advocacy with immigrant survivors toolkit

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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.