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Immigrant Survivors’ Rights and Resources

Limited English Proficiency

 

Title VI of the Civil Rights Act prohibits discrimination based on race, color, or national origin by recipients of federal funds. The Supreme Court has defined one type of national origin discrimination as discrimination that is based on a person’s inability to speak, read, write or understand English.[1] Consequently, recipients of federal funds (e.g., government agencies and many nonprofits) must provide the language assistance needed to ensure meaningful access for people with limited English proficiency (LEP), at no cost to the individual.

 

Executive Order 13166 directs federal agencies to ensure meaningful access to federally-funded programs for persons with LEP.[2]

 

 

Each federal agency must publish “guidance” on how to ensure meaningful language access; this guidance applies to all programs and services within the agency’s sphere of influence.

 

 

For example, the US Department of Justice also administers funds through the Violence Against Women Act (VAWA) that support many services and programs for survivors of sexual violence, domestic violence, trafficking, and stalking. All recipients of VAWA funds are accountable to the DOJ guidance on access for persons with LEP. Similarly, the US Department of Health and Human Services (HHS) guidance governs benefits agencies’ language access for persons with LEP. It establishes that state benefits agencies must ensure individuals with LEP are given adequate information, are able to communicate the relevant circumstances of their situations, are able to understand the benefits available, and are able to receive the benefits to which they are entitled.[3],[4]

 

The most common means of language access are:

  • the provision of translated agency-written vital documents (including but not limited to those necessary for obtaining the service or benefit, such as applications, notices advising persons with LEP of the availability of free language assistance, letters or notices requiring a response from the individual, and consent and complaint forms),
  • use of qualified interpreters that do not pose a conflict of interest, and
  • bilingual staff.

 

Advocates should understand the language accessibility requirements to which all federally-funded government agencies and services providers are accountable, be vigilant of the extent to which government agencies and services providers comply with these requirements, and be prepared to intervene if an immigrant survivor is denied the language access services they have requested or are due.

 

Tools & Resources

Enhancing Access for Individuals with Limited English Proficiency Toolkit (Haciendo Accesibles para Personas con Conocimiento Limitado del Inglés los Servicios de Apoyo contra la Violencia Doméstica) by the National Latin@ Network for Healthy Families and Communities; see –

 

 


[1] Lau v. Nichols, 414 U.S. 563 (1974).

[2] Federal agency LEP guidance for recipients houses agency-specific LEP guidance.

[3] See “HHS-funded programs open to all immigrants” (pages 481-489) in Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault for a list of all programs funded by the US Department of Health and Human Services that are available to all people, regardless of immigration status.

[4] Pohl, A., Sarangapani, H., Baran, A. & Olavarria, C. (2013). Barriers to accessing services: The importance of advocates accompanying battered immigrants applying for public benefits. 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.

Immigrant Survivors’ Rights and Resources

Civil Rights of Immigrants

 

Title VI of the Civil Rights Act prohibits discrimination based on race, color, or national origin by recipients of federal funds. This means that individuals cannot be discriminated against because of their immigration status or limited English proficiency.

Other federal laws, however, define and/or limit immigrants’ access to services, programs, and benefits.

Generally speaking,

  • Federal welfare laws:
  • limit access to some public benefits (to varying degrees, depending on the program and various immigrant-based factors such as when an individual entered the US and their current immigration status),
  • guarantee access to services deemed “necessary to protect life and safety,”
  • provide access to services of charitable nonprofit organizations, and
  • permit states to either limit or increase access to state benefits.

VAWA also identifies immigrants as an underserved population, which means that recipients of VAWA funds can use the money to pay for any assistance to immigrant survivors, including those related to immigration matters.[1]

  • The Trafficking Victims Protection Act is a federal law that enhances protections to immigrant victims of trafficking and some crimes.
    • (See “Public benefits” for information on public benefits programs and eligibility requirements for immigrant survivors.)

 

The interplay of many laws relevant to immigrant survivors – for example, federal welfare laws, the Violence Against Women Act, and the Trafficking Victims Protection Act - with Title VI can be complicated, so federal agencies often issue guidelines and regulations that govern their programs. For example, the Attorney General’s guidelines for implementation of the Welfare Reform Act specify that federal civil rights law protects all applicants for public benefits from:[2]

  • the use of procedures that appear neutral but have the effect of discriminating against people based on race, color or national origin;
  • denial or delays of benefits on the basis of race, color, or national origin;
  • ineligibility determinations based on applicants’ ethnic surnames, origins outside the US, or because the applicants or their names look or sound foreign;
  • the assumption that applicants with any of these characteristics are undocumented immigrants; or
  • additional eligibility requirements of anyone based on their minority ethnic or racial status.

This guidance establishes a specific screening process for public benefits that have immigration-related eligibility requirements (see “Verification and reporting” for more information). The guidance as a whole seeks to protect immigrants’ civil rights and ensure that public benefits workers focus on providing assistance to people in need of economic support.

 

Beyond government agencies and workers, however, Title VI applies to all service providers who receive federal funds. Federally-funded groups who provide any of the following are mandated to serve all persons, regardless of immigration status:[3]

Moreover, charitable nonprofit organizations:[4]

  • are explicitly exempt from immigration verification and reporting requirements,
  • can legally provide services to all persons, regardless of immigration status, and
  • may not be penalized for not verifying immigration status or for providing services to an immigrant.

Access to these services, programs, and benefits has NOT been limited in the same way that access to federally-funded public benefits has been; as mentioned, in many cases, the law specifically states that these services must be available to all people. Providers that fit into any of these categories (including sexual and/or domestic violence programs) and deny services to undocumented immigrants risk violating federal civil rights laws and losing federal funding.



[1] Fata, S., Orloff, L.E. & Drew, M. (2013). Access to programs and services that can help victims of sexual assault and domestic violence. In 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.

[3] PL 104-193 [The Personal Responsibility and Work Opportunity Reconciliation Act of 1996].

What Is Immigration Status?

 

Immigration status refers to the way in which a person is present in the United States.  Everyone has an immigration status. Some examples of immigration status include:

  • US citizen

    • Note: Although indigenous people’s roots long predate the creation of the US, they were not provided US citizenship until Congress passed the Indian Citizenship Act in 1924 (it would be longer before they received the right to vote), after a patchwork of approaches with select groups, such as treaties and permissions to apply for citizenship. At present, many indigenous people also hold citizenship in a federally-recognized Indian tribe.[1]

  • Legal Permanent Resident (“green card holder”), which can be obtained by:
  • Family petitions
  • Employer petitions
  • Violence Against Women Act self-petitions
  • Conditional Permanent Resident
  • Asylee or Refugee, based upon persecution or fear of persecution in one’s home country because of race, religion, nationality, membership in a particular social group, or political opinion.
  • Non-immigrant, i.e., a person with a visa that is good only for a specific duration, such as persons with:
  • U visas
  • T visas
  • Student visas
  • Visitor visas
  • Temporary worker visas
  • Person with Temporary Protected Status: for nationals of countries whose conditions prevent people from returning home safely (due to natural disasters, civil strife, or other extraordinary conditions).  Some examples of countries with Temporary Protected Programs (Estatus de Protección Temporal) are Honduras, El Salvador, Haiti, Guinea, and Liberia)
  • Undocumented person, i.e., entered without papers or overstayed their visa

For more information, see the State Justice Institute’s court bench card, “Overview of types of immigration status.”

 

There are immigration benefits (authorization to live and work in the US) that are based on being a survivor of violence.  There are also other forms of immigration benefits that are not based upon being a survivor (like deferred action programs), but may still be available to individual survivors.

 

What are some common immigration terms?

Immigration lawyers and advocates have a habit of referring to immigration law applications by numbers, taken from the government forms (formularios).

They also use abbreviations or acronyms for laws or words found within immigration law.  For example:

  • “VAWA,” for the Violence Against Women Act

  • “USC,” for United States citizen

  • “LPR,” for legal permanent resident (or “green card holder”)

For definitions of key immigration terms, see:

 

What government agencies are involved in making decisions on immigration?

1.     Department of Homeland Security (DHS) houses several agencies that work with immigration policy.  Some of the more familiar ones are:

  • US Citizenship and Immigration Service (USCIS or CIS)—this is the agency that is in charge of processing applications for immigration benefits, including VAWA and U visas.
  • Immigration and Customs Enforcement (ICE) is the agency that enforces federal laws about customs, trade and immigration.  ICE oversees immigration detention centers and represents the government in Immigration Court. 
  • Customs and Border Patrol (CBP) is the agency responsible for border management and control, including customs and agricultural protections.  

2.  Department of State (DOS) processes individuals at US consulates abroad to enter the United States with legal status.

3.  Department of Justice (DOJ) houses the Executive Office for Immigration Review, which include all Immigration Courts and the Board of Immigration Appeals.

4. Department of Health and Human Services (HHS) provides benefits to all individuals, including some immigrants, who qualify under federal welfare law and refugee resettlement policies.

 


[1]Many indigenous activists and scholars, however, state that the effect of federal legislation such as the Indian Citizenship Act has been a “consistent and systematic whittling away of the legal claims of tribal sovereignty for all people” (p. 107). This is because citizenship by legal act undermines citizenship in sovereign Indian nations. (See Guerrero, M.A.J. (1997). Civil rights versus sovereignty: Native American women in life and land struggles. In M.J. Alexander and C.T. Mohanty (Eds.), Feminist Geneologies, Colonial Legacies, Democratic Futures. New York and London: Routledge.)

 

Immigrant Survivors’ Rights and Resources

 

There are certain protections and rights that almost everyone in the US has, regardless of their immigration status.[1]   All persons, including immigrant survivors of violence can:

Undocumented individuals also have Constitutional rights, including:

  •  4th Amendment rights - protections against unlawful search and seizures.  If immigration law enforcement (Immigration and Customs Enforcement, or ICE) comes to an individual’s door, they have the right to ask for a warrant.
  • 5th Amendment rights, e.g. the right to remain silent. 
  • 14th Amendment rights
  • Undocumented children have the right to education[3]
  • Due process – a legal obligation of the federal government and all states to operate within the law and provide fair procedures.

The Immigrant Legal Resource Center developed palm cards listing some of these important protections, available here.

 

Immigrant workers are protected from abuse (including sexual violence) and exploitation, which can be relevant to immigrant survivors who are also experiencing workplace violence and/or human trafficking. For information about the rights of immigrant workers, including undocumented immigrant workers, see:

·      National Employment Law Project (search “immigrant” for resources including From anti-immigrant to pro-worker: What states and cities can do about immigration and workers’ rights)

·      “Remedies available to undocumented workers under federal employment discrimination laws” by the US Equal Employment Opportunity Commission

See also “Workplace Violence” for resources to help advocates explore these subjects during intake with survivors of sexual/domestic violence.

 

In addition, different parts of the Civil Rights Act have been explicitly upheld as applicable to all immigrants (including those who are undocumented) so that they may exercise these basic protections. This section of the Toolkit provides a brief overview of some of the immigrant-specific implications of Title VI of the Civil Rights Act to help you advocate – at individual and systems levels – for safety and justice for immigrant survivors of sexual and domestic violence:

·      Anti-discrimination on the basis of race, color, or national origin

·      Language access rights



[1] These rights and protections generally do not apply to persons in prison or only to very limited extent; for example, persons in prison cannot freely access many community-based services, however, a number of sexual/domestic violence programs across the country are working to provide some services, such as accompaniment during forensic exams and 24-hour crisis intervention via telephone and mail, to survivors in detention (see, for example, Hope behind bars: An advocate’s guide to helping survivors of sexual abuse in detention). It is important to note that although all individuals retain certain Constitutionally-protected rights even when incarcerated (e.g., adequate medical and mental health care and access to courts and counsel), correctional systems frequently attempt to deny or restrict these rights (see, for example, The need for prison oversight by Just Detention International (Feb 2009) or the work of the National Prison Project of the American Civil Liberties Union).

[3] Plyler v. Doe, 457 U.S. 202 (1982)

 

Advocates play an important role in creating greater access for immigrant survivors to other community systems and resources. This work is critical because it decreases barriers for the individuals that you work with, makes approaching the same resource easier the next time, and decreases barriers for others in similar situations.

 

Systems change is a process that involves responding to a barrier confronted by one or more survivors and builds on that one experience to create significant change in a system or service. The advocate’s role grows from confronting one barrier for one survivor to changing the problem for all survivors in similar situations.

 

1. Identify the problem.

When immigrant survivors are denied services, it can be very frustrating for both the survivor and the advocate. These are great opportunities for systems change.

 

Read more—Story from the field:

 

At a training on working with immigrant survivors, I learned that in our state, immigrants with prima facie VAWA determinations are eligible to apply for public benefits. I went with a survivor who had just received a prima facie VAWA determination to our local county public benefits office with all of the necessary paperwork. The intake worker refused to process the application because he told us that without a green card or citizenship, the survivor was not eligible to apply. I knew that this was incorrect, but he said that he was following the policies of the office and that we would have to leave.

 

 

2. Get more information.

It is difficult to know how widespread a problem is after a single incident. It is helpful to collect additional information to help understand the scope of the problem and how often it happens. Keep track of what’s happening when immigrant survivors interact with the systems and services in your area. Consider gathering information from survivors and advocates in your program or collaborative network. Listening sessions or focus groups with survivors are effective ways of learning about their experiences.  Focus groups with advocates or staff meetings are good ways to gather a lot of information about specific topics like language access and other barriers to accessing services.

 

Read more—Story from the field:

 

I contacted the Legal Aid attorney who had provided the information at the training about eligibility for public benefits. She confirmed that the survivor IS eligible to apply for benefits and she offered to help us speak to a supervisor.

A quick survey of other advocates in our office, and of an inter-agency work group of advocates who work with immigrant survivors revealed two important things:

a.    Many advocates did not know that immigrant survivors with prima facie determinations are eligible for public benefits in our state; and

b.    Nearly all of us had difficultly accessing public benefits for survivors with prima facie determinations.

This quick (and very unscientific) information gathering helped us understand the scope of the problem. It also brought us all together to mobilize on the issue.

 

3. Engage others.

Systems change is much more easily accomplished when advocates, attorneys, community members and systems staff establish a meaningful partnership with a common purpose. This working relationship requires trust and, in some communities, a willingness to set aside short-term political gains or age-old animosities in exchange for long-term community benefit.  Often, it requires many people raising the same issue in a coordinated effort to raise the issue to a level that will result in a change in the system.

 

Read more—Story from the field:

 

My supervisor was involved in the process from the beginning by providing guidance and by initiating the call with the supervisor at the public benefits office. The benefits office supervisor was very interested in learning about the issue and in working with us to create a better process for qualified immigrant survivors to apply for public benefits.

We continued documenting the problems, the individuals involved, and the steps that we tried to take to resolve the issues.

Throughout he process, we kept in touch with other advocates, managers, and the Legal Aid staff about what we were learning, and if there were any other instances of qualified immigrant survivors being denied access to services. All of the information that we shared together was very useful for building our collective knowledge, understanding the scope of the problem, and identifying individuals within the public benefits office who would be helpful in creating greater change. 

 

 

4. Approach the problem from a stance of mutual interest, collaboration, and survivor safety.

The most effective way to approach any system to make change is to present information in a constructive manner. Assume that the people working at the program, agency, or system want to provide quality services to the survivors that you are working with. Often, service to all survivors is part of their agency mission, and social justice was probably a motivation for many of them to begin their careers.

 

Read more—Story from the field:

 

The public benefits supervisor told us that she would need detailed information to share with the directors of the public benefits office and the health department in charge of public benefits.  The Legal Aid attorney wrote a detailed memo that included references to the relevant state and federal statutes that established eligibility for immigrant survivors with prima facie determinations. We were able to utilize some of the information that the advocacy community had collected in the memo as well.

With this information, the survivor that I was working with was allowed to apply for benefits and was approved for critical economic support.

 

 

 

5.  Push for broader change.

Often, making a small change can lead to change that impacts more than just one survivor. You can use the individual success of one case to build a larger systems change strategy.

 

Read more—Story from the field:

 

The fact that our efforts resulted in a positive outcome for that particular survivor did not guarantee that the next survivor would have the same experience. In fact, the next time one of my co-workers went to support another survivor in a similar situation, she was told that the survivor did not qualify. Our staff quickly mobilized to get a copy of the Legal Aid memo, contact the public benefits supervisor, and arrange a meeting with the supervisor and director.

As a result of this meeting and additional discussions, all intake staff at the public benefits office were provided with training on eligibility for immigrant survivors. The public benefits supervisor was also able to arrange for one intake staff person to be the primary point of contact for all immigrant survivors. This made the process significantly easier for all qualified immigrant survivors to apply for public benefits at that office.

 

 

 

 

6. If more pressure is needed:

In some instances, even with informed and allied individuals within a system, the decision-makers may resist the change necessary to increase access for immigrant survivors.

Advocates can increase pressure through systems accountability strategies, such as compelling a federally-funded system to fulfill its legal obligations. Do so carefully and with some transparency—in most communities you will have to work with this person and system again, often on behalf of a survivor or community who needs their cooperation and good will.

Know how to file complaints at community levels. For example, a complaint about a nonprofit organization might be made to its board of directors; to the state Attorney General’s office; or to funders, including, if it receives federal funds, to the civil rights compliance department of the federal agency that administers the funds.

If that is not sufficient, research which federal government agency funds (and therefore administers) the community-based service or benefit. Generally speaking, each federally-funded agency has its own civil rights compliance department, and formal complaints and investigations measures. Be aware, however, that some are simpler and easier to access than others; and that how to file a complaint is not always clear. For example, although the US Department of Homeland Security (DHS) is charged with all immigration-related matters, complaints about an application might be made to Citizenship and Immigration Services, but complaints about enforcement might be made to Immigration and Customs Enforcement or Customs and Border Patrol, depending on which agency was involved. All three are branches of DHS, but each has its own complaints and investigations process.

Many sexual and domestic violence programs receive funds through their state coalitions or directly from their state governments (e.g., departments of health and human services; children, youth, and families; or attorneys general). Their state coalitions or state governments, in turn, receive funds from the federal government as authorized by, for example, the Family Violence Prevention and Services Act (FVPSA) or the Violence Against Women Act (VAWA). And each federal law will designate which federal agency is responsible for administering federal funds: the US Department of Health and Human Services (HHS) administers FVPSA funds that go to community-based domestic violence programs; and the US Department of Justice (DOJ) administers VAWA funds that go to community-based sexual and domestic violence programs. HHS and DOJ each have their own civil rights divisions that enforce the nondiscrimination laws that apply to their services and benefits.

 

See the following for examples of how to file complaints for violations of specific civil rights:

“Filing a complaint about VAWA Confidentiality violations with the US Department of Homeland Security (DHS)”

“Advocating after court”[1] in the Increasing Language Access in the Courts Toolkit by the National Latin@ Network for Healthy Families and Communities (for information about filing a complaint about denial of language access services in court systems).

 

 

 



[1] See “When to use pressure?” (pages 29-30).

 

Advocates know to engage with all survivors in individualized, realistic, thorough, and ongoing safety planning. Immigrant survivors may have specific immigration-related concerns, ranging from concerns about their own or the aggressor’s immigration status, to eligibility and access to medical care, custody, and police protection.

This section of the Toolkit provides guidance and information to support safety planning with immigrant survivors:

  • “Enhance your work” discusses how to strengthen safety planning you likely already do with a broad spectrum of survivors to benefit immigrant survivors, and examines some aspects of safety planning that may be specific to an immigrant survivor.
  • We will examine two areas of particular importance to the safety and security of immigrant survivors:
    • The rights and options of an immigrant survivor to seek and enforce an order of protection against the aggressor
    • Questioning or detention by local or state police and/or federal immigration law enforcement

 

This Toolkit builds upon the principles of equality between all people, with equal rights to safety and security, and survivor advocacy that “meets people where they are.” When working with immigrant survivors, “meeting people where they are” almost always involves providing equal care and attention to a person’s immigrant experience as to their survivor experience, knowing that the two are intrinsically linked.

In addition, 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 provide both information and practice guidance throughout.

This section of the Toolkit provides an easily-digestible framework from which to learn:

  • What is immigration status?
  • Immigrant survivors’ rights and resources as established under Title VI of the Civil Rights Act and, more specifically, when advocating for, working with, and ensuring language access for immigrant survivors.
  • You may already have personal experience and/or good training on the immigration system and are looking, instead, for some support to effectively integrate this knowledge into your practices. See “Intake,” where you may first meet many survivors, for practice guidance on:
    • Explicitly welcoming immigrant survivors
    • Providing important preliminary information – rights, options, and what you and your program can offer
    • Providing guidance specific to domestic, sexual, and workplace violence against immigrant survivors
    • Screening for immigration relief needs and options

Prepare for Intake

 

This Toolkit builds upon the principles of equality between all people, with equal rights to safety and security, and survivor advocacy that “meets people where they are.” When working with immigrant survivors, “meeting people where they are” almost always involves providing equal care and attention to a person’s immigrant experience as to their survivor experience, knowing that the two are intrinsically linked.

In addition, 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 provide both information and practice guidance throughout.

This section begins with an easily-digestible framework from which to learn:

  • What is immigration status?
  • Immigrant survivors’ rights and resources as established under Title VI of the Civil Rights Act and, more specifically, when advocating for, working with, and ensuring language access for immigrant survivors.
  • You may already have personal experience and/or good training on the immigration system and are looking, instead, for some support to effectively integrate this knowledge into your practices. See “Intake,” where you may first meet many survivors, for practice guidance on:
    • Explicitly welcoming immigrant survivors
    • Providing important preliminary information – rights, options, and what you and your program can offer
    • Providing guidance specific to domestic, sexual, and workplace violence against immigrant survivors
    • Screening for immigration relief needs and options
 

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