Morgan Young Immigration/Poverty Attorney End Domestic Abuse WI 307 S. Paterson Street, Suite 1 Madison, WI 53703

Transcription

1 Atty. Robin Dalton (RISE) Atty. Morgan Young (End Abuse WI) WI Serving Victims of Crime Conference, 2013 Morgan Young Immigration/Poverty Attorney End Domestic Abuse WI 307 S. Paterson Street, Suite 1 Madison, WI Robin Dalton Immigration Attorney RISE Law Center 307 S. Paterson Street Madison, WI Phone Fax morgany@wcadv.org Phone Fax robin.riselaw@gmail.com 1

2 RISE (Refugees and Immigrants Seeking Empowerment) End Domestic Abuse Wisconsin (WCADV) End Abuse is a nonprofit statewide organization working with DV programs and utilizing advocacy, education and public policy to end domestic violence. Morgan Young, the Immigration and Poverty Law Attorney provides technical assistance, an updated legal manual, and training for advocates. RISE works within WCADV to provide assistance to member programs specifically through representation of survivors. Robin Dalton, Jenna Friedman & Gricel Santiago-Rivera represent survivors in protection orders, divorce, wills and immigration matters. Immigrants/Refugees in Wisconsin Immigrant/Refugee dynamics and barriers Basic understanding of Immigration Law Immigration protections for abused children 2

3 We asked for workers. We got people instead. Max Frisch Are there many immigrants/refugees in Wisconsin? How many? From where? What barriers do they face? What services can they access? The 2012 census reports that there are over 5.7 million people living in Wisconsin. (2012 US Census Quick Facts) Of that 263,000 report that they were born outside the United States. (2012 US Census Quick Facts) AND 487,000 report that a language other than English is spoken in their home. (2012 US Census Quick Facts) There are over 70,000 refugees living in Wisconsin. The largest majority are Hmong, followed by refugees from Vietnam, Cambodia, former USSR and former Yugoslavia. (DCF Wisconsin) Newer refugee groups are predominantly from Somalia, Burma, Bhutan, China and India. (DCF Wisconsin) 3

4 As the Wisconsin is more culturally rich it is important to understand both that: Immigrant children and their families have many shared barriers and needs when navigating resources including child abuse agencies and legal services Immigrants vary so these needs and barriers can shift dramatically depending on country of origin, cultural norms, religion, etc. Cultural competence allows us to advocate more effectively for our client s safety concerns Knowledge Basic cultural values, traditions, interpersonal dynamics and priorities in life Understanding of barriers and options for immigrant victims in protection orders, child custody and placement, immigration and other legal matters Attitude and Tools Establishing positive non-judgmental climate Allowing clients to be the expert of their own experience Language skills, translators, forms/information in the clients language Culturally competent staff members 4

5 Saftey planning and housing Many of these children (or their parents) do not have a family, friends, or a community in Wisconsin to turn to in crisis or help navigate the system. Language services and confidentiality Immigrant communities can be small, and many may have concerns about coming forward. Mental, emotional, behavioral health and ensuring those helping are culturally competent Focus on victim-centered services highlighting the strengths of immigrant populations: Strong sense of family Strong sense of community Strong sense of faith Desire to do well and be lawful Desire for children to do well Resourcefulness and resiliency 5

6 If an immigrant/refugee victim considers reporting a crime, what barriers are present? Awareness of additional challenges: Loss of traditional systems of support Language barriers Cultural barriers Structural access barriers Juggling many challenges Use of immigration status as a strategy for power and control Anti-immigrant attitudes Conflicts between parents and children Past trauma Literacy issues Threat of deportation Lack of knowledge of the laws Invisibility 6

7 Remember, remember always, that all of us, and you and I especially, are descended from immigrants and revolutionists. Franklin D. Roosevelt Who counts as an immigrant? How can one immigrate into the United States? Are some immigrants more vulnerable than others? Basic Definition: A person who comes to live permanently in the United States Who counts: Naturalized US Citizens, Permanent Residents (Green Card holders), Visa holders, Undocumented and Out of Status persons whose intent is to live in the United States (including children) Who doesn t count: Visa holders, ambassadors, temporary work, temporary tourist and business, students (including children) 7

8 Citizen Permanent Resident Green Card Non Resident/Nonimmigrant B, K, F/J, H, O/P, U/T/S Out of Status Undocumented/EWI/Expired Visa Family Based: Spouses, Children, Parents of US Citizens and Permanent Residents for the purpose of family unity Employment Based: Workers, Entertainers, Extraordinary immigrants with skills that are valuable to the U.S. economy Humanitarian Based: Temporary Protected Status, Refugees and Asylees, SIJS, Battered Spouse and Children, U/T Status, DACA 8

9 VAWA Self Petition VAWA Removal of Conditions on CR VAWA Cancellation of Removal U Nonimmigrant Status T Visa Special Immigrant Juvenile Status Asylum Deferred Action for Childhood Arrivals Temporary Protected Status (TPS) My mother did not want to go to America: this much I knew. I knew it by the way she became distracted and impatient with my sister, by the way she stopped tucking us into bed at night. I knew it from watching her feet, which began to shuffle after my father announced the move, as though they threw down invisible roots that needed to be pulled out with each step. Catherine Chung, Forgotten Country Family-based protections for children Remedies for victims of crime Other forms of relief 9

10 A child is defined as an individual who is unmarried and under the age of 21. Before CSPA took effect on August 6, 2002, a beneficiary who turned 21 at any time prior to receiving permanent residence could not be considered a child for immigration purposes. This situation is described as aging out. Congress recognized that many beneficiaries were aging out because of large backlogs and long processing times for visa petitions. CSPA is designed to protect a beneficiary s immigration classification as a child when he or she ages out due to excessive processing times. CSPA can protect child status for family-based immigrants, employment-based immigrants, and some humanitarian program immigrants (refugees, asylees, VAWA) Children and youth with qualifying relationships Immediate relatives: spouse, unmarried child under 21 or parent (if son or daughter is 21 or older) of US citizen May immigrate quickly Preference categories: sons/daughters of US citizens over the age of 21 or married; spouses and unmarried sons/daughters of permanent residents; siblings of US citizens when the citizen is 21 or older Wait time varies may not be able to remain in the US while waiting for approval 10

11 Abused noncitizen child or spouse of a US citizen or permanent resident parent Abused noncitizen parent of a US citizen A child (whether abused or not) of a parent who was abused by a US citizen or permanent resident spouse Child can receive VAWA benefits if not abused IF the child s parent qualifies for VAWA due to abuse under INA 204 Generally the VAWA Self-Petitioner must show all the same requirements of the family based petition: (1) valid and good faith marriage/relationship, (2) residence with abuser, (3) abuser is U.S. Citizen or Permanent Resident, (4) applicant lives in U.S. and (5) good moral character + ABUSE (extreme cruelty: psychological and emotional, as well as physical) 11

12 FOR CHILDREN: othat the child qualifies under immigration law: o Child must be unmarried and under the age of 21 o Includes step-children if the relationship was established before the child s 18 th birthday o Includes adopted children if the adoption was finalized before the child s 16 th birthday and the child has been in the adoptive parent s physical/legal custody for two years Access to some public benefits almost immediately Can receive permission to work (SSN, DL) as early as 3 months after filing Can apply for Permanent Residency upon VAWA approval If there are no inadmissibilities Longer wait for those married to LPR Can apply for Citizenship after 3 years of Permanent Residency 12

13 Survivor may have limited or no access to important documents to show a valid marriage to a US Citizen or Legal Permanent Resident Survivor may have little to no evidence of residence with spouse Survivor may have time restrictions on applying If divorced, within 2 years If adult child, time/evidence restrictions Does not include same-sex marriage, nonresident/citizen abusers, those who can t prove good faith/joint tenancy/good moral character might be eligible for U under INA 101(a)(15)(u) Victim of a qualifying crime Abduction Abusive Sexual Contact Blackmail Domestic Violence Extortion False Imprisonment Genital Female Mutilation Felonious Assault Hostage Incest Involuntary Servitude Kidnapping Manslaughter Murder Obstruction of Justice Peonage Perjury Prostitution Rape Sexual Assault Sexual Exploitation Slave Trader Stalking Torture Trafficking Witness Tampering Unlawful Criminal Restraint Other Related Crimes This list is a guideline not inclusive of all qualifying crimes 13

14 Victim of a qualifying crime Has information about the crime Cooperation or helpful to law enforcement in the investigation or prosecution of the crime (as certified by law enforcement, prosecutors, CPS, etc.) If victim is a child is under 16, a parent, guardian or next friend may fill this role. Suffered substantial mental or physical abuse as a result of the criminal activity When victim is deceased (murder/manslaughter) or incompetent/incapacitated, the child of the direct victim and siblings under 18 (if the direct victim is under 21) may qualify as indirect victims Admissible to the U.S. or eligible for an inadmissibility waiver 14

15 Temporary legal status granted for 4 years Opportunity to apply for family members Eligible for work authorization upon approval of U Status Can apply for Permanent Residency after accruing 3 years of U Status Must show ongoing cooperation with law enforcement + no inadmissibilities Can apply for Citizenship after 5 years of Permanent Residency The crime must be investigated, being a victim of domestic abuse is not enough to qualify Must include a signed certification by law enforcement which is The pathway to citizenship is longer than a VAWA Self Petition Victim must cooperate, which is difficult to do when they are afraid of the abuser/perpetrator and/or the police 15

16 under INA 101(a)(15)(T) Victim of severe form of trafficking (labor & sex) Currently in the United States Complied with reasonable assistance in prosecution of the trafficking (or under 18) Would suffer extreme hardship or severe if removed from the United States Admissible to the U.S. or eligible for an inadmissibility waiver 16

17 PROS T nonimmigrant status for 4 years, ability to apply for permanent residency and eventually citizenship Can include family members in the petition In some states public benefits are available to trafficking victims to stabilize their living situation CONS Harder to detect as victims may be even less willing due to greater danger from abuser Must prove extreme hardship if removed Cannot apply if trafficking occurred before October 28, 2000 under INA 101(a)(27)(j) Victim must be unmarried and under 21 years Age can be proven with a birth certificate, passport or other official foreign identity document issued by a foreign government The child can have children of his/her own It is not in the juveniles best interest to return to her or his country of origin Juvenile court should retain jurisdiction until the application is decided. 17

18 Must have a special juvenile court order finding that she/he cannot be reunified with one or both parents because of abuse, neglect, abandonment OR a similar basis in law Cannot initiate court action for the purpose of SIJS status The juvenile court must declare the child to be a court dependent and legally commit the child to the state department or agency OR must commit the child to an individual appointed by the state or juvenile court Through dependency, delinquency and guardianship proceedings PROS Allows the child to remain in the US and eventually obtain lawful permanent residency (green card) Provides employment authorization allowing the child to work (and serves as a govt. issued ID card) CONS The child must be under the jurisdiction of the juvenile court or a state agency many children won t formally enter these systems. Timing is important! Must identify the child while involved in qualifying court proceedings before case is closed. Family members can t be included 18

19 under INA 101(a)(42)(A) Victim must be outside of her country of nationality or last habitual residence Must be unwilling or unable to return to and avail him/herself of protection from that country Will not return due to persecution or a well founded fear of persecution The persecution must be based on race, religion, nationality, political opinion or membership in a particular social group e.g. female genital mutilation, sexual orientation, honor killings, accepted DV Generally, a noncitizen must apply within one year of arrival unless there are extraordinary circumstances Status as a minor may also be considered a legal disability so as to qualify as an extraordinary circumstance Unaccompanied minors are exempt from the one year bar Defined as an undocumented person under the age of 18 who does not have a parent or legal guardian who is willing or able to provide care and physical custody 19

20 PROS Can apply for Permanent Residency with one year status as asylee Can apply for family members to join you in US if asylum approved Process and decisions are usually quick CONS If denied and out of status automatically referred to Immigration Court for removal Hard to prove that you are in danger Noncitizens from certain countries that have experienced devastating natural disaster, civil war or other unstable circumstances may qualify for TPS This status provides: Temporary permission to stay in the US Temporary work authorization 20

21 Requirements: Noncitizen must prove that s/he is a national of a current TPS designated country and has been in the US since a required date NO NEED to prove persecution in home country Subject to inadmissibility Countries change! Currently includes: El Salvador, Nicaragua, Haiti, Somalia, Honduras, Sudan, South Sudan, Syria Under DHS Guidance/Memos On June 15, 2012 applicant must: Have been under 31 years of age Physically present in the US Out of Status (EWI or expired visa) Must have entered the US before age 16 Must have maintained continuous residence in US since June 15, 2007 Must have HS diploma, GED or currently be in school Cannot have been convicted of a felony, significant misdemeanor, or 3 lesser misdemeanor 21

22 PROS Great option for eligible survivors who are otherwise ineligible for victim based remedies DACA approvals come with work authorization = social security #, drivers license, etc. Process and decisions are usually quick CONS Short term approval that needs to be renewed every 2 years Cannot adjust into permanent residency or citizenship If abused, was your abuser a U.S. Citizen or Permanent Resident parent? If abused, was there an investigation by police, CPS, or other law enforcement agency? Was the abuser arrested? Did you come to the US as a child and at what age? Did you come to the US alone or with family? Have you ever been arrested? Deported? Stopped at the border? How/Where/When did you enter the US? 22

23 Blue: a visa Pink: permanent residency Yellow: deferred action status 23

24 Blue: through staying in the US for many years Pink: through an employer Yellow: through a family member Blue: an Indian VAWA applicant who was married to a US Citizen Pink: a Philipina VAWA applicant who was married to legal permanent resident Yellow: a Mexican U Visa applicant who was married to an undocumented person 24

25 Blue: you are the abused child of a US Citizen Pink: you are the abused spouse of a Legal Permanent Resident Yellow: you are the abused parent of a Legal Permanent Resident Blue: always, being undocumented is a crime Pink: when the undocumented person commits and is convicted of a state or federal law Yellow: s/he enters the US unlawfully 25

26 Blue: a visa to travel in and out of the US Pink: limited protections against removal/deportation Yellow: permission to work and drive in the US Blue: brothers and sisters Pink: parents Yellow: children 26

27 Thank you for all that you do! RISE Law (608) & End Abuse (608)