Improving Access to f Justice Justic or Immigrant Survivors of Domestic Violence Florida Domestic Violence Hotline: A Guide for Service Providers

Transcription

1 Improving Access to Justice for Immigrant Survivors of Domestic Violence Florida Domestic Violence Hotline: TDD Florida Relay 711 A Guide for Service Providers

2 Introduction Domestic violence survivors face many challenges when attempting to obtain safety and recover from abuse. Survivors who are immigrants to the United States face additional barriers that make obtaining safety and security difficult. This guide is intended to provide an overview of domestic violence issues specific to immigrants and how immigrant survivors can be identified, accompanied through the legal system, and access options for safety and stability for themselves and their children. This guide should not be used as an instructional manual, nor should it replace the advice of a qualified professional. Index Ensuring Program Accessibility for Immigrant Survivors Pg. 2 Screening for Domestic Violence Pg. 3 Domestic Violence Against Immigrants Pg. 4 Immigrant Survivors Eligibility and Rights Pg. 5 Federal Agencies Pg. 6 Immigration Protections for Immigrant Survivors Pg. 7-8 Best Practices for Law Enforcement and First Responders Pg. 9 Best Practices for Advocates and Attorneys Pg. 10 Immigrant Survivors and Safety Planning Pg. 11 Civil Injunctions Pg. 12 Immigrant Survivors and Children Pg. 13 Coordination and Collaboration for Successful Outcomes Pg Resources Pg. 15

3 Ensuring Program Accessibility for Immigrant Survivors When working with immigrant survivors, it is essential to LISTEN to survivors to understand their experiences. This may include: family history, values, customs and traditions, community, immigration history, and current reality. DEVELOP a relationship of trust and respect with survivors. UNDERSTAND that the process may be lengthy. BE AWARE of your own beliefs, values, prejudices, and biases, and how the survivor may perceive your role as a system partner. KNOW the immigrant communities in your service area. BE CONSCIOUS of the influence or pressure family, friends, religious leaders or immigrant communities may have on survivors. As an organization, you can EXAMINE your policies and protocols to determine if they create or impose additional barriers for immigrant survivors to access services. PROVIDE materials and information in the languages of the populations in your service area. HIRE staff and recruit volunteers from the populations served, or with language skills that represent the population. HAVE procedures in place for handling translation needs. COLLABORATE with immigrant community agencies to provide organization-wide trainings about culturally-specific matters. Promote an open and friendly environment where staff can discuss concerns about how to better serve immigrant survivors. Ensure websites have information available in the most common languages spoken in the community. Be present in the community by attending and participating in community events. In your role, you can IDENTIFY attorneys in your community with experience in immigration and domestic violence who are willing to provide legal services free-of-charge or at a low cost. ASSIST survivors with gathering the necessary documentation to support their immigration applications. CONDUCT safety planning that includes special immigration-related factors to prevent further victimization by the abuser or the assistance process. SUPPORT immigrant survivors through the process of writing case statements necessary to apply for immigration benefits. ADVOCATE for immigrant survivors when they are unable to navigate governmental and service provider systems. CONSULT community partners who may be assisting immigrant survivors to connect survivors to immigration benefits. EDUCATE community partners, including law enforcement, about immigration protections for survivors. COLLABORATE with immigration attorneys to secure immigration benefits. 2

4 One night when I was sleeping he placed a pillow over my head. I couldn t breathe, then he let go and started laughing. He said it was a joke. - Lidia, from South America Many nights, I would get home exhausted from cleaning houses and he would force me to have sex with him. A lot of times he was rough while having sex. I would ask him not to be so rough but he would tell me that I was his and he could do whatever he wanted. - Jacqui, from Colombia Screening for Domestic Violence Domestic violence is a pattern of controlling behaviors that may include physical, sexual or emotional abuse. It can cause serious physical and emotional harm in adults and children. Questions to ask the survivor to help open the dialogue about Domestic Violence You may be experiencing domestic violence if your partner is doing any of these or other unwanted behaviors: Kicks, pushes, hits, slaps, spits, burns, cuts, or commits other physical acts towards you Curses, yells or calls you names Threatens to kill you, someone you love, or your pet Punches walls, breaks/throws things or drives dangerously to scare you Forces or coerces you to have sex or other unwanted sexual acts Forces or coerces you to have sex with others Controls your sexual health, birth control options and family planning Abuse isn t always physical, it can also include: Controlling all or most of your money or resources Extreme jealousy or possessiveness Threatening to take your children or not allowing you to see them Isolating you from family or friends Not allowing you to get medical help or social services Threatening to have you deported or lying about your immigration status Hiding or destroying your important documentation, such as your passport, identification, birth certificate, etc. Monitoring where you go Calling you names, putting you down or embarrassing you in front of others Prevents you from learning English Domestic violence is a crime and a choice made by the batterer. 3

5 You better not call the police again because I will take those kids away from you, remember you don t have papers. All I have to do is make an anonymous call to immigration and the police and they will take you away. - Mayra, from Peru The police never asked me what had happened, they arrested me solely on the statements of my husband and his mother. The officer told me You will be arrested for domestic battery. You are a grown-up woman and this is the life you have chosen, so stay with it or go back to China. - Mei, from China Domestic Violence Against Immigrants Abusers use many tactics of power and control over victims, such as physical and emotional abuse. Immigrant survivors may also be subjected to abuse that takes advantage of their cultural, linguistic, and immigration-related differences. Abusers may manipulate and distort beliefs held by the immigrant survivors themselves. Immigrant survivors may Believe that contacting law enforcement will lead to being detained and/or deported. Fear losing their immigration status. Believe that, if they don t have immigration status, they will lose custody of U.S. citizen children. Fear that the abuser will kidnap children and take them to another country. Worry that reporting abuse may lead to the abuser s deportation. Fear that the abuser will retaliate against family members in their home country. Fear retaliation, isolation, or stigmatization by family and community members. Lack knowledge of legal and social systems. Not be able to access services due to limited English proficiency (LEP). He began forcing me to give him the money that I earned. He did not want the checks, he made me give him the cash. He said it was for the household expenses. When I didn t make enough money to cover all the expenses, he would scream at me and tell me that he did not care where I got it from but I had to give him enough to cover all the household expenses. If not, I would have to deal with the consequences. You know what will happen to you! and what would happen would be the beatings and the insults. - Mayra, from Peru 4

6 Immigrant Survivors Eligibility and Rights After the incident there were six other reports to the police. The police told me that even if I don t have papers I can still call the police. I don t have to be afraid of them. They said they don t have anything to do with immigration. They said domestic violence is a crime and no one has a right to hurt me physically or emotionally. - Claudia, from El Salvador Regardless of their immigration status, survivors have the right to: Call the Florida Domestic Violence Hotline to receive confidential help Receive free counseling and supportive services Receive help to understand the legal system Learn about legal options including immigration issues related to domestic violence Access the criminal courts for justice and receive a no contact order against the abuser File an Injunction for Protection petition at no cost File a petition for custody of their children Receive confidential emergency shelter for the survivor and their children Police protection and assistance Public benefits for U.S. citizen children Financial assistance with relocation Victim s Compensation Immigration protections under immigration laws Services in their own language Certain governmental and non-governmental agencies receiving federal funding must provide language access to survivors. 5

7 Federal Agencies Involved in Assisting Immigrant Survivors include Federal Agencies Department of Homeland Security US Citizenship & Immigration Service (USCIS) Processes applications for Immigration Benefits Immigration and Customs Enforcement (ICE) Enforces Immigration Laws Customs and Border Patrol (CBP) Present at Airports and Borders Department of Justice Department of Health and Human Services Executive Office of Immigration Review (EOIR) Conducts Immigration Court Hearings Office for Victims of Crime (OVC)* Manages benefits for victims of human trafficking Manages Trafficking and Asylee/Refugee Benefits The Department of Homeland Security (DHS) is prohibited from conducting enforcement activities in: shelters; rape crisis centers; supervised visitation centers; family justice centers; victim services programs; and courthouses in connection with protection orders, child custody, civil or criminal cases involving, or related to, domestic violence, sexual assault, trafficking, and stalking. * OVC Distributes funding for state victims compensation benefits 6

8 Immigration Protections for Immigrant Survivors Immigrant survivors of domestic violence, sexual assault, human trafficking, or other violent crimes may be eligible to apply for several immigration benefits which may ultimately allow them to seek United States citizenship. Two examples are the following VAWA Self-Petition: for spouses, minor children (in some cases up to 25 years old), and step-children (if parents marriage took place before 18th birthday) of lawful permanent residents or U.S. citizens, and parents of adult U.S. citizens, who have been emotionally or physically abused in the United States, its territories or by an employee of the U.S. government or in the armed forces, can self-petition (without sponsor) for immigrant visa and lawful permanent residence. U Visa Eligibility: non-immigrant visa for victims of certain violent crimes, including domestic violence, sexual assault, stalking, and kidnapping, who have been, are or will be helpful in the investigation and/or prosecution of the crime. Four-year visa allows for work authorization and may apply for lawful permanent residence after three years. VAWA Self-Petition Eligibility U Visa Eligibility Current intended spouse or less than two years from final divorce and children up to age 25 of lawful permanent resident or U.S. citizen Victim of specific criminal activity in U.S. and its territories, or which violated U.S. laws Parent of U.S. citizen (abuser over 21 years of age) Suffered substantial mental or physical harm Subjected to battery or extreme cruelty Has information about the crime Resided with abuser Who has been helpful, are helpful, or will be helpful in the investigation and/or prosecution of the criminal activity Petitioner spouse married in good faith Provide a certification signed by the law enforcement agency detecting, investigating and/or prosecuting the crime Good moral character Is admissible to the United States 7 2 Most applications are protected under confidentiality laws preventing the Department of Homeland Security (DHS) from disclosing any information.

9 Immigration Protections for Immigrant Survivors (continued) Additional examples include Battered Spouse Waiver for spouses and stepchildren of U.S. citizens with conditional residency (a 2-year permanent residence card). VAWA Cancellation available in Immigration Court proceedings. Similar to VAWA Self-Petition, but must show extreme hardship to self or U.S. citizen/lawful permanent resident children. Asylum for survivors fleeing domestic or sexual violence in their home country. Special Immigrant Juvenile Status (SIJ) for unaccompanied minors in the U.S., who have been abused, abandoned or neglected by one parent. Must get order from dependency court. T Visa for survivors of severe forms of trafficking, including forced labor and commercial sex acts. Immigrant survivors may be eligible for special waivers in order to access immigration protections. Always consult a knowledgeable immigration attorney in domestic violence and sexual assault cases. If an immigrant survivor has a history of any of the situations below, it may compromise their eligibility for relief: Said they were a U.S. citizen for work or for immigration purposes Committed fraud or misrepresentation to obtain an immigration benefit, including document fraud Criminal charges or convictions Previous deportation orders Mutual protection orders Been involved in terrorist activity or been restricted on security-related grounds International child abduction cases against him/her Voted unlawfully Been involved with drugs or prostitution Committed polygamy Immigrant survivors in Florida with certain immigration protections can obtain the following Driver s License Work permit Lawful Permanent Residence Public Benefits 4 VAWA (some) U Visa T Visa SIJ Asylum Public benefits rules are state-specific. U visa applicants may be eligible for public benefits in other states. 8

10 Best Practices for Law Enforcement and First Responders When the police arrived I opened the door and told them that he was upstairs. They called him down and he came down the stairs. They took him outside. I explained to them that he had beaten my son with the belt and my son still had the bruises. I told them that after I called the police he beat me. The officer only asked me for my name and date of birth. After the police left he came into the house and smiled and said, See? The idiots are not going to do anything to me. You better not call the police again. - Pilar, from Venezuela If a first responder is trained to work with survivors, and responds in a culturally sensitive manner, it may help victims trust the first responder and feel safe enough to participate in the criminal prosecution. When assessing a situation, it is helpful to Speak with the person claiming to be the victim apart from the abuser (through a trained interpreter, if necessary). Tell the victim that her/his immigration status is not relevant when seeking protection from the abuser. Provide referrals to all service providers in the community, including assistance with immigration representation. Assist the victim in retrieving all of her/his documents before the abuser gets a chance to destroy them. Be careful what comments you make to the victim; saying things such as Go back to your country, even if meant well, will undermine the victim and validate what the abuser has repeatedly told the victim. When the police arrived, they went inside the apartment and it was a mess. I saw my passport in little pieces and I could not believe he had destroyed my only identification. The police kept asking me questions, but I could not really answer. I was so afraid thinking my kids were gone and I was not able to do anything. - Ofelia, from Mexico 9

11 Best Practices for Advocates and Attorneys He never thought that I would call the police. He always thought that I could not survive without him. That night, the police took pictures and arrested Miguel. Later I learned about places where I was able to find help. They paid for a hotel room for me and my three children. They provided dinner for us and coupons to buy food. I did not have any money at all. I went to court and obtained an indefinite restraining order. - Funanya, from Africa An advocate can Explain how the legal system functions in the United States. Support immigrant survivors in their decision-making throughout their involvement with the criminal justice process. Explain your responsibility as a mandated reporter and how that may affect their families. Explain the difference between a civil protective order and a no contact order and the role of each one in a safety plan. When immigrant survivors have to navigate the criminal justice system they may not Understand how the legal system functions in the U.S. Understand the role of law enforcement or the role of the prosecutor. Differentiate between the criminal case and the civil injunction case, making it more difficult for them to participate. Feel they can safely testify against the abuser in criminal court. Decide to participate in the investigation and/or prosecution of the case against the abuser. When immigrant survivors find themselves navigating the civil legal system They may not understand how the legal system functions in the U.S. They may not be aware that immigration status should not be a factor when determining eligibility for an Injunction for Protection in civil court. They should be made aware that the determining factors for granting a civil injunction are whether the survivor is a victim of violence or in imminent danger of violence by the abuser. We should understand that many survivors fear deportation, which prevents them from seeking protection from the courts and the police and we should work towards making the services available to them in a culturally sensitive manner. Survivors often times fear testifying against, or facing, the abuser in court. 10

12 Immigrant Survivors and Safety Planning I feel safe here in the United States because after so much abuse in Colombia nothing was done to prevent him from hitting me or mistreating me again. The only place I found justice has been here in the United States where he has been apprehended. I know if he comes to me in the future with threats to hurt me, I will find a response from the police. This makes me feel that I finally live in a place where I feel safer than in Colombia. - Jacqui, from Colombia Safety considerations for someone experiencing domestic violence Should you decide to leave your relationship: Planning may increase your safety. For some, leaving can be very dangerous and should be planned carefully. Ask a domestic violence advocate about: Filing an Injunction for Protection petition at no cost Planning for safety Helping you understand the legal system Free confidential counseling and support Staying at a free domestic violence shelter or other safe place Other available services that you and your children may need Leaving an abusive partner can be very dangerous. Consider making a plan with a domestic violence advocate. If you stay in your relationship, you may want to consider the following: Notifying someone you trust about the abuse Getting help from your local Certified Domestic Violence Center Making a plan for safety or for escape Teaching children how to escape or get help Planning for safety is important whether the relationship continues or ends. There are people who can help. 11

13 Civil Injunctions Civil Injunctions Civil Injunctions for Protection, also called retraining orders, may help to enhance a survivor s safety by restricting the abuser s contact with the survivor. For survivors, injunctions May protect survivors from further abuse and may contain provisions helping them free themselves from the abuser. May contain provisions placing minor children in the custody of the non-abusive parent, regardless of immigration status, and preventing the abusive parent from removing the children from the jurisdiction. For immigrant survivors, the civil injunction hearing may also Help the survivor prove abuse in an application for immigration relief under VAWA if there is a finding of abuse on the hearing record. State the abuser s immigration status on record. Provide testimony under oath which can be used to prove the survivor and the abuser resided together. Allow the survivor or his/her attorney to ask the judge to order the abuser to relinquish the survivor s passports, country-specific identity documents, birth certificates, immigration-related receipts, work authorizations, social security cards, or any other documents of importance. Allow the Court to enjoin the abuser from contacting the survivor s family. This may prevent the abuser from exerting control over the survivor; either by threatening harm to family in the country of origin or using them to influence the survivor s decision-making. Immigrant survivors seeking an injunction or any relief in civil or family court should not be obligated to disclose any information of VAWA immigration relief for which they have applied. VAWA, U Visa, T Visa, and Battered Spouse Waiver applications are protected by VAWA Confidentiality provisions. When immigration status is raised in the proceedings, it is done with the intention of prejudicing the decision-maker. 12

14 Immigrant Survivors and Children He would tell me to get out of the house that I would never see the baby again. - Roshmi, from India My children have witnessed and have been victims on many occasions of physical abuse themselves by Victor, but equally damaging for them have been that they have witnessed for so many years all the physical, mental and verbal abuse from Victor towards me. There were times that I felt he hated me. But I was not strong enough to step up for myself and put an end to what he was doing to me. Because he was the one working and supporting all of us, he had total control of our lives. So I kept delaying my departure and now I realized that because I had no financial control. I did not have the strength to leave him, what could I do, where could I go with my children if I decided to escape? - Griselda, from Mexico Immigrant Survivors and Children Effective advocacy in Family Court can help a survivor become free of an abuser. Divorce, Custody, and Support When advocating for an immigrant survivor s custody of minor children, a child s best interest and safety is the most important factor Immigrant parents have a constitutional right to custody of their children regardless of immigration status, absent a finding of unfitness. There is an overriding presumption that the Parent-Child relationship is constitutionally protected. The child s best interest standard applies to all families regardless of immigration status, immigration detention, or deportation. All credible evidence of physical abuse by the spouse should create a statutory presumption that it is detrimental to the child to be placed in the custody of the abusive spouse. Factors to establish what is in a child s best interest Who has been the primary caretaker? Who has been primarily responsible for the child s education and healthcare? Is there a history of abuse/sexual assault by one parent against the other? How were decisions made regarding the child? Factors that can have traumatic effects on children The abuser threatens deportation. The abuser threatens to remove children to the home country; children may view this as a threat to stability. Some considerations for successful outcomes Ensure that immigration status is not a determining factor in any court decision affecting the survivor. Advocate for permanent, meaningful child support for minor children. Advocate for alimony or spousal support, which may give the survivor the opportunity to learn English and obtain skills to find meaningful employment. Advocate for the Court to enforce the I-864 Affidavit of Support if the survivor obtained immigration status through the abuser. Advocate for the survivor to gain access to property or assets purchased during the marriage. These may have been purchased with the survivor s funds (regardless of whether the survivor worked legally). 13

15 Coordination and Collaboration for Successful Outcomes My daughters deserve a better life; they are wonderful human beings who deserve a mom ready, willing and able to guide them through this wild journey called life. My daughter is receiving therapy. We are achievers and we are going to overcome all the obstacles. I thank all the agencies and their members for every second of their time, for listening to our pains and struggles, for understanding us and offering us help and hope. - Ana, from Mexico Collaboration enhances coordination The single most important concern should be the safety of the survivor and the survivor s children. Safety planning should be conducted every time the survivor s situation changes, as significant changes in her situation may increase risk and safety options. A survivor will encounter multiple systems and professionals across several disciplines on the path to safety and recovery. These system partners may include Law enforcement Prosecutor s office Criminal Court personnel Victim advocates Medical personnel Civil and Family Court personnel Attorneys for civil and family court Immigration attorneys Therapists Government agencies Collaboration among providers helps to ensure that Emergency needs are met, enabling the survivor to focus on the long-term process. Survivors access community resources which can make a difference in their lives. Survivors pursue protections available under the law. Survivors seek justice. Ever since I got my working permit, it opened doors for me. I have better job opportunities. I can be a good example to my sisters and brothers by showing them that if you work hard enough you can accomplish anything you strive for. We came to this country to improve our lives. I want to prove to everyone that doubted our family, wrong. I want to prove that as long as you give your all you can succeed no matter how many struggles you face. I try to be a strong young woman by helping my family in what I can. Through the obstacles that my family faces, becoming a resident will expand our options to prosper and exceed. - Maritza, Young Adult Survivor of DV Collaboration among system partners must comply with applicable Federal and State survivor confidentiality laws. 14

16 Resources 15 Florida Florida Domestic Violence Hotline TDD Florida Relay VIDA Legal Assistance, Inc National National Domestic Violence Hotline SAFE (7233) or TTY Office of Violence Against Women National Coalition Against Domestic Violence or TTY National Network to End Domestic Violence ASISTA National Resource Center on Domestic Violence x5 TTY National Immigrant Women s Advocacy Project Office for Victims of Crime National Human Trafficking Hotline Text INFO for Help Be Free (233733) Reserved for local agency

17 Sponsored by FCADV and the State of Florida, Department of Children and Families. This project was supported by Contract No. LN966 awarded by the state administering office for the STOP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the state or the U.S. Department of Justice, Office on Violence Against Women. Cover art and Graphic design by Phildzigns LLC Your one stop design shop!