Ensuring Immigrant Survivors Get the Status They Need: Don’t Take

No for an Answer

Gail PendletonCo-Director

ASISTA Immigration Assistance

Goals

• Identify potential problems in cases

• Answer these problems with effective arguments and documentation

What Problems?

• With VAWA self-petitions?

• With U visas?

What we’ll do

• Quick review of VAWA & U requirements

• Suggestions for main problems we see – Requests for more evidence– Inadmissibility barriers– Getting U certifications

VAWA Self-Petitioning: Quick Review

Self-petitioning for domestic violence victims:• Created by VAWA 1994• Self-Petitioner must show:– Battery or extreme cruelty to self or child– Good moral character– Citizen or lawful permanent resident

spouse or parent– Married in good faith– Resided together

Created by Sonia Parras, ASISTA 2009

Proving Battery/Extreme Cruelty

• To self or, if parent, to child• If spouse, during marriage• If child, when abuser is/was parent• Does not have to have occurred in the United

States • What is it and how do you show it?

Proving Abuser’s Status

• Did he file anything for her or children?• Is he a lawful permanent resident or

naturalized US citizen?• Who else has he told about his status?

Proving Legal Marriage

• Proof of prior divorces of both parties• Common law marriages are valid if valid

under family laws• Bigamy by abuser will not bar filing if– Good faith intent by applicant AND– Legal ceremony

• Good faith marriage– Not solely to gain immigration status

Proving Good moral character

• Criminal records check• If there are problems, are they– Waivable under other immigration provisions?– Connected to domestic violence?

Making it Easy for CIS:Road map cover letter

– Bullet points on how she’s eligible• Two sentences for each proof requirement• Refer to documents that support• Highlight support within in documents

Document Index

• If you have multiple documents– YOUR affidavit to support suffering

• Do a short index that says what each document shows, here’s a start for U visas:– A. Victim of crime

– Certification– Her affidavit

– B. Substantial abuse• Your affidavit• Her affidavit

Flagging Issues for Vermont

• Mark outside of envelope and cover sheet:– “VAWA/U” application in BIG RED LETTERS

• Also note in cover letter for VAWAs– Priority date transfer if old filing– Children needing work authorization

• Request deferred action for them– Basis for work authorization

• Immediately eligible to adjust - 8 CFR §274a.12(c)(9)• Deferred action - 8 CFR §274a.12(c)(14)• VAWA approval = (c)(31)

I

RFE responses

• Check your organization• Reiterate how it met any credible evidence

standard• Show how tried to get and what got instead• Ask for supervisor review via email:• Us & Ts:

hotlinefollowupI918I914.vsc@dhs.gov• VAWA: hotlinefollowupI360.vsc@dhs.gov

Common problems

• Good faith marriage

• Credibility

• Good moral character– Crimes – False USC v. false testimony

Flagging Inadmissibility:What Problems Do You See?

Common Inadmissibility Barriers

• Prior Removals

• Unlawful presence

• Fraud

• Crimes

• NOT public charge

General Arguments

• The ground doesn’t apply at all– Elements that trigger are lacking– Get the state statute and check

• Even if it does apply, there’s a waiver

Excellent Waivers: VAWA

• 212(i) for Fraud– Extreme Hardship to Self and/or• USC/LPR/Qualified Alien parent or child

• 212(h) for certain crimes– (1)(C) = qualifies as self-petitioner

• 212(d)(13) & (14) for Ts & Us– T = national interest and connection to

victimization– U = public or national interest

Excellent Waiver: U

• 212(d)(14) = “national or public interest”

• What are your arguments?

U Visa Eligibility Requirements

• Victim of qualifying criminal activity;

• Possesses information about that crime;

• Helpful to law enforcement

• Substantial physical or mental abuse from crime;

• Admissible to US or merits waiver

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Certification Issues: Capturing the Crime

• Brainstorm with LEOs if not obvious, focusing on facts

• For not obvious, use category analysis not “similar”– Similar = extremely limited because focuses on

elements– Category = facts plus elements

Building Relationships with LEOs

• Who do they already work with?– DV/SA/public safety committees?– Work with your DV/SA partners (if you don’t know

them, we will connect you)

• Whose opinion do they care about?– Other influencers? E.g., mayors, clergy, be creative

• What do you think they think about lawyers or immigrants’ rights advocates?

Acknowledge Your Political Environment

• Will shape what you can do– Under the radar can be more effective

• Reward allies who will suffer from doing this– Awards; invite to community events

• Being a group is better than being alone• Allies not identified as immigrant rights

advocates are good messengers for changing environment: their agenda is not suspect

Principles of Working Together

• Identify each other’s goals and priorities• Acknowledge where they may conflict but• Find common ground – Every “person” in this country has the right to due

process and justice– If a class of victims fears accessing justice, public

safety is at risk

More Working Together

• Share how your systems work (summarize)• Identify where your assumptions about each

other were off (assess and adapt)• Set up transparent communication systems• Try to plan for individuals leaving the team– Conundrum: Protocols and MOUs must be

flexible, not rigid, or they may do more harm than good (assess and adapt)

Certification Issues: Capturing the Crime

• Brainstorm with LEOs if not obvious, focusing on facts

• For not obvious, use category analysis not “similar”– Similar = extremely limited because focuses on

elements– Category = facts plus elements

Who Can Certify

• “Supervisors”– Can be “U supervisors”– Letter from agency head designating “U

supervisors” to attach to every cert

• Non-crim agencies– Do they detect or investigate crimes?– Regs say CPS, EEOC and DOL but still show

law/regs/personnel policies-- empower to detect crimes even if refer for charging/prosecution?

EEOC, DOL & CPS

• Contact ASISTA for EEOC and DOL advice – Special training on this– National advocacy group

• Contact Immigrant Child Welfare network for CPS advocacy brainstorming and training– Yali Lincroft = volunteer; send me email and I’ll

forward to her

Resources

Gail PendletonGailpendleton@comcast.netImmigration TA (Asista Project)www.asistahelp.orgquestions@asistahelp.org

DV/SA/Trafficking Resources (FVPF)www.endabuse.org, immigrant women

Family law, public benefits (IWP of LM)www.legalmomentum.org, immigrant women’s project