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Visa Protections for
Immigrant Victims of Crime
Robin Bronen
Sidebar story: Working of U-Visa Process for Immigrant Crime Victims
Among the barriers immigrant crime victims
face when seeking access to the criminal justice system— language,
culture and a lack of knowledge about the process—fear of deportation
and permanent separation from family members, including children, is by
far the most significant impediment. This fear prevents many immigrant
crime victims from seeking police protection, shelter, medical care and
other social services. For immigrant victims of domestic violence, the
fear is compounded because abusive partners use the threat of deportation
to ensure that the victim remains isolated.
Recognizing that the immigrant population
is extremely vulnerable to victimization because of the fear of deportation,
Congress has taken steps over the last decade to ensure that immigrant
crime victims are afforded safety and protection, regardless of their
immigration status. Immigration remedies provided in federal legislation
specifically focus on those who are residing in the United States, but
do not have immigration documents to live and work here. The federal legislation
provides immigration options to these individuals in certain situations
to dispel their fear of deportation and to encourage cooperation with
criminal investigations and prosecutions.
The Violence Against Women Act of 1994 and
the Victims of Trafficking and Violence Protection Act of 2000 both contain
provisions addressing immigrant victims of crime. The 1994 legislation
specifically addressed the immigration issues that faced many immigrant
domestic violence victims by allowing those married to a United States
citizen or lawful permanent resident to legalize their immigration status
without depending on the abusive spouse.
Violence Against Women Act of 1994 (VAWA)
Prior to the enactment of VAWA in 1994,
immigrant spouses were not able to apply for legal residency and work
in the United States without the cooperation of the U.S. citizen or lawful
permanent resident spouse.
Under VAWA an immigrant/non-citizen spouse
married to an abusive partner who is a U.S. citizen or a lawful permanent
resident can file on her own to legally reside and work in the United
States. The process is called a “self-petition.” To be eligible
for lawful residency pursuant to VAWA, the non-citizen spouse must prove
the following: (1) the marriage to the U.S. citizen or lawful permanent
resident is bona fide; (2) the citizen or lawful permanent resident spouse
was abusive; and (3) the petitioner is a person of good moral character.
Victims of Trafficking and Violence Protection Act of 2000 (VTVPA)
The protections provided immigrant victims of crime under VAWA were further strengthened by legislation passed in 2000. This legislation—the Victims of Trafficking and Violence Protection Act of 2000—broadened eligibility for the self-petitioning process and also established two new visa categories specifically directed at immigrant victims. In doing this, Congress recognized that victim cooperation and assistance can be the key to effective detection, investigation and prosecution of crimes. The new visas—referred to as U and T visas—allow certain crime victims to remain in the U.S. for at least three years, with the possibility of being able to live and work here permanently.
U Visa
The U visa provides a specific avenue
for immigrant crime victims to avoid deportation and obtain lawful immigration
status. Further, it extends these protections to victims of some other
types of crime commonly directed at immigrants. Prosecutors, local law
enforcement and the judiciary are critical elements to the U-visa application
process.
To qualify for a U visa, an immigrant must:
(1) prove that she or he has suffered “substantial physical or mental
abuse” as a result of one of the following forms of criminal activity:
rape, torture, trafficking, incest, domestic violence, sexual assault,
abusive sexual contact, prostitution, sexual exploitation, female genital
mutilation, being held hostage, peonage, involuntary servitude, slave
trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment,
blackmail, extortion, manslaughter, murder, felonious assault, witness
tampering, obstruction of justice, perjury, attempted perjury, conspiracy,
or solicitation to commit any of the above mentioned crimes; (2) show
that she possesses information concerning criminal activity; and (3) provide
certification from a federal, state or local law enforcement official,
prosecutor or judge that states that the U-visa applicant is being, has
been or is likely to be helpful to the investigation or prosecution of
the criminal activity.
It must be noted that this list of crimes
is not comprehensive. Consequently, an immigrant victim of an ordinary
theft would not be able to apply for a U visa. An immigrant victim of
unfair employment practices, however, may qualify for the visa.
T Visa
Congress created the T visa to address
the growing international problem of human trafficking. As in the VTVPA,
approximately 50,000 people, mostly women and children, are trafficked
into the United States each year. Trafficking in persons is not limited
to the sex industry, but includes forced labor, involuntary servitude
and peonage. VTVPA defines severe trafficking as “(A) sex trafficking
in which a commercial sex act is induced by force, fraud or coercion,
or in which the person induced to perform such act has not yet attained
18 years of age; or (B) the recruitment, harboring, transportation, provision,
or obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary servitude,
peonage, debt bondage, or slavery.”
The T visa provides a trafficking victim
with the legal means to prevent deportation. To be eligible for a T visa,
the immigrant applicant must prove that he or she: (1) is a victim of
a severe form of trafficking; (2) is physically present in the United
States; (3) complied with any reasonable request for assistance in the
investigation or prosecution of acts of trafficking; and (4) would suffer
extreme hardship involving unusual and severe harm if deported.
State Courts and Protection for Immigrant Victims
For an immigrant fleeing domestic violence,
the protective orders available under Alaska statutes can be critical.
In addition to the safety and protection provided, such orders, evidence
that she or he has been the victim of domestic violence, can establish
eligibility for the self-petition process. Further, a state court can
issue specific orders that assist the non-citizen in gathering the documentation
required by the Department of Homeland Security (DHS—now responsible
for the administration of immigration). For example, the non-citizen must
prove that the spouse is a U.S. citizen or a lawful permanent resident
and that the spouse, if previously married, is divorced from the prior
spouse. In the protective order process a state court judge can require
this spouse to provide the documentation that proves immigration status
or US citizenship, i.e., a birth certificate or passport.
A state court judge can also issue specific
orders that protect the immigrant spouse from deportation and protect
the children, regardless of their immigration status. On behalf of an
immigrant petitioner in a domestic violence proceeding, a state court
judge can order the respondent not to contact DHS and not to withdraw
any immigration documents already filed on behalf of the petitioner and
the couple’s children. The state court judge can also require the
respondent to provide the court with the children’s passports to
prevent the children from being removed from the United States without
the knowledge of the petitioner.
Even though the federal legislation passed
almost ten years ago, many domestic violence victims have no idea that
they have a legal means of obtaining their immigration documents without
depending on their abusive spouses. Many of these women have been married
to a United State citizen or lawful permanent resident for years and have
remained in the abusive relationship hoping that the spouse will begin
the immigration process so that they can legalize their status. These
situations are often very dangerous because of the extreme isolation of
the victim and the length of time that the violence has been occurring.
The Immigration and Refugee Services Program
of Catholic Social Services is the primary agency in Alaska representing
immigrant domestic violence victims in their applications with the DHS
Bureau of Citizenship and Immigration Services. It is often the first
place that a domestic violence victim seeks information and referral resources.
The program has also worked intensively
with the Department of Homeland Security to develop a process to protect
immigrant crime victims. Many of the U-visa applicants have been victims
of domestic violence or unfair employment practices. To date the U-visa
program has worked with approximately 24 individuals in Alaska. However,
many more individuals in the state may be eligible for this visa. It is
critical that local law enforcement officers, investigators and prosecutors
understand the VTVPA so that they can provide immigrant crime victims
with this essential information regarding their safety and protection.
Congress has clearly expressed its intent
to ensure that immigrant victims of crime receive protection and safety
regardless of their immigration status. In Alaska, local law enforcement,
prosecutors and judges can encourage immigrant crime victims to come forward
and seek protection and safety and to assist in the investigation and
prosecution of crimes by understanding the immigration remedies made available
by VAWA and the VTVPA.
Robin Bronen is the director of the Immigration and Refugee Services Program at Catholic Social Services.
Working of U-Visa Process for Immigrant Crime Victims
The following two cases, in which names and other identifying details have been obscured, illustrate the interaction of authorities with immigrant crime victims under the federal legislation described in the accompanying article.
An attorney on behalf of N.G. contacted Officer T. of the Anchorage Police Department to request that the officer complete the U-visa certification form because Ms. G. had been the victim of domestic violence. Several weeks prior to the attorney’s contact with Officer T., Ms. G. had called the police because her husband was assaulting her. Officer T. verified from police records that the police officers that arrived at the scene had filed a report on the domestic violence incident. He determined that the activity at issue related to a violation of Alaska criminal law and completed the U-visa certification form.
* * *
Because it was believed that a business
was employing undocumented workers, the Department of Homeland Security
(DHS) conducted a raid. After the raid, DHS realized that the workers
had been forced to work under slave-like conditions, including 14-hour
days seven days each week. The workers were not being compensated for
their work, with the employer threatening to report them to DHS if they
complained.
DHS referred the case against the employer
to the U.S. Attorney. Several weeks later, an attorney for several of
the undocumented workers approached the U.S. Attorney’s office to
request completion of the U-visa certification form. The U.S. Attorney
verified that a crime of peonage had occurred and that the undocumented
workers were cooperating with the criminal investigation and prosecution.
The attorney completed the U-visa certification form.