Department of Homeland Security Response to Immigrant Victims of Violence Essay

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In 1986, Congress enacted the Immigration Marriage Fraud Amendments (IMFA) to deter marriage-related immigration fraud. In an effort to ensure that lawful permanent resident status was granted only to immigrant spouses in valid marriages to U.S. citizens, IMFA required that immigrant spouses who obtained permanent residence based on a marriage to a U.S. citizen or lawful permanent resident fulfill a 2-year conditional residence requirement before being granted lawful permanent residence. The law required a joint petition to be filed 90 days before the expiration of the 2-year conditional resident status period, possibly followed by a joint interview with a Department of Homeland Security (DHS) official.

For immigrant victims of domestic violence, the joint filing requirement proved difficult. Immigrant women who were being abused remained in dangerous and abusive relationships in order to fulfill the joint filing requirement. In 1990, Congress enacted the first piece of federal legislation designed to help immigrant domestic violence victims—the battered spouse waiver. The waiver allowed battered immigrants to file an application for the purpose of removing the conditions on their permanent residence without the knowledge or assistance of the abusive spouse.

A range of additional legal remedies now exists to aid battered immigrants and immigrant victims of violence against women. The Violence Against Women Act (VAWA) of 1994, which was amended and expanded through VAWA II in 2000 and VAWA III in 2005, contains several provisions designed to prevent abusers from using immigration as a tool to control their victims. The VAWA self-petition is an important form of relief that service providers, health care providers, and justice system personnel and counselors need to be familiar with so that they can educate immigrant victims who qualify about the forms of access to legal immigration status that have been created to help immigrant victims of violence against women. The VAWA self-petition enables a battered immigrant to obtain lawful permanent resident status without the help, knowledge, or cooperation of her U.S. citizen or lawful permanent resident abusive spouse or parent. The filing of this self-petition can occur at any time and, due to the changes in 2000, can even occur after a divorce if the petition is filed within 2 years of the divorce and if the divorce was related to the abuse. Approval of a VAWA self-petition provides the immigrant victim access to work authorization, protection from deportation, and ultimately access to legal permanent residency status, which is a required precursor to applying for U.S. citizenship status. VAWA 2005 extended the benefits of VAWA self-petitions to abused parents of U.S. citizen adult sons and daughters.

Changes to VAWA in 2000 created additional remedies for survivors of violence. Congress created two new nonimmigrant visas to help battered victims and immigrant victims of sexual assault, trafficking, and other violent crimes. The first nonimmigrant visa is the U-visa, also known as a crime victims’ visa. An applicant must prove that she has been a victim of a certain type of serious crime, has suffered substantial physical or mental abuse as a result of the crime, has information about the crime, and can provide a certification from a law enforcement official, prosecutor, judge, or other government official (e.g., the Equal Employment Opportunity Commission, or EEOC) that the victim has been, is, or is likely to be helpful in investigating or prosecuting criminal activity. The other type of nonimmigrant visa is the T-visa. An applicant must prove that she has been a victim of a severe form of trafficking and has either complied with any reasonable request for assistance in the investigation or prosecution of trafficking or has not yet turned 15 years old. Both applications require law enforcement involvement, but only the U-visa requires a law enforcement letter or affidavit. If either the U-visa or the T-visa is approved, the applicant may be eligible to apply for lawful permanent resident status under certain circumstances.

Self-Petitions Under The Violence Against Women Act

VAWA of 1994 created a way for victims to obtain lawful permanent residency without depending on their abusive husbands or parents to apply for such residency. This form of relief is known as a VAWA self petition. If an immigrant woman is or was married, and her husband has abused her or her child, she may qualify for this relief. Unmarried children under the age of 21 who are being or were abused by a parent who is a citizen or a lawful permanent resident are also eligible for VAWA relief. Those who were abused while under the age of 21 may file a VAWA self-petition while they are still minors, or their nonabusive parents may file for them. Children have until the age of 25 to file a VAWA self-petition so long as they were abused when they were under 21 years of age. VAWA relief is only available to women and children whose abusive husbands or parents are U.S. citizens or lawful permanent residents. Nonabusive immigrant parents whose citizen or lawful permanent resident spouse has abused the immigrant parent’s natural or adopted child or stepchild can also file a VAWA self-petition so that they can come forward without fear of deportation to protect their child. The nonabusive immigrant parent can qualify for a VAWA self-petition without regard to the immigration or citizenship status of the abused child.

A victim may be eligible for a self-petition if she is

  1. married to a U.S. citizen or a lawful permanent resident, or
  2. was divorced less than 2 years ago from a U.S. citizen or lawful permanent resident spouse, or
  3. the child of a U.S. citizen or lawful permanent resident.

Additionally, a victim

  1. must live in the United States, or
  2. if living abroad,
  3. must have been abused in the United States, or b. her abusive spouse or parent must either be an employee of the U.S. government or a member of the U.S. armed forces.

Furthermore,

  1. a victim or her child must have been physically or sexually abused or suffered extreme cruelty perpetrated by her citizen or lawful permanent resident husband or parent.

If a victim qualifies for a self-petition she will be able to obtain a “green card” (permanent residence in the United States) without her abuser’s help or knowledge.

Crime Victims’ Visas

In October of 2000, Congress created an immigration remedy that expanded the categories of victims covered by VAWA. This remedy, the U-visa, offers legal immigration status to immigrant victims of domestic violence, sexual assault, trafficking, and other violent crimes. This visa is especially helpful to victims abused by intimate partners who are not spouses, or by spouses or parents who are not citizens or lawful permanent residents. It also helps those victims whose abusers are employers, other family members, or strangers. The immigration status of the abuser is not a factor in the U-visa case. The abuser or crime perpetrator can be undocumented, a diplomat, a person with a legal work visa, a citizen, or a permanent resident.

To qualify for a U-visa a victim must prove

  1. substantial physical or emotional abuse from criminal activity,
  2. possession of information about the criminal activity,
  3. that the criminal activity occurred in the United States or otherwise violates U.S. law.

In addition, a victim must obtain a certification from law enforcement stating that she has been, is likely to be, or is being helpful to an investigation or prosecution of criminal activity. The certification must come from a federal, state, or local law enforcement official, prosecutor, judge, or EEOC officer investigating or prosecuting the criminal activity.

A victim must have been the victim of at least one of the following criminal activities: rape, torture, trafficking in persons, incest, domestic violence, sexual assault, prostitution, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of these crimes. A victim must be willing to cooperate in the investigation or prosecution of criminal activity committed against her. Usually this will require a victim to make a police report and a willingness to speak with law enforcement about the crime.

A victim may apply for the U-visa as soon as she gets the needed certification and can gather the proof of the substantial physical or emotional abuse she has suffered. The goal of the U-visa protections is to encourage immigrant victims to come forward and cooperate in criminal investigations as well as prosecutions. U-visas are available even if the criminal case has not yet been filed, if prosecutors decide not to file the criminal case, if the perpetrator cannot be found, if a case is filed and the applicant is not needed as a witness, or if the abuser is not ultimately convicted of the crime. Applicants’ children can also receive U-visas.

Bibliography:

  1. Bui, H. N. (2004). In the adopted land: Abused immigrant women and the criminal justice system. Westport, CT: Praeger.
  2. Raj, A., Santana, M. C., & Orloff, L. E. (Eds.). (2007). Gender-based violence against immigrant women in the United States [Special issue]. Violence Against Women, 13(5).
  3. Raj, A., & Silverman, J. G. (2002). Intimate partner violence against immigrant women: The roles of immigrant culture, context, and legal status. Violence Against Women, 8, 367–398.

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