Escape

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Safety Planning: Rights, safety, and security related to local/state police and/or immigration law enforcement

 

Arrest and conviction of immigrant survivors

 

Survivors acting in self-defense or whose conduct is directly related to the abuse may be charged with crimes of violence or assault. Immigrant survivors with limited English proficiency who are not provided with qualified interpreter services at the time of the arrest or when charges are brought against them are especially vulnerable to these charges.

 

A criminal conviction or guilty plea can render immigrant survivors ineligible immigration relief and subject them to removal (deportation). A criminal conviction can also jeopardize the immigration status of survivors who are lawful permanent residents or have lived in the US for years, even if they have have close family ties to citizenship, such as US-born citizen children.

 

Federal law recognizes this double bind for immigrant survivors, and offers VAWA-specific immigration relief. However, access can still be hugely complicated if a survivor has a criminal conviction.

 

Consider some of the important questions about the circumstances of arrest of any survivor:[1]

  • Was the survivor acting in self-defense?
  • Was this a case of dual arrest?
  • Is the aggressor the predominant perpetrator of abuse in the relationship?

If the response is “yes” for describing the circumstances of arrest of an immigrant survivor:

ð There is a need for education/training about the impact of conviction on immigration status and how this places immigrant survivors’ rights at risk; advocates should identify and partner with experts on the intersections between immigration and criminal law.

ð There is a need for education/training about immigration-specific tactics of abuse; some aggressors will trigger a survivor’s arrest and conviction and/or use the survivor’s criminal record to threaten deportation.

 

 Other important questions include the following:

  • Does the survivor speak English fluently?
  • Did the police speak the survivor’s language or have a qualified interpreter?

ð If the answer is “no,” this indicates a need for systems advocacy regarding language access and the rights of persons with limited English proficiency.

  • Does the aggressor speak English?
  • Did the police speak only with the aggressor or the aggressor’s family members?

ð If the response is “yes” and the immigrant survivor has limited English proficiency, this indicates a need for education/training on language access and how aggressors use survivors’ limited English proficiency as a means to keep survivors isolated, minimize/deny the abuse, and manipulate systems to protect themselves and punish survivors.

 

More broadly speaking, if there are also local patterns of differential policing of immigrant communities – such as higher rates of arrest of immigrant survivors – these indicate systems’ bias and abuse of power and control. There is a clear and immediate need for a community-wide, collaborative effort to change policies and procedures, and increase accountability.

 

Advocacy points

 

1. One of the biggest barriers to reporting and seeking help for immigrant survivors (of all crimes, including those of domestic and sexual violence) is the fear of being reported to immigration enforcement by police. Local police have the right to inquire into the immigration status of immigrant victims of crimes – the Supreme Court has established an individual’s immigration status can be inquired into without first establishing reasonable suspicion. There is no exception for survivors. Police are not, however, required to inquire into or report the immigration status of crime victims.[2]

 

2. When immigrant victims know that local/state police will inquire about their immigration status, they are unlikely to report victimization. This must be taken into account when safety planning with immigrant survivors.

 

3. The safety and security of immigrant survivors is placed at risk not only by the aggressor’s violence and control, but also by an immigration system that generally considers a criminal conviction as cause to reconsider, revoke or deny immigration status and, as a result, to render them ineligible for immigration relief or jeopardize their documented status.

 

4. Immigrant victims of crime, as do all victims of crime, have the right to due process and equal protection. In cases where the victim has limited English proficiency, all police departments and court systems that receive federal funds, even if for just specific programs, must provide meaningful language access to services. Bilingual advocates, family or friends of the survivor, or any other persons who are not qualified interpreters and/or pose a conflict of interest should not serve as interpreters with police departments and court systems.

 

Advocacy strategies

 

During safety planning:

  • Offer the survivor education and tools (such as an “I speak” card that identifies their language and requests an interpreter and a “Know Your Rights” card[3]) regarding their rights and responsibilities in the event they are questioned by police or arrested.
  • Ensure the survivor has the telephone numbers of the sexual/domestic violence program and of an immigration attorney (encourage them to memorize these numbers).
  • If the survivor has or may have been arrested and/or convicted:

o   Review the basics of “Post conviction relief” (Own the Dream) about the ways in which it may be possible for an immigrant survivor with a conviction to access immigration relief, i.e., vacating, reducing, expunging, or otherwise modifying the survivor’s plea, sentence, or record of conviction. Although this is written specific to people applying to renew their DACA (Deferred Action for Childhood Arrivals) applications, the information is applicable to other forms of immigration relief. This should be for review purposes only and to help you support the survivor to understand and prepare for these processes, as the survivor will likely need the services of both criminal defense and immigration attorneys.

o   Offer the survivor information about how to determine if they have criminal records and, if so, how to access copies (see, for example, “How to get your criminal record” by Own the Dream). This information will help the criminal defense and immigration attorneys determine eligibility for and access to immigration relief.

For more information and resources, see “Rights, safety, and security related to local/state police and/or immigration law enforcement” in this Toolkit.

 

Develop a systems advocacy plan to ensure police recognize and protect the rights of immigrant survivors and hold aggressors accountable. Elements of your plan may include:

  • Collaborate with immigration rights advocacy groups in your community.

o   Build your own capacity regarding local immigrant communities’ safety needs, experience with local police, and language access needs.

o   Offer education regarding sexual/domestic violence and VAWA.

o   Partner to develop an organizing platform that works toward law enforcement protection for all residents, including immigrants and immigrant survivors.

  • Develop and provide training to police regarding sexual/domestic violence against immigrants, VAWA immigrant-specific provisions (see “VAWA Confidentiality” and “Survivor-specific immigration remedies” in this Toolkit), and language access.
  • Provide assistance to police to develop new policies, update training curricula, or culturally-relevant community policing plans (plans that actively pursue and develop meaningful, productive, and trusting relationships with immigrant communities served).

 

Tools & Resources

 

Changing systems(Cambiar sistemas) in the Enhancing access for individuals with limited English proficiency toolkit(Haciendo accesibles para personas con conocimiento limitado del ingles los servicios de apoyo contra la violencia doméstica) by the National Latin@ Network for Healthy Families and Communities provides guidance and resources in for use in developing effective systems advocacy for language access services.

 

The federal interagency website on limited English proficiency (www.lep.gov) provides resources on the responsibility to provide language access, including the governing laws and regulations (see “Frequently Asked Questions”) and implementation guidance (see “DOJ LEP Guidance for Recipients”).

 

The Immigrant Women Programof Legal Momentum provides guidance and resources for developing training for systems on sexual/domestic violence against immigrants.

 

Engaging Police in Immigrant Communities: Promising Practices from the Fieldby the Vera Institute of Justice (2012) documents promising “law enforcement practices that cultivate trust and collaboration with immigrant communities.”



[1]Orloff, L., Story, R. & Angel, C. (2013). The criminal justice system and immigrant victims. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2]Ibid.

[3]The National Immigration Law Center offers cards, brochures, and other material (available here), as does the National Immigration Project (available here). Note that both websites are in English but most “know your rights” material is available in Spanish.

Safety Planning: Rights, safety, and security related to local/state police and/or immigration law enforcement

 

Local/state police and immigration law enforcement (Immigration and Customs Enforcement, or ICE) are two separate entities.

 

In November 2014, the US Department of Homeland Security (DHS) (of which ICE is a branch) discontinued the “Secure Communities” program and replaced it with the “Priorities Enforcement Program” (PEP).[1] Secure Communities required local law enforcement agencies to submit biometric information (e.g., fingerprints) about anyone arrested to a federal database. ICE could then issue detainers requesting local law enforcement to hold anyone that ICE believed to be deportable, until ICE could pick them up. Once implemented, however, Secure Communities was heavily criticized because many people, including victims of domestic violence, were detained under the program and it damaged relations between immigrant communities and local law enforcement.[2]

 

Under PEP, DHS requires local/state police transfer (to DHS) only of immigrants convicted of:

  • terrorism or espionage, or who otherwise pose a danger to national security;
  • an offense that includes active participation in a criminal gang (street or organized crime);
  • a felony (other than for a state or local offense based on immigration status);
  • an aggravated felony as defined in section 101(a)(43) of the Immigration and Nationality Act at the time of the conviction;
  • three or more misdemeanor offenses, other than minor traffic offenses or state or local offenses based on immigration status;
  • a significant misdemeanor (domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence) or one for which the individual was sentenced to 90 days or more.[3]

                   

Until recently, criminal and immigration law adjudication were also separate: criminal law focused on offenses against property and people; immigration law, a form of civil law, focused on the administrative issue of determining who was authorized to be in the US.  Beginning in the 1980s, however, Congress steadily increased the types of criminal conduct that could result in removal. The Anti-Drug Abuse Act of 1988[4] provided for deportation for a conviction for an aggravated felony. At the time, only three crimes were considered aggravated felonies: murder, illicit trafficking in firearms, and drug trafficking. Today, the aggravated felony definition spans twenty-one subsections, including money laundering, gambling, transportation related to prostitution, human smuggling, certain passport fraud convictions, perjury, and failure to appear for a judicial proceeding.[5] And in 1994, criminal court judges received the power to order deportation as part of the sentencing process.[6]

 

Most recently, the federal government has chosen to criminally prosecute in some states violations of two federal statutes, which prohibit (1) unauthorized entry and (2) re-entry after deportation. In 2005, the Department of Homeland Security (DHS) implemented Operation Streamline in Arizona, New Mexico, and Texas. “In other states, deportation cases are handled as violations of administrative code; under ‘Operation Streamline,’ unauthorized immigrants are treated as criminals and the act of illegally crossing the border as a federal crime.”[7] Note these two statutes do not criminalize authorized entry or unauthorized presence in the US. For example, a person who entered the US on a temporary visa and stayed after the visa expired has not violated either of the two federal statutes that can be criminally prosecuted. See Criminalizing Undocumented Immigrantsfor more information.

 

Advocates’ responsibilities for safety planning with immigrant survivors include:

 

1. Screening for needs and options related to immigration relief at intake or as soon as possible afterwards. Evidence of eligibility and filing for immigration relief constitutes lawful presence.

 

“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.” Aggravating factors are “national security concerns or evidence the alien has a serious criminal history, is involved in a serious crime, or poses a threat to public safety. Other adverse factors include evidence the alien is a human rights violator or has engaged in significant immigration fraud.”[8] In other words, it is against ICE/DHS policy to deport immigrant survivors of sexual/domestic violence unless they have a criminal history as described above.

 

In addition, ICE has the “prosecutorial discretion” (“authority […] to decide to what degree to enforce the law against a particular individual”)[9] to take actions that include releasing a person from detention, deferring or stopping the removal proceeding (issuing a “stay”), or dismissing a proceeding. This means that ICE/DHS can make the decision not to enforce, or enforce to a lesser degree, immigration law against any immigrant survivor.

 

2. Effective “Know Your Rights” education.

 

All immigrants, including survivors, have the rights to remain silent, to an attorney, and to protection from unlawful searches and seizures. Local/state police, immigration law enforcement, and other systems have a number of obligations specific to each of these rights. The right to an attorney, for example, is reinforced by immigration law enforcement’s obligations to maintain and provide a current list of affordable legal and immigration law resources and to permit individuals to telephone an attorney. The following provide explanations of these rights and guidance on how to exercise them lawfully:

 

Persons with limited English proficiency have the right to meaningful access to federally-funded programs and activities. Generally speaking, this means that recipients of federal funds (including law enforcement) are required to ensure their programs and activities normally provided in English are accessible to people with LEP. See Breaking Down the Language Barrier(Rompiendo la barrera del idioma) for information on limited English proficiency, meaningful access, and language access services; and Changing systems[11] (Cambiar sistemas) for guidance on systems advocacy to increase language access.

 

3. Prepare survivors who are at high risk of detention by immigration law enforcement.

 

Ensure that immigrant survivors understand (1) their rights under the VAWA Confidentiality provision and (2) that they may inform immigration law enforcement they have filed or are eligible to file for VAWA-specific immigration relief. Steps immigrant survivors can take include:

 

Immigrants, including survivors (if safe to do so), should consider carrying at all times:

  • Valid immigration status documents, if available (but not identification documents from another country, as those can be used against them).
  • A “Know Your Rights” card to support exercise of options (see above for samples/links).  
  • An “I Speak” card to facilitate requests for language access services (sample available here).
  • Contact information for an immigration attorney (encourage the person to memorize this telephone number).
  • Contact information for a family member or friend, especially if they will need to be notified in order to care for children or other family (encourage the person to memorize this telephone number).

 

Immigrant survivors, if safe to do so, should also consider carrying at all times:

  • Evidence that their immigration case (e.g., VAWA-specific, U-, or T-visa) has been filed – recommend to the survivor that they memorize their immigration case number (it begins with the letter “A”).
  • If they have one, a copy of their civil order of protection.
  • Your sexual/domestic violence program’s contact information.

 

Encourage survivors with VAWA Confidentiality-protected cases filed with DHS to take the following steps to protect themselves from immigration law enforcement action:[12]

  • Ask for an interpreter if they have limited English proficiency.
  • Ask to call their lawyer and/or advocate.
  • Memorize the A-number assigned to their immigration case and, if they are stopped by immigration law enforcement or local/state police, tell them the following:

o   They are a crime victim.

o   They have filed a VAWA Confidentiality-protected immigration case with DHS (and provide the law enforcement agent with their A-number).

  • If stopped by immigration law enforcement, ask the agent to check the “384 red flag system” – this is a central index of VAWA Confidentiality-protected cases. DHS is prohibited from pursuing enforcement actions against crime victims and witnesses except in limited circumstances that involve national security, public safety, or a history of criminal conviction or egregious immigration violations.
  • Survivors who are pregnant, nursing, and/or the primary caregivers of children should inform immigration law enforcement, as DHS has policies to prevent detention of this group of immigrants.

 

Encourage immigrant survivors to plan ahead regarding what to do if taken into custody by immigration law enforcement, in order to ensure their children, homes, and basic necessities are cared for and to make their location known to others:

  • Designate someone trusted to care for children and other family members, if applicable.
  • Designate someone trusted to make decisions for them and ensure that that person is authorized for important functions like withdrawing the survivor’s money to pay for deportation expense or bills, or picking up prescription medication.
  • Ensure the survivor knows they have the right to one telephone call when detained, and help strategize how to organize their important contacts to make sure all are informed of the survivor’s detention and support needs.
  • Make sure someone trusted has the survivor’s full name, date of birth, and immigration case number (A-number), if applicable.
  • Make sure a trusted family member knows to locate the survivor, if detained by ICE:
    • Contact the area ICE Detention and Removal Branch (find this number online at http://www.ice.gov/detention-facilities or by calling ICE Office of Enforcement and Removal Operations at 1-888-351-4024).
    • Have the survivor’s full name and A-number available.

See “Know Your Rights: Learn how to protect you and your family during immigration raids[13] (“Conozca sus derechos: Como proteger a usted y a su familia durante las redadas migratorias”) for additional guidance.

 

4. Ensure you and immigrant survivors understand the basic differences between criminal and immigration law enforcement systems, and how to proceed if an immigrant survivor is arrested or convicted.

 

Immigrants who are arrested will likely have to go to both criminal and immigration court. Criminal court deals with any criminal charges made against an individual, and immigration court deals with all immigration matters (which are civil matters). See “Understanding criminal court and immigration court” of this Immigration Tool Kit[14] for an explanation of each and basic guidance on how to proceed if taken into custody.

 

While criminal and immigration court are separate systems, they often intersect because, as referenced above, under PEP, DHS has prioritized the transfer from local/state police and removal of immigrants convicted of felonies or multiple/serious misdemeanors. Immigrant survivors of sexual and/or domestic violence who are arrested or convicted, however, under some circumstances may not be subject to transfer and/or deportation. This is because VAWA recognizes that survivors may be charged with crimes when they act in self-defense or for other reasons directly related to their abuse. So although criminal conviction usually renders an immigrant ineligible for immigration relief, under certain circumstances this condition may be waived for a VAWA-specific immigration case. Consequently, it is important that immigrant survivors understand the differences between the systems and are well-prepared to do the following as preliminary strategies for limiting immigration enforcement action:

  • If arrested, to exercise their right to contact their immigration attorney.
  • If taken into custody by immigration law enforcement, to

o   inform officials of their eligibility for or existing VAWA-specific immigration relief case with DHS; and

o   exercise their right to contact their immigration attorney.

Tools & Resources

 

Working with survivors who are at high risk of immigration enforcement action by the National Immigrant Women’s Advocacy Project.

 

An advocate’s guide to immigrant survivors’ rights and protections by the National Immigrant Women’s Advocacy Project

 

What happens when I go to immigration court? [video developed for children] by the Women’s Refugee Commission.



[1] Memorandum on Secure Communities from Jeh Johnson, Secretary of the US Department of Homeland Security to Immigration and Custom Enforcement, the Office of Civil Rights and Civil Liberties, and the Assistant Secretary for Intergovernmental Affairs (November 20, 2014).

[2] Childress, S. (2014, Nov 21). Obama’s immigration plan includes end to “Secure Communities.” Public Broadcasting System and WGBH Educational Foundation, Frontline.

[3] Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants from Jeh Johnson, Secretary of the US Department of Homeland Security to Immigration and Customs Enforcement, Customs and Border Protection, Citizenship and Immigration Services, and the Acting Assistant Secretary for Policy (November 20, 2014).

[4] Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, §7342, 102 Stat. 4181, 4469–70.

[6]Cuauhtémoc, C. & Hernández, G. (2013). Creating crimmigration. Brigham Young University Law Review, 1457-1515.

[7] Donohoe, J. & Piccini, S. (2015). Crossing the border. Georgetown Magazine, 47(1). Washington, DC: Georgetown University.

[8] Memorandum on Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs from John Morton, Director of ICE to Field Office Directors, Special Agents, and Chief Counsel (June 17, 2011).

[10] See pages 6-8.

[11] National Latin@ Network for Healthy Families and Communities (2015). Enhancing access for individuals with limited English proficiency toolkit. St. Paul, MN: Casa de Esperanza.

[12] Orloff, L.E. (2013). VAWA confidentiality: History, purpose, DHS implementations and violations of VAWA confidentiality protections. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[13] See pages 6-7.

[14] See pages 9-10.

Safety Planning: Systems-based safety and security from the aggressor

 

The US legal system is complex and difficult to navigate even for many who have lived under it for most or all of their lives. For immigrants, it is also likely different from that of their country of origin. Furthermore, many immigrant survivors often operate from assumptions that they are ineligible for most types of support in the U.S. Therefore, it is essential for advocates to ensure that immigrant survivors understand their legal rights.

 

All persons, including immigrants, are eligible for not only police protection and criminal prosecution of the aggressor, but also to shelter, orders of protection, custody, child support, hospitals, and emergency medical care.[1] (See “Services ‘to protect life and safety’” for more information.)

 

Immigrants are also protected under anti-discrimination laws; under these laws, the rights of survivors include:

 

Community services and supports provided by nonprofit organizations that receive federal financial funds. These include food banks, Red Cross emergency funds, and primary health care services at Federally Qualified Health Centers. This is because nonprofit organizations in the US are not required to ask about the immigration status of people they serve; moreover, doing so can amount to discrimination on the basis of national origin, which is prohibited under Title VI of the Civil Rights Act.

 

Meaningful language access to programs and services that receive federal funds. Survivors should be able to trust interpreters and be able to communicate freely regarding their experiences, needs, and plans; therefore, it is important to ensure interpreters are not a friends, family members, or community members who pose a conflict of interest (i.e., know the survivor or the aggressor).[2]

 

Orders of protection

 

The purpose of the civil order of protection is to prevent criminal acts of abuse. If orders of protection were not available to immigrants, aggressors would be given license to abuse immigrants and not be held accountable for criminal activity. Consequently, any person, including all immigrants, can obtain an order of protection. Denial of an order on the basis of immigration status violates Equal Protection and Due Process of federal law governing public health and welfare.[3]  Therefore, no justice system official, including police, prosecutors, court staff, or judges, should ask survivors about their immigration status or if they have a Social Security number when they call for help or seek an order of protection.[4] This does not, however, mean they cannot. For example,the Supreme Court has established local police may inquire into a crime victim’s immigration status without first establishing reasonable suspicion. There is no exception for survivors. Police are not, however, required to inquire into or report the immigration status of crime victims.[5]

 

Civil orders of protection can have a preventive effect and so may be especially useful to an immigrant survivor, if both the survivor and the aggressor understand:

  • The issuance of an order of protection has no immigration consequences for either party, but the violation of an order by a non-citizen aggressor is a deportable offense.
  • Orders of protection do not require criminal justice system intervention; the method of enforcement is under the control of the survivor.

 

Civil orders of protection can further enhance survivor safety in the following ways:

  • Orders of protection can support clear custody arrangements and economic support from the aggressor.
  • Orders of protection can support a survivor’s efforts to attain immigration relief, because the orders provide legal documentation of the abuse.

 

Orders of protection do not in any way guarantee an end to the abuse. They do not guarantee a reduction in lethality or any other outcome, and it is important for advocates to spend the time necessary to help immigrant survivors understand the scope of the orders.

 

However, civil orders of protection can be finely crafted to address and counter tactics of abuse specific to a survivor’s experience, including coercion and manipulation tied to immigration status. In many instances, advocates can support survivors to craft the details of their order of protection such that survivors’ own definitions and desires for safety are honored and respected.

 

In order for an immigrant survivor to be empowered to make their best and most informed choices, questions as to whether or not to file for an order of protection, and/or whether or not to enforce it, should be examined carefully and from different angles.[6] For example, deportation of the aggressor might increase safety and security for some survivors. For other survivors, deportation of the aggressor might create or increase dangers related to economic survival, the survivors’ own immigration status, or their own and/or their family’s safety in the US and abroad. It could also jeopardize survivors’ relationships with their families and communities.

 

This information and a more detailed discussion and resources on using orders of protection as a safety planning tool for immigrant survivors, is available in “Orders of protection for the immigrant survivor.”

 

Tools & Resources

 

How to protect yourself and your children from domestic violence: Safety planning for immigrant and refugee women(English and Spanish in the same document), by Legal Momentum.

 

Chapter 2, “Interviewing and safety planning for immigrant victims of domestic violence” of the manual Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.[7]

 

NOTE: This section provides an overview only of systems-based safety and security -options for survivors. There are many communities (specifically, networks of friends, family, co-workers, neighbors, and other community members - but not police - in relation to both the survivor and the aggressor) working to develop community-based violence interventions. See, for example, the Creative Interventions Toolkit: A practical guide to stop interpersonal violence, (created by a collaborative effort between the Asian Women’s Shelter, La Clínica de la Raza, Narika, and Shimtuh, who work almost exclusively with immigrant communities):

  • Section 2, “Getting started: Some basics everyone should know” describes the values of Creative Interventions’ community-based violence intervention and how it differs from systems-based interventions (see pages 2-12).
  • Section 3, “Model overview: Is it right for you?” describes the elements of Creative Interventions’ community-based violence intervention initiative (see pages 5-12, 16-20) and provides tools to help you assess if it is right for you (see pages 33-39).
  • Section 4, “Tools to mix and match” provides implementation tools.

 



[1]Orloff, L., Olavarria, C., Martinez, L., Rose, J. & Noche, J. (2013). Battered immigrants and civil protection orders. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2] Ibid.

[3] USC 42, Sec. 1981(a).

[4]Orloff, L., Olavarria, C., Martinez, L., Rose, J. & Noche, J. (2013). Battered immigrants and civil protection orders. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[5] Ibid.

[6] See, for example, Survivors of violence and fear of deportation: A story from an advocate [blog post]. National Latin@ Network for Healthy Families and Communities (14 October 2015).

[7] See pages 12-15.

Safety Planning: Enhance your work

 

Safety planning: Practice basics

 

Advocates know to engage with all survivors in individualized, realistic, thorough, and ongoing safety planning. We assume that you are working with survivors to identify and take appropriate steps, such as storing important documents, bank information, and keys in a safe place; telling a trusted family member or friend about the abuse; retaining contact information for emergency services; documenting abuse; mapping an exit route from the home for the survivor and children; and filing for an order of protection and considering whether copies should be provided to the child(ren)’s school(s), the survivor’s employer, or any others (landlord, post office, etc.), to ensure that information about the survivor is not shared with the aggressor.

 

Some aspects of safety planning with immigrant survivors are similar to what you do with a broader spectrum of survivors. For example:

 

  • As you discuss the sexual and/or domestic violence laws, including confidentiality and privilege provisions, make sure you understand and explain the VAWA Confidentiality provision specific to immigrant survivors.
  • Immigrant survivors’ experiences can be similar to those of survivors whose social networks are very small and often tightly-knit, such as those from smaller rural communities; deaf communities; lesbian, gay, bisexual, and transgender communities; communities created by people with disabilities; or religious and faith communities. Safety planning may need to address not just an aggressor’s abuse and violence, but also responses from small communities, including the isolation that results from feeling rejected, judged, or stigmatized by one’s entire community.
  • Of course, some immigrant survivors do have varied lived experiences that serve as multiple points of marginalization – in addition to immigration status, this can include English proficiency, sexual orientation, gender identity, disability, and class, for example – which, should a survivor choose to disclose, may require shifts and refinements to safety planning.
  • Make meaningful referrals that meet the survivor’s needs, and are culturally relevant and accessible, including to persons with limited English proficiency. Remember that accessibility, in its broadest sense, means facilitating a survivor’s connections to a provider or service. One strategy is to make use of your institutional and professional power – your position, knowledge of the service system, program name recognition, English language abilities, etc., can be both a support to the survivor and also a means to help them “get in the door.” Your advocacy practices can include making that first call, a personal introduction, and/or accompaniment to the first appointment. You can reinforce referrals by offering survivors an individualized list of the organizations to which you are referring them, with providers’ contact information and a brief description of the services (e.g., local sexual/domestic violence programs, specialized sexual/domestic violence units or staff in the police department, immigrant rights organizations, legal services providers). Such a list can help organize information for a survivor to review and consider over time.
  • Offer trauma-informed supports, for example, offering to and making calls and appointments on the survivor’s behalf or alongside the survivor as requested, accompanying the survivor to meetings, and visiting the courthouse with the survivor to observe proceedings and explore the layout.

 

Safety planning: Enhance your practice

 

When working with immigrant survivors, safety planning must include ensuring survivors understand and are able to make informed choices about available forms of immigration relief. This is because evidence of eligibility and filing for immigration relief constitutes lawful presence.

 

As you seek to engage with an immigrant survivor in safety planning, consider the following:

1.     If requested, use a qualified interpreter who does not pose a conflict of interest.

2.     As appropriate, share resources, forms, and other useful print material that has been translated into the survivor’s own language(s).

3.     Practice active listening to build your contextual understanding of survivors’ experiences of abuse and their needs, wants, and resources.

4.     Balance your practice of active listening with one of active engagement. It is not the survivor’s responsibility to educate you regarding the laws, systems, and history of their country of origin; educate yourself on these subjects to the best of your abilities (see the intake practice guidance about culturally-sensitive encouragement and advocacy). Active listening and engagement can help you:

o   Describe differences in goals, practices, and outcomes of systems (social services, courts, law enforcement, etc.)

o   Clarify individual survivors’ needs, wants, fears, strengths, and resources in culturally-informed and relevant ways

o   Ask informed questions that build trust and understanding

5.     Assure survivors that your program’s services are available now and at any time in the future, should circumstances (e.g., immigration status or relationship with the aggressor) change and regardless of whether or not another incident of abuse or violence occurs.

6.     Work with survivors to develop ways of coping with painful and sometimes re-traumatizing interviews, e.g., order of protection hearings, arrest, or immigration court. These interviews may require they reveal intimate details of the abuse they have experienced, or confront them with barriers, slurs, and denial of services stemming from anti-immigrant biases or judgments against the survivor’s race/ethnicity or culture.[1]Also, immigration-related interviews with federal law enforcement can be very different and additionally grueling in comparison to local law enforcement interviews on issues like orders of protection or custody mediation. Suggestions might include spending time with a close friend or attending a service or meeting with a faith leader if faith is important to the survivor. Your program might also consider providing survivors with a long-distance or international calling cards to communicate with the people who will offer them comfort and strength, and build their resilience to continue moving forward through their case.[2]

 



[1] Both Latin@ youth and adults report experiencing discrimination based on Latin@ identity, and that discrimination is closely linked to current immigration policy. Rodríguez, R., La Voz Juvenil de Caminar Latino, Nunan, J. & Perilla, J. (2013). Participatory action research with Latin@ youth: Exploring immigration and domestic violence. National Latin@ Network for Healthy Families and Communities, Casa de Esperanza.

[2] Orloff, L.E. (2013). Interviewing and safety planning for immigrant victims of domestic violence. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

Practice Guidance

Is the Survivor Eligible for Immigration Relief?

 

Screening for Immigration Relief: Enhance Your Practice

In order to determine a survivor’s eligibility for immigration relief, advocates should seek to understand:

1. Survivors’ and, if applicable, their child(ren)’s current immigration status. Be sure to let the survivor know you are asking these questions just for the purpose of determining  eligibility for immigration relief for victims of crime and/or, in the case of survivors who need basic assistance (income, housing, food, etc.), for different public benefits. Remind them that what they tell you is confidential.

  • NOTE: Some survivors may not know their immigration status and/or may not have access to their immigration papers, and so may need to work with an immigration attorney to help determine their current status.

2. The nature of the abuse(s) experienced by the survivor and which ones constitute criminal activity. See “Domestic violence,” “Sexual violence,” and “Workplace violence” in this Toolkit for information, resources, and practice guidance to help understand the immigrant survivor’s experiences.

3. Whether there are any issues (“red flags”) in the survivor’s history that could initiate removal proceedings, such as:

  • clear risk to national security
  • clear danger to public safety
  • criminal history, especially if the person is a serious felon, repeat offender, or has a lengthy criminal record of any kind (arrests and/or prior convictions) or outstanding arrest warrants
  • serious record of immigration violations, such as a record of illegal re-entry or of having engaged in immigration fraud
  • immigration history that includes prior removal, outstanding order of removal, or prior denial of status
  • drug or alcohol abuse
  • ·child abuse

      or block access to immigration relief, such as specific health problems or mental health issues with associated harmful behavior.[1]

 

4. The nature of the relationship between the survivor and the aggressor. VAWA-specific forms of immigration relief are limited to survivors of abuse perpetrated by a spouse or parent who is a U.S. citizen or legal permanent resident, or the abused parent of a child who is a U.S. citizen. The Trafficking Victims Protection Act forms of immigration relief are available to victims of certain crimes. (See “Survivor-specific” forms of immigration relief for more information.)

Note On Common Law Marriages

NOTE: A few states recognize common law marriages, including those between an undocumented immigrant and an aggressor who is a US citizen or legal permanent resident. A common law marriage is one in which the couple, usually a man and a woman, live together for a period of time and present themselves to friends, family, and the community as being married, but never go through a formal ceremony or get a marriage license. In general, states that recognize common law marriages require that the two people:
  • Live together for a specified period of time.
  • Each have the legal right or “capacity to marry.”
  • Each intend to be married.
  • Each present themselves to friends and family as being a married couple.

Some of the factors a court might consider in order to determine the existence of a common law marriage include, but are not limited to, whether the couple lived together, jointly signed any contracts (e.g., to buy a home or car), filed joint tax returns, holds joint bank accounts, shares household duties and expenses, refers to each other as husband and wife, or has and raised children together. The “general approach” of USCIS is to accept the state (or relevant jurisdiction) definition of marriage in reviewing VAWA-specific immigration cases.[2]

5. There are also factors that can have a positive influence on a survivor’s immigration case. While these factors alone will not determine eligibility for immigration relief,

any evidence that the survivor has established roots, has integrated into the community, and is respectful of the law can strengthen a survivor’s petition to immigration court.

These factors include:

 

  • Circumstances of arrival and manner of entry
  • Length of time in the US
  • Presence in the US since childhood
  • Pursuit of education in the US
  • If the survivor or a close family member is a veteran or active military
  • Community contributions and/or family ties
  • The nature of the survivor’s ties to their home country
  • Conditions in the survivor’s home country
  • The survivor’s age
  • A US citizen or legal permanent resident spouse, parent, or child
  • If the survivor has a serious mental or physical disability or serious health condition
  • If the survivor is the primary caregiver for a child, person with a disability, or seriously ill parent
  • If the survivor or the survivor’s spouse is pregnant or nursing
  • If the survivor is a crime victim or witness or has cooperated with criminal investigation/prosecution by federal, state, or local law enforcement

 

Tools & Resources

Immigration Protection Screening Checklist by the National Immigrant Women’s Advocacy Project.

“Screening survivors for potential eligibility”[3] in Representing survivors of crimes of violence before or after enforcement action by ASISTA.

Chapter 6, “Introduction to immigration relief for immigrant victims of sexual assault and glossary of terms”[4] of the manual Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault lists sample questions to help determine a survivor’s current immigration status and identify “red flags” related to immigration relief.

VAWA Red Flags by the National Immigrant Women’s Advocacy Project provides a more exhaustive list of potential “red flags.”

 

Common law marriage by state by the National Conference of State Legislatures.



[2]US Citizenship and Immigration Services (March 2011). USCIS stakeholder meeting on VAWA, T and U Visa.

[3]See pages 5-7.

[4]See pages 13-14.

Practice Guidance

Workplace Violence

 

Workplace violence against immigrants includes sexual violence and being forced to work. Workplace violence is clearly an abuse of power and control, and is often maintained by immigration-specific forms of coercion and manipulation, such as threats to report to immigration authorities or threats of deportation.

It is important for advocates to remember that while workplace violence happens at recognized places of employment, it can also happen in people’s homes. For example:

  • the person is brought to the US as a spouse but treated as a servant and/or prostitute
  • the person is brought to the US as a housemaid but once in the US, their travel documents are taken away and they are forced to work without pay and under threat of being returned to their country of origin with nothing or being turned in to immigration law enforcement for deportation

As part of your intake conversation, if you have concerns about workplace violence, there are parallels to the screening processes for domestic and sexual violence: seek to understand, with the survivor, who is in control of their work situation, what their choices might be, and whether or not they or their families are being threatened.

 

Workplace violence links directly to several major federal laws and systems:

  1. Sexual harassment and assault at the workplace is a form of discrimination that violates Title VII of the Civil Rights Act (Title VII is specific to terms and conditions of employment, and prohibits discrimination on the basis of race, color, religion, sex, and national origin). Immigrant workers, including those who are undocumented, are covered under federal laws against discrimination.[1]
  2. Exploitation at the workplace includes wage theft, dangerous work conditions, discrimination, or being forced to work through physical force, threats of force, or threats of legal coercion (e.g., “if you don’t work, I’ll call the immigration authorities”). Being compelled to work through force, threats, or coercion violates US laws against involuntary servitude, forced labor, and trafficking. Immigrant victims of these forms of workplace violence may be eligible for T- or U-visas , under the Trafficking Victims Protection Act.

If you are supporting an immigrant survivor who is experiencing or has experienced workplace violence – regardless of whether or not the sexual/domestic violence is connected to the workplace violence - it is recommended that you connect and collaborate, with the survivor, with civil rights and/or trafficking advocates and attorneys. “Tools & Resources,” below, can help you prepare for this collaborative role and connect you to advocacy organizations in your area. Information and resources to help you support an immigrant survivor of sexual violence are provided throughout the rest of this Toolkit.

 

Tools & Resources

“Sexual violence in the workplace: A training for domestic violence advocates,” a webinar by the Asian & Pacific Islander Institute on Domestic Violence (2013) available here, provides advocates with critical guidance on establishing grounds for workplace violations and how to work with the local Equal Employment Opportunity Commission to protect survivors and prosecute their civil rights claims.

See “The role of the attorney, advocate, counselor, or medical professional” in the manual Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault  for information specific to documenting sexual violence at the workplace.[2]

Sexual violence and the workplace: General statistics and information by the National Sexual Violence Resource Center provides information on sexual violence in specific industries: restaurant, government, agricultural, and military. See also Information for advocates for information about survivors’ legal rights and safety planning considerations.

Employment discrimination and sexual harassment by Legal Momentum lists advocacy resources (including legal).

National Human Trafficking Resource Center resources include:



[1]Tamayo, W.R. (2013). Sexual harassment and assault in the workplace: A basic guide for attorneys in obtaining relief for victims under federal employment law. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault.National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2]See pages 810-813.

Practice Guidance

Sexual Violence

 

Some immigrant survivors’ experiences of sexual assault may predate their entry into the US (having been victimized or witnessed victimization during war, for example). The experience of immigration tends to increase vulnerability to recurring sexual assault, as immigrants are generally more isolated and may be actively targeted by aggressors who see them as socially and legally vulnerable.[1] Increased isolation is not necessarily geographic – survivors end up isolated for many reasons, for example, due to limited English proficiency, fear of deportation, efforts to retain privacy in small, tightly-knit immigrant communities, or concerns about seeking help from formal justice or social services systems.

 

Sexual Violence: Enhance Your Practice

 

As you seek to understand an immigrant survivor’s experience of sexual violence during intake, consider the following:

1) Listen carefully for recurring themes, particularly those that have to do with cultural contexts of violence with which you are less familiar.  For example, some interpretations of religious scriptures consider sex to be a marital obligation, and survivors who identify with these interpretations may be less likely to identify sex forced by their spouse as marital rape.

2) Language shapes our communication about sexual violence, so make sure to gain a contextualized understanding of the words a survivor is using—not just the definition provided by Google Translate. For example, languages as different as Spanish and Mandarin Chinese use words for experiences of sexual abuse and violence that can translate into English as having been “bothered.” Also, ensure that interpreters are well versed in terms and idioms related to violence and abuse in the survivor’s dialect, and that the interpreter is willing to accurately discuss issues such as rape.

3) Ensure that survivors understand what your program and the law consider sexual violence, so that they can make informed choices. Avoid using terms with specific legal definitions that survivors may not yet be familiar with, such as “sexual harassment” and “marital rape.” When it is necessary to use these terms, always accompany them with clear definitions.

4) Think about how, during the intake, you might communicate what behavior is illegal. Also, look for ways to welcome the survivor to share the effects of the sexual violence on their wellbeing, and related needs and concerns.

For example, consider ways to communicate with survivors the following:

  • Marital rape is illegal.
  • Force can be exercised not just physically, but through threats, coercion, harassment, not letting the abused partner sleep, etc.
  • Sex and sexual violence is not limited to penetration.

5) If a survivor discloses they are experiencing sexual violence in an intimate relationship, listen for domestic violence tactics that link sexual and immigration-related abuses, for example, whether the aggressor has claimed on legal papers that the survivor has a history of prostitution. (The claim will need to be addressed in the context of any victim-based form of immigration relief a survivor is seeking.)

6) Ensure that survivors know and understand the services to which they are entitled, regardless of immigration status. These services include:

 

Make sure your agency operates with the following legal knowledge:

  • The Violence Against Women Act establishes that all survivors, regardless of immigration status, have access to sexual assault medical forensic exams. Survivors do not pay for the costs of the exams, although system procedures vary by state. States also vary widely regarding what, if any, related medical treatment (e.g., follow-up exams and care, medications, and counseling) is covered. Consult your state laws and regulations about follow-up services provided and procedures (direct payment to the provider or reimbursement to the individual) to cover the costs of the exam and follow-up services.
  • The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established that health care and social services workers are not required to ask about and/or report the immigration status of people seeking health care services for sexual assault, domestic violence, trafficking, or other criminal activity.[2]


[1]Mindlin, J., Orloff, L., Pochiraju, S., Baran, A. & Echavarria, E. (2013). Dynamics of sexual assault and the implications for immigrant women. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault.National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2]Orloff, L., Baran, A. & Mounts, P. (2013). Access to health care for immigrant victims of sexual assault. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault.National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.


 [a1]For translator: Available only in English.

 [j2]Link to “Domestic violence” in “Practice guidance” in “Prepare for intake.”

 [j3]KATELYNN – Let’s try this as an “accordion” format. The info included in the drop-down s/b first bullet, below, “The Violence Against Women Act…follow-up services.”

 [a4]Link to “Services ‘to protect life or safety’” in “Federal benefits” in “Public benefits” in “Accessing resources.”

 [j5]KATELYNN – Let’s try this as an “accordion” format. The info included in the drop-down s/b second bullet, below, “The Illegal Immigration… criminal activity.”

 [a6]Link to “Nonprofits” in “Public benefits” in “Accessing resources.”

 [j7]KATELYNN – if the two accordions make sense, we will omit this line.

 [a8]FOR TRANSLATOR: Available only in English.

Practice Guidance

Domestic Violence

 

Domestic violence: Enhance your practice

As you seek to understand an immigrant survivor’s experience of domestic violence during intake, consider the following:

  1. Listen carefully for recurring themes, particularly those that have to do with cultural contexts of violence with which you are less familiar. For example, consider survivors who experience the preparation and serving of food to the family as an honor and a duty, and who derive a strong, positive sense of self and validation from the work. Many aggressors who know this will destroy, refuse, or throw food in a survivor’s face as a means of psychological and emotional abuse. Tactics like these destabilize and demean survivors in damaging ways we may overlook if we search only for cues to behaviors like threats, insults, or constant “checking in.”
  2. Ensure that survivors understand what your program and the law consider domestic violence, so that they can make informed choices. Avoid using terms with specific legal definitions that survivors may not yet be familiar with, such as “assault” and “stalking.” When it is necessary to use these terms, always accompany them with clear definitions.
  3. Think about how, during the intake, you might communicate how patterns of behavior become abusive and what behavior is illegal. Also, look for ways to welcome the survivor to share the effects of the abuse on their wellbeing, and related needs and concerns.

For example, many immigrant survivors may not identify immigration status-related abuse as abuse. Therefore, it can be useful to ask some specific questions about these forms of abuse (but be sure to remind survivors that they are not required to answer your questions):

  • Has your partner ever threatened to make sure you and your children end up in different countries?
  • Has your partner ever threatened to tell your parents back home?
  • Has your partner ever threatened to have you deported?
  • Has your partner ever threatened to not file immigration papers for you, to not follow through on papers already filed, or to take away an immigration visa you already have?
  • Has your partner ever threatened to tell Citizenship and Immigration Services that you married them just to get immigration papers? (See “Prepare For Intake” for information on some of the federal agencies that oversee and enforce immigration.)

Remember, as always, to listen for (and explore with the survivor, if helpful) how these kinds of threats become coercion; how coercion may be creating an experience of manipulation, isolation, and fear; and how coercion may limit the survivor’s abilities to access community, English classes, work, and other supports and activities. In the case of immigration-specific threats, advocates should inform survivors that many victims of sexual or domestic violence qualify for some form of immigration relief without having to depend on the aggressor to do so.

 

Tools & Resources

Tácticas de control: la vision de la mujer is a video with a facilitator’s guide to help group leaders and service providers explore Latinas’ experiences with domestic violence and the impact that culture, society, and community have had in the women’s healing processes. By Casa de Esperanza, Battered Women’s Justice Project, and the Domestic Abuse Intervention Program (2011). Available at https://www.casadeesperanza.org/purchaseproducts/

Practice Guidance

 

This Toolkit assumes that, as an advocate, you know that changing behavior (including your own efforts to advance your practices) generally requires expanding knowledge and evolving attitudes. To these ends, we will – briefly – examine key advocacy practices, then build on them with information and guidance designed to help enhance your practice.

 

Intake: Practice Basics

 

During intake, the most important task as an advocate is active listening. This first conversation with you – intake, screening, assessment, etc. - is often the first time that a survivor can tell their story to someone who will listen without judgment, and who will recognize them as the foremost authority on their experiences, goals, and needs. So although the process of intake can be complex and exacting, remember that the goal is to listen to and genuinely support individual survivors.

 

Active listening also requires active engagement: ask open-ended questions when possible, invite questions from survivors, and provide needed basic information. Listen purposefully or ask clarifying questions to learn, for example, how a survivor refers to the aggressor and what is the nature of their relationship (partner or spouse, who may be same-sex or transgender, in-law or other family member, civil/common law/religious/arranged marriage, etc.). This will help you engage in more respectful and accurate conversations and advocacy, including as you assess eligibility for immigration relief.

 

As an advocate, you also know that a trauma-informed approach can help you create opportunities for survivors to explore their individual responses to trauma, and increase your own capacities for nuanced, individualized, and relevant advocacy. For example, it is generally true that as survivors revisit and tell their experiences of trauma, it can be difficult for them to process or absorb new information. It is good practice, therefore, to prioritize only the most important information to share with the immigrant survivor or record for the file, and then follow up as needed.

 

Intake: Enhance Your Practice

 

  • During this initial conversation, you will be listening to two stories: one is about the abuse, of course, and the other is about the experience of immigration. The two will likely not be told as separate stories. They will be interwoven with each other. Just as you do when listening to survivors’ experiences of abuse, you will listen for cues in survivors’ experiences of immigration to help you know what else to ask and how to affirm their experience.  You will also be listening to see how these experiences may be linked, as immigration-specific abuse predicts escalation to sexual and/or physical violence and may be a lethality factor.[1]
  • Survivors’ understanding of sexual and domestic violence is likely shaped by dominant responses to it in their country of origin, and aspects of culture related (but not limited) to their class, education, religion, ability, sexual orientation, and age. It is also likely shaped by the aggressor and the survivor’s life in the US.  
  • Immigrant survivors will generally volunteer more information about their experiences of abuse if they receive culturally-sensitive encouragement and advocacy.[2] Support survivors to tell their story and express their experiences, needs, wants, and concerns from their own cultural perspectives, without limitations. Make sure you do not impose or assume limits on a survivor’s choices, when limits are not there.
  • Socially marginalized survivors of all kinds, including immigrant survivors, often fear that service providers who are not of their background will use the survivor’s experience of violence to form or deepen prejudices against their entire cultural group. When we as advocates communicate anything that sounds like a judgment of that broader cultural group, or of men who are (or perceived to be) in that cultural group, we inadvertently push survivors into becoming either our teachers (of their cultural experience or social group) or, worse, becoming the defenders of their people and in many cases, the aggressor. They should be neither. A culturally-informed approach includes reminding survivors that we see violence across all lines of identity, including national origin, language, ethnicity, religion, etc., and that we affirm the strengths and resistance to violence that are present across all of those lines as well.
  • Fear of deportation, held by both immigrant survivors with legal permission to live and work in the US and those who are undocumented, is the biggest barrier to immigrant survivors seeking any kind of help after experiencing abuse.[3],[4],[5]  Aggressors often sow and exploit this fear, using tactics such as telling the survivor that if they end up in court over custody, the survivor will lose the children no matter what, because the judge will order the survivor to be deported. This is not true for a number of reasons (for example, only federal immigration courts decide matters of immigration, not family court judges), but many immigrant survivors (as well as most U.S. citizens) know little to nothing about the interplay of legal systems pertaining to child custody, immigration, and violence. Even if some survivors suspect that the aggressors’ threats are untrue, they may have concerns about eventual reports from family courts or other systems to immigration authorities. Listen for the immigration-specific threats the survivor may have experienced, validate survivors’ concerns, and help identify and evaluate options that will increase safety.
  • Many survivors may not disclose their immigration status initially because they fear your program is connected to the government (and might report them to immigration enforcement) and/or they are uncertain about how what they disclose may be shared with others. Set a positive and welcoming tone from intake onward in your approach to immigration issues.
    • NOTE: Many immigrant communities refer to immigration services and/or law enforcement simply as “immigration.” It is important for advocates to understand the basics of the immigration framework, to help you understand survivors’ experiences to date, their immigration status, and their options.
  • When interpreters are involved, plan to spend additional time for intakes (1-3 hours) to ensure survivors can tell their story in the way that feels most natural and comfortable.

 

This section of the Toolkit provides information, resources, and practice guidance on the following subjects to support your intake conversations with immigrant survivors:

  • Information for survivors
  • Domestic violence
  • Sexual violence
  • Workplace violence
  • Screening for immigration relief

 

Tools & Resources

 

See “Top ten strategies to prepare for the interview” (pages 3-4) and “At the beginning of your interview” (pages 4-5) in Representing survivors of crimes of violence before or after an enforcement action by ASISTA.

 

The National Center on Domestic Violence, Trauma & Mental Health offers guidance that, although not immigrant-specific, can help you build your trauma-informed advocacy; and help your program build its capacities to integrate both survivors’ diverse experiences and how advocates are feeling and reacting. See, for example:



[1]Orloff, L. & Garcia, O. (2013). Dynamics of Domestic Violence Experienced by Immigrant Victims. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2]Ibid.

[3]National Latin@ Network for Healthy Families and Communities & National Domestic Violence Hotline (2015). An Addendum to Realidades Latinas: A National Survey on the Impact of Immigration and Language Access on Latina Survivors.

[4]Mindlin, J., Orloff, L., Pochiraju, S., Baran, A. & Echavarria, E. (2013). Dynamics of sexual assault and the implications for immigrant women. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault.National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[5] Orloff, L. & Garcia, O. (2013). Dynamics of domestic violence experienced by immigrant victims. In Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

 

start by introducing yourself, your role, any limits on your ability to maintain confidentiality for the survivor (e.g. your mandatory reporting status), and the purpose and process of the intake meeting.

VAWA Confidentiality

 

Any shelter, rape crisis center, domestic violence program, or other victim service program that receives either Violence Against Women Act (VAWA) or Family Violence Prevention and Services Act (FVPSA) funding is barred from disclosing to anyone any information about a survivor the program is serving or has served in the past.[1] Although VAWA, FVPSA, and state confidentiality statutes are designed specifically to prevent aggressors from tracking and further harming survivors, there continue to be gaps.  The VAWA Confidentiality provision is one safeguard specific to the confidentiality needs of immigrant survivors.

 

The VAWA Confidentiality provision prevents aggressors from accessing information from the Department of Homeland Security (DHS) about survivors who are pursuing VAWA-specific immigration relief such as self-petition, cancellation or suspension of removal, and the battered spouse waiver. There are three key elements to VAWA Confidentiality:

  1. The US Departments of Homeland Security, State, and Justice cannot release information in a VAWA Confidentiality-protected file to the aggressor or any others, including affirming or denying the existence of the file, with certain limited exceptions.[2]
  2. The US Departments of Homeland Security, State, and Justice cannot use information solely provided by the aggressor or a family member to take action or make an adverse immigration decision against the survivor. This protection extends to survivors who have not filed or are not eligible to file, so long as they are victims of the VAWA crimes of physical abuse or extreme cruelty, any of the U-visa qualifying crimes, or trafficking.
  3. The Department of Homeland Security cannot take enforcement actions at shelters, rape crisis centers, victim services programs, community-based organizations, courthouses, supervised visitation centers, or family justice centers.

 

Any violation is punishable by fine and disciplinary action of the DHS official(s) involved.

 

Documenting Violations of VAWA Confidentiality

 

Advocates are often especially well-positioned and well-qualified to work collaboratively with survivors and immigration attorneys to thoroughly document any violations of the VAWA Confidentiality provision and file complaints.

  For example:

 

  • Aggressors may try to obtain information about survivors’ immigration cases through “discovery” in a family or criminal court case. Advocates can ensure that survivors’ attorneys are familiar with VAWA Confidentiality.  Attorneys, in turn, can tell the court that under the provision, the Departments of Homeland Security, Justice, and State are prohibited from verifying the existence of a protected file and releasing information from any VAWA Confidentiality-protected file, even to an unrelated case in state (family or criminal) court.
  • If the violation seems to be due to the aggressors having provided information about survivors to DHS, advocates can help prepare and provide documentation (usually about a series of related events) of the following:
  • Threats by aggressors to report survivors to DHS or sabotage their pending immigration case.
  • Details that indicate potential communications between DHS and the aggressor, particularly information DHS has that only the aggressor would know.
  • If DHS arrests the survivor in a prohibited location and you were present, advocates can note what happened, conversations with the DHS official(s) about the VAWA Confidentiality violation, and who else was present and saw the arrest (e.g., aggressor, social worker, victim advocate, judge).

 

An effective, actionable VAWA Confidentiality violation complaint to DHS must also be accompanied by proof of a survivor’s eligibility for VAWA Confidentiality protections. The advocate can also help gather evidence of the abuse and/or the survivor’s immigration status.

 

Finally, complaints filed on behalf of an immigrant survivor must be accompanied with written consent from the survivor authorizing DHS to share information with the person filing (in this case, the survivor’s attorney or the advocate) about the complaint; and the name, organization, and contact information of the person authorized to receive information about the complaint.

 

VAWA Confidentiality violations are filed with the DHS Office of Civil Rights and Civil Liberties (CRCL). CRCL has a Civil Rights Complaint form (Reclamo sobre Derechos Civiles in Spanish and Queixa Referente a Direitos Civisin Portuguese)[3] that can be used to file VAWA Confidentiality violations.

 

If a survivor chooses not to use the CRCL form, there is a separate process for filing VAWA Confidentiality violations.

 

Tools

“VAWA confidentiality: History, purpose, DHS implementations and violations of VAWA confidentiality protections” in L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault[a7] provides guidance and tools for attorneys working with survivors whose VAWA Confidentiality has been violated.

 

For technical assistance on VAWA Confidentiality violations, contact the National Women’s Immigration Advocacy Project (NIWAP) at niwap@wcl.american.eduor 202-274-4457.



[1]Orloff, L.E. (2013). VAWA confidentiality: History, purpose, DHS implementations and violations of VAWA confidentiality protections. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault.National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2]Certain disclosures to law enforcement may be made for legitimate law enforcement or national security purposes.  See 8 USC 1361, DHS Implementation of 1367 Information Provisions, and the NIWAP Newsletter on VAWA Confidentiality(January 2015).

[3]Also available in Arabic, French, Haitian Creole, Russian, simplified Chinese, Somali, and Vietnamese at www.dhs.gov/file-civil-rights-complaint