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Vulnerable Immigrant Women and Children Excluded from VAWAs Protections: The Human Faces Behind HR 4970

When it comes to immigrant survivors of domestic violence, sexual assault, child abuse, and other violent crimes, HR 4970, the Violence Against Women Reauthorization Act of 2012 represents a sharp regression, not a true reauthorization. HR 4970 would effectively gut current protections under the Violence Against Women Act (VAWA) for immigrant survivors: it would create new obstacles to U visa eligibility for victims who report crimes and cooperate in investigations and prosecutions, increase the danger to battered immigrants by eliminating important confidentiality protections in the current VAWA self-petition process, and undermine current anti-fraud measures and compromise victims access to justice by removing VAWA adjudications from a specialized and centralized unit and dispersing them to untrained immigration officers around the country. HR 4970s provisions would roll back years of progress and commitment on the part of Congress to protect vulnerable immigrant victims. These changes would also seriously undermine the U visa as a law enforcement tool, which, as exemplified below, has been successful in encouraging immigrant victims to come forward to report crimes, cooperate with police and prosecutors, and ultimately, help put violent perpetrators behind bars. Daniela* was brutally beaten, burned, mutilated, raped and tortured by her boyfriend over the course of two years. The boyfriend also sexually and physically abused Danielas young son. The County Prosecutors Office has described the case as one of the most horrific cases of domestic violence that their office has ever seen. Daniela obtained services from a non-profit organization for victims of abuse and applied for a U visa based on her cooperation with the police and the Prosecutors Office in the criminal investigation and prosecution of her abuser. Danielas abuser already had an extensive criminal history but thanks to Danielas cooperation with law enforcement, he has been sentenced to more than 20 years of prison for his crimes. Victoria* was a 27-year-old married mother of four when she was assaulted by two strangers who had broken into her home one night when she was home alone. They were looking for money but found none and both sexually assaulted her. Victoria experienced nightmares, anxiety and flashbacks. Through the help of a community-based organization for victims of sexual assault, Victoria received counseling services and participated in ongoing support and educational groups. Victoria assisted the police in their investigation and the men were arrested and convicted for aggravated sexual assault, and obtained a U visa as a result of her cooperation. The following additional real-life examples, which highlight the devastating consequences that HR 4970 would have both on immigrant victims of violence and on public safety, were provided by survivor advocates nationwide and collected by the Immigration Committee of the National Task Force to End Sexual and Domestic Violence Against Women.

Eliminates Crucial Confidentiality Protections and Endangers Victims (Sec. 801) This provision eliminates crucial confidentiality protections for victims accessing the VAWA self-petition and cancellation of removal processes. Requiring notification to the alleged abuser that his/her spouse has filed

Created by the Immigration Committee of the National Task Force to End Sexual and Domestic Violence.
For more information, please contact Grace Huang, Washington State Coalition Against Domestic Violence at Grace@wscadv.org or Mony Ruiz-Velasco, National Immigrant Justice Center at MRuiz-Velasco@heartlandalliance.org.

a VAWA self-petition puts victims at serious risk of harm, and may trigger an escalation of violence. Many victims who file for relief under VAWA are still living with an abusive spouse due to economic dependence, threats of deportation by the abuser, limited access to services and support, or a fear of being separated from or losing custody of their children, among other reasons. Allowing abusive spouses to be interviewed during the adjudication process, as HR 4970 proposes, would simply allow abusers an additional opportunity to manipulate the immigration process and block a victims access to legal status as a tool of abuse and DHS would effectively be inviting, and even facilitating, abusers ability to take advantage of that opportunity. Example: Sara*, now in her mid-20s, came to the U.S. on a student visa to study at a university. During her studies, she fell in love with and married an American citizen. Her husband became controlling and aggressive, forcing her to quit school. His beatings became increasingly violent, culminating in a particularly vicious attack in which he beat and strangled her to the point of unconsciousness, and left her for dead. Neighbors called the police and they had to break down the door to rescue her. Sara was so afraid of her husband that she withdrew the charges against him out of fear that if she pursued the criminal cases, he would kill her. Sara had no one in the U.S. to turn to. Even more, as is common in the Haitian community, Saras abuser not only supported her but also her family back in Haiti. Without legal status to work, Sara was unable to escape her extremely dangerous husband, unable to support herself, and unable to help her family. Sara finally found an immigration attorney to help her. Together, they completed the VAWA application in secret. Once it was approved, Sara fled to another state. Her husband was so enraged that he began threatening her attorney when he found her business card. Fortunately, her husband has never found Sara. She is now a lawful permanent resident. She feels certain that if her husband had found out about the VAWA application, he would have killed her. Americans for Immigrant Justice (Florida) (appears in http://www.huffingtonpost.com/michelle-m-ortiz/violence-against-women-act-hr4970_b_1477989.html?ref=politics). Example: Anisa* has tried to leave her abusive spouse several times, but is still living with him out of necessity. There are no womens shelters in her area and she is worried about pulling her US citizen children out of the good schools they are in, especially without somewhere to go. Anisa is preparing to submit a VAWA self-petition, and feels that she will only be able to safely leave and support herself and her young children once she has legal status and a work permit. As part of preparing her VAWA application, Anisa was desperately searching for her marriage certificate and trying to find out what status her husband had in the United States by looking through their papers. Her husband caught her looking through the documents, and was so enraged that he held her head over the flame that he lit on their gas stove to threaten her to stay out of his business. If the government were to contact Anisas abuser during the VAWA self-petition process, and he found out she was taking steps to leave him, her life and the safety of her children would be at even greater risk. Tahirih Justice Center (Virginia) Example: Maria is from the Dominican Republic. In 2010, she filed a VAWA self-petition after being abused by her US citizen husband, Victor, for over seven years. While she was with him, Victor slapped and punched her regularly; he attacked her in her sleep; he forced her to have sex with him; he spit in her face regularly. One day, he took a hammer to their apartment and smashed up all of the furniture. That same day, he threw a vacuum cleaner at her head. When Maria finally gathered up the courage to leave her abuser, he continued to harass her with late-night phone calls and insults. She was afraid to file the VAWA self-petition because of what her husband might do to her and her son if he ever found out that she told immigration or the police about the abuse she suffered. She knew that he did not think she was able to get immigration status without his cooperation and she worried what his reaction would be if he learned that she could apply without him. The confidentiality of her VAWA application was the only thing that made her feel safe enough to go forward with the application. Catholic Charities of Boston Refugee and Immigration Services (Massachusetts)

Example: Marcela*, who has a four year old daughter, experienced increasing verbal and physical abuse by her husband. One day, after he punched her in the face, Marcela reported the abuse and her husband was arrested for domestic battery. He retaliated by calling Immigration and Customs Enforcement, who took Marcela into custody. To her horror, she was then forced to remain in the same jail as her abuser for several days. Marcella was eventually able to escape her husband and obtain secure legal status under VAWA. As noted above, involving Marcelas abuser in the VAWA self-petition process would have simply allowed him a further opportunity to manipulate the immigration system in order to punish Marcela for speaking out against the abuse, as he had already proven he was willing and capable of doing. YWCA of Rock County (Wisconsin) Example: Maria* married John*, a lawful permanent resident, and they have 4 US citizen children together. They lived together with Marias two US citizen children from a prior relationship. John physically abused Maria and threatened to kill his two stepchildren. Instead of petitioning for Maria to obtain legal status, Marias husband constantly threatened to have her deported if she ever left him or called the police. John kept Maria isolated from friends and family, broke her cell phone so she couldnt call anyone, and destroyed her glasses on multiple occasions. Marias vision is very poor, and without glasses, she is in an extremely vulnerable position. With the help of her sister, Maria sought help from an immigration attorney. One of her primary concerns was that her husband would find out about her VAWA application. Maria believed that if John learned she was applying for immigration status, he would become so furious that he would seriously harm her and her children. Maria and her attorney went to great lengths to ensure that her husband never found out about the petition, even going so far as to arrange meetings at a laundromat on Marias usual laundry day so that John would not become suspicious. Maria hid her immigration paperwork in a Medicaid application so if her husband found it, he wouldnt know what it was. When the attorney gave Maria her VAWA approval notice and work authorization, she broke down crying. She finally felt that she could leave John and that this was the start of a new beginning for her and her children she finally had a way out of an impossible and dangerous situation. Michigan Immigrant Rights Center (Michigan) Dismantles Specialized Unit and Requires VAWA Applicants to Be Interviewed by Generalist Adjudicators at Local District Offices (Sec. 801) Currently, VAWA self-petitions are adjudicated at the Vermont Service Center, where the adjudicators receive specialized training and supervision on understanding domestic and sexual violence. Supervisors and staff have many years of experience with the VAWA self-petition process, as well as the cycle of violence and important factors to consider in VAWA cases. The centralization of this process also allows adjudicators to develop expertise in fraud detection and monitor trends in VAWA cases. Adjudicators in local district offices dispersed throughout the country do not have the benefit of that specialized training and supervision, and their lack of understanding on issues of violence may severely impact the decisions they make, potentially compromising victims safety and exposing them to re-traumatization. Additionally, this provision creates duplicative and unnecessary bureaucracy. The local district offices already must undertake interviews when the victim seeks to adjust her/his status to become a legal permanent resident. Requiring two interviewsone at the VAWA self-petition stage, and one at the adjustment stagewould be costly, inefficient, and lead to further delays in the already long and precarious period of time victims must wait to secure their legal status. Example: Constance* and her 4 year old daughter were attending an interview at the local Houston District Office to adjudicate their Adjustment of Status. Their I-360 VAWA petition had already been approved by the Vermont Service Center. Both Constance and her 4 year old daughter had been sexually abused by Constances husband. The officer improperly asked questions about the abuse in front of the four year old, including details about Constances forced abortion and the sexual abuse of both of them, despite the repeated objections of her attorney. Constance was crying and her daughter was agitated. The officers response to the attorneys objections was not only legally incorrect but also grossly insensitive. She

responded, first, that anything was relevant to the adjudication of the I-485 because it was discretionary. She also said that questioning of the 4 year old was proper because she was also an applicant. Later on that day, Constances daughter was admitted at the childrens hospital because of panic attacks. Houston Immigration Attorney (Texas) Imposes Steep Clear and Convincing Evidence Standard on Abused Family Members of US Citizens and Legal Residents (Sec. 801) This provision would also change the standard of proof in self-petition cases to clear and convincing evidence from the current preponderance of evidence standard. This would set a higher standard for abused family members of US citizens and lawful residents than that required for other forms of humanitarian relief, such as asylum. It also does not take into account the challenging circumstances facing immigrant survivors fleeing abuse, who often lack access to services and legal representation, and encounter language barriers and other hurdles to reaching out for help. Example: Elodie*, originally from Gabon, was married to a lawful permanent resident who became increasingly abusive after the marriage including becoming financially controlling, demanding sex, and threatening to have her deported. After years of cruel abuse, and after realizing that domestic violence was a crime and recognizing that she was a victim, Elodie tried to get help. She started gathering documents in the house to prepare her VAWA claim. She was unable to leave the house because she had nowhere to go with her five children. At some point, her husband discovered the pile of papers Elodie had hidden among clothes in her closet and destroyed all of the documents she had gathered to support her VAWA case. While advocates are working with this client to build the best record possible, some of these documents are irreplaceable. Under the proposed bill, Elodie would likely not be able to meet the increased evidence standard to obtain vital relief under VAWA, forcing her to remain with her abuser, despite the fact that it is perversely and precisely her abusers total control over her every action that makes her such a compelling applicant for VAWAs protections. Tahirih Justice Center (Virginia) Mandates a Permanent Bar, Criminal Investigation, Expedited Removal of Victims for Supposed Material Misrepresentations (Sec. 801) This section triggers a sequence of especially grave consequences in VAWA cases where DHS finds material misrepresentation in a petition, during an interview, or during any other aspect of the adjudication. If such a finding is madeand presumably under HR 4970 this life-or-death determination could be made by a lower-level generalist adjudicator at a local district office who has no training in domestic violence and sexual assault and how it affects victimsthe applicant would be permanently barred from immigration benefits, referred to the FBI for criminal prosecution, and removed on an expedited basis. Their derivative family members would also be permanently barred from immigration benefits, including prosecutorial discretion and deferred action. This provision would severely punish victims who often lack access to legal representation and services and encounter language barriers in the adjudication process; or those who may not share all details they find too painful, personal, or humiliating at all points in the process. It does not take into account mistakes or misunderstandings on either the part of the victim or the government as the petition is submitted or evaluated. It has the potential to result in gross miscarriages of justice, re-victimizing survivors and discouraging others from seeking help because they fear the stakes are too high for any innocent mistakes they may make as they try to navigate this complex process. Example: Laura* came to the United States as a fiance of a U.S. citizen with her two young boys. Joe*, the fianc, brought them to live in a remote part of Georgia. Once they married, Joes personality and treatment of her changed drastically. He refused to file immigration paperwork for her, leaving her without lawful status. Laura had no drivers license, she couldnt work, she had no family or friends to turn to, and Joe only gave her small amounts of money to go to the grocery and run errands. Besides controlling and

isolating Laura, Joe was physically abusive to her sons. He hit them and told them that they could not shower daily because water was too expensive. Laura was finally able to get help when a neighbor called Family Services. They investigated and said the children must be removed from the home. Laura went to a shelter with her boys, while the neighbor searched for a volunteer immigration attorney. Meanwhile, Joe drove to Atlanta to the ICE office and accused Laura of tricking him into marriage to get to the U.S. The ICE officer initiated removal proceedings against her. Moreover, the ICE officer tracked Laura to the shelter and began leaving threatening messages saying that he would go to the shelter to get her if she didnt turn herself in. Finally, Laura found an attorney who was able to intervene with ICE and help her file a VAWA self-petition. This example illustrates both the danger of involving the abuser in the process, and how a DHS officer, replying on the abusers misrepresentations, may unjustly decide that it is instead the victim who has made the material misrepresentation (as Joe accused Laura before the ICE officer, of not entering the marriage in good faith). Such a finding could swiftly set in motion the whole host of punitive consequences that HR 4970 outlines, including Lauras expedited deportation, and again, unwittingly enable abusers to enlist DHS to do their dirty work. Private Attorney (Georgia) Restricts Issuance of Law Enforcement Certifications for U Visas (Sec. 802) Section 802 undermines the law enforcement purpose of the U visa and imposes barriers on victims who seek safety by restricting the circumstances in which law enforcement certifications re: victims cooperation can be issued. It does this by requiring that the crime be actively under investigation or prosecution, and mandating that the petitioner has provided information that will assist in identifying the perpetrator of the crime or that the perpetrators identity is known. -Crime Actively Under Investigation or Prosecution This language restricts issuance of law enforcement certifications to situations where the criminal activity is actively under investigation or that prosecution has commenced. Requiring an active investigation or prosecution restricts law enforcements ability to make strategic decisions about issuance of U visas, and may result in re-victimizing or penalizing the victim for the decisions and actions of others not to pursue an investigation or prosecution at that time, or not to provide law enforcement certification until a prosecution is completed. Example: Ana* was 12 years old when she was sexually assaulted by a family friend, whose sister lived downstairs from her. He began by touching her over her clothes and then inside her clothes, and eventually raped her multiple times. After he raped her he would become very aggressive, swearing at her and insulting her. Ana was very scared and did not know what to do. She confided in a friend, and asked her parents if they could move. Her family moved months later. After they moved, Anas friend told their pastor about the crimes, who informed Anas family. Anas parents reported the crime to the police immediately after finding out what had happened. When discussing the possibility of seeking U visa status, the police consulted with the prosecutor, who did not want the certification signed prior to Anas testimony and the conclusion of the criminal trial. After the prosecution concluded, the police attested to Ana and her parents helpfulness, and Ana and her family were able to obtain U nonimmigrant status. Under HR 4970, Ana and her family could not have obtained protection provided by the U visa, as the investigation and prosecution were concluded prior to filing for U nonimmigrant status. Catholic Charities (New Hampshire) -Identifying the Perpetrator HR 4970 proposes that the victim must identify the perpetrator or must have provided information to law enforcement that will assist in identifying the perpetrator of the criminal activity. Victims who courageously report a crime to and cooperate with police, but lack concrete identifying information about perpetrators, may not be eligible for a U visa. This especially harms survivors of stranger assaults where the assailant

takes particular care to conceal or disguise his identity, including blitz sexual assaults, a form of stranger rape where the perpetrator rapidly and brutally assaults the victim with no prior contact. Example: At the age of 58, Lourdes* was walking to church alongside what is typically a busy road when a stranger attacked her from behind. He took her into the woods where he severely beat and raped her. As a result of the attack, Lourdes suffered physical injuries including bruising all over her body, spent several days in the hospital, and received treatment for severe trauma and depression. Despite this, Lourdes reported the attack and rape to the police immediately after it happened. They searched for her attacker but never found him. Lourdes received a U visa, and remains willing to cooperate if the police are ever able to apprehend her attacker; her testimony as to how she was attacked, even though she cannot provide specific details about the perpetrator himself, could aid in obtaining a conviction could aid in obtaining a conviction not only in her case but also in others if the perpetrator is a serial rapist. However, under the proposed legislation, both because she could not ID the perpetrator as such, and because the case is not currently under active investigation, Lourdes might be ineligible for a U visa; but without the reassurance the U visa provides, she might never have come forward to report the crime, too afraid that she would have been deported rather than helped. Tahirih Justice Center (Virginia) Terminates Eligibility of U Visa Recipient For Permanent Residence (Sec. 806) The proposed legislation terminates the eligibility of U visa recipients for permanent residence. This would discourage crime victims from cooperating with law enforcement, especially in complex or dangerous criminal investigations or prosecutions or where the victim may fear retaliation from the abuser/perpetrator or the abuser/perpetrators family or accomplices if they are deported back to the same home country. It also eliminates stability for vulnerable crime victims and their children, forcing them to return to countries where they may face the risk of continued violence without the protection from law enforcement that they could access in the United States. Example: Maria* was abused for years by her Legal Permanent Resident husband. In addition to abusing her and their deaf-mute son, her husband tried to kill her by attacking her in the shower and suffocate her with a shower curtain. He pled guilty to the lesser charge of domestic violence, avoiding a lengthy jail sentence, but ended up in removal proceedings and was deported back to El Salvador. Maria applied and was granted a U visa as a result of her cooperation with law enforcement. Maria received threats from him from El Salvador, and was shocked and terrified to find him about a year later waiting for her in front of her workplace. She called the police who arrested him. He was returned to El Salvador, where he continues to threaten her. Maria could not rely on the police to protect her in El Salvador, where domestic violence is largely viewed as a private dispute, if she had to go back after her U visa expires. Houston Immigration Attorney (Texas) Example: Lucia* endured physical and sexual abuse from her husband for 10 years. He dragged Lucia around the house by her hair, forced acts of sodomy upon her, and beat her while she was pregnant. Lucias mother, who was also a victim of domestic violence, and her husbands family refused to help. The violence got worse, and Lucias husband began beating their son sometimes with a belt leaving black and blue marks on his body. He constantly threatened to call immigration authorities if she did not do what he said. In 2008, Lucia separated from him. Despite the separation, her husband forced his way into Lucias home, threatening her with deportation, repeatedly hitting her and their children. One day, he arrived unexpectedly and said he was going to be deported but that he planned to hurt Lucia with a gun before he left. The police were called and they arrested him, but it took several weeks of treatment before Lucia felt safe enough to describe what happened during the course of her marriage to police. After cooperating with the police, Lucia was granted a U visa. Lucias home country does not have laws protecting victims from domestic abuse, and she is sure that she and her children would be in grave physical danger if they were

forced to return to the same country where her abuser had been deported. Victim Resource Center of the Finger Lakes, Inc. (New York) Example: Elena* met her abuser when she was a 12-year-old girl in her home country, and suffered nearly daily violence for over a decade, including beatings with a belt and the dull side of a machete, and constant rapes. Elena came to the United States with her abuser, and eventually summoned the courage to call the police when her abuser began beating her in front of their US citizen child. Elena reported the violence and testified against her abuser in court, despite direct threats from her abuser designed to prevent her from testifying. Elenas abuser was found guilty and deported as a result of this conviction. Since his deportation, the abuser continues to harass and threaten Elena by phone (despite the fact that she has changed her number multiple times to avoid his threats) and promises that if she returns to their home country he will put her six feet under because of her cooperation with the police and prosecution in the United States. If the U visa were only a temporary form of relief, with no possibility for eligible individuals to obtain lawful residence, Elena would be at risk of death if she were required to return to her home country upon expiration of her U visa. Tahirih Justice Center (Virginia) *Victims names have been changed to protect confidentiality and safety.

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