IMMIGRANT VICTIMS OF CRIME - Montana

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IMMIGRANT VICTIMS OFCRIME:UNDERSTANDING THEUNIQUE CHALLENGESAND AVAILABLEREMEDIESPRESENTED BY:Hilly McGahan,SAFE Harbor&Brandi Ries,Ries Law Group,P.C.

IMMIGRANT VICTIMS IN MONTANA Immigrant victims of domestic and sexual violence experienceall the problems of non -immigrant victims, but theseproblems are magnified by factors related to immigrantstatus. Challenges specific to Montana: General unfamiliarity with the experiences of immigrantcommunities; Increased isolation in rural areas; Lack of access to resources; Lack of availability of immigrant-specific resources; Limited language resources.

IMMIGRANT VICTIMS FACEUNIQUE AND ADDITIONAL CHALLENGESIMMIGRATION STATUS Fear of law enforcement anddeportation.Legal status may dependent uponabusive citizen spouse.Institutional bias.CULTURAL CONCERNS Language, religious beliefs, ability todivorce.Availability of family support.Isolation.Access to resources, knowledge ofU.S. system.Experience of systems of authority incountry of origin.Fear of police and justice system.ECONOMIC DEPENDENCY &EMPOWERMENT Access to work authorization.Access to public benefits.Language skills and education level.Requirement to provide income forfamily in home country.CHILDREN Fear that contact with law enforcementcould result in victim being deportedand separated from children.Lack of knowledge of family or civil lawproceedings.

TERMINOLOGYImmigrants & NonimmigrantsImmigrant usually refers to lawful permanent resident (but under INA, technicallyincludes unauthorized immigrants)Non-immigrant seeks temporary entry to U.S. for specific purpose (examples:students, temporary workers, visitors for business/pleasure, etc.)Legal Permanent ResidentAn “LPR” is a green-card holder who can legally reside in the U.S. forever, unlessconvicted of certain crimes. May apply for citizenship (“naturalization”) after 5years of LPR status, or in some cases 3 years if married to USC.Conditional Permanent ResidentA “CPR” receives a green card valid for 2 years. In general, a CPR must jointly filewith his or her petitioning spouse a Petition to Remove Conditions on Residencewith USCIS during the 90-day period immediately preceding the secondanniversary of his/her admission as a CPR in order to remove the conditions.Who is Undocumented?A foreign-born person who resides in the U.S. without legal status, either becausehe/she entered without inspection or stayed beyond the expiration of a visa orother status.

REMEDIES AVAILABE TO IMMIGRANT VICTIMSOF DOMESTIC AND SEXUAL VIOLENCE ANDTRAFFICIKING VAWA Self-Petition U Visa VAWA Cancellationof Removal T Visa Battered SpouseWaiver Asylum (in rarecases)Immigrant victims of domestic and sexual violence (and trafficking) may enter the country on amarriage or fiance(e) visa, enter the country illegally, or “overstay” a visa. The victim may bemarried to a U.S. citizen, a permanent resident, or another person who is undocumented. All thesefactors play a role into the type of relief that may be available to the victim.(Shahid Haque-Hausrath, p. 24, Montana Lawyer Magazine, June/July 2015)

VAWA SELF-PETITIONING REQUIREMENTS General requirements (INA § 204): Subjected to Battery or Extreme Cruelty DHS will consider any “credible evidence” —OOP, police records, medicalrecords, affidavits, etc. By a U.S. Citizen or Lawful Permanent Resident Spouse or Parent File while still married or within 2 years of divorce With Whom You Resided Good Moral Character Local police clearance or state-issued background check Good Faith Marriage Not for purpose of evading immigration laws As a result of the U.S. Supreme Cour t striking down cer tain provisionsof the Defense of Marriage Act in 2013, VAWA self -petitioning is nowavailable to same -sex married couples (this includes protections for allspouses without regard to their gender, gender identity - includingtransgender individuals – or sexual orientation)

ELIGIBILIT Y FOR VAWA CANCELLATION OFREMOVAL A person who is an abused spouse, former spouse, orintended spouse of a U.S. citizen or lawful permanentresident; A person who is or was an abused child of a U.S. citizen orlawful permanent resident; and A person who is the non-abusive parent of a child who is orwas subjected to domestic violence or extreme cruelty by aU.S. citizen or lawful permanent resident parent. The parentherself need not be abused. PROCEDURE: Victim must be in removal proceedings If cancellation is granted, victim receives LPR status If cancellation is denied, victim is deported

EXAMPLES OF BATTERED IMMIGRANTS WHO DO NOTQUALIFY TO FILE A VAWA SELF -PETITION BUT MIGHTQUALIFY FOR VAWA CANCELLATION OF REMOVAL: T h e p a r e n t o f a n a b u s e d c h i l d , r e g a r d le s s o f t h e c h i l d ’ s U . S . c i t i z e n s h i p , w h o w a s n e v e rm a r r ie d to t h e c h i l d ’s a b u s i ve U . S . c i t i z e n o r p e r m a n e n t r e s i d e n t p a r e n t ; T h e a b u s e d s p o us e o f a U . S . c i t i z e n o r p e r m a n e n t r e s i d e n t s p o u s e w h o h a s d i e d o r a nya b u s e d c h i l d r e n o f a U . S . C i t i z e n o r p e r m a n e n t r e s i d e n t p a r e n t w h o h a s d i e d o v e r 2 ye a r sago; A n a b u s e d s p o u s e w h o w a s d i vo r c e d f o r o v e r 2 ye a r s f r o m t h e U . S . c i t iz e n o r p e r m a n e n tr e s i d e n t a b u s e r s p o u se ; A n a b u s e d s te p c h i l d w h o s e i m m i g r a n t p a r e n t h a s b e e n d i v o rc e d f r o m t h e a b u s i v e p a r e n tf o r o v e r 2 ye a r s ; A n a b u s e d s p o u s e o r c h i l d w h o s e c i t i z e n o r l e g a l p e r m a n e n t r e s i d e n t p a r e n t r e n o u nc e dc i t i z e n s h i p o r l o s t l aw f ul p e r m a n e n t r e s i d e n t s t a t us o v e r 2 ye a r s a g o ; V i c t i ms o f c h i l d a b u s e o r i n c e s t a b u s e d b y a U . S . c i t i z e n o r p e r m a n e n t r e s i d e n t p a r e n tw h i l e u n d e r 21 ye a r s o f a g e b u t w h o d i d n o t f i l e t h e i r VAWA s e l f - p et i t i o n w h i l e t h ey w e r eu n d e r 21 a n d w h o a r e n o w o v e r 21 ye a r s o f a g e ; a n d V i c t i ms o f c h i l d a b u s e w h o c a n n o t e s t a b l i s h t h a t t h ey h av e r e s i d e d w i t h t h e U . S . c i t i z e n o rpermanent resident abuser parent.

BATTERED SPOUSE WAIVER When an individual becomes a U.S. resident due to marriage to aUSC, that individual gets CPR status for 2 years. Within 90 days of a CPR’s status expiration date (2 yearanniversary), the CPR and spouse are expected to jointly file aPetition to Remove the Conditions of Residence in order for CPR toget LPR status. But filing the Petitioner to Remove Conditions and gaining approvalfor LPR status can be difficult if the CPR is in an abusiverelationship and USC spouse is using immigration status as a way tocontrol CPR. The law offers the possibility of a “Battered Spouse Waiver” in thesesituations, which allows victim CPR to file a Petition to Remove theConditions of Residence without the cooperation of their abusivespouse.

VICTIMS OF CRIMINAL ACTIVIT Y:U NON-IMMIGRANT STATUS PURPOSE: Strengthen investigation and prosecution Protect victims of crime Q UA L I F Y IN G U V I S A C R I M E S : Rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexualcontact, prostitution, sexual exploitation, female genital mutilation, peonage, involuntaryservitude, slave trade, kidnapping, abduction (and crimes that fall under those “generalcategories”, i.e., stalking, strangling, intimidation, misdemeanor assault, etc.). C E RT I F I CAT I ON B Y A L AW E N FO RC E M E N T O F F I C E R, J U D G E , O R P RO S E C U TO R I SE S S E N T IA L FO R U V I S A A P P L I CAT I ON : Must show that the individual: (1) is a victim of a qualifying crime; (2) Possesses information regarding the crime; and (3) Is being, has been, or is likely to be helpful. I f g r a n te d U n o n i m m i g r a n t s t a t u s , i t i s v a l i d f o r 4 ye a r s . In most cases, one can request a green card after residing in US for 3 years and has notunreasonably refused to provide assistance to law enforcement since receiving U visa.

VICTIMS OF HUMAN TRAFFICKING:T NON-IMMIGRANT STATUS You may be eligible for a T visa if you: Are or were a victim of trafficking, as defined by law; Are in the United States, American Samoa, the Commonwealth of theNorthern Mariana Islands, or at a port of entry due to trafficking; Comply with any reasonable request from a law enforcement agency forassistance in the investigation or prosecution of human trafficking (oryou are under the age of 18, or you are unable to cooperate due tophysical or psychological trauma); Demonstrate that you would suffer extreme hardship involving unusualand severe harm if you were removed from the United States. If T nonimmigrant status is granted, may apply for LPR statusafter 3 years. T nonimmigrant status is valid for 4 years.

T OR U VISA? C o n g r e s s c r e a te d b ot h T a n d U v i s a s to e n c o u r a g e v i c t i m s o f c e r t a i n s e r i o u s c r i m e s toc o o p e r a t e w i t h l aw e n fo r c e m e n t o f fi c i a l s w h o a r e p r o s e c u t i n g c r i m i n a l o f f e n d e r s . O n l y c e r t a i n t y p e s o f c r i m e s w i l l q u a l i f y t h e v i c t i m fo r a T o r U v i s a ; b u t b o t h T a n d Uv i s a s i n c l u d e t h e q u a l i f y i n g c r i m e o f h u m a n t r a f fi c k i n g . So, which type of visa should a victim apply for? T Visa applicants must be in the U.S. due to trafficking. U Visa applicants must cooperate with law enforcement to a greater extent. U visa applicants must prove that they suffered “substantial physical or mental abuse”as a result of the qualifying crime. T visa applicants do not need to provide documentation of physical or mental abuse(though it will certainly help to build a more convincing case). However, T visaapplicants will need to show that their removal from the U.S. would cause “extremehardship involving unusual and extreme harm.” This can be difficult to prove. T h e r e i s a ye a r l y c a p o f 1 0 , 0 0 0 U v i s a s a n d a c a p o f 5 , 0 0 0 T v i s a s ( n o t i n c l ud in gv i s a s f o r d e r i va t i v e f a m i l y m e m b e r s ) . B e c a u s e o f t h e s e n u m e r i c al l i m it a t i o n s , yo um ay w a n t to s e e w h et h e r t h e c a p f o r e i t h e r v i s a c a te g o r y h a s b e e n r e a c h e d b e f o r eyo u a p p l y.

INTERNATIONAL MARRIAGE BROKER ACTOF 2005 (IMBRA) IMBRA mandates that the U.S. Government give immigrating foreign fiance(e)sand spouses information and self - help tools to help protect them againstviolence from the par tner s who sponsor their visas. Immigrating fiance(e)s andspouses are of ten unfamiliar with the U.S. laws and unsuppor ted by family orfriends to escape violence at home. If an agency qualifies as an “international marriage broker,” it is required togive foreign fiance(e)s back ground information on the U.S. client who wants tocontact them, including information contained in Federal and State sexof fender public registries, and get the prospecti ve foreign fiance(e)’s writtenpermission before giving the U.S. client his/her contact information. Theagency is required to give the foreign fiance(e) a copy of this pamphlet. It isprohibited from doing business with anyone under 1 8 year s of age. The criminal back ground information compiled by the agency comes fromvarious public sources, as well as information provided by the U.S. citizenclients on immigration applications. USCIS does not have access to all criminalhistor y databases in the United States. The U.S. citizen sponsor may not tellthe truth in the sponsor ship application. It is also possible the U.S. citizen hasa histor y of abusive behavior but was never arrested or convicted. Therefore,the criminal back ground information may not be complete. The intent ofIMBRA is to provide available information and resources to immigratingfiance(e)s and spouses.

ASYLUM In some rare cases, an immigrant victim of domestic or sexual violencecan pur sue asylum. Refugees who flee from their home countries to escape per secution onaccount of race, religion, political beliefs or par ticular social groupscan ask for asylum in the U.S. Ver y dif ficult form of relief to win due to high burden of proof. Shahid Haque-Hausrath of Border Crossing Law Firm, P.C., hassuccessfully won asylum for a Mexican woman who fled to escape herhusband’s severe violence and cruelty. Demonstrated that the client was viewed as the property of her husband, that shehad reported the violence to police and had been ignored, and that she had fledmultiple time only to be captured and returned to her husband. Under these circumstances, immigration judge agreed that abuse amounted topersecution on account of her “particular social group” and that she had areasonable fear of returning to Mexico.

LEGAL RIGHTS AFFORDED TO ALLVICTIMS OF DV IN THE U.S. All people in the United States, regardless of immigration orcitizenship status, are guaranteed basic protections underboth civil and criminal law. Laws governing families provideeveryone with: The right to obtain a protection order for that also includes children. The right to legal separation or divorce without spousal consent. The right to share certain marital property. The right to ask for custody of child(ren) and financial support.

CASE SCENARIO #1John and Maria met online and began a dating relationship. John lived inMontana and Maria is from the Philippines. John traveled to thePhilippines to meet Maria in per son, and while there, John asked Maria tomarr y him. He promised Maria that he would provide her with a betterlife in the U.S. Maria agreed to marr y John, and John applied for afiancée petition on Maria’s behalf. John made the travel arrangementsfor Maria and paid for her travel from the Philippines to Montana. Mariatraveled to Montana on the fiancée petition and began living with John.Soon af ter Maria arrived, John began ordering Maria to work on hisproper ty, to tend to the animals, clean the house, and do other manuallabor. John also demanded that Maria give him daily hour -long massages.John did not allow Maria to leave the proper ty except for occasional tripsto the grocer y store with John. Three months af ter Maria arrived, Johntold Maria he no longer planned to marr y her. John also star ted tocontact men online on behalf of Maria and he coordinated meetings withMaria and these men for the purpose of Maria providing sexual ser vices.Maria is afraid and does not know what to do. Af ter Maria has been livingwith John for four months, another Filipina woman in the communityassists her in contacting the local domestic violence program forassistance.

DISCUSSION What is Maria’s immigration status? What possible immigration remedies are availableto Maria? What immigrations remedies are not available toMaria?

CASE SCENARIO #2Elena and Marcos illegally entered the U.S. from Mexico in 2005 inorder to find work and to escape violence back home. At thattime, Elena and Marcos had one child, Ana, who was born inMexico in 2002. After arriving in the U.S., Elena gave birth to twosons, Ramon and Jose, now 3 and 7. Marcos has been physicallyand emotionally abusive towards Elena throughout theirrelationship, but Maria has feared calling law enforcementbecause she does not want to be deported and separated from herthree children. Recently, Marcos assaulted Elena outside theirapartment door when she was trying to flee, and neighbors calledlaw enforcement. Marcos was arrested and charged with assault.Maria and the children fled to a confidential domestic violenceshelter and are in hiding from Marcos, who was released 24 hoursafter his arrest. Marcos entered into a plea agreement fordisorderly conduct, and Maria and the children continue to live atthe shelter. Maria petitioned for and received an order ofprotection against Marcos that includes the children, but wants toknow what immigration remedies may be available to her.

DISCUSSION What is the immigration status of each of thefamily members? What immigration remedies are available to Maria? To the children? What immigration remedies are not available? Who could potentially certify for a U visa?

RESOURCES U.S. Citizenship and Immigration Service ( uscis.gov) National Immigrant Women’s Advocacy Project (NIWAP)(niwap.org) Asista (asistahelp.org) Border Crossing Law Firm, P.C. ( bordercrossinglaw.com)

QUESTIONS?Ries Law Group. P.C.P.O. Box 8364 Missoula, MT 59807(406) 541-4141SAFE HarborP.O. Box 1773 Polson, Montana 59860(406) 883-3350www.safeharbormt.orgBrandi Riesoffice@rubinrieslaw.comHilly McGahanhilly@safeharbormt.org

lawful permanent resident; and A person who is the non-abusive parent of a child who is or was subjected to domestic violence or extreme cruelty by a U.S. citizen or lawful permanent resident parent. The parent herself need not be abused. PROCEDURE: Victim must be in removal proceedings If cancellation is granted, victim receives LPR status

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