Victims on Campus: What Advisors Need to Know about Domestic Violence, VAWA, and U Visas

David Ware, Ware|Gasparian Martha Staff, University of Hawai'i, Mānoa

What We Will Cover

• Overview of domestic violence

• Legal remedies for nonimmigrants—VAWA, U, T

• Legal Consequences of DV for nonimmigrants

What is Domestic Violence?

• A pattern of behavior used to establish power and control

over another person through fear and intimidation, often

including the threat or use of violence.

The Power and Control Wheel for Immigrants

Power Control

Immigration Options for Domestic Violence Survivors

• Self-Petitioning under VAWA, I-360

• Cancellation of Removal under VAWA

• U (crime victim) Visa

• T (trafficking) Visa

The Violence Against Women Act (VAWA)

• Enacted in 1994, amended 1996, 2000, 2005

• VAWA immigration provisions:

• Abused spouse, parent, or child of USC/LPR need not rely on USC/LPR abuser to file petition

• Step 1: Self-petitioner files own form I-360

• Step 2: If approved, self-petitioner and children apply for permanent residence based on approved I-360

Who Qualifies to Self-Petition under VAWA?

• Abused spouses of USCs and LPRs, including their children as derivatives

– Must file within 2 years of divorce or abuser’s loss of status

– Eligible if marriage would have been legal but for bigamy of abuser

• Non-abused spouses of USCs or LPRs where their child is abused

• Abused children of USCs and LPRs (up to age 25)

• Abused parents of adult USCs

Requirements of VAWA Self-Petition

• Abuser is USC or LPR

• Relationship to Abuser

• Child or Good Faith Marriage

• Resided with abuser

• Battery or Extreme Cruelty

• Good Moral Character

The Self-Petitioning Process

• Receive Receipt notices from the VAWA unit

• Receive Prima Facie determination from VAWA unit on self-petition

• Receive and Respond to Request for Evidence (RFE)

• Receive approval on self-petition

• Receive transfer notice from VAWA unit of I-485 Permanent Residency application to local district office for interview

• Interview on I-485 application

Benefits of an Approved VAWA Self-Petition

• Spouses/children of USC’s: ability to apply for PR immediately

• Spouses/children of LPR’s:deferred action status (places approved individual on lower priority for removal)

• Employment authorization

• Cannot travel outside US

• Eligible for some public benefits

U visa Overview

• Congressional intent: (1) Strengthen the ability of law enforcement agencies to detect,

investigate, and prosecute cases of domestic violence, sexual assault, human trafficking, and other crimes; and

(2) To offer protection to victims of such crimes. • Lawmakers recognized that a victim’s cooperation, assistance, and

safety are essential to the effective detection, investigation and prosecution of crimes. Victims who fear deportation are unlikely to come forward to cooperate and assist in investigative efforts. The U visa allows immigrant crime victims to cooperate with law enforcement officials and obtain lawful immigration status and protection against deportation.

U Visas: Crime Victim visa Requirements

• Victim of a qualifying crime

• Substantial physical/mental harm from the crime

• Applicant (or parent/guardian/next friend of child-victim) has information; and “has been helpful, is being helpful, or is likely to be helpful” to authority investigating or prosecuting the crime

• Applicant need not know, or be related to, the criminal

• Criminal’s immigration status is irrelevant

• Need “certification” from investigator, prosecutor, or Judge or DOL, other government agency

• Limited to 10,000 per year

U Visa: Crime Victim Visa List of Qualifying Crimes

Rape Torture Murder Sexual Assault Female Genital Mutilation Manslaughter Abusive Sexual Contact Trafficking Blackmail Sexual Exploitation Held Hostage Extortion Felonious Assault Involuntary Servitude Witness Tampering Prostitution Abduction Perjury Incest Peonage Obstruction of Justice Domestic Violence Slave Trade Kidnapping Unlawful Criminal Restraint False Imprisonment

Attempt/Conspiracy/Solicitation to Commit any of the above Any similar activity in violation of Federal, State, or local criminal law

U Visa Certification

• May be signed by federal, state or local law enforcement officials, as well as judges or other federal or state authority responsible for detection, investigating, or prosecuting crimes

• As first responders, law enforcement officials may have first-hand knowledge regarding a victim’s involvement in the investigation.

• The certification must confirm the immigrant victim’s past, present, or future helpfulness in the detection, investigation, or prosecution of certain qualifying criminal activity.

• Law enforcement officials who sign certification do not confer any immigration status upon the victim but enable them to apply for a U visa with U.S. Citizenship and Immigration Services (USCIS). Only USCIS has the discretion to grant or deny a U visa application.

U Visa Certification

• Obtaining a certification can be the most difficult part of the process, and may require direct outreach with local law enforcement.

• Some agencies have indicated a policy of not signing certifications under any circumstances.

• In some cases a prosecutor or judge may be willing to sign the form.

Benefits and Limits of U Visas

• Permission to remain legally in the US for 4 years

• Employment Authorization

• Ability to apply for LPR status after holding the visa for 3 years

• Spouse, children or parents may also qualify for visas and to apply for LPR status

Notes on U Visas

• A crime does not have to lead to an investigation or successful prosecution for a victim to be eligible for a U visa

• There is no maximum time limit on crimes. Victims may still be eligible to apply decades after the crime was committed.

DV Convictions: Deportation

• If discovered by ICE, persons convicted of DV, stalking, violation of protective orders are subject to deportation.

• “Conviction” includes instances where the accused pleads guilty, punishment is imposed by the court, and charges later dismissed, usually after anger mgmt, community service, or other punishment.

Working with Student Victims

• Be sensitive to emotional distress. Be patient. Victim will not always be comfortable telling you what happened. May need to meet with student several times.

• Post Traumatic Stress Disorder. Some victims may be suffering from PTSD or other emotional trauma. Be sensitive to that. Refer to a mental professional if necessary.

• Conflicts of Interest. Be aware that you will always have a conflict if a student’s dependants allege abuse. Be wary of

advising them.

Case Study

The Advising Framework

• Getting the story…whose story? Whose facts?

• Referring the parties to appropriate resources

• Possible conflict of interest in advising relationship

• Immigration advising in relation to other legal frameworks and counseling needs

• Institutional support for your involved student

• Safety of students and family members

• Cultural perspectives

Initial Complaint 2005

• F-2 Taiwanese female spouse complained of domestic abuse.

• Perceived her as victim: withdrawn, nervous, depressed, and unable to explain in English

• Events occurred off-campus and there was a police report.

• Checked with Counseling Center regarding services for F-2 spouse. Not available.

• Couple had a young F-2 child (toddler).

Referral

• Spouse told sketchy story through translator

• Referred to a nearby church counseling center where services would be free to students and spouses and

• Legal services could also be arranged.

• Director of that center reported that case was serious and a possible candidate for U visa.

• Spouse reported she was being helped by off-campus resources.

Flash Forward to 2007

• F-1 student (male) requested termination of the F-2 spouse’s SEVIS record due to divorce.

• His story: Divorce had been contentious. He had suffered abuse and had been awarded physical and legal custody of child by court.

• Father noted child’s F-2 record should be kept active.

• Adviser terminated spouse’s F-2 SEVIS record.

Flash Forward to 2011

• F-1 nearing completion of doctoral degree and making plans to return to Taiwan to obtain university faculty position.

• F-1 very agitated, thin, nervous. Explained long history of interactions with family court/legal system in Hawaii.

• Mutual allegations of abuse with F-1 student’s accusations prevailing in court proceedings.

• Ex-wife still in Hawaii.

Student’s Story

• Multiple advising sessions with F-1. He began to confide.

• Camera in apartment lobby recorded assault by wife of husband holding toddler son.

• TRO granted to F-1. Retailiatory TRO initiated by wife not granted due to lack of evidence.

• Father granted full physical and legal custody with mother having supervised visitation and requirement to attend parenting classes.

The Story, Continued

• Father continued full legal custody after divorce.

• Later, mother granted unsupervised physical custody 3 days/week and father 4 days/week.

• Father visited ISS adviser regularly to check son’s SEVIS status (still F-2) and to speculate about wife’s visa status. Father stated his ex-wife had told him she had “U” visa status.

On-Going Custody Issues

• F-1 concerned about his ex-wife’s desire to stay in Hawaii permanently.

• F-1 noted his job options in Hawaii non-existent, but very promising in Taiwan.

• F-1 notified ex-wife of his desire to depart the US in January 2013 upon completion of degree; she objected and sought custody.

• Family court prohibited either parent leaving the state without other parent’s consent.

Planning for Family Court Hearing

• F-1 informed me his ex-wife claimed both she and son had green cards but refused to provide a copy.

• F-1 requested my testimony in court regarding his visa status and the dependent status of his son.

• F-1’s academic adviser and I consulted on his case, as both of us were to testify on his behalf.

Status Options

• F-1 student very concerned about obeying law and maintaining status.

• Discussed end of program options:

-Leave within grace period

-Apply for OPT and seek work

-Apply for B-2 (to buy time necessary for family court)

Where we are today

• January 2013: F-1 student had Skype interview for faculty position at Taiwan university.

• February: F-1 accepted job beginning April, 2013. • Early April – F-1 still in Hawaii awaiting court decision. • Mid-April – Student departed US for Taiwan taking son.

Asked Taiwanese court to work with Hawaii family court.

• Mother : complaint in Hawaii court alleging kidnapping.

• Child: now 10 years old, attending school in Taiwan; happy, doing well. Connected with multi-generational family on both sides. Court actions still pending.

Where we are today

• Former student feels betrayed by US legal system (secretive U visa system, no chance to defend himself, no apparent consideration of his custodial role)

• Former wife still maintains desire to stay in Hawaii and continues custody battle

• Child is very bonded with both parents who cannot agree what is in his best interest

• No evidence of continuing victimization of either parent.

Issues for Advisers to Consider

• Conflict of interest in advising F-1 and F-2. • Safety of your student and his/her family

members. • Probable need for off-campus resources even if

there is a counseling center on-campus • Cultural perspectives and language issues • Difficulties in determining who are victims and

who are perpetrators. Can’t know entire story. • Roles of institutional advisers: setting limits and

performing “due diligence”

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