Ensuring Immigrant Survivors Get
the Status They Need: Don’t Take
No for an Answer
Gail Pendleton
Co-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:
[email protected]
• VAWA: [email protected]
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
20
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 Pendleton
[email protected]
Immigration TA (Asista Project)
www.asistahelp.org
 [email protected]
DV/SA/Trafficking Resources (FVPF)
www.endabuse.org, immigrant women
Family law, public benefits (IWP of LM)
www.legalmomentum.org, immigrant women’s project
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Don`t Take No for an Answer - Encuentro Latino, National Institute