advocacy with immigrant survivors toolkit

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Help with Legal Cases: Immigration remedies

Other immigration benefits

 

There are other forms of immigration relief that may be accessible to immigrant survivors of domestic and sexual violence. These include, but are not limited to:

 

Family-based immigration

 

Certain relatives of legal permanent residents and US citizens may be able to obtain legal immigration status through a “family petition.”  US citizens (the “petitioner”) may petition for their:

·      Spouses

·      Parents

·      Minor children under 21 years of age

These family members are called “immediate relatives” and may be able to apply for their legal permanent residency or green card at the same time the U.S. citizen relative files the family petition.

 

US citizens may also file family petitions for their siblings and their adult children. For immigration purposes, a “child” is unmarried and under 21, whereas if a person is married and/or over 21, that person is defined as a “son” or “daughter.”[1]Other relatives for whom US citizens may file family petitions include:

·      Unmarried sons and daughters age 21 or over

·      Married sons and daughters

·      Brothers and sisters

The petitions for these family members take significantly longer to process than those for immediate relatives, depending on the type of relationship and the country of origin of the family member.  These family members must wait until visas are available and approved in order to come to the United States. An unmarried adult daughter of a US citizen, for example, must wait about 8 years for their visa number to process and be eligible to enter the US. 

 

Legal permanent residents may file family petitions for their:

·      Spouses

·      Minor children under 21 years of age

·      Unmarried sons and daughters age 21 or over

 

Important Note:Consult with an experienced immigration attorney before filing any family petition(whether by a US citizen or legal permanent resident), in the event a family member has barriers to receiving a green card.  For example, if a family member entered the country without documentation or has other criminal or immigration violations, this could be problematic and affect the outcome of the case, up to and including removal (deportation) of the family member.

 

Employment-based visas

 

Generally, people must apply for these visas from outside the country and then enter the US on a worker visa.  If a person is undocumented in the US and they leave to apply for one of these visas, however, they may trigger what is known as “unlawful presence” bars, which could preclude them from applying for another type of visa.[2]

 

See “Working in the US” (“Trabajar en los Estados Unidos”) by the US Citizenship and Immigration Services for an overview of employment-based visas and who may be eligible.

 

Asylum

 

People who have experienced or fear persecution in their home country based upon their race, religion, nationality, membership in a particular social group, or political opinion may be able to apply for asylum.  Generally, there is a one-year filing deadline for asylum; that means asylum applications should be submitted within the first year after one arrives to the US. There is an exception to this rule if an individual can establish either changed circumstances now create eligibility for asylum, or extraordinary circumstances related to the delay in filing.

 

In screening for asylum, it is important to review:

·      Is the person afraid to return to their home country and if so, why?

·      Has the person ever sought help from authorities in their home country? Why or why not?

·      What does the person think will happen if they were to return to their home country?

·      Would the person feel safe anywhere in their home country?

 

In August 2014, the Board of Immigration Appeals decided the case Matter of A-R-C-G, which established that “married women in Guatemala who are unable to leave their relationship” can constitute an acknowledged, particular social group that forms the basis of a claim for asylum. [3]  This means that abuse suffered abroad can be explored as a potential asylum remedy for survivors of domestic and sexual violence. 

 

See Pro se manual: Asylum, withholding of removal, and Convention Against Torture protection for survivors of domestic violence(Pro se manual: Protección de asilo, extención de expulsion y Convención Contra la Tortura para sobrevivientes de violencia doméstica) by the Center for Gender and Refugee Studies for support for survivors preparing their domestic violence asylum applications.[4]

 

Deferred Action for Childhood Arrivals (DACA)

 

In 2012, President Obama announced the creation of the Deferred Action for Childhood Arrivals (DACA) program in which certain young adults could receive deferred action (and a work permit) if they meet certain criteria:

·      Born on or after June 16, 1981

·      Came to the United States before turning 16 years old

·      Have lived in the United States since June 15, 2007 and were present in the United States on June 15, 2012 and at the time of the DACA application

·      Entered without documents or their lawful immigration status expired as of June 15, 2012

·      Currently in school or graduated high school, obtained GED, or are an honorably discharged veteran of the Coast Guard or armed forces of the US

·      Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

 

See “Consideration of Deferred Action for Childhood Arrivals (DACA)” (“Consideración de acción diferida para los llegados en la infancia”) by the US Citizenship and Immigration Services for information and videos on eligibility for DACA.

 

In November 2014, President Obama announced a DACA extension (extending DACA benefits to a wider range of individuals) and a Deferred Action for Parental Accountability (DAPA) program for parents of US citizen and legal permanent resident children.  Currently, however, implementation of both the DACA extension and the DAPA program is delayed upon review by the U.S. District Court in Texas.[5]  There is no DACA-extension or DAPA program, though the original 2012 program remains in effect. See “New immigration policies” (“Proyectos de ley más recientes”) by the National Latin@ Network for updates regarding DACA/DAPA program and how they affect survivors of domestic and sexual violence.



[2]Time in unlawful presence starts at age 18, thus any time spent unlawfully in the country before a person is 18 years of age will not be counted for unlawful presence purposes.

[3]Matter of A-R-C-G, 26 I&N Dec. 388 (BIA 2014)

[4]Also available in Haitian Creole.

[5]See, for example, Markon, J. (7 Jun 2015). Obama administration stops work on immigrant program. The Washington Post.