Escape

Alerta de seguridad: si cree que sus actividades en la computadora están siendo monitoreadas, por favor accese este sitio web desde una computadora más segura. Para salir inmediatamente de este sitio, haga clic en la tecla “esc”. Si está corriendo peligro en este momento, llame al 911, a la línea de crisis local, o a la Línea Nacional Directa contra Violencia Doméstica al  1-800-799-7233 o TTY 1-800-787-3224.

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Alerta de seguridad: si cree que sus actividades en la computadora están siendo monitoreadas, por favor accese este sitio web desde una computadora más segura. Para salir inmediatamente de este sitio, haga clic en la tecla “esc”. Si está corriendo peligro en este momento, llame al 911, a la línea de crisis local, o a la Línea Nacional Directa contra Violencia Doméstica al  1-800-799-7233 o TTY 1-800-787-3224.

The Violence Against Women Act (VAWA) includes important protections for immigrant victims of domestic violence, sexual assault, dating violence and stalking. It is well known that abusers often use a victim’s lack of immigration status as a tactic of abuse – threatening to report them to ICE and have them deported. Similarly, it is extremely common for abusers to tell immigrant survivors that if they reach out for help from the police or the courts, then they will be arrested and separated from their families. As a result, it is important to ensure that immigrant victims know that they can reach out for help and that there are protections in place to help them access safety and justice. 

Included below are important resources to assist advocates in their efforts to engage in enhanced safety planning, help survivors access important immigration remedies, support systems advocacy efforts, and other useful websites.

Enhanced Safety Planning Resources:

Family Safety Planning Materials

Example of a Warrant Signed by a Judge (ACLU)

Example of a Warrant Signed by ICE (ACLU)

Make a Plan: Migrant Parents’ Guide to Preventing Family Separation (Women's Refugee Commission)

Assisting Immigrant Victims of Domestic Violence: Law Enforcement Guide (BWJP)

Enhanced Safety Planning for Immigrant Survivors of Domestic and Sexual Violence / Planeamiento de Seguridad Reforzado para Inmigrantes Sobrevivientes de Violencia Doméstica y Sexual (Multiple agencies)

Know Your Rights

Know Your Rights: A Guide to Your Rights When Interacting with Law Enforcement (Catholic Legal Immigration Network, Inc.)

Know Your Rights Card in Spanish (ACLU)

Appleseed Deportation Manual

Protecting Assets and Child Custody in the Face of Deportation

 

Immigration Remedies for Survivors:

U Visa Immigration Relief for Victims of Certain Crimes (DHS)

VAWA Confidentiality Protections for Immigrant Crime Victims in the Context of Immigration Enforcement (NIWAP)

Introduction to Immigration Relief for Immigrant Victims of Domestic Violence and Sexual Assault and Glossary of Terms (NIWAP and others)

 

Systems Advocacy Resources:

Enforcement

Texas SB4 Halted by a Federal Court (MALDEF)

DHS Memo on Enforcement of the Immigration Laws to Serve the National Interest (DHS)

Fact Sheet: Enhancing Public Safety in the Interior of the United States (DHS)

Joint Report from Attorneys General on Local Involvement In Federal Civil Immigration Enforcement (NY AG Office)

The Effects of Increased Entanglement between local police and immigration enforcement is a detrimement to DV/SA survivors (Multiple agencies)

Victim Protections

ICE Memo on Discretion for Certain Victims, Witnesses, and Plaintiffs (ICE)

Statement on DHS Removal of Identifying Victim Information on VINE (Multiple agencies)

Immigrant Rights Advocacy

Letter to the State Courts about Witnesses with Limited English Proficiency (DOJ)

Tri-Agency Joint Letter by HUD, HHS, and DOJ on Life and Safety Services (DOJ)

2017 Advocate and Legal Service Survey Regarding Immigrant Survivors (Multiple agencies)

The Effects of Sanctuary Policies on Crime and the Economy (NILC)

Factsheet on Effects of Sanctuary Cities on Crime Rates (AIC)

 

Useful websites with additional information:

In alphabetical order, below are some trusted sources for immigration resources, from know your rights to legal defense/advocate updates.

American Immigration Council

Asian Pacific Institute on Gender-based Violence

ASISTA Immigration Assistance

Battered Women's Justice Project (BWJP)

Futures Without Violence

ICE’s Online Detainee Locator

Immi (developed by Immigration Advocates Network and ProbonoNet)

Immigrant Defense Project

Immigrant Legal Resource Center

Immigration Impact

Informed Immigrant

NIWAP (National Immigrant Women’s Advocacy Project)National Immigrant Women’s Advocacy Project)

Tahirih Justice Center

We Belong Together

 

Click here to Stay Connected and become part of the National Latin@ Network membership to receive weekly updates on policy, relevant news for DV/SA advocates, network news and resources, the NLN blog, funding opportunities, webinars and trainings, and job opportunities!

DECIMOS NO MÁS, the sister campaign to NO MORE, is a bilingual comprehensive toolkit with resources and information about how families can raise children who can engage in healthy communications, relationships, and sexuality.

Services supported by the Violence Against Women Act (VAWA) make a difference to victims every day.  

  • When a survivor chooses to obtain a protective order – a critical safety remedy supported by VAWA –more often than not, it reduces violence.
  • Threats to kill or harm decreased nearly 50 percent. Moderate physical abuse decreased 61 percent and severe physical abuse decreased nearly 50 percent. Protective orders reduce all types of intimate partner violence: psychological, financial, physical, and sexual. Reauthorizing VAWA is not only the right thing to do, it’s the smart thing to do – making sure federal dollars go to highest priorities, address gaps, and have maximum impact.
  • In one 24‐hour period, local domestic violence programs served more than 67,000 victims.1
  • Three quarters of domestic violence victims (74 percent) rated the assistance they received at a domestic violence shelter as “very helpful” and another 18 percent said it was “helpful.”2
  • VAWA has contributed to a significant reduction in domestic violence. Between 1994 and 2010, the rate decreased by 64 percent.3
  • When sexual assault victims receive advocate-assisted services, like those provided by the VAWA-supported Sexual Assault Services Program, they receive more helpful information, referrals and services, and experience less secondary trauma or re-victimization by medical and legal systems than those without advocates.4
  • Rape survivors supported by advocates were 59% more likely to have police reports taken than survivors without advocates. When advocates are present in the legal and medical proceedings following rape, victims fare better in both the short- and long-term recovery, experiencing less psychological distress, physical health struggles, sexual risk-taking behaviors, self-blame, guilt, and depression.6
  • VAWA provides vital services for men, women and children. VAWA is subject to the same general anti-discrimination laws that apply to all federal government activities, and includes specific language noting that male victims cannot be denied VAWA-funded services.7

Women are disproportionally affected by sexual violence, intimate partner violence and stalking.

  • Nearly one in five women and one in 71 men have been raped in their lifetime.7
  • One in four women and one in seven men have experienced severe physical violence by an intimate partner.8
  • Women are more than four times more likely than men to be beaten, six times more likely to be slammed against something, and nine times more likely to be hurt by choking or suffocating.9
  • One in six women have been stalked during their lifetime; one in 19 men have experienced stalking in their lifetime.10
  • Women represent 88% of all callers to the National Domestic Violence Hotline.11

VAWA supports a coordinated justice system response to ensure safety for families and children.

  • VAWA encourages pro-arrest policies where there is probable cause to believe domestic violence has taken place. All state and local law enforcement have the authority, separate from VAWA, to make arrests where there is probable cause to believe any crime has taken place.
  • In every court in the country, there must be at least “reasonable grounds to believe” that one partner has abused the other before a court will issue a protection order.

VAWA does not create any requirements on how states or local courts handle divorce and custody cases within their jurisdictions. The law in most states requires courts to award custody based on the best interests of the child.

  • In one Kentucky study12, threats and physical abuse dropped dramatically during the six months after a survivor obtained a protective order.
  • VAWA has saved governments more than $14.8 billion in the first 6 years alone.13 In one state (Kentucky), protective orders save at least $85 million annually.14
  • VAWA funding will help address the current reality that far too many sexual assault victims are still without services in their communities, and many sexual assault programs often lack resources to fully meet victims’ needs — 60% of programs have waiting lists for sexual assault counseling and 30% have waiting lists for support groups.15

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  1. Domestic Violence Counts 2011: A 24-hour census of domestic violence shelters and services. The National Network to End Domestic Violence (2012). http://nnedv.org/docs/Census/DVCounts2011/DVCounts11_NatlSummary_Color.pdf.
  2. Meeting Survivors’ Needs: A Multi-­‐State Study of Domestic Violence Shelter Experiences. National Resource Center on Domestic Violence & University of Connecticut School of Social Work (2009). See http://www.vawnet.org/research/MeetingSurvivorsNeeds/.
  3. Catalano, S. (2012, November). Intimate Partner Violence, 1993 – 2010. http://bjs.ojp.usdoj.gov/content/pub/pdf/ipv9310.pdf.
  4. Campbell, R. (2006). Rape survivors’ experiences with the legal and medical systems: Do rape victim advocates make a difference? Violence Against Women, 12, 30-­‐45. doi:10.1177/1077801205277539)
  5. Ibid.
  6. 42 USC 13925(b)(8)
  7. Black, M.C., Basile, K.C., Breiding, M.J., Smith, S.G., Walters, M.L., Merrick, M.T., Chen, J., & Stevens, M.R. (2011). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report and Fact Sheet. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention.
  8. Ibid. (This number increases to one in six for gay males. See Walters, M.L., Chen J., & Breiding, M.J. (2013). The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Findings on Victimization by Sexual Orientation. Atlanta, GA: National Center for Injury Prevention and Control, Centers for Disease Control and Prevention. http://www.cdc.gov/ViolencePrevention/pdf/NISVS_SOfindings.pdf.).
  9. Ibid.
  10. Ibid.
  11. National Domestic Violence Hotline (2012).
  12. 12 The Kentucky Civil Protective Order Study: A Rural and Urban Multiple Perspective Study of Protective Order Violation Consequences, Responses, & Costs (2009). https://www.ncjrs.gov/pdffiles1/nij/grants/228350.pdf.
  13. Kathryn Andersen Clark et al., A Cost-­‐Benefit Analysis of the Violence Against Women Act of 1994, 8 Violence Against Women 417 (2002).
  14. Ibid. at 12.
  15. Survey by the National Alliance to End Sexual Violence programs (2012).

Ensuring meaningful access to services is critical to protecting the life and safety of Survivors with limited English proficiency (LEP).  In response to numerous requests for information on the rights of access to services for LEP individuals, Casa de Esperanza has compiled the following list of answers to frequently asked questions:

 

Do organizations that receive federal funds have to ensure language access for LEP individuals?

  • Recipients of Federal funding must take reasonable steps to ensure “Meaningful Access” to those with Limited English Proficiency (LEP) under Title VI of the Civil Rights Act
  • Title VI of the 1964 Civil Rights Act states the following:

“No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” Section 601 of Title VI, 42 U.S.C. sec. 2000d

  • The U.S. Supreme Court stated that one type of national origin discrimination is discrimination based on a person’s inability to speak, read, write or understand English (Lau v. Nichols (1974)).

Who is a Limited English Proficient Individual?

  • LEP persons are those individuals who do not speak English as their primary language and have a limited ability to read, write, speak or understand English.
  • The Census revealed that more than 24 million persons over the age of five living in the United States spoke a language other than English and did not speak English “very well”. Of those, 11 million did not speak English at all or spoke it poorly. (Source: U.S. Census Bureau, 2006-2008 American Community Survey)

How is this language access provision of Title VI implemented by Federal Agencies?

  • President Clinton signed Executive Order 13166 in Aug. 2000: "Improving Access to Services for Persons with Limited English Proficiency” to further clarify the obligations of federal agencies and recipients of federal funds to comply with Title VI protections for LEP individuals.  
  • In 2002, DOJ issued final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons. 67 Fed. Reg. 41 ,455 (June 18,2002) (DOl Guidance).
  • In 2011, Attorney General Erich Holder issued  a Memorandum for the heads of all federal agencies, general counsels and civil rights divisions entitled “Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166” (See Resource list)

What are the requirements of Executive Order 13166?

  1. The Executive Order requires Federal agencies to examine the services they provide, identify any need for services to those with limited English proficiency (LEP), and develop and implement a system to provide those services so LEP persons can have meaningful access to them. Agencies must develop an LEP Language Access Implementation Plan which should be evaluated and updated periodically.
  2. The Executive Order also requires that the Federal agencies work to ensure that recipients of Federal financial assistance provide meaningful access to their LEP applicants and beneficiaries.

Who qualifies as a recipient of federal financial assistance?

  • Federal financial assistance includes grants, training, use of equipment, donations of surplus property, and other assistance. Subrecipients are also covered, when federal funds are passed on from one recipient to another. Recipients of federal funds range from state and local agencies, to nonprofits and other organizations.
  •  
  • Title VI covers a recipient's entire program or activity. This means all parts of a recipient's operations are covered. This is true even if only one part of the recipient receives the federal assistance.
  •  
  • The following example is provided in the FAQ at LEP.gov: “Example: DOJ provides assistance to a state department of corrections to improve a particular prison facility. All of the operations of the entire state department of corrections--not just the particular prison--are covered.”

What are recipients of federal funds and federal agencies required to do to meet LEP requirements?

Recipients and federal agencies are required to take reasonable steps to ensure meaningful access to their programs and activities by LEP persons.

  1. The starting point is an individualized assessment that balances the following four factors:
  2. The number or proportion of LEP persons eligible to be served or likely to be encountered by the program or grantee;
  3. the frequency with which LEP individuals come in contact with the program;
  4. the nature and importance of the program, activity, or service provided by the program to people's lives; and
  5. the resources available to the grantee/recipient or agency, and costs.

See LEP Policy Guidance issued by different federal agencies: http://www.lep.gov/guidance/guidance_index.html

If a non-profit organization has limited resources available is it exempt from this language access requirement?

See the published remarks of the Assistant Attorney General at a meeting of the Federal Interagency Working Group on Limited English Proficiency 4/20/09:

“I want to point out 2 key areas of guidance…that applies across all agencies and recipients: First, as time goes on, the bar of reasonableness is being raised. The need to show progress in providing all LEP persons with meaningful access increases over time… The second cross-cutting point is that, even in tough economic times, assertions of lack of resources will not provide carte blanche for failure to provide language access. Language access is essential and is not to be treated as a “frill” when determining what to cut in a budget…” http://www.lep.gov/Kingremarks4_20_09.pdf, p.8.

What if there are multiple languages spoken in the community we serve?

As stated in the federal guidance “It is important to distinguish between establishing a system for communicating with LEP individuals who speak frequently-encountered languages (e.g. hiring bilingual staff members) versus enabling access to a telephonic interpretation service for LEP individuals who speak less commonly-encountered languages.” (See “Common Language Access Questions, Technical Assistance and Guidance” from the Civil Rights Division of DOJ in the Resource list below)

What if my state or local jurisdiction has an “English-only” law?

  • Despite a state's or local jurisdiction’s official English-only law, Title VI and the Title VI regulations apply. Recipients continue to have a legal obligation under federal law to provide meaningful access for LEP persons.
  • State and local laws may provide additional obligations to serve LEP individuals, but cannot compel recipients of federal financial assistance to violate Title VI.

What elements are important to ensure the quality of language access

  • Accuracy and effective communication are critical in domestic violence situations.
  • Do not rely on friends and family members to interpret for the LEP victim in important and sensitive interactions.
  • It is very important to avoid using children as interpreters, especially in domestic violence cases.
  • Being bilingual is not enough for someone to be able to interpret; interpreters should be trained, neutral, and abide by confidentiality and ethical standards.
  • Important to ensure that vital documents are translated into the non-English language of each regularly encountered LEP group.
  • The best practice for organizations that receive federal funds is to develop a language access plan.

What are the Elements of an Effective LEP Language Access Plan?

  • Updated demographic profile of the community
  • Process for identifying LEP persons who need language assistance when they first come into contact with the organization
  • Identifying ways in which quality language assistance will be provided (for both oral and written information)
  • Training staff and volunteers; hiring bilingual personnel
  • Outreach and Education accessible to LEP individuals
  • Monitoring and updating the LEP Language Access Plan regularly

If a housing program serves some LEP individuals through a bilingual staff person but her caseload is full, can the organization turn away additional LEP individuals if other available staff are not bilingual?

  • The HUD regulations on LEP access make it clear that a recipient of Federal funds cannot deny access to an individual based solely on the fact that they have Limited English Proficiency. (See HUD Final Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons (72 FR 2732, issued January 22, 2007)).
  • HUD regulations state: “When bilingual staff cannot meet all the language service obligations of the recipient, the recipient would turn to other options” (72 FR 2742). In the HUD guidance it further states: “[R]efusing to serve LEP persons or not adequately serving or delaying services to LEP persons would violate Title VI” (72 FR 2751).

If the survivor seeking services does not have legal immigration status, does she still have a right to meaningful language access under Title VI?

Regulations state that “Title VI LEP obligations apply to every beneficiary who meets the program requirements, regardless of the beneficiary’s citizenship status” (72 FR 2751).

Do Courts have to provide interpreters?

  • The DOJ Guidance and subsequent technical assistance letters from the Civil Rights Division explain that court systems receiving federal financial assistance, either directly or indirectly, must provide meaningful access to LEP persons in order to comply with Title VI, the Safe Streets Act, and their implementing regulations.
  • The DOJ Guidance states: ... [W]hen oral language services are necessary, recipients [of any federal funds] should generally offer competent interpreter services free of cost to the LEP person.
  • For DOJ recipient programs and activities, this is particularly true in a courtroom, administrative hearing, pre- and post-trial proceedings, situations in which health, safety, or access to important benefits and services are at stake, or when credibility and accuracy are important to protect an individual's rights and access to important services (67 FR 41455, 41462).
  • DOJ’s Guidance goes on to note: ...At a minimum, every effort should be taken to ensure competent interpretation for LEP individuals during all hearings, trials, and motions during which the LEP individual must and/or may be present. (67 FR 41455, 41471)  
See DOJ Language Access Guidance letter to State Courts in resource list below

How to file a Complaint:

  • The Civil Rights Division of DOJ has an office of Federal Coordination and Compliance that handles complaints. Investigations may result in the issuance of formal findings of compliance or non-compliance. If voluntary compliance cannot be achieved where non-compliance is found, the Section refers the case to the appropriate Division Section for litigation or, in cooperation with the appropriate funding component within the Department, seeks to terminate the federal financial assistance through an administrative hearing.

See Resource list for link to complaint forms

List of Resources:

Official government website of the Federal Interagency Working Group on Limited English Proficiency: www.LEP.gov

Common Language Access Questions, Technical Assistance and Guidance for Federally Conducted and Federally Assisted Programs- by DOJ (Aug. 2011) http://www.lep.gov/resources/081511_Language_Access_CAQ_TA_Guidance.pdf

Language Access Assessment and Planning Tool for Federally Conducted and Federally Assisted Programs (May, 2011): http://www.lep.gov/resources/2011_Language_Access_Assessment_and_Planning_Tool.pdf

Brochure with brief overview of Fedl LEP requirements for recipients of federal funds: http://www.lep.gov/resources/lepbrochure.pdf

Attorney General Memorandum: Federal Government's Renewed Commitment to Language Access Obligations Under Executive Order 13166 (Feb. 2011)http://www.justice.gov/crt/lep/AG_021711_EO_13166_Memo_to_Agencies_with_Supplement.pdf

Language Access Guidance Letter to State Courts from DOJ, Civil Rights Division– Aug. 17, 2010 http://www.lep.gov/final_courts_ltr_081610.pdf

DOJ Language Access Plan (March, 2012)   http://www.justice.gov/open/language-access-plan.pdf

Tips and Tools Specific to Domestic Violence Service Providers and Specialists (DOJ, Civil Rights Division): http://www.lep.gov/resources/tips_and_tools-9-21-04.htm#38

Model Protocol on Services for LEP Immigrant and Refugee Victims of Domestic Violence (Washington State Coalition Against Domestic Violence)  http://www.wscadv.org/docs/protocol_LEP_victims.pdf

Executive Order 13166: http://www.justice.gov/crt/cor/Pubs/eolep.pdf

Resource Guide for Advocates and Attorneys on Interpretation Services for Domestic Violence Victims (API Institute on Domestic Violence): http://www.apiidv.org/files/Interpretation.Resource.Guide-APIIDV-7.2010.pdf

Commonly Asked Questions and Answers Regarding Exec. Order 13166 – DOJ website http://www.justice.gov/crt/about/cor/Pubs/lepqa.php

Complaint Form for DOJ Civil Rights Division,  Federal Coordination and Compliance Section: http://www.justice.gov/crt/about/cor/complaint.php.

Complaint form for HHS Office of Civil Rights: http://www.hhs.gov/ocr/civilrights/complaints/complaintformpackage.pdf

“I Speak” Language Identification Cards  available for free download at: http://www.justice.gov/crt/lep/resources/ISpeakCards2004.pdf

Language Access in State Courts (Brennan Center for Justice, NYU Law School): http://www.brennancenter.org/content/resource/language_access_in_state_courts

For more information, contact Rosie Hidalgo, Director of Public Policy for Casa de Esperanza at rhidalgo@casadeesperanza.org

This project was supported by Grant No. 2011-TA-AX-K047 awarded by the Office on Violence Against Women, U.S. Department of Justice.  The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

Immigration Changes and Practice Pointers - VAWA 2013

The Violence Against Women Reauthorization Act of 2013 (VAWA 2013), combined with the Trafficking Victims Protection Reauthorization Act (TVPRA), was signed into law on March 7, 2013.  Below is an overview of substantive changes and technical fixes both in VAWA and the TVPRA as well as practice pointers for attorneys and advocates on how to work with these new changes.  You  can  access  the  full  VAWA  2013  (which  includes  TVPRA)  at: http://bit.ly/YX5D0T

ASISTA wishes to thank Eunice Cho of National Employment Law Project, Stephanie Richard from the Coalition to Abolish Slavery and Trafficking and Ellen Kemp from the National Immigration Project for their contributions to this advisory.   In addition, ASISTA wishes to thank Jessica Jones and Jennifer Podkul from Women’s Refugee Commission for drafting the section on the TVPRA’s Provisions on Unaccompanied Minor Children and Jeanne Smoot from Tahirih Justice Center for drafting the IMBRA provisions.

SUBSTANTIVE CHANGES IN VAWA and TVPRA

A.  U visa Age-Out Fix

Section  805  of  VAWA  2013  contains  essential  age-out  fixes  which  parallel  the  language currently in the statute for T visa holders, covering two kinds of U visa applicants who may age out after filing or approval:

1     Derivative U visa applicants who were under 21 at the time of the principal's filing shall continue to be classified as children even if they turn 21 while the principal U-1’s application (or their own application) is pending. This provision applies retroactively for derivatives back to the creation of the U visa in 2000 and should, therefore, cover anyone harmed by USCIS' change in policy towards aged-out derivatives.1

2     This section also provides that a principal U-1 applicant who was under 21 at the time of filing shall continue to be treated as a child applicant even if s/he turns 21 while the application is pending, and thus preserving her own derivatives' (parents and siblings under 18) ability to receive status.

Practice Pointers for Derivatives in U.S.: This age-out fix should apply to those derivatives who are currently in deferred action status pursuant to USCIS' recent memorandum, or who have no status because they turned 21 before USCIS adjudicated the principal’s application. ASISTA will be advocating with USCIS to ensure that this fix applies to those individuals. This means U-3 derivatives age was determined on the date of principal filing; it does not mean that derivatives who aged out while the principal application is pending will get U-3 status backdated to the date of principal's grant. In the mean time, practitioners should continue filing requests for deferred action and continue to request extensions for principals whose derivatives have not yet gotten status until USCIS issues regulations or guidance.

Practice Pointers for Derivatives Abroad: This age-out fix should apply to those derivatives who turned 21 before they were able to consular process into the United States.  We have heard from trafficking advocates that this language has worked successfully to bring in aged-out derivatives abroad, as  long  as  they  were  under 21  when  the  principal filed.  ASISTA  will advocate with USCIS and the Department of State to ensure that this fix applies to those individuals.

Continue to include derivatives as you are filing U applications even if they are abroad and about to turn 21 and continue to request extensions for U-1 principals whose derivatives have not yet gotten status until USCIS issues regulations or guidance. Expect delay and include a copy of the new provisions when requesting interviews with the consulates abroad. Remember that it is likely FAM has nothing on this change yet and consulates will not know how to handle the cases yet so you should be prepared to educate them. If you encounter any problems with this new provision with the consulates, please notify ASISTA at  questions@asistahelp.org or update the Consular Process Google Document managed by ICWC.  For information how to sign up for the Google Document, visit: http://bit.ly/12LC7jN

Practice Pointer for Derivatives of Principals who Adjusted:   USCIS’ position is that derivatives are not eligible for status if the principal adjusts before USCIS approves the derivatives'  applications.2     Since  the  statute  does  not  include  this  requirement,  and  many principals  were  unaware  of  the  I-539  extension  process  that  would  have  avoided  this consequence, we will advocate with USCIS that the new law should apply to derivatives harmed by this position as well as to those whose principals have not yet adjusted.  We expect resistance to this suggestion, so please respond promptly to requests for examples of sympathetic cases to illustrate  why  USCIS  should  apply  the  new  law  retroactively  to  all  aged-out  derivatives, including those whose principals have now adjusted status.

Practice Pointer on Children Marrying:  This age-out fix does NOT change the fact that a derivative who marries is no longer considered a child under INA 101(b) and is unable to obtain derivative status. It is important to advise derivative U-3 visa holders NOT to get married for sure until after the U-3 visa is approved, and to be even more prudent, to wait until the U-3 derivative has adjusted status.   Waiting until adjustment will allow more protection for the derivative since USCIS has stated they are permitted to revoke U-3 status of a derivative who marries  under  8  CFR  214.14(h)(2)  (although  this  is  a  regulatory  and  not  statutorily-based position and may be done on a case-by-case basis).

Practice Pointer for Derivatives Whose Principals Didn't File Timely: The VAWA 2013 language preserves the child's age on date of principal's filing, not derivative's filing, so we will advocate with USCIS that derivatives who were under 21 at time of principal filing should now be allowed to file.

B. Addition of Foreign Labor Contracting Fraud to List of Enumerated U visa Crimes

Section 1222 of VAWA 2013 adds “fraud in foreign labor contracting” (as defined by 18 USC 1351) to the qualifying crime categories in INA Section 101(a)(15)(U)(iii).

Under 18 U.S.C. Sec. 1351, “fraud in foreign labor contracting” requires a showing that a contractor “knowingly” and “with intent to defraud” recruited, solicited, or hired a person outside the United States under “materially false or fraudulent” terms. This may include hiring for purposes in the United States, employment on a U.S. government contract outside the United States, or on U.S. military installations.

Practice Pointer:  This is likely to be very helpful not only for trafficking cases, but also where employers have provided false representations on issues including the terms and conditions of employment, housing, fees to labor brokers, food and transportation, ability to work at other places of employment, and other material aspects of the work arrangement. It may cover cases where brokers have brought workers to the United States and violated the terms of agreement, even where labor was not obtained under coercive situations necessary for other trafficking offenses. The National Employment Law Project will also prepare a further analysis of these provisions.

Practice Pointer: For trafficking cases always consider applying for the T-visas first even if the investigated/charged crime is fraud and foreign labor contracting and LEA is willing to sign a U- Certification for this crime. Even if an LEA is not willing to sign a T-Certification, the T-visa can still be approved and securing the T-visa will secure access to federal benefits and often is a quicker path to LPR status.

C.   Addition of Stalking to List of Enumerated U visa Crimes

Section 801 of VAWA 2013 adds stalking to the categories of qualifying crimes.

Practice Pointer: This principally addresses stalking cases that do not fall under the domestic violence category. Stalking behaviors are related to harassment and intimidation and may include following the victim in person or monitoring them. It may be possible to now argue that sexual harassment at the workplace can qualify as one of the enumerated crimes depending on the specifics of the case and the definition of stalking and harassment in your jurisdiction.

D. Additional T-visa Derivative Eligibility

Section 1221 of VAWA 2013 amends the eligibility requirements for T-visa derivatives to include: “any adult or minor children of a derivative beneficiary.”  This means for example that minor principal T-applicants can apply for their siblings under 21 and parents and these derivative’s children can also qualify for T-status. Or, for example, an adult T-visa applicant can bring her derivative child who is also now eligible to bring her own child.

E. Application of Bigamy Exception to VAWA-based I-751 waivers

Section 806 of VAWA 2013 applies the bigamy exception at INA 204(a)(1)(A)(iii)(II)(aa)(BB) to VAWA-based I-751 waivers.

Practice Pointer:  Note that this exception only applies to battery/extreme cruelty based I-751 waivers and not the other grounds (i.e. divorce, death, or extreme hardship).

F. Expansion of Prison Rape Elimination Act

Section 1101 of VAWA 2013 expands the provisions of the Prison Rape Elimination Act to DHS operated detention facilities, hold rooms, and to detention centers operated under contract with DHS and to all HHS facilities that house Unaccompanied Alien Children (UACs), requiring both agencies to develop regulations within 180 days of when VAWA is signed into law.

Practice Pointer: Advocates should consider submitting comments to the HHS proposed regulations for PREA once they are published. ASISTA will notify the field once these become available.

STRENGTHENING THE INTERNATIONAL MARRIAGE BROKER REGULATION ACT (IMBRA)

G. Enhancing Protections for K-1 and K-3 visa holders

The International Marriage Broker Regulation Act of 2005 (IMBRA) regulated international marriage brokers (“IMBs,” so-called “mail-order bride” agencies) among other ways by prohibiting them from marketing children (individuals under age 18); requiring them to search public sex offender registries and collect relevant criminal and marital history information on a US client, and to provide that background information to a foreign national client and obtaining her consent before putting the US client in touch with her.

IMBRA also changed the fiancé(e)/spouse visa process to provide all immigrating foreign fiancé(e)s/spouses of US citizens with information about whether their U.S. citizen petitioner has a violent history, and to advise them about their legal rights and resources available to them in the United States if they are abused. To prevent serial fiancé(e) visa petitions by abusive US citizens, IMBRA placed limits on how many and how often such petitions can be filed (no more than two, no less than two years apart); a waiver is available, but not to US citizen petitioners with violent criminal records.

Sections 807 and 808 of VAWA 2013 included amendments to strengthen IMBRA. In addition to amendments to clarify civil and criminal penalties and promote enforcement against IMBs that violate IMBRA, and to create a misdemeanor penalty for IMB’s US clients who intentionally lie about or  withhold certain safety-relevant, IMBRA-required background disclosures, VAWA

2013 amendments require disclosures of additional violent history information by US clients of IMBs and by US citizen petitioners during the fiancé(e)/spouse visa application process (e.g., “attempt” crimes related to certain domestic and sexual violence crimes that IMBRA already required to be disclosed; and permanent protection or restraining orders). VAWA 2013 amendments also will ensure that the US government’s background check on US visa petitioners (required pre-IMBRA) includes a search of the FBI’s NCIC Protection Order Database; and clarifies the way the US government under IMBRA must notify immigrating foreign fiancé(e)s/spouses about any criminal background or protection order information concerning their US citizen petitioners

Practice Pointer:  As noted above, VAWA 2013 contains important additional protections and enforcement-related provisions under the International Marriage Broker Regulation Act of 2005 (IMBRA).  In the 7 years since IMBRA was enacted, however, no IMB has yet been prosecuted for violating the law. Help us identify IMBRA violators! If you have a client who was abused by a spouse she met through an International Marriage Broker – especially if that IMB provided her with none of the IMBRA-required disclosures and her spouse had a violent history about which she would have been forewarned if the IMB had complied – please contact the Tahirih Justice Center at policy@tahirih.org or 571-282-6161. For more information about IMBRA, visit http://bit.ly/WFAMbI/; for a factsheet comparing IMBRA 2005 with VAWA 2013 amendments, please see http://bit.ly/ZwLlsB

TVPRA PROVISIONS FOR UNACCOMPANIED MINORS

H. Access to Federal Foster Care and Unaccompanied Refugee Minor Benefits for Certain U visa applicants

Section 1263 extends federal assistance for foster care and benefits for unaccompanied refugee minors (URM) to unaccompanied alien children (UACs) who obtain U visa relief.

Practice Pointer: UACs in Department of Children Services custody are eligible for the URM program, advocates should notify ORR about U visa eligible youth and ensure these children are not kicked out of federal foster care upon turning 18.

I.  Appropriate Custodial  Settings  for  Unaccompanied Minors Who  Reach  the  Age  of Majority while in Federal Custody

Section 1261 of VAWA 2013 requires that DHS consider placing  unaccompanied alien children (UACs) transferred from HHS to DHS custody upon reaching 18 in the least restrictive setting available, after taking into account the UACs danger to self, danger to community and risk of flight. Such UACs shall be eligible for Alternatives To Detention (ATDs) programs, utilizing a continuum of services, including placement with an individual or organizational sponsor or supervised group home.

Practice Pointer: This provision requires DHS to consider not detaining a UAC who ages out of ORR custody, but instead placing the child in alternatives to detention programs. Advocates should ask ICE to release UACs to sponsors for the duration of their immigration proceeding, or supervised  independent  living  programs  or  other  community  support  programs.  Advocates should also  contact ICE if  by  default they place the aging out UAC  in  secure alternative programs  such  as  electronic  monitoring.  For  more  information,  visit  Women’s  Refugee Commission’s webpage on Alternative to Detention programs at http://bit.ly/ZFMUWD

J.  Appointment of Child Advocates for Unaccompanied Minors

Section 1262 of VAWA expands the child advocate program for vulnerable and trafficked unaccompanied alien children (UACs).  This provision aims to appoint child advocates to 3 additional sites within 2 years of the enactment date and six additional sites within 3 years of enactment. In choosing locations for sites, priority will be given to sites with the largest UAC population and the most vulnerable populations.

Practice Pointer: The independent child advocate program advocates for the best interest of the child. They are appointed for  unaccompanied alien children (UACs)  who  are in  Office of Refugee Resettlement (ORR) custody. After ORR chooses locations, attorneys and legal orientation program (LOP) providers at those sites can contact ORR if they have identified a vulnerable youth who may be in need of a child advocate. For more information on the current child advocate program go to: http://www.theyoungcenter.org

TECHNICAL FIXES

K. Extends protections of INA 204(l) to children of VAWA self-petitioners

Section 803 of VAWA 2013 provides that children of VAWA self-petitioners are may continue to be eligible for derivative benefits if the abuser dies while the principal’s VAWA application is pending or approved.

L. Public Charge Exception

Section 804 of VAWA 2013  specifically exempts approved VAWA, U applicants, as well as those deemed “qualified aliens”3 from the public charge grounds of inadmissibility.

Practice Pointer:   This fix was in response to discrepancies within different jurisdictions on whether this ground applied to VAWA and U approved applicants as well as “qualified aliens.”

M. Confidentiality Provisions

SECTION 810 of VAWA 2013 adds a national security exception to the original VAWA Confidentiality provisions at 8 USC 1367(b).  This section also amends 8 USC 1367(d) so that DOJ and DHS shall provide guidance to officers and employees who have access to information protected by these confidentiality provisions, including the provisions to protect victims of domestic  violence,  trafficking  and  U  visa  crimes  from  harm  that  could  result  from  the inappropriate disclosure of covered information.

 

N. Continuous Presence in the Northern Mariana Islands

Section 809 of VAWA 2013 clarifies eligibility requirements of U and T visa applicants in the Northern Mariana Island to Adjust Status to Legal Permanent Residence by indicating that an individual’s presence before, on, or after November 28, 2009 shall be considered to be presence in the United States.

NEW REPORTING REQUIREMENTS

O.  Annual T and U visa Program Reporting

Section 802 of VAWA 2013 DHS must submit annual report to Congress with the number of T and U applications submitted to USCIS and their outcomes, including the number of individuals granted  continuous  presence  pursuant  to  the  TVPRA.    In  addition,  DHS  must  report  on processing times, including the average time to adjudicate applications and any actions taken to reduce processing times.

P. GAO Study of the Effectiveness of Border Screenings

Section 1264 requires a GAO study into the effectiveness of CBP screening of children from contiguous countries required by the TVPRA 2008 and for it to be reported to the House and Senate judiciary committees. Both the Women’s Refugee Commission and Appleseed Network published reports on the failure of CBP to screen unaccompanied alien children from Mexico for trafficking and asylum prior to their repatriation.


1. The actual language of VAWA 2013 states that the effective date of this provision should be as if it were included as part of the Victims of Trafficking and Violence Protection Act of  2000 (Public Law 106–386; 114 Stat. 1464)

2 This position appears to be based on policy guidance and not actually pursuant to regulation or statute, other than in reference 8 CFR 245.24(b)(2).  See  USCIS Memorandum on Extension of T and U Nonimmigrant Status, February 23, 2011, PM-602-0032.

3. As defined in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c))