Immigration and Family Law

1
Immigration and Family Law

• Child Custody and Domestic Violence Institute
• Chicago, Illinois
• May 12, 2006

2
Ana and Jorge Case Hypothetical

• What, if any, immigration relief might Ana be
  eligible for and what can you do to help her with
  her immigration case?
• What are the issues that might arise in custody
  case between Ana and Jorge and how will you
  advise Ana?
• What is the ideal team of people who could work
  together to help Ana?

3
Immigration Law Options for Abused Immigrants
4
Potential ImmigrationLegal Remedies

• Applications filed with DHS/CIS
• VAWA self petition (Form I-360)
• Battered spouse waivers (Form I-751)
• U visa
• T visa
• Asylum and withholding of removal (Form I-589)
• Forms of relief from removal- granted by
  Immigration Judge
• VAWA cancellation of removal
• VAWA suspension of deportation

5
VAWA Self-Petitioning Requirements
6
General VAWA Self-Petitioning Requirements

• VAWA self-petitioner must have been
• Subjected to Battery or Extreme Cruelty
• By a U.S. Citizen or Permanent Resident spouse,
  parent, adult son/daughter (over 21)
• Self-petition must be filed within 2 years of
  date of dissolution judgment
• With Whom self-petitioner resided (no time period
  required)
• Good Moral Character
• Good Faith Marriage
• Prima Facie Determination Public Benefits

7
Proof of Legal Marriage

• Proof of prior divorces of both parties
• Common law marriages are valid if valid under
  state family code (e.g., TX, IA)
• Bigamy by abuser will not bar filing if
• Good faith intent by self-petitioner AND
• Wedding ceremony
• Good faith marriage
• Not entered into solely for immigration purposes

8
Extreme Cruelty

• Emotional Abuse
• Economic Abuse
• Sex Abuse
• Coercion
• Threats of deportation
• Physical abuse

• Intimidation
• Social Isolation
• Humiliation, insults
• Possessiveness, stalking
• Harm to pets
• Minimizing, Denying Blaming

9
Evidence

• Any credible evidence
• Self-petitioners declaration primary evid.
• Corroborative evidence not required
• Extreme cruelty or battery
• Other persons declarations
• Restraining order
• Medical records
• Police reports, criminal prosecution records
• Mental health, religious/clergy, DV service
  providers

10
Immigrant Crime Victim Visas (U)
11
Crime Victim (U) Visa Requirements

• Substantial physical or emotional abuse from
  criminal activity
• Possesses information about criminal activity
• Criminal activity must have occurred in U.S. or
  otherwise violate U.S. law
• Certification from government official that
  victim has been, is likely to be or is being
  helpful to an
• Investigation or prosecution of criminal activity

12
Who can certify? (may be altered after
promulgation of U visa regulations)

• Police officer
• Prosecutor
• Judge
• Immigration Officer
• State or Federal Agency Employee
• Child Protection Services Worker
• EEOC
• VOCA staff

13
U visa crimes covered

• Rape
• Torture
• Trafficking
• Incest
• Domestic violence
• Sexual assault
• Prostitution
• FGM

• Being held hostage
• Peonage
• Involuntary servitude
• Slave trade
• Kidnapping
• Abduction
• False Imprisonment

14
Crimes Covered -- Continued

• Blackmail
• Extortion
• Manslaughter
• Murder
• Felonious assault
• Witness tampering

• Obstruction of justice
• Perjury or
• Attempt, conspiracy or solicitation to commit any
  of these crimes

15
Persons who will be helped

• Victims of rape and sexual assault
• Abused immigrants who are not covered by VAWA
  i.e. spouses of non-citizens, dating violence
  victims, lesbian/gay victims.
• Nanny held hostage by employers
• Victims subjected to rape/sexual assault by their
  employers or coworkers
• Trafficking and forced prostitution victims
• Victims of FGM committed in the U.S.
• Abused wives/children of Diplomats/students/worker
  s
• Non-citizens subject to slave labor
• Victims of many violent crimes

16
Civil Protection Orders and Battered Immigrants
17
Protective Effect of Protection Order

• Work better when abuser non-citizen
• Changing the balance of power in the relationship
• Violation of protection order deportable offense
• Enforcement for CPO violations occurring outside
  the country

18
Protection Order Effectiveness

• NIJ study participants
• 37 threatened or injured with a weapon
• 50 beaten or choked
• 99 intimidated through stalking, threats,
  harassment
• Simple act of receiving CPO improved sense of
  victims well-being
• 72 improved lives after 1 month
• After 6 months
• 80 felt safer
• 85 life improved
• 90 felt better about themselves

19
Creative Remedies

• What are some examples of creative protection
  order remedies you have used in your cases

20
Protection Order Provisions that Deter Parental
Kidnapping

• Not remove the children from the courts
  jurisdiction
• Turn over passports of parties and/or children
• Sign statement that no visa or passport should be
  issued to children absent court order.
• Supervised visitation
• Bond

21
Creative Remedies in Protection Orders

• Catch-all Provisions for CPOs-- Respondent
  Shall
• sign DHS Freedom of Information Act request
• pay costs of petitioners immigration case
• turn over to petitioner information, documents,
  or copies of documents

22
A protection order or discovery can help a victim
obtain needed evidence

• Marriage certificate
• Wedding/family pictures
• Birth certificates
• Love letters
• Copies of joint leases/utility bills

• Police, medical, court documents about the
  relationship,
• Copy of abusers green card or passport

23
Protection order or discovery continued

• School records
• Medical records
• Employment records
• Social security number information
• Health insurance

• Childrens birth certificates
• Letters and other mail addressed to the victim
  and to the abuser at the same address
• Copy of I-130 petition

24
Catch-all Provisions for CPOs-- Respondent Shall

• not contact DHS/other government official about
  the petitioner absent permission of the court
• cooperate in and not withdraw any case he has
  filed for petitioner with DHS
• For abusers who filed immigration case, not
  withdraw and not revoke the immigration case for
  their spouse or children

25
Catch-all Provisions Continued

• Defendant must obtain prior court approval before
  contacting any government agency (CPS, DHS,
  Welfare etc.) concerning the petitioner except
• Police emergency
• Subpoena
• cooperate in and not withdraw any case he has
  filed for petitioner with DHS

26
Importance of Remedies That Curb Immigration
Related Abuse

• Curbs lethality
• Ordering abuser not to contact immigration
  authorities consistent with federal VAWA
  confidentiality laws
• Order controls abusers behavior in using
  immigration status as power and control not his
  speech

27
Victims who stay

• Protection orders can be issued in all states to
  offer protections to immigrant victims who stay
  with their abusers
• No abuse
• Counseling
• Can ask for protection order provisions that
  gives victim custody if they separate

28
Overcoming the she must leave him presumption

• Abused immigrant must choose if, when, and under
  what conditions to leave abusive home. She knows
  him best.
• May take many (average 7) attempts before she
  permanently leaves abuser
• Leaving abuser can be extremely dangerous.
  Highest rates of DV homicide correspond with
  efforts to leave abuser and/or access help.

29
Overcoming the she must leave him presumption-
Continued

• Legal system, service providers, community-based
  organizations, religious institutions must
  support abused immigrant, regardless of whether
  she leaves or stays with abuser
• Leaving abuser may not be option
• Homelessness, poverty
• Loss of immigration status
• Children
• Language

30
Important Economic Provisions

• Maintain medical, car, house insurance
• Maintain mortgage, rent, utility and/or debt
  payments
• Child support and spousal support
• Injunctions against third party institutions not
  to respond to acts by the abuser that would harm
  her(banks, retirement funds, utility companies)

31
What can you do to obtain the highest amount of
support?

• Send Employers Statement
• Send Employers Affidavit
• Obtain tax returns
• With FOIA obtain Affidavit of Support filed with
  petition I-130
• Request both child support and spousal support
• Make sure pleadings always include request for
  retroactive and arrearage child support and that
  final orders include the award
• Always obtain Writ of Withholding

32
Economic Relief Continued

• Turn over income tax statements (subpoena before
  hearing)
• Protective provisions regarding income tax
  returns
• Victim named trustee for receipt of tax return
  funds, respondent ordered to sign check
• Victim awarded exclusive right to claim children
  as tax exemptions
• Respondent pays victim ½ of return

33
Helping Victim Document Violations To Enhance
Probability of Success in Future Enforcement
34
Myth Issuance of a Protection Order Will Result
in Abusers Deportation

• Issuance of Protection Order ? abusers
  deportation
• Violation of protection order is a deportable
  offense

35
Post Protective Order Safety Planning

• Explain the importance of having a copy of order
  at all times, at school, daycare, employment,
  etc.
• Victim must still be cautious (be aware of
  Respondents attempts to get victim to
  rescind/drop order)
• Explain Full Faith and Credit (especially for
  migrant victims)

36
Empowering Victim to Decide Whether or Not to
Enforce

• Explain all ramifications of enforcement
• Allow victim to decide
• Explore enforcement options
• Civil contempt proceedings
• Criminal contempt
• Criminal enforcement
• 100 enforcement problematic for immigrant
  victims
• Creative punishment options

37
Strategies for the Client

• Call police to report violations even when client
  is not seeking arrest or other police action
• Keep a journal/calendar of all violations
• Document the impact of the violations on the
  victim and her children

38
Strategies for the Client Continued

• Tell someone else (friend, co-worker, therapist,
  trusted family member, clergy)
• Take photographs
• Keep letters, e-mails, phone messages
• Report injuries to health professionals

39
Dangers of CPO Violation Findings and Criminal
Convictions for Battered Immigrants
40
Dangers of Protection Orders Issued Against
Immigrant Victims

• Violation of protection order by non-citizen
  victim becomes deportable

41
Criminal Convictions and Protection Order
Violations Can

• Cause Non-citizens to Lose Their Legal
  Immigration Status

42
Conviction or Finding of Protection Order
Violation Can Cause

• Lawful permanent residents to loose their green
  cards
• Denial of naturalization
• Approved VAWA self-petitioner to be denied lawful
  permanent residency
• Immigration Judge to deny VAWA cancellation

43
Dangers of Criss-Cross Petitions for Protection
Order

• Violation of a protection order is a deportable
  offense
• Need for careful interviewing of client to
  determine
• Any merit in his charges against her
• Self-defense
• Who is the primary perpetrator in the
  relationship
• Ask about telephone conversations, witnesses,
  letters, and/or e-mails

44
Potential Strategies

• If no validity to his charges or if she acted in
  self defense
• Do not consent to issuance of a protection order
  against the victim
• If abused, file a protection order against him
• Be prepared for trial to defend against issuance
  of the protection order against her.

45
Potential Strategies For Victims Continued

• If there are incidents in which she cannot claim
  self defense and he may be able to prove she
  committed domestic violence against him
• File other family law pleadings (e.g. divorce or
  custody before the hearing)
• Do not consent to a protection order
• Instead try to negotiate a form of injunction in
  the family court case that would not be
  considered a protection order under state
  domestic violence statutes

46
Issues Raised by Abusers in Custody and
Protection Order Cases Brought By Immigrant
Victims
47
Myth No Jurisdiction for Non-Citizen Victim To
Bring Family Court Case

• Immigration status not relevant to establishing
  jurisdiction in family court cases. Basis for
  jurisdiction is
• Protection order case domestic violence crime
  committed in state or victim needs protection in
  state

48
Jurisdictional basis continued

• Divorce case residency of party in state
• Legal immigration status not required to
  establish residency under state family laws
• Custody case home state of children under
  (UCCJEA and Federal PKPA)
• Child support case where child or non-custodial
  parent lives

49
Equal Protection and Due Process

• Denying access to the courts to immigrants on
  immigration status grounds violates equal
  protection and due process
• Under constitutional law immigrants can be sued
  and bring suit in U.S. courts

50
Urging Courts to Be Wary Of Becoming A tool Of
Immigration Related Abuse

• Courts should be wary any time a party raises the
  immigration status of the opposing party in a
  family or criminal court case
• Parties may choose to raise issues regarding
  their own immigration status in a court case

51
Examples of when raising immigration status may
be part of pattern of abuse

• One party raises immigration status of the
  opposing party to
• Prevent the court from having jurisdiction
• Gain advantage in a custody case
• Undermine the opposing partys credibility
• Exert power and control to gain advantage in
  settlement or mediation

52
Examples of when a party may raise their own
immigration status

• In a custody or divorce case to explain
• How their inability to work is tied to their
  spouses immigration related abuse
• To explain the need for child support, alimony or
  maintenance
• In a custody or child abuse case to demonstrate
  why they may not have accessed public benefits
• To explain how threats of deportation prevented
  them from leaving an abuser who controlled her
  immigration status and that her actions should
  not be deemed failure to protect

53
Myth A State Court Ruling Will Confer An
Immigration Benefit On The Victim

• IIRAIRA 1996 ended the ability of state court
  judges decisions to determine outcomes in
  immigration cases
• State court findings of residency for family
  court purposes will not affect an immigration
  case in any way.
• Granting a protection order or other family or
  criminal court relief to an immigrant victim will
  not give her immigration status she would not
  otherwise qualify for.
• All forms of immigration status open to victim
  require proof of multiple issues of which abuse
  or the crime is only one

54
Custody
55
Immigration Related Abuse and Fear of Losing
Custody

• 1st and 3rd most reported reasons that immigrant
  victims stay with abusers
• Victims believe if they seek help the abuser will
  have them deported and cut them off from access
  to their children

56
ABA Center on Children and the Law -- Position

• Batterers whose victims are immigrant parents
  use threats of deportation to avoid criminal
  prosecution for battering and to shift the focus
  of family court proceedings away from their
  violent actsWhen the judicial system condones
  these tactics, children suffer.

57
ABA Center on Children and the Law -- Position

• Parties should not be able to raise, and courts
  should not consider, immigration status of
  domestic violence victims and their children in
  civil protection order, custody, divorce or child
  support proceedings.

58
ABA Position Continued

• This will ensure that children of immigrant
  domestic violence victims will benefit from laws
  (like presumptions against awarding custody or
  unsupervised visitation to batterers) in the same
  manner as all other children.

59
Facts

• Safety of children is promoted by awarding
  custody to non-abusive parent without regard to
  the parents immigration status
• Many immigrant victims who come to courts for
  help will today qualify for legal immigration
  status through VAWA or the U visa but they may
  not know it.

60
If Battered Immigrant Client is VAWA Eligible

• Consider turning his raising immigration status
  around against him
• Demonstrate that she does not have legal
  immigration status because he never filed
  immigration papers for her
• Her lack of status is part of his power and
  control

61
Litigation Preparation

• Prior to litigating any custody case or
  protection order case in which the abuser is
  likely to contest custody or raise immigration
  issues
• Determine if client is eligible for any
  immigration relief due to the domestic violence
• Cross examine abuser regarding use of immigration
  status to control victim

62
Myth Immigration status relevant to custody
case because immigrant victim will flee the
country with the children

• Lack of legal immigration status does not mean
  deportation is eminent
• Legal immigrants and naturalized citizens are
  more likely to flee with children when
• There have been threats
• They are dual nationals
• They have the ability to travel freely to and
  from the US

63
Court Should Treat This As Any Other Case In
Which a Threat of Child Kidnapping is Alleged

• Rather than allow evidence of immigration status
  require proof of potential flight with evidence
  of the victims
• Connections to the US
• Connections to the home country
• Plans to leave
• Whether she has purchased airline tickets
• Whether her deportation is imminent

64
ACCESS TO LEGAL SERVICES
65
VAWA 2005 and Legal Services Access for Battered
Immigrants

• All legal services programs can use any source of
  funding
• Legal Services Corporation
• VAWA (e.g. LAV, STOP)
• Foundation funding
• Private funding
• To represent any victim of domestic violence,
  sexual assault, trafficking or other U visa
  listed crime
• Without asking questions about the victims
  immigration status

66
Legal Services Must Be Related to the Abuse

• Types of Services
• Obtaining Protection Orders
• VAWA Immigration Case or Other Immigration
  Matters
• Divorce
• Child Custody
• Child and Spousal Support
• Housing

67
Legal Services Must Be Related to the Abuse

• Types of Services
• Public Benefits
• Employment
• Abuse and Neglect
• Juvenile Proceedings
• Small claims cases
• Contempt Actions

68
All Other Non-Citizens Can Receive

• Brief Services and Consultations by telephone
• Normal Intake and Referral Services
• Programs have been allowed to
• Deem the client the citizen child in contested
  domestic violence custody cases
• Represent battered immigrants in emergency and
  permanent protection order proceedings