Among the barriers immigrant crime victims face when seeking access to the criminal justice system— language, culture and a lack of knowledge about the process—fear of deportation and permanent separation from family members, including children, is by far the most significant impediment. This fear prevents many immigrant crime victims from seeking police protection, shelter, medical care and other social services. For immigrant victims of domestic violence, the fear is compounded because abusive partners use the threat of deportation to ensure that the victim remains isolated.
Recognizing that the immigrant population is extremely vulnerable to victimization because of the fear of deportation, Congress has taken steps over the last decade to ensure that immigrant crime victims are afforded safety and protection, regardless of their immigration status. Immigration remedies provided in federal legislation specifically focus on those who are residing in the United States, but do not have immigration documents to live and work here. The federal legislation provides immigration options to these individuals in certain situations to dispel their fear of deportation and to encourage cooperation with criminal investigations and prosecutions.
The Violence Against Women Act of 1994 and the Victims of Trafficking and Violence Protection Act of 2000 both contain provisions addressing immigrant victims of crime. The 1994 legislation specifically addressed the immigration issues that faced many immigrant domestic violence victims by allowing those married to a United States citizen or lawful permanent resident to legalize their immigration status without depending on the abusive spouse.
Violence Against Women Act of 1994 (VAWA)
Prior to the enactment of VAWA in 1994, immigrant spouses were not able to apply for legal residency and work in the United States without the cooperation of the U.S. citizen or lawful permanent resident spouse.
Under VAWA an immigrant/non-citizen spouse married to an abusive partner who is a U.S. citizen or a lawful permanent resident can file on her own to legally reside and work in the United States. The process is called a “self-petition.” To be eligible for lawful residency pursuant to VAWA, the non-citizen spouse must prove the following: (1) the marriage to the U.S. citizen or lawful permanent resident is bona fide; (2) the citizen or lawful permanent resident spouse was abusive; and (3) the petitioner is a person of good moral character.
Victims of Trafficking and Violence Protection Act of 2000 (VTVPA)
The protections provided immigrant victims of crime under VAWA were further strengthened by legislation passed in 2000. This legislation—the Victims of Trafficking and Violence Protection Act of 2000—broadened eligibility for the self-petitioning process and also established two new visa categories specifically directed at immigrant victims. In doing this, Congress recognized that victim cooperation and assistance can be the key to effective detection, investigation and prosecution of crimes. The new visas—referred to as U and T visas—allow certain crime victims to remain in the U.S. for at least three years, with the possibility of being able to live and work here permanently.
The U visa provides a specific avenue for immigrant crime victims to avoid deportation and obtain lawful immigration status. Further, it extends these protections to victims of some other types of crime commonly directed at immigrants. Prosecutors, local law enforcement and the judiciary are critical elements to the U-visa application process.
To qualify for a U visa, an immigrant must: (1) prove that she or he has suffered “substantial physical or mental abuse” as a result of one of the following forms of criminal activity: 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, attempted perjury, conspiracy, or solicitation to commit any of the above mentioned crimes; (2) show that she possesses information concerning criminal activity; and (3) provide certification from a federal, state or local law enforcement official, prosecutor or judge that states that the U-visa applicant is being, has been or is likely to be helpful to the investigation or prosecution of the criminal activity.
It must be noted that this list of crimes is not comprehensive. Consequently, an immigrant victim of an ordinary theft would not be able to apply for a U visa. An immigrant victim of unfair employment practices, however, may qualify for the visa.
Congress created the T visa to address the growing international problem of human trafficking. As in the VTVPA, approximately 50,000 people, mostly women and children, are trafficked into the United States each year. Trafficking in persons is not limited to the sex industry, but includes forced labor, involuntary servitude and peonage. VTVPA defines severe trafficking as “(A) sex trafficking in which a commercial sex act is induced by force, fraud or coercion, or in which the person induced to perform such act has not yet attained 18 years of age; or (B) the 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 subjection to involuntary servitude, peonage, debt bondage, or slavery.”
The T visa provides a trafficking victim with the legal means to prevent deportation. To be eligible for a T visa, the immigrant applicant must prove that he or she: (1) is a victim of a severe form of trafficking; (2) is physically present in the United States; (3) complied with any reasonable request for assistance in the investigation or prosecution of acts of trafficking; and (4) would suffer extreme hardship involving unusual and severe harm if deported.
State Courts and Protection for Immigrant Victims
For an immigrant fleeing domestic violence, the protective orders available under Alaska statutes can be critical. In addition to the safety and protection provided, such orders, evidence that she or he has been the victim of domestic violence, can establish eligibility for the self-petition process. Further, a state court can issue specific orders that assist the non-citizen in gathering the documentation required by the Department of Homeland Security (DHS—now responsible for the administration of immigration). For example, the non-citizen must prove that the spouse is a U.S. citizen or a lawful permanent resident and that the spouse, if previously married, is divorced from the prior spouse. In the protective order process a state court judge can require this spouse to provide the documentation that proves immigration status or US citizenship, i.e., a birth certificate or passport.
A state court judge can also issue specific orders that protect the immigrant spouse from deportation and protect the children, regardless of their immigration status. On behalf of an immigrant petitioner in a domestic violence proceeding, a state court judge can order the respondent not to contact DHS and not to withdraw any immigration documents already filed on behalf of the petitioner and the couple’s children. The state court judge can also require the respondent to provide the court with the children’s passports to prevent the children from being removed from the United States without the knowledge of the petitioner.
Even though the federal legislation passed almost ten years ago, many domestic violence victims have no idea that they have a legal means of obtaining their immigration documents without depending on their abusive spouses. Many of these women have been married to a United State citizen or lawful permanent resident for years and have remained in the abusive relationship hoping that the spouse will begin the immigration process so that they can legalize their status. These situations are often very dangerous because of the extreme isolation of the victim and the length of time that the violence has been occurring.
The Immigration and Refugee Services Program of Catholic Social Services is the primary agency in Alaska representing immigrant domestic violence victims in their applications with the DHS Bureau of Citizenship and Immigration Services. It is often the first place that a domestic violence victim seeks information and referral resources.
The program has also worked intensively with the Department of Homeland Security to develop a process to protect immigrant crime victims. Many of the U-visa applicants have been victims of domestic violence or unfair employment practices. To date the U-visa program has worked with approximately 24 individuals in Alaska. However, many more individuals in the state may be eligible for this visa. It is critical that local law enforcement officers, investigators and prosecutors understand the VTVPA so that they can provide immigrant crime victims with this essential information regarding their safety and protection.
Congress has clearly expressed its intent to ensure that immigrant victims of crime receive protection and safety regardless of their immigration status. In Alaska, local law enforcement, prosecutors and judges can encourage immigrant crime victims to come forward and seek protection and safety and to assist in the investigation and prosecution of crimes by understanding the immigration remedies made available by VAWA and the VTVPA.
Robin Bronen is the director of the Immigration and Refugee Services Program at Catholic Social Services.