. § 1626.2(f).
67
45 C.F.R. § 1626.4.
68
Legal Services Corporation Act, § 504(a)(11).
69
Restrictions on Legal Assistance to Aliens, 62 Fed. Reg. 45,755, 45,756 (Aug. 29, 1997).
70
Immigration and Nationality Act, § 101(b)(1), 8U.S.C.A. § 1101.
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| Battered Immigrants’ Access to Services
violence laws and family laws regarding common law marriages, as well as the immigration law definition,
and work with their local LSC-funded legal services program to convince them to interpret these terms
broadly.
The statute and the regulations offer legal services access to an immigrant who "has been" battered or
subjected to extreme cruelty by a spouse or parent. The statute contains no requirement that the spousal or
parent/child relationship continue to exist when the battered immigrant seeks legal assistance from a LSCfunded agency. Similarly, all state domestic violence statutes refuse to make distinctions between current and
former spousal or parental relationships for the purpose of offering access to legal protection. Thus, abused
immigrant spouses and children should be able to obtain legal assistance from LSC-funded programs even if
the abuser's parental rights have been terminated and even if the abuser has divorced his immigrant wife.71
The LSC regulations lack a definition for the meaning of a "member of the spouse's or parent's family" and
instead direct LSC-funded organizations to refer to state protection order statutes where available or to other
applicable local law in defining these terms.72 This approach parallels the approach taken by the Attorney
General of the United States in defining this same terminology in the welfare context. In November 1997, the
Attorney General73 provided guidance to the states for use in the welfare context on how the phrase "member
of the spouse or parent's family" is to be defined. The guidance provides a definition that should also be
followed by LSC funded programs. A "member of the spouse or parent's family," means:
“...any person having a relationship to the spouse or parent that is covered by the civil or criminal
domestic violence statutes of the state or Indian country in which the alien, the alien’s child, or the
alien’s parent received a protection order.”
This definition also sheds useful light on how this language should be interpreted in the context of access to
legal services.
State protection order statutes often broadly define family to protect individuals from ongoing abuse. Under
many state protection order statutes, that definition would usually include persons who are in the following
relationship with the spouse or parent of the battered immigrant:
•
•
•
•
•
•
Blood relatives
Current and former relatives by marriage
Current and former cohabitants
Persons who share a common child with the victim’s spouse or parent
People who have dated the victim’s spouse or parent
Any other people in relationships with the immigrant victim’s spouse or parent covered in the state’s
protection order statute.
Immigrant women who have been battered by individuals that have any of the above relationships with the
immigrant victim’s spouse or parent should be eligible for representation by an LSC-funded organization, in
accord with the definition provided by the state's protection order statute.
In order for battered immigrants who do not otherwise qualify for LSC funded services to be eligible to
receive services from an LSC funded organization, they must show that the legal assistance provided is
directly related to their abuse. Legal assistance directly relating to the prevention of, or obtaining relief from,
the battery or cruelty is defined as any legal assistance that will:
•
•
Assist victims of abuse in escaping from the abusive situation
Ameliorate the effects of abuse
71
Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal
Responsibility and Work Opportunity Reconciliation Act (1996).
72
Id.
73
AG Order No. 2129-97, 62 Fed.Reg. 61344 (Nov. 17, 1997).
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•
| 4.1
Protect against future abuse.74
A wide array of legal assistance for which battered immigrants are eligible may be deemed related to the
abuse. For example, an LSC-funded organization may use non-LSC funds to represent battered immigrant
women, helping them secure housing, medical, or income assistance so that they and their children are no
longer forced to depend on their abuser. Similarly, an LSC-funded organization may provide legal assistance
to seek a civil protection order against the abuser or to terminate the marriage and parental rights of the
abuser. The LSC program may not, however, provide adoption assistance if the victim remarries and the new
spouse, who is an ineligible alien, wishes to adopt the children.75
The preamble to the LSC regulations provides a non-exclusive list of examples of permissible legal
representation and makes it clear that a broad variety of legal services are needed to assist abuse victims.
According to the preamble, permissible representation includes, but is not limited to:
•
Representation of a domestic violence victim in a VAWA immigration case; or
•
Representation of a domestic violence victim in other immigration cases that would allow an abuse
victim to stabilize immigration status, facilitate naturalization, or acquire work authorization so long
as the victim can show the necessary connection to abuse.
In addition to providing assistance in immigration matters, LSC programs may provide any of the following
forms of legal assistance when they are necessary to assist victims’ escape from an abusive situation or
ameliorate the current effects of the abuse or protect against future abuse. This legal assistance includes, but
is not limited to:
•
•
•
•
•
•
•
•
•
•
•
Obtaining civil protection orders
Divorce
Child custody
Child and spousal support
Housing
Public benefits
Employment
Abuse and neglect
Juvenile proceedings
Small claims cases
Contempt actions76
Additionally, there are many poverty law issues a battered immigrant woman faces that affect her ability to
maintain self-sufficiency and independence from her abuser. Such legal assistance is permissible as it is
related to the abuse, and it includes assistance in:
•
•
•
•
•
•
Obtaining public benefits
Retaining the family home for the battered immigrant and her children
Evicting the abuser from the residence
Obtaining child and spousal support
Maintaining health insurance from the abuser
Staving off eviction.
74
45 C.F.R. § 1626.2(g).
Restrictions on Legal Assistance to Aliens, 62 Fed. Reg. 45,755, 45,757 (1997). This restriction parallels restrictions in
immigration law which previously cut off access to VAWA relief if the abuse victim remarries. The Violence Against Women
Act of 2000 deleted this restriction from immigration law.
76
Restrictions on Legal Assistance to Aliens, 62 Fed. Reg. 19409, 19410-11 (Apr. 21, 1997) (codified at 8 C.F.R. pt. 204).
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| Battered Immigrants’ Access to Services
REQUIREMENTS TO VERIFY IMMIGRATION STATUS
The Legal Services regulations implementing battered immigrant access to legal services provide important
confidentiality protections so that immigrants who receive legal representation by LSC-funded organizations
can be assured that the information about the immigration status contained in the LSC organization's records
will not be provided to BCIS/BICE or used against them by immigration officials. These confidentiality
provisions are extremely important in light of the onerous immigration status eligibility requirements that
LSC-funded programs normally are required to undertake. Confidentiality protections were included in the
regulations to allay the fears of battered immigrant women who would otherwise be deterred from seeking the
legal representation they need to help them escape from their abuser.77 The regulations recognize the need to
protect from disclosure information provided to an organization by battered immigrants who may be
undocumented immigrants, and by potential clients who are rejected or referred to another legal services
provider because they do not qualify as eligible non-citizens.
Consequently, the regulations provide that LSC-funded organizations are not required to inquire about a
domestic violence client's immigration status or to maintain records regarding her status.78 Further, since
legal assistance as defined under these regulations does not include normal intake and referral services, an
organization is not required to verify citizenship or eligibility during intake and referral or when providing
brief advice or consultation by telephone. LSC-funded programs do not need to document the immigration
status of potential clients to whom they offer only intake and referral services or to whom they provide quick
advice.79
For all other clients, except battered immigrants and clients provided only referrals or quick advice, an LSCfunded organization is required to have clients attest to their citizenship (or prove it, if there is reason to doubt
it), or verify their non-citizen eligibility under LSC regulations. The organization must also maintain records
sufficient to document its compliance with LSC regulations.80 For this reason, even battered immigrant
women who fall within the group of non-citizens whom LSC is authorized to assist may prefer to apply for
legal services under the special provisions for battered immigrants. Those services are available without any
requirements for verification of immigration status and without producing specific immigration documents.81
Practically, this means that interviewers should determine whether applicants are victims of battery or
extreme cruelty by a spouse or parent, thus establishing Kennedy Amendment eligibility. Once this
eligibility is established, interviewers should qualify questions related to immigration status by assuring the
applicant that the questions about to be asked are asked of everyone and that all responses will be kept
confidential. This is done so that the applicant is not deterred from applying for legal aid. Hence, potential
clients will not be afraid to access much needed legal services provided by LSC-funded organizations.
Battered immigrants who qualify for LSC-funded legal representation using federal LSC funds may prove
their eligibility by providing:
•
•
•
•
•
•
United States passport
Birth certificate
Naturalization certificate
United States Citizenship Identification Card
Baptismal certificate showing place of birth within the United States and date of baptism within two
months after birth
Green card
77
Restrictions on Legal Assistance to Aliens, 62 Fed. Reg. 45,755, 45,757 (1997).
45 C.F.R. § 1626.4(b).
79
45 C.F.R. §§ 1626.3, 1626.6(a), 1626.7(a).
80
45 C.F.R. §§ 1626.12, 1626.6, 1626.7.
81
This approach is not an option when the LSC-funded program has raised no non-LSC funds that can be used to represent
battered immigrants who do not otherwise qualify for federally funded LSC services. Domestic violence programs should
encourage local LSC-funded programs to raise and allocate non-LSC dollars for representation of battered immigrants.
78
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•
•
•
| 4.1
Evidence of lawful permanent residency or conditional residency
Application for adjustment of status
Evidence of admission as a refugee, asylee, conditional resident, or of withholding of deportation.
An LSC-funded organization may also accept any other authoritative document, such as a document issued
by BCIS, a court, or another governmental agency, that provides evidence of citizenship or qualifying
immigration status. Examples include documents confirming refugee or asylee status, conditional entry, or
withholding of deportation. If a person is unable to provide any of the above documents, she may submit a
notarized statement signed by a third party. LSC programs may accept certified copies or photocopies of any
of the documents in cases where documentation of immigration status is required.
It is also important to take note that LSC-funded programs may provide emergency legal assistance without
written verification of immigration status. The LSC regulations do not define "emergency." The preamble to
the LSC regulations state, however, that emergency in the legal services context would include cases in which
immediate action is necessary to preserve significant legal rights or prevent significant harm to a person's
family, property, or other legal interests.82 Under these emergency provisions, LSC-funded programs should
be able to assist battered immigrants in filing for and obtaining temporary protection orders and civil
protection orders which remove the abuser from the family home, grant custody, and provide immediate
protection. They should be able to provide this assistance without regard to immigration status to those
battered immigrants who qualify under state protection order laws, but who are abused by persons who are
not their spouse or parent.83 Further representation of battered immigrants, however, is not permitted unless
they are abused by a spouse or parent or can provide documentation of immigration status that qualifies them
for representation.
VAWA LEGAL ASSISTANCE FOR VICTIMS
Under the Violence Against Women Act amendments passed in 2000, a new program offering legal
assistance for domestic violence victims was created.84 The Legal Assistance for Victims (LAV) grants are
designed to establish projects or expand existing programs that provide legal services to victims of domestic
violence, stalking, and sexual assault. Organizations that receive grants under this new program may assist
victims in a range of legal services that arise as a consequence of abuse or violence, including protection
orders, family law, public benefits, immigration, employment, and housing matters.85
Under this program, domestic violence is defined broadly to include abuse by a current or former spouse, a
person with whom the victim shares a child, a person with whom the victim has cohabitated as a spouse, or
other people who could be covered by a protection order under the domestic violence laws of the jurisdiction
in question.86 Because the federal funding under this program is provided to nonprofit organizations, not to
individuals directly, this program is not a federal public benefit program and therefore is not subject to
immigrant access restrictions. Thus, organizations receiving grants under this program may provide free or
low-cost legal services to battered immigrants regardless of their immigration status. Advocates working
with battered immigrants in local communities should collaborate with legal services providers to encourage
them to apply for LAV funding to support legal representation of battered immigrants.
ADVOCACY STRATEGIES
LSC management and senior attorneys should educate advocates in the domestic violence community about
the Kennedy Amendment because direct service providers may assume that the law prohibits immigrants
from receiving legal services. Additionally, LSC program staff should educate their own staff by including
82
45 C.F.R. § 1626.8.
Advocates should urge LSC funded programs in their states to represent any battered woman in a protection order case
without regard to her immigration status.
84
42 U.S.C.S. § 3796gg-6. This law codified and made permanent the civil legal assistance grant program that had been
inoperative for a few years prior to VAWA 2000.
85
Pub. L. No.106-386, § 1103, 114 Stat. 1464, 1503-1505, codified at 42 U.S.C.§ 3796gg-6.
86
42 U.S.C.S. § 3796gg-2.
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| Battered Immigrants’ Access to Services
the language of the Kennedy Amendment and articles such as this one in their training manuals for new
attorneys and paralegals.
Because LSC-funded programs may represent otherwise ineligible battered immigrants under the Kennedy
Amendment, programs should locate community resources to which they can refer immigrant victims whose
abusers fall under other categories. LSC-funded programs should, in turn, accept referrals of clients who
qualify for representation. Without careful coordination, legal aid programs not receiving LSC-funding may
fill their caseload with clients who also qualify for LSC-funded representation. In this event, a battered
immigrant whose abuser is not her spouse, but the father of her child, will have nowhere to turn for
representation in a custody case, for example.
Coordination can also fill a critical need to develop additional resources. In many communities, LSC-funded
organizations are beleaguered by the demand for their services. Local advocates and LSC-funded programs
should work together to compile referral lists of private attorneys and other legal agencies whose staff
understand domestic violence and immigration issues. Additionally, domestic violence advocates, along with
legal services programs, should consider joint efforts to raise non-LSC funds they can use to provide services
to battered immigrant women and children. This joint funding can be used to support advocate/legal services
attorney collaborations in which one attorney working with advocates can provide legal representation to
many more battered immigrant victims than if he or she were doing all of the client interviewing and
evidence collection alone. This approach works particularly well in VAWA self-petitioning cases.
A model approach to such collaboration has been developed in Albuquerque, New Mexico. In New Mexico,
one attorney trained battered women’s advocates across the state on VAWA’s self-petitioning provisions.
Working with advocates who conduct client interviews and collect evidence for VAWA immigration cases
based on checklists provided by the attorney, one attorney has been able to represent large numbers of
battered immigrants in VAWA self-petitioning cases with a very high success rate in securing swift approvals
from CIS.87 This approach is particularly useful for ensuring that battered immigrant victims living in rural
communities gain access to immigration relief offered by VAWA.
CONCLUSION
While the law precludes LSC-funded organizations from representing many non-citizens, the law does allow
LSC-funded organizations to represent many domestic violence victims, regardless of their citizenship or
immigration status. Battered immigrant women who have been abused by a spouse, parent, or member of
their spouse's or parent's family can receive legal assistance from an LSC-funded organization for any matter
that is directly related to their abuse, so long as the organization uses non-LSC funds for the representation.
Other battered immigrants may be able to obtain emergency legal assistance to obtain temporary protection
orders and civil protection orders.
While the language of the regulations and the statute does limit who is eligible for representation as a victim
of domestic violence, many of the restrictions are subject to flexible interpretations, which LSC-funded
organizations must be encouraged to interpret broadly.88 Battered women's advocates must encourage LSCfunded organizations not to turn away any battered immigrant women because of the restrictions on
representing non-citizens until they have carefully evaluated a woman's case. Ultimately, many battered
immigrant women will be eligible for representation by the LSC-funded organization. Some will be eligible
for services because they fit within the categories of non-citizens whom LSC programs may represent using
federal funds. Others will qualify for legal services because they have been victims of domestic violence.
Programs must be encouraged to represent everyone in protection order cases and to interpret the range of
services they can offer immigrants abused by a spouse, parent, or specified family member broadly.
Likewise, advocates should work with all local legal services programs, both those that are funded by LSC
and those that are not, to encourage them to apply for LAV funding and to inform them that both LAV
87
For more information on this approach developed by Mirna Torres of Catholic Charities in Albuquerque, as well as sample
materials, contact the Immigrant Women Program of Legal Momentum. (202) 326-0040, [email protected]
88
The LSC regulations implementing the 1997 statute encourage a broad and flexible interpretation. 62 Fed. Reg. 19,410,
19,411.
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| 4.1
funding and other sources of OVW funds (STOP, Rural, Arrest, and Campus grants) can be used to provide
assistance to battered immigrants in a broad array of matters, including assistance in immigration matters.
Battered immigrants are eligible for legal assistance services authorized under VAWA through OVW-funded
grants regardless of their immigration status. To assure that programs funded by OVW or state STOP grant
funds will actually provide the full range of services battered immigrants need, it is important that legal
services and all other programs apply for OVW or STOP grant funds to provide services to immigrant victims
by specifically including in their grant applications a provision stating that they intend to provide legal
assistance to battered immigrants. Provisions of immigration assistance need not be the primary purpose of
the grant, but to ensure that immigration assistance can be provided when needed, this form of legal
assistance should be listed in the grant.
OVW Approved November, 2004
23
U Visa Law
Enforcement
Certification Resource
Guide
for Federal, State, Local, Tribal and Territorial
Law Enforcement
U Visa Resource Guide
Table of Contents
Introduction ..................................................................................................................................... 1
U Visa Basics .................................................................................................................................... 1
U Visa Certification Form (Form I-918B) ........................................................................................ 5
Frequently Asked Questions ............................................................................................................. 8
Other Forms of Relief for Victims .................................................................................................. 15
DHS U Visa Contact Information ................................................................................................... 17
Introduction
The Department of Homeland Security (DHS) provides this guidance to federal, state, local, tribal and
territorial law enforcement officers. This public guidance primarily concerns law enforcement
certifications for U nonimmigrant status, also known as U visas. The U visa is an immigration benefit
that can be sought by victims of certain crimes who are currently assisting or have previously assisted
law enforcement in the investigation or prosecution of a crime, or who are likely to be helpful in the
investigation or prosecution of criminal activity. The law enforcement certification USCIS Form I918, Supplement B, U Nonimmigrant Status Certification (Form I-918B) is a required element for U
visa eligibility. Included in this resource is information about U visa requirements, the certification
process, best practices, frequently asked questions from law enforcement agencies, and contact
information for DHS personnel on U visa issues.
U Visa Basics
The Victims of Trafficking and Violence Prevention Act (VTVPA) of 20001, passed with bipartisan
support in Congress, encourages victims to report crimes and contribute to investigations and
prosecutions regardless of immigration status, and supports law enforcement efforts to investigate and
prosecute crimes committed against immigrant victims.
The U visa is an immigration benefit that can be sought by victims of certain crimes who are currently
assisting or have previously assisted law enforcement in the investigation or prosecution of a crime, or
1
(VTVPA), Pub. L. No. 106-386, 114 Stat. 1464-1548 (2000).
who are likely to be helpful in the investigation or prosecution of criminal activity. The U visa
provides eligible victims with nonimmigrant status in order to temporarily remain in the United States
(U.S.) while assisting law enforcement. If certain conditions are met, an individual with U
nonimmigrant status may adjust to lawful permanent resident status. Congress capped the number of
available U visas to 10,000 per fiscal year.
Immigrants, especially women and children, can be particularly vulnerable to crimes like human
trafficking, domestic violence, sexual assault, and other abuse due to a variety of factors. These
include, but are not limited to, language barriers, separation from family and friends, lack of
understanding of U.S. laws, fear of deportation, and cultural differences. Congress recognized that
victims who do not have legal status may be reluctant to help in the investigation or prosecution of
criminal activity for fear of removal from the United States. The VTVPA was enacted to strengthen the
ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual
assault, trafficking of persons and other crimes while offering protection to victims of such crimes
without the immediate risk of being removed from the country. Congress also sought to encourage
law enforcement officials to serve immigrant crime victims.2
If an individual believes he or she may qualify for a U visa, then that individual or his or her
representative will complete the USCIS Form I-918, Petition for U Nonimmigrant Status (Form I918), and submit it to U.S. Citizenship and Immigration Services (USCIS) with all relevant
documentation, including Form I-918B, the U visa law enforcement certification. Given the
complexity of U visa petitions, petitioners often work with a legal representative or victim advocate.
What Is a U Visa Certification and Which Agencies Can Certify?
USCIS Form I-918, Supplement B is the U visa certification document that a law enforcement agency
can complete for a victim who is petitioning USCIS for a U visa. USCIS is the federal component of
DHS with the responsibility to determine whether immigration benefits and immigration status
should be granted or denied. Form I-918B is a required piece of evidence to confirm to USCIS that a
qualifying crime has occurred and that the victim was helpful, is being helpful, or is likely to be
helpful in the investigation or prosecution of criminal activity.
Form I-918B and its instructions are available on the USCIS website at www.uscis.gov with the Form
I-918 for the U visa. In order to be eligible for a U visa, the victim must submit a law enforcement
certification completed by a certifying agency. Certifying agencies include all authorities responsible
for the investigation, prosecution, conviction or sentencing of the qualifying criminal activity,
including but not limited to:
Federal, State and Local law enforcement agencies;
Federal, State and Local prosecutors’ offices;
2
VTVPA, Pub.L. No. 106-386, § 1513(a)(2)(A), 114 Stat. 1464, 1533-34 (2000). See also New Classification for Victims of Criminal
Activity; Eligibility for ‘‘U’’ Nonimmigrant Status, 72 Fed. Reg. 53014 (Sept. 17, 2007) (amending 8 C.F.R. §§ 103, 212, 214, 248,
274a and 299).
|2
Federal, State and Local Judges;
Federal, State, and Local Family Protective Services;
Equal Employment Opportunity Commission;
Federal and State Departments of Labor; and
Other investigative agencies.
The law enforcement certification, Form-918B, is a required piece of evidence to confirm that a
qualifying crime has occurred and that that the victim was helpful, is being helpful, or is likely to be
helpful in the detection, investigation or prosecution of criminal activity. Although a law enforcement
certification is a required part of a victim’s petition for a U visa, law enforcement officers cannot be
compelled to complete a certification. Whether a certifying law enforcement agency signs a
certification is at the discretion of that law enforcement agency and the policies and procedures it has
established regarding U visa certifications. The law enforcement certification validates the role the
victim had, has, or will have in being helpful to the investigation or prosecution of the case; therefore,
it is important that the law enforcement agency complete certifications on a case-by-case basis.
Without a completed U visa certification, the victim will not be eligible for a U visa.
What Constitutes a Qualifying Crime?
Abduction
Abusive Sexual
Contact
Blackmail
Domestic
Violence
Extortion
False
Imprisonment
Felonious Assault
Female Genital
Mutilation
Felonious Assault
Being Held
Hostage
Incest
Involuntary
Servitude
Kidnapping
Manslaughter
Murder
Obstruction of
Justice
Peonage
Perjury
Prostitution
Rape
Sexual Assault
Sexual Exploitation
Slave Trade
Torture
Trafficking
Witness Tampering
Unlawful Criminal Restraint
Other Related Crimes*†
*Includes any similar activity where the
elements of the crime are substantially
similar.
†Also includes attempt, conspiracy, or
solicitation to commit any of the above, and
other related, crimes.
What Does “Helpful” In the Investigation or Prosecution Mean?
Helpfulness means the victim was, is, or is likely to be assisting law enforcement in the investigation
or prosecution of the qualifying criminal activity of which he or she is a victim. This includes being
helpful and providing assistance when reasonably requested. This also includes an ongoing
responsibility on the part of the victim to be helpful. Those who unreasonably refuse to assist after
|3
reporting a crime will not be eligible for a U visa. The duty to remain helpful to law enforcement
remains even after a U visa is granted, and those victims who unreasonably refuse to provide
assistance after the U visa has been granted may have the visa revoked by USCIS. Law enforcement
agencies should contact and inform USCIS of the victim’s unreasonable refusal to provide assistance in
the investigation or prosecution should this occur.
A current investigation, the filing of charges, a prosecution or conviction are not required to sign the
law enforcement certification. Many instances may occur where the victim has reported a crime, but
an arrest or prosecution cannot take place due to evidentiary or other circumstances. Examples of this
include, but are not limited to, when the perpetrator has fled or is otherwise no longer in the
jurisdiction, the perpetrator cannot be identified, or the perpetrator has been deported by federal law
enforcement officials. There is no statute of limitations on signing the law enforcement certification.
A law enforcement certification can even be submitted for a victim in a closed case.
USCIS Review of U Visa Law Enforcement Certifica tions
USCIS is the federal component of DHS responsible for approving and denying immigration benefits
and status, including the U visa. Federal, State and local law enforcement agencies do not grant or
guarantee a U visa or any other immigration status by signing a U visa certification (Form I-918B).
Only USCIS may grant or deny a U visa after a full review of the petition to determine whether all the
eligibility requirements have been met and a thorough background investigation. An individual may
be eligible for a U visa if:
He/she is the victim of qualifying criminal activity.
He/she has suffered substantial physical or mental abuse as a result of having been a victim of
criminal activity.
He/she has information about the criminal activity. If under the age of 16 or unable to
provide information due to a disability, a parent, guardian, or next friend may possess the
information about the crime on the individual’s behalf.
He/she was helpful, is being helpful, or is likely to be helpful to law enforcement in the
investigation or prosecution of the crime. If under the age of 16 or unable to provide
information due to a disability, a parent, guardian, or next friend may assist law enforcement
on behalf of the individual.
The crime occurred in the United States or violated U.S. laws
He/she is admissible to the United States. If not admissible, an individual may apply for a
waiver on a Form I-192, Application for Advance Permission to Enter as a Non-Immigrant.
By signing a law enforcement certification, the law enforcement agency is stating that a qualifying
criminal activity occurred, that the victim had information concerning the criminal activity, and that
the victim was helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of
the qualifying crime. In addition, law enforcement may report information about any harm sustained
by the victim that law enforcement has knowledge of or observed.
|4
While a U visa petition will not be granted without the required law enforcement certification, the
fact that a certification has been signed does not automatically grant the victim a U visa. The
certification is only one of the required pieces of evidence needed to be eligible for a U visa.
For all U visa petitioners, USCIS conducts a thorough background investigation which includes a
Federal Bureau of Investigation (FBI) fingerprint check and name check. USCIS will also review the
petitioners’ immigration records to assess whether any inadmissibility issues exist, such as the
petitioner’s criminal history, immigration violations, or security concerns. Any evidence that law
enforcement and immigration authorities possess may be used when determining eligibility for a U
visa. This evidence includes, but is not limited to, the person’s criminal history, immigration records,
and other background information. USCIS may contact the certifying law enforcement agency if there
are any issues or questions arise during the adjudication based on information provided in the law
enforcement certification.
Benefits of the U Visa to the Recipient
If found eligible and a petition is approved, a U visa recipient receives nonimmigrant status to live and
work in the United States for no longer than 4 years. Qualified recipients may apply to adjust status to
become a lawful permanent resident (green card) after three years of continuous presence in the U.S.
while having a U visa. The petitioner will have to meet other eligibility requirements for a green card
as well, including the ongoing duty to cooperate with law enforcement and not unreasonably refuse
to assist with the investigation or prosecution of the qualifying crime. Additionally, certain
immediate family members of U visa recipients may also be eligible to live and work in the United
States as derivative U visa recipients based on their relationship with the principal recipient. These
family members include:
Unmarried children under the age of 21 of
Parents of principal U visa recipients under
principal U visa recipients;
age 21; and
Spouses of principal U visa recipients;
Unmarried siblings under 18 years old of
principal U visa recipients under age 21.
U Visa Certification Form (Form I-918B)
Tips for Filling Out the Form I-918B
The U visa certification can be initiated by the law enforcement agency itself or by the crime victim.
If initiated by the crime victim, this is usually done with the assistance of an advocate or an attorney.
By signing a certification, the law enforcement agency attests that the information is true and correct
to the best of the certifying official’s knowledge. The head of the agency has the authority to sign
certifications or to delegate authority to other agency officials in a supervisory role to sign
certifications. An agency’s decision to sign a certification is completely discretionary and under the
authority of that agency. Neither DHS nor any other federal agency have the authority to request or
demand that any law enforcement agency sign the certification. There is also no legal obligation to
|5
complete and sign Form I-918B. However, without a certification signed by law enforcement, the
individual will not be eligible to be granted a U visa.
By signing a certification, the law enforcement agency attests that the information is true and correct
to the best of the certifying official’s knowledge. The law enforcement certification essentially states to
USCIS that:
The petitioner was a victim of a qualifying crime;
The petitioner has specific knowledge and details of crime; and
The petitioner has been, is being, or is likely to be helpful to law enforcement in the detection,
investigation, or prosecution of the qualifying crime.
If a law enforcement agency signs a Form I-918B, the certification must be returned to the victim (or
the victim’s attorney, representative, etc.). The law enforcement agency does not need to send the
signed certification separately to USCIS. The victim is required to send the original signed certification
form along with his or her complete U visa petition to USCIS. If the law enforcement official is
providing additional documents (e.g., a copy of the police report, additional statements, photos, etc.)
along with the certification, law enforcement should indicate on Form I-918B a note of “see
attachment” or “see addendum”. Question 5 of Part 4 on Form I-918B, the certifying official may
document the helpfulness of the victim and if that victim refused to be helpful at any time throughout
the investigation/prosecution at the point. The certification form must contain an original signature
and should be signed in a color of ink other than black for verification purposes. Photocopies, faxes,
or scans of the certification form cannot be accepted by USCIS as an official certification.
|6
|7
Best Practices in U Visa Certifications (Form I-918B)
Across the United States, law enforcement agencies have taken different procedural approaches to U
visa certifications. DHS does not endorse or recommend any particular practice, as the certifying
agency has the sole authority on the policies and procedures it will use in signing law enforcement
certifications. Some examples of how various law enforcement agencies educate their officers about U
visa certifications and how they designate a certifier or certifiers in their agencies include:
Department policy or general order on the process and use of the U visa certification written
and distributed;
A Letter or Memorandum designating a process and authority to certify has been sent from the
Chief to the Lieutenant(s) or supervisor(s) in charge of certifying U visas;
Chief designates the head of the Victim-Witness Assistance Program as the certifier;
Teletype message or similar written notification sent out from the Chief to the entire
department explaining the purpose of the U visa, the certification process, and who is/are
designated as the certifier(s); and
The Investigations Bureau Chief, assigned as certifier, delegates an officer or supervisor to
review requests made by both law enforcement officers and the community and makes a
recommendation on the certification to the Bureau Chief.
Frequently Asked Questions
What do I do with a completed certification?
Once the law enforcement official completes and signs Form I-918B, the original should be given to
the victim or the victim’s legal representative or victim advocate, so that he or she can add the
certification to the original U visa petition packet before submission to USCIS.
Please also note that only a law enforcement official may complete and sign the Form I-918B. The
victim, victim’s attorney, or advocate may not sign the Form I-918B.
If I certify a petition, does the victim automatically get a U visa or lawful immigration status?
No. There are many additional eligibility requirements that USCIS evaluates based on a victim’s U visa
petition, including whether the victim suffered “substantial physical or mental abuse.” Moreover,
upon receiving a U visa petition, including Form I-918B, USCIS will conduct a full review of the
petition and a thorough background check of the petitioner before approving or denying the petition.
The background check will include an FBI fingerprint check, name and date of birth (DOB) check, and
a review of immigration inadmissibility issues, including security-based and criminal inadmissibility
grounds. A victim may be found inadmissible if they do not meet required criteria in the
Immigration and Nationality Act to gain admission or legal status in the U.S. Generally, USCIS does
not initiate removal proceedings. However, if there are serious inadmissibility issues, such as security
related concerns, multiple or violent criminal arrests, or multiple immigration violations, USCIS may
find the victim to be inadmissible and may also initiate removal proceedings. If USCIS finds the victim
|8
to be inadmissible after a removal proceeding was stayed or terminated to pursue the U visa
application, the proceedings may be reinitiated or DHS may file a new Notice to Appear (NTA) for
that individual.
If USCIS needs further information, evidence, or clarification of an issue, USCIS officers may request
additional evidence from the petitioner. USCIS may also contact the certifying law enforcement
agency for further information if necessary.
Which law enforcement agencies are eligible to make certifications?
A federal, state, local law enforcement agency, prosecutor, judge, or other authority that has the
responsibility for the investigation or prosecution of a qualifying crime or criminal activity is eligible
to sign Form I-918B. This includes agencies with criminal investigative jurisdiction in their respective
areas of expertise, including but not limited to child and adult protective services, the Equal
Employment Opportunity Commission, and Federal and State Departments of Labor.
Who in the law enforcement agency can sign Form I-918B?
A certifying official(s) can sign Form I-918B. The U visa regulation defines a certifying official as:
“[t]he head of the certifying agency, or any person(s) in a supervisory role who has been specifically
designated by the head of the certifying agency to issue U nonimmigrant status certifications on behalf
of that agency.” 8 C.F.R. § 214.14(a)(3).
Although not required with each certification, it is helpful to include a letter showing the designation
of the signing official(s). The letter would be signed by the agency head and would reflect that
person with a particular rank or title within the agency is to be the signing official(s).
If my law enforcement agency has a Memorandum of Understanding (MOU) with DHS under the
287(g) program, are we still able to sign U visa certifications?
Yes, Form I-918B can be signed regardless of such an MOU with DHS. DHS encourages all
jurisdictions to implement U visa certification practices and policies.
What if the victim or witness in my case has been detained or ordered removed for an
immigration violation?
Individuals currently in removal proceedings or with final orders of removal may still apply for a U
visa. Absent special circumstances or aggravating factors, it is against U.S. Immigration and Customs
Enforcement (ICE) policy to initiate removal proceedings against an individual known to be the
immediate victim or witness to a crime. To avoid deterring individuals from reporting crimes, ICE
has issued guidance to remind ICE officers, special agents, and attorneys to exercise all appropriate
discretion on a case-by-case basis when making detention and enforcement decisions in the cases of
victims of crime, witnesses to crime, and individuals pursuing legitimate civil rights complaints.
Particular attention should be paid to victims of domestic violence, human trafficking, or other serious
crimes, and witnesses involved in pending criminal investigations or prosecutions.
|9
If a law enforcement official is aware of a victim or witness against whom a detainer has been lodged,
who has been detained, who has been placed in removal proceedings for an immigration violation, or
who has been ordered removed, the official should promptly contact their local ICE Enforcement and
Removal Operations (ERO) contact or the local Office of the Chief Counsel to make ICE aware of the
situation. Specifically with regard to a lodged detainer, the law enforcement official may notify the ICE
Law Enforcement Support Center at (802) 872-6020, if the individual may be the victim of a crime,
or if the officials want this individual to remain in the United States for prosecution or other law
enforcement purposes, including acting as a witness.
Will a certifying law enforcement agency be liable for any future conduct of someone who is
granted a U visa? What if I signed a certification for someone who later commits a crime?
A certifying law enforcement agency/official cannot be held liable for the future actions of a victim
for whom the agency signed a certification or to whom DHS granted a U visa. The U visa certification
simply states that the person was a victim of a qualifying crime, possessed information relating to the
crime, and was helpful in the investigation or prosecution of that crime. The certification does not
guarantee the future conduct of the victim or grant a U visa. USCIS is the only agency that can grant a
U visa.
If a victim is granted a U visa and is later arrested or commits immigration violations, federal
immigration authorities will respond to those issues.
If a law enforcement agency later discovers information regarding the victim, crime, or certification
that the agency believes USCIS should be aware of, or if the agency wishes to withdraw the
certification, the law enforcement agency should contact USCIS.
If an investigation or case is closed, can law enforcement still complete Form I-918B? Is there a
statute of limitations?
Yes, law enforcement can still complete Form I-918B for an investigation or case that is closed. There
is no statute of limitations regarding the time frame in which the crime must have occurred. Federal
legislation specifically provides that a victim may be eligible for a U visa based on having been helpful
in the past to investigate or prosecute a crime. A crime victim could be eligible to receive U visa
certification when, for example, the case is closed because the perpetrator could not be identified; a
warrant was issued for the perpetrator but no arrest could be made due to the perpetrator fleeing the
jurisdiction or fleeing the United States, or has been deported; before or after the case has been
referred to prosecutors, as well as before or after trial whether or not the prosecution resulted in a
conviction. The petitioner must still meet all the eligibility requirements for a U visa to be approved.
Can I complete a U visa certification for a victim who is no longer in the United States?
Yes. While the crime must have occurred in the United States, its territories, or possessions, or have
violated U.S. law, victims do not need to be present in the U.S. in order to be eligible for a U visa and
may apply from outside the United States.
Who determines if the “substantial physical or mental abuse” requirement has been met?
| 10
USCIS will make the determination as to whether the victim has met the “substantial physical or
mental” standard on a case-by-case basis during its adjudication of the U visa petition. Certifying law
enforcement agencies do not make this determination. Certifying agencies may, however, provide
any information the agency deems relevant regarding injuries or abuse on Form I-918B. The U visa
certification signed by law enforcement states that the person was a victim of a qualifying crime,
possessed information relating to the crime, and was helpful, is being helpful, or is likely to be helpful
in the investigation or prosecution of that crime. Question 6 of Part 3 on Form I-918B asks that law
enforcement provide information about any injuries the law enforcement agency knows about or has
documented. While this provides some of the evidence USCIS will use to make the substantial
physical or mental abuse determination, the U visa petitioner has the burden of proving the
substantial physical or emotional abuse.
USCIS adjudication officers receive extensive training in statutory and regulatory requirements in
determining whether a victim has suffered substantial physical or mental abuse. Factors that USCIS
uses to make this determination are: the nature of the injury inflicted; the severity of the perpetrator’s
conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to
which there is permanent or serious harm to the appearance, health, or physical or mental soundness
of the victim.
The existence of one or more of the factors does not automatically signify that the abuse suffered was
substantial. The victim will have to provide evidence to USCIS showing that the victim meets the
standard of substantial physical or mental abuse.
Can I still certify if the perpetrator is no longer in the jurisdiction or prosecution is unlikely for
some reason?
Yes. There is no statutory or regulatory requirement that an arrest, prosecution, or conviction occur
for someone to be eligible to apply for a U visa. Instances may occur where the perpetrator has fled
the jurisdiction, left the United States, or been arrested for unrelated offenses by another agency in
another jurisdiction. An arrest, prosecution, or conviction may not be possible in these situations.
The petitioner will still have to meet the helpfulness requirement by reasonably assisting the certifying
law enforcement agency, and will also have to meet all other eligibility requirements in order to
qualify for a U visa.
Does the victim have to testify to be eligible for certification?
As mentioned above, there is no requirement that an arrest, prosecution, or conviction occur for
someone to be eligible for a U visa. While there is no requirement for the victim to testify at a trial to
be eligible for a U visa, if the victim is requested to testify, he or she cannot unreasonably refuse to
cooperate with law enforcement. If the victim unreasonably refuses to testify, the law enforcement
agency should notify USCIS and may withdraw the previously signed Form I-918B.
Can a victim’s petition still be approved if the defendant is acquitted or accepted a plea to a lesser
charge, or if the case was dismissed?
| 11
Yes. As mentioned above, a conviction is not required for someone to be eligible for a U visa. Plea
agreements and dismissals do not negatively impact the victim’s eligibility. As long as the victim has
been helpful in the investigation or prosecution of the qualifying criminal activity and meets all other
eligibility requirements, the victim may petition for a U visa.
If the victim unreasonably refuses to assist the investigation or prosecution and harms the criminal
case, that will negatively impact the victim’s ability to receive an approval. The certifying law
enforcement agency should notify USCIS if the victim has unreasonably refused to cooperate in the
investigation or prosecution of the crime.
What constitutes “helpfulness” or “enough cooperation”?
USCIS regulation requires that the victim has been, is being, or is likely to be helpful in the
investigation or prosecution of the criminal activity. This means that since the initiation of
cooperation, the victim has not refused or failed to provide information and assistance reasonably
requested by law enforcement.
USCIS will not provide a U visa to those petitioners who, after initially cooperating with law
enforcement, refuse to provide continuing assistance when reasonably requested. USCIS also will not
approve the petitions of those who are culpable for the qualifying criminal activity.
What if the victim stops cooperating after I sign his/her certification?
At its discretion, a certifying agency may withdraw or disavow a Form I-918B at any time if a victim
stops cooperating. To do so, the certifying agency must notify the USCIS Vermont Service Center in
writing (see below).
Written notification regarding withdrawal or disavowal should include:
• The agency’s name and contact information (if not included in the letterhead);
• The name and date of birth of the individual certified;
• The name of the individual who signed the certification and the date it was signed;
• The reason the agency is withdrawing/disavowing the certification including
information describing how the victim’s refusal to cooperate in the case is
unreasonable;
• The signature and title of the official who is withdrawing/ disavowing the
certification; and
• A copy of the certification the agency signed (if a copy was retained by the agency).
The letter should be either scanned and emailed to the Vermont Service Center at
[email protected], or mailed to:
USCIS—Vermont Service Center
ATTN: Division 6
75 Lower Welden Street
St. Albans, VT 05479
| 12
If one crime is initially investigated but a different crime is eventually prosecuted, does that have
an impact on the certification?
A law enforcement certification is valid regardless of whether the initial crime being investigated is
different from the crime that is eventually prosecuted. As long as the person is a victim of a qualifying
criminal activity, that person may be eligible for a U visa. Examples include:
An initial investigation of rape eventually leads to a charge and prosecution of sexual assault.
Both rape and sexual assault are qualifying crimes.
An initial investigation of embezzlement leads to a charge and prosecution of extortion.
While embezzlement is not a qualifying crime, the investigation eventually led to a charge of
extortion, which is a qualifying crime. If the person assisting in the investigation or
prosecution is a victim of extortion, that person may qualify for a U visa.
In the process of investigating drug trafficking allegations, police determine that the drug
trafficker’s wife is a victim of domestic violence. The victim reported the domestic abuse.
The state brings a prosecution against the husband for drug offenses but not domestic
violence crimes. The wife is cooperating in the drug prosecution. Law enforcement may
complete a Form I-918B certification for reporting the domestic abuse case that is not being
prosecuted.
Form I-918B certifications may also be submitted for crimes similar to the list of qualifying criminal
offenses. An investigation or prosecution into a charge of video voyeurism may fall under the
qualifying crime of sexual exploitation. This may be determined by state or local criminal law and the
facts and evidence in that specific case. Please note that while video voyeurism is not specifically listed
as a qualifying crime, it may be considered a type of sexual exploitation, which is a qualifying crime.
The victim would need to show how these crimes are related and present this evidence to USCIS,
along with Form I-918B certification form signed by a certifying law enforcement agency.
If the victim is a child, why would a non-citizen parent ask for a certification stating that the
parent was the victim?
In many cases where a child is the victim of a crime, the child may not be able to provide law
enforcement with adequate assistance. This may be due to the child’s age or trauma suffered, among
various other reasons. Parents of a child victim play a crucial role in detecting and reporting crimes,
providing information and assisting law enforcement in the investigation or prosecution of the crime
committed against the child. Recognizing this, an alien parent can apply to be recognized as an
“indirect victim” if the principal victim is a child under 21 years of age and is incompetent or
incapacitated to provide assistance to law enforcement in the investigation or prosecution of the crime
committed against the child or if the child is deceased due to murder or manslaughter. The
immigration status of the child victim is not relevant to this determination; Form I-918B can be
submitted for an alien parent whether or not the child is a U.S. citizen or a non-citizen.
The parent(s), in order to qualify as an “indirect victim”, must meet the remaining eligibility
requirements for a U visa to receive an approval. Therefore, the “indirect victim” parents must have
information about the crime, and must be helpful to law enforcement in the investigation or
| 13
prosecution of the crime and the crime must have occurred in the United States or violated U.S. law.
The parents will also be subject to the standard background checks (FBI fingerprint and name/DOB
check) and immigration records review as well. .
What constitutes “possesses information”?
To be eligible for a U visa, the victim of the crime must possess credible and reliable information
establishing that the victim has knowledge of the details of the criminal activity or events leading up
to the criminal activity, including specific facts about the crime/victimization leading law
enforcement to determine that the victim has assisted, is assisting, or is likely to provide assistance in
the investigation or prosecution of the crime.
If the victim was under 16 years of age or incompetent or incapacitated at the time the qualifying
crime occurred, a parent, guardian, or next friend may possess the information. A “next friend” is
defined as a person who appears in a lawsuit to act for the benefit of an alien who is under 16 or
incompetent or incapacitated. The next friend is someone dedicated to the best interests of the
individual who cannot appear on his or her own behalf because of inaccessibility, mental
incompetence, or other disability. A next friend cannot be a party to a legal proceeding involving the
victim and cannot be a court appointed guardian. A next friend also does not qualify for a U visa or
any immigration benefit simply by acting as a next friend for the victim, but he or she may possess
information about the criminal activity and may provide the required assistance.
Will USCIS approve a victim with a criminal history?
USCIS may deny a U visa petition for a variety of reasons including if the victim’s criminal history
warrants such a decision. Denials may occur in cases where a victim has multiple arrests, convictions,
or has a serious or violent criminal arrest record. USCIS will also deny a petition if the victim was
complicit or culpable in the qualifying criminal activity of which he or she claims the victimization
occurred. USCIS conducts background and security checks (FBI fingerprint check, name/DOB check,
check of immigration records) on U visa petitioners and reviews all available information concerning
arrests, immigration violations, and security issues before making a final decision.
The fact that a victim has a criminal history does not automatically preclude approval of U status.
USCIS has broad authority to waive most inadmissibility issues, including criminal issues. Each U visa
petition is evaluated on a case-by-case basis.
If law enforcement believes USCIS should know something particular about a victim’s criminal
history, that information can be cited on the certification or with an attached report or statement
detailing the victim’s criminal history with that law enforcement agency or his or her involvement in
the crime.
What are the safeguards for protecting the U visa program against fraud?
Congress and USCIS recognize that law enforcement agencies that investigate and prosecute the
qualifying criminal activities are in the best position to determine if a qualifying crime has taken place.
If, in the normal course of duties, a law enforcement agency has determined that a qualifying crime
| 14
has taken place, the victim possessed information related to the crime, and the victim has been
helpful, law enforcement may sign the U visa certification. Whether a law enforcement agency signs
the certification is under the authority of the agency conducting the investigation or prosecution. The
law enforcement certification also acts as a check against fraud and abuse, as the certification is
required in order to be eligible for a U visa.
USCIS takes fraud and abuse of the U visa program seriously. If USCIS suspects fraud in a U visa
petition, USCIS may request further evidence from the petitioner and may also reach out to the law
enforcement agency for further information. USCIS also has a dedicated unit whose sole purpose is to
target and identify fraudulent immigration applications. The Fraud Detection and National Security
(FDNS) unit of USCIS conducts investigations of cases that appear fraudulent and works with other
Federal, State, and local law enforcement agencies when fraud or abuse is discovered.
As an additional check against fraud, a U visa recipient cannot obtain a green card unless the victim
proves that he or she cooperated, when requested, with law enforcement or prosecutors. In order to
obtain a green card, if the U visa victim did not cooperate, he or she must prove to DHS’ satisfaction
that his or her refusal to cooperate was not unreasonable.
Where can my agency get additional training on U visa certifications?
Law enforcement agencies may request additional training and information by emailing USCIS at: [email protected]
Other Forms of Relief for Victims
Federal law provides additional options to assist law enforcement with providing immigration status
to victims and witnesses of crime that may or may not be eligible for the U visa. The following are
some of these resources:
T Visa
The T nonimmigrant status (or T visa) provides immigration protection to victims of severe forms of
trafficking in persons who comply with reasonable requests for assistance from law enforcement in
the investigation or prosecution of human trafficking cases. The T nonimmigrant visa allows victims
to remain in the United States to assist in the investigation or prosecution of human traffickers. Unlike
the U visa, the T visa does not require a law enforcement certification. Once T nonimmigrant status is
granted, a victim can apply for permanent residence after three years. A petitioner for a T visa must
send a completed petition (Form I-914) to USCIS. A signed I-914 Supplement B may be submitted
with the petition to verify that he or she has complied with any reasonable request by law
enforcement in the investigation or prosecution of the trafficking crime, but is not required. The
certification is one of the pieces of evidence that USCIS will consider to grant or deny a T visa.
VAWA
Recognizing that immigrant victims of domestic violence may remain in an abusive relationship
because his or her immigration status is often tied to the abuser, the Violence Against Women Act
| 15
(VAWA) in 1994 created a self-petitioning process that removes control from the abuser and allows
the victim to submit his or her own petition for permanent residence without the abuser’s knowledge
or consent. Those eligible for VAWA relief include the abused spouse or former spouse of a U.S.
citizen or Lawful Permanent Resident, the abused child of a U.S. citizen or Lawful Permanent Resident,
or the abused parent of a U.S. citizen. VAWA immigration relief applies equally to women and men.
To file for VAWA immigration relief the self-petitioner must send a completed Form I-360 along with
corroborating evidence to USCIS. A law enforcement certification is not needed in these cases.
Continued Presence
Continued Presence (CP) is a temporary immigration status provided to individuals identified by law
enforcement as victims of human trafficking who are potential witnesses in an investigation or
prosecution. Federal law enforcement officials are authorized to submit a CP application, which
should be initiated upon identification of a victim of human trafficking. CP allows victims of human
trafficking to remain in the United States during an ongoing investigation into human traffickingrelated crimes committed against them. CP is initially granted for one year and may be renewed in
one-year increments. Recipients of CP also receive work authorization. CP is authorized by ICE
Homeland Security Investigations (HSI) Law Enforcement Parole Unit and can only be sponsored by a
federal law enforcement agent.
State, local, tribal and territorial law enforcement officials who would like to request CP for human
trafficking victims are encouraged to work with the local HSI office in their area. In addition, Victim
Assistance Coordinators can assist law enforcement officials in obtaining referrals to nongovernmental victim services providers who can offer a variety of services to assist crime victims, such
as immigration legal assistance, crisis intervention, counseling, medical care, housing, job skills
training, and case management.
CP is an important tool for federal, state, and local law enforcement in their investigation of human
trafficking-related crimes. Victims of human trafficking often play a central role in building a case
against a trafficker. CP affords victims a legal means to temporarily live and work in the United States,
providing them a sense of stability and protection. These conditions improve victim cooperation with
law enforcement, which leads to more successful prosecutions and the potential to identify and rescue
more victims. Although cooperation with law enforcement is not an eligibility criterion for CP,
victims who are cooperating do receive eligibility for social service benefits through the Department
of Health and Human Services Office of Refugee Resettlement. Victims may qualify for other forms of
immigration benefits depending on their unique circumstances.
Significant Public Benefit Parole
Significant Public Benefit Parole (SPBP) may be utilized to bring an individual to serve as a witness,
defendant, or cooperating source, and if necessary in extremely limited cases, the individual’s
immediate family members, into the United States for up to one year. It must be emphasized that SPBP
will only be granted for the minimum period of time required to accomplish the requested purpose,
e.g., if a trial is 3 months long, parole will be granted for 3 months. SPBP is a temporary measure used
to allow an individual who is otherwise inadmissible to be present in the United States. SPBP does not
| 16
constitute a formal admission to the United States and confers only temporary authorization to be
present in the United States without having been admitted. Employment authorization may be
granted.
Deferred Action
Deferred Action (DA) is a discretionary decision-making authority that allows DHS to determine
which cases merit the commitment of limited resources. It is exercised on a case-by-case basis that
focus on the priorities of DHS, by targeting serious criminals and those who are a threat to public
safety, and potentially deferring action on cases with a lower priority. There is no statutory definition
of DA, but federal regulations provide a description: “[D]eferred action [is] “an act of administrative
convenience to the government which gives some cases lower priority.…” See 8 C.F.R. §
274a.12(c)(14). DHS officers, special agents, and attorneys consider every DA request individually to
decide whether; based on the totality of the circumstances, a favorable grant of deferred action is
appropriate. DA requests may, among other things, be based on humanitarian facts and a lowenforcement priority or may be based on an individual’s status as an important witness in an
investigation or prosecution. It does not provide a pathway to permanent residency.
DHS Contact Information
For more information about the U visa program and law enforcement certifications, please see:
U.S. Citizenship and Immigration Services
www.uscis.gov
www.uscis.gov/humantrafficking
To ask a question about a specific case or to rescind a signed certification:
[email protected] Please note that this e-mail address is for law enforcement
personnel only. Any e-mail sent by any person or entity that is not law enforcement to this specific e-mail address will not be
answered.
To request U visa training for your agency:
[email protected]
To ask specific policy questions about T and U visa certifications, call USCIS at (202) 272-1470.
Petitioners and their representatives may submit an inquiry regarding a specific case by emailing:
[email protected]
Citizenship and Immigration Services Ombudsman
To refer U visa petitioners who are experiencing problems that have not been able to be resolved
through DHS customer assistance avenues:
| 17
www.dhs.gov/cisombudsman
Toll Free: (855) 882-8100
Phone: (202) 357-8100
Email: [email protected]
Immigration and Customs Enforcement
If a law enforcement official is aware of a victim or witness against whom a detainer has been lodged,
who has been detained, who has been placed in removal proceedings for an immigration violation, or
who has been ordered removed, the official should promptly contact their local ICE Enforcement and
Removal Operations (ERO) contact or the local Office of the Principal Legal Advisor (OPLA) to make
ICE aware of the situation.
To contact your local ICE ERO office, please see the list of contact information here:
http://www.ice.gov/contact/ero/
To contact your local ICE OPLA office, please see the list of contact information here:
http://www.ice.gov/contact/opla/
Specifically with regard to a lodged detainer, the law enforcement official should notify the ICE Law
Enforcement Support Center:
www.ice.gov/contact/lesc/
Phone: (802) 872-6050
Email: [email protected]
LESC Computer Services Division
188 Harvest Lane
Williston, Vermont 05495
Office of Civil Rights and Civil Liberties
To refer individuals who would like to file a complaint concerning abuses of civil rights, civil liberties,
and profiling on the basis of race, ethnicity, or religion, by employees and officials of the Department
of Homeland Security:
By mail or phone:
Office for Civil Rights and Civil Liberties
U.S. Department of Homeland Security
Building 410, Mail Stop #0190
Washington, D.C. 20528
Phone: (202) 401-1474
Toll Free: (866) 644-8360
TTY: (202) 401-0470
Toll Free TTY: (866) 644-8361
Fax: (202) 401-4708
| 18
E-mail: [email protected]
Office for State and Local Law Enforcement
For information about DHS coordination with federal, state, local, territorial, and tribal law
enforcement, please contact the DHS Headquarters Office for State and Local Law Enforcement.
Phone: (202) 282-9545
Email: [email protected]
More Federal Government Resources Available:
DHS Blue Campaign, which includes links to help locate local service providers with experience with
immigrant victims of crime.
USCIS Victims of Criminal Activity: U Nonimmigrant Status
USCIS Questions and Answers: Victims of Criminal Activity, U Nonimmigrant Status
DHS Ombudsman Teleconference Recap: U Visas
October 2009 FBI Law Enforcement Bulletin: The U Visa
Immigration and Customs Enforcement Toolkit for Prosecutors
| 19
MANUAL DE
HERRAMIENTAS DE
INMIGRACION
CENTRO LEGAL, INC.
Un Despacho Jurídico Comunitario
No Lucrativo
St. Paul, Minnesota
www.centro-legal.org
651.642.1890
CARTA DE LA DIRECTORA EJECUTIVA
Estimado Amigo,
Este Manual de Herramientas de la Inmigración ha sido preparado en respuesta a la siempre
presente necesidad para la educación y el conocimiento de Derechos Civiles norteamericanos. Desde
diciembre 2006, nuestro personal y los abogados han proveído casi 24 entrenamientos a
empleadores, trabajadores, y a las comunidades a través de Minnesota, con respecto a sus derechos y
responsabilidades. Centro Legal cree tener un papel esencial para asegurar que los inmigrantes en los
Estados Unidos sean tratados con respeto y que sus derechos individuales, humanos y
constitucionales sean protegidos. Si renunciamos a esos derechos, nosotros estamos cediendo los
derechos de todos los norteamericanos. Por lo tanto, nosotros le invitamos a leer la información en
este Manual de Herramientas y a proporcionarnos información sobre cómo podemos trabajar juntos
para asegurar la protección de todos los inmigrantes en todo el país.
La misión de Centro Legal Otorgando Poder a Latinos por medio de Abogacía Legal es
una llamada clara para asistir en respuesta a los muchos desafíos y molestas circunstancias del
ambiente actual político y social. Anteriormente, nosotros como agencia nunca nos habíamos sentido
más obligados para responder a estos asuntos que afectan adversamente nuestra identidad como
norteamericanos y la salud y la seguridad de nuestras familias. Estamos muy consternados con
respecto al penetrante sentimiento anti inmigrante que ha tenido múltiples impactos negativos en
nuestra vida diaria. Según han crecido los sentimientos anti inmigrante, también así han aumentado
los números de casos de discriminación de vivienda y empleo, abuso en el lugar de trabajo, de
prestamos falsos, y de violaciones de los derechos humanos y civiles. Con relación a la oleada anti
inmigrante, aumentan los esfuerzos por parte de los Agentes de Inmigración y Aduana (ICE) EEUU.
para sacar de este país a inmigrantes indocumentados con poca consideración de sus derechos civiles
y humanos. Esta situación esta causando un temor paralizante e impacta negativamente a la
comunidad Latina.
Por lo tanto, nosotros hemos aplicado varias iniciativas para contradecir el sentimiento anti
inmigrante y sus consecuencias devastadoras, incluyendo este Manual de Herramientas de
Inmigración. Es mi sincera esperanza que este Manual de Herramientas sea utilizado para educar a
los inmigrantes de sus derechos y responsabilidades cuando sean confrontados por funcionarios
locales, estatales o federales y que también proporcione a facultativos y socios del interés público con
recursos a organizaciones y agencias que son afines e igualmente interesados en asegurar la
protección de inmigrantes.
Mientras tanto, Centro Legal continuará responsabilizando a ICE por su comportamiento
en las redadas de Worthington y Willmar. Y continuaremos forjando fuertes relaciones con
funcionarios de la ciudad, agentes de la ley y de nuestra comunidad. El éxito de nuestro trabajo
depende de las relaciones estrechas que hemos construido en la comunidad localmente y
nacionalmente, con nuestros clientes, con los contribuyentes, con los socios comunitarios, y con los
voluntarios. Quiero personalmente dar gracias a los abogados del Centro Nacional de la Ley de
Inmigrante (NILC) en Los Ángeles, California por sus recursos y la información que ellos han
preparado generosamente para el beneficio de educar a los inmigrantes con respecto a sus derechos.
También le quiero agradecerle a usted por su apoyo y espero en un futuro poder trabajar
juntos para asegurar un futuro prometedor para los Latinos y todos los inmigrantes de este país.
Sincerely,
Gloria Contreras Edin
Attorney at Law
Executive Director
-1-
INMIGRANTES Y LA CONSTITUCION EE.UU.
La Constitución de los Estados Unidos protege a todos los que están presentes en el país, sin
importar su estado inmigratorio. Sin embargo, en diciembre del 2006, los Agentes de Aduana
e Inmigración (ICE) sacudieron América violando los derechos constitucionales de ambos
inmigrantes y no-inmigrantes. Con el pretexto de prevenir el robo de identidad funcionarios
de ICE tomaron seis compañías empacadoras de carne de la compañía Swift & Co y cerraron
las instalaciones mientras interrogaban a empleados demandando prueba de su estado
inmigratorio. Más de 1.200 inmigrantes legales e ilegales fueron detenidos por todo el país,
haciendo esta la redada inmigratoria más grande en la historia1 de EE.UU. Las redadas
dejaron familias inmigrantes asustadas y vulnerables por todas partes del país.
Los Minesotanos fueron afectados personalmente por los acontecimientos de diciembre 2006.
Los funcionarios del ICE invadieron la compañía empacadora de carne Swift en
Worthington, Minnesota y detuvieron cerca de 230 trabajadores. La redada dejó a la
comunidad multi-racial de Worthington confundida tratando de encontrar respuestas al caos
creado por ICE. A pesar de la confusión y el temor que corrieron por Worthington,
funcionarios de ciudad, policías, abogados y lideres de la comunidad de todas partes de
Minnesota reunieron los recursos en apoyo a sus vecinos, tanto documentados e
indocumentados, y mostró a la nación cómo la injusticia hacia un miembro de la comunidad
es una injusticia hacia todos los miembros de la comunidad.
Los inmigrantes son una parte permanente de la infraestructura política, económica y social
de Minnesota y el trato injusto de un grupo inmigrante tiene efectos perjudiciales en la
comunidad entera. Según La Oficina del Censo de los EE.UU., un estimado de 33.5 millones
de individuos nacidos2 en el extranjero viven en los EE.UU., lo que significa que individuos
nacidos en el extranjero hacen el 11.7 por ciento de la población de EE.UU. La mayoría de
los individuos nacidos en el extranjero son de Íbero América (53%) y Asia (25%).3 En el
Medio oeste, un estimado del 11.3 por ciento de la población son individuos nacidos en el
extranjero.4 En Minnesota, los inmigrantes componen el 5 por ciento de la población,
representando más de 160 países. Los Latinos y asiáticos del sudeste representan las dos
comunidades de inmigrantes más grandes en el estado, pero hay también un número
significativo de Africanos Orientales y rusos.5 Y pronto, puede haber un número creciente de
inmigrantes Birmanos en esta área dependiendo de nuevos esfuerzos de re colonización.6 A
consecuencia del número prominente de inmigrantes en nuestro estado, los funcionarios
políticos, las organizaciones de la comunidad, y defensores legales no pueden ignorar ni
1
Julia Preston, Immigrants’ Families Figuring out What to do after Federal Raids, December 16, 2006,
available at http://www.nytimes.com/2006/12/16/Washington/16immig.html.
Dianne Solis, ID Theft Charges Mount in Swift Immigration Raids, The Dallas Morning News, Dec. 15,
2006, available at http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DNindict_15tex.ART.State.Edition1.3e4ef8a.html.
2
Foreign born is defined by the US Census as individuals born outside of the United States, including both
naturalized US citizens and those who are not citizens of the US.
3
U.S. Census Bureau, Census 2000, Profile of General Demographic Characteristics: 2000, Minnesota,
available at http://censtats.census.gov/data/MN/04027.pdf.
4
U.S. Census Bureau, Census 2000, Profile of General Demographic Characteristics: 2000, Minnesota,
available at http://censtats.census.gov/data/MN/04027.pdf.
5
Barbara J. Ronningen, Estimates of Selected Immigrant Populations in Minnesota: 2004, MINNESOTA
STATE DEMOGRAPHIC CENTER, June 2004.
6
Barbara J. Ronningen, Estimates of Selected Immigrant Populations in Minnesota: 2004, MINNESOTA
STATE DEMOGRAPHIC CENTER, June 2004.
-2-
aprobar la injusticia cometida contra nuestros hermanos y hermanas inmigrantes. La
respuesta a esta injusticia es el Manual de Herramientas Derechos de Inmigrantes de Centro
Legal.
Esperamos que el Manual de Herramientas Derechos de Inmigrantes pueda ayudar a todos
los Americanos, no-ciudadanos y ciudadanos, ha aprender sobre nuestros derechos
constitucionales básicos y las protecciones que la Constitución proporciona a todos los
residentes de EE.UU.
-3-
PALABRAS IMPORTANTES A SABER
Orden de Detención – Una orden de
arresto es un papel firmado por un juez
que da a la policía autoridad para detener
a una persona y llevar a la persona a la
cárcel basada en una causa probable de
que la persona cometió un crimen.
Solicitante de Asilo – Una persona que
ha dejado su patria y busca estado legal
en un nuevo país a causa de la
persecución o un temor bien
fundamentado de la persecución basada
en la raza, la religión, el origen nacional,
el grupo social o la opinión política.
Ciudadano – Una persona que debe
lealtad al gobierno de EE.UU. Una
persona es un ciudadano de EE.UU. si la
persona nació en los Estados Unidos o si
la persona tiene padres o abuelos que
nacieron en los Estados Unidos.
También, una persona puede llegar a ser
un ciudadano por medio de la
naturalización
Deportación – Cuándo una persona es
ordenada legalmente ha ser sacada de los
Estados Unidos. Algunas deportaciones,
llamadas "Expulsión Rápida", ocurren
cuando una persona esta tratando entrar
a los EE.UU.
Delito Grave – Un crimen que puede
llevar una sentencia en la prisión estatal
de 1 año o más años; los ejemplos de un
crimen grave son la posesiones de un
arma peligrosa, rapto o robo.
Tarjeta de Residencia – Un nombre
común que demuestra que a una persona
se le ha proporcionado el estado de
"residente permanente legal".
ICE – Esta es la abreviación para la
Oficina de Inmigración y Aduana, el
brazo investigativo y el orden publico
del Departamento de la Seguridad de la
Nación.
Orden de Detención de ICE - Una
autorización administrativa que sólo
contiene el nombre de una persona y no
da permiso ha ICE de registrar su hogar.
Inmigrante – Una persona que sale de
su país con la intención de establecer
residencia en otro país.
Residente Permanente Legal – Una
persona que ha sido otorgada el derecho
de vivir en los Estados Unidos. Sin
embargo, este estado puede ser retirado
por ciertas infracciones de la ley o si se
descubre que la persona abandono este
estado quedándose fuera de los EE.UU.
por un espacio de tiempo prolongado.
Después de cinco años, un residente
permanente legal puede aplicar para
hacerse un ciudadano de los EE.UU. por
medio de la naturalización.
Delito Menor – Un crimen que puede
llevar una sentencia de hasta un 1 año en
la cárcel del condado y/o hasta $1000 en
multas. Los ejemplos de un crimen de
delito menor son robos menores / hurto,
manejar bajo la influencia (DUI), o
manejar con una licencia suspendida.
Los delitos menores son menos que los
delitos graves.
No-inmigrante – Una persona que está
en los Estados Unidos legalmente pero
sólo es permitida a estar en los EE.UU.
por un espacio de tiempo corto, tales
como turistas y estudiantes
internacionales.
Refugiado – Una persona que no puede
quedarse en su patria a causa de la
persecución o un temor bien
fundamentado de la persecución basada
-4-
en la raza, religión, origen nacional,
grupo social u opinión política que ha
sido traído a los EE.UU. por el gobierno
de EE.UU.
Proceso de Expulsión - Un proceso del
tribunal de inmigración que determina si
una persona será permitida ha
permanecer en los EE.UU.
Orden de Registro – Una orden de
registro es un papel firmado por un juez
que da permiso a la policía para entrar a
su casa. La orden debe indicar su
dirección, los lugares en los que el
oficial puede buscar, y lo que el oficial
busca para tomar como evidencia.
Persona Indocumentada – Una persona
que entró a los Estados Unidos sin
inspección; una persona que se ha
quedado mas tiempo del que su visa
indica, o una persona con una orden
vieja de deportación, también conocida
como una "orden de fugitivo".
Salida Voluntaria – Una orden
(generalmente otorgada por un Juez de
Inmigración) permitiendo a una persona
ha salir de los EE.UU. voluntariamente
en vez de ser sacada. Si la persona no
sale de los EE.UU. dentro del tiempo
otorgado, la salida voluntaria se
convierte en una orden de la expulsión.
-5-
DERECHOS DEL INMIGRANTE: LO BASICO
Los residentes inmigrantes e indocumentados están protegidos por la Constitución de los
Estados Unidos. Todos los individuos que viven en los EE.UU. tienen los siguientes
derechos:
 El Derecho a Permanecer Callado
 El Derecho a un Abogado
 El Derecho Contra Registros y Confiscaciones Ilegales
UNO: El Derecho a Permanecer Callado7
 Si un oficial de inmigración o policía quiere hablar con usted, usted puede decirle
a esa persona que usted tiene el derecho a permanecer callado.
 Usted tiene el derecho a rehusarse a contestar las preguntas del oficial.
 Si el oficial de policía no le deja de molestar, muéstrele al oficial su tarjeta
“¡Conozca Sus Derechos!”8 o dígale que necesita hablar con un abogado.
 Si usted invoca este derecho, usted deberá permanecer callado.
 Recuerde que lo que usted diga puede ser utilizado en su contra por la policía.
 Recuerde que la policía no tiene que decirle la verdad.
 ¡NO Mienta! No provea información falsa a inmigración o a la policía.
 Importante: En algunos estados es un crimen menor si usted no provee su
nombre a la policía.
Si usted es indocumentado, tenga cuidado.9
 No provea ninguna información sobre usted.
 No traiga con usted documentos de otro país. Si usted los trae con usted, el
gobierno puede utilizar esta información en un procedimiento de deportación.
 No provea documentación falsa.
 No mienta con respecto a ser ciudadano por que esto le puede prevenir
permanentemente de entrar a los EE.UU. legalmente.
DOS: El Derecho a un Abogado
 Si un oficial de inmigración o policía quiere hablar con usted, dígale que primero
quiere hablar con un abogado.
 Usted tiene el derecho de consultar con un abogado antes de hablar con un oficial
de inmigración o policía.
7
Warning! Protect Yourself From Immigration Raids! (CASA of Md, Detention Watch Network, Nat’l
Immigration Project of the Nat’l Lawyer’s Guild, Silver Spring, Maryland), March 2007. Much of the
material from this section was adopted from this booklet.
8
“Know Your Rights” cards in the appendix.
-6-
 Si el oficial continua haciéndole preguntas, usted puede decirle al oficial que
usted tiene el derecho de permanecer callado y muéstrele al oficial su tarjeta
“¡Conozca Sus Derechos!”.
TRES: El Derecho Contra Registros y Confiscaciones Ilegales
En Casa…
 Un oficial de inmigración o policía no tiene el derecho a entrar en su hogar o
lugar privado sin su consentimiento, a menos que el oficial tenga una orden.
 Si el oficial de policía tiene una orden, el oficial no necesita su permiso para
entrar a su casa o lugar privado, pero usted debería leer la orden primero.
 Una orden de registro es un papel firmado por un juez dándole permiso al oficial
de policía permiso para entrar a su casa. La orden debe mencionar su dirección,
los sitios que el oficial puede registrar y lo que el oficial esta buscando. Si la
orden no tiene la dirección correcta, el oficial no tiene derecho a registrar su hogar
y usted se puede rehusar a dejar que el oficial entre a su casa.
 La orden de arresto de ICE es una orden administrativa que solamente contiene el
nombre de una persona y no le da permiso a ICE para registrar su hogar. ¡LEA
LA ORDEN CUIDADOSAMENTE! Esto puede protegerle de un registro ilegal
de su hogar.
 Si el oficial de policía no puede mostrarle una orden, no abra la puerta.
 Usted tiene el derecho de rehusarse a dejar entrar en su hogar al oficial.
 Si usted abre la puerta, el oficial puede pensar que usted esta de acuerdo en dejar
al oficial que registre su casa y que interrogue a cualquier persona que se
encuentre dentro.
En el Trabajo…
 El oficial de inmigración o policía no tiene derecho de entrar a su lugar de trabajo,
a menos que el oficial tenga una orden o el permiso de su empleador.
 Su empleador debe leer la orden y asegurarse que el oficial tenga legalmente
autoridad para entrar.
 Si el oficial no tiene una orden, el empleador tiene derecho de pedirle al oficial
que se vaya.
 Si usted trabaja en un lugar publico, el oficial de la policía no necesita una orden.
En un lugar publico…
 Un oficial de inmigración o policía puede acercarse a usted y preguntarle su
nombre y pedirle una identificación.
 Si usted piensa que su nombre o identificación pueden revelar su estado legal, no
le diga su nombre o identificación al oficial.
-7-
 No cargue con usted documentos con su estado inmigratorio o lugar de
nacimiento.
 ¡No mienta! ¡Usted nunca debe mentirle a un oficial de inmigración o policía,
pero usted puede permanecer callado!
 Recuerde utilizar su tarjeta “¡Conozca Sus Derechos!”
INMIGRANTES Y OFICIALES DEL ORDEN PUBLICO
COMO INTERACTUAR CON OFICIALES DE LA POLICIA O
INMIGRACION10
 ¡Recuerde sus derechos constitucionales!
 Usted tiene el derecho a permanecer callado.
 Usted tiene el derecho a un abogado.
 Usted tiene el derecho contra registros y confiscaciones ilegales.
 Sin embargo, usted debe ser educado y respetuoso mientras hace valer sus
derechos. Usted simplemente puede mostrarles su tarjeta “¡Conozca Sus
Derechos!”
 No se ponga a discutir con la policía. No deje que la policía lo haga enojar.
 Nunca insulte a un oficial de la policía u oficial de inmigración.
 Manténgase tranquilo.
 No corra.
 No toque a un oficial de la policía u oficial de inmigración.
 No se resista al arresto, pero recuerde de pedir un abogado y permanecer callado.
 Si usted es arrestado, recuerde de anotar el número de la placa de policía del
oficial y numero de placa del auto. Esta información le ayudara a su familia y al
abogado a ayudarle a usted.
Si usted siente que sus derechos han sido violados mientras en custodia de la policía,
haga un reclamo formal con la División de Asuntos Internos del Departamento de la
policía o con la Junta de Reclamos Civiles.
Si usted es arrestado por la policía…
 Esto quiere decir que a usted se le han hecho cargos por un crimen.
 Cualquier cosa que usted diga a la policía puede ser utilizado en su contra en
corte. Permanezca callado.
 Cualquier cosa que su familia diga a la policía también puede ser utilizado en su
contra. Dígales que permanezcan callados.
 Dígale a la policía que quiere hablar inmediatamente con un abogado.
10
Twin Cities Immigrant Orientation Resources, HENNEPIN COUNTY LIBRARY SUBJECT GUIDES, at
http://www.hclib.org/pub/search/Immigration.cfm#minnesota.
-8-
 NO firme ningún documento hasta que usted hable con un abogado.
Usted tiene el derecho de hacer una llamada telefónica…
 Llame a su abogado o llame a un familiar y déle la siguiente información.
o El nombre de los oficiales y su agencia respectiva (Departamento de
policía, FBI, ICE), junto con sus números de identificación y numero de
placa. Usted puede encontrar esta información en su etiqueta con su
nombre o en su carro.
INMIGRANTES Y EL SISTEMA JUDICIAL
ENTENDIMIENTO DE LA CORTE CRIMINAL Y LA CORTE DE
INMIGRACION
Es importante entender que estas do cortes tratan diferentes asuntos legales. Aquellos
individuos que se encuentran en una Corte Criminal tienen más derechos legales que
aquellos que están en una Corte de Inmigración. Si usted no es un ciudadano y ha sido
arrestado, probablemente usted tendrá que ir a la corte criminal y a la corte de
inmigración.
Corte Criminal
Una persona, sin importar su estado inmigratorio, va a la corte criminal si ha esta persona
se le hacen cargos por haber cometido un crimen. El estado en el cual vive la persona
hace formalmente los cargos de delito menor o delito grave. Un delito menor es un
crimen con un castigo menor de 1 año en prisión. Un delito grave es un crimen serio con
una sentencia en prisión de 1 año o más.
 Cualquier persona que es arrestada debe tener cargos por un crimen en una corte
criminal dentro de 48 horas, sin incluir días festivos y fines de semana.
 Si usted no tiene cargos por un crimen dentro de 48 horas, usted debe ser puesto
en libertad de la cárcel.
 Si a usted se le hacen cargos por un crimen, dependiendo de la seriedad del
crimen, usted puede pedir una fianza. Si el juez le otorga la fianza y usted la
puede pagar, usted puede ser puesto en libertad. Sin embargo, si a usted se le
otorga una fianza, esto no quiere decir que su caso criminal esta cerrado. Usted
aun necesita regresar a la corte para una audiencia preliminar y después un juicio.
 IMPORTANTE: Si usted no es un ciudadano, ICE puede transferirle a custodia
de inmigración AUN Y CUANDO usted haya pagado su fianza por los cargos
criminales. Por lo tanto, talvez no sea buena idea pagar una fianza por sus cargos
criminales ya que usted aun puede permanecer en custodia.
-9-
 Si ha usted se le hacen cargos criminales por un delito menor o un delito grave,
usted tiene derecho a un abogado gratis, si usted califica económicamente.
 Asegúrese de tener un abogado que entienda de que manera su caso
criminal puede afectar su estado inmigratorio.
 Aun y cuando usted tenga un defensor de oficio, usted debe decirle a esta
persona su estado inmigratorio y pedirle que consulte con abogados
locales de inmigración.
 Dependiendo en el resultado de su caso criminal, usted puede perded su
derecho a permanecer en este país.
 No hable con un oficial sin un abogado. Cualquier cosa que usted diga puede ser
utilizado en su contra.
 No le de ninguna información a la policía con respecto a su estado inmigratorio.
 No firme ningún documento sin que este presente su abogado.
 Si usted no entiende el Ingles, pida un intérprete. No confié en el intérprete. El
interprete solo esta ahí para traducir.
Corte de Inmigración
El Departamento de Justicia de los Estados Unidos tiene autoridad sobre las Cortes de
Inmigración. Cualquier persona con un asunto inmigratorio debe presentarse ante un
Juez de Inmigración. La Oficina de Detención de Inmigración y Aduana (ICE) y
Expulsión bajo el Departamento de Seguridad Nacional presenta procedimientos en
contra de usted y el caso es traído ante un Juez de Inmigración. ICE puede comenzar
procedimientos en contra de usted en cualquier momento si usted esta en los EE.UU.
ilegalmente. Sin embargo, ICE, es alertado de su estado inmigratorio cuando usted tiene
un caso criminal pendiente.
¿SABIA USTED?
De acuerdo con el
Departamento de Justicia de los
EE.UU., 80% de sus casos
tratan con procedimientos de
expulsión.
 Si usted no es un ciudadano y ha terminado sus asuntos
en la Corte Criminal, los Servicios de Inmigración o
ICE pueden poner una “detención” en su contra y
retenerlo por otras 48 horas.
 Si ICE no lo recoge dentro de ese tiempo, usted debe
ser puesto en libertad.
 Si usted no es liberado, usted debe contactar a un abogado u organización comunitaria
para que le ayuden a ser liberado de la custodia policíaca. Ellos pueden escribir una carta
de exigencia ha la policía o sheriff.
- 10 -
INMIGRANTES Y EL PROCEDIMIENTO DE EXPULSION
PROCEDIMIENTOS DE DEPORTACION Y EXPULSION EN LA CORTE DE
INMIGRACION11
La mayoría de los casos ante un Juez de Inmigración tienen que ver con procedimientos
de deportación o expulsión. Cuando usted esta en detención, usted estará en custodia de
ICE.
Que sucede cuando ICE lo recoge…
 Usted será puesto en una celda o en una estación temporal de proceso o en un
centro de detención, donde usted será entrevistado y se le tomaran la huellas de
los dedos.
 Usted tiene derecho de hacer una llamada telefónica. Memorizece el numero
telefónico de su abogado, familiar, o amigo y contáctele inmediatamente.
 Sus llamadas telefónicas pueden estar bloqueadas. Si usted tiene problemas para
contactar a su familiar o abogado, pregunte a los trabajadores de la cárcel si ellos
bloquearon el número.
 Cada centro de detención que retiene detenidos de ICE debe proveer una lista de
servicios legales gratuitos disponibles en el área, números telefónicos actuales, y
acceso gratuito a un teléfono para hacer esas llamadas.
 A usted se le va asignar un oficial de deportación. Escriba el nombre y número
del oficial de deportación asignado a su caso.
 Su oficial de deportación deberá entregarle a usted un documento llamado
“Notificación para Comparecer" (Notice to Appear) o “NTA”. Este documento
contiene los cargos inmigratorios que se hicieron en su contra. Este documento le
ayudara a su abogado a entender su caso e informarle a usted cuando se llevara a
cabo su primera audiencia en la Corte de Inmigración.
¿Sabe usted su “numero A”?
 Asegúrese de llevar con usted en todo momento su “numero A” o su numero de
registro de extranjero, el cual empieza con una A y es seguido de 9 números.
¡Memorícelo!
 La mayoría de los números A de 9 dígitos empiezan con un cero. Si su número A
solo contiene 8 números, esto quiere decir que usted automáticamente debe poner
un “0” en frente de los ocho números.
11
I Am In Immigration Detention…What Are My Rights?, (Nat’l Immigration Project of the Nat’l Lawyers
Guild, Detention Watch Network, Washington D.C.) at
http://detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/KYR%20Detention.pdf. Much of
the materials from this section was adopted from the above source. For more information on detention
issues go to Detention Watch Network, www.detentionwatchnetwork.org.
- 11 -
 Si usted no tiene un numero A, a usted se le asignara uno cuando sea procesado
en el centro de detención y usted puede pedirle este numero inmediatamente al
oficial de deportación. ¡Memorícelo tan pronto y obtenga el número!
 Su numero A le ayudara a su abogado y familiares a encontrarle a usted en el
sistema inmigratorio.
Como puede encontrarlo su familia…
 Contacte la oficina local de Detención y Expulsión de Inmigración y Aduanas en
el área.
 Contacte la oficina central de ICE al 202-305-2734 si usted no sabe el numero de
la oficina de deportación.
 Esta información también se encuentra en el Internet:
http://www.ice.gov/about/dro/contact.htm.
 Su familia debe tener listo su nombre completo y su numero A.
 ¡Dígale a sus familiares indocumentados que no le visiten en el centro de
detención!
Como puede usted encontrar un abogado de inmigración…
 Usted tiene derecho a un abogado de inmigración antes de hablar con un Juez de
Inmigración.
 Usted DEBE PAGAR por un abogado de inmigración. Usted NO tiene derecho a
servicios legales gratuitos aun y cuando usted sea indigente.
 Si usted no puede pagar un abogado, pídale al oficial de deportación una lista de
proveedores de servicios legales gratuitos en el área.
 Asegúrese de contratar un abogado que se especialize en deportación.
 ¡No se deje engañar por personas que solamente están detrás de su dinero!
 Solicite un contrato escrito de su abogado, este documento es llamado
“acuerdo de representación”.
 Siempre mantenga con usted en todo momento el nombre e información
de contacto de su abogado.
 Usted siempre debería documentar toda comunicación con su abogado.
 Usted siempre debería pedir a su abogado que le haga copias a todos los
documentos que abogado dice estar sometiendo a la corte.
 Si usted no esta contento con su abogado, usted puede realizar una queja.
 Usted también tiene el derecho de auto representarse a si mismo en la
eventualidad de que usted no pueda contratar un abogado.
Que puede usted hacer si lo están transfiriendo a un nuevo centro de detención…
 Pídale a su abogado que someta una G-2812 con el Departamento de Seguridad
Nacional. Este documento le muestra al gobierno que usted tiene un abogado en
12
A copy of G-28 Form is in the appendix.
- 12 -
el área y por lo tanto necesita permanecer en el área para tener acceso a su
abogado.
 Envié inmediatamente una copia por Fax al oficial de deportación.
 Esta forma puede convencer al oficial de que pare su transferencia.
 Asegúrese de tener con usted en todo momento todos sus documentos legales en
caso de que usted sea trasladado a una instalación diferente.
Como se puede salir del centro de detención…
 ¡SOLICITE UNA AUDIENCIA PARA FIANZA!
 Una audiencia para fianza le da la oportunidad de mostrarle al juez de
inmigración que usted no representa un riesgo, no es un riesgo para la seguridad
nacional o que no representa un riesgo de fuga.
 Usted debe presentar evidencia que demuestre que usted tiene una dirección
permanente, un empleo estable, familiares con estado legal en los Estados Unidos,
y cualquier evidencia que muestre que usted tiene Fuertes lazos con la
comunidad.
 Usted debe pedirle a sus familiares y amigos que asistan a la audiencia para
testificar con respecto estos temas o ellos pueden escribir cartas de apoyo.
¿Que es una fianza?
 Una fianza es una determinada cantidad de dinero que se le paga al gobierno
como garantía de que usted asistirá a todas la audiencias y que acatara la orden
final de juez.
 Usted debe pagar el monto total.
 La fianza de ser pagada por medio de un cheque bancario de un banco de los
EE.UU. o un giro postal de una Oficinal Postal de los EE.UU. a nombre del
“Departamento de Seguridad Nacional”.
 La persona que pague la fianza debe tener estado legal y una identificación.
 La fianza se puede pagar en cualquier oficina de ICE.
Puede que usted no califique para una fianza si…
¡Información Importante para Recordar!
 usted tiene una orden de deportación
previa.
 usted tiene ciertas condenas criminales.
 usted fue arrestado en la frontera o
aeropuerto o si usted es sospechoso de
tener vínculos terroristas.
1. Memorice su numero A de 9 dígitos.
2. Memorice el número telefónico de su abogado o
familiar.
3. Recuerde solicitar su “Notificación para
Comparecer”.
4. ¡Recuerde solicitar una Audiencia para Fianza!
5. Recuerde que tiene derecho a un intérprete.
Solicite un intérprete si usted no habla ingles.
- 13 -
AUDIENCIAS EN LA CORTE DE INMIGRACION
Una vez que usted este en procedimientos de salida y usted a recibido su Notificación
para Comparecer (NTA), usted se presentara ante un Juez de Inmigración mediante una
audiencia del Calendario General.
¿Que es una audiencia del Calendario General?
 Una breve audiencia ante un juez de inmigración.
 Usted puede pedirle al juez que posponga o “continué” la audiencia para otra
fecha para darle tiempo de encontrar un abogado. Usualmente se le dará una
nueva audiencia del Calendario General.
 Si usted es forzado a proceder sin un abogado, niegue todos los cargos. Esto
forzara al gobierno a que pruebe los cargos que se le han hecho a usted.
 Usted nunca debe aceptar ningún cargo sin antes hablar con un abogado
sobre sus opciones.
 A usted se le puede pedir que firme un documento llamado “salida voluntaria” o
una “deportación voluntaria”. Si usted firma este documento, usted esta
acordando salir de los Estados Unidos y no regresar. Si usted regresa, usted
nunca tendrá manera de permanecer en los Estados Unidos legalmente.
 No firme ningún documento sin antes consultar primeramente a un
abogado.
 Si usted quiere aplicar para otra manera de permanecer en los Estados Unidos,
usted tendrá una audiencia por separado llamada audiencia “Individual”.
¿Que es una audiencia Individual?
 Una audiencia donde el juez le otorga una oportunidad de presentar su caso para
permanecer legalmente en los Estados Unidos.
 Usted debe presentar tanta evidencia como le sea posible para persuadir al juez.
Usted debería traer toda documentación relevante y testigos para testificar en la
audiencia.
 El juez solamente le otorgara una audiencia Individual si el juez considera que
usted puede ser elegible para algún tipo de alivio, tal como un asilo,
Convención Contra Tortura, Visa U, etc.
TIPOS DE ALIVIO EN PROCEDIMIENTOS DE EXPULSION
Cuando se encuentra que una persona es expulsable de los Estados Unidos, algunos
individuos, dependiendo de su situación, pueden aplicar par varios tipos de alivio o una
manera para permanecer en los EE.UU. La ley de Inmigración es muy complicada,
especialmente cuando se trata de determinar la elegibilidad para varios tipos de alivio,
por lo tanto, a continuación hay una breve descripción de los tipos de alivio disponibles
para individuos que se encuentran en procedimientos de expulsión. Es importante
- 14 -
hablar con un abogado de inmigración para explorar todas las opciones disponibles
para un individuo en expulsión.
ASILO13
¿Sabia Usted?
 Si usted tiene temor de regresar a su país de
origen por miedo de persecución, usted debería
aplicar para asilo.
 Usted puede permanecer en los Estados Unidos
si usted le puede comprobar al juez de
inmigración que usted tiene un temor bien
fundamentado de persecución basado en raza,
religión, nacionalidad, grupo social u opinión
política.
 Usted debe aplicar para asilo dentro de 1 ano
de haber llegado a los Estados Unidos. Si a
usted se le pasa la fecha límite, usted ya no
podrá calificar para un asilo, pero usted aun
puede utilizar esta forma para aplicar para un
Aplazamiento de Expulsión.
 Si usted califica como un exiliado,
eventualmente usted puede hacerse un ciudadano de los EE.UU.
 Usted necesitara archivar un I-589, Aplicación para Asilo y
Aplazamiento de Expulsión.
Desde 1995, el número de
solicitaciones de asilo
archivadas han disminuido por
un 78%. En 1994, más de
120,000 solicitaciones para asilo
fueron sometidas pero en el
2004, menos de 30,000
solicitaciones fueron sometidas.
El índice de casos de asilo
otorgados después del 11 de
Septiembre del 2001 disminuyo
significantemente. En el 2001,
43% de los casos de asilo fueron
aprobados pero en el 2003, el
número de casos aprobados
disminuyo al 29% solamente.
CONVENCIÓN CONTRA LA TORTURA
 Si usted tiene miedo de regresar a su país de origen por temor de ser
torturado, usted debería aplicar para este remedio.
 Usted necesita comprobar que usted “muy probablemente” enfrentara la
tortura cuando usted regrese a su país de origen.
 Usted debe aplicar para esto si a usted se le paso la fecha limite de 1 ano
para la aplicación de asilo.
 Si usted califica para permanecer en los EE.UU. bajo la Convención
Contra la Tortura, usted no podrá hacerse ciudadano.
 Usted necesitara someter una I-589, Aplicación para Asilo y
Aplazamiento.
13
The facts from “Did You Know?” are from, Asylum: Safety & Freedom in America Report, HUMAN
RIGHTS FIRST (New York, NY), at www.humanrightsfirst.org/asylum/101/overview-052305.pdf.
- 15 -
¿SABIA USTED?
Cada año 800,000 personas
son comercializadas a través
de fronteras nacionales y
aproximadamente 80% de
las victimas transnacionales
son mujeres y niñas. Aun
mas inquietante es que hasta
el 50% son niños menores
de edad.
Los Estados Unidos
proveen servicios sólidos de
protección a victimas. En el
2006, el Departamento de
Seguridad Nacional otorgo
192 visas T a extranjeros
sobrevivientes del tráfico
humano.
ESTADO ESPECIAL DE INMIGRANTE JUVENIL14
 Si usted es un menor bajo la jurisdicción de una
corte juvenil quien se “estima ser elegible para
cuidado de albergue a largo tiempo,” usted puede
obtener un estado de inmigrante juvenil especial.
 Esto quiere decir que si la corte ha encontrado
que la reunificación de la familia no es una
opción viable, usted ira a un albergue de cuidado,
adopción o tutor.
 Usted debe someter dos aplicaciones al mismo
tiempo: 1) Estado de Inmigrante Juvenil Especial
o la Forma I-360 y 2) Ajuste de Estado o la
Forma I-485.
 Este remedio será tratado más en la sección de
“Menores Inmigrantes”.
VISA U
 Si usted a sufrido abuso físico o mental substancial por ser victima de una
actividad criminal, incluyendo violencia domestica, y usted a sido de
ayuda o esta ayudando con la investigación o el juicio del crimen, usted es
elegible para aplicar para una Visa U.
 Usted será requerido a obtener una certificación de un oficial federal,
estatal o local calificado para confirmar su participación en la
investigación de un crimen.
 La Visa U provee a inmigrantes elegibles autorización para permanecer en
los Estados Unidos y para trabajar. Los poseedores de una Visa U pueden
ser elegibles para aplicar para la residencia permanente después de tres
años.
 Someta la Forma 918, Petición para Estado No-inmigrante U.
VISA T
 Si usted ha sido una victima de tráfico humano, entonces usted debe
aplicar para una Visa T.
 Usted debe poder probar que usted fue victima de una “forma severa de
tráfico de personas” y asistir a oficiales del gobierno a enjuiciar a estos
traficantes de humanos.
14
For more information on Special Immigrant Juvenile Status go to www.ilrc.org or call the Immigrant
Resource Center at 415-255-9499.
- 16 -
 La victimas del trafico humano fueron traídas a este país en contra de su
voluntad, o fueron retenidas y forzadas a trabajar una vez que llegaron a
los EE.UU.
 Bajo esta visa, usted puede ser elegible para beneficios, incluyendo alivio
inmigratorio, servicios sociales, y acceso a programas de beneficios para
refugiados.
 Someta la Forma I-914, Aplicación para Estado No-inmigrante T.
ACTA DE VIOLENCIA CONTRA LA MUJER (VAWA)
 Si usted es un inmigrante que esta siendo abusado por esposo, padre o hijo
ciudadano o residente permanente, usted debería aplicar para una petición
de VAWA.
 Usted debe poder comprobar que usted entro en un matrimonio o relación
de buena fe con un padre o esposo ciudadano o residente permanente
legal.
 Usted también debe comprobar que esta persona le sometió a una
“crueldad extrema”.
 Este remedio esta disponible para hombres, mujeres, menores o adultos,
siempre y cuando el inmigrante abusado haya estado en una relación con
un ciudadano o residente permanente legal.
 Hay más información sobre VAWA en la sección de “Mujeres
Inmigrantes” de este manual de herramientas.
CANCELACIÓN DE EXPULSION – RESIDENTE PERMANENTE LEGAL
 Si usted es un residente permanente legal en procedimiento de expulsión,
usted puede permanecer en los EE.UU. si usted califica para la
Cancelación de Expulsión.
 Para ser elegible para la Cancelación de Expulsión, usted debe comprobar
que:
1) Usted ha sido un Residente Permanente Legal por 5 años;
2) Usted ha vivido continuamente en los EE.UU. por lo menos 7 años
después de haber sido admitido legalmente a los EE.UU.;
3) Usted no a sido condenado por un “Delito Grave” según esta
definido en la ley de Inmigración.
 Someta la Forma EOIR-42A
- 17 -
CANCELACIÓN DE EXPULSIÓN Y AJUSTE DE ESTADO PARA
RESIDENTES NO-PERMANENTES
 Si usted es un residente no-inmigrante, usted también puede ser elegible
para la Cancelación de Expulsión pero la ley requiere más de un residente
no-inmigrante.
 Para se elegible para Cancelación de Expulsión para un residente noinmigrante, usted debe comprobar que:
1) Usted ha vivido continuamente en los EE.UU. por lo menos 10
años;
2) Usted ha sido una persona de buen carácter moral durante su
presencia en los EE.UU.;
3) Usted no a sido condenado de un Delito Grave; y
4) Usted debe demostrar que su expulsión de los EE.UU. resultaría en
un “apuro excepcional y extremadamente inusual” para sus
familiares inmediatos. La ley es muy limitada en la definición de
“familiares inmediatos” como el esposo(a), padre, o hijo del
inmigrante, y estos familiares deben ser ciudadanos o residentes
permanentes legales.
 Someta la Forma EOIR-42B
MUJERES INMIGRANTES
Estudios han mostrado que mujeres inmigrantes están en alto riesgo de estar en relaciones
abusivas debido a su estado inmigratorio.15 Es menos probable que las mujeres
inmigrantes reporten a la policía incidentes de abuso por temor de ser deportadas.
Además, las mujeres inmigrantes frecuentemente se ven atrapadas en relaciones violentas
debido a la barrera del idioma, recursos financieros limitados, y aislamiento social.16 En
1994, el Congreso de los Estados Unidos paso el Acta de Violencia en Contra de la Mujer
(VAWA) para proteger a victimas inmigrantes de la violencia domestica. VAWA provee
a mujeres inmigrantes una manera para abandonar a sus esposos abusivos y de poder
permanecer en los Estados Unidos legalmente.
15
The Facts on Immigrant Women and Domestic Violence, FAMILY VIOLENCE PREVENTION FUND FACT
SHEETS (New York, NY), 1999 at http://www.endabuse.org/resources/facts/Immigrant.pdf.
16
Femicide in New York City: 1995-2002, NY CITY DEPT. OF HEALTH AND MENTAL HYGEINE (New York,
NY) October, 2004, available at www.ci.nyc.ny.us/html/doh/html/public/press04/pr145-1022.html.
- 18 -
Mujeres Inmigrantes y el Contacto con la Policía.
¿SABIA USTED?
 Generalmente, usted no debe temer de hablar a
De acuerdo con el Fondo de Prevención de
la policía para reportar una situación abusiva.
Violencia Familiar, mujeres inmigrantes
 La policía usualmente no reporta a victimas de
casadas experimentaron altos niveles de
violencia domestica con inmigración.
abuso físico y sexual que aquellas mujeres
 Usted debe pedirle a la policía que haga un
inmigrantes no casadas, 59.5% a
reporte complete del incidente y que le
comparación del 49.8%, respectivamente.
entregue a usted una copia del reporte.
 Usted también debe escribir el nombre y
numero de placa del oficial de la policía que esta escribiendo el reporte.
Solicite para un Orden de Protección.
 Si usted tiene miedo de que su esposo vendrá tras de usted, solicite una Orden de
Protección o una Orden de Restricción.
 Un Orden de Protección es un documento legal firmado por un juez que estipula
que su esposo no puede acercarse a usted o a su hogar. Si lo hace, el puede ser
arrestado por violar una orden de la corte.
 Usted puede pedirle a la policía que le explique como puede usted solicitar una
Orden de Protección.
 Cualquier persona puede solicitar una Orden de Protección, incluyendo a una
persona indocumentada. Las cortes usualmente no preguntan sobre el estado
inmigratorio de la persona.
 Una Orden de Protección es diferente a una petición de VAWA. Una petición de
VAWA no le protege del abusador. Esta petición es solo una manera para
permanecer legalmente en los EE.UU. sin el permiso de su abusador.
Dos Opciones bajo VAWA.
 Si usted esta en una relación abusiva con su ciudadano EE.UU. o un residente
permanente legal, VAWA le permite a usted solicitar una “Auto-petición” para
permanecer en los EE.UU., o solicitar una “Cancelación de Expulsión”. Una
petición de VAWA no le protege de su abusador.
1) “Auto-petición” significa que usted puede aplicar para su residencia por si
misma y sus hijos. Usted no necesitara el permiso de su esposo.
2) “Cancelación de Expulsión” significa que usted ya esta en procedimiento
de expulsión y usted quiere solicitar una petición para permanecer en los
EE.UU.
- 19 -
Auto-Petition VAWA
En una aplicación de Auto-Petición de VAWA,
usted tiene que comprobar cinco hechos:
1) Usted estuvo en una relación con un
ciudadano de los EE.UU. o un Residente
Permanente Legal (LPR). Usualmente,
esto quiere decir que usted era la esposa,
hijo o padre de un ciudadano EE.UU. o
LPR abusivo. La mayoría de las
solicitantes estaban casadas con un
ciudadano EE.UU. o un LPR.
2) Usted estuvo sujeta a “crueldad extrema”
por parte del ciudadano EE.UU. o un LPR.
Algunos ejemplos de crueldad extrema son
abuso físico, amenazas de violencia, abuso
sicológico, abuso sexual y aislamiento
social.
3) Usted estaba en un “matrimonio de buena
fe”, lo cual quiere decir que usted no se
caso con el abusador solamente por el
propósito de obtener un estado
inmigratorio en los EE.UU.
4) Usted debe comprobar que usted tiene
“buen carácter moral” o que usted no a
cometido algún delito grave en los EE.UU.
5) Y finalmente, usted debe comprobar que
usted actualmente vive en los EE.UU.
Petición de VAWA para la Cancelación
de Expulsión
En una Petición de VAWA para la Cancelación
de Expulsión, usted debe comprobar seis
hechos:
1) Usted estuvo en una relación marital con
un ciudadano EE.UU. o un Residente
Permanente Legal (LPR).
2) Usted estuvo sujeta a “crueldad extrema”
por parte del ciudadano EE.UU. o el LPR.
3) Usted entro al matrimonio de “buena fe”.
4) Usted tiene “buen carácter moral” o que
usted no a cometido algún delito grave.
5) Usted enfrentaría “privaciones extremas” si
usted dejara los EE.UU.
6) Y finalmente, que usted vivió físicamente
en los EE.UU. por tres años continuos
antes de la solicitud de esta aplicación.
 Si su aplicación de VAWA es aprobada, usted puede solicitar una tarjeta de
autorización de trabajo, beneficios públicos y ajuste de estado inmigratorio.
Asegúrese de preguntarle a su abogado acerca de estos beneficios.
Recuerde…
 No provea voluntariamente a nadie información sobre su estado inmigratorio.
 No mienta con respecto a su estado inmigratorio.
 Contacte a un abogado de inmigración para que le ayude a aplicar para la petición
de VAWA.
- 20 -
NIÑOS INMIGRANTES
Muchos americanos no se dan cuenta que un niño sin acompañante en los Estados Unidos
puede ser deportado. Sin importar el hecho que niños inmigrantes son extremadamente
vulnerables, el gobierno federal no les provee ningún abogado legal o algún adulto que
les guíe por el proceso de expulsión. Los niños inmigrantes que pasan por el proceso de
expulsión son tratados exactamente que los adultos inmigrantes. Los niños no tienen
acceso a servicios especiales legales gratuitos y los dejan navegar solos el sistema
inmigratorio. Existe una necesidad seria para desarrollar una política inmigratoria
apropiada para niños inmigrantes, pera hasta que esto suceda, el Acta de Inmigración de
1990 provee un tipo de alivio para niños inmigrantes sin acompañante, llamado Estado
Especial de Inmigrante Juvenil (SIJS).
Estado Especial de Inmigrante Juvenil
 Si usted es una persona que se encuentra bajo la jurisdicción de una corte juvenil
quien se “cree ser elegible para cuidado de albergue a largo plazo”, es posible
que usted pueda aplicar para SIJS.
 Usted necesita reunir lo siguiente para calificar para SIJS.
1) Usted debe estar bajo la jurisdicción de una corte juvenil.
2) Usted debería ver sido “considerado como “elegible para cuidado de
albergue a largo plazo”. Esto quiere decir que las cortes han determinado
que la reunificación familiar no es una opción viable para usted y usted
ira a un cuidado de albergue, adopción o tutor. Generalmente, usted será
puesto en la fase permanente de colocación de la corte juvenil y no será
rubificado con sus padres.
3) La corte debe dictaminar que no esta en su mejor interés el que usted sea
regresado a su país de origen.
4) La corte necesita estipular claramente que su decisión fue basada en
descubrimientos específicos de “abuso, negligencia o abandono”.
5) Un juez de la corte juvenil necesita firma una orden afirmando los
descubrimientos mencionados anteriormente de “abuso, negligencia o
abandono”.
6) Usted debe ser menor de 21 años de edad.
7) Y usted no debe estar casado.
- 21 -
Niños Inmigrantes en busca de un abogado
Gratuito deben contactar los siguientes
despachos:
Holland + Knight
Equipo de Servicios Comunitarios - Gratuitos
Dewanna Planter
[email protected]
(202) 457-5928
Provee servicios Gratuitos a inmigrantes.
¿SABIA USTED?
El Servicio de Inmigración y Naturalización anterior
proveía cuidado para niños extranjeros sin
acompañante hasta el 2002, cuando la Oficina de
Reasentamiento de Refugiados heredo la
responsabilidad de cuidar por estos niños hasta que
sus casos sean decididos.
La Comisión de Mujeres para Mujeres y Niños
Refugiados encontró que en el 2005, más de 1,000
niños extranjeros sin acompañante estaban en
custodia de ORR y en el 2006, más de 7,000 niños
entraros a los EE.UU. y fueron detenidos.
The Immigrant Child Advocacy Center at the
University of Chicago
(El Centro de Abogacía en la Universidad de Chicago para Niños Inmigrantes)
6020 south University Avenue
Room K212
Chicago, IL 60637
(773) 702-0349
[email protected]
Latham & Watkins, LLP
Programa Gratuito
885 Third Avenue
New York, NY 10022-4834
(212) 906-1200
Provee servicios Gratuitos para niños inmigrantes.
- 22 -
RECURSOS LOCALES
Center for Families
3333 North Fourth St.
Minneapolis, MN 55412
612-276-1571
Sirve a familias, especialmente del Oeste
de África.
Centro Legal, Inc.
2610 University Ave. W, Ste. 450
St. Paul, MN 55114
(651) 652-1890
Sirve a Hispano-hablantes.
Hennepin County Immigration
Advocate
612-348-2193.
Ayuda a determinar que formas hay que
archivar con USCIS para obtener o
ajustar estado inmigratorio y ayudan a
llenar las formas.
Hennepin County Immigration Law
Project
430 First Ave. N., Ste. 300
Minneapolis, MN 55401
(612) 332-1441
Sirve a personas que solicitan asilo.
Debe calificar en base a su ingreso.
Minnesota Center for Victims of
Torture
Minneapolis Healing Center
717 East River Road
Minneapolis, MN 55455
(612) 436-4800
Southern Minnesota Regional Legal
Services
Citizenship and Immigration Services
529 Jackson St., Ste. 300
St. Paul, MN 55101
(651) 222-3299
Sirve a todas la nacionalidades. Debe
calificar en base a su ingreso.
Volunteer Lawyers Network
600 Nicollet Mall, Ste. 390A
Minneapolis, MN 55402
(612) 752-6677
Sirve a residents del Condado de
Hennepin de bajos ingresos.
Immigrant Law Center of Minnesota /
Oficina Legal
450 N. Syndicate St., Suite 175
St. Paul, MN 55104
(651) 641-1011
1-800-223-1368 (Para admission y
clientes solamente)
Minnesota Advocates for Human
Rights
650 3rd Avenue South, Suite 550
Minneapolis, MN 55402-1940
(612) 341-9845 (clientes referidos)
- 21 -
RECURSOS NACIONALES
Ayuda, Inc.
1707 Kalorama Rd NW
Washington, DC 20009
Office: (202) 387-4848
www.ayudainc.org
Abogados de derechos de inmigrantes de
bajos recursos y proveen servicios
sociales y legales multi-lingüísticos a
comunidades inmigrantes.
National Lawyer’s Guild
National Office
132 Nassau Street, Ste. 922
New York, NY 10038
Office: (212) 679-5100
Fax: (212) 679-2811
www.nlg.org
Provee mucha información en el Internet
con respecto a temas de la inmigración.
American Immigration Lawyers
Association
918 F Street, NW
Washington, DC 20004-1400
Office: (202) 216-2400
Fax: (202) 783-7853
Email: [email protected]
www.aila.org
Provee un servicio de referencia de
abogados de inmigración privados.
National Immigration Forum
Este sitio de Web esta desarrollando
lazos a otras organizaciones de abogacía.
220 I Street NE, Suite 220
Washington, DC 20002
Office: (202) 544-0004
http://www.immigrationforum.org
Detention Watch Network
1536 U Street, N.W.
Washington, D.C. 20009
www.detentionwatchnetwork.org
Human Rights First
333 Seventh Avenue,
13th Floor
New York, NY 10001-5108
Tel: (212) 845 - 5200
Fax: (212) 845 – 5299
www.humanrightsfirst.org
National Center for Refugee and
Immigrant Children
Un programa del Comité EE.UU. de
Refugiados e Inmigrantes
Adriana Ysern
[email protected]
www.refugees.org
National Immigration Law Center
3435 Willshire Blvd, Suite 2850
Los Angeles, CA 90010
Office: (213) 639-3900
www.nlic.org
Se especializan en leyes inmigratorias y
en los derechos de beneficios de empleo
y públicos para inmigrantes.
U.S. Committee for Refugees and
Immigrants
1717 Massachusetts Ave., N.W., 2nd Fl
Washington, D.C. 20036-2003
Office: (202) 347-3507
Fax: (202) 347-7177
www.refugees.org
Proveen recursos para inmigrantes y
refugiados.
Violence Against Women Office, US
Department of Justice
Office: (212) 789-2830
www.usdoj.gov/ovw/
Provee información de ayuda con
respecto a leyes relevantes, incluyendo
el Acta de Victimas de Trafico.
- 22 -
Women’s Commission on Refugee
Women and Children
122 East 42nd Street
New York, NY 10168
Office: (212) 551-33088
[email protected]
Provee un video informativo para niños
inmigrantes.
- 23 -
APENDICES
Apéndice A:
Apéndice B:
Apéndice C:
Apéndice D:
Apéndice E:
Apéndice F:
Apéndice G:
Centro)
Apéndice H:
Apéndice I:
Tarjeta “Conozca Sus Derechos”
Delegación de Poderes por un Padre
Autorización para Viajar con un Niño Menor
G-28 Notificación de Participación de Abogado o Representante
Muestra de Orden (need to get from Centro)
Muestra de Formulario de Salida Voluntaria (need to get from Centro)
Muestra de Notificación para Comparecer (NTA) (need to get from
Programas Actuales de Centro Legal
Artículos de Periódico sobre el trabajo de Centro Legal con respecto
detenciones y deportaciones (need to get from Centro)
- 24 -
IMMIGRATION TOOL KIT
CENTRO LEGAL, INC.
A Nonprofit Community Law Office
St. Paul, Minnesota
www.centro-legal.org
651.642.1890
LETTER FROM THE EXECUTIVE DIRECTOR
Dear Friend,
This Immigration Toolkit has been prepared in response to the ever present need for
education and awareness of American Civil Rights. Since December 2006, our staff and
attorneys have delivered nearly 24 trainings to employers, workers, and communities across
Minnesota about their rights and responsibilities. Centro Legal believes that it has a pivotal role
to play in ensuring that immigrants in the United States are treated with respect and that their
individual human and constitutional rights are protected. If we give up those rights, we
compromise the rights of all Americans. Therefore, we invite you to read the information in this
Toolkit and to provide us with feedback on how we can work together to ensure the protection of
all immigrants nationwide.
Centro Legal’s mission of Empowering Latinos through Legal Advocacy is a clear call
to service in response to the many challenging and troubling circumstances of the current political
and social climate. Never before have we as an agency felt more compelled to respond to those
issues that are adversely affecting our identity as Americans and the health, safety, and security of
our families. We are very concerned about the pervasive anti-immigrant sentiment that has had
multiple negative impacts on our daily lives. As anti-immigrant feelings have grown, so have the
number of cases of housing and employment discrimination, workplace abuse, predatory lending,
and human and civil rights violations. Related to the anti-immigrant surge, are increasing efforts
by U.S. Immigration and Customs Enforcement (ICE) to remove undocumented immigrants from
this country with little regard for their civil and human rights. This situation is causing
paralyzing fear and negatively impacts the Latino community.
Therefore, we have implemented several initiatives to counter the anti-immigrant
sentiment and its devastating consequences including this Immigration Toolkit. It is my sincere
hope that this Toolkit will be used to educate immigrants of their rights and responsibilities when
confronted with local, state or federal officials and that it also provides practitioners and public
interest partners with resources to organizations and agencies that are like-minded and equally
interested in ensuring the protection of immigrants.
In the meantime, Centro Legal will continue to hold ICE responsible for its conduct in the
Worthington and Willmar Raids. And we will continue to forge strong relationship with city and
law enforcement officials and our community. The success of our work is dependent upon the
strong relationships we have built in the community locally and nationally with our clients,
funders, community partners, and volunteers. I personally want to thank the attorneys at National
Immigrant Law Center (NILC) in Los Angeles, California for their resources and information that
they have generously prepared for the benefit of educating immigrants of their rights.
I also want to thank you for your support and look forward to working together to ensure
a promising future for Latinos and all immigrants in this country.
Sincerely,
Gloria Contreras Edin
Attorney at Law
Executive Director
-1-
IMMIGRANTS AND THE U.S. CONSTITUTION
The Constitution of the United States protects everyone present in the country, regardless of
immigration status. In December of 2006, however, Immigration and Customs Enforcement
(ICE) Agents shocked America by violating the constitutional rights of both immigrants and
non-immigrants. Under the guise of preventing identity-theft, ICE officials stormed into six
meat-packaging companies owned by Swift & Co and locked down the facilities while
interrogating employees demanding proof of their immigration status. Over 1,200 legal and
illegal immigrants were arrested nation-wide, making this the largest immigration raid in
U.S. history.1 The raids left immigrant families all over the country scared and vulnerable.
Minnesotans were personally affected by the events in December 2006. ICE officials raided
Swift’s meat packaging company in Worthington, Minnesota and detained about 230
workers. The raid left the multi-racial community of Worthington scrambling to find
answers to the chaos ICE created. Despite the confusion and fear that ran through
Worthington, city officials, police officers, attorneys and community leaders from all over
Minnesota pooled together resources in support of its neighbors, both documented and
undocumented, and showed the nation how injustice to one community member is an
injustice to all community members.
Immigrants are a permanent part of Minnesota’s political, economic, and social infrastructure
and unjust treatment of one immigrant group has detrimental effects throughout the entire
community. According to the U.S. Census Bureau, an estimated 33.5 million foreign born2
individuals live in the U.S., which means foreign born individuals make up 11.7 percent of
the U.S. population. The majority of foreign born individuals are from Latin America (53%)
and Asia (25%).3 In the Midwest, an estimated 11.3 percent of the population are foreign
born individuals.4 In Minnesota, immigrants make up 5 percent of the population,
representing over 160 countries. Latinos and Southeast Asians represent the two largest
immigrant communities in the state but there is also a significant number of East Africans
and Russians.5 And soon, there may be a growing number of Burmese immigrants in this area
depending on new resettlement efforts.6 As a result of the prominent number of immigrants
in our state, political officials, community organizations, and legal advocates can not ignore
or condone the injustice committed against our immigrant brothers and sisters. Centro
Legal’s Immigrant Rights Tool Kit is a response to this injustice.
1
Julia Preston, Immigrants’ Families Figuring out What to do after Federal Raids, December 16, 2006,
available at http://www.nytimes.com/2006/12/16/Washington/16immig.html.
Dianne Solis, ID Theft Charges Mount in Swift Immigration Raids, The Dallas Morning News, Dec. 15,
2006, available at http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DNindict_15tex.ART.State.Edition1.3e4ef8a.html.
2
Foreign born is defined by the US Census as individuals born outside of the United States, including both
naturalized US citizens and those who are not citizens of the US.
3
U.S. Census Bureau, Census 2000, Profile of General Demographic Characteristics: 2000, Minnesota,
available at http://censtats.census.gov/data/MN/04027.pdf.
4
U.S. Census Bureau, Census 2000, Profile of General Demographic Characteristics: 2000, Minnesota,
available at http://censtats.census.gov/data/MN/04027.pdf.
5
Barbara J. Ronningen, Estimates of Selected Immigrant Populations in Minnesota: 2004, MINNESOTA
STATE DEMOGRAPHIC CENTER, June 2004.
6
Barbara J. Ronningen, Estimates of Selected Immigrant Populations in Minnesota: 2004, MINNESOTA
STATE DEMOGRAPHIC CENTER, June 2004.
-2-
We hope that the Immigrant Rights Tool Kit can help all Americans, non-citizens and
citizens, learn about our basic constitutional rights and the protections the Constitution
affords all U.S. residents.
-3-
IMPORTANT WORDS TO KNOW
Arrest Warrant – An arrest warrant is a
piece of paper signed by a judge giving
the police the authority to arrest a person
and bring the person to jail based on
probable cause that the person
committed a crime.
Asylum Seeker – a person who has left
his or her native country and is seeking
legal status in a new country because of
persecution or a well-founded fear of
persecution based on race, religion,
national origin, social group or political
opinion.
Citizen – a person who owes allegiance
to the U.S. government. A person is a
U.S. citizen if the person was born in the
United States or if the person has parents
or grandparents who were born in the
United States. Also, a person can
become a citizen through naturalization.
ICE arrest warrant - an administrative
warrant that only contains the name of a
person and does not give ICE permission
to search your home.
Immigrant – a person who leaves one
country with the intention of establishing
residence in another country.
Lawful Permanent Resident – a person
who has been granted the right to live in
the United States. However, this status
can be taken away for certain violations
of the law or if the person has been
found to have abandoned this status by
remaining outside of the U.S. for an
extended period of time. After five
years, a lawful permanent resident can
apply to become a U.S. citizen through
naturalization.
Deportation – when a person is legally
ordered to be removed from the United
States. Some deportations, called
“Expedited Removal”, occur when a
person is attempting to enter the U.S.
Misdemeanor – a crime that can carry a
sentence of up to 1 year in county jail
and/or up to $1000 in fines. Examples of
a misdemeanor crime are petty theft,
DUI, or driving with a suspended
license. Misdemeanors are lesser crimes
than felonies.
Felony – a crime that can carry a
sentence in state prison for 1 year or
more years; examples of a felony are
possession of a dangerous weapon,
kidnapping, or burglary.
Nonimmigrant – a person who is in the
United States legally but is only allowed
in the U.S. for a short period of time,
such as tourists and international
students.
Green Card – a common name that
proves a person has been afforded the
status of “lawful permanent resident”.
Refugee – a person who is unable to
remain in his or her native country
because of persecution or a well-founded
fear of persecution based on race,
religion, national origin, social group or
political opinion who has been brought
to the U.S. by the U.S. government.
ICE – this is the abbreviation for the
Immigrant and Customs Enforcement
Office, the investigative and law
enforcement arm for the Department of
Homeland Security.
-4-
Removal Proceedings - an immigration
court process that determines whether a
person will be allowed to remain in the
U.S.
Search warrant – A search warrant is a
piece of paper signed by a judge giving
the police officer permission to enter
your house. The warrant should state
your address, the places in which the
officer can search, and what the officer
is looking to take as evidence.
Undocumented Person – a person who
entered the United States without
inspection; a person who has overstayed
his/her visa, or a person with an old
deportation order, also known as an
“absconder order”.
Voluntary Departure – an order
(usually granted by an Immigration
Judge) allowing a person to depart from
the U.S. voluntarily instead of being
removed. If the person fails to depart
the U.S. within the time granted, the
voluntary departure converts into an
order of removal.
-5-
IMMIGRANT RIGHTS: THE BASICS
Immigrants and undocumented residents are protected by the Constitution of the United
States. All individuals living in the U.S. have the following rights:
 The Right to Remain Silent
 The Right to an Attorney
 The Right Against Unlawful Searches and Seizures
ONE: The Right to Remain Silent7
 If an immigration or police officer wants to speak with you, you can tell the
person you have the right to remain silent.
 You have the right to refuse to answer the officer’s questions.
 If the police officer does not leave you alone, show the officer your “Know Your
Rights!” card8 or tell them you need to speak to an attorney.
 If you invoke this right, you must remain silent.
 Remember that the police can use what you say against you.
 Remember that the police do not have to tell you the truth.
 Do NOT lie! Do not give false information to immigration or the police.
 Important: In some states it may be a minor crime to not give your name to the
police.
If you are undocumented, be careful.9
 Do not provide any information about yourself.
 Do not carry papers from another country. If you do, the government can use this
information in a deportation proceeding.
 Do not give false documentation.
 Do not lie about being a citizen because this could permanently prevent you from
entering the U.S. legally.
TWO: The Right to an Attorney
 If an immigration or police officer wants to speak with you, tell the officer you
want to speak to an attorney first.
 You have the right to consult an attorney before speaking with an immigration or
police officer.
 If the officer continues to ask you questions, you can tell the officer you have the
right to remain silent and show the officer your “Know Your Rights!” card.
7
Warning! Protect Yourself From Immigration Raids! (CASA of Md, Detention Watch Network, Nat’l
Immigration Project of the Nat’l Lawyer’s Guild, Silver Spring, Maryland), March 2007. Much of the
material from this section was adopted from this booklet.
8
“Know Your Rights” cards in the appendix.
-6-
THREE: The Right Against Unlawful Searches and Seizures
At Home…
 An immigration or police officer does not have the right to enter your home or a
private place without your consent, unless the officer has a warrant.
 If the police officer has a warrant, the officer does not need your permission to
enter your house or a private place, but you should read the warrant first.
 A search warrant is a piece of paper signed by a judge giving the police officer
permission to enter your house. The warrant should state your address, the places
in which the officer can search, and what the officer is searching for. If the
warrant does not have the correct address on it, the officer does not have the right
to search your home and you can refuse to let the officer into your home.
 ICE arrest warrant is an administrative warrant that only contains the name of a
person and does not give ICE permission to search your home. READ THE
WARRANT CAREFULLY! This may protect you from an illegal search of your
home.
 If the police officer cannot show you a warrant, do not open the door.
 You have the right to refuse to let the officer into your home.
 If you open the door, the officer may think you agreed to let the officer search
your house and question anyone inside.
At Work…
 An immigration or police officer does not have the right to enter your work place,
unless the officer has a warrant or your employer’s permission.
 Your employer should read the warrant and make sure the officer has the legal
authority to enter.
 If the officer does not have a warrant, the employer has the right to ask the officer
to leave.
 If you work in a public place, the police officer does not need a warrant.
In a public place…
 An immigration or police officer can approach you and ask for your name and
identification.
 If you think your name or identification may reveal your immigration status, do
not tell the officer your name or give the officer any identification.
 Do not carry any documents with your immigration status or birth place.
 Do not lie! You should never lie to an immigration or police officer but you can
remain silent!
 Remember to use your “Know Your Rights!” card.
-7-
IMMIGRANTS AND LAW ENFORCEMENT
HOW TO INTERACT WITH POLICE OR IMMIGRATION OFFICERS10
 Remember your constitutional rights!
 You have the right to be silent.
 You have the right to an attorney.
 You have the right against illegal searches and seizures.
 But, you should be polite and respectful while asserting your rights. You can
simply show them your “Know Your Rights!” Card.
 Do not get into an argument with the police. Do not let the police get you angry.
 Never insult a police officer or an immigration officer.
 Stay calm.
 Do not run.
 Do not touch a police officer or an immigration officer.
 Do not resist arrest, but remember to ask for an attorney and remain silent.
 If you are arrested, remember to write down the officer’s badge number and
license plate. This information will help your family and attorney help you.
If you feel your rights have been violated while in police custody, file a formal complaint
with the Police Department’s Internal Affairs Division or Civilian Complaint Board.
If you are arrested by the police…
 This means you are charged with a crime.
 Anything you say to the police can be used against you in court. Remain silent.
 Anything your family says to the police can be used against you too. Tell them to
remain silent.
 Tell the police you want to speak to an attorney immediately.
 Do NOT sign any documents until you speak with an attorney.
You have the right to make one phone call…
 Call your attorney or call a family member and give them the following
information.
o The name of the officers and their agency (Police Department, FBI, ICE),
along with their identification numbers and license plate numbers. You
can find this information on their name tags or their cars.
10
Twin Cities Immigrant Orientation Resources, HENNEPIN COUNTY LIBRARY SUBJECT GUIDES, at
http://www.hclib.org/pub/search/Immigration.cfm#minnesota.
-8-
IMMIGRANTS AND THE JUDICIAL SYSTEM
UNDERSTANDING CRIMINAL COURT AND IMMIGRATION COURT
It is important to understand that these two courts deal with different legal issues.
Individuals who are in Criminal Court have more legal rights than those in Immigration
Court. If you are not a citizen and you have been arrested, you will most likely have to
go to both criminal court and immigration court.
Criminal Court
A person, regardless of his/her immigration status, goes to criminal court if the person is
charged with committing a crime. The state in which the person lives formally charges
the person with a misdemeanor or a felony. A misdemeanor is a crime with punishment
of less than1 year in prison. A felony is a serious crime with a prison sentence of 1 year
or more.
 Any person who is arrested must be charged with a crime in criminal court within
48 hours, not including holidays and weekends.
 If you are not charged with a crime within 48 hours, you must be released from
jail.
 If you are charged with a crime, depending on the seriousness of the crime, you
can request bail. If a judge grants you bail and you can afford to pay it, you can
be released. However, if you are given bail, this does not mean your criminal
case is closed. You still need to return to court for a preliminary hearing and then
a trial.
 IMPORTANT: If you are not a citizen, ICE may transfer you to immigration
custody EVEN IF you paid your bail for the criminal charge. Therefore, it may
not make sense to pay bail for your criminal charge because you may still have to
remain in custody.
 If you are charged with either a misdemeanor or a felony, you have the right to a
free attorney, if you qualify financially.
 Make sure you have an attorney that understands how your criminal case
will affect your immigration status.
 Even if you have a public defender, you need to tell the person your
immigration status and have the person consult with local immigration
advocates.
 Depending on the outcome of your criminal case, you may lose your right
to stay in this country.
 Do not speak to an officer without an attorney. Anything you say can be used
against you.
 Do not give any information to the police about your immigration status.
 Do not sign any documents without your attorney present.
 If you do not understand English, ask for an interpreter. Do not confide in the
interpreter. The interpreter is only there to translate.
-9-
Immigration Court
The United States Department of Justice has authority over Immigration Courts. Anyone
with an immigration matter must go before an Immigration Judge. The Immigration and
Customs Enforcement (ICE) Detention and Removal Office under the Department of
Homeland Security files proceedings against you and the case is brought up before an
Immigration Judge. ICE can commence proceedings against you at anytime if you are in
the U.S. illegally. ICE, however, is usually alerted to your immigration status when you
have a criminal case pending.
DID YOU KNOW?
According to the U.S.
Department of Justice, 80% of
their case load is dealing with
removal proceedings.
 If you are a non-citizen and you are have finished your
matters in Criminal Court, Immigration Services or ICE
can put a “detainer” on you and hold you for another 48
hours.
 If ICE does not pick you up within that time, you must
be released.
 If you are not released, you should contact an attorney or a community organization to
help you get released from police custody. They can write a demand letter to the police
or sheriff.
IMMIGRANTS AND THE REMOVAL PROCESS
DEPORTATION AND REMOVAL PROCEEDINGS IN IMMIGRATION
COURT11
The majority of cases before an Immigration Judge deal with deportation or removal
proceedings. When you are in detention, you will be in the custody of ICE.
What happens when ICE picks you up…
 You will be placed in a holding cell or temporary processing station or a detention
center, where you will be fingerprinted and interviewed.
 You have the right to make a telephone call. Memorize the telephone number of
your attorney, family member, or friend, and contact them immediately.
11
I Am In Immigration Detention…What Are My Rights?, (Nat’l Immigration Project of the Nat’l Lawyers
Guild, Detention Watch Network, Washington D.C.) at
http://detentionwatchnetwork.org/sites/detentionwatchnetwork.org/files/KYR%20Detention.pdf. Much of
the materials from this section was adopted from the above source. For more information on detention
issues go to Detention Watch Network, www.detentionwatchnetwork.org.
- 10 -
 Your phone calls may be blocked. If you have trouble reaching your family or
attorney, ask jail staff if they have blocked the number.
 Every detention center that holds ICE detainees must provide a list of free legal
services available in the area, current telephone numbers and free access to a
telephone to call those numbers.
 You will be assigned a deportation officer. Write down the name and phone
number of the deportation officer assigned to your case.
 Your deportation officer should give you a document called a Notice to Appear or
NTA. This document contains the immigration charges against you. This
document will help your attorney figure out your case and tell you when your first
Immigration Court hearing will be held.
Do you know your “A number”?
 Make sure to have your “A number” or your alien registration number that starts
with an A followed by 9 numbers with you at all times. Memorize it!
 Most 9-digit A numbers begin with a zero. If your A number only has 8 numbers,
this means you should automatically put a “0” in front of the eight numbers.
 If you do not have an A number, you will be assigned one when you are
processed at the detention center and you can ask your deportation officer for this
number immediately. Memorize it as soon as you get it!
 Your A number will help your attorney and family members find you in the
immigration system.
How can your family find you…
 Contact the local office of Immigration and Customs Enforcement’s Detention
and Removal Branch in the area.
 Contact ICE headquarters at 202-305-2734 if you do not know the number for the
deportation office.
 This information is also online at: http://www.ice.gov/about/dro/contact.htm.
 Your family should have your full name and A number ready.
 Tell undocumented family members not to visit you in a detention center!
How can you find an immigration attorney…
 You have the right to an attorney before speaking to an Immigration Judge.
 You HAVE TO PAY for an attorney. You DO NOT have the right to free legal
services even if you are poor.
 If you cannot afford an attorney, ask the deportation officer for a list of free legal
service providers in the area.
 Make sure to hire an attorney who specializes in deportation.
 Don’t be tricked by people who are only after your money!
 Request a written contract from your attorney called a “retainer
agreement”.
 Always keep the name and contact information of your attorney with you
at all times.
 You should always document your communications with your attorney.
- 11 -
 You should always have your attorney make copies of all legal documents
the attorney says he/she is submitting to the court.
 If you are not happy with your attorney, you can make a complaint.
 You also have the right to represent yourself if you cannot afford an attorney.
What can you do if you are being moved to a new detention center…
 Have your immigration attorney file a G-2812 with the Department of Homeland
Security. This document shows the government you have an attorney in the area
and that you need to stay in the area to access to your attorney.
 Fax a copy to the deportation officer immediately.
 This form may convince the officer to stop your transfer.
 Make sure you have all your legal documents with you at all times in case you are
relocated to a different facility.
How can you get out of detention…
 ASK FOR A BOND HEARING!
 A bond hearing gives you an opportunity to show the immigration judge you do
not present a danger, a national security risk or a flight risk.
 You should present evidence to demonstrate you have a permanent address, stable
employment, relatives in status in the United States, and any evidence with strong
ties to the community.
 You should ask family and friends to attend the hearing to testify to these issues
or they can write letters of support.
What is a bond?
 A bond is an amount of money paid to the government as a guarantee that you
will attend all hearings and obey the judge’s final order.
 You have to pay the full amount.
 Bond must be paid by cashier’s check from a U.S. bank or money order from a
U.S. Post Office, payable to the “Department of Homeland Security”.
 The person paying the bond must have legal status and identification.
 The bond can be paid at any ICE office.
You may not qualify for bond if…
 you have a previous deportation order.
 you have certain criminal convictions.
 you were arrested at the border or airport
or, you are suspected to have terroristic
ties.
12
Important Information to Remember!
1. Memorize your 9 digit A number.
2. Memorize your attorney’s or family’s phone
number.
3. Remember to ask for your Notice to Appear.
4. Remember to ask for a Bond Hearing!
5. Remember you have the right to an interpreter.
Ask for an interpreter if you do not speak
English.
A copy of G-28 Form is in the appendix.
- 12 -
IMMIGRATION COURT HEARINGS
Once you are in removal proceedings and you have received your Notice to Appear
(NTA), you will go before an Immigration Judge at a Master Calendar hearing.
What is a Master Calendar hearing?
 A short hearing before an immigration judge.
 You may ask the judge to postpone or “continue” the hearing to another date to
allow you to find an attorney. You will normally be given a new Master
Calendar hearing.
 If you are forced to proceed without an attorney, deny the charges. This will
force the government to prove the charges.
 You should never admit to any charges without speaking to an attorney
about all your options.
 You may be asked to sign a “voluntary removal” or “voluntary deportation”
document. If you agree to sign this document, you agree to leave the United
States and not return. If you return you will never have a means to stay in the
United States legally.
 Do not sign any documents without consulting an attorney first.
 If you want to apply for another way to stay in the United States, you will have
a separate hearing called an “Individual” hearing.
What is an Individual hearing?
 A hearing where the judge gives you an opportunity to present your case to stay
in the U.S. legally.
 You must present as much evidence as possible to persuade the judge. You
should bring all relevant documents and witnesses to testify at the hearing.
 The judge will only give you an Individual hearing if the judge thinks you are
eligible for some kind of relief, such as asylum, Convention Against Torture, U
Visa, etc.
FORMS OF RELIEF IN REMOVAL PROCEEDINGS
When a person is found to be removable from the U.S., some individuals, depending on
their situation, can apply for various forms of relief or a legal way to remain in the U.S.
Immigration law is extremely complicated, especially when it comes to determining
eligibility for various forms of relief, therefore, below is only a brief description of the
kinds of relief available to individuals in removal proceedings. It is important to speak
with an immigration attorney to explore all options available to an individual in
removal.
- 13 -
ASYLUM13
Did You Know?
Since 1995, the number of
asylum claims filed
decreased by 78%. In 1994,
over 120,000 claims for
asylum were filed but in
2004, less than 30,000
claims were filed. The rate
of asylum cases granted
after September 11, 2001
dropped significantly. In
2001, 43% of asylum cases
were approved but in 2003,
the number of cases
approved dropped to only
29%.
 If you are afraid of returning to your home country
for fear of persecution, you should apply for
asylum.
 You can remain in the United States if you can
prove to the immigration judge that you have a
well-founded fear of persecution based on race,
religion, nationality, social group or political
opinion.
 You have to apply for asylum within 1 year of
arrival to the United States. If you miss this
deadline, you will no longer qualify for asylum but
you can still use this form to apply for Witholding
of Removal.
 If you qualify as an asylee, you can eventually
become a U.S. citizen.
 You will need to file an I-589, Application for
Asylum and for Withholding of Removal.
CONVENTION AGAINST TORTURE
 If you are afraid of returning to your home country for fear of being
tortured, you should apply for this remedy.
 You need to prove that you are “more likely than not” to face torture if
you return to your home country.
 You should apply for this if you missed the 1 year deadline to apply for
asylum.
 If you qualify to remain in the U.S. under the Convention Against Torture,
you cannot become a citizen.
 You will need to file an I-589, Application for Asylum and for
Withholding.
SPECIAL IMMIGRANT JUVENILE STATUS14
 If you are a child under the jurisdiction of a juvenile court who is “deemed
eligible for long term foster care,” you may be able to obtain special
immigrant juvenile status.
 This means that if the court has found that family reunification is not a
viable option, you will go into foster care, adoption, or guardianship.
 You have to file two applications at the same time: 1) Special Immigrant
Juvenile Status or Form I-360 and 2) Adjustment of Status or Form I-485.
 This remedy will be discussed more in the “Immigrant Children” section.
13
The facts from “Did You Know?” are from, Asylum: Safety & Freedom in America Report, HUMAN
RIGHTS FIRST (New York, NY), at www.humanrightsfirst.org/asylum/101/overview-052305.pdf.
14
For more information on Special Immigrant Juvenile Status go to www.ilrc.org or call the Immigrant
Resource Center at 415-255-9499.
- 14 -
U VISA
 If you have suffered substantial physical or mental abuse from being the
victim of criminal activity, including domestic violence, and you have
been helpful or are helping with an investigation or prosecution of a crime,
you are eligible to apply for a U Visa.
 You will be required to obtain a certification from the federal, state or
local qualifying officials to confirm your participation in the investigation
of a crime.
 The U Visa provides eligible immigrants with authorization to stay in the
United States and work. U Visa holders may be eligible to apply for
permanent residence after three years.
 File Form 918, Petition for U Nonimmigrant Status.
T VISA
DID YOU KNOW?
Every year 800,000 people are
trafficked across national
borders and approximately 80
percent of transnational victims
are women and girls. Even
more disturbing is that up to 50
percent are minor children.
The United States provides
strong victim protection
services. In 2006, the
Department of Homeland
Security issued 192 T-visas to
foreign survivors of human
trafficking.
 If you have been a victim of human
trafficking, then you should apply for a T
Visa.
 You have to be able to prove you were a
victim of a “severe form of trafficking in
persons” and assist government officials in
prosecuting human traffickers.
 Victims of human trafficking were either
brought to this country against their will, or
held captive and forced to work upon arriving
to the U.S.
 Under this visa, you may be eligible for
benefits, including immigration relief, social
services, and access to refugee benefit
programs.
 File Form I-914, Application for T
Nonimmigrant Status.
VIOLENCE AGAINST WOMEN ACT (VAWA)
 If you are an immigrant who is being abused by a citizen or a lawful
permanent resident spouse, parent, or child, you should apply for a
VAWA petition.
 You have to be able to prove you were in a bona-fide marriage or
relationship with either a citizen or a lawful permanent resident spouse or
parent .
 You also have to prove that this person subjected you to “extreme
cruelty”.
- 15 -
 This remedy is available to men, women, children, and the elderly, as long
as the abused immigrant was in a relationship with a citizen or a lawful
permanent resident.
 More information about VAWA is in the “Immigrant Women” section of
this tool kit.
CANCELLATION OF REMOVAL – LAWFUL PERMANENT RESIDENT
 If you are a lawful permanent resident in removal, you may stay in the
U.S. if you qualify for Cancellation of Removal.
 To be eligible for Cancellation of Removal, you must prove:
1) You have been a Lawful Permanent Resident for 5 years;
2) You have lived continuously in the U.S. for at least 7 years after
having been lawfully admitted into the U.S.;
3) You have not been convicted of an “aggravated felony” as defined
by Immigration law.
 File form EOIR-42A
CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS FOR
NONPERMANENT RESIDENTS
 If you are a nonpermanent resident, you may also be eligible for
Cancellation of Removal but the law requires more from a nonpermanent
resident.
 To be eligible for Cancellation of Removal for a nonpermanent resident,
you must prove:
1) You have lived continuously in the U.S. for at least 10 years;
2) You have been a person of good moral character during your
presence in the U.S.;
3) You have not been convicted of an aggravated felony; and
4) You have to demonstrate that your removal from the U.S. would
result in “exceptional and extremely unusual hardship” to your
immediate family members. The law narrowly defines “immediate
family members” as the immigrant’s spouse, parent, or child and
these family members have to be either U.S. citizens or lawful
permanent residents.
 File Form EOIR-42B
- 16 -
IMMIGRANT WOMEN
Studies have shown that immigrant women are at high risk for being in abusive
relationships due to their immigration status.15 Immigrant women are less likely to report
incidents of abuse to the police for fear of being deported. In addition, immigrant women
are often trapped in violent relationships because of language barriers, limited financial
resources, and social isolation.16 In 1994, the United States Congress passed the Violence
Against Women Act (VAWA) to protect immigrant victims of domestic violence.
VAWA provides immigrant women a way to leave their abusive spouses and be able to
remain in the United States legally.
Immigrant Woman and Contact with the Police
 Generally, you should not be afraid to call the
police to report an abusive situation.
 The police usually do not report victims of
domestic violence to immigration.
 You should ask the police to make a full report
of the incident and give you a copy of the
report.
 You should also write down the name and
badge number of the police officer writing the
report.
DID YOU KNOW?
According to Family Violence Prevention
Fund, married immigrant women
experienced higher levels of physical and
sexual abuse than unmarried immigrant
women, 59.5 percent compared to
49.8 percent, respectively.
Apply for an Order of Protection
 If you are afraid your husband will come after you, apply for an Order of
Protection or a Restraining Order.
 An Order of Protection is a legal document signed by a judge that states your
husband can not come near you or your home. If he does, he can be arrested for
violating the court order.
 You can ask the police to tell you how you can apply for an Order of Protection.
 Anyone can apply for an Order of Protection, even an undocumented person. The
courts usually do not ask about a person’s immigration status.
 An Order of Protection is different from a VAWA petition. A VAWA petition
does not protect you against your abuser. This petition is only a means to remain
in the U.S. legally without the permission of your abuser.
Two Options under VAWA
 If you are in an abusive relationship with US citizen or lawful permanent resident,
VAWA allows you to “Self-petition” to stay in the US, or petition for
“Cancellation of Removal”. A VAWA petition does not protect you against your
abuser.
15
The Facts on Immigrant Women and Domestic Violence, FAMILY VIOLENCE PREVENTION FUND FACT
SHEETS (New York, NY), 1999 at http://www.endabuse.org/resources/facts/Immigrant.pdf.
16
Femicide in New York City: 1995-2002, NY CITY DEPT. OF HEALTH AND MENTAL HYGEINE (New York,
NY) October, 2004, available at www.ci.nyc.ny.us/html/doh/html/public/press04/pr145-1022.html.
- 17 -
1) “Self-petitioning” means you can apply for residency for yourself and
your children. You will not need your spouse’s permission.
2) “Cancellation of Removal” means that you are already in removal
proceedings and you want to petition to remain in the US.
VAWA Self-Petition
VAWA Cancellation of Removal Petition
In a VAWA Self-Petition application, you have
to prove five facts:
1) You were in a relationship with a US
citizen or a Lawful Permanent Resident
(LPR). Usually, this means you were
either the spouse, child, or parent of the
abusive US citizen or LPR. Most
applicants were married to the US citizen
or a LPR.
2) You were subjected to “extreme cruelty”
by the US citizen or a LPR. Some
examples of extreme cruelty are physical
abuse, threats of violence, psychological
abuse, sexual abuse, and social isolation.
3) You were in a “good faith marriage,”
meaning you did not marry the abuser
solely for the purpose of gaining
immigration status in the US.
4) You have to show that you have “good
moral character” or that you have not
committed a serious crime in the US.
5) And finally, you have to show that you
currently live in the US.
In a VAWA Cancellation of Removal Petition,
you have to prove six facts:
1) You were in a marital relationship with a
US citizen or a Lawful Permanent Resident
(LPR).
2) You were subjected to “extreme cruelty”
by a US citizen or LPR.
3) You entered into a marriage in “good
faith”.
4) You have “good moral character” or that
you have not committed a serious crime.
5) You would face “extreme hardship” if you
left the US.
6) And finally, you physically lived in the US
for three continuous years prior to this
application.
 If your VAWA application is approved, you may apply for an employment
authorization card, public benefits, and adjustment of status. Make sure to
ask your immigration attorney about these benefits.
Remember…
 Do not volunteer information about your immigration status to anyone.
 Do not lie about your immigration status.
 Contact an immigration attorney to help you apply for a VAWA petition.
- 18 -
IMMIGRANT CHILDREN
Many Americans do not realize that unaccompanied immigrant children in the United
States can be deported. Despite the fact that immigrant children are extremely
vulnerable, the federal government does not provide them with any legal counsel or adult
guidance during the removal process. Immigrant children going through removal
proceedings are treated exactly the same as immigrant adults. They do not have access
to special free legal services and they are left on their own to navigate the immigration
system. There is a serious need to develop appropriate immigration policy for immigrant
children, but until that happens, the Immigration Act of 1990 provides a form of relief for
unaccompanied immigrant children called the Special Immigrant Juvenile Status (SIJS).
Special Immigrant Juvenile Status
 If you are a person under the jurisdiction of a juvenile court who is “deemed
eligible for long term foster care”, you may be able to apply for SIJS.
 You need to meet the following criteria to qualify for SIJS.
1) You must be under the jurisdiction of a juvenile court.
2) You must have been “deemed eligible for long-term foster care”. This
means that the courts have found family reunification is not a viable
option for you and that you will go on to foster care, adoption or
guardianship. Generally, you will be in the permanent placement phase
in juvenile court and not be reunified with your parents.
3) The court must rule that it is not in your best interest to be returned to
your home country.
4) The court needs to clearly state its decision was based on specific findings
of “abuse, neglect, or abandonment”.
5) A juvenile court judge needs to sign an order stating the above findings of
“abuse, neglect, or abandonment”.
6) You must be under 21 years of age.
7) And, you must be unmarried.
Immigrant children looking for a Pro Bono
attorney should contact the following firms:
Holland + Knight
Community Services Team – Pro Bono
Dewanna Planter
[email protected]
(202) 457-5928
Provides Pro Bono services for immigrants.
DID YOU KNOW?
The former Immigration and Naturalization Service
provided care for unaccompanied alien children until
2002 when the Office of Refugee Resettlement
inherited the responsibility to care for these children
until their cases are decided.
The Women’s Commission for Refugee Women and
Children found that in 2005, over 1,000
unaccompanied alien children were in ORR custody
and in 2006, more than 7,000 children entered the
U.S. and were detained.
- 19 -
The Immigrant Child Advocacy Center at the University of Chicago
6020 south University Avenue
Room K212
Chicago, IL 60637
(773) 702-0349
[email protected]
Latham & Watkins, LLP
Pro Bono Program
885 Third Avenue
New York, NY 10022-4834
(212) 906-1200
Provides Pro Bono services for immigrant children.
- 20 -
LOCAL RESOURCES
Center for Families
3333 North Fourth St.
Minneapolis, MN 55412
612-276-1571
Serves families, especially immigrants
from West Africa.
Minnesota Center for Victims of
Torture
Minneapolis Healing Center
717 East River Road
Minneapolis, MN 55455
(612) 436-4800
Centro Legal, Inc.
2610 University Ave. W, Ste. 450
St. Paul, MN 55114
(651) 652-1890
Serves Spanish-speakers.
Southern Minnesota Regional Legal
Services
Citizenship and Immigration Services
529 Jackson St., Ste. 300
St. Paul, MN 55101
(651) 222-3299
Serves all nationalities. Must qualify
based on income.
Hennepin County Immigration
Advocate
612-348-2193.
Assists in determining what forms to file
with USCIS to gain or adjust status and
helps prepare the forms.
Hennepin County Immigration Law
Project
430 First Ave. N., Ste. 300
Minneapolis, MN 55401
(612) 332-1441
Volunteer Lawyers Network
600 Nicollet Mall, Ste. 390A
Minneapolis, MN 55402
(612) 752-6677
Serves low-income Hennepin County
residents.
Immigrant Law Center of Minnesota /
Oficina Legal
450 N. Syndicate St., Suite 175
St. Paul, MN 55104
(651) 641-1011
1-800-223-1368 (for intake and clients
only)
Minnesota Advocates for Human
Rights
650 3rd Avenue South, Suite 550
Minneapolis, MN 55402-1940
(612) 341-9845 (client referral)
Serves asylum seekers.
Must qualify based on income.
- 21 -
NATIONAL RESOURCES
Ayuda, Inc.
1707 Kalorama Rd NW
Washington, DC 20009
Office: (202) 387-4848
www.ayudainc.org
Advodates for low-income immigrant
rights and provides multi-lingual social
and legal services to immigrant
communities.
National Lawyer’s Guild
National Office
132 Nassau Street, Ste. 922
New York, NY 10038
Office: (212) 679-5100
Fax: (212) 679-2811
www.nlg.org
Provides great on-line information on
immigration issues.
American Immigration Lawyers
Association
918 F Street, NW
Washington, DC 20004-1400
Office: (202) 216-2400
Fax: (202) 783-7853
Email: [email protected]
www.aila.org
Provides a lawyer referral service to
private immigration attorneys.
National Immigration Forum
This website is developing links to other
advocacy organizations.
220 I Street NE, Suite 220
Washington, DC 20002
Office: (202) 544-0004
http://www.immigrationforum.org
Detention Watch Network
1536 U Street, N.W.
Washington, D.C. 20009
www.detentionwatchnetwork.org
Human Rights First
333 Seventh Avenue,
13th Floor
New York, NY 10001-5108
Tel: (212) 845 - 5200
Fax: (212) 845 – 5299
www.humanrightsfirst.org
National Center for Refugee and
Immigrant Children
A program of U.S. Committee for
Refugees and Immigrants
Adriana Ysern
[email protected]
www.refugees.org
National Immigration Law Center
3435 Willshire Blvd, Suite 2850
Los Angeles, CA 90010
Office: (213) 639-3900
www.nlic.org
Specializes in immigration law and
employment and public benefits rights
for immigrants.
U.S. Committee for Refugees and
Immigrants
1717 Massachusetts Ave., N.W., 2nd Fl
Washington, D.C. 20036-2003
Office: (202) 347-3507
Fax: (202) 347-7177
www.refugees.org
Provides resources for immigrants and
refugees.
Violence Against Women Office, US
Department of Justice
Office: (212) 789-2830
www.usdoj.gov/ovw/
Provides helpful information about
relevant laws, including the Victim's of
Trafficking Act.
- 22 -
Women’s Commission on Refugee
Women and Children
122 East 42nd Street
New York, NY 10168
Office: (212) 551-33088
[email protected]
Provides an informative video for
immigrant children.
- 23 -
APPENDICES
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Appendix F:
Appendix G:
Appendix H:
Appendix I:
“Know Your Right’s” Card
Delegation of Powers by Parent
Authorization to Travel with Minor Child
G-28 Notice of Entry of Appearance as Attorney or Representative
Sample Warrant (need to get from Centro)
Sample Voluntary Departure Form (need to get from Centro)
Sample Notice to Appear (NTA) (need to get from Centro)
Centro Legal’s Current Programs
Newspaper articles about Cento Legal’s work on detention and
deportation (need to get from Centro)
- 24 -
About the Authors
Launched in 2008, Penn State Law’s Center for Immigrants’ Rights provides students
with the opportunity to work on innovative advocacy and policy projects relating to U.S.
immigration, primarily through representation of immigration organizations. Over the past
three years, students at the Center have produced policy-oriented white papers of national
impact, prepared practitioner toolkits on substantive areas of immigration law, and assisted
with individual casework for detained immigrants, among other projects. The Center’s
mission is to represent immigrants’ interests through legal excellence, advocacy, education,
and collaboration with key stakeholders and the community. The following individuals
developed this Handbook: Rebecca Ternes, J.D. student; Elham Sadri, LLM student; Shoba
Sivaprasad Wadhia, Clinical Professor of Law and Director of the Center for Immigrants’
Rights; and Angela Lombardo, Records Specialist.
The Centre County Women’s Resource Center (CCWRC) is a non-profit organization
located in State College, Pennsylvania, that provides a range of services, including
emergency shelter, counseling, advocacy, transitional housing and legal services to victims of
domestic violence and sexual assault. CCWRC is a leading voice for victims of domestic
and sexual abuse in the Central Pennsylvania region and provides advocacy and education on
topics related to domestic and sexual abuse in the community. The Civil Legal
Representation Project (CLRP) is the division of the CCWRC that provides legal advice and
representation to survivors of domestic violence and sexual assault in family law matters.
The CLRP staff understands the dynamics of domestic violence and sexual abuse and how
those dynamics affect survivors in the family law system and is committed to working with
clients so that they have the information and legal assistance they need to help achieve and
maintain independence from their abusers. Justine Andronici, CLRP Director; Sharon
Barney, Staff Attorney; and Stephanie Keeler, Paralegal, contributed to the development of
this Handbook.
Acknowledgments
The Center and CCWRC are extremely grateful to the immigration law experts and
practitioners who generously provided advice and resources for inclusion in his Handbook.
Moreover, we are grateful to Christie Popp, of Immigrants' and Language Rights Center,
Indiana Legal Services, Inc. and Marisa Cianciarulo, of Chapman University School of Law,
who peer-reviewed earlier drafts of this Handbook. Finally, we also would like to
acknowledge the National Immigration Justice Center, who provided us with permission to
adapt their materials in crafting portions of this Handbook.
The Center and CCWRC acknowledge the following immigration law experts and
practitioners for their insights and contributions to this Handbook:
1
Sameera Hafiz
Policy Director
Rights Working Group
1120 Connecticut Avenue NW, Suite 1100
Washington, DC 20036
http://rightsworkinggroup.org
[email protected]
Ann Block
Attorney at Law
2655 Portage Bay East #9
Davis, CA 95616
[email protected]
Susan Bowyer
Directing Attorney
Immigration Center for Women and
Children
San Francisco Office
3543 18th Street, Mailbox 32
San Francisco, CA 94110
[email protected]
www.icwclaw.org
Lisa Hurlbutt
Staff Attorney
HIAS Pennsylvania
2100 Arch St.
Philadelphia, PA 19103
215-832-0900
http://hiaspa.org
[email protected]
Marisa Cianciarulo
Professor, Director of the Bette & Wylie
Aitken Family Violence Clinic
Chapman University School of Law
One University Drive, Orange,
California 92866
http://chapman.edu
[email protected]
Carolyn Killea
Deutsch, Killea and Eapen
1666 Connecticut Avenue, N.W., Suite 222
Washington, DC 20009
http://immigrationdc.com
[email protected]
Gail Pendleton
Co-Director
ASISTA Immigration Assistance
Office Based in:
2925 Ingersoll Ave., Ste 3
Des Moines, IA 50312
http://www.asistahelp.org
[email protected]
Nancy Wan
Firoza Chic Dabby-Chinoy
Asian & Pacific Islander Institute on
Domestic Violence
450 Sutter Street, Suite 600
San Francisco, CA 94108
http://www.apiidv.org
[email protected]
[email protected]
Christie Popp
Directing Attorney
Immigrants' and Language Rights Center
Indiana Legal Services, Inc.
214 S. College Ave.
Bloomington, IN 47404
http://www.indianajustice.org/Home/PublicWeb
[email protected]
Rosa Gomez
Dream Act Attorney
Immigrant Youth Outreach Program
Community Legal Services in East Palo Alto
2117 B University Avenue
East Palo Alto, CA 94303
www.clsepa.org
[email protected]
Aimee Clark Todd
Troutman Sanders LLP
600 Peachtree Street, N.E., Suite 5200
Atlanta, Georgia 30308
www.troutmansanders.com
[email protected]
Immigration Clinic
University of Texas at Austin School of Law
727 East Dean Keeton Street
Austin, Texas 78705
http://www.utexas.edu/law
1
About this Handbook
This Handbook outlines immigration remedies for non-citizen victims of domestic violence
and sexual assault. It is intended to aid attorneys who typically practice family law and have
experience working with domestic violence victims. The Handbook hopes to aid such
practitioners in expanding their services to those victims who also need legal help with their
immigration issues. This Handbook includes information about the following remedies: the
U visa, T visa, VAWA self-petition, VAWA cancellation of removal, and prosecutorial
discretion. It contains an analysis of the substantive materials on these subjects, including
relevant statutes, regulations, agency memoranda, and secondary sources. This is combined
with information provided by experts and practitioners with practice and policy experience in
these areas. Such information includes advice provided in the form of interviews, as well as
resources, such as articles, checklists, and sample documents.
The substantive material of the Handbook is organized according to remedy. A greater
emphasis has been placed on U visas, T visas, and VAWA self-petitions, with VAWA
cancellation or removal and prosecutorial discretion receiving a briefer discussion. Important
terms have been indicated by boldface type. Advice provided through interviews with the
experts and practitioners is included as bold, italicized bullet points, and looks like this:
 Practice tip: Practitioner advice included here.
The Appendices are divided into four parts.
o Appendix A includes checklists of forms, fees, and other documents required for the
applications of each remedy, as well as a comparison chart of the remedies.
o Appendix B includes public resources, such as government and NGO documents,
provided as hyperlinks available for electronic retrieval.
o Appendix C includes a table of contents of the resources and samples provided by the
previously described stakeholders.
o Appendix D includes confidential emails, anecdotes, and interview notes from the
stakeholders. The stakeholders who have indicated that they would be willing to serve
personally as a resource have been marked with an asterisk. Appendix D is not available
to the public.
The Appendices are available for use by Practitioners and Advocates, upon request.
[email protected]
2
Table of Contents
Introduction………………………………………………………………………...5
U Visa.........................................................................................................................9
Description .................................................................................................................................. 9
Eligibility Requirements ............................................................................................................. 9
Victim of an Enumerated Criminal Activity ....................................................................... 9
Substantial Physical or Mental Abuse ............................................................................... 10
Possession of Information ................................................................................................... 11
Law Enforcement Certification .......................................................................................... 11
Admissibility ............................................................................................................................. 13
Waivers of Grounds of Inadmissibility.............................................................................. 14
Filing the Application................................................................................................................ 14
Derivative Family Members ..................................................................................................... 15
Adjustment of Status to Lawful Permanent Resident for Principals and Derivatives .............. 16
T Visas .....................................................................................................................19
Description ................................................................................................................................ 19
Eligibility Requirements ........................................................................................................... 19
Victim of Severe Human Trafficking................................................................................. 20
Physical Presence on account of Trafficking .................................................................... 21
Compliance with Reasonable Requests from Law Enforcement .................................... 21
Extreme Hardship Involving Severe and Unusual Harm ................................................ 22
Admissibility ............................................................................................................................. 23
Waivers of Grounds of Inadmissibility.............................................................................. 24
Filing the Application................................................................................................................ 24
Two Step Process: Bona Fide Application + Adjudication .............................................. 25
Derivative Family Members ..................................................................................................... 26
Adjustment of Status to Lawful Permanent Resident for Principals and Derivatives .............. 27
VAWA Self-Petition ................................................................................................29
Description ................................................................................................................................ 29
Eligibility Requirements ........................................................................................................... 30
Qualifying Relationship ...................................................................................................... 30
3
Immigration Status of Abuser ............................................................................................ 30
Marriage ............................................................................................................................... 31
Battery and/or Extreme Cruelty ........................................................................................ 33
Joint Residence with Abuser .............................................................................................. 34
Current Residence ............................................................................................................... 34
Good Moral Character ........................................................................................................ 34
Derivative Children ................................................................................................................... 35
Filing the Application................................................................................................................ 36
VAWA Adjustment of Status .................................................................................................... 36
Current Visa Number ......................................................................................................... 36
Admissibility......................................................................................................................... 37
Filing the VAWA Adjustment of Status Application ............................................................... 37
VAWA Cancellation of Removal ............................................................................38
Description ................................................................................................................................ 38
Comparing VAWA Self-Petitions and VAWA Cancellation of Removal ............................... 38
Eligibility................................................................................................................................... 38
No Derivative Family Members ................................................................................................ 39
Filing for VAWA Cancellation of Removal ............................................................................. 39
Prosecutorial Discretion ...........................................................................................40
Description ................................................................................................................................ 40
General Factors ......................................................................................................................... 40
Factors Warranting “Particular Care” ....................................................................................... 41
Forms of Possible Discretion .................................................................................................... 42
Limitations of Relief ................................................................................................................. 43
Advocating for Prosecutorial Discretion ................................................................................... 43
4
Introduction
Domestic violence affects individuals across all races, ethnicities, nationalities, and social
strata. It is critical that advocates and attorneys who work with victims of domestic violence and
sexual abuse understand and appreciate the dynamics of power and control and how they inform
the experiences and safety of their clients. 1 This understanding is especially important in
working with non-citizen victims who may experience domestic violence and sexual abuse
differently from their American citizen counterparts. Increasingly, advocates and attorneys are
noting the unique challenges facing non-citizen victims as they consider leaving an abusive
situation. A number of factors contribute to the differing experiences of non-citizen victims. As a
result of language and cultural barriers, non-citizen victims may be less informed about their
legal options and less aware of available support services in the community. Isolation may occur
more easily for immigrant women who have entered an environment where they may not know
the language, culture, or physical geographic area, making it easier for their abusers to gain
control over them and their resources. 2 Different cultural beliefs and standards may also prevent
some immigrant women from seeking separation or divorce from an abusive husband.
Significant cultural barriers may increase challenges for non-citizens seeking to leave an abusive
situation. For example, while divorce is common in the United States, other countries expressly
prohibit or discourage separation of spouses. These ideologies remain present in immigrant
communities in the United States, where women who decide to leave abusive husbands may not
receive support from community members and extended family. 3
One of the largest barriers facing non-citizen victims is the fear of immigration-related
consequences should they report the abuse. Non-citizens may harbor anxieties around
interactions with law enforcement agencies, who they view not as resources but as individuals to
be avoided. These anxieties may be exacerbated by their abusers, who purposely misinform them
of the consequences of reporting abuse and threaten them with immigration problems should
they seek help. Abusers may attempt to control non-citizen victims by giving victims false
information about legal status and options or by threatening them with deportation if they report
the abuse or attempt to leave the abuser. In fact, abusers often use immigration-status-related
abuse to attempt to lock their victims in abusive relationships. This situation is compounded if
the victim is undocumented or otherwise reliant on the abuser for her immigrant status and if the
couple has children. An abuser may control whether or not his partner or spouse obtains legal
immigration status in this country, whether any temporary legal immigration status she has may
become permanent, and how long it may take her to become a naturalized citizen. 4 This form of
power and control is very effective and makes it extremely difficult for a victim to leave her
abuser, obtain a protection order, access domestic violence services, call the police, or participate
in the abuser’s prosecution. 5
1
For a more comprehensive discussion on safety planning issues and the importance of
confidentiality in working with immigrant victims, please see the note immediately following
this introduction.
2
Cecilia Menjivar& Olivia Salcido, Immigrant Women and Domestic Violence: Common
Experiences in Different Countries, 16 GENDER & SOCIETY 898, 904 (2002).
3
Id.
4
Leslye E. Orloff& Olivia Garcia, Dynamics of Domestic Violence Experienced by Immigrant
Victims, LEGAL MOMENTUM, available at
http://iwp.legalmomentum.org/reference/manuals/domestic-violence-family-violence.
5
Id.
5
Studies have shown that non-citizen victims are less likely to seek help then their citizen
counterparts. While 53% of domestic violence victims generally report the abuse to police, only
27% of battered immigrants are willing to call the police for help in a domestic violence
incident. 6 The numbers drop dramatically to less than a 20% reporting rate when the victim was
undocumented. 7 The leading reason for not reporting abuse to the police among all non-citizen
victims is fear of deportation, although many undocumented immigrants often qualify for
immigration status. 8 The fear of reporting is especially significant considering that many victims
face increased abuse following immigration. Many immigrant women report an increase in
abusive behavior by their partner after arriving in the U.S., while others state that abuse began
with immigration. 9 This data demonstrates the need for advocates and attorneys to understand
the special fears facing non-citizen victims of abuse and develop the knowledge and skills
necessary to explain the remedies available to them.
The complex and dynamic nature of immigration law makes representation of non-citizen
survivors of domestic violence and sexual abuse all the more challenging, as many domestic
violence and sexual abuse advocates and attorneys have little training in this area of the law.
While remedies do exist for non-citizen survivors, and federal legislation has been passed to
address the specific issues facing these individuals, wading through the complex statutory and
regulatory materials can be daunting. It is critical that advocates understand which remedy is
most appropriate for each particular victim, and the proper procedure for applying for that
remedy. This requires a thorough understanding of each individual client’s unique experience
and the ability to situate that experience in immigration law.
The purpose of this handbook is to provide an overview of the remedies available to non-citizen
victims of sexual or physical abuse and domestic violence. It is intended to help attorneys
working with domestic violence victims understand some of the key remedies available to
immigrant victims and hopefully to aid them in an effort to expand services to those who also
need legal help with their immigration issues. While not intended to be comprehensive, it should
provide a basic framework and an important starting place for professionals seeking to help noncitizen survivors of domestic violence and sexual abuse. As more practitioners become aware of
6
Leslye E. Orloff et al., Battered Women’s Willingness to call for Help and Police Response, 13
UCLA WOMEN’S L.J. 44, 64 (2003) (citing a 1998 Department of Justice study on general
patterns of reporting and recent study on battered immigrant women reporting).
7
Id. at 68.
8
LeslyeOrloff et al., Countering Abuser’s Attempts to Raise Immigration Status of the Victim in
Custody Cases, LEGAL MOMENTUM (2004), available
atwww.vaw.umn.edu/documents/breakingbarriers/6.1counteringabuserspdf.pdf (suggesting that
victims are often undocumented because their abusers have refused to file immigration papers
for them).
9
Mary Ann Dutton et al., Characteristics of Help Seeking Behaviors, Resources and Service
Needs of Battered Immigrant Latinas: Legal and Policy Implications, 7 GEO. J. ON POVERTY L.
&POL’Y 245, 250 (2000) (stating that 48% of Latinas in one study reported their partners’
violence against them increased upon immigrating to the United States); Giselle Aguilar Hass et
al., Battered Immigrants and U.S. Citizen Spouses, LEGAL MOMENTUM (2006), available at
http://www.mcadsv.org/webinars/IR-2007-April/VI/BatteredImmigrantsUSCitizenSpouses.pdf
(citing a survey conducted by Ayuda demonstrating that 31% of battered women reported an
increase in the incidences of abuse after immigration into the U.S., while 9% reported abuse
began with immigration).
6
the issues facing non-citizen victims and develop an understanding of the legal remedies, more
help will become available to this underserved and vulnerable population.
Note on Confidentiality and Safety Planning in Working with Immigrant Victims
Working with survivors of domestic violence and sexual abuse requires close attention to safety
planning and confidentiality, and understanding these issues is critical for practitioners working
with non-citizen victims. It is important for practitioners to realize the paramount importance of
maintaining confidentiality as well as the importance of explaining to their clients how their
confidentiality will be protected. This is necessary not only to protect the client’s interests, but
also to encourage their full disclosure of the details of their unique situation so that the
practitioner can provide appropriate advice and assistance.
Advocates and attorneys should explain to their clients that legal remedies available to noncitizen victims are designed to address confidentiality concerns. 10 These provisions also provide
that DHS cannot make an adverse determination regarding the admissibility or deportability of a
non-citizen using information furnished solely by an abusive family member or other perpetrator
of abuse. 11 Further, DHS, DOJ, and DOS cannot disclose any information relating to a noncitizen who has applied for U, T, or VAWA relief. 12 As a rule, USCIS will not even confirm the
existence of a victim-based application to anyone but the applicant or the representative. 13 Any
official who violates these confidentiality provisions is subject to disciplinary action, as well as
up to $5,000 in fines. 14 Complaints for violations of confidentiality provisions are made to the
Office for Civil Rights and Civil Liberties at DHS. 15
As with all victims of domestic violence and sexual abuse, safety planning is a critical
component of legal services. Advocates should work with non-citizen victims to develop a
comprehensive and individualized safety plan which addresses their unique needs. This may
require modification of normal safety planning by determining the immigration implications of
safety planning and planning for other safety issues arising from pursuing immigration status.16
For example, when safety planning with a non-citizen victim, the retention of documentation
relating to the immigration process, as well deciding where to keep that documentation is
essential. Because abusers may attempt to hide or destroy important identification or
immigration-related documents as an attempt to control the victim, making copies and keeping
those copies safe is extremely important.
10
See generally, 8 U.S.C. § 1367; Non-Disclosure and Other Prohibitions Relating to Battered
Aliens: IIRIRA §384 (May 12, 1997); Interim Guidance Relating to Officer Procedure Following
Enactment of VAWA 2005 (Jan. 22, 2007).
11
8 U.S.C. § 1367(a)(1).
12
8 U.S.C. § 1367(a)(2); see also 8 C.F.R. § 214.14(e).
13
Interview with Lisa Hurlbutt (Mar. 14, 2012).
14
8 U.S.C. § 1367(c).
15
Complaints should include the victim’s contact information, a written description of the
specific circumstances, relevant documents, and a summary of any other steps taken to resolve
the complaint. See “Reporting a Violation of the VAWA Confidentiality Provisions.”
Complaints should be submitted in writing via e-mail, fax or regular mail to: U.S. Department of
Homeland Security, Office for Civil Rights and Civil Liberties, Compliance Branch, 245 Murray
Lane, SW, Building 410, Mail Stop #0190, Washington, D.C. 20528; E-mail: [email protected];
Fax: (202) 401-4708.
16
Interview with Gail Pendleton (Feb. 9, 2012).
7
As part of safety planning, clients should consider placing the following documents in a safe
place that she will continue to have access to upon leaving her abuser:












Birth certificates (for herself and children)
Passport
1-94 entry/departure record
Permanent resident card (green card)
Social Security Card
USCIS issued employment authorization
All other immigration related documents, including receipt and other notices
Orders of Protection and other court documents such as divorce
Social security number of her spouse and the parent of her child(ren)
Copy of the most recent pay stub of her spouse and the parent of her child(ren)
Copy of tax returns
Copies of her spouse’s birth certificate, social security card, green card, or
naturalization certificate. 17
As with all survivors of domestic violence and sexual abuse, it is important to be sure to use
a safe address, phone number, and email address for all communications regarding the
client’s case. Furthermore, working with non-citizen victims sometimes presents challenging
language barriers. While it may be tempting to turn to a relative or community member who
knows the victim for interpretation, it is considered best practice to refrain from using these
individuals and rather have a qualified interpreter that has been trained in providing
interpretation, will keep all communications confidential, and who has no conflicts of interest
in working with the victim. 18 Again, maintaining confidentiality is paramount when
involving third parties for interpretation purposes.
One of the primary goals in working with this population of clients is to help them gain
independence and freedom from the cycle of abuse. Domestic violence and sexual abuse
advocates and attorneys should remember that victims, both citizen and non-citizen alike, are
the best resources for knowing what is going to keep them safe. It is important to involve
them in all decision making and to respect their choices, regardless of whether the advocate
would make that choice for him or herself.
Disclaimer: This Handbook is a brief discussion of the listed remedies, and does not purport
to cover all aspects of immigration law that may be applicable to victims of domestic
violence and sexual assault. Legal professionals should not rely upon this as an exclusive
source for obtaining information related to the remedies covered in this Handbook. This
Handbook is NOT a substitute for legal advice or representation.
17
NATIONAL IMMIGRANT JUSTICE CENTER, PRO BONO ATTORNEY MANUAL ON LEGAL
IMMIGRATION PROTECTIONS FOR IMMIGRANT SURVIVORS OF DOMESTIC VIOLENCE, 19 (2011).
18
Interview with Christie Popp (Feb. 24, 2012); Interview with Chic Dabby-Chinoy (Mar. 20,
2012); Interview with Sameera Hafiz (Mar. 14, 2012).
8
U Visa
Description
The U Visa is a nonimmigrant visa that was created by the Victims of Trafficking and
Violence Prevention Act to protect victims of certain serious crimes, including domestic
violence and sexual assault. Ten thousand visas are available each year. The U visa allows
certain non-citizen crime victims to live and work in United States for up to four years. The
U visa also provides an opportunity for the applicant to apply for permanent residency after
three years in U nonimmigrant status. The victim does not need to be related to the
perpetrator of the crime, and the perpetrator does not need to have lawful immigration status.
A victim applies for the U visa by filing Form I-918 with the USCIS Vermont Service
Center. An applicant who is granted U nonimmigrant status is eligible for employment
authorization, and may apply for derivative family members.
Eligibility Requirements
A victim must meet the following requirements to be eligible for a U visa:
1. The non-citizen suffered substantial physical or mental abuse as a result of having
been a victim of certain criminal activity;
2. The non-citizen (or in the case of a non-citizen child under the age of 16, the parent,
guardian or next friend of the child) possesses information concerning that criminal
activity;
3. The non-citizen (or in the case of a non-citizen child under the age of 16, the parent,
guardian or next friend of the child) has been helpful, is being helpful, or is likely to be
helpful in the investigation or prosecution of the criminal activity; and
4. The criminal activity violated the laws of the United States or occurred in the United
States. 19
The applicant must be also be admissible to the United States as a nonimmigrant, and be in
possession of a valid, unexpired passport. 20
Victim of an Enumerated Criminal Activity
Qualifying certain criminal activity is defined as one of the listed crimes below, or
substantially similar activity. 21
Crimes Covered:
Rape
Kidnapping
Torture
Abduction
Trafficking
Unlawful criminal restraint
Incest
False imprisonment
Domestic violence
Blackmail
Sexual assault
Extortion
Abusive sexual contact
Manslaughter
19
INA § 101(a)(15)(U); 8 C.F.R. 214.14(b).
8 C.F.R. § 214.1(a)(3); See INA § 212 for grounds of inadmissibility.
21
INA § 101(a)(15)(U)(i)(IV); 8 C.F.R. § 214.14(b)(4).
9
20
Prostitution
Sexual exploitation
Female genital mutilation
Being held hostage
Peonage
Involuntary servitude
Murder
Felonious assault
Witness tampering
Obstruction of justice
Perjury
Slave trade 22
The term “any similar activity” refers to criminal offenses in which the nature and elements
of the crimes are substantially alike to the statutorily enumerated list of criminal
activities. 23The crime also must have occurred in the territory of United States or violate a
U.S. law. 24
Direct or Indirect Victims
Both direct and indirect victims of a qualifying crime can apply for a U visa. 25A direct
victim is a person who suffered direct or proximate harm as a result of the crime. 26
Indirect victims are defined by the following situations:
1. The non-citizen spouse, children under 21 years of age and, if the direct victim is under
21 years of age, parents and unmarried siblings under 18 years of age, where the direct
victim is dead because of murder or manslaughter, or is incompetent or incapacitated, and
so unable to supply information for criminal activity or be helpful in the investigation or
prosecution of the criminal activity. 27
2. A victim of witness tampering, obstruction of justice, or perjury, if the offender
committed the offense to (1) escape or frustrate efforts to investigate, arrest, prosecute, or
otherwise bring to justice the perpetrator for other criminal activity committed against the
direct or indirect victim, or (2) to further the perpetrator’s abuse, exploitation of, or undue
control over the U visa applicant through operation of the legal system. 28
The person guilty of the qualifying crime that is being investigated or prosecuted is excluded
from being a victim of any qualifying activity. 29
Substantial Physical or Mental Abuse
The applicant must prove that he or she suffered substantial physical or mental abuse due
to being a victim of the qualifying crime. 30 Physical or mental abuse is injury or harm to the
22
8 C.F.R. § 214.14(a)(9).
8 C.F.R. § 214.14(a)(9).
24
INA § 101(a)(15)(U)(i)(IV); 8 C.F.R. § 214.14(b)(4).
25
8 C.F.R. § 214.14(a)(14).
26
8 C.F.R. § 214.14(a)(14).
27
8 C.F.R. § 214.14(a)(14)(i).
28
8 C.F.R. § 214.14(a)(14)(ii)(B).
29
8 C.F.R. § 214.14(a)(14)(iii).
30
INA § 101(a)(15)(U)(i)(I); 8 C.F.R. § 214.14(b)(1); see also “Showing Substantial Physical or
Mental Abuse (Harm)” within the “Clearinghouse of materials” under ASISTA resources in
Appendix B for more information on proving substantial abuse.
10
23
victim’s physical person, or harm to or impairment of the emotional and psychological
soundness of the victim. 31
Substantiality of abuse is based on a number of factors including:
1.
2.
3.
4.
5.
The nature of the hurt inflicted or suffered;
The harshness of the perpetrator’s behavior;
The cruelty of harm suffered;
The length of the infliction of harm; and
The level of permanent or serious harm to the appearance, health, or physical or mental
soundness of the victim, including the aggravation of pre-existing conditions. 32
A series of acts taken together may be considered to establish substantial physical or mental
abuse, even where no particular act alone rises to that level. 33
Possession of Information
The applicant must possess credible and reliable information about the criminal activity of
which he or she has been a victim, including specific proof regarding the criminal activity to
help the investigation or prosecution. 34 When the victim is under 16 years of age at the time
the qualifying criminal activity occurred or is otherwise incapacitated or incompetent, a
parent, guardian, or “next friend” may possess evidence about the qualifying crime. 35A “next
friend” is a person who participates in a lawsuit in favor of an immigrant victim who is
incapacitated, incompetent, or under the age of 16, and who has suffered substantial physical
or mental abuse because of being a victim of a qualifying activity. 36
Law Enforcement Certification
An applicant must provide certification that he or she was helpful, is being helpful, or is
likely to be helpful in the criminal investigation or prosecution of the crime. 37 Similar to
possession of the required information, if the victim is under 16 years of age at the time that
the qualifying criminal activity first occurred, or is otherwise incapacitated or incompetent, a
parent, guardian, or “next friend” may provide the required help. 38The applicant cannot
decline or fail to supply “reasonably requested” assistance to law enforcement after any
initial help and beginning the U visa application process. 39To prove the helpfulness
requirement, the applicant must obtain certification on Form I-918, Supplement B, from a
31
8 C.F.R. § 214.14(a)(8).
8 C.F.R. § 214.14(b)(1).
33
8 C.F.R. § 214.14(b)(1).
34
INA § 101(a)(15)(U)(i)(II); 8 C.F.R. § 214.14(b)(2).
35
INA § 101(a)(15)(U)(i)(II); 8 C.F.R. § 214.14(b)(2).
36
8 C.F.R. § 214.14(a)(7).
37
INA § 101(a)(U)(i)(III); 8 C.F.R. § 214.14(b)(3).
38
8 C.F.R. § 214.14(b)(3).
39
8 C.F.R. § 214.14(b)(3).
11
32
federal, state, or local law enforcement official, or a judge investigating or prosecuting the
criminal activity. 40
 Practice Tip: Try to cultivate a good relationship with law
enforcement agencies, and educate them on the certification
process 41 and the benefits of U visas to law enforcement agencies
and the communities they protect. 42 Try to build relationships before
having a case that needs certification. 43
 Practice Tip: Explain to law enforcement that providing certification
is not the agency granting the visa, but just providing USCIS with
one piece of evidence in their determination.44 Use the DHS Guide
on U Visas for Law Enforcement Officers for this and for general
work with law enforcement officers. 45
This certification attests to the fact that the victim has been, is being, or is likely to be helpful
in the detection, investigation, or prosecution of that criminal activity. 46 The person who can
provide certification must be the head of the certifying agency, or any person in a supervisory
role that has been specifically designated by the head of the certifying agency, or a federal,
state or local judge. 47
 Practice Tip: Remember that certification can come from other
sources besides the police. 48
 Practice Tip: Try to look up as much information as possible
regarding assistance, such as court records, before asking for
certification. 49
The certification provides specific details about the nature of the crime being detected,
investigated, or prosecuted, and describes the applicant’s helpfulness. The certification can
be issued prior to completing the investigation, even at the very early stages of the
investigation into the criminal activity. It can also be issued during the investigation or after
the investigation has terminated. There is no cut-off date for issuing a certification. Form I918, Supplement B must be certified within the 6 months immediately preceding the
40
For more information on law enforcement certification, see “U Visa Law Enforcement
Certification Resource Guide” under Government Resources in Appendix B.
41
Interview with Gail Pendleton (Feb. 9, 2012); Interview with Rosa Gomez (Feb. 21, 2012);
Interview with Lisa Hurlbutt (Mar. 14, 2012); Interview with Sameera Hafiz (Mar. 14, 2012).
42
Interview with Lisa Hurlbutt (Mar. 14, 2012).
43
Interview with Gail Pendleton (Feb. 9, 2012).
44
Interview with Gail Pendleton (Feb. 9, 2012); Interview with Rosa Gomez (Feb. 21, 2012);
Interview with Sameera Hafiz (Mar. 14, 2012).
45
Interview with Gail Pendleton (Feb. 9, 2012).
46
8 C.F.R. § 214.14(c)(2)(i).
47
8 C.F.R. § 214.14(a)(3).
48
Interview with Sameera Hafiz (Mar. 14, 2012).
49
Interview with Lisa Hurlbutt (Mar. 14, 2012).
12
filing of the U visa application. 50 The applicant must submit the U visa application with the
completed, original certification form to USCIS before this expiration. To be eligible for
lawful permanent residence, the victim has an ongoing responsibility to provide assistance to
the investigation or prosecution when reasonably requested. 51
 Practice Tip: Encourage the law enforcement agency to have a
written policy regarding how it wants the certification process to go,
and to designate one person to receive and decide U visa
certifications. This provides consistency in the process, and also
makes education easier. 52
Admissibility
A U visa applicant not only must prove his or her eligibility, but also must prove that he or
she is admissible to the United State as a nonimmigrant. 53 If the applicant is not admissible,
he or she must prove that a waiver is available. 54 The statutory grounds of inadmissibility are
listed in INA § 212(a).
 Practice Tip: Grounds of inadmissibility can be one of the most
difficult aspects of immigration law for a new practitioner. Consider
asking someone with more experience for help if there is a criminal
issue. 55
Some frequent grounds of inadmissibility include:
1.
2.
3.
4.
5.
6.
7.
8.
50
Entering without inspection;
Criminal convictions;
Security grounds;
Fraud or Misrepresentation;
False claims to U.S. citizenship;
Health conditions or substance abuse;
Prior deportations; and
Unlawful presence. 56
8 C.F.R. § 214.14(c)(2)(i).
For a more thorough discussion of law enforcement certification, see “U Visa Law
Enforcement Certification Resource Guide for Federal, State, Local, Tribal and Territorial Law
Enforcement” under government resources in Appendix B.
52
Interview with Lisa Hurlbutt (Mar. 14, 2012).
53
For a more thorough discussion of admissibility, see “Overcoming Inadmissibility for U Visa
Applicants” under Gail Pendleton Resources in Appendix C.
54
8 C.F.R. § 214.1(a)(3).
55
Interview with Christie Popp (Feb. 24, 2012).
56
INA § 212(a); see also NATIONAL IMMIGRANT JUSTICE CENTER, PRO BONO ATTORNEY
MANUAL ON IMMIGRATION RELIEF FOR CRIME VICTIMS: U VISAS, 23 (2011).
13
51
 Practice Tip: Grounds of inadmissibility most likely to arise include
single or, less frequently and more seriously, multiple unlawful
entries, criminal convictions (important to determine any arrests, as
dispositions must be provided), past immigration fraud or
misrepresentation, and helping others enter unlawfully, such as
children. Ask clients questions in many different ways to be sure that
they understand, especially as to arrest history which is frequently
confusing to them.57
 Practice Tip: Send your client’s fingerprints for an FBI criminal
background check for a full and accurate account of all crimes
committed by your client. 58
 Practice Tip: A client who is undocumented is usually not a big
problem unless there were multiple reentries, if there are no other
inadmissibility issues. 59
Note that there is no ground of inadmissibility for individuals who entered the United States
lawfully but have stayed beyond their authorized period of stay. 60
Waivers of Grounds of Inadmissibility
USCIS has discretion to waive all grounds of inadmissibility listed in INA § 212(a) for a U
visa by waiver request, except INA § 212(a)(3)(E) (relating to Nazi persecution, genocide,
torture, and extrajudicial killing). 61 The applicant must file Form I-192 to request a waiver
and pay the current fee or request a fee waiver. 62 This should be included with the I-918
application.
 Practice Tip: Address inadmissibility proactively, and make
arguments for waivers. 63
 Practice Tip: Waivers are more difficult to obtain for drug, gang,
and physical assault crimes than for illegal entry. 64
Filing the Application
To apply for a U visa, the applicant needs to complete Form I-918. 65 Though there is no
application fee for this form, a fee may be required for other aspects of the application, such
57
Interview with Lisa Hurlbutt (Mar. 14, 2012).
Interview with Rosa Gomez (Feb. 21, 2012); Interview with Christie Popp (Feb. 24, 2012).
59
Interview with Gail Pendleton (Feb. 9, 2012).
60
See INA § 212(a).
61
INA § 212(d)(14); 8 C.F.R. § 212.17(b)(1).
62
8 C.F.R. § 212.17(a).
63
Interview with Gail Pendleton (Feb. 9, 2012).
64
Interview with Rosa Gomez (Feb. 21, 2012).
14
58
as the biometrics fee or if a form for a waiver is required. Additionally, the applicant does
not need to file Form I-765 for employment authorization, as this information is taken
directly from the I-918. Employment authorization is automatically granted when the U visa
application is granted. 66 A cap of 10,000 U visas exists for each year, but this cap applies
only to principal applicants, not to derivative family members. 67
Any eligible applicants who are not granted a U visa because of the annual cap will be
placed on a waiting list. 68 Priority on the waiting list will be determined by the date the
petition was filed with the oldest petitions receiving the highest priority. 69USCIS will grant
deferred action or parole to U visa applicants and qualifying family members while the
principal applicants are on the waiting list. 70 USCIS may authorize employment for these
applicants and qualifying family members, at its discretion. 71
Derivative Family Members
When a victim is applying for U nonimmigrant status, he or she may also apply for
admission of immediate family members. 72 In the case of a victim under the age of 21, the
victim’s parents, unmarried siblings under the age of 18, spouses, and unmarried children
under the age of 21 will be eligible for derivative status. 73 In the case of a victim who is 21
years old or older, his or her spouse and unmarried children will be eligible for derivative
status. 74 The perpetrator of the criminal activity cannot obtain derivative status as a
qualifying family member. 75There is no annual limit of U visas for derivative family
members. 76 A victim can apply for a derivative family member using the I-918, Supplement
A application form, which may be filed with the principal I-918 application, or at a
subsequent time. 77 Additionally, the application for derivative family members must include
Form I-765 if the family member wishes to receive work authorization. 78
65
For a detailed list of material for the U visa application, see “Required material for U
Nonimmigrant Visa application” in Appendix A.
66
8 C.F.R. § 214.14(c)(7).
67
8 C.F.R. § 214.14(d)(1).
68
8 C.F.R. § 214.14(d)(2).
69
8 C.F.R. § 214.14(d)(2).
70
8 C.F.R. § 214.14(d)(2).
71
8 C.F.R. § 214.14(d)(2); 8 C.F.R. § 274a.12(c)(14).
72
INA § 101(a)(15)(U)(ii).
73
8 C.F.R. § 214.14(f).
74
8 C.F.R. § 214.14(f).
75
8 C.F.R. § 214.14(f)(1).
76
8 C.F.R. § 214.14(d)(2).
77
8 C.F.R. § 214.14(f)(2); see “Consular Processing for Overseas Derivative T and U
Nonimmigrant Status Family Members: Questions and Answers” for more information of filing a
derivative U application for a family member overseas.
78
8 C.F.R. § 214.14(f)(7).
15
 Practice Tip: When a derivative (U-3) child turns 21, he or she currently
will lose U nonimmigrant status (although a “fix” of this problem is
under consideration by policy makers at DHS), which poses a problem if
the necessary three years have not accrued in order to adjust status. The
age of children can be a way to prioritize cases. 79
 Practice Tip: Inadmissibility based on convictions for crimes tends to be
more problematic, especially for juvenile derivatives with a criminal
background who show no rehabilitation and for those in detention, since
rehabilitation is hard to show for them.80
Adjustment of Status to Lawful Permanent Resident for Principals and Derivatives
To adjust status to lawful permanent resident, the U nonimmigrant 81 must file Form I-485.82
U visa adjustment is governed by INA 245(m). 83A victim must meet the following
requirements to apply for permanent residency:
1. Was lawfully admitted to the United States as a U nonimmigrant and continues to hold
such status at the time of application; 84
2. Has continuous physical presence for 3 years; 85
a. Continuous physical presence means the period of time that the non-citizen has
been physically present in the United States and must be a continuous period of at
least 3 years since the date of admission as a U nonimmigrant continuing through
the date of the conclusion of adjudication of the application for adjustment of
status. 86
b. If the non-citizen has departed from the United States for any single period in
excess of 90 days or for any periods in the aggregate exceeding 180 days, the
applicant must include a certification from the agency that signed the Form I-918,
Supplement B, in support of the non-citizen's U nonimmigrant status that the
absences were necessary to assist in the criminal investigation or prosecution or
were otherwise justified. 87
79
Interview with Lisa Hurlbutt (Mar. 14, 2012).
Interview with Gail Pendleton (Feb. 9, 2012).
81
This section applies to applicants granted principal U nonimmigrant status (U-1), as well as
those granted derivative U nonimmigrant status (U-2, U-3, U-4, and U-5). See 8 C.F.R. §
245.24(a)(4).
82
For a detailed list of material for the adjustment of status application, see “Required material
for U Nonimmigrant Visa Adjustment of Status application” in Appendix A.
83
For a more thorough discussion of adjustment of status for a U nonimmigrant, see “U Visa
Adjustment of Status Guide” under in Appendix D.
84
8 C.F.R. § 245.24(b).
85
8 C.F.R. § 245.24(b).
86
8 C.F.R. § 245.24(a)(1).
87
8 C.F.R. § 245.24(a)(1).
16
80
3. Is not inadmissible under section 212(a)(3)(E) of the Act 88 (Note: Applicants do not
have to establish that they are admissible; the inadmissibility grounds at 212(a) do not
apply);
4. Has not unreasonably refused to provide assistance to an official or law enforcement
agency that had responsibility in an investigation or prosecution of persons in connection
with the qualifying criminal activity after the non-citizen was granted U nonimmigrant
status; 89
a. Refusal to provide assistance in a criminal investigation or prosecution is the
refusal by the non-citizen to provide assistance to a law enforcement agency or
official that had responsibility for the investigation or prosecution of persons in
connection with the qualifying criminal activity after the non-citizen was granted
U nonimmigrant status. 90
b. DHS will determine whether the non-citizen's refusal was unreasonable under the
totality of the circumstances based on all available affirmative evidence, and may
take into account such factors as general law enforcement, prosecutorial, and
judicial practices; the kinds of assistance asked of other victims of crimes
involving an element of force, coercion, or fraud; the nature of the request to the
non-citizen for assistance; the nature of the victimization; the applicable
guidelines for victim and witness assistance; and the specific circumstances of the
applicant, including fear, severe traumatization (both mental and physical), and
the age and maturity of the applicant. 91
5. Establishes to the satisfaction of the Secretary of Homeland Security that the noncitizen's presence in the United States is justified on humanitarian grounds, to ensure
family unity, or is in the public interest; 92 and
6. Merits a favorable exercise of discretion. 93
A victim who has had his or her U status revoked will not be eligible to adjust to lawful
permanent resident. 94
Derivative Adjustment of Status
A U nonimmigrant may also file a derivative application for adjustment of status for a
spouse, child, or parent, if the nonimmigrant is a child, who has not held U nonimmigrant
status. 95 To file as a derivative, the applicant must show that:
1. The qualifying family member has never held U nonimmigrant status; 96
2. The qualifying family relationship exists at the time of the principal's adjustment
and continues to exist through the adjudication of the adjustment or issuance of the
immigrant visa for the qualifying family member; 97
88
8 C.F.R. § 245.24(b).
8 C.F.R. § 245.24(b).
90
8 C.F.R. § 245.24(a)(5).
91
8 C.F.R. § 245.24(a)(5).
92
8 C.F.R. § 245.24(b).
93
8 C.F.R. § 245.24(f).
94
8 C.F.R. § 245.24(c).
95
8 C.F.R. § 245.24(g).
96
8 C.F.R. § 245.24(g)(1).
97
8 C.F.R. § 245.24(g)(2).
89
17
3. The qualifying family member or the principal U nonimmigrant would suffer
extreme hardship if the qualifying family member is not allowed to remain in or
enter the United States; 98 and
4. The principal U nonimmigrant has adjusted status to that of a lawful permanent
resident, has a pending application for adjustment of status, or is concurrently filing
an application for adjustment of status. 99
98
99
8 C.F.R. § 245.24(g)(3).
8 C.F.R. § 245.24(g)(4).
18
T Visas
Description
The T visa is a nonimmigrant visa that was created by the Victims of Trafficking and
Violence Protection Act to combat the trafficking in persons. 100 Five thousand T visas are
available each year. The T visa allows trafficking victims to live and work legally in the
United States for up to four years. Further, it allows eligible victims to adjust to permanent
residency after three years of T nonimmigrant status. Similar to the U visa, a victim applying
for the T visa does not need to be related to the perpetrator of the trafficking, and the
perpetrator does not need to have legal immigration status. A trafficking victim applies for
the T visa by filing Form I-914 with the USCIS Vermont Service Center. An applicant who
is granted T nonimmigrant status is qualified for employment authorization, and may apply
for derivative family members under this visa.
 Practice Tip: Serving an individual client through both a domestic
violence and human trafficking lens increases the likelihood that the
entirety of the client’s needs will be addressed appropriately. 101
Eligibility Requirements
To be eligible for a T visa, the nonimmigrant must:
1. Be or have been a victim of severe forms of trafficking in humans; 102
2. Be physically present in the U.S., American Samoa, or the Commonwealth of the
Northern Mariana Islands, or at a port of entry, on account of such trafficking, which
includes physical presence on account of the non-citizen having been allowed entry into
the United States for participation in investigative or judicial processes associated with an
act or a perpetrator of trafficking; 103
3. Comply with reasonable requests from law enforcement agencies for assistance in the
investigation or prosecution of human trafficking; 104UNLESS
a. physically or psychologically unable to assist law enforcement or
b. under the age of 18 105
4. Demonstrate extreme hardship involving severe and unusual harm if removed from
the US. 106
100
For more discussion of human trafficking victims see “Meeting the Legal Needs of Human
Trafficking Victims: An Introduction for Domestic Violence Attorneys & Advocates” and
“Meeting the Legal Needs of Child Trafficking Victims: An Introduction for Children’s
Attorneys & Advocates” under the American Bar Association resources in Appendix B.
101
“Meeting the Legal Needs of Human Trafficking Victims: An Introduction for Domestic
Violence Attorneys & Advocates,” 6 under American Bar Association resources in Appendix B.
102
INA § 101(a)(15)(T)(i)(I).
103
INA § 101(a)(15)(T)(i)(II).
104
INA § 101(a)(15)(T)(i)(III).
105
INA § 101(a)(15)(T)(i)(III).
106
INA § 101(a)(15)(T)(i)(IV).
19
Victim of Severe Human Trafficking
“Severe Forms of Trafficking in Humans” is defined as:
1. 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
a. “Sex trafficking” is further defined as the recruitment, harboring, transportation,
provision, or obtaining of a person for the purpose of a commercial sex act. 107
b. “Commercial sex act” means any sex act on account of which anything of value
is given to or received by any person. 108
c. “Coercion” is defined as:
i. Threats of serious harm to or physical restraint against any person;
ii. Any scheme, plan, or pattern intended to cause a person to believe that
failure to perform an act would result in serious harm to or physical
restraint against any person; or
iii. The abuse or threatened abuse of the legal process. 109
2. 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. 110 This is often referred to as
“labor trafficking.”
a. “Debt bondage” means the status or condition of a debtor arising from a pledge
by the debtor of his or her personal services or of those of a person under his or
her control as a security for debt, if the value of those services as reasonably
assessed is not applied toward the liquidation of the debt or the length and nature
of those services are not respectively limited and defined. 111
b. “Involuntary servitude” includes a condition of servitude induced by means of:
i. Any scheme, plan, or pattern intended to cause a person to believe that, if
the person did not enter into or continue in such condition, that person or
another person would suffer serious harm or physical restraint; or
ii. The abuse or threatened abuse of the legal process. 112
c. “Peonage” is a status or condition of involuntary servitude based upon real or
alleged indebtedness. 113
Thus, to qualify for labor trafficking, three steps of requirements must be met – a process, a
means, and an ends. Labor trafficking requires the process of the victimization
(“recruitment, harboring, transportation, provision, or obtaining of a person for labor or
services”), the means used to obtain the victim (“through the use of force, fraud, or
coercion”), and the ends or purpose for obtaining the victim (for the purpose of subjection to
involuntary servitude, peonage, debt bondage, or slavery). Sex trafficking forgoes the
107
22 U.S.C. §7102(9).
22 U.S.C. §7102(3).
109
22 U.S.C. §7102(2).
110
22 U.S.C. §7102(8).
111
22 U.S.C. §7102(4).
112
22 U.S.C. §7102(5).
113
8 C.F.R. § 214.11(a).
108
20
process, but parallels the means used (“induced by force, fraud, or coercion”), as well as the
ends or purpose (to induce “a commercial sex act”). Additionally, in the case where the
victim is under the age of 18, only the ends or purpose is required, omitting the need for a use
of force, fraud or coercion. 114
 Practice Tip: Remember that the T visa can be used for individual
cases, and not only large trafficking operations. 115
Physical Presence on account of Trafficking
The requirement of being physically present in the United States on account of
trafficking extends to a victim who:
1. Is present because he or she is being subjected to a severe form of trafficking in persons;
2. Was recently liberated from a severe form of trafficking in persons; or
3. Was subject to severe forms of trafficking in persons at some point in the past and whose
continuing presence in the United States is directly related to the original trafficking
in persons. 116
Thus, the focus of the physical presence requirement is not on the manner of or reason for
a victim’s entry into the United States, but rather on whether the victim’s current presence
is on account of the trafficking. However, if the victim has the chance to escape the
traffickers before the trafficking comes to the attention of law enforcement, the victim must
show that he or she did not have a clear chance to leave the United States in the interim.117
Additionally, if the victim voluntarily leaves or is removed from the United States after an
incident of trafficking, he or she will not be deemed to be physically present unless his or her
reentry was due to a continuation of the previous trafficking, or a new incident of
trafficking. 118
Compliance with Reasonable Requests from Law Enforcement
A “reasonable request for assistance” is defined as a reasonable request made by a law
enforcement officer or prosecutor to a victim of a severe form of trafficking in persons to
assist law enforcement authorities in the investigation or prosecution of the acts of trafficking
in persons. 119 A “law enforcement agency” is any Federal law enforcement agency that has
the responsibility and authority for the detection, investigation, or prosecution of severe
forms of trafficking in persons. 120The “reasonableness” of the request depends on the
totality of the circumstances taking into account general law enforcement and prosecutorial
114
See Kavitha Sreeharsha and Maria Joes Fletcher, HUMAN TRAFFICKING AND THE T-VISA, 4-5
(Legal Momentum).
115
Interview with Gail Pendleton (Feb. 9, 2012).
116
8 C.F.R. § 214.11(g).
117
8 C.F.R. § 214.11(g)(2).
118
8 C.F.R. § 214.11(g)(3).
119
8 C.F.R. § 214.11(a).
120
8 C.F.R. § 214.11(a).
21
practices, the nature of the victimization, and the specific circumstances of the victim,
including fear, severe traumatization, and the age and maturity of young victims. 121
Two general exceptions to the compliance requirement are:
1. When the victim has not yet reached 18 years of age; 122 or
2. When the victim is unable to cooperate with the request due to severe physical or
psychological trauma. 123
Evidence of compliance with reasonable requests from law enforcement agencies for
assistance in the investigation or prosecution may include primary or secondary evidence.
1. Primary evidence of compliance consists of a law enforcement agency endorsement
describing the assistance provided by the victim, though this endorsement is not
required. 124
2. Credible secondary evidence and affidavits may be submitted to show compliance and
that primary evidence is nonexistent or unavailable, and should demonstrate a good faith
effort to obtain an endorsement from a law enforcement agency. 125
a. The statement or evidence must show that a law enforcement agency that has
responsibility and authority for the detection, investigation, or prosecution of
severe forms of trafficking in persons has information about such trafficking in
persons, that the victim has complied with any reasonable request for assistance in
the investigation or prosecution of such acts of trafficking, and, if the victim did
not report the crime at the time, why the crime was not previously reported. The
statement or evidence should demonstrate that good faith attempts were made to
obtain the law enforcement agency endorsement, including what efforts the
applicant undertook to accomplish these attempts. In addition, applicants may also
submit their own affidavit and the affidavits of other witnesses. 126
Extreme Hardship Involving Severe and Unusual Harm
To be eligible for a T visa, a victim must demonstrate that he or she would suffer extreme
hardship involving severe and unusual harm if removed from the United States. 127 A
determination of extreme hardship is made on a case by case basis and all credible evidence
regarding the nature and the scope of the hardship will be considered. 128 However, such a
finding may not be based upon current or future economic detriment, or the lack of, or
121
8 C.F.R. § 214.11(a).
INA § 101(a)(15)(T)(i)(III)(cc). The regulations, which state that the victim must be under the
age of 15 to be exempt from the compliance requirement, are not as up to date as the statute on
this point.
123
INA § 101(a)(15)(T)(i)(III)(bb).
124
8 C.F.R. § 214.11(h)(1).
125
8 C.F.R. § 214.11(h)(2).
126
8 C.F.R. § 214.11(h)(2).
127
8 C.F.R. § 214.11(i).
128
8 C.F.R. § 214.11(i)(3).
22
122
disruption to, social or economic opportunities. 129 Also, hardship to people other than the
victim, such as hardship to family members, is not considered. 130 Factors in this
determination include, but are not limited to:
1. The age and personal circumstances of the applicant;
2. Serious physical or mental illness of the applicant that necessitates medical or
psychological attention not reasonably available in the foreign country;
3. The nature and extent of the physical and psychological consequences of severe forms of
trafficking in persons;
4. The impact of the loss of access to the United States courts and the criminal justice
system for purposes relating to the incident of severe forms of trafficking in persons or
other crimes perpetrated against the applicant, including criminal and civil redress for
acts of trafficking in persons, criminal prosecution, restitution, and protection;
5. The reasonable expectation that the existence of laws, social practices, or customs in the
foreign country to which the applicant would be returned would penalize the applicant
severely for having been the victim of a severe form of trafficking in persons;
6. The likelihood of re-victimization and the need, ability, or willingness of foreign
authorities to protect the applicant;
7. The likelihood that the trafficker in persons or others acting on behalf of the trafficker in
the foreign country would severely harm the applicant; and
8. The likelihood that the applicant's individual safety would be seriously threatened by the
existence of civil unrest or armed conflict. 131
Admissibility
A T visa applicant not only must prove his or her eligibility, but also must prove that he or
she is admissible to the United States as a nonimmigrant. 132 If the applicant is not
admissible, he or she must prove that a waiver is available. 133 The statutory grounds of
inadmissibility are listed in INA § 212(a).
Some frequent grounds of inadmissibility include:
1.
2.
3.
4.
5.
Entering Without Inspection
Criminal convictions
Security grounds
Fraud/Misrepresentation
False claims to U.S. citizenship, including unlawful voting and falsification of I-9 form
for employment
6. Health Conditions or Substance Abuse
7. Prior Deportations
8. Unlawful presence 134
129
8 C.F.R. § 214.11(i)(1).
8 C.F.R. § 214.11(i)(2).
131
8 C.F.R. § 214.11(i)(1).
132
8 C.F.R. § 214.1(a)(3).
133
8 C.F.R. § 214.1(a)(3).
134
INA § 212(a); see also National Immigrant Justice Center, PRO BONO ATTORNEY MANUAL ON
IMMIGRATION RELIEF FOR CRIME VICTIMS: U VISAS, 23 (2011).
23
130
 Practice Tip: Send your client’s fingerprints for an FBI criminal
background check for a full and accurate account of all crimes
committed by your client. 135
 Practice Tip: Victims sometimes engage in criminal acts that may
not appear related to trafficking, but are actually the result of it.
This can cause law enforcement officers to view them more as
offenders than victims.136
Note that there is no ground of inadmissibility for individuals who entered the United States
lawfully but have stayed beyond their authorized period of stay. 137
Waivers of Grounds of Inadmissibility
USCIS has discretion to waive all grounds of inadmissibility listed in INA § 212(a) for a T
visa by waiver request, except INA § 212(a)(3), (10)(C), and (10)(E). 138 Special
consideration will also be given when the inadmissibility was caused by or incident to the
acts that caused the victimization.139 Further, criminal and related grounds listed in INA §
212(a)(2) will only be waived in exceptional cases, unless the grounds were caused by or
related to the victimization described under INA § 101(a)(15)(T). 140The inadmissibility
ground of being a public charge does not apply to a T visa applicant. 141The applicant must
file Form I-192 to request a waiver and pay the current fee or request a fee waiver. 142 This
should be included in the I-914 application.
 Practice Tip: Address inadmissibility proactively, and make
arguments for waivers. 143
Filing the Application
To apply for a T visa, the applicant needs to complete Form I-914. 144 Though there is no
application fee for this form, a fee may be required for other aspects of the application, such
as the biometrics fee or if an application for a waiver is required. Additionally, the applicant
does not need to file Form I-765 for employment authorization, as this information is taken
135
Interview with Rosa Gomez (Feb. 21, 2012); Interview with Christie Popp (Feb. 24, 2012).
“Meeting the Legal Needs of Child Trafficking Victims: An Introduction for Children’s
Attorneys & Advocates,” 13 under American Bar Association resources in Appendix B.
137
See INA § 212(a).
138
INA § 212(d)(13)(A); 8 C.F.R. § 212.16(b)(1). These grounds of inadmissibility are security
and related grounds, international child abduction, and former citizens who renounced their
citizenship to avoid taxation.
139
8 C.F.R. § 212.16(b)(1).
140
8 C.F.R. § 212.16(b)(2).
141
INA § 212(d)(13)(A); 8 C.F.R. § 214.11(k)(1).
142
8 C.F.R. § 212.16(a).
143
Interview with Gail Pendleton (Feb. 9, 2012).
144
For a detailed list of material for the T visa application, see “Required material for T
Nonimmigrant Visa application” in Appendix A.
24
136
directly from the I-914. Employment authorization is automatically granted when the T visa
application is granted. 145 A cap of 5,000 T visas exists for each year, but this cap applies
only to principal applicants, not to derivative family members. 146
 Practice Tip: Unlike U visas, the allotment of T visas is not fully
utilized.147
Once this cap is reached in any given year, applications will continue to be reviewed in the
order in which they are received. 148A determination will made on the applicant’s eligibility
for a T visa, but the T visa will not be issued at that time. 149 Eligible applicants who are
not granted a T visa due to the cap are placed on a waiting list.150While on the waiting list,
the applicant will maintain his or her current means to prevent removal (deferred action,
parole, or stay of removal) and any employment authorization. 151Priority on the waiting list
is determined by the date the application was properly filed, with the oldest applications
receiving the highest priority. 152
 Practice Tip: Given that trafficking often intersects with other
crimes, such as domestic violence, it might be possible to pursue
multiple remedies concurrently for a client who is a victim of human
trafficking. 153
Two Step Process: Bona Fide Application + Adjudication
Once the application for a T visa has been submitted, an initial review will take place to
determine if the application is bona fide. 154 A determination of bona fide application will be
made if the application is properly filed, the application is complete, no appearance of
fraud exists, and the application presents prima facie evidence of each eligibility
requirement. 155 For an application to be deemed bona fide, the applicant must not be
inadmissible under INA § 212(a), 156 although the inadmissibility ground of being a public
charge does not apply to a T visa application. 157 The application may also be deemed bona
145
8 C.F.R. § 214.11(l)(4).
8 C.F.R. § 214.11(m); 8 C.F.R. § 214.11(o)(9).
147
Interview with Gail Pendleton (Feb. 9, 2012).
148
8 C.F.R. § 214.11(m)(1).
149
8 C.F.R. § 214.11(m)(1).
150
8 C.F.R. § 214.11(m)(2).
151
8 C.F.R. § 214.11(m)(2).
152
8 C.F.R. § 214.11(m)(2).
153
“Meeting the Legal Needs of Human Trafficking Victims: An Introduction for Domestic
Violence Attorneys & Advocates,” 21 under American Bar Association resources in Appendix
B.
154
8 C.F.R. § 214.11(k)(1).
155
8 C.F.R. § 214.11(k)(1).
156
8 C.F.R. § 214.11(k)(1).
157
INA § 212(d)(13); 8 C.F.R. § 214.11(k)(1).
25
146
fide once an applicant receives a waiver for any of the other grounds of inadmissibility. 158
Waivers of inadmissibility grounds are discretionary, and require an affirmative request. 159
If an application is incomplete, or if evidence of a requirement is insufficient, USCIS will
request additional evidence, issue a notice of intent to deny, or adjudicate the application on
its merits. 160If the application is bona fide, USCIS will then conduct ade novo review and
final adjudication of the application. 161
Derivative Family Members
When a victim is applying for T nonimmigrant status, he or she may also apply for admission
of immediate family members. 162 In the case of a victim under the age of 21, the victim’s
spouse, children, and unmarried siblings under the age of 18 will be eligible for this
derivative status. 163 In the case of a victim who is age 21 or older, his or her spouse and
children will be eligible for this derivative status. 164 Parents and siblings under the age of
18 may also be eligible if they face a present danger as a result of the victim having escaped
from trafficking or cooperation with law enforcement. 165 Derivative applications must also
show that extreme hardship would result, either on the part of the family member or on the
principal, if the family member was not admitted or, in the case where the family member is
present in the United States, was removed. 166 Factors used in evaluating extreme hardship
include, but are not limited to:
1. The need to provide financial support to the principal non-citizen;
2. The need for family support for a principal non-citizen; or
3. The risk of serious harm, particularly bodily harm, to an immediate family member from
the perpetrators of the severe forms of trafficking in persons. 167
A victim can apply for a derivative family member using the I-914 Supplement A
application form, which may be filed with the principal I-914 application, or at a subsequent
time. 168 Additionally, the application for derivative family members must include Form I765 if the family member wants to receive work authorization, as this will not automatically
be granted, as is the case with the principal applicant. 169
158
8 C.F.R. § 214.11(k)(1).
8 C.F.R. § 214.11(k)(1); See INA § 212(h) and Form I-601.
160
8 C.F.R. § 214.11(k)(2).
161
8 C.F.R. § 214.11(l).
162
INA § 101(a)(15)(T)(ii); 8 C.F.R. § 214.11(o)(1).
163
INA § 101(a)(15)(T)(ii)(I).
164
INA § 101(a)(15)(T)(ii)(II).
165
INA § 101(a)(15)(T)(ii)(III).
166
8 C.F.R. § 214.11(o)(5).
167
8 C.F.R. § 214.11(o)(5).
168
8 C.F.R. § 214.11(o)(2); see “Consular Processing for Overseas Derivative T and U
Nonimmigrant Status Family Members: Questions and Answers” for more information of filing a
derivative T application for a family member overseas.
169
8 C.F.R. § 214.11(o)(10).
26
159
Adjustment of Status to Lawful Permanent Resident for Principals and Derivatives
To adjust status to lawful permanent resident, the T nonimmigrant must file Form I-485. 170
A T nonimmigrant 171 must meet the following requirements to apply for permanent
residency:
1. Was lawfully admitted to the United States as a T nonimmigrant, and continues to hold
such status at the time of application; 172
2. Has been physically present in the United States for a continuous period of at least 3
years since the first date of lawful admission as a T–1 nonimmigrant or has been
physically present in the United States for a continuous period during the investigation or
prosecution of acts of trafficking and the Attorney General has determined that the
investigation or prosecution is complete, whichever period of time is less; 173
a. If the applicant has departed from the United States for any single period in
excess of 90 days or for any periods in the aggregate exceeding 180 days, the
applicant shall be considered to have failed to maintain continuous physical
presence in the United States 174
3. Is admissible to the United States, or otherwise has been granted a waiver of any
applicable ground of inadmissibility at the time of examination for adjustment; 175
4. Has been a person of good moral character since first being lawfully admitted as a T
nonimmigrant and until the USCIS completes the adjudication for adjustment of status; 176
5. Has complied with any reasonable request for assistance in the investigation or
prosecution of acts of trafficking, or would suffer extreme hardship involving unusual
and severe harm upon removal; 177 and
6. Merits a favorable exercise of discretion. 178
In proving good moral character, the victim must submit the following evidence:
1. An affidavit from the applicant attesting to his or her good moral character, accompanied
by a local police clearance or a state-issued criminal background check from each locality
or state in the United States in which the applicant has resided for 6 or more months
during the requisite period in continued presence or T–1 nonimmigrant status. 179
170
For a detailed list of material for the adjustment of status application, see “Required material
for T Nonimmigrant Visa Adjustment of Status application” and “Required material for T
Nonimmigrant Derivative Visa Adjustment of Status application” in Appendix A.
171
This section applies to applicants granted principal T nonimmigrant status, as well as those
granted derivative T nonimmigrant status. See 8 C.F.R. § 245.23(a) and 8 C.F.R. § 245.23(b).
172
8 C.F.R. § 245.23(a)(2).
173
8 C.F.R. § 245.23(a)(3).
174
8 C.F.R. § 245.23(a)(3).
175
8 C.F.R. § 245.23(a)(4).
176
8 C.F.R. § 245.23(a)(5).
177
8 C.F.R. § 245.23(a)(6).
178
8 C.F.R. § 245.23(e)(3).
179
8 C.F.R. § 245.23(g)(1).
27
2. If police clearances, criminal background checks, or similar reports are not available for
some or all locations, the applicant may include an explanation and submit other evidence
with his or her affidavit. 180
3. USCIS will consider other credible evidence of good moral character, such as affidavits
from responsible persons who can knowledgeably attest to the applicant's good moral
character. 181
In addition, the victim must show that discretion should be exercised in his or her
favor. 182Mitigating evidence may be submitted to offset any adverse factors, and the victim
may have to show exceptional and extremely unusual hardship as a result of a denial of
adjustment. 183
180
8 C.F.R. § 245.23(g)(2).
8 C.F.R. § 245.23(g)(3).
182
8 C.F.R. § 245.23(e)(3).
183
8 C.F.R. § 245.23(e)(3).
181
28
VAWA Self-Petition
Description
The VAWA Self-Petition was created by the Violence Against Women Act (VAWA) to
provide immigrant victims with a legal remedy for obtaining a legal immigration status
independently of their abusers. The self-petition allows the victim of abuse who is otherwise
eligible for family-based immigration to adjust status without relying on the abuser for the
petition. However, unlike the U and T visas, a self-petition requires a family relationship,
such as spousal or parent-child, with the abuser, and requires the abuser to be a U.S. citizen
or lawful permanent resident (“LPR”). A victim applies for a VAWA self-petition by filing
Form I-360 with the USCIS Vermont Service Center. Once a self-petition is approved, the
victim may apply for adjustment of status to lawful permanent resident. This will provide the
victim with a route for employment authorization, as well as the ability to apply for certain
derivative family members.
Attorneys and advocates working with this remedy should also have an understanding of
family-based immigration. Family-based immigration takes two routes: visas for immediate
relatives of U.S. citizens and family preference visas. 184 Visas for the immediate relatives of
U.S. citizens are not subjected to limitations, and thus eligible family members are able to
apply to adjust to LPR status immediately. 185Immediate relatives of U.S. citizens are
defined as spouses, unmarried children under the age of 21, and parents of citizens who are at
least 21 years old. 186 Family preference visas, however, are limited each year based on one
of four preference categories and the country of origin. 187 The first preference category
consists of unmarried sons and daughters of U.S. citizens.188 The second preference
category consists of the spouses, children, and unmarried sons and daughters of LPRs. 189
The third preference category consists of married sons and daughters of U.S. citizens. 190
Finally, the fourth preference category consists of brothers and sisters of U.S. citizens who
are at least 21 years old. 191 When the number of qualified applicants exceeds the quota, or
the number of available visas, the eligible applicant will have to wait for an available visa.
Visas are issued in chronological order based on when the application is filed, also called the
“priority date.” Once the priority date is reached, a visa is issued and the applicant may
apply for adjustment of status. Understanding the mechanics of the family-based
immigration scheme is important when handling VAWA and related cases because familybased immigration underlies the VAWA remedies.
184
See National Immigrant Justice Center, PRO BONO ATTORNEY MANUAL ON LEGAL
IMMIGRATION PROTECTIONS FOR IMMIGRANT SURVIVORS OF DOMESTIC VIOLENCE, 20-21 (2011).
185
INA § 201(b)(2)(A)(i).
186
INA § 201(b)(2)(A)(i).
187
INA § 203(a).
188
INA § 203(a)(1).
189
INA § 203(a)(2).
190
INA § 203(a)(3).
191
INA § 203(a)(4).
29
Eligibility Requirements
In order for an applicant to file for a VAWA self-petition, he or she must prove:
1. A qualifying relationship;
2. That the abuser was a U.S. citizen or LPR;
3. A legal and good faith marriage, in the case that the qualifying relationship is that of a
spouse;
4. Battery or extreme cruelty;
5. Residence with the abuser; and
6. Good moral character. 192
Qualifying Relationship
The following persons can apply for a VAWA self-petition:
1. An abused spouse of a U.S. citizen or LPR; 193
2. A non-abused spouse of a U.S. citizen or LPR whose child is abused by the U.S. citizen
or LPR spouse, even if the child is not related to the U.S. citizen or LPR abuser; 194
3. Abused parents of a U.S. citizen children where the abusive child is 21 years of age or
older; 195
4. An abused child of a U.S. citizen or LPR parent; 196 or
5. An abused “intended spouse” of a U.S. citizen or LPR. 197
a. The term “intended spouse,” means an individual who believes that she or he has
married a U.S. citizen or LPR and for whom a marriage ceremony was actually
performed, but whose marriage is not legitimate solely because of the U.S.
citizen’s or LPR’s bigamy (i.e. previously married and did not legally terminate
that marriage before entering into the current marriage). 198
Immigration Status of Abuser
When applying for a VAWA self-petition, the applicant must prove that the abuser is a U.S.
citizen or LPR. 199 The following circumstances may also allow for the requisite status of
the abuser:
1. If the abuser loses or renounces his or her U.S. citizenship or LPR status, the victim
may still qualify for a self-petition, but the application must be filed within 2 years of the
date the abuser loses or renounces his U.S. citizenship or LPR status. 200
192
See INA § 204(a); see also “Document Gathering for Self-Petitioning Under the Violence
Against Women Act” under Immigrant Legal Resource Center resources in Appendix B for more
information on providing evidence for each of the requirements.
193
INA §204(a)(1)(A)(iii); INA §204(a)(1)(B)(ii).
194
INA §204(a)(1)(A)(iii)(I)(bb) and INA §204(a)(1)(B)(ii)(1)(bb).
195
INA §204(a)(1)(A)(vii).
196
INA §204(a)(1)(A)(iv); INA §204(a)(1)(B)(iii).
197
INA §204(a)(1)(A)(iii)(II)(aa)(BB) ; INA §204(a)(1)(B)(ii)(II)(aa)(BB) .
198
INA §101(a)(50).
199
INA §204(a)(1)(A)(iii)(I)(aa); INA §204 (a)(1)(B)(ii)(I)(aa); INA §204(a)(1)(A)(iv); INA
§204(a)(1)(B)(iii).
30
2. An abuser losing proper immigration status after filing the self-petition application
will have no effect on the applicant’s case for self-petition or adjustment of status. 201
 Practice Tip: Note that proving the abuser’s status can be tricky
when you have no access to information. 202
Marriage
If an applicant is filing as the spouse of a U.S. citizen or LPR, the applicant must establish
that he or she is or was legally married to the U.S. citizen or LPR abuser, and that he or she
married in “good faith,” and not for immigration purposes. 203
Legal Marriage
A legal marriage for immigration purposes must be valid in the state or country in which it
was executed, and must not violate public policy. 204If a marriage was not valid because the
abuser’s prior or concurrent marriage was not legally terminated, a self-petitioner may
nevertheless be filed if the applicant believed that the marriage was valid and can prove that
the marriage ceremony was executed. This is referred to as an “intended marriage.” 205
Good Faith Marriage
The applicant must prove that his or her marriage intent was in “good faith” and it was not
because of immigration purposes. 206All credible relevant evidence of good faith at the time
of marriage will be considered, and may include proof that one spouse has been listed as the
other's spouse on insurance policies, property leases, income tax forms, or bank accounts;
and testimony or other evidence regarding courtship, wedding ceremony, shared residence
and experiences. 207The birth certificates of children born to the abuser and the spouse; police,
medical, or court documents providing information about the relationship; and affidavits of
persons with personal knowledge of the relationship may also be used to prove good faith. 208
A self-petition will not be denied solely because the spouses are not living together and the
marriage is no longer viable. 209
 Practice Tip: For VAWA self-petitioners, make sure that good faith
marriage is heavily documented, as applications are often denied on
this ground. 210
200
INA §204(a)(1)(A)(iii)(II)(aa)(CC)(bbb);INA §204(a)(1)(B)(ii)(II)(aa)(CC)(aaa).
INA §204(a)(1)(A)(vi); INA §204(a)(1)(B)(v)(I).
202
Interview with Aimee Todd (Feb. 29, 2012).
203
INA §204(a)(1)(A)(iii)(II)(aa)(CC); INA §204(a)(1)(B)(ii)(II)(aa)(CC).
204
INA §204(a)(1)(A)(iii)(I)(bb).
205
INA §101 (a)(50).
206
INA §204(a)(1)(A)(II)(aa)(CC).
207
8 C.F.R. § 204.2(c)(2)(vii).
208
8 C.F.R. § 204.2(c)(2)(vii).
209
8 C.F.R. § 204.2(c)(1)(ix).
210
Interview with Lisa Hurlbutt (Mar. 14, 2012).
31
201
Divorce
A VAWA self-petitioner can only apply before the termination of the marriage. The only
exception for filing a VAWA self-petition after divorce is when the applicant can
demonstrate a connection between the divorce and domestic violence, and applies within
two years of the divorce. 211 The divorce decree is not required to demonstrate that the
divorce was due to domestic violence, but rather the applicant must prove that the abuse or
extreme hardship led to the divorce. 212
A VAWA self-petitioner can apply for divorce only after filing the self-petition application,
and is not required to wait for the process to be completed and the application
approved. 213However, if the applicant remarries while the application is pending, it will be
denied. 214 The applicant may remarry after the self-petition is approved. 215
 Practice Tip: For VAWA self-petitioners, encourage clients not to
file for divorce until the application is filed. Otherwise, a divorced
spouse must file a VAWA self-petition within two years of the
divorce, and establish a connection between the divorce and the
battery or extreme cruelty. 216
Bigamy
If the self-petitioner is not legally married to the abuser because of the abuser’s bigamy, the
applicant may still qualify if the applicant can prove that he or she believed she was legally
married to the abuser. 217
The following forms of evidence may be used to prove this belief:
1.
2.
3.
4.
5.
211
A marriage certificate;
A marriage license application;
Photographs of the wedding ceremony;
Affidavits from persons attending the wedding ceremony; and
An affidavit from self-petitioner supporting why she believed she legally married the
abuser, and why she believed her marriage was valid.
INA §204(a)(1)(A)(iii)(II)(aa)(CC)(ccc); INA §204(a)(1)(B)(ii)(II)(aa)(CC)(ccc).
INA §204(a)(1)(A)(iii)(II)(aa)(CC)(ccc); INA §204(a)(1)(B)(ii)(II)(aa)(CC)(ccc).
213
8 C.F.R. § 204.2(c)(1)(ii).
214
8 C.F.R. § 204.2(c)(1)(ii).
215
8 C.F.R. § 204.2(c)(1)(ii).
216
Interview with Lisa Hurlbutt (Mar. 14, 2012).
217
INA § 204(a)(1)(A)(iii)(II)(aa)(BB); INA § 204(a)(1)(B)(ii)(II)(aa)(BB).
32
212
Death of the Abuser
If the self-petitioner was the spouse of an abusive U.S. citizen (not a permanent resident)
who died within the past two years, the victim can still apply for a self-petition. 218
The following documents must be provided:
1. A marriage certificate;
2. A death certificate of the U.S. citizen spouse; and
3. Proof of U.S. citizenship
a. This may include a U.S. passport, birth certificate, or naturalization certificate
Battery and/or Extreme Cruelty
For a VAWA self-petition, the applicant must prove that he or she has been battered or has
been the subject of extreme cruelty by a U.S. citizen or LPR spouse, parent, or child. 219 In
spousal cases, abusive behavior must occur during the marriage. 220 Abusive behavior is
broadly defined to cover physical, sexual, psychological, and economic coercion
behaviors. 221
Definitions of abuse include abusive behavior that may not appear violent, but is part of a
general pattern of violence. Abuse must rise to a certain level of severity, but is not required
to be physical.
No exhaustive list exists of acts that constitute “battery or extreme cruelty,” and the
definition of such is flexible. 222The following list provides examples of non-physical abuse
that may constitute extreme cruelty:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Social isolation of the victim;
Accusations of infidelity;
Incessantly calling, writing or contacting her;
Interrogating her friends and family members;
Threats;
Economic abuse;
Not allowing the victim to get a job;
Controlling all money in the family; and/or
Degrading the victim 223
If an action was deliberately used to perpetrate extreme cruelty against the victim, it may be
considered abuse. The victim must show that the abusive behavior was not only abusive, but
also rose to the level of extreme cruelty.
218
INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(aaa).
INA § 204(a)(1)(A); INA § 204(a)(1)(B).
220
INA §204(a)(1)(A)(iii); INA §204(a)(1)(B)(ii).
221
8 C.F.R. § 204.2(c)(1)(vi); 8 C.F.R. §204.2(e)(vi).
222
See Matter of L-M- (BIA, 2012) for an unpublished decision discussing extreme cruelty.
223
National Immigrant Justice Center, PRO BONO ATTORNEY MANUAL ON LEGAL IMMIGRATION
PROTECTIONS FOR IMMIGRANT SURVIVORS OF DOMESTIC VIOLENCE, 26 (2011).
33
219
Joint Residence with Abuser
Though there is no specified amount of time of required cohabitation with the abuser, the
applicant must live with the abuser at least for a short time. The cohabitation may have taken
place inside or outside of the United States. It is also not necessary to live with abuser at the
time of filing the self-petition. 224
Current Residence
The applicant must prove that he or she is either:
1. Residing in the United States, or
2. If living abroad, was subjected to abuse either
a. By a U.S. citizen or LPR in the United States; or
b. By an abusive U.S. citizen or LPR who is an employee of the U.S. government or
armed forces. 225
Good Moral Character
Applicants who are more than 14 years old must prove that they possess good moral
character. 226INA § 101(f) states that a person will be barred from showing good moral
character if he or she:
1.
2.
3.
4.
5.
Is or was a habitual drunkard;
Has engaged in prostitution within the last ten years before filing the application;
Has engaged in any other commercial vice, whether or not related to prostitution;
Is or was involved in smuggling people into the United States;
Has been convicted of, or has admitted to, committing acts of moral turpitude, other than
(1) purely political crimes and (2) petty offenses or crimes committed both when the noncitizen was under 18 years of age and more than five years before applying for a visa for
admission;
6. Has been convicted of two or more offenses for which the aggregate sentences of
confinement were five years or more;
7. Has been convicted of, or has admitted to, violating laws relating to controlled
substances, except for simple possession of 30 grams or less of marijuana;
8. Has earned income derived principally from illegal gambling;
9. Has been convicted of two or more gambling offenses;
10. Has given false testimony for the purposes of obtaining an immigration benefit;
11. Was incarcerated for an aggregate period of 180 days or more as a result of conviction; or
12. Has been convicted of an aggravated felony, as defined in INA § 101(a)(43), where the
conviction was entered on or after November, 1990, except for conviction of murder,
which is bar to good moral character regardless of the date of conviction. 227
224
INA §204(a)(1)(A); INA § 204(a)(1)(B).
INA § 204(a)(1)(A); INA § 204(a)(1)(B).
226
INA § 204(a)(1)(A); INA §204(a)(1)(B).
227
INA § 101(f); see also National Immigrant Justice Center, PRO BONO ATTORNEY MANUAL ON
LEGAL IMMIGRATION PROTECTIONS FOR IMMIGRANT SURVIVORS OF DOMESTIC VIOLENCE, 27
(2011).
34
225
The self-petitioner must also prove “good moral character” for the last three years.
Waiver of Good Moral Character
An exception exists in INA § 204(a)(1)(C) for a self-petitioner who has committed an act or
has a conviction listed under INA § 101(f) if:
1. The act or conviction is waived with respect to the self-petitioner for purposes of
determining whether the self-petitioner is admissible or deportable, and
2. The Attorney General finds that the act or conviction was connected to the abuse
suffered by the self-petitioner. 228
Regulations have not yet been issued for the good moral character provision, and some
questions still exist about how this exception will be interpreted. For example, it is unclear
how authorities will interpret the phrase “the act or conviction is waivable with respect to the
petitioner” under the inadmissibility or deportability grounds. Waivers of INA §212
inadmissibility grounds and INA §237 deportability grounds might be helpful for the purpose
of determining a self-petitioner’s good moral character exception.
Admissibility
An applicant for a VAWA self-petition does not need to prove admissibility during the selfpetition application process. 229The applicant, however, must prove admissibility when
applying for adjustment of status. 230All waivers in INA §212 are available for an approved
self-petition applicant who is adjusting status.
 Practice Tip: Note that, in contrast to U and T visas, for selfpetitioners, admissibility is determined at the adjustment phase, and
normal inadmissibility grounds and special VAWA exceptions and
waivers apply. 231
Derivative Children
A self-petitioner may include derivative children on his or her application, but only children
under age of 21 may be included. 232A child accompanying or following to join a principal
self-petitioner may be included in the principal’s visa petition, and the child will be accorded
the second preference classification and the same priority date as the principal applicant. 233
However, if the child reaches the age of twenty-one prior to the issuance of a visa to the
228
INA § 204(a)(1)(C).
See generally INA § 204(a); 8 C.F.R. § 204.2.
230
INA § 245(a).
231
Interview with Gail Pendleton (Feb. 9, 2012).
232
8 C.F.R. § 204.2(a)(4).
233
8 C.F.R. § 204.2(a)(4).
35
229
principal alien parent, a separate petition will be required, but the original priority date will
be retained if the subsequent petition is filed by the same petitioner. 234
Filing the Application
The VAWA self-petition process usually consists of two steps: filing the actual selfpetition, and filing for adjustment of status. 235 The self-petition is filed using Form I-360
with the Vermont Service Center. 236 This form typically has a filing fee, but this fee does not
apply in the case of a self-petitioner. Once the self-petition application is approved, the
applicant may be eligible to adjust status, depending on the requirements laid out below. In
the interim, the applicant with an approved self-petition will be granted deferred action,
which is not an actual immigration status, but will prevent removal proceedings from being
brought against the non-citizen. A non-citizen with an approved self-petition is also eligible
for employment authorization. 237
VAWA Adjustment of Status
Only certain VAWA self-petitioners may apply for adjustment of status to lawful permanent
resident. Additional criteria must be met before an applicant with an approved self-petition
may adjust status.
For VAWA adjustment of status, the applicant must prove that he or she:
1. Is the beneficiary of an approved VAWA self-petition or has a pending VAWA selfpetition that if approved, would render the applicant eligible for adjustment of status;
2. Has an available immigrant visa (often referred to as a current visa number or current
priority date);
3. Is admissible; and
4. Merits adjustment of status as an exercise of discretion. 238
Current Visa Number
The current visa number refers to the availability of an immigrant visa in the family-based
immigration process, and the ability of a self-petition to adjust status will depend on whether
234
8 C.F.R. § 204.2(a)(4).
For further discussion of VAWA remedies, see “Some Tips for Preparing VAWA
Immigration Cases” under Carolyn Killea Resources in Appendix C and “VAWA SelfPetitioning: Some Practice Pointers” under Gail Pendleton Resources in Appendix C (lists
incomplete or inaccurate C.F.R. provisions for VAWA).
236
For a detailed list of material for the VAWA self-petition application, see “Required material
for VAWA Self-Petition (Spouse) application” and “Required material for VAWA SelfPetition (Child) application” in Appendix A. Note that spouses of USCs can file the I-485 along
with the I-360 in a “one-step” application.
237
See 8 C.F.R. § 274a.12(c)(9) (allowing employment authorization for an applicant for
adjustment of status) and 8 C.F.R. § 274a.12(c)(14) (allowing employment authorization for a
non-citizen who has been granted deferred action).
238
INA § 245(a).
36
235
he or she is related or a U.S. citizen or an LPR. 239 Immediate family members of U.S.
citizens can adjust status immediately because they are not subject to the quotas in the
family-based immigration system. 240 The immediate family members of LPRs must wait
until a visa is available within the petitioner’s preference category, and once the
corresponding priority date becomes current, the petitioner may apply to adjust status. 241
Admissibility
An applicant for adjustment of status must demonstrate that he or she is admissible to the
United States. 242INA § 212 provides grounds of inadmissibility.
The following are common grounds of inadmissibility:
1. Entering Without Inspection
2. Criminal convictions
3. Security grounds
4. Fraud/Misrepresentation
5. False claims to U.S. citizenship, including unlawful voting and falsification of I-9
form for employment
6. Health Conditions or Substance Abuse
7. Prior Deportations
8. Public Charge
9. Unlawful presence 243
A waiver may be available for a VAWA self-petitioner depending on the ground of
inadmissibility.
 Practice Tip: Send your client’s fingerprints for an FBI criminal
background check for a full and accurate account of all crimes
committed by your client. 244
Filing the VAWA Adjustment of Status Application
To apply for adjustment of status, the applicant must file Form I-485. 245The applicant must
also prove his or her eligibility for VAWA adjustment of status. Though there is no fee for
the VAWA self-petition, there is a fee for adjustment of status and for employment
authorization. The applicant can apply for a fee waiver for both of these forms with Form
I-912, which must be included in the adjustment of status and employment authorization
applications.
239
See “Description” section for a discussion of family-based immigration.
INA § 201(b).
241
8 C.F.R. § 245.1(g); current priority dates can be found on the Visa Bulletin.
242
INA § 245(a).
243
See INA § 212; see also National Immigrant Justice Center, PRO BONO ATTORNEY MANUAL
ON IMMIGRATION RELIEF FOR CRIME VICTIMS: U VISAS, 23 (2011).
244
Interview with Rosa Gomez (Feb. 21, 2012); Interview with Christie Popp (Feb. 24, 2012).
245
For a detailed list of material for the VAWA adjustment of status application, see “Required
material for VAWA Self-Petitioner Adjustment of Status” in Appendix A.
37
240
VAWA Cancellation of Removal
Description
VAWA Cancellation of Removal is a defensive remedy, unlike the affirmative applications
of the U visa, T visa, and VAWA self-petition. Only immigrants in immigration court
proceedings are eligible for VAWA cancellation of removal. This remedy will cancel the
removal or deportation order of an applicant and grant the applicant lawful permanent
residence. Cancellation of removal is also granted by an immigration judge, rather than
through filing an application with the USCIS Vermont Service Center. Similar to the selfpetition, cancellation of removal requires a family relationship with an abusive spouse or
parent, and requires the abuser to be a U.S. citizen or LPR. Cancellation of removal does
not provide relief for derivative family members.
Comparing VAWA Self-Petitions and VAWA Cancellation of Removal
Both the VAWA self-petition and VAWA cancellation of removal can lead to legal
permanent resident status for the applicant; however, the eligibility requirements for
VAWA cancellation of removal are more difficult than the requirements for the VAWA selfpetition.
Some examples of an applicant who is eligible for cancellation of removal but not for selfpetition are:
1. Parents of abused children of U.S. citizens and LPRs who are not married to the abuser
are not eligible to self-petition, but may be eligible for VAWA cancellation.
2. Spouses of U.S. citizens and LPRs who were divorced more than two years ago, or whose
U.S. citizen or LPR abusive spouse or parent lost status more than two years ago, are no
longer eligible to self-petition, but can still apply for VAWA cancellation of removal.
3. An individual who is qualified for self-petition or who has an approved self-petition, but
is placed in removal proceedings before his or her priority date becomes current may be
eligible for VAWA cancellation. In this case, an approved self-petition will lend
credibility to the cancellation claim, but will not permit the applicant to adjust status until
the precedence date becomes current.
4. Abused sons and daughters of U.S. citizens or LPRs who do not apply for self-petition
before they turn 21 no longer qualify for a self-petition, but may be eligible for VAWA
cancellation. 246
Eligibility
The following persons are eligible to apply for VAWA cancellation:
1. Abused spouses of U.S. citizens and LPRs;
246
National Immigrant Justice Center, PRO BONO ATTORNEY MANUAL ON LEGAL IMMIGRATION
PROTECTIONS FOR IMMIGRANT SURVIVORS OF DOMESTIC VIOLENCE, 32 (2011).
38
2. Non-abused parents of abused children of U.S. citizens or LPRs, even if not married to
the abuser, and regardless of the child’s status; and
3. Abused “intended spouses” of U.S. citizens or LPRs. 247
An applicant for VAWA cancellation of removal needs to prove the following items:
1. Being abused or suffering extreme cruelty; 248
2. Being physically present in the United States for three years before applying; 249
3. Extreme hardship on the part of the applicant, his or her child, or his or her parent if the
applicant were removed from the United States; 250
4. Good moral character during the period of required physical presence; 251 and
5. Not inadmissible for criminal or security and related grounds, not deportable for
marriage fraud, failure to register and falsification of documents, or security and
terrorism grounds; and not convicted of an aggravated felony. 252
No Derivative Family Members
VAWA cancellation of removal does not offer any “derivative beneficiaries.” Thus,
children are not automatically granted the cancellation of removal with their parents and a
parent will not be granted cancellation of removal with their abused children. However, the
parent who is granted cancellation of removal may file a second-preference petition for the
child as an LPR parent. 253 However, a child who is granted cancellation of removal cannot
apply for his or her parent until the child is 21 and a U.S. citizen. 254 In either case, parole
will be granted to the child or parent of a non-citizen granted VAWA cancellation of
removal. 255 This grant of parole will last until the adjudication of the parolee’s adjustment of
status application. 256
Filing for VAWA Cancellation of Removal
To apply for VAWA cancellation of removal, the non-citizen must file Form EOIR 42B and
the required supporting documents. 257A grant of cancellation of removal by an immigration
judge will end the removal proceedings against the immigrant, and he or she will be
granted lawful permanent residence. 258
247
INA § 240A(b)(2)(A)(i).
INA § 240A(b)(2)(A)(i); see Matter of L-M- (BIA, 2012) for an unpublished decision
discussing extreme cruelty.
249
INA § 240A(b)(2)(A)(ii).
250
INA § 240A(b)(2)(A)(v).
251
INA § 240A(b)(2)(A)(iii).
252
INA § 240A(b)(2)(A)(iv).
253
See “Family-based Immigrant Visas” at the Department of State and “Family” at USCIS for
more information regarding family-based immigration.
254
INA §203(a).
255
INA § 240A(b)(4).
256
INA § 240A(b)(4).
257
For a detailed list of material for the VAWA cancellation application, see “Required material
for VAWA Cancellation of Removal application” in Appendix A.
258
INA § 240A(b)(2)(A).
39
248
Prosecutorial Discretion
Description
Prosecutorial Discretion is the discretion of the agency to determine whether and to what
extent it will enforce the law. When the agency decides not to enforce the law against an
individual, this is referred to as a favorable exercise of prosecutorial discretion.
Within the immigration context, prosecutorial discretion is premised on both monetary
grounds (DHS has a limited number of resources and as a practical matter, cannot deport 12
million undocumented immigrants) and humanitarian grounds (many individuals who
present positive or humanitarian equities are statutorily ineligible for remedies such as
VAWA Cancellation, and in the absence of adverse factors are considered “low
priorities.”). 259 Prosecutorial discretion provides an important option for domestic violence
victims who may be ineligible for a particular immigration remedy, but nonetheless present
important or compelling equities. 260
 Practice Tip: Note that the attitude of local ICE may not always be
consistent with the official policies of national ICE. 261
General Factors
In the last year, Immigration and Customs Enforcement (ICE, the prosecutorial arm of DHS)
has issued a number of guidance documents about its enforcement priorities and
prosecutorial discretion. 262The June 17, 2011, memorandum, “Exercising Prosecutorial
Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency
for the Apprehension, Detention, and Removal of Aliens,” (Morton Memo 1) broadly
states the goals of prosecutorial discretion and the general factors relied upon to make
determinations. These factors include, but are not limited to:
1. The agency's civil immigration enforcement priorities;
2. The person's length of presence in the United States, with particular consideration given
to presence while in lawful status;
3. The circumstances of the person's arrival in the United States and the manner of his or
her entry, particularly if the alien came to the United States as a young child;
259
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, 2 (June 17,
2011).
260
For further discussion of prosecutorial discretion, see “AILA Prosecutorial Discretion Toolkit”
and “DHS Review of Low Priority Cases for Prosecutorial Discretion” under Other Resources in
Appendix C.
261
Interview with Gail Pendleton (Feb. 9, 2012).
262
See Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens(June 17,
2011); Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011).
40
4. The person's pursuit of education in the United States, with particular consideration given
to those who have graduated from a U.S. high school or have successfully pursued or are
pursuing a college or advanced degrees at a legitimate institution of higher education in
the United States;
5. Whether the person, or the person's immediate relative, has served in the U.S. military,
reserves, or national guard, with particular consideration given to those who served in
combat;
6. The person's criminal history, including arrests, prior convictions, or outstanding arrest
warrants;
7. The person's immigration history, including any prior removal, outstanding order of
removal, prior denial of status, or evidence of fraud;
8. Whether the person poses a national security or public safety concern;
9. The person's ties and contributions to the community, including family relationships;
10. The person's ties to the home country and condition in the country;
11. The person's age, with particular consideration given to minors and the elderly;
12. Whether the person has a U.S. citizen or permanent resident spouse, child, or parent;
13. Whether the person is the primary caretaker of a person with a mental or physical
disability, minor, or seriously ill relative;
14. Whether the person or the person's spouse is pregnant or nursing;
15. Whether the person or the person's spouse suffers from severe mental or physical illness;
16. Whether the person's nationality renders removal unlikely;
17. Whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as a relative of a U.S. citizen or permanent resident;
18. Whether the person is likely to be granted temporary or permanent status or other relief
from removal, including as an asylum seeker, or a victim of domestic violence, human
trafficking, or other crime; and
19. Whether the person is currently cooperating or has cooperated with federal, state or local
law enforcement authorities, such as ICE, the U.S Attorneys or Department of Justice, the
Department of Labor, or National Labor Relations Board, among others. 263
In determining to exercise prosecutorial discretion, ICE officers, agents, and attorneys
consider all relevant factors, and make determinations on a case-by-case basis. The decision
is made based on a totality of the circumstances, with the goal of conforming to ICE
enforcement priorities, and no single factor will be determinative.
Factors Warranting “Particular Care”
The June 17, 2011, memorandum, “Prosecutorial Discretion: Certain Victims, Witnesses,
and Plaintiffs,” (Morton Memo 2) details the more specific considerations that will affect
domestic violence victims. This memo states that specifically “Absent special circumstances
or aggravating factors, it is against ICE policy to initiate removal proceedings against an
individual known to be the immediate victim or witness to a crime. In practice, the vast
majority of state and local law enforcement agencies do not generally arrest victims or
witnesses of crime as part of an investigation.” 264 The policy serves the purpose of aiding
263
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, 4 (June 17,
2011).
264
Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, 1 (June 17, 2011).
41
law enforcement by minimizing the effect of immigration enforcement on a victim or
witness’s willingness to call the police and aid in investigations. 265
Together, the Morton Memoranda elucidate the following positive factors that prompt
particular care and consideration by ICE officers, attorneys, and agents:
1. Veterans and members of the U.S. armed forces;
2. Long-time lawful permanent residents;
3. Minors and elderly individuals;
4. Individuals present in the United States since childhood;
5. Pregnant or nursing women;
6. Individuals who suffer from a serious mental or physical disability;
7. Individuals with serious health conditions;
8. Victims of domestic violence, human trafficking, or other serious crimes;
9. Witnesses involved in pending criminal investigations or prosecutions;
10. Plaintiffs in non-frivolous lawsuits regarding civil rights or liberties violations; and
11. Individuals engaging in a protected activity related to civil or other rights who may be in
a non-frivolous dispute with an employer, landlord, or contractor. 266
Forms of Possible Discretion
Prosecutorial discretion can apply to a broad range of discretionary enforcement
decisions, including but not limited to the following:
1.
2.
3.
4.
5.
Deciding to issue or cancel a notice of detainer;
Deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
Focusing enforcement resources on particular administrative violations or conduct;
Deciding whom to stop, question, or arrest for an administrative violation;
Deciding whom to detain or to release on bond, supervision, personal recognizance, or
other condition;
6. Seeking expedited removal or other forms of removal by means other than a formal
removal proceeding in immigration court;
7. Settling or dismissing a proceeding;
8. Granting deferred action, granting parole, or staying a final order of removal;
9. Agreeing to voluntary departure, the withdrawal of an application for admission, or other
action in lieu of obtaining a formal order of removal;
10. Pursuing an appeal;
11. Executing a removal order; and
12. Responding to or joining in a motion to reopen removal proceedings and to consider
joining in a motion to grant relief or a benefit. 267
265
Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, 1 (June 17, 2011).
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, 5 (June 17,
2011); Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, 2 (June 17, 2011).
267
Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement
Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, 2-3 (June 17,
2011).
42
266
Limitations of Relief
1. A favorable exercise of prosecutorial discretion does not confer legal immigration
status on your client. It also does not prevent ICE from initiating removal proceedings if
circumstances change.
2. A favorable exercise of prosecutorial discretion does not always lead to work
authorization.
 Practice Tip: Beware of the “perfect victim” fallacy, or the
misconception that prosecutorial discretion should only be granted
to victims with a perfect background, and that the non-citizen is not
actually a victim if there is anything negative in his or her record,
such as a criminal history, immigration violations, etc. 268
Advocating for Prosecutorial Discretion
Though a formal application process for a favorable exercise of prosecutorial discretion does
not exist, an attorney can advocate for such discretion to be exercised in the following ways:
1. Ask that favorable prosecutorial discretion be exercised in your client’s case.
a. If the factors of your client’s case seem favorable, request a specific action (e.g.,
granting a stay of removal, dismissing a proceeding, etc.), rather than simply
asking that prosecutorial discretion be exercised. Outline how such a grant would
be appropriate and in furtherance of enforcement priorities by highlighting the
positive factors in your client’s case.
2. Put together a package of materials to support your request for prosecutorial
discretion.
a. Make the request in writing, and consider providing a detailed cover letter than
explains why your client deserves a favorable exercise of prosecutorial discretion.
Also provide the necessary supporting materials and evidence to help the
decision-making process.
3. Use the agency memoranda to support your request.
a. Provide the appropriate authority to encourage the officer to act favorably, even
though these decisions are not mandatory
4. Highlight the positive factors in your client’s case.
a. Bring attention to the positive criteria in the applicable memos that apply to your
client. Be sure to emphasize that your client falls into a classification that
deserves “particular care.”
5. Address any problems or inadequacies in the case or the evidence.
a. Appearing to be hide information can undercut the credibility of your client’s
case. Try to provide mitigating information when disclosing the negative
information.
6. Consider seeking a continuance of the proceedings if removal proceedings have been
initiated.
a. The immigration judge may be inclined to continue proceedings to allow you to
discuss prosecutorial discretion options with ICE counsel.
268
Interview with Gail Pendleton (Feb. 9, 2012); Interview with Sameera Hafiz (Mar. 14, 2012).
43
7. Ensure that all details of any plan for favorable action for your client are completely
worked out and are committed to writing.
8. Seek reconsideration if you are denied a favorable exercise of prosecutorial
discretion.
a. Though there is no formal process of appeal, internal supervisory channels can be
utilized to seek an appeal or reconsideration informally. 269
269
See Mary Kenney, PROSECUTORIAL DISCRETION: HOW TO ADVOCATE FOR YOUR CLIENT,
(American Immigration Council, Legal Action Center) (2011).
44
KNOW YOUR RIGHTS
KNOW
YOUR
RIGHTS
WHEN ENCOUNTERING
LAW ENFORCEMENT
KNOW YOUR RIGHTS
KNOW
YOUR
RIGHTS
WHEN ENCOUNTERING
LAW ENFORCEMENT
This booklet addresses what rights you have when you are
stopped, questioned, arrested, or searched by law enforcement
officers. This booklet is for citizens and non-citizens with extra
information for non-citizens in a separate section. Another section covers what can happen to you at airports and other points of
entry into the United States. The last section discusses concerns
you may have related to your charitable contributions and religious or political beliefs.
This booklet tells you about your basic rights. It is not a substitute
for legal advice. You should contact an attorney if you have been
arrested or believe that your rights have been violated.
3
KNOW YOUR RIGHTS
I. QUESTIONING
Q: What kind of law enforcement officers might try to
question me?
A: You could be questioned by a variety of law enforcement
officers, including state or local police officers, Joint Terrorism
Task Force members, or federal agents from the FBI,
Department of Homeland Security (which includes
Immigration and Customs Enforcement and the Border
Patrol), Drug Enforcement Administration, Naval Criminal
Investigative Service, or other agencies.
Q: Do I have to answer questions asked by law
enforcement officers?
A: No. You have the constitutional right to remain silent. In
general, you do not have to talk to law enforcement officers (or
anyone else), even if you do not feel free to walk away from the
officer, you are arrested, or you are in jail. You cannot be punished for refusing to answer a question. It is a good idea to
talk to a lawyer before agreeing to answer questions. In general, only a judge can order you to answer questions.
(Non-citizens should see Section IV for more information on
this topic.)
Q: Are there any exceptions to the general rule that I do
not have to answer questions?
A: Yes, there are two limited exceptions. First, in some states,
you must provide your name to law enforcement officers if you
are stopped and told to identify yourself. But even if you give
your name, you are not required to answer other questions.
Second, if you are driving and you are pulled over for a traffic
violation, the officer can require you to show your license,
vehicle registration and proof of insurance (but you do not
have to answer questions). (Non-citizens should see Section IV
for more information on this topic.)
Q: Can I talk to a lawyer before answering questions?
A: Yes. You have the constitutional right to talk to a lawyer
before answering questions, whether or not the police tell you
about that right. The lawyer’s job is to protect your rights.
Once you say that you want to talk to a lawyer, officers should
stop asking you questions. If they continue to ask questions,
you still have the right to remain silent. If you do not have a
lawyer, you may still tell the officer you want to speak to one before
answering questions. If you do have a lawyer, keep his or her business
card with you. Show it to the officer, and ask to call your lawyer.
Remember to get the name, agency and telephone number of any law
enforcement officer who stops or visits you, and give that information to
your lawyer.
Q: What if I speak to law enforcement officers anyway?
A: Anything you say to a law enforcement officer can be used against you
and others. Keep in mind that lying to a government official is a crime
but remaining silent until you consult with a lawyer is not. Even if you
have already answered some questions, you can refuse to answer other
questions until you have a lawyer.
Q: What if law enforcement officers threaten me with a grand
jury subpoena if I don’t answer their questions? (A grand jury
subpoena is a written order for you to go to court and testify
about information you may have.)
A: If a law enforcement officer threatens to get a subpoena, you still do
not have to answer the officer’s questions right then and there, and anything you do say can be used against you. The officer may or may not
succeed in getting the subpoena. If you receive a subpoena or an officer
threatens to get one for you, you should call a lawyer right away. If you
are given a subpoena, you must follow the subpoena’s direction about
when and where to report to the court, but you can still assert your right
not to say anything that could be used against you in a criminal case.
Q: What if I am asked to meet with officers for a
“counter-terrorism interview”?
A: You have the right to say that you do not want to be interviewed, to
have an attorney present, to set the time and place for the interview, to
find out the questions they will ask beforehand, and to answer only the
questions you feel comfortable answering. If you are taken into custody
for any reason, you have the right to remain silent. No matter what,
assume that nothing you say is off the record. And remember that it is a
criminal offense to knowingly lie to an officer.
5
KNOW YOUR RIGHTS
II. STOPS AND ARRESTS
Q: What if law enforcement officers stop me on the street?
A: You do not have to answer any questions. You can say, “I do
not want to talk to you” and walk away calmly. Or, if you do not
feel comfortable doing that, you can ask if you are free to go. If
the answer is yes, you can consider just walking away. Do not
run from the officer. If the officer says you are not under
arrest, but you are not free to go, then you are being detained.
Being detained is not the same as being arrested, though an
arrest could follow. The police can pat down the outside of
your clothing only if they have “reasonable suspicion” (i.e., an
objective reason to suspect) that you might be armed and dangerous. If they search any more than this, say clearly, “I do not
consent to a search.” If they keep searching anyway, do not
physically resist them. You do not need to answer any questions
if you are detained or arrested, except that the police may ask
for your name once you have been detained, and you can be
arrested in some states for refusing to provide it. (Non-citizens
should see Section IV for more information on this topic.)
Q: What if law enforcement officers stop me in my car?
A: Keep your hands where the police can see them. You must
show your drivers license, registration and proof of insurance
if you are asked for these documents. Officers can also ask
you to step outside of the car, and they may separate passengers and drivers from each other to question them and
compare their answers, but no one has to answer any questions. The police cannot search your car unless you give them
your consent, which you do not have to give, or unless they
have “probable cause” to believe (i.e., knowledge of facts sufficient to support a reasonable belief) that criminal activity is
likely taking place, that you have been involved in a crime, or
that you have evidence of a crime in your car. If you do not
want your car searched, clearly state that you do not consent.
The officer cannot use your refusal to give consent as a basis
for doing a search.
Q: What should I do if law enforcement officers arrest me?
A: The officer must advise you of your constitutional rights to
remain silent, to an attorney, and to have an attorney appointed if you cannot afford one. You should exercise all these
rights, even if the officers don’t tell you about them. Do not tell
the police anything except your name. Anything else you say can and will
be used against you. Ask to see a lawyer immediately. Within a reasonable amount of time after your arrest or booking you have the right to a
phone call. Law enforcement officers may not listen to a call you make
to your lawyer, but they can listen to calls you make to other people. You
must be taken before a judge as soon as possible—generally within 48
hours of your arrest at the latest. (See Section IV for information about
arrests for noncriminal immigration violations.)
Q: Do I have to answer questions if I have been arrested?
A: No. If you are arrested, you do not have to answer any questions or
volunteer any information. Ask for a lawyer right away. Repeat this
request to every officer who tries to talk to or question you. You should
always talk to a lawyer before you decide to answer any questions.
Q: What if I am treated badly by law enforcement officers?
A: Write down the officer’s badge number, name or other identifying
information. You have a right to ask the officer for this information. Try to
find witnesses and their names and phone numbers. If you are injured,
seek medical attention and take pictures of the injuries as soon as you
can. Call a lawyer or contact your local ACLU office. You should also
make a complaint to the law enforcement office responsible for the
treatment.
7
KNOW YOUR RIGHTS
III. SEARCHES AND WARRANTS
Q: Can law enforcement officers search my home or office?
A: Law enforcement officers can search your home only if they
have a warrant or your consent. In your absence, the police can
search your home based on the consent of your roommate or a
guest if the police reasonably believe that person has the
authority to consent. Law enforcement officers can search your
office only if they have a warrant or the consent of the employer. If your employer consents to a search of your office, law
enforcement officers can search your workspace whether you
consent or not.
Q: What are warrants and what should I make sure
they say?
A: A warrant is a piece of paper signed by a judge giving law
enforcement officers permission to enter a home or other
building to do a search or make an arrest. A search warrant
allows law enforcement officers to enter the place described in
the warrant to look for and take items identified in the warrant.
An arrest warrant allows law enforcement officers to take you
into custody. An arrest warrant alone does not give law
enforcement officers the right to search your home (but they
can look in places where you might be hiding and they can take
evidence that is in plain sight), and a search warrant alone
does not give them the right to arrest you (but they can arrest
you if they find enough evidence to justify an arrest). A warrant
must contain the judge’s name, your name and address, the
date, place to be searched, a description of any items being
searched for, and the name of the agency that is conducting
the search or arrest. An arrest warrant that does not have your
name on it may still be validly used for your arrest if it
describes you with enough detail to identify you, and a search
warrant that does not have your name on it may still be valid if
it gives the correct address and description of the place the
officers will be searching. However, the fact that a piece of
paper says “warrant” on it does not always mean that it is an
arrest or search warrant. A warrant of deportation/removal,
for example, is a kind of administrative warrant and does not
grant the same authority to enter a home or other building to
do a search or make an arrest.
Q: What should I do if officers come to my house?
A: If law enforcement officers knock on your door, instead of opening
the door, ask through the door if they have a warrant. If the answer is
no, do not let them into your home and do not answer any questions or
say anything other than “I do not want to talk to you.” If the officers say
that they do have a warrant, ask the officers to slip it under the door (or
show it to you through a peephole, a window in your door, or a door that
is open only enough to see the warrant). If you feel you must open the
door, then step outside, close the door behind you and ask to see the
warrant. Make sure the search warrant contains everything noted above,
and tell the officers if they are at the wrong address or if you see some
other mistake in the warrant. (And remember that an immigration “warrant of removal/deportation” does not give the officer the authority to
enter your home.) If you tell the officers that the warrant is not complete or not accurate, you should say you do not consent to the search,
but you should not interfere if the officers decide to do the search even
after you have told them they are mistaken. Call your lawyer as soon as
possible. Ask if you are allowed to watch the search; if you are allowed
to, you should. Take notes, including names, badge numbers, which
agency each officer is from, where they searched and what they took. If
others are present, have them act as witnesses to watch carefully what
is happening.
Q: Do I have to answer questions if law enforcement officers
have a search or arrest warrant?
A: No. Neither a search nor arrest warrant means you have to answer
questions.
Q: What if law enforcement officers do not have a search warrant?
A: You do not have to let law enforcement officers search your home,
and you do not have to answer their questions. Law enforcement officers
cannot get a warrant based on your refusal, nor can they punish you for
refusing to give consent.
Q: What if law enforcement officers tell me they will come back
with a search warrant if I do not let them in?
A: You can still tell them that you do not consent to the search and that
they need to get a warrant. The officers may or may not succeed in getting a warrant if they follow through and ask the court for one, but once
you give your consent, they do not need to try to get the court’s permission to do the search.
9
KNOW YOUR RIGHTS
Q: What if law enforcement officers do not have a search
warrant, but they insist on searching my home even
after I object?
A: You should not interfere with the search in any way because
you could get arrested. But you should say clearly that you
have not given your consent and that the search is against your
wishes. If someone is there with you, ask him or her to witness
that you are not giving permission for the search. Call your
lawyer as soon as possible. Take note of the names and badge
numbers of the searching officers.
IV. ADDITIONAL INFORMATION FOR NON-CITIZENS
In the United States, non-citizens are persons who do not have U.S. citizenship, including lawful permanent residents, refugees and asylum
seekers, persons who have permission to come to the U.S. for reasons
like work, school or travel, and those without legal immigration status of
any kind. Non-citizens who are in the United States—no matter what
their immigration status—generally have the same constitutional rights
as citizens when law enforcement officers stop, question, arrest, or
search them or their homes. However, there are some special concerns
that apply to non-citizens, so the following rights and responsibilities are
important for non-citizens to know. Non-citizens at the border who are
trying to enter the U.S. do not have all the same rights. See Section V for
more information if you are arriving in the U.S.
Q: What types of law enforcement officers may try to question me?
A: Different kinds of law enforcement officers might question you or ask
you to agree to an interview where they would ask questions about your
background, immigration status, relatives, colleagues and other topics.
You may encounter the full range of law enforcement officers listed in
Section I.
Q. What can I do if law enforcement officers want to question me?
A: You have the same right to be silent that U.S. citizens have, so the
general rule is that you do not have to answer any questions that a law
enforcement officer asks you. However, there are exceptions to this at
ports of entry, such as airports and borders (see Section V).
Q: Do I have to answer questions about whether I am a U.S. citizen, where I was born, where I live, where I am from, or other
questions about my immigration status?
A: You do not have to answer any of the above questions if you do not
want to answer them. But do not falsely claim U.S. citizenship. It is
almost always a good idea to speak with a lawyer before you answer
questions about your immigration status. Immigration law is very complicated, and you could have a problem without realizing it. A lawyer can
help protect your rights, advise you, and help you avoid a problem.
Always remember that even if you have answered some questions, you
can still decide you do not want to answer any more questions.
For “nonimmigrants” (a “nonimmigrant” is a non-citizen who is
authorized to be in the U.S. for a particular reason or activity, usually for
a limited period of time, such as a person with a tourist, student, or
work visa), there is one limited exception to the rule that non-citizens
11
KNOW YOUR RIGHTS
who are already in the U.S. do not have to answer law enforcement officers’ questions: immigration officers can require
nonimmigrants to provide information related to their immigration status. However, even if you are a nonimmigrant, you can still
say that you would like to have your lawyer with you before you
answer questions, and you have the right to stay silent if your
answer to a question could be used against you in a criminal case.
Q: Do I have to show officers my immigration documents?
A: The law requires non-citizens who are 18 or older and who
have been issued valid U.S. immigration documents to carry
those documents with them at all times. (These immigration
documents are often called “alien registration” documents.
The type you need to carry depends on your immigration status. Some examples include an unexpired permanent resident
card (“green card”), I-94, Employment Authorization Document
(EAD), or border crossing card.) Failure to comply carry these
documents can be a misdemeanor crime.
If you have your valid U.S. immigration documents and
you are asked for them, then it is usually a good idea to show
them to the officer because it is possible that you will be
arrested if you do not do so. Keep a copy of your documents in
a safe place and apply for a replacement immediately if you
lose your documents or if they are going to expire. If you are
arrested because you do not have your U.S. immigration documents with you, but you have them elsewhere, ask a friend or
family member (preferably one who has valid immigration status) to bring them to you.
It is never a good idea to show an officer fake immigration documents or to pretend that someone else’s immigration
documents are yours. If you are undocumented and therefore
do not have valid U.S. immigration documents, you can decide
not to answer questions about your citizenship or immigration
status or whether you have documents. If you tell an immigration officer that you are not a U.S. citizen and you then cannot
produce valid U.S. immigration documents, there is a very good
chance you will be arrested.
Q: What should I do if there is an immigration raid
where I work?
A: If your workplace is raided, it may not be clear to you
whether you are free to leave. Either way, you have the right to
remain silent—you do not have to answer questions about your
citizenship, immigration status or anything else. If you do
answer questions and you say that you are not a U.S. citizen, you will be
expected to produce immigration documents showing your immigration
status. If you try to run away, the immigration officers will assume that
you are in the U.S. illegally and you will likely be arrested. The safer
course is to continue with your work or calmly ask if you may leave, and
to not answer any questions you do not want to answer. (If you are a
“nonimmigrant,” see above.)
Q: What can I do if immigration officers are arresting me and I
have children in my care or my children need to be picked up
and taken care of?
A: If you have children with you when you are arrested, ask the officers
if you can call a family member or friend to come take care of them
before the officers take you away. If you are arrested when your children
are at school or elsewhere, call a friend or family member as soon as
possible so that a responsible adult will be able to take care of them.
Q: What should I do if immigration officers arrest me?
A: Assert your rights. Non-citizens have rights that are important for
their immigration cases. You do not have to answer questions. You can
tell the officer you want to speak with a lawyer. You do not have to sign
anything giving up your rights, and should never sign anything without
reading, understanding and knowing the consequences of signing it. If
you do sign a waiver, immigration agents could try to deport you before
you see a lawyer or a judge. The immigration laws are hard to understand. There may be options for you that the immigration officers will
not explain to you. You should talk to a lawyer before signing anything or
making a decision about your situation. If possible, carry with you the
name and telephone number of a lawyer who will take your calls.
Q: Do I have the right to talk to a lawyer before answering any
law enforcement officers’ questions or signing any immigration
papers?
A: Yes. You have the right to call a lawyer or your family if you are
detained, and you have the right to be visited by a lawyer in detention.
You have the right to have your attorney with you at any hearing before
an immigration judge. You do not have the right to a governmentappointed attorney for immigration proceedings, but immigration
officials must give you a list of free or low-cost legal service providers.
You have the right to hire your own immigration attorney.
13
KNOW YOUR RIGHTS
Q: If I am arrested for immigration violations, do I have
the right to a hearing before an immigration judge to
defend myself against deportation charges?
A: Yes. In most cases only an immigration judge can order you
deported. But if you waive your rights, sign something called a
“Stipulated Removal Order,” or take “voluntary departure,”
agreeing to leave the country, you could be deported without a
hearing. There are some reasons why a person might not have
a right to see an immigration judge, but even if you are told
that this is your situation, you should speak with a lawyer
immediately—immigration officers do not always know or tell
you about exceptions that may apply to you; and you could have
a right that you do not know about. Also, it is very important
that you tell the officer (and contact a lawyer) immediately if
you fear persecution or torture in your home country—you have
additional rights if you have this fear, and you may be able to
win the right to stay here.
Q: Can I be detained while my immigration case is
happening?
A: In many cases, you will be detained, but most people are
eligible to be released on bond or other reporting conditions. If
you are denied release after you are arrested for an immigration violation, ask for a bond hearing before an immigration
judge. In many cases, an immigration judge can order that you
be released or that your bond be lowered.
Q: Can I call my consulate if I am arrested?
A: Yes. Non-citizens arrested in the U.S. have the right to call
their consulate or to have the law enforcement officer tell the
consulate of your arrest. Law enforcement must let your consulate visit or speak with you if consular officials decide to do so.
Your consulate might help you find a lawyer or offer other help.
Q: What happens if I give up my right to a hearing or
leave the U.S. before the hearing is over?
A: If you are deported, you could lose your eligibility for certain
immigration benefits, and you could be barred from returning
to the U.S. for a number of years or, in some cases, permanently. The same is true if you do not go to your hearing and
the immigration judge rules against you in your absence. If the
government allows you to do “voluntary departure,” you may
avoid some of the problems that come with having a deporta-
tion order and you may have a better chance at having a future opportunity to return to the U.S., but you should discuss your case with a lawyer
because even with voluntary departure, there can be bars to returning,
and you may be eligible for relief in immigration court. You should
always talk to an immigration lawyer before you decide to give up your
right to a hearing.
Q: What should I do if I want to contact immigration officials?
A: Always try to talk to a lawyer before contacting immigration officials,
even on the phone. Many immigration officials view “enforcement” as
their primary job and will not explain all of your options to you, and you
could have a problem with your immigration status without knowing it.
Q: What if I am charged with a crime?
A: Criminal convictions can make you deportable. You should always
speak with your lawyer about the effect that a conviction or plea could
have on your immigration status. Do not agree to a plea bargain without
understanding if it could make you deportable or ineligible for relief or
for citizenship.
15
KNOW YOUR RIGHTS
V. RIGHTS AT AIRPORTS AND OTHER PORTS
OF ENTRY INTO THE UNITED STATES
REMEMBER: It is illegal for law enforcement officers to
perform any stops, searches, detentions or removals based
solely on your race, national origin, religion, sex or ethnicity.
However, Customs and Border Protection officials can stop you
based on citizenship or travel itinerary at the border and
search all bags.
Q: What types of officers could I encounter at the airport
and at the border?
A: You may encounter any of the full range of law enforcement
officers listed above in Section I. In particular, at airports and
at the border you are likely to encounter customs agents,
immigration officers, and Transportation and Safety
Administration (TSA) officers.
Q: If I am entering the U.S. with valid travel papers, can
law enforcement officers stop and search me?
A: Yes. Customs officers have the right to stop, detain and
search any person or item. But officers cannot select you for a
personal search based on your race, gender, religious or ethnic
background. If you are a non-citizen, you should carry your
green card or other valid immigration status documents at all
times.
Q: Can law enforcement officers ask questions about my
immigration status?
A: Yes. At airports, law enforcement officers have the power to
determine whether or not you have the right or permission to
enter or return to the U.S.
Q: If I am selected for a longer interview when I am
coming into the United States, what can I do?
A: If you are a U.S. citizen, you have the right to have an attorney present for any questioning. If you are a non-citizen, you
generally do not have the right to an attorney when you have
arrived at an airport or another port of entry and an immigration officer is inspecting you to decide whether or not you will
be admitted. However, you do have the right to an attorney if
the questions relate to anything other than your immigration
status. You can ask an officer if he or she will allow you to
answer extended questioning at a later time, but the request may or may
not be granted. If you are not a U.S. citizen and an officer says you cannot come into the U.S., but you fear that you will be persecuted or
tortured if sent back to the country you came from, tell the officer about
your fear and say that you want asylum.
Q: Can law enforcement officers search my laptop files? If they
do, can they make copies of the files, or information from my
address book, papers, or cell phone contacts?
A: This issue is contested right now. Generally, law enforcement officers
can search your laptop files and make copies of information contained in
the files. If such a search occurs, you should write down the name,
badge number, and agency of the person who conducted the search. You
should also file a complaint with that agency.
Q: Can my bags or I be searched after going through metal
detectors with no problem or after security sees that my bags do
not contain a weapon?
A: Yes. Even if the initial screen of your bags reveals nothing suspicious,
the screeners have the authority to conduct a further search of you or
your bags.
Q: What if I wear a religious head covering and I am selected by
airport security officials for additional screening?
A: You have the right to wear religious head coverings. You should assert
your right to wear your religious head covering if asked to remove it. The
current policy (which is subject to change) relating to airport screeners
and requiring removal of religious head coverings, such as a turban or
hijab, is that if an alarm goes off when you walk through the metal
detector the TSA officer may then use a hand-wand to determine if the
alarm is coming from your religious head covering. If the alarm is coming from your religious head covering the TSA officer may want to
pat-down or have you remove your religious head covering. You have the
right to request that this pat-down or removal occur in a private area. If
no alarm goes off when you go through the metal detector the TSA officer may nonetheless determine that additional screening is required for
non-metallic items. Additional screening cannot be required on a discriminatory basis (because of race, gender, religion, national origin or
ancestry). The TSA officer will ask you if he or she can pat-down your
religious head covering. If you do not want the TSA officer to touch your
religious head covering you must refuse and say that you would prefer to
pat-down your own religious head covering. You will then be taken aside
and a TSA officer will supervise you as you pat-down your religious head
17
KNOW YOUR RIGHTS
covering. After the pat-down the TSA officer will rub your
hands with a small cotton cloth and place it in a machine to
test for chemical residue. If you pass this chemical residue
test, you should be allowed to proceed to your flight. If the TSA
officer insists on the removal of your religious head covering
you have a right to ask that it be done in a private area.
Q: What if I am selected for a strip search?
A: A strip search at the border is not a routine search and
must be supported by “reasonable suspicion,” and must be
done in a private area.
Q: If I am on an airplane, can an airline employee interrogate me or ask me to get off the plane?
A: The pilot of an airplane has the right to refuse to fly a passenger if he or she believes the passenger is a threat to the
safety of the flight. The pilot’s decision must be reasonable and
based on observations of you, not stereotypes.
Q: What do I do if I am questioned by law enforcement
officers every time I travel by air and I believe I am on a
“no-fly” or other “national security” list?
A: If you believe you are mistakenly on a list you should contact
the Transportation Security Administration and file an inquiry
using the Traveler Redress Inquiry Process. The form is available at
http://www.tsa.gov/travelers/customer/redress/index.shtm.
You should also fill out a complaint form with the ACLU at
http://www.aclu.org/noflycomplaint. If you think there may be
some legitimate reason for why you have been placed on a list,
you should seek the advice of an attorney.
Q: If I believe that customs or airport agents or airline
employees singled me out because of my race, ethnicity,
or religion or that I was mistreated in other ways, what
information should I record during and after the incident?
A: It is important to record the details of the incident while they
are fresh in your mind. When documenting the sequence of
events, be sure to note the airport, airline, flight number, the
names and badge numbers of any law enforcement officers
involved, information on any airline or airport personnel
involved, questions asked in any interrogation, stated reason
for treatment, types of searches conducted, and length and conditions of
detention. When possible, it is helpful to have a witness to the incident. If
you have been mistreated or singled out at the airport based on your
race, ethnicity or religion, please fill out the Passenger Profiling
Complaint Form on the ACLU’s web site at http://www.aclu.org/airlineprofiling, and file a complaint with the U.S. Department of
Transportation at
http://airconsumer.ost.dot.gov/DiscrimComplaintsContacts.htm.
19
KNOW YOUR RIGHTS
Other Resources:
DHS Office for Civil Rights and Civil Liberties
http://www.dhs.gov/xabout/structure/editorial_0373.shtm
Investigates abuses of civil rights, civil liberties, and profiling
on the basis of race, ethnicity, or religion by employees and
officials of the Department of Homeland Security. You can submit your complaint via email to [email protected]
U.S. Department of Transportation’s Aviation Consumer
Protection Division
http://airconsumer.ost.dot.gov/problems.htm
Handles complaints against the airline for mistreatment by air
carrier personnel (check-in, gate staff, plane staff, pilot),
including discrimination on the basis of race, ethnicity, religion,
sex, national origin, ancestry, or disability. You can submit a
complaint via email to [email protected]—see the webpage for what information to include.
U.S. Department of Transportation’s Aviation Consumer
Protection Division Resource Page
http://airconsumer.ost.dot.gov/DiscrimComplaintsContacts.htm
Provides information about how and where to file complaints
about discriminatory treatment by air carrier personnel, federal security screeners (e.g., personnel screening and searching
passengers and carry-on baggage at airport security checkpoints), airport personnel (e.g., airport police), FBI,
Immigration and Customs Enforcement (ICE), U.S. Border
Patrol, Customs and Border Protection, and National Guard.
VI. CHARITABLE DONATIONS AND RELIGIOUS
PRACTICES
Q: Can I give to a charity organization without becoming a
terror suspect?
A: Yes. You should continue to give money to the causes you believe
in, but you should be careful in choosing which charities to support.
For helpful tips, see Muslim Advocates’ guide on charitable giving—
http://www.muslimadvocates.org/docs/DonorGuidance101106.pdf.
Q: Is it safe for me to practice my religion in religious
institutions or public places?
A: Yes. Worshipping as you want is your constitutional right. You
have the right to go to a place of worship, attend and hear sermons
and religious lectures, participate in community activities, and pray
in public. While there have been news stories recently about people
being unfairly singled out for doing these things, the law is on your
side to protect you.
Q: What else can I do to be prepared?
A: You should keep informed about issues that matter to you by
going to the library, reading the news, surfing the internet, and
speaking out about what is important to you. In case of emergency,
you should have a family plan—the number of a good friend or
relative that anyone in the family can call if they need help, as well
as the number of an attorney. If you are a non-citizen, remember to
carry your immigration documents with you.
21
KNOW YOUR RIGHTS
REFERRAL CONTACT INFORMATION
American-Arab Anti-Discrimination Committee (ADC):
(202) 244-2990
http://www.adc.org/
American Immigration Law Foundation (AILF):
(202) 742-5600
http://www.ailf.org/
American Immigration Lawyers Association (AILA):
(800) 954-0254
http://www.aila.org/
Asian American Legal Defense and Education Fund (AALDEF):
(212) 966-5932
https://www.aaldef.org/
Council on American-Islamic Relations (CAIR):
(202) 488-8787
http://www.cair.com/
Mexican American Legal Defense and Educational Fund (MALDEF):
(213) 629-2512
http://www.maldef.org/
National Lawyers Guild (NLG):
(212) 679-5100
http://www.nlg.org/
National Immigration Law Center (NILC):
(213) 639-3900
http://www.nilc.org/
NAACP Legal Defense and Education Fund (NAACP LDF):
(212) 965-2200
http://www.naacpldf.org/
National Immigration Project:
(617) 227-9727
http://www.nationalimmigrationproject.org/
Puerto Rican Legal Defense and Education Fund (PRLDEF):
(800) 328-2322
http://www.prldef.org/
South Asian American Leaders of Tomorrow (SAALT):
(310) 270-1855
http://www.saalt.org/
U.S. Commission on Civil Rights (UCCR):
(800) 552-6843
http://www.usccr.gov/
23
PUBLISHED BY:
The ACLU Racial Justice Program, ACLU National
Security Project, ACLU Immigrants’ Rights Project,
and the ACLU of Southern California.
125 Broad Street, 18th Floor
New York, NY 10004-2400
www.aclu.org
THE AMERICAN CIVIL LIBERTIES UNION is the nation’s
premier guardian of liberty, working daily in courts,
legislatures and communities to defend and preserve
the individual rights and freedoms guaranteed by the
Constitution and the laws of the United States.
TOOL KIT FOR LAW ENFORCEMENT USE OF THE U‐VISA Developed by Sameera Hafiz, Leslye Orloff, and Kavitha Sreeharsha of Legal Momentum and Rodolfo Estrada of the Vera Institute of Justice (last updated November 2010) th
1101 14 Street NW, Suite 300, Washington, DC 20005. T: 202.326.0046 www.legalmomentum.org
th
233 Broadway, 12 Floor, New York, NY 10279. T: 212.334.1300 www.vera.org
This project was supported by Grant No. 2009‐DG‐BX‐K018 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the United States Department of Justice. Acknowledgments This tool kit would not have been possible without the input and collaboration of the following law enforcement agencies: Alexandria (VA) Police Department Appleton (WI) Police Department Austin (TX) Police Department Boise (ID) Police Department City of La Crosse (WI) Police Department Lexington County (SC) Sheriff’s Department Metropolitan Nashville (TN) Police Department Metropolitan (DC) Police Department Multnomah County (OR) Sheriff’s Office Salem (MA) Police Department San Francisco (CA) Police Department Storm Lake (IA) Police Department Travis County (TX) Sheriff’s Office We thank them for their support and feedback on this tool kit. The information in this tool kit does not necessarily reflect the policies or opinions of these agencies. Questions and comments regarding this tool kit may be directed to: [email protected] TOOL KIT FOR LAW ENFORCEMENT USE OF THE U‐VISA TABLE OF CONTENTS U‐visa Certification: Introduction ....................................................................................... 5 U‐visa Quick Reference Guide for Law Enforcement Officials.......................................... 12 Instructions for I‐918, Supplement B, U Nonimmigrant Status Certification and I‐918, Supplement B, U Nonimmigrant Status Certification ............................................. 14
Sample Designee Letter .................................................................................................... 20
Sample U‐visa Certification Officer’s Duties ..................................................................... 21
Sample Victim Outreach Flyer .......................................................................................... 24
Sample U‐visa Certification Protocol ................................................................................ 26
Redacted I‐918, Supplement B, U Nonimmigrant Status Certification ............................ 29
List of U‐visa News Articles ............................................................................................... 32
Statutory and Regulatory Background .............................................................................. 33
U‐visa Flowchart ............................................................................................................... 35
Frequently Asked Questions ............................................................................................. 36
U‐VISA CERTIFICATION: INTRODUCTION (Last Updated November 2010) By providing U‐visa certifications, law enforcement officials add to their arsenal of crime‐
fighting tools because victims feel safer coming forward to report crimes. This document provides the following background information on the U‐visa: an overview of the U‐visa and a section on law enforcement officials and the U‐visa certification. The section on law enforcement officials includes who qualifies for a U‐visa, which criminal activities are covered by the U‐visa, the application process, and other information that will assist law enforcement in their role as certifiers. Overview of the U‐visa When Congress created the U‐visa in the Violence Against Women Act (VAWA) under the Victims of Trafficking and Violence Prevention Act of 2000 its intent was (1) to strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes; and (2) to offer protection to victims of such crimes.1 Lawmakers recognized that a victim’s cooperation, assistance, and safety are essential to the effective detection, investigation, and prosecution of crimes.2 Victims who fear deportation, however, will be unlikely to come forward to cooperate and assist in investigative efforts. Thus, Congress provided a specific avenue through which immigrant crime victims who cooperate with law enforcement can obtain lawful immigration status and protection against deportation. Who is eligible for a U‐visa? To be eligible for a U‐visa, immigrant victims must meet four statutory requirements and they must include a certification from a certifying official or agency that they have been, are being, or are likely to be helpful in the detection, investigation, or prosecution of a qualifying criminal activity.3 The law requires that a person who is eligible for a U‐visa must (1) have suffered substantial physical or mental abuse as a result of having been a victim of a listed criminal activity; (2) possess information concerning such criminal activity; (3) have been helpful, be helpful, or be likely to be helpful in the investigation or prosecution of a crime; and 1
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014. 53,015 (Sept. 17, 2007) (citing Battered Immigrant Women Protection Act (BIWPA) § 1513(a)(2)(A)). 2
Congress created the U‐visa because it was important for U.S. humanitarian interests to enhance safety of crime victims and encourage them to cooperate with the justice system. BIWPA § 1513(a)(2)(A). 3 INA § 101(a)(15)(U), 8 U.S.C. § 1101(a)(15)(U) (outlines four statutory requirements for U‐visa eligibility and contains non‐exhaustive list of qualifying criminal activities. Congress used the term “criminal activity” rather than “crime” to provide victims access to U‐visa protection as early as possible after the crime occurred or was reported..); INA § 214(p)(1), 8 U.S.C. § 1184(p)(1) (details certification requirement). Legal Momentum and the Vera Institute of Justice 5
(4) have been the victim of a criminal activity that occurred in the United States or violated the laws of the United States.4 The U‐visa certification requirement The U‐visa statute states that federal, state, or local law enforcement officials are qualified to provide certifications for victims filing U‐visa applications.5 Law enforcement officials are the first responders to immigrant victims of crime. Police departments, sheriffs’ offices, marshals, and other law enforcement officials have firsthand knowledge of a victim’s helpfulness in reporting the crime and participating in any subsequent investigations. Law enforcement officials, therefore, are well positioned to provide U‐visa certifications and verify a victim’s helpfulness in the detection or investigation of qualifying criminal activity. The U‐visa certification must affirm the immigrant victim’s past, present, or future helpfulness in the detection, investigation, or prosecution of certain qualifying criminal activity.6 Law enforcement officials who sign certifications do not confer any immigration status upon the victim, but rather enable the victim to meet one of the eligibility requirements in the victim’s application to U.S. Citizenship and Immigration Services of the Department of Homeland Security (DHS). 7 Only DHS has the discretion to grant or deny U‐visa status to the victim. Law Enforcement Officials and the U‐visa Certification Requirement I.
INTRODUCTION In creating the U‐visa, Congress recognized that it is virtually impossible for officials who work in law enforcement, justice systems, or with other government enforcement agencies to punish and hold accountable perpetrators of crimes against noncitizens if the abusers and other criminals can avoid prosecution because their victims risk being deported. Congress also recognized that victims often do not come forward to seek law enforcement assistance because they fear detention and/or deportation. The U‐visa encourages immigrant victims to report criminal activity by protecting them against deportation. It also enhances their access to safety and support needed to overcome physical and emotional injuries caused by criminal activity. The U‐visa can make communities safer by holding perpetrators accountable for criminal activity that might otherwise go undetected. 4 INA § 101(a) (15) (U); 8 U.S.C. § 1101(a) (15) (U). If the petitioner is under 16 years of age, incapacitated, or incompetent, s/he is not required to personally possess information regarding the qualifying criminal activity. In these cases, an exception permits a parent, guardian, or “next friend” of the minor, incapacitated, or incompetent petitioner to provide information and assist in the investigation or prosecution. See INA § 101(a)(15)(U)(i), 8 U.S.C. §1101(a)(15)(U)(i). 5
INA § 214(p)(1), 8 U.S.C. § 1184(p)(1). 6 Id. 7 See Form I‐918, Supplement B, Instructions (08/31/07), at page 3 (United States Customs and Immigration Services will consider the totality of the circumstances in determining whether someone is eligible for the U‐visa). Legal Momentum and the Vera Institute of Justice 6
The U‐visa application process requires an immigrant crime victim to obtain a certification by an approved certifying official who verifies the type of criminal activity perpetrated against the applicant and attests to the fact that the victim has been, is being, or is likely to be helpful in the detection, investigation, or prosecution of that criminal activity.8 To increase victims’ access to certifications, Congress explicitly included federal, state, and local law enforcement officials in the list of U‐visa certifiers.9 This document outlines the significance of the role that certifiers play. II.
WHAT DOES THE U‐VISA DO? As described above, in 2000 Congress created a specific avenue for immigrant crime victims to obtain temporary lawful immigration status. This was done by amending sections of the Immigration and Nationality Act to create the U‐visa.10 If approved for a U‐visa, an applicant will receive legal status for up to four years. This status will permit the crime victim to live and work in the United States for the duration of the U‐visa. At the end of the third year, the U‐visa recipient may be eligible to apply to adjust his or her status to lawful permanent residence (commonly known as a “green card”). Receiving a U‐visa does not directly or necessarily grant lawful permanent residency. Lawful permanent residency will be granted only to U‐visa recipients who can provide evidence that they have not unreasonably refused to provide assistance in the criminal investigation or prosecution and that their continuous presence in the country is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest. III.
WHICH CRIMINAL ACTIVITIES DOES THE U‐VISA COVER? A “non‐exclusive” list of qualifying criminal activities is provided in the statute.11 The list includes 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, solicitation to commit any of the above‐mentioned crimes, or any similar activity in violation of federal, state, or local criminal law. The list also includes attempts or conspiracy to commit any of the listed activities. Congress intentionally chose the term “criminal activity” in the statutory language to accomplish two goals: to be broadly inclusive of “any similar activity” and to focus on the victim’s actions in coming to state or federal government officials with information about criminal activity. 8 INA § 214(p) (1), 8 U.S.C. § 1184(p) (1); 72 Fed. Reg. 53,014, 53,020 (Sept. 17, 2007). 8 U.S.C. § 1101(a)(15)(U)(I) (2006); 72 Fed. Reg. 53,014, 53,023‐53,024 (Sept. 17, 2007). 10 See INA § 101(a)(15)(U), 8 U.S.C. § 1101 (a)(15)(U). 11
INA § 101(a)(15)(U)(iii), 8 U.S.C. 1101 (a)(15)(U)(iii); 72 Fed. Reg. 53,014, 53,018 (Sept. 17, 2007) (explaining that the list is non‐exclusive). 9
Legal Momentum and the Vera Institute of Justice 7
This language is meant to take into account “the wide variety of state criminal statutes in which the terminology used to describe the criminal activity may not be identical to that found on the statutory list, although the nature and elements of both criminal activities are comparable.”12 For example, the statute lists domestic violence as a U‐visa–qualifying crime. However, most state statutes do not specify domestic violence as a crime, but instead list crimes that constitute domestic violence, such as harassment, assault, battery, criminal threats, menacing, criminal trespass, burglary, malicious mischief, reckless endangerment, stalking, child abuse, elder abuse, or malicious property damage.13 Even though these crimes are not specifically enumerated in the U‐visa, they are incorporated within the qualifying crime of domestic violence for U‐visa purposes. In cases when crime perpetrators are charged with unrelated crimes, U‐visa certifications are still appropriate and explicitly encouraged by the United States Department of Homeland Security.14 An illustrative example is provided in the U‐visa regulations: if a government agent is investigating federal embezzlement charges and learns that the offender is abusing his wife, the wife may be eligible for a U‐visa as a victim of domestic violence, even if her husband is charged only with the non‐qualifying federal embezzlement crimes.15 IV.
DOES U‐VISA STATUS REQUIRE THE INITIATION OF A LAW ENFORCEMENT INVESTIGATION OR A SUCCESSFUL PROSECUTION? No. Congress explicitly crafted the U‐visa immigration protections for victims so as not to interfere with the discretion that investigators and prosecutors have to investigate and choose whether to prosecute criminal activity in any particular case. Congress also recognized that for many crimes, particularly those that can be serial in nature (e.g., rape), a victim could come forward, provide evidence, and only much later—after a number of victims have come forward—can police build a criminal case against the perpetrator. The U‐visa was designed to provide protection for immigrant victims, to encourage them to come forward and provide evidence and information about criminal activity committed against them. If an immigrant crime victim has offered or is willing to offer assistance to law enforcement officials regarding such activity, the outcome of the case (or whether authorities ever proceed with the case) is not relevant to a victim’s U‐visa eligibility. In addition, investigation or prosecution of some criminal activity is impossible because the perpetrator cannot be located, has diplomatic immunity, or has been deported. 12 72 Fed. Reg. 53,014, 53,018 (Sept. 17, 2007). See Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women: An Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801, 849‐876 (1993). 14 See 72 Fed. Reg. 53,014, 53,018 (Sept. 17, 2007). 15
Id. 13 Legal Momentum and the Vera Institute of Justice 8
U‐visa status can therefore be granted even when police decline to investigate or prosecutors decline to charge perpetrators, when charges are later dropped, or when prosecutors are unable to secure convictions.16 V.
APPLICATION PROCESS The United States Citizenship and Immigration Services (USCIS) of DHS has sole jurisdiction over adjudication of petitions for U‐visa status. A person seeking U‐visa status must submit, by mail, Form I ‐918, “Petition for U Nonimmigrant Status” and include with it Form I‐918 Supplement B, “U Nonimmigrant Status Certification,” along with supporting documents required to prove the four requirements for U‐visa eligibility. A copy of Form I‐918, Supplement B, with instructions is included in the tool kit on page 14. Form I‐918, Supplement B must be signed by a qualifying certifier, such as a law enforcement official.17 The applicant sends the completed petition and supporting materials to the Victims and Trafficking Unit of USCIS, located in Vermont. This specialized unit is trained to adjudicate cases involving crime victims and is the only adjudication unit within DHS that can grant U‐visa status. By preparing and signing Form I‐918, Supplement B, a certifier is not conferring legal immigration status upon a noncitizen applicant or making a determination of the applicant’s eligibility for a U‐visa. The certification is a mandatory part of the evidence the victim must submit to USCIS to prove eligibility to receive a U‐visa. In addition to the certification, the applicant must meet the other eligibility criteria, such as demonstrating that he or she suffered substantial mental or physical abuse as a result of having been a victim of the qualifying criminal activity. To be granted a U‐visa, victims are also required to prove that they are eligible for admission to the United States. In some cases, a victim may be inadmissible under immigration law. In such cases, a victim will need to submit an application for a discretionary waiver along with the U‐visa petition. VI.
LAW ENFORCEMENT OFFICIALS AS U‐VISA CERTIFIERS A U‐visa applicant must obtain a certification from a law enforcement official, prosecutor, judge, or other federal or state authority that is detecting, investigating, or prosecuting any of the criminal activities listed in the U‐visa statute or regulations.18 Congress specifically listed 16
72 Fed. Reg. 53,014, 53,020 (Sept. 17, 2007). (“This rule does not require that the prosecution actually occur, since the statute only requires an alien victim to be helpful in the investigation or the prosecution of the criminal activity. See INA sections 101(a)(15)(U)(i)(III) & 214(p)(1), 8 U.S.C. 1101(a)15(u)(i)(III) and 1184(p)(1).). 17 The implementing regulations of the U‐visa require that the law enforcement official that is the certifying official be the head of the certifying agency, or any supervisor specifically designated by the head of the certifying agency to issue U‐visa certifications. See 8 CFR §§ 214.14(a)(3) & 214.14(c)(2)(i). 18
INA § 214(p)(1), 8 U.S.C. 1184(p)(1); 72 Fed. Reg. 53,014, 53,019 (Sept. 17, 2007). Legal Momentum and the Vera Institute of Justice 9
federal, state, and local law enforcement officials as U‐visa certifiers in the statute.19 As first responders, police departments, sheriffs’ offices, and marshals regularly encounter victims whose allegations of criminal victimization they believe to be credible. During the process of detecting criminal activity, taking police reports, and engaging in crime investigations, officers routinely determine whether they believe the criminal activity occurred and whether a person has been a victim of such activity.20 When the crime victim is or may be a noncitizen, the agency, under the federal U‐visa statute, is authorized to issue a U‐visa certification. Based upon the law enforcement officer’s contact with the immigrant victim during detection or investigation of criminal activity, the officer is well positioned to certify an immigrant victim’s helpfulness or willingness to be helpful. The DHS regulations envision that the U‐visa certification process fits within routine activities of law enforcement. The U‐visa certification can be completed at the same time officers are completing their police reports and can then be reviewed and approved by supervisors who are also signing off on the police reports. The U‐visa regulations allow the head of the certifying agency to grant any supervisory person(s) the authority to issue U‐visa certifications.21 The regulations contemplate granting certification authority to multiple supervisory personnel. DHS encourages law enforcement agencies to develop internal policies and procedures to respond to requests for U‐visa certifications. To facilitate the authorization of personnel to sign U‐visa certification forms, a sample “Designee Letter” is included in the tool kit on page 20. Certifying agencies may also develop internal policies and procedures to inform victims where and with whom to file requests for certifications; to provide certifying officials with the relevant and necessary information needed for supervisors to sign U‐visa certifications; and to implement practices that result in certifications being issued. A sample U‐visa certification policy is included in the tool kit on page 26. Evaluating Helpfulness Law enforcement officials may complete U‐visa certifications once they are able to assess a victim’s helpfulness. An investigation need not be complete prior to signing a certification. The certification signed by a certifying official demonstrates that the applicant “has been helpful, is being helpful, or is likely to be helpful in the detection, investigation, or prosecution of the qualifying criminal activity.”22 The “helpfulness” requirement was written using several verb tenses, recognizing that an applicant may apply for status at different stages of an investigation or prosecution.23 Congress 19
INA. § 101(a)(15)(U)(i)(III), 8 U.S.C. 1101(a)(15)(U)(i)(III); I.N.A. § 214(p)(1), 8 U.S.C. § 1184(p)(1). It is important to note that U‐visa certification can and should occur as early as possible after taking a police report or interviewing a credible crime victim. See72 Fed. Reg. 53,014, 53,019 (Sept. 17, 2007). Certification need not wait until the case reaches a probable cause determination. However, for cases in which probable cause has been found, noncitizen victims should receive U‐visa certifications. 21
See 8 CFR §§ 214.14(a)(3) & 214.14(c)(2)(i). 22 8 U.S.C. § 1184(p)(1) 23
72 Fed. Reg. 53,014, 53,019 (Sept. 17, 2007). 20
Legal Momentum and the Vera Institute of Justice 10
intended to allow an individual to petition for status at virtually any stage of the investigation or prosecution.24 Likewise, the definition of “investigation or prosecution” in the statute is interpreted broadly.25 Some examples of helpful actions include, but are not limited to, calling 911 to report the crime, providing a statement to the police, filing a police report, or seeking a protection order. A victim who received certification and was granted a U‐visa has an ongoing obligation to provide assistance.26 Law enforcement officials may notify USCIS directly for cases in which victims are no longer helpful. However, such notification is appropriate only when the victim’s lack of cooperation is not reasonable. VII.
APPLICATIONS FOR LAWFUL PERMANENT RESIDENCY BY U‐VISA RECIPIENTS U‐visa status is issued for a period of up to four years.27 A U‐visa holder can live and work legally in the United States and file petitions with USCIS to provide immigration status for family members.28 Upon certification by a qualifying official, U‐visa status can be extended.29 After three years of continuous presence in the United States, a U‐visa holder is eligible to apply for lawful permanent residency.30 Not all U‐visa holders will qualify for lawful permanent residency. To qualify, U‐visa holders must provide evidence that they have not unreasonably refused to provide assistance in the criminal investigation or prosecution and that their continuous presence in the country is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.
24
Id. Id. at 53,020; 8 C.F.R. § 214.14(a) (5). 26
Id. 27
See INA § 214(p) (6), 8 U.S.C. § 1184(p) (6). 28
8 C.F.R. § 214.4(g) (2008). 29
See INA § 214(p)(6), 8 USC § 1184(p)(6); 8 CFR § 214.4(g)(2008). 30
See INA § 245(m), 8 U.S.C. § 1255(m). 25 Legal Momentum and the Vera Institute of Justice 11
U‐VISA QUICK REFERENCE FOR LAW ENFORCEMENT OFFICIALS Purpose of the U‐visa Benefits of the U‐visa Who is eligible for a U‐visa? U‐visa Qualifying Criminal Activity Status of Crime Perpetrator Certification Requirements • The U‐visa facilitates the reporting of crimes to law enforcement officials by immigrant victims of crime, including domestic violence, sexual assault, human trafficking and other crimes listed in the U‐visa statute. • This type of visa strengthens law enforcement agencies’ ability to detect, investigate, and prosecute crime while offering immigrant crime victims legal immigration status, work authorization, and protection from deportation. • To be eligible for a U‐visa o an individual must have suffered substantial physical or mental abuse as a result of having been a victim of one or more qualifying criminal activities; o the individual must possess information concerning the criminal activity; o the individual must be helpful, have been helpful, or be likely to be helpful to a federal, state, or local official in the detection, investigation, or prosecution of the criminal activity; and o the criminal activity must have occurred in the United States or its territories and possessions or violated U.S. laws. • U‐visa qualifying criminal activity includes, but is not limited to: 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, solicitation to commit any of the above‐mentioned crimes, or any similar activity in violation of federal, state, or local criminal law. • The term any similar activity accounts for the wide variety of state and federal criminal laws that may have names different from the criminal activity listed in the statute but are comparable in nature and elements to the enumerated criminal activity. • A victim may qualify for a U‐visa certification regardless of whether there is any familial relationship between the victim and the perpetrator. The perpetrator may have any immigration or citizenship status such as U.S. citizen, legal permanent resident, diplomat, work‐visa holder, or undocumented immigrant. • A certifying official must complete U.S. Citizenship and Immigration Services (USCIS) Form I‐918, Supplement B. A certifying official is the head of a law enforcement agency or a person(s) with supervisory responsibility designated by the head of the agency to provide certifications. • The certification is necessary to establish eligibility for the U‐visa, but by itself does not grant immigration status to the victim. To obtain a U‐visa, a victim must meet certain eligibility requirements, in addition to obtaining a U‐visa certification. USCIS has sole authority to grant or deny a U‐visa. • The certification should provide specific details about the nature of the crime being detected, investigated, or prosecuted, and describe the petitioner’s Legal Momentum and the Vera Institute of Justice 12
•
Assessing the Helpfulness of the U‐visa Applicant •
•
•
•
helpfulness in the case. U‐visa certification does not require that law enforcement investigate the criminal activity beyond reporting of the crime. The certification attests only to the U‐visa petitioner’s willingness to be helpful or past or present helpfulness in detection, investigation, prosecution, or investigation efforts. If a U‐visa petitioner filed a police report and is willing to assist—or has assisted or cooperated—with detection, investigation, or prosecution of criminal activity, a certification may be provided even when the initial investigation efforts do not lead to further investigation and/or do not result in a prosecution or a conviction. Law enforcement officials may issue a certification at any time after detecting a qualifying criminal activity if the officer believes criminal activity occurred and identifies a person as a victim of criminal activity. The investigation need not be complete prior to issuing a certification. Congress intended to allow victims to obtain U‐visa certifications at very early stages of crime detection—during investigations into criminal activity. To be eligible for lawful permanent residence, the victim has an ongoing responsibility to provide assistance when reasonably requested, as the statute specifies. Legal Momentum and the Vera Institute of Justice 13
OMB No. 1615-0104; Expires 08/31/2010
Instructions for I-918, Supplement B,
U Nonimmigrant Status Certification
Department of Homeland Security
U.S. Citizenship and Immigration Services
Instructions
Please read these instructions carefully to properly complete this form. If you need more space to complete an answer, use a
separate sheet(s) of paper. Write your name and Alien Registration Number (A #), if any, at the top of each sheet of paper
and indicate the part and number of the item to which the answer refers.
What Is the Purpose of This Form?
You should use Form I-918, Supplement B, to certify that an
individual submitting a Form I-918, Petition for U
Nonimmigrant Status, is a victim of certain qualifying
criminal activity and is, has been, or is likely to be helpful in
the investigation or prosection of that activity.
When Should I Use Form I-918, Supplement B?
If you, the certifying official, determine that this individual
(better known as the petitioner) is, has been, or is likely to be
helpful in your investigation or prosecution, you may
complete this supplement form. The petitioner must then
submit the supplement to USCIS with his or her petition for U
nonimmigrant status.
NOTE: An agency's decision to provide a certification is
entirely discretionary; the agency is under no legal obligation
to complete a Form I-918, Supplement B, for any particular
alien. However, without a completed Form I-918, Supplement
B, the alien will be ineligible for U nonimmigrant status.
To be eligible for U nonimmigrant status, the alien must be a
victim of qualifying criminal activity. The term “victim”
generally means an alien who has suffered direct and
proximate harm as a result of the commission of qualifying
criminal activity.
The alien spouse, unmarried children under 21 years of age
and, if the victim is under 21 years of age, parents and
unmarried siblings under 18 years of age, will be considered
victims of qualifying criminal activity where:
1. The direct victim is deceased due to murder or
manslaughter, or
2. Where a violent qualifying criminal activity has caused the
direct victim physical harm of a kind and degree that makes
the direct victim incompetent or incapacitated, and,
therefore, unable to provide information concerning the
criminal activity or to be helpful in the investigation or
prosecution of the criminal activity.
An alien may be considered a victim of witness tampering,
obstruction of justice, or perjury, including any attempt,
conspiracy, or solicitation to commit one or more of those
offenses if:
1. The victim has been directly and proximately harmed by
the perpetrator of the witness tampering, obstruction of
justice, or perjury; and
2. There are reasonable grounds to conclude that the
perpetrator committed the witness tampering, obstruction
of justice, or perjury offense, at least in principal part, as a
means:
A. To avoid or frustrate efforts to investigate, arrest,
prosecute, or otherwise bring to justice the perpetrator
for other criminal activity; or
B. To further the perpetrator's abuse or exploitation of or
undue control over the petitioner through manipulation
of the legal system.
A person who is culpable for the qualifying criminal activity
being investigated or prosecuted is excluded from being
recognized as a victim.
A victim of qualifying criminal activity must provide evidence
that he or she (or in the case of an alien under the age of 16
years or who is incapacitated or incompetent, the parent,
guardian, or next friend of the alien) has been, is being, or is
likely to be helpful to a certifying official in the investigation
or prosecution of the qualifying criminal activity as listed in
Part 3 of this form. Being “helpful” means assisting law
enforcement authorities in the investigation or prosecution of
the qualifying criminal activity of which he or she is a victim.
General Instructions.
Fill Out the Form I-918, Supplement B
1. Type or print legibly in black ink.
2. If extra space is needed to complete any item, attach a
continuation sheet, indicate the item number, and date and
sign each sheet.
Form I-918, Supplement B, Instructions (08/31/07)
Legal Momentum and the Vera Institute of Justice 14
3. Answer all questions fully and accurately. State that an
item is not applicable with "N/A." If the answer is none,
write "none."
This form is divided into Parts 1 through 7. The following
information should help you fill out the form.
Part 1 - Victim information.
A. Family Name (Last Name) - Give victim's legal name.
B. Given Name (First name) - Give victim's full first
name, do not use "nicknames." (Example: If victim's
name is Albert, do not use Al.)
C. Other Names Used - Provide all the names the victim
has used that you are aware of, including maiden name
if applicable, married names, nicknames, etc.
D. Date of Birth - Use eight numbers to show his or her
date of birth (example: May 1, 1979, should be written
05/01/1979).
E. Gender - Check the appropriate box.
Part 2 - Agency information.
A. Name of certifying agency - The certifying agency
must be a Federal, State, or local law enforcement
agency, prosecutor, or authority, or Federal or State
judge, that has responsibility for the investigation or
prosecution, conviction or sentencing of the qualifying
criminal activity of which the petitioner was a victim.
This includes traditional law enforcement branches
within the criminal justice system, and other agencies
that have criminal investigative jurisdiction in their
respective areas of expertise, such as the child
protective services, Equal Employment Opportunity
Commission, and Department of Labor.
B. Name of certifying official - A certifying official is:
1. The head of the certifying agency or any person in a
supervisory role, who has been specifically
designated by the head of the certifying agency to
issue a U Nonimmigrant Status Certification on
behalf of that agency; or
2. A Federal, state or local judge.
If the certification is not signed by the head of the
certifying agency, please attach evidence of the agency
head's written designation of the certifying official for
this specific purpose.
C. Agency address - Give the agency's mailing address.
Part 3 - Criminal acts.
A. Check all of the crimes of which the petitioner is a
victim that your agency is investigating,
prosecuting, or sentencing - If the crime(s) of which
the petitioner is a victim is not listed, please list the
crime(s) and provide a written explanation regarding
how it is similar to one of the listed crimes. Similar
activity refers to criminal offenses in which the nature
and elements of the offenses are substantially similar to
the list of criminal activity found on the certification
form itself.
B. Indicate whether the qualifying criminal activity
violated the laws of the United States or occurred
within the United States (including in Indian
country and military installations) or the
territories and possessions of the United States Qualifying criminal activity of which the applicant is a
victim had to violate U.S. law or occur within the
United States.
Please indicate whether the qualifying criminal activity
occurred within the United States (including in Indian
country and military installations) or the territories and
possessions of the United States.
1. United States means the continental United States,
Alaska, Hawaii, Puerto Rico, Guam, and the U.S.
Virgin Islands.
2. Indian country refers to all land within the limits
of any Indian reservation under the jurisdiction of
the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way
running through the reservation; all dependent
Indian communities within the borders of the United
States whether within the original or subsequently
acquired territory thereof, and whether within or
without the limits of a state; and all Indian
allotments, the Indian titles to which have not been
extinguished, including rights-of-way running
through such allotments.
3. Military installation means any facility, base,
camp, post, encampment, station, yard, center, port,
aircraft, vehicle, or vessel under the jurisdiction of
the Department of Defense, including any leased
facility, or any other location under military control.
Form I-918, Supplement B, Instructions (08/31/07) Page 2
Legal Momentum and the Vera Institute of Justice 15
4. Territories and possessions of the United States
means American Samoa, Bajo Nuevo (the Petrel
Islands), Baker Island, Howland Island, Jarvis
Island, Johnston Atoll, Kingman Reef, Midway
Atoll, Navassa Island, Northern Mariana Islands,
Palmyra Atoll, Serranilla Bank, and Wake Atoll.
If the qualifying criminal activity did not occur within
the United States as discussed above, but was in
violation of U.S. law, it must violate a Federal
extraterritorial jurisdiction statute. There is no
requirement that a prosecution actually occur. Please
provide the statutory citation for the extraterritorial
jurisdiction.
Part 4 - Helpfulness of the victim.
A. Indicate whether the victim possesses information
about the crime(s). A petitioner must be in possession
of information about the qualifying criminal activity of
which he or she is a victim. A petitioner is considered
to possess information concerning qualifying criminal
activity of which he or she is a victim if he or she has
knowledge of details concerning that criminal activity
that would assist in the investigation or prosecution of
the criminal activity. Victims with information about a
cime of which they are not the victim will not be
considered to possess information concerning
qualifying criminal activities.
When the victim is under 16 years of age, incapacitated
or incompetent, he or she is not required to personally
possess information regarding the qualifying criminal
activity. The parent, guardian, or "next friend" of the
minor petitioner may provide that information. "Next
friend" is a person who appears in a lawsuit to act for
the benefit of an alien victim. The "next friend" is not
a party to the legal proceeding and is not appointed as a
guardian.
B. Provide an explanation of the victim's helpfulness to
the investigation or prosecution of the criminal
activity. A victim must provide evidence to USCIS
that he or she (or, in the case of an alien child under the
age of 16 or who is incapacitated or incompetent, the
parent, guardian, or next friend of the alien) has been,
is being, or is likely to be helpful to a certifying law
enforcement official in the investigation or prosecution
of the qualifying criminal activity.
Being “helpful” means assisting law enforcement
authorities in the investigation or prosecution of the
qualifying criminal activity of which he or she is a
victim. Alien victims who, after initiating cooperation,
refuse to provide continuing assistance when needed
will not meet the helpfulness requirement. There is an
ongoing responsibility on the part of the victim to be
helpful, assuming there is an ongoing need for the
victim's assistance.
You, the certifying official, will make the initial
determination as to the helpfulness of the petitioner.
USCIS will give a properly executed Supplement B, U
Nonimmigrant Status Certification significant weight,
but it will not be considered conclusory evidence that
the victim has met the eligibility requirements. USCIS
will look at the totality of the circumstances
surrounding the alien's involvement with your agency
and all other information known to USCIS in
determining whether the alien meets the elements of
eligibility.
Part 5 - Family members implicated in criminal activity.
List whether any of the victim's family members are
believed to have been involved in the criminal
activity of which he or she is a victim. An alien victim is
prohibited from petitioning for derivative U nonimmigrant
status on behalf of a qualifying family member who
committed battery or extreme cruelty or trafficking against
the alien victim which established his or her eligibility for
U nonimmigrant status. Therefore, USCIS will not grant
an immigration benefit to a qualifying family member who
committed qualifying criminal activities in a family
violence of trafficking context.
Part 6 - Certification.
Please read the certification block carefully. NOTE: If
the victim unreasonably refuses to assist in the
investigation or prosecution of the qualifying criminal
activity of which he or she is a victim, even after this
form is submitted to USCIS, you must notify USCIS by
sending a written statement to: USCIS - Vermont
Service Center, 75 Lower Welden Street, St. Albans, VT
05479-0001. Please include the victim's name, date of
birth, and A-number (if available) on all
correspondence.
Form I-918, Supplement B, Instructions (08/31/07) Page 3
Legal Momentum and the Vera Institute of Justice 16
OMB No. 1615-0104: Expires 08/31/2010
I-918 Supplement B,
U Nonimmigrant Status Certification
Department of Homeland Security
U.S. Citizenship and Immigration Services
START HERE - Please type or print in black ink.
Part 1.
For USCIS Use Only.
Receipt
Returned
Victim information.
Family Name
Given Name
Middle Name
Date
Resubmitted
Other Names Used (Include maiden name/nickname)
Date of Birth (mm/dd/yyyy)
Date
Gender
Female
Male
Part 2.
Agency information.
Name of Certifying Agency
Date
Reloc Sent
Date
Name of Certifying Official
Title and Division/Office of Certifying Official
Date
Reloc Rec'd
Date
Name of Head of Certifying Agency
Suite #
Agency Address - Street Number and Name
City
Date
State/Province
Daytime Phone # (with area code and/or extension)
Date
Remarks
Zip/Postal Code
Fax # (with area code)
Agency Type
Federal
State
Local
Case Status
On-going
Completed
Other
Certifying Agency Category
Judge
Law Enforcement
Case Number
Prosecutor
Other
FBI # or SID # (if applicable)
Part 3. Criminal acts.
1. The applicant is a victim of criminal activity involving or similar to violations of one of the following Federal, State or local
criminal offenses. (Check all that apply.)
Abduction
Female Genital Mutilation
Obstruction of Justice
Slave Trade
Abusive Sexual Contact
Hostage
Peonage
Torture
Blackmail
Incest
Perjury
Trafficking
Domestic Violence
Involuntary Servitude
Prostitution
Unlawful Criminal Restraint
Extortion
Kidnapping
Rape
Witness Tampering
False Imprisonment
Manslaughter
Sexual Assault
Related Crime(s)
Felonious Assault
Murder
Sexual Exploitation
Attempt to commit any of
the named crimes
Conspiracy to commit any
of the named crimes
Solicitation to commit any
of the named crimes
Other: (If more space needed,
attach seperate sheet of paper.)
Form I-918 Supplement B (08/31/07)
Legal Momentum and the Vera Institute of Justice 17
Part 3. Criminal acts.
(Continued.)
2. Provide the date(s) on which the criminal activity occurred.
Date (mm/dd/yyyy)
Date (mm/dd/yyyy)
3.
Date (mm/dd/yyyy)
Date (mm/dd/yyyy)
List the statutory citation(s) for the criminal activity being investigated or prosecuted, or that was investigated or prosecuted.
4. Did the criminal activity occur in the United States, including Indian country and military installations,
or the territories or possessions of the United States?
a. Did the criminal activity violate a Federal extraterritorial jurisdiction statute?
Yes
No
Yes
No
b. If "Yes," provide the statutory citation providing the authority for extraterritorial jurisdiction.
c.
Where did the criminal activity occur?
5. Briefly describe the criminal activity being investigated and/or prosecuted and the involvement of the individual named in Part 1.
Attach copies of all relevant reports and findings.
6. Provide a description of any known or documented injury to the victim. Attach copies of all relevant reports and findings.
Part 4. Helpfulness of the victim.
The victim (or parent, guardian or next friend, if the victim is under the age of 16, incompetent or incapacitated.):
1. Possesses information concerning the criminal activity listed in Part 3.
Yes
No
2. Has been, is being or is likely to be helpful in the investigation and/or prosecution of the
criminal activity detailed above. (Attach an explanation briefly detailing the assistance the
victim has provided.)
Yes
No
3. Has not been requested to provide further assistance in the investigation and/or prosecution.
(Example: prosecution is barred by the statute of limitation.) (Attach an explanation.)
Yes
No
4. Has unreasonably refused to provide assistance in a criminal investigation and/or prosecution
of the crime detailed above. (Attach an explanation.)
Yes
No
Form I-918 Supplement B (08/31/07) Page 2
Legal Momentum and the Vera Institute of Justice 18
Part 4. Helpfulness of the victim.
(Continued.)
5. Other, please specify.
Part 5. Family members implicated in criminal activity.
1. Are any of the victim's family members believed to have been involved in the criminal activity of
which he or she is a victim?
Yes
No
2. If "Yes," list relative(s) and criminal involvement. (Attach extra reports or extra sheet(s) of paper if necessary.)
Full Name
Relationship
Involvement
Part 6. Certification.
I am the head of the agency listed in Part 2 or I am the person in the agency who has been specifically designated by the head of the
agency to issue U nonimmigrant status certification on behalf of the agency. Based upon investigation of the facts, I certify, under
penalty of perjury, that the individual noted in Part 1 is or has been a victim of one or more of the crimes listed in Part 3. I certify
that the above information is true and correct to the best of my knowledge, and that I have made, and will make no promises regarding
the above victim's ability to obtain a visa from the U.S. Citizenship and Immigration Services, based upon this certification. I further
certify that if the victim unreasonably refuses to assist in the investigation or prosecution of the qualifying criminal activity of which
he/she is a victim, I will notify USCIS.
Signature of Certifying Official Identified in Part 2.
Date (mm/dd/yyyy)
Form I-918 Supplement B (08/31/07) Page 3
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SAMPLE DESIGNEE LETTER [POLICE DEPARTMENT LETTERHEAD] Date Victims and Trafficking Unit Vermont Service Center Vermont Service Center U.S. Citizenship and Immigration Services 75 Lower Welden Street St. Albans, VT 05479 Dear Sir or Madam: I am the Chief of Police [or Sheriff] of City [or County], State. In this capacity, I am the head of the Police Department of [County, State], which office is responsible for investigating crimes committed in [County, State], which is a certifying agency, as such term is defined at 8 C.F.R. §214.14(a)(2). Pursuant to 8 C.F.R.§ 214.14(a)(3) and 8 C.F.R.§ 214.14(c)(2)(i), I hereby specifically designate Person A, Person B, and Person C, all of whom have supervisory responsibilities, to sign I‐918 Supplement B, U Nonimmigrant Status Certification forms on my Department’s behalf. This specific designation shall remain in force until revoked in writing. Sincerely, [Name] [Title] [County, State] Legal Momentum and the Vera Institute of Justice 20
U‐VISA CERTIFICATION OFFICER’S DUTIES1 GENERAL PURPOSE In addition to performing duties listed under [reference job description that covers officer], the U‐visa certification officer(s) will perform a variety of tasks associated with the U‐visa certification process, including evaluating U‐visa certification requests, and completing and signing I‐918 Supplement B forms (certification forms). SUPERVISION EXERCISED U‐visa certification officer is in a supervisory position and is designated by the head of the agency. ESSENTIAL DUTIES AND RESPONSIBILITIES • Serves as liaison between police department and agency personnel seeking U‐visa certification • Reviews and signs I‐918 Supplement B certification forms prepared by agency personnel • Completes and signs I‐918 Supplement B certification forms • Assists the police department in developing programs and practices that will enhance community‐outreach activities related to the U‐visa and noncitizen crime victims • Oversees programs to educate the public about police department’s U‐visa certification function and purposes • Meets and acts as a liaison with community groups • Liaises with other local government agencies on U‐visa issues as assigned Supports patrol officers at crime, fire, and accident scenes with U‐visa information, materials, and outreach activities •
Completes monthly reports of activities detailing the number of U‐visa certification requests and grants 1
This model duties document was created by Legal Momentum and the Vera Institute of Justice, two not‐for‐profit organizations that provide national technical assistance to law enforcement agencies on the U‐visa certification process.
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PERIPHERAL DUTIES • Serves on various law enforcement and other committees as assigned • Performs related U‐visa work as assigned DESIRED MINIMUM QUALIFICATIONS Education and Experience: (A) Same as for [job description] Preferred Knowledge, Skills, and Abilities: (A) Knowledge and experience working with immigrant and noncitizen crime victims, including those eligible for immigration benefits related to the Violence Against Women Act (VAWA) (e.g., VAWA self‐petitions, T‐visas, and U‐visas) (B) Knowledge of U‐visa statute and regulations, the U‐visa certification process, and other victim‐based forms of immigration relief available to immigrant crime victims (e.g., VAWA self‐
petitions and T‐visas). (C) Knowledge and command (reading, writing, and speaking) of one or more foreign languages prevalent in the community (D) Experience in community policing (E) Familiarity with agency’s limited English proficient policies and procedures (e.g., how to access telephonic interpreters and how to work with bilingual personnel); and ADDITIONAL DESIRED QUALIFICATIONS [for agency to complete] SPECIAL REQUIREMENTS [for agency to complete] TOOLS AND EQUIPMENT USED Personal computer, including word processing and specialized software; phone, typewriter, calculator, fax machine, copy machine; police car, police radio, pager, first aid equipment, vehicle lock‐out tools, camera, outreach materials (pamphlets, palm cards) with information for noncitizen crime victims Legal Momentum and the Vera Institute of Justice 22
SELECTION GUIDELINES Written application by existing officer; rating of education and experience; oral interview; additional related tests may be required. The duties listed above are intended only as illustrations of the various types of work that may be performed. The omission of specific statements of duties does not exclude those duties from the position if the work is similar and related to a logical assignment for the position. Legal Momentum and the Vera Institute of Justice 23
SAMPLE OUTREACH FLYER WERE YOU THE VICTIM OF A CRIME? If you or a close family member were the victim of a crime, you may be able to get a temporary visa, the U‐visa, that can protect you from being deported–if you are willing to help police investigate and prosecute that crime. You may be eligible for a U‐visa if you or your family member were the victim of one of these crimes: rape, torture, trafficking, domestic violence, sexual assault, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, blackmail, extortion, murder, or any similar activity that violates the law Were you a victim of one of the crimes listed above? Was a close family member of yours a victim of a crime listed above? Were you or a close family member the victim of a similar crime? If your answer is YES, you should call [Name] at X Police Department to make a police report. You and your family member may be able to apply for a U‐visa. The U‐visa is a temporary visa for victims who make a report to the police. The U‐visa protects you from being deported for four years. It provides legal immigration status if you are a crime victim and allows you to work legally. You may be able to apply for a U‐visa if you helped or will help police investigate or prosecute a crime. If you have an emergency, call 911 right away. The X Police Department wants to help victims of crime who report crime. This helps us protect the public safety. To learn more about the X Police Department’s U‐visa program, contact _________________ at ______________________. Legal Momentum and the Vera Institute of Justice 24
¿FUE VICTIMA DE UN CRIMEN? Si usted—o un familiar cercano—fue víctima de un crimen, puede calificar para obtener una visatemporal, la visa‐U, que le proteja de la deportación, si ayuda a la policía a investigar y juzgar dicho crimen. Para calificar para una visa‐U, si usted o un miembro de su familia fue víctima de cualquiera de estos crímenes: violación, tortura, tráfico de personas, violencia doméstica, asalto sexual, prostitución, explotación sexual, mutilación sexual femenina, toma de rehenes, servidumbre involuntaria, trata de esclavos, secuestro, rapto, chantaje, extorsión, homicidio o cualquier actividad similar violatoria de la ley. ¿Fue usted víctima de alguno de los crímenes mencionados anteriormente? ¿Fue un familiar cercano suyo, víctima de alguno de los crímenes mencionados anteriormente? ¿Fue usted, o un familiar cercano, víctima de un crimen similar? Si su respuesta es Sí, llame a [nombre] del Departamento de Policía X [department name] para reportar el crimen a la policía. Usted y su familiar pueden calificar para recibir una visa‐U. La visa‐U es una visa temporal para víctimas que reportan su crimen a la policía. La visa‐U le protege de la deportación durante cuatro años. La visa‐U le da status legal de inmigración si usted ha sido víctima de un crimen y le permite trabajar legalmente. Si usted ayudó o va a ayudar a la policía a investigar o juzgar un crimen. Para emergencias llame al 911 inmediatamente. El Departamento de Policía X quiere ayudar a las víctimas que reportan estos crímenes. Esto nos ayuda a garantizar la seguridad pública. Para más información sobre el programa de la visa‐U del Departamento de Policía X llame a ____________ al teléfono _______________. Legal Momentum and the Vera Institute of Justice 25
POLICE DEPARTMENT
GENERAL ORDERS, POLICIES, AND PROCEDURES Enforcement Operations Specialized Situations and Services Police Department GENERAL ORDER Date of Issue Page Subject: CERTIFICATION OF U VISA – NON‐IMMIGRANT STATUS (FORM I‐918, SUPPLEMENT B) CALEA STANDARDS BY AUTHORITY OF Number I. PURPOSE The purpose of this General Order is to establish guidelines and procedures for officers who receive requests for a U‐Visa Certification (Form I‐918, Supplement B). This General Order also specifies the certifying officer who will sign Form I‐918, Supplement B. II. POLICY A. It is the policy of this police department that “any person(s) in a supervisory role” and specifically any supervisor in the domestic violence unit, sexual assault unit, and/or investigatory units, is designated to issue U‐Visa Certification on behalf of the chief of police by completing Form I‐918, Supplement B. B. It is also the policy of this police department to assist immigrant crime victims with their U‐visa applications if they cooperate with agency officials. III. DEFINITIONS A. “Qualifying criminal activity” is defined by statute to be “activity involving one or more of the following or any similar activity in violation of federal, state, or local criminal law.” The statute also includes the attempt, conspiracy, or solicitation to commit any of the crimes listed below: Legal Momentum and the Vera Institute of Justice 26
Abduction Abusive sexual contact Blackmail Domestic violence Extortion False imprisonment Felonious assault Unlawful criminal restraint Being held hostage Incest Involuntary servitude Kidnapping Manslaughter Murder Obstruction of justice Peonage Female genital mutilation Prostitution Rape Sexual assault Sexual exploitation Slave trade Torture Trafficking Perjury Witness tampering Other related crimes B. “Any Similar Activity” refers to other criminal activity when the similarities are substantial and the nature and elements of the criminal activity are comparable. C. The “U‐visa” is the common name for the U nonimmigrant status. IV. PROCEDURE Before completing a Form I‐918, Supplement B (a request for a U‐visa certification), the certifying official shall have verified the following: A. The noncitizen was or is 1. a victim of a criminal activity (listed in Part III‐A above) that took place in the United States or its territories or occurred outside the United States but violates U.S. extraterritorial law; or 2. the spouse or under‐21‐year‐old child of a victim who is deceased because of murder or manslaughter, or who is incompetent or incapacitated; or 3. the parents and unmarried under‐18‐year‐old siblings of an under‐21‐year‐old victim who is deceased because of murder or manslaughter, or who is incompetent or incapacitated. B. The noncitizen has been, is being, or is likely to be helpful to the investigation. This department’s policy describes the victim as being helpful when s/he 1. possesses information about a qualifying criminal activity; and 2. demonstrates cooperation during the detection or investigation of that criminal activity, even if the investigation is not completed. C. When a certification is based on a prior investigation or a criminal case that has been closed or suspended, or when a statute of limitations has passed, the certification shall be completed after the above verification has been conducted. D. No request for certification will be accepted unless it is made on the proper U.S. Citizenship and Immigration Services form (Form I‐918, Supplement B) and has been Legal Momentum and the Vera Institute of Justice 27
completed by the referring legal entity (such as a private attorney, nonprofit organization, or victim). E. The request for certification shall be completed within 14 days from the time it was presented to this department. F. All requests for Form I‐918, Supplement B certifications presented to this department shall be forwarded to the designated certifying officials. G. The certifying official may contact the VAWA Unit of the U.S. Citizenship and Immigration Services to report the U‐visa applicant’s failure to continue cooperating with the department only when the failure to cooperate is considered unreasonable. To determine whether failure to cooperate is unreasonable, officials should review and consider the victim’s history of abuse and victimization, and any threats the victim has experienced or is experiencing. V. ADDITIONAL CONSIDERATIONS Department policy authorizes its members to distribute to any crime victim who may be a noncitizen an informational flyer describing immigration relief and services available to immigrant crime victims. Legal Momentum and the Vera Institute of Justice 28
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U‐VISA NEWS ARTICLES The links to the following news articles are provided as references that may assist law enforcement better understand their role as U‐visa certifiers. 1. Ivie, Stacey and Nanasi, Natalie. “The U Visa: An Effective Resource for Law Enforcement.” FBI Law Enforcement Bulletin (2009). Available at: http://www.fbi.gov/stats‐services/publications/law‐enforcement‐bulletin/2009‐
pdfs/october2009.pdf/at_download/file
Detective Stacey Ivie from the Alexandria (VA) Police Department discusses the advantages of the U‐visa for law enforcement and answers several frequently asked questions posed by her peers about the U‐visa. (See page 10 of the publication—page 12 of the PDF.)
2. Sprecher, Megan and McGrath, Michael. “City of Cleveland takes important steps to ensure citizen safety: We all should follow its lead.” Cleveland.com (2010). Available at: http://www.lasclev.org/2010%20News%20Clippings/03‐28‐
2010_Sprecher_and_McGrath_Op‐Ed.pdf This article chronicles the City of Cleveland’s efforts to expand the use of the U‐visa, including working with the Cleveland Police Department to issue a U‐visa protocol. 3. Toral, Almudena. “Visas Out of Hell: Women Need to Know They Exist.” WeNews.org (2010). Available at: http://www.womensenews.org/story/100302/visas‐out‐hell‐
women‐need‐know‐they‐exist This article highlights the story of Graciela Beines, a crime victim, and how the assistance she received from police, advocates, and others led to a U‐visa. The article also links to a video of Ms. Beines describing her experiences. 4. Ulloa, Jazmine. “U Visa provides temporary legal status for victims of violent crime.” The Brownsville Herald (2010). Available at: http://www.brownsvilleherald.com/articles/recalls‐107822‐night‐wall.html. In this article, the author details the history of the U‐visa, including the administrative barriers that have led to the U‐visa being an underused tool for law enforcement. Legal Momentum and the Vera Institute of Justice 32
U‐VISA STATUTORY AND REGULATORY BACKGROUND: PURPOSE AND HELPFULNESS REQUIREMENT The following excerpts from the Victims of Trafficking and Violence Prevention Act of 2000 and its implementing regulations summarize the statutory and regulatory background on the U‐
visa’s purpose and its helpfulness requirement. Statutory Authority: Purpose of the U‐visa “The purpose…is to create a new nonimmigrant visa classification that will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes…against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. This visa will encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens. Creating a new nonimmigrant visa classification will facilitate the reporting of crimes to law enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status.”1 Statutory Authority: Helpfulness “[T]he alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity…”2 Regulatory Authority: Helpfulness “USCIS [United States Citizenship and Immigration Services] interprets ‘helpful’ to mean assisting law enforcement authorities in the investigation or prosecution of the qualifying criminal activity of which he or she is a victim.”3 “The requirement was written with several verb tenses, recognizing that an alien may apply for U nonimmigrant status at different stages of the investigation or prosecution. By allowing an individual to petition for U nonimmigrant status upon a showing that he or she may be helpful at some point in the future, USCIS believes that Congress intended for individuals to be eligible for U nonimmigrant status at the very early stages of the investigation. This suggests an ongoing responsibility to cooperate with the certifying official while in U nonimmigrant status. If the alien victim only reports the crime and is unwilling to provide information concerning the criminal activity to allow an investigation to move forward, or refuses to continue to provide 1
Victims of Trafficking and Violence Prevention Act of 2000 (VTVPA) Pub L. 106‐386 §1513. Victims of Trafficking and Violence Prevention Act of 2000 (VTVPA) Pub L. 106‐386, codified at 8 U.S.C. §1101(a)(15)(U)(i)(III).
3
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket USCIS‐2006‐ 0069, page 21 (Sept. 17, 2007). 2
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assistance to an investigation, the purpose of BIWPA [Battered Immigrant Women Protection Act] is not furthered.”4 “In addition, in order to qualify for permanent residence status on the basis of U nonimmigrant classification, the alien must not have unreasonably refused to provide assistance in the criminal investigation or prosecution. This requirement further suggests an ongoing responsibility to cooperate with the certifying official while in U nonimmigrant status.”5 “The rule provides that the determination of whether an alien’s refusal to provide assistance was unreasonable will be based on all available affirmative evidence and take into account the totality of the circumstances and such factors as general law enforcement, prosecutorial, and judicial practices; the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant.”6 “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.”7 “Although there are no specific data on alien crime victims, statistics maintained by DOJ [Department of Justice] have shown that aliens, especially those aliens without legal status, are often reluctant to help in the investigation or prosecution of crimes. U visas are intended to help overcome this reluctance and aid law enforcement accordingly.”8 4
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket USCIS‐2006‐0069, page 21 (Sept. 17, 2007).
5
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket USCIS‐2006‐0069, page 21 (Sept. 17, 2007).
6
Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status; Interim Rule. DHS Docket USCIS‐2006‐0067. page 25 (December 8, 2008).
7
72 Fed. Reg. 53014, 53014‐53015 (2007).
8
73 Fed. Reg. 75540, 75554 (2008).
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U‐visa Application Victim Flow Chart
Criminal activity occurs.
IF: The victim has been helpful, is being helpful, or is likely to be helpful to law enforcement
OR
The victim is under 16 years of age and victim’s parent, guardian, or next friend has been helpful, is being helpful, or is likely to be helpful to law enforcement
OR
The victim is 21 years of age or older and is deceased due to the criminal activity or incapacitated or incompetent;
the spouse and/or children under 21 of the victim have been helpful, are being helpful, or are likely to be helpful to law enforcement
OR
The victim is under 21 years of age and is deceased due to the criminal activity or incapacitated or incompetent;
the victim’s spouse, children, parents, or unmarried siblings under 18 have been helpful, are being helpful, or are likely to be helpful to law enforcement
THEN
Victim (or legal representative) seeks I‐918B, Law Enforcement Certification.
(If victim is not working with a service provider, law enforcement officers can refer victims at this point.)
Victim submits U‐visa application to the Victims and Trafficking Unit of USCIS showing that the victim meets each of the U‐visa eligibility requirements.
The application includes*:
• U‐visa application form: Form I‐918
• Law Enforcement Certification: Form I‐918, Supplement B
• Documents related to victim’s identification
• Victim’s signed statement describing the facts of the victimization
• Any information related to victim’s criminal history, including arrests
• Any information related to victim’s immigration history, including prior deportation
• Any information related to victim’s health problems, use of public benefits, participation in activities that may pose national security concerns, and moral turpitude
• Any information related to the victim’s substantial physical or mental abuse suffered
• Other documentation such as police reports, medical records, letters of support from service providers.
Law Enforcement provides victims with:
1. I‐918 Law Enforcement Certification signed in blue ink and completed by f
f
d bl
k d
l db
a. the head of the certifying agency; OR
b. a person in a supervisory role specifically designated by the head
of the agency to sign certifications
2. Any supporting documentation such as reports and findings; and
3. In the case of 1b, a letter from the head of the agency designating another person to sign the certification (designee letter).
Within about 6 months, victim receives decision on U‐visa application. If approved, victim receives work permit. If applications for family members are approved and they are abroad, consular processing begins.
Eligible family members can also apply.
* Other administrative documentation is also required. More information is available at www.legalmomentum.org.
Within about 1 month, victim receives notice from USCIS
USCIS confirming filing fi i fili
of U‐visa application.
After three years, U‐visa holders (victims) apply for lawful permanent residence (“green card”).
The application includes:
• Adjustment of Status Application: Form I‐485
• Any information related to the victim’s continuous presence in the U S since
continuous presence in the U.S. since obtaining U‐visa status
• Any information indicating that USCIS should exercise its discretion to grant lawful permanent residence
• Any information indicating that the U‐visa holder has not unreasonably refused to cooperate with an ongoing investigation or prosecution
or prosecution
Eligible family members can also apply.
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U‐VISA CERTIFICATION AND LAW ENFORCEMENT: FREQUENTLY ASKED QUESTIONS1 BACKGROUND What is the purpose of the U‐visa? In keeping with humanitarian interests of the United States, Congress created the U‐visa to encourage immigrant crime victims to report crimes without fear of deportation and to “encourage law enforcement to better serve immigrant crime victims.”2 How do law enforcement agencies benefit from the U‐visa? As a crime‐fighting tool, the U‐visa reinforces an agency's commitment to victim safety, protection, and recovery from trauma. Victims without immigration status are more likely to report crimes if they have no reason to fear that doing so could cause them to be deported. The community will be safer as a result. Law enforcement agencies that use the U‐visa in conjunction with other community policing measures also prove to immigrants and the community that they are serious about protecting immigrants from crime. CERTIFICATION What is the U‐visa certification? The U‐visa certification is a Department of Homeland Security (DHS) form (I‐918 Supplement B) that a U‐visa applicant submits with a U‐visa application to the United States Citizenship and Immigration Services (USCIS) of DHS.3 The certification is a sworn statement that says an individual is a victim of a qualified criminal activity and has been, is being, or is likely to be helpful in the detection, investigation, or prosecution of that criminal activity.4 What is U‐visa qualifying criminal activity? U‐visa qualifying criminal activity involves a violation of federal, state, or local criminal law (or any similar activity), and specifically includes “rape; torture; 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; or attempt, conspiracy, or 1
This document was modeled after the Questions and Answers about U Visas document, created by the International Institute of the Bay Area. Legal Momentum and the Vera Institute of Justice wish to acknowledge Susan Bowyer. 2
Victims of Trafficking and Violence Prevention Act of 2000, Pub. L. 106–386 §1513(a) (OCT. 28, 2000). 3
USCIS is the agency within DHS responsible for adjudicating applications for immigration benefits, work authorization, and naturalization. Two other branches of DHS are responsible for immigration enforcement activities: Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). 4
INA § 101(a)(15)(U)(i)(III); 8 U.S.C. § 1101(a)(15)(U)(i)(III) (2000). Legal Momentum and the Vera Institute of Justice 36
solicitation to commit any of the above mentioned crimes.”5 Although not all‐inclusive, the list of qualifying criminal activity represents the many types of behavior that can constitute domestic violence, sexual abuse, trafficking, or are crimes that often target vulnerable immigrants as victims.6 What constitutes helpfulness? Helpfulness refers to the victim’s willingness to assist law enforcement during the detection, investigation, or prosecution of criminal activity. Helpfulness can be as simple as a victim reporting a crime to the police. It may also include participating in other aspects of the investigation or prosecution, such as identifying a perpetrator, appearing at court hearings, testifying, or filing victim‐impact statements. Once a victim has been cooperative, the individual has continuing responsibility to assist officials and is required to provide reasonable ongoing cooperation in order to apply for lawful permanent residence.7 To prevent further harm to victims, an exception to the ongoing cooperation requirement exists when victims can demonstrate that their inability or refusal to cooperate is not unreasonable. In some cases it may be unsafe for a victim to fully cooperate with law enforcement. Such situations include trauma or threats of retaliation.8 If a victim has been helpful in detection or investigation of criminal activity, law enforcement can issue U‐visa certification even if the victim later found it too difficult to continue cooperating. Why is the law enforcement certification so important to immigrant victims? The U‐visa affords undocumented victims temporary legal immigration status. Without this, victims may be afraid to seek assistance from law enforcement when they are victimized by a spouse, family member, employer, or even a stranger. Undocumented victims fearing deportation may risk exploitation and ongoing victimization rather than coming forward to report crimes. The U‐visa also provides a victim with employment authorization and protection against deportation, critical tools in establishing economic independence and long‐term safety. Who can sign a U‐visa certification? In order to approve a U‐visa, USCIS requires a U‐visa certification. Any agency that investigates or prosecutes criminal activity may sign a certification.9 USCIS includes in this category judges, 5
INA § 101(a)(15)(U)(iii); 8 U.S.C. § 1101(a)(15)(U)(iii) (2000). New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at page 7 (2007). 7
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at page 85 (2007). 8
USCIS will consider in deciding reasonableness of non‐cooperation “general law enforcement, prosecutorial, and judicial practices; the kinds of assistance asked of other victims of crimes involving an element of force, coercion, or fraud; the nature of the request to the alien for assistance; the nature of the victimization; the applicable guidelines for victim and witness assistance; and the specific circumstances of the applicant, including fear, severe trauma (either mental or physical), and the age and maturity of the applicant.” 8 C.F.R. 245.24(a)(5); 73 Fed. Reg. 75540, 75547, 75560 (Dec. 12, 2008). 9
INA § 214(p)(1), 8 U.S.C. § 1184(p)(1) (2000). 6
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federal and local law enforcement agencies and prosecutors, Child Protective Services, the Equal Employment Opportunity Commission, Department of Labor, and other agencies that meet these guidelines.10 Within law enforcement agencies, only an individual in a supervisory role specifically designated by the head of the agency may sign the certification.11 Every law enforcement officer with a supervisory role may be designated as a U‐visa certification signatory. An agency head may designate any number of law enforcement officers to sign these certifications. Is a law enforcement agency required to sign the certifications? No. Law enforcement agencies are not required to sign the certifications. However, Congress enacted the U‐visa protections with the expectation that law enforcement officers are in the best role to assess the helpfulness of a victim.12 A victim cannot obtain a U‐visa without a law enforcement certification.13 CERTIFICATION SCENARIOS Can a law enforcement officer certify an application for a crime that happened long ago? Yes. There is no applicable statute of limitations that precludes signing a certification. The U‐
visa was enacted in January 2001 as part of the Victims of Trafficking and Violence Prevention Act of 2000.14 However, USCIS did not promulgate regulations until September 2007.15 As a result, many individuals who were crime victims and likely eligible for U‐visas were unable to apply. Many of them still reported crimes, despite the lack of immigration protections. Many more were too scared to report crimes to law enforcement for the reasons Congress contemplated.16 Similarly, by not creating a reporting statute of limitations, Congress protected individuals who were victimized before the law took effect (and before regulations were clarified) by allowing them to meet the criteria required for a law enforcement officer to sign a certification. Can a law enforcement officer sign a certification if the agency decides to investigate a crime that is not listed as a qualifying crime under the U‐visa statute? Yes. The certifying officer must state only that the individual is a victim of a qualifying crime.17 It is not necessary that the qualifying crime be investigated or prosecuted.18 10
INA § 214(p)(1), 8 U.S.C. § 1184(p)(1) (2000); New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at page 23 (2007). 11
I.N.A. § 214(p)(1), 8 U.S.C. § 1184(p)(1) (2000). 12
Victims of Trafficking and Violence Prevention Act of 2000, Pub. L. 106–386 §1513(a)(2)(B) (OCT. 28, 2000). 13
INA § 214(p)(1); 8 U.S.C. § 1184 (p)(1). 14
Victims of Trafficking and Violence Prevention Act of 2000, Pub. L. 106–386 (OCT. 28, 2000). 15
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 (2007). 16
Victims of Trafficking and Violence Prevention Act of 2000, Pub. L. 106–386 §1513(a) (OCT. 28, 2000). 17
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at page 38 (2007). Legal Momentum and the Vera Institute of Justice 38
Can a law enforcement officer sign a certification if the victim is not needed in the course of the investigation or prosecution? Yes. Per Congress, the certification process does not hinge on or require a victim’s testimony or completion of a prosecution. Can a law enforcement officer sign a certification if the prosecutors decide(d) not to prosecute the perpetrator? Yes. A victim should be protected regardless of whether the perpetrator is investigated or prosecuted. In many cases prosecutors do not prosecute, such as when the alleged offender has absconded, enjoys diplomatic immunity, or may be a perpetrator against whom law enforcement has not yet fully built a case. The accused person will usually know at least that a police report has been filed against him (or her), even if charges are never filed. The risk of retaliation is still considerable. Can a law enforcement officer sign a certification if the perpetrator is not convicted? Yes. Prosecutors must build a case considering the full evidence, including the victim’s statement. Ultimately, obtaining a conviction depends on many factors. Regardless of how the prosecution moves forward, however, the victim is at risk. The victim may be at a greater risk if the perpetrator is not convicted. The U‐visa certification is designed to be issued when the law enforcement officer believes that the individual is a victim of a qualifying criminal activity. The criminal burden of proof does not apply and an acquittal in a criminal case does not affect certification, which requires only an assessment of victimization and helpfulness or willingness to be helpful. Can a law enforcement officer sign a certification if the individual seeking certification does not appear to be a victim of a qualifying criminal activity? No. If the law enforcement officer does not believe that the individual seeking certification is a victim of a qualifying criminal activity, the officer should not sign the certification unless it is for an indirect victim (see below). Law enforcement officers, however, should remember that many of these crimes, including sexual assault and human trafficking, are traumatic. Furthermore, many perpetrators fuel immigrant victims’ perceptions and expectations about law enforcement based on experiences from their home countries, where law enforcement officers might have been corrupt and unreliable. Therefore a law enforcement officer may not immediately identify someone as a victim because the individual is not yet comfortable disclosing the victimization. Can a law enforcement officer sign a certification if the victim’s testimony conflicts with earlier statements or is harmful to the case? 18
“For varying reasons, the perpetrator may not be charged or prosecuted for the qualifying criminal activity, but instead, for the non‐qualifying criminal activity. For example, in the course of investigating Federal embezzlement and fraud charges, the investigators discover that the perpetrator is also abusing his wife and children, but because there are no applicable Federal domestic violence laws, he is charged only with non‐qualifying Federal embezzlement and fraud crimes.” New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at page 18 (2007). Legal Momentum and the Vera Institute of Justice 39
Maybe, depending on why the testimony conflicts with earlier statements. For example, language barriers and the use of unqualified interpreters often create the perception that an immigrant victim’s testimony has changed when the conflict is because of faulty or no translation. In cases of particularly traumatic crimes, it may take some time before a victim is able to provide complete information, even if the victim is being helpful. This can also lead to unintended conflicting statements. Can a law enforcement officer sign a certification if there is evidence that the victim is also a crime perpetrator? Yes. Certification can be granted when an officer believes that the immigrant has been the victim of criminal activity, even if the victim has been arrested as a crime perpetrator in the past. Congress anticipated this problem and specifically allowed USCIS the discretion on a case‐
by‐case basis to grant waivers of U‐visa victims’ criminal convictions when it is in the public or national interest.19 Many immigrant crime victims have been controlled in such a way that they end up being arrested based on information from the perpetrator or because of poor interpretation or fear of disclosing the truth about abuse to law enforcement. Despite federal and state policies to the contrary, some domestic violence incidents result in arrest of both the perpetrator and the victim, despite government policies discouraging arrest of the victim. Such arrests fail to acknowledge an overall power and control dynamic that exists in abusive relationships.20 USCIS will screen the criminal background of every U‐visa applicant and the agency will investigate every arrest. If a U‐visa applicant is found to be the perpetrator of the crime (e.g., someone identified as a trafficking victim is actually the trafficker), USCIS precludes the individual from obtaining U‐visa relief. Can a law enforcement officer sign a certification if there are concerns about the victim’s credibility? Yes. The law enforcement officer is responsible for ensuring that the information on the certification is true and complete. USCIS will adjudicate any issues of credibility beyond the certification, including statements in the application that suggest issues of credibility. USCIS employs rigorous standards to check the credibility of every applicant. Are there times when someone might be an indirect victim and still seek certification? Yes. Indirect victims are able to seek U‐visas in cases when the direct victim is deceased as a result of the crime (e.g., murder or manslaughter), incompetent, incapacitated, or under the age of 18.21 The indirect victims can include spouses, children under 21 years of age, and parents of the direct victim. If the direct victim is or was under 21 years of age, parents and 19
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status, 72 Fed. Reg. 53,014. 53,015 (Sept. 17, 2007) 20
See “Family Violence: A Model State Code sec. 205A(2)” The National Council for Juvenile and Family Court Judges (1994) for an outline of considerations in dual arrest cases. Many states have adopted policies that encourage arrest of the predominant aggressor in domestic violence cases. 21
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at pages 12‐15 (2007); 72 Fed. Reg. 53014, 53017 (Sept. 17, 2007). Legal Momentum and the Vera Institute of Justice 40
unmarried siblings under 18 years of age can also apply.22 Parents of U.S. citizens can be considered indirect victims. By extending the victim definition to include certain family members of deceased, incapacitated, or incompetent victims, family members are encouraged to fully participate in the investigation or prosecution and may provide valuable information that would otherwise not be available.23 What if a crime victim does not have an immigration attorney, practitioner, or advocate but the law enforcement officer wants to sign a certification? Law enforcement officers may sign certifications for victims who have not yet secured legal representation.24 U‐visa certifiers should recommend that victims have representation before applying. They should also refer crime victims to agencies in the community with experience assisting immigrant victims. These agencies will provide social services and assist victims in securing representation before the victim applies for a U‐visa. Law enforcement officers should not provide any legal advice to the crime victims. If law enforcement officers are eager to sign certifications, however, they can refer victims to community groups or organizations that can provide legal advice or representation or to advocates who can access technical assistance and support. If a law enforcement officer signs the certification, does the victim automatically get lawful immigration status? No. USCIS requires U‐visa applicants to provide significant further documentation to meet all other U‐visa requirements.25 Can the certification be considered a benefit for the victim in the course of a prosecution of the perpetrator? This may be a concern for prosecutors. Please refer any prosecutors to Partnership staff and we will provide technical assistance specific to that situation. LAW ENFORCEMENT CONCERNS If a law enforcement agency has an ICE (Immigrations and Customs Enforcement) ACCESS partnership agreement (such as 287(g), Secure Communities, or the Criminal Alien Program [CAP]), is a victim still eligible to receive a U‐visa certification? Yes. ICE ACCESS guidelines do not prohibit undocumented victims from seeking U‐visa certification. 22
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at pages 12‐15 (2007); 72 Fed. Reg. 53014, 53017 (Sept. 17, 2007). 23
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at pages 12‐15 (2007); 72 Fed. Reg. 53014, 53017 (Sept. 17, 2007). 24
If an officer signs a certification before the victim has located counsel, the officer may need to reissue the certification at a future date to certify additional or different crimes or if the certification expires due to delays in the victim attaining legal representation. Note, victims are not required to have attorneys to apply for the U‐visa. 25
New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, DHS Docket No. USCIS‐2006‐0069 at page 39 (2007); 72 Fed. Reg. 53014 (Sept. 17, 2007). Legal Momentum and the Vera Institute of Justice 41
What if a particular jurisdiction has a policy not to protect people who are without lawful immigration status? Congress created the U‐visa to: strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes…while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. This visa will encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens.26 Law enforcement jurisdictions that in practice refuse to sign U‐visa certifications or that adopt a uniform policy against signing U‐visa certifications should consider the ramifications for immigrant victims and the safety and trust of law enforcement within the entire community. Law enforcement agencies exist to keep communities safe. Excluding a significant and vulnerable part of the population from protection may have long‐lasting and serious effects for the entire community. Once a certification is signed, what are the ongoing obligations for a law enforcement officer? If a victim later appears not to be a victim or is no longer being helpful, a certifying officer is required to contact the VAWA Unit at the Vermont Service Center of USCIS to report any such changes. However, such notification is appropriate only when the victim’s lack of cooperation is not reasonable. A victim may choose not to continue to provide information or testimony for a number of reasons, including the crime perpetrator’s coercing the victim not to testify or threatening the victim or family members with further harm or other retaliation if s/he continues cooperating. The regulations use a “totality of circumstances” test to assess whether a U‐visa holder unreasonably refused to provide assistance.27 Some factors to consider in ascertaining whether the victim’s lack of cooperation is reasonable are the amount of time that has passed since the victimization, the level of trauma, the availability of victim services and resources, and financial stability.28 What if the victim is arrested after the certification is signed? USCIS will investigate the arrest of every person with a pending application. Certifying officers have no duty to track the criminal history of every victim receiving a U‐visa certification. U‐visa applicants with criminal convictions must disclose these convictions and apply for a waiver related to criminal convictions as part of the U‐visa adjudication process. USCIS has the discretion to grant waivers if it is in the national or public interest to do so. After the U‐visa is granted, USCIS will review an individual’s criminal history when the U‐visa holder applies for lawful permanent residence.29 In some jurisdictions, the U‐visa holder who is arrested will be 26
Victims of Trafficking and Violence Prevention Act of 2000, Pub. L. 106–386 §1513(a) (OCT. 28, 2000). 8 CFR 245.24(a)(5) (2009) 28
73 Fed. Reg. 75540, 75547 (Dec. 12, 2008). 29
U‐visa holders who apply for lawful permanent residence must also meet several other requirements and do not automatically receive permanent immigrant status in the United States. INA §245(m). 27
Legal Momentum and the Vera Institute of Justice 42
brought to the attention of U.S. Immigration and Customs Enforcement. Even to individuals granted lawful permanent status, a criminal conviction can have immigration consequences and the process is closely monitored by the Department of Homeland Security. What if the victim is in immigration removal proceedings or immigration detention? An immigrant in removal proceedings and/or detention may still be eligible for and granted a U‐
visa. These circumstances should have no impact on whether a law enforcement officer signs the certification. Immigration enforcement actions are typically subject to prosecutorial discretion. Law enforcement officers should encourage immigrants in removal proceedings to obtain legal advice from an experienced immigration attorney. CONTACTS If a law enforcement agency has questions about a particular case, who can provide guidance? For questions about U‐visa certification: Thomas Pearl, Assistant Center Director, Victims and Trafficking Unit Vermont Service Center, USCIS: [email protected] or Scott Whelan, Office of Policy and Strategy, USCIS: (202) 272‐
8137 or [email protected] For law enforcement officers seeking technical support or consultation, please contact Legal Momentum at (202) 326‐0040 or [email protected] to receive technical support from staff attorneys and law enforcement officer consultants. Legal Momentum and the Vera Institute of Justice 43