The Unique Hurdles Immigrant Crime Victims Face

Transcription

1 The Unique Hurdles Immigrant Crime Victims Face June 8, 2012 Presented by: Sherilyn Holcombe Waxler, Waxler Immigration Law LLC 1

2 Types of Immigration Status U.S. citizen (USC) - U.S. citizenship may be obtained by birth in the United States, descent, or naturalization Lawful Permanent Resident (LPR) - Resident card a.k.a. green card holder Other documented immigrants and non-immigrants Undocumented immigrants 2

3 Other Documented Immigrants and Nonimmigrants Employment Authorization Document (EAD) holders (EAD may be based on pending application for residency, deferred action, asylum, U visa, T visa, Temporary Protected Status, an application in removal proceedings etc.) Work related visa holder (limiting who an employee may lawfully work for) (examples include, H, L, J, E, O, P) Visitor with a visa that does not allow for employment (examples include B-1 (visitor), F-1 (student)) Visa waiver entrant (no right to removal proceedings) 3

4 Undocumented Immigrants a.k.a. illegal aliens Includes: - Entered without inspection or admission - Entered with a visa or visa waiver, but overstayed - Entered with a visa or visa waiver but violated terms of stay If encountered by US Immigration and Customs Enforcement (USICE) undocumented immigrants may be placed in removal proceedings or in the case of a visa waiver entrant removed without hearing 4

5 Some Immigration Law Basics Under the immigration laws of the United States, immigration to the United States usually requires that an immigrant have either a family member or an employer petition for them. Spouses and children under 21 of USCs are considered immediate relatives and immediately eligible for a visa. There are four additional categories of family-sponsored immigrants: unmarried sons and daughters of U.S. citizens who are over 21, the spouses and unmarried children of lawful permanent residents (including both children under 21 (2A) and unmarried over 21 (2B), married sons and daughters of U.S. citizens and brothers and sisters of U.S. citizens. In each of these categories, the family-sponsored immigrant must wait for an immigrant visa to become available. In certain cases employers may petition for an immigrant visas (i.e. residency) in five different categories for immigrants, and temporary visas for nonimmigrants 5

6 Immigration Law Basics cont d The U.S. Department of State issues a visa bulletin each month, listing the immigrant visa availability in each of the categories for that month. The wait times are extremely long especially for immigrants who were born in countries with high rates of immigration to the United States, including Mexico, China, India, the Dominican Republic, and the Philippines. Since immigrants often rely on a family member or employer to obtain or retain lawful immigration status, the immigration laws of the United States may be manipulated by unscrupulous family members or employers for improper or criminal purposes All immigrants and nonimmigrants must be admissible to the United States, or obtain a waiver of inadmissibility. For many grounds of inadmissibility no waiver is available, or waivers are difficult to obtain and available only to immigrants who fall into certain categories. 6

7 Specific Barriers to Reporting for Immigrant Victims of Crime Documented and undocumented immigrants may fear reporting crimes against them if they too have committed violations of criminal or immigration laws that could result in their detention and/or removal Documented and undocumented immigrants may fear potential immigration consequences to the perpetrator of the crime, which could further harm victim Undocumented immigrants are often afraid of coming to the attention of law enforcement in any capacity due to the risk of detention and removal Criminals or abusers or their agents may threaten immigrants on account of their immigration status Examples: Threatening to withdraw a petition filed on behalf of immigrant Threatening to take children from immigrant due to their unlawful status Threatening to turn immigrant into USICE Threatening to bring criminal charges against immigrant that would result in their detention and deportation 7

8 Detention Issues Any undocumented immigrant with an ICE hold will be placed in detention upon release from state custody regardless of the outcome of any criminal charges. Anyone who admits to birth abroad is likely to be given an ICE hold. Mandatory detention: immigrants convicted of certain crimes are subject to mandatory detention while any application for relief is pending. Immigrants are entitled to counsel only if they have the resources to pay for counsel or are able to secure pro bono counsel which is extremely challenging for an individual who is detained. No free lawyers are provided for anyone INCLUDING victims of crime and those who fear persecution in their home countries. 8

9 Detention issues cont d Immigrants may come to the attention of USICE in many ways (including based on tips by an abuser, being present when an individual with a prior removal order is found, going to pick up a spouse or child who is detained) US Immigration and Customs Enforcement Enforcement and Removal Operations (USICE) does not currently ask whether an immigrant has been a victim of crime. In some circumstances clients may be released from custody without bond by ICE (Recog. or ISAP), or after a bond redetermination hearing before the Immigration Court. USICE wants to be informed if an immigrant in their custody has been a victim of trafficking or a U visa crime, and may consider releasing the immigrant on their own recognizance. 9

10 Summary of Forms of Relief for Victims of Crime Forms of relief available to consider for victims of crime: U visa (for victims of certain crimes) T visa (for victims of trafficking) S visa Violence Against Women Act (VAWA) self-petition (if abuser is USC or LPR and spouse, parent, or adult child) VAWA Cancellation of Removal (if abuser is USC or LPR and spouse, parent or adult child) Special Immigrant Juvenile Status (SIJS) for children who have been abused, abandoned and neglected. Please note that this is just a few of the main forms of relief specifically applicable to victims of crime. Other options may include, but not limited to, asylum and withholding of removal, deferral of removal under the convention against torture, voluntary departure, cancellation of removal as a nonlawful permanent resident, adjustment of status, consular processing of immigrant visa), LPR cancellation of removal, and readjustment of status. 10

11 Trafficking and the T visa The T visa, was created to provide immigration protection to victims of a severe form of human trafficking. Human Trafficking Definition: 18 USC 1590 To knowingly recruit, harbor, transport, provide or obtain by any means, any person for labor or services in violation of the laws against peonage, slavery, involuntary servitude or forced labor. 11

12 T visa eligibility requirements: Present in the US, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking Complies with any reasonable request from a law enforcement agency for assistance in the investigation or prosecution of human trafficking Exceptions exist if application is under the age of 18, or unable to cooperate due to physical or psychological trauma Will suffer extreme hardship involving unusual and severe harm if removed from the US See INA 101(a)(15)(T).

13 The term severe forms of trafficking can be broken into two categories under Fed. law: Sex trafficking: recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act where the commercial sex act is induced by force, fraud, or coercion, OR the person being induced to perform such act is under 18 years of age. Labor trafficking: 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 involuntary servitude, peonage, debt bondage, or slavery. 13

14 U visa eligibility Victim of a statutorily-listed crime in violation of U.S. law or in territories/possessions Helpful in a criminal investigation or prosecution Crime must be investigated, but there is no requirement that perpetrator be prosecuted or convicted Must obtain law enforcement certification of helpfulness 14

15 U visa crimes 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 Attempt, conspiracy, or solicitation to commit any of the above mentioned crimes Other similar crimes 15

16 Additional U Visa Requirements Victim s must show immigrant suffered substantial physical or mental abuse Victim s must obtain waiver of any grounds of inadmissibility (waiver of almost all grounds of inadmissibility is available). INA 212(d)(14) Standard is any credible evidence INA 214(p)(4) 16

17 U & T visas and Inadmissibility Under U.S. Immigration Law U and T visa applicants may seek a waiver of inadmissibility to waive the application of almost all grounds of inadmissibility under US immigration law. Often encountered grounds of inadmissibility include: Entry without inspection Misrepresentation to gain an immigration benefit False claim to U.S. citizenship Criminal grounds Health related grounds Prior deportation orders No current passport or visa Public charge 17

18 Family Members U & T visa applicants may seek derivative visas for their spouse and children (under 21) as derivatives. In the case of a U or T visa applicants who are under 21, they may seek derivative visas for their spouse, children, parents and unmarried siblings (under 18). A U or T visa status holder may not petition for immigration status for the perpetrator of the crime upon which the U visa was granted. INA 204(a)(1)(L). 18

19 Residency for U and T visa holders After 3 years in valid nonimmigrant U or T status, an immigrant may seek to become a lawful permanent resident At that time, immigrant must submit evidence that they have continued to assist law enforcement by complying with any reasonable requests The USCIS preferred method of demonstrating continued helpfulness is a newly issued I-918B Law Enforcement Certification 19

20 Basics of I-360 Self Petitions Available to certain survivors of domestic violence who are battered or subject to extreme cruelty by USC or LPR spouse, child or parent In case of battered spouse or child, survivor must show that he or she resided with the abuser and was abused during the marriage Spouse must have entered the marriage in good faith Must be a person of good moral character Children may self-petition so long as they are under 21 and unmarried (or under 25 if they can demonstrate that abuse was related to filing delay) INA 204(a)(1)(D) INA 204(a)(1)(A)(iii), (vii) & B(ii)-(iii), 8 CFR 204.2(c), (e) 20

21 VAWA Cancellation of Removal Only available to immigrants in removal proceedings Applicant must show that he or she has been battered or subjected to extreme cruelty by USC or LPR spouse or parent (or is the parent of a child who has been battered by a USC or LPR parent) Must show 3 years of continuous presence in US prior to filing application (unless there is a connection between the absence and the battery or extreme cruelty: INA 240A(b)(2)(B)) Must show good moral character for 3 years prior to filing of application, and not be convicted of certain crimes (Unless act or conviction was connected to battery or extreme cruelty and waiver is appropriate: INA 240A(b)(2)(C)) Must show extreme hardship to applicant, applicant s child, or applicant s parents Children of abusive USC or LPR parent are eligible to apply even if they are over 21 or married Prior spouses of abusive USCs or LPRs may apply even if divorce was more than 2 years ago See INA 240A(b)(2) ; 8 CFR (c) 21

22 Special Immigrant Juvenile Status (SIJS) Children: Who has been declared dependent by a juvenile court in the U.S., or who has been place by such court in custody of a state agency or other individual or entity, and Whose reunification with one or both of his or her parents in not viable due to abuse, neglect, abandoned, or a similar basis found under state law. Still eligible to child even if reunification may be possible with one parent. Matter of E.G. The statute requires that a judicial or administrative proceeding determine that it would not be in the child s best interest to be returned to is country or his parent s country of nationality or last habitual residence. Office of Refugee Resettlement (ORR) and HHS directs immigration fuctions related to the care of unaccompanied minors. See INA 101(a)(27)(J) ; 8 CFR