Barriers Faced by Immigrant Crime Victims

Transcription

1 U Visas for Immigrant Victims of Crime Valerie Hink, Southern Arizona Legal Aid x 4124 Brea Burgie, Asylum Program of Arizona bburgie@css-az.org Southern Arizona Battered Immigrant Women Project

2 Introduction to Immigration Status U.S. Citizen by birth or naturalization or acquired/derived Lawful Permanent Resident (LPR) has a green card LPRs may apply for U.S. citizenship after 3 or 5 years Two major categories of documented ( legal ) non-citizens: Nonimmigrant limited time, specific purpose Immigrant may apply for lawful l permanent residence Undocumented immigrants (AKA illegal alien ): May have entered illegally May have entered with valid document then overstayed Deferred Action Status undocumented but a low priority for removal (approved U visa interim relief, self-petitioners)

3 Barriers Faced by Immigrant Crime Victims Lack of knowledge and/or misinformation about the U.S. legal system Fear and mistrust of the police and courts Fear of arrest, detention, deportation by immigration i authorities Fear of separation from US citizen children Social isolation: different language, culture Lack of ID, employment authorization, SSN Financial dependence on abusive partner

4 Legislative History Violence Against Women Act (VAWA) 1994 Federal recognition of domestic violence, sexual assault and stalking Funding for services for criminal justice reform and victim safety Protection ti for immigrant i victims of domestic violence: VAWA self-petition for abused spouses and children of USCs and LPRs Victims of Violence and Trafficking Protection Act (VTVPA, or VAWA 2000) Expanded access to self-petitioning for abused spouses and children Created U visas and T visas for victims of certain crimes VAWA 2005 Broader protections for self-petitioners, U and T visa applicants Parents abused by adult USC children may file VAWA self-petitions

5 Legal Authority for U Visa Statute: INA 101(a)(15)(U) 8 USC 1101(a)(15)(U)) U visa regulations effective 10/17/ Federal Register Vol. 72, No USC 1367 Confidentiality USCIS Guidance Memoranda (

6 Purpose of the U Visa Crime victims without legal immigration status may be reluctant to help in the investigation or prosecution of criminal activity for fear of being removed from the U.S. The U visa was created to strengthen the ability of law enforcement agencies to investigate and prosecute designated serious crimes while offering protection to victims of such crimes. The U visa provides a mechanism for victims who assist in investigation i i and/or prosecution of crimes to remain in the US and obtain legal immigration status - USCIS Stakeholder Training, August 2008

7 Dual Purposes of U Visa Law Enforcement Purpose: Overcome immigrant victims fear of deportation Encourage reporting of crimes and cooperation from victims Humanitarian Purpose: Protect vulnerable victims Help domestic violence and other crime survivors - Victims of Trafficking and Violence Prevention Act, Section 1513

8 U Visa Regulations and U Visa Interim Relief U Visa created by VAWA 2000, but no regulations until 2007 Until 10/17/07, USCIS accepted applications for U Visa Interim Relief from immigrant victims who appeared eligible for U Visas U Visa regulations took effect 10/17/07 Regulations defined requirements, published forms U visa applicants file Form I-918, derivatives file Form I-918 -A Law enforcement certification on Form I-918 Supplement B People granted U visa interim relief must file I-918 but not I-918 B; original law enforcement certification is sufficient Annual cap of 10,000 U Visas (excluding derivatives)

9 U Visa Requirements Applicant is the victim of a crime listed in the U visa statute Applicant has suffered substantial physical or mental abuse as a result of having been a victim of the crime Applicant (or if under 16, parent, guardian, or next friend) possesses information concerning the crime Applicant (or parent/guardian) has been helpful, OR is being helpful, OR is likely to be helpful in the future in investigation OR prosecution of the crime Law enforcement must certify victim s helpfulness

10 U Visa: Mental or Physical Abuse Definition: Injury or harm to the victim s physical person, or harm to or impairment of the emotional or psychological soundness of the victim. - USCIS Memo: March 27, 2008

11 U Visa: Mental or Physical Abuse Applicant must demonstrate: Nature and Severity of Injury Inflicted Severity of Harm Suffered Includes aggravation of existing condition Severity of Perpetrator s Conduct Duration of Infliction of Harm Includes Pattern of Abuse (esp. DV) Extent to Which There is Permanent or Serious Harm to Appearance, Health, Physical or Mental Soundness

12 U Visa: Listed Crimes Rape Torture Trafficking Incest Domestic violence Sexual assault Abusive sexual contact Prostitution Sexual exploitation ti FGM Being held hostage Peonage Involuntary servitude Slave trade Kidnapping Abduction Unlawful criminal restraint False imprisonment Blackmail Et Extortion ti Manslaughter Murder Felonious assault Witness tampering Obstruction of justice Perjury Attempt, conspiracy or solicitation of alisted crime or any similar il criminal i activity it

13 U Visa: Listed Crimes Not a list of specific statutory violations; list of general categories of criminal activity May occur during commission of non-qualifying criminal activity (e.g., embezzlement e e investigation) Any similar activity may be a qualifying crime, i.e., the nature and elements of the crime are substantially similar to listed crimes (e.g., sexual exploitation ti and video voyeurism) Applicant must provide evidence showing how the criminal activity of which he/she is a victim is substantially similar to one of the listed crimes - USCIS Stakeholder Training, August 2008

14 U Visa: Definition of Victim Direct Victims: Victim suffers direct and proximate harm as a result of the criminal activity Bystanders qualify if they suffer unusually direct injury (e.g., pregnant women) Indirect Victims: Murder and manslaughter (indirect victim may be surviving child, parent or spouse) Also, obstruction of justice, witness tampering and perjury

15 U Visa: Knowledge of Crime Victim (or if under 16 or incapacitated, parent/guardian/next friend) must possess specific facts about crime that will assist investigation and/or prosecution Look at the victim s age as of the date the crime occurred Next Friend Person who acts for the benefit of an alien who is under 16 or incompetent or incapacitated person Not a party to legal proceeding and not appointed guardian Cannot qualify for U visa on own simply on this basis - USCIS Stakeholder Training, August 2008

16 U Visa: Helpfulness Requires that the victim either: has been helpful OR is being helpful OR is likely to be helpful In either: investigation of the criminal activity OR prosecution of the criminal activity AND victim has not refused a reasonable request for cooperation (if the case is still open)

17 U Visa: Continuing Helpfulness Applicant may not refuse a reasonable request for information before or after U Visa application is granted No affirmative requirement of continuing assistance; if investigation or prosecution is closed, continued helpfulness is not required Law enforcement can withdraw certification if victim later unreasonably refuses to cooperate Most law enforcement agencies interpret helpfulness: As helpful as s/he was able

18 Roles: Law Enforcement and USCIS Law Enforcement Role - Certification that a crime occurred that applicant was a victim that victim was/is/may be helpful USCIS Role Adjudication of Eligibility Applicant suffered substantial abuse Applicant is admissible

19 U Visa: Helpfulness No time limits on when victim cooperates Was helpful requirement Crime can have happened before 2000 Investigation or prosecution may be over USCIS Memo (Oct 8, 2003): The fact that the criminal activity occurred a number of years prior to the current request or that the case in which h the applicant is the victim is closed is not a determinative factor at this stage. The statue contemplates that a person may be eligible for U nonimmigrant status as a result of having been a victim of a crime that occurred at some point in the past.

20 U Visa: Helpfulness No requirement that perpetrator be arrested, cited or prosecuted is likely to be helpful requirement applies only to ongoing cases Reporting the crime or giving a statement to police or prosecutor is sufficient to be helpful

21 U Visa : LE Certification I-918 Supplement B Requires certification by law enforcement that: Applicant was a victim of criminal activity Victim (guardian/next friend) possesses information Victim was OR is being OR is likely to be helpful Victim has not refused reasonable request to cooperate Certification confirms basic information about the crime and the identity of the victim, and that the crime occurred in the United States or violated U.S. law

22 U Visa : LE Certification Who can sign form I-918 Supplement B? Federal, state, or local law enforcement agency Police officer, detective, prosecutor, judge Anyone with responsibility for detection, investigation, prosecution, conviction, or sentencing of the perpetrator of the criminal activity Signer may be head of agency or designee Best practice: Have a policy in place for who will sign certifications Date of signature on I-918 Supplement B must be within 6 months of date of filing U visa application

23 U Visa Applicants may include Family Members ( Derivatives ) Applicant files I-918-A for each eligible family member: Adult victims can include spouse and children (unmarried & under 21) Child victims (under 21) can include parents and siblings under 18 Relationship must exist at the time victim files I-918 No LE certifications required for derivatives Applicant cannot include a family member who committed the crime on which the U visa application is based

24 U Visa : USCIS Adjudication Applicants and derivatives must disclose all arrests, charges, and convictions (even traffic tickets) Applicant and derivatives with inadmissibility issues (criminal or immigration history) must apply to USCIS for a waiver of inadmissibility on Form I-192 Waiver is discretionary but may cover any inadmissibility grounds except terrorism or persecution USCIS is taking more than 12 months to issue decisions on U visa applications

25 Benefits of an Approved U Visa Receive a U non-immigrant visa (legal permission to remain in U.S.) valid for 4 years; may be extended Employment authorization valid for 4 years May apply for LPR status (a green card) after 3 years; regulations issued January 2009 Derivatives receive same benefits as applicant/victim

26 USCIS Adjudication: ADMISSIBILITY USCIS determines whether applicant is inadmissible to U.S. Applicants submit fingerprints to USCIS Inadmissibility grounds in Immigration Act: criminal convictions immigration violations threats to public health or national security Applicant may seek discretionary waiver USCIS weighs positive/negative factors

27 CONSIDERATIONS IN CREATING U VISA CERTIFICATION POLICY U Visa can be used as a tool to: Identify and prosecute criminals Encourage reporting of crime Overcome obstacles to victim cooperation Provide humanitarian relief

28 ADVANTAGES OF BROAD USE OF CERTIFICATIONS For certifications of past crimes, crimes not prosecuted, and crimes without arrests: Victim services: helps victims rebuild lives Encourages victims to report crimes in future Track record of U Visa certifications creates community confidence in police, climate of cooperation with law enforcement, promotes community safety

29 PARTNERSHIPS FOR EFFECTIVE USE OF U VISAS Law enforcement confidence fd in system is key Nonprofits want to prevent abuse of the U Visa system Working with nonprofits reduces opportunities for notarios or bad attorneys to submit fraudulent applications Nonprofits can facilitate victim communication and cooperation with law enforcement

30 PARTNERSHIPS, continued Nonprofits want to work with law enforcement to develop protocols for obtaining U visa certifications Nonprofits seek communication with law enforcement regarding criteria for U visa certifications Nonprofits can provide relevant victim support services to immigrant victims

31 LOGISTICAL ISSUES LE generally prefer that requests come from advocates, not directly from applicants/victims Include police report or court records with certification request, or explain if unavailable Ways to minimize burden on certifying officer(s) Make requests by or by letter? Nonprofits can pre-complete form for LE signature Nonprofits can train officers and community groups

32 U Visa Resources Additional information about U visas: USCIS U Visa Fact Sheet 9/5/2007 Instructions for INS Form I-918 Instructions for Form I-918 Supplement B

33 U Visa Immigration Services in Southern Arizona SOUTHERN ARIZONA LEGAL AID, INC. Tucson: 2343 E. Broadway (520) Nogales: 1071 N. Grand Ave (520) Bisbee: 2 Copper Queen Plaza (520) ASYLUM PROGRAM of AZ - VAWA PROJECT Tucson: 140 W Speedway (520) Pinal, Santa Cruz, Cochise, Yuma: By referral

34 U.S. Department Of Justice Rural Domestic Violence and Child Victimization Grant 2008-WR-AX-0036