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Violence against women and the immigration and naturalization act by wulinqing

VIEWS: 57 PAGES: 27

									                             Presented by:
                          G. Yasmin Jacob
Legal Aid Service of Broward County, Inc.
                      yjacob@legalaid.org
                 December 15, 2010
   Legal Aid Service of Broward County‟s mission is to
    provide high quality, free civil legal advice,
    representation, and education to the disadvantaged of
    Broward County to improve the lifestyle and living
    conditions of the low income community and encourage
    self-sufficiency.
   Legal Aid provides assistance in many legal areas
    including immigration, housing, consumer, landlord
    tenant, foreclosure, HIV-AIDS project, children‟s
    advocacy, environmental law , and homelessness.
   Legal Aid‟s Immigration Unit represents primarily
    immigrant victims of DV and crime, who reside in
    Broward County.

                                   Jacob - October 2010     2
   CIS    United States Citizenship and
           Immigration Services
   ICE    Immigration and Customs
           Enforcement
   USC    United States Citizen
   LPR    Lawful Permanent Resident
   VTPA   Victims of Trafficking
           Protection Act
   LEA    Law Enforcement Agency



                            Jacob December 2010   3
                    OVERVIEW:

   What is the “U Visa” generally?
   How does the U Visa benefit both law
    enforcement and foreign born crime
    victims?
   What are the U Visa eligibility requirements?
    What is the U Visa “Certification?”



                              Jacob- December 2010   4
   Immigration status/protection,

   For immigrant victims of certain crimes,

   Who cooperate with law enforcement,

   In investigation or prosecution of the crime,
    and
   Who suffer substantial harm as a result.



                                Jacob- October 2010   5
   Immigration and Nationality Act
    section 101(a)(15)(U); 8 USC
    1101(a)(15)(U)(i).
    ◦ Created by Trafficking Victims
      Protection Act of 2000 (TVPA).
       Reauthorized in 2003, 2005, 2008




                       Jacob- Adapted from NY Anti-
                                Trafficking Network   6
   3 primary purposes:

   Benefits law enforcement
    ◦ Encourages immigrant victims to report crime and cooperate.

   Protects immigrant victims of crime
    ◦ Cooperating victim may obtain protection from deportation;
      temporary status, possible permanent status in future.


   Furthers U.S. humanitarian interests
    ◦ U Visa will “strengthen the ability of law enforcement ... to detect,
      investigate, and prosecute crimes committed against aliens, while
      offering protection to victims of such offenses in keeping with the
      humanitarian interests of the United States…. Providing temporary
      legal status to aliens who have been …victimized … comports
      with the humanitarian interests of the United States…”

                                             Jacob- December 2010             7
   Immigrant victims who cooperate with law
    enforcement and meet other eligibility
    requirements may obtain:

    ◦ U visa status for 4 years

    ◦ Employment Authorization

    ◦ Protection from removal while in U status.

    ◦ Eligible to apply for LPR status after 3
      years

                                  Jacob- December 2010   8
1.   Must be a Victim (exceptions apply);

2.   Of a “Qualifying” crime;

3.    Was/Is/Will Be helpful in-
     ◦ The investigation or prosecution of crime;

4.   Who suffered “substantial abuse” (harm);

5.   Law Enforcement must certify helpfulness by
     signing Form I-918 Supplement “B”.

6.   Victim must be “admissible” under immigration
     law; (victim must not possess certain disqualifying factors
     under general immigration law).

                                       Jacob Adapted from ILRC     9
                            Victims
                      -Direct and Indirect-
   Direct Victim:
    ◦ Suffered direct/proximate harm
    ◦ Cannot be culpable in qualifying crime
      Example: Rosa was in a bar when a bar patron shot and
       wounded her. Her friend Mary saw what happened & called 911.

   Indirect Victim: Certain family members such as-
    ◦ Family members of murder/manslaughter victims:
       Child, spouse, parents (if victim under 21), sibling
        (under 18) of deceased victim can qualify for U Visa
        as a victim of the crime, if helpful.
      Example: 19 year old John was shot/killed in his front yard, in a
       drive by shooting. His wife, parents, and 12 yr. old sister may
       qualify as indirect victims for U purposes if they are helpful.

                                           Jacob-December 2010             10
   Indirect Victim: Also Includes family members such as:

    ◦ Family member of a USC minor child who was the
      actual crime victim, may qualify as a victim for U Visa
      purposes if helpful.

      Example: Marta is 12 years old. She was born in Florida. She was
       sexually abused by her mother‟s boyfriend. Her mother, who is
       undocumented, reported the crime and was helpful in the
       investigation. Marta is a US citizen and does not need a U visa.
       Her mother may qualify as a victim for U visa purposes.




                                          Jacob- December 2010            11
    • Exceptions to the rule that a U visa applicant
      must be a direct or indirect “victim”~

   BYSTANDER WITNESS :Bystander who witnesses crime
    and suffers substantial harm or “unusually direct injury.”
       Example: Rosa was in a bar when a bar patron shot and
        wounded her. Her friend Mary saw what happened, called 911,
        and was later helpful to police. Mary was pregnant at the time of
        the shooting. She was extremely traumatized and suffered a
        miscarriage as a result of witnessing the crime.

   BYSTANDER VICTIM: Victim of threats, tampering; or
    other harm.
    ◦ Philippe was in 7-11 when an armed man entered, shot the manager, and
      took $ from the register. During the incident, the perpetrator shoved
      Philippe to the ground and threatened to shoot him. In the subsequent
      criminal case, the SA identified the “victim” as the manager, while Philippe
      was formally listed only as a witness in the criminal case.


                                                Jacob-Adapted from ILRC              12
   Victim‟s immediate family members can
    obtain “derivative” U Visa status:
    ◦ ie: “Immediate family members” who are not victims
      and who need not be helpful, can obtain U status
      simply by virtue of the victim‟s U status.

    ◦   Immediate Family Members =
    ◦   Children under 21
    ◦   Spouse
    ◦   If victim under 21: Parents, Siblings under 18


            Purpose: To preserve family unity
                                      Jacob- December 2010   13
INA 101(a)(15)(U)(i):
Rape, torture, trafficking, incest, domestic
violence, sexual assault, abusive sexual
contact, prostitution, sexual exploitation,
female genital mutilation, hostage taking,
peonage, involuntary servitude, slave trade,
kidnapping, abduction, false imprisonment,
blackmail, extortion, manslaughter, murder,
felonious assault, witness tampering,
obstruction of justice, perjury … or attempt,
conspiracy, or solicitation to commit any of
these crimes, or “any similar activity….”
                          Jacob- Adapted from INA
                                    101(a)(15)(U)   14
   PLUS: Attempt, Conspiracy, or Solicitation to
    commit any of the above-listed crimes,


 OR


    “ANY SIMILAR ACTIVITY” in
    violation of local, state, federal
    criminal law.
                          Jacob- December 2010 Adapted from
                                                       ILRC   15
 Even    if the criminal act that
    occurred is not specifically listed
    in the U Visa statute-
   The act may still be a qualifying crime: If it is
    “similar” to a crime listed in the statute.
   USCIS will look at underlying nature of crime
    in question to see if “similar to” a U Visa
    listed crime
       ie: “Felonious Assault”

                                 Jacob- December 2010   16
   Caveat: Perpetrator need not be charged with a crime
    listed in U Visa statute (and need not be charged at all)!

       Example: Ana & Charlie were at the Dade County Fair. Charlie
        was drunk. He started screaming at Ana and hit her. He was
        arrested for D.V. battery. He later pled no contest to Disorderly
        Conduct. Ana may still qualify as a victim of a “qualifying
        crime” if underlying facts of the criminal act meet the definition
        of D.V. battery.

       Example: Same facts as above, however Charlie flees prior to
        the arrival of police. His whereabouts remain unknown, though
        Ana has advised police of every possible hiding place. Charlie is
        never charged with a crime. Ana may still qualify due to her
        helpfulness in the investigation even if he is never apprehended.



                                            Jacob -December 2010             17
           What is substantial abuse/harm?
   Harm can be physical, mental, emotional.

   Whether harm is “substantial” is determined by
    USCIS.

   Factors considered by USCIS include:
    ◦ Severity of harm suffered (does not require medical/ psych
      treatment),
    ◦ Severity of perpetrator‟s conduct,
    ◦ Duration of infliction of harm,
    ◦ Harm to appearance, health, physical/mental/emotional state,
    ◦ Includes pattern of abuse (esp. DV).



                                           Jacob October 2010        18
       Is, Was, or Will Be helpful in investigation or
                    prosecution of crime;
   What is ISN‟T Helpful: Active refusal to cooperate

   What it IS Helpful:      Examples-
   Providing info about crime/perpetrator including but not limited to:
    ◦ Filing police report, or answering questions, or
    ◦ providing oral/written statement, or
    ◦ providing follow up info as it develops, or
    ◦ Providing possible whereabouts, description of perpetrator, or
    ◦ appearing for deposition, hearing, testifying at trial, or
    ◦ providing victim impact statement.


      LEA determines helpfulness; No specific definition of
                helpfulness in the U Visa statute
                                             Jacob- October 2010           19
   Victim may not refuse „reasonable‟ request
    for information/help before or after U Visa
    status is granted.

   Ongoing helpfulness is required only if still
    needed for investigation or prosecution.
    ◦ If investigation/prosecution closed or dormant,
      continued helpfulness not required.




                             Jacob- December 2010 Adapted from
                                                    Islabay.org   20
    ◦ U Visa available to victims of old crimes

    ◦ No need for pending investigation/prosecution: USCIS may
      grant U Visa for cases in which investigation or
      prosecutions is closed.

    ◦ Can still be considered helpful even if perpetrator not
      apprehended, arrested, charged, or identified.

   For child under 16 or an incompetent victim- Parent/
    Guardian/ may cooperate in lieu of child/incompetent.




                                  Jacob- December 2010 Adapted from
                                                         islabay.org   21
LEA certifies that applicant was/is/will be helpful by
  filling out Immigration form I-918 Supplement B.

Form/instructions for completion on USCIS website.

Form signed by agency head OR designated person

No obligation for LEA to sign I-918 Supp. B.

“Agency” includes police, sheriff, prosecutor, other
 administrative agency with capacity to investigate
 criminal activity, including CPS, EEOC, DOL

                         Jacob December 2010 Adapted from
                                               Islabay.org   22
   By signing Form I-918 Supplement B, LEA certifies:
    ◦ That a crime occurred;
    ◦ That the U visa applicant was a victim
    ◦ That the U Visa applicant is/was/ is likely to be helpful;


   USCIS makes ultimate immigration determination on whether
    to grant or deny the U Visa.




                                          Jacob- October2010       23
   Education of and communication with, local law
    enforcement is key.
    ◦ NO ONE can apply for a U Visa without a signed I-918
      Supplement B!


   Nonprofits want to guard against abuse of system.

   Working w/ licensed attorneys/nonprofits reduces
    opportunities for “notarios” to submit fraudulent
    applications



                                      Jacob- December 2010   24
   USCIS U Visa Fact Sheet “Questions &
    Answers: Victims of Criminal Activity, U

   Nonimmigrant Status” at www.uscis.gov

   Instructions to I-918 Supplement B




                         Jacob December 2010 Adapted from
                                               Islabay.org   25
Legal Aid Service of Broward County, Inc. Immigration Unit:
  954/736-2474; 954/358-5647


Florida Coalition Against Domestic Violence (FCADV) 850/425-
  2749; Legal Hotline 800/500-1119 x3


Florida Freedom Partnership (FFP)
  305/443-0102 email: traffickingFFP@yahoo.com


Family Violence Prevention Fund www.endabuse.org




                                     Jacob– December 2010      26
ASISTA
www.asistahelp.org

Immigrant Survivor Legal Assistance
www.islabay.org

USCIS
www.uscis.gov




                          Jacob- December 2010   27

								
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