Immigration Options for Victims of Crimes Presented by Neil Rambana & Elizabeth Ricci Rambana & Ricci, PLLC Tallahassee Based on the “Blue Campaign” Blue Campaign by USCIS has flyers, brochures, hotlines and email addresses and other resources for victims and law enforcement. More info is available at http://www.dhs.gov/blue-campaign

Today’s Topics CP T Visas U Visas VAWA Ethics Resources Q&A

Immigration Relief: A Critical Tool for Law Enforcement Continued Presence and Immigration Relief are tools that you can use to help eliminate human trafficking and fight crime in local communities. Victims may qualify for CP or immigration relief, often with help from law enforcement at the federal, state, local, or tribal level, as well as judges. One reason why victims may not come forward is that foreign victims of human trafficking and other crimes may not have legal status in the United States. Traffickers often use victims’ lack of legal status to exploit and control them. Also, without legal status, victims may not be able to stay in the United States to continue working with you to help investigate and or prosecute crimes. Immigration relief provides a way for victims to feel secure and stabilize their status in the United States, which means that it is a critical tool in helping victims become strong and active participants in an investigation or prosecution. Immigration Relief: A Critical Tool for Law Enforcement

USCIS helps protect victims of  human trafficking and other crimes by providing immigration relief. Individuals and their families may also fall victim to many other types of crime in the United States. DHS provides three types of immigration relief in order to encourage victims to come forward and work with law enforcement: Continued Presence (CP), T Visas and U Visas. Human trafficking, also known as trafficking in persons, is a form of modern-day slavery in which traffickers lure individuals with false promises of employment and a better life. These crimes include: rape, murder, manslaughter, domestic violence, sexual assault, and many others.   We expect that this summer, additional crimes will be added to the list.

Continued Presence CP is a form of short-term immigration relief that allows a potential witness to remain in the U.S. during an investigation.  CP should be made available as soon as law enforcement identifies a victim. The investigation does not have to be complete prior to requesting CP, which is requested by law enforcement only. Federal law enforcement officials, primarily from ICE and the Federal Bureau of Investigation as well as federal prosecutors from U.S. Attorney’s Offices within the Department of Justice, are authorized to submit CP applications. An application for CP should be initiated immediately Background U.S. Immigration and Customs Enforcement (ICE) is the lead DHS law enforcement agency that investigates human trafficking crimes. ICE places a priority on human trafficking investigations, recognizes victims of human trafficking as crime victims and secures access for victims to the rights and benefits afforded them under the Trafficking Victims Protection Act (TVPA). Definition Continued Presence (CP) is a temporary immigration status provided to individuals identified by law enforcement as victims of human trafficking. This status allows victims of human trafficking to remain in the U.S. temporarily during the ongoing investigation into the human trafficking-related crimes committed against them. CP is initially granted for one year and may be renewed in one-year increments. CP is authorized under provisions of section 107(c)(3) of the TVPA, which has since been reauthorized, and is codified at 22 U.S.C. § 7105(c)(3). Importance of Continued Presence CP is an important tool for federal, state and local law enforcement in their investigation of human traffickingrelated crimes. Victims of human trafficking often play a central role in building a case against a trafficker. CP affords victims a legal means to temporarily live and work in the U.S., providing them a sense of stability and protection. These conditions improve victim cooperation with law enforcement, which leads to more successful prosecutions and the potential to identify and rescue more victims. upon identification of a victim of human trafficking. All CP applications are submitted to the ICE Law Enforcement Parole Branch (LEPB). Federal officials may submit CP applications on behalf of state or local law enforcement in cases where the victimization meets the federal definition of trafficking as found in the TVPA and at 22 U.S.C. § 7102. When state or local law enforcement officials identify a victim of human trafficking, they should coordinate with their federal law enforcement partners to submit an application for CP. If required, CP renewals should be submitted by the federal law enforcement official thirty days prior to the one year expiration.

U Certifications & T Declarations You (judges, law enforcement, prosecutors) play a role in telling USCIS how the victim has assisted you. Even though the victim (or their advocate or attorney) completes the main portion of a T or U visa application, you play a role in telling USCIS how the victim has assisted you. The victim may ask you to fill out a USCIS law enforcement declaration or certification, which informs USCIS about the victim in your case. If you choose to fill out and sign the declaration or certification, you will provide it to the victim (or their advocate or attorney) who will submit it to USCIS along with other paperwork and evidence.

T Nonimmigrant Status (T Visa) Provides immigration protection to victims of trafficking. The T Visa allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of human trafficking cases. Requires the victim to assist or cooperate with you in an investigation or prosecution (except where the victim is under 18 years of age or suffers severe trauma). Video T Nonimmigrant Status (T Visa)

Trafficking Indicators Does the person appear disconnected from family, friends, community organizations, or houses of worship? Has a child stopped attending school? Has the person had a sudden or dramatic change in behavior? Is a juvenile engaged in commercial sex acts? Is the person disoriented or confused, or showing signs of mental or physical abuse? Does the person have bruises in various stages of healing? Is the person fearful, timid, or submissive? Does the person show signs of having been denied food, water, sleep, or medical care? Is the person often in the company of someone to whom he or she defers? Or someone who seems to be in control of the situation, e.g., where they go or who they talk to? Does the person appear to be coached on what to say? Is the person living in unsuitable conditions? Does the person lack personal possessions and appear not to have a stable living situation? Does the person have freedom of movement? Can the person freely leave where they live? Are there unreasonable security measures? Law enforcement officials may encounter a potential victim of human trafficking during the course of their duties. – during domestic disturbance calls; when responding to incidents at massage parlors, bars, and strip clubs; in routine traffic stops or the courtroom.  you suspect that someone may be a human trafficking victim, please reach out to U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations’ (HSI) at 1-866-347-2423 or a human trafficking task force in your area to work collaboratively on an investigation or report a tip. ICE HSI is responsible for investigating human trafficking and arresting traffickers. There also may be an organization-specific protocol you should follow to notify your supervisor and engage the proper local authorities.

Victim-Centered Approach Immediately connecting the victim to a victim specialist who can connect them to support services― emphasizing that assistance is available regardless of the outcome of the investigation and prosecution; Taking time to explain who they are, answer questions they might have, and acknowledge and address their fears; Being sensitive to cultural differences and language barriers and using an interpreter when needed; Conducting interviews in a neutral location, only after the victim’s needs have been assessed and any urgent needs have been met; and Being patient and giving the victim time to stabilize and begin their recovery process. When law enforcement encounter a potential victim of trafficking in the course of their duties, it is critical that they begin to develop rapport and establish trust by:

“Severe Forms of Trafficking in Persons” Defined as “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage, or slavery” or “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age.” Requests for law enforcement certification of trafficking in persons should specify whether the certification is being requested as part of a T Visa application, which would be a request for Form I-914, Supplement B.

Florida Law KIDNAPPING; FALSE IMPRISONMENT; LURING OR ENTICING A CHILD; CUSTODY OFFENSES 787.06 Most states now have their own laws criminalizing human trafficking, making this form of modern-day slavery a violation not only of international and federal law, but also state laws. As a result, the U.S. Department of Homeland Security (DHS)―in particular U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI)―pursues collaborative investigations with other law enforcement agencies at the international, federal, state, local, county, and tribal levels. DHS also works with those that have investigative authority, such as code inspectors, labor officials, and child welfare investigators. DHS’s primary aim in its fight against human trafficking is to work with law enforcement colleagues to protect and stabilize victims, prosecute offenders, and prevent additional trafficking.

Available at USCIS.gov Provide victim and agency information, statement of claim, cooperation of victim, law enforcement attestation Who can sign? Used for the T visa, this declaration is not required (unlike the U) evidence but is useful for the application. The agencies that can sign the declaration include any federal, state, local, or tribal law enforcement agencies and prosecutors and judges who have the authority to detect, investigate, or prosecute human trafficking. This includes, but is not limited to, the Department of Justice, the Federal Bureau of Investigation, the Department of Homeland Security, the U.S. Marshals Service, the Department of State’s Diplomatic Security Service, and the Department of Labor.

U Nonimmigrant Status (U Visa) Protection to crime victims who suffered substantial mental or physical abuse as a result of the crime. Requires the victim to assist or cooperate with you in an investigation or prosecution. The U visa allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of the criminal activity.

Available at USCIS.gov Provide victim, agency and family information, criminal acts, helpfulness of victim, certification

U Visa Crimes Abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, felonious assault, (attempt), FGM, hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, (conspiracy), obstruction, peonage, perjury, prostitution, rape, sexual assault or exploitation, (solicitation), slave trade, torture, trafficking, unlawful criminal restraint, witness tampering, (related crimes), other, (expansion) Additional crimes are expected to be added this summer.

U Certification This certification is required evidence for the U visa, and USCIS cannot process the victim’s case without it. Certifying agencies can sign the certification. Unlike the T, certification IS required. Certifying agencies include federal, state, local, or tribal law enforcement agencies; prosecutors and judges; and other agencies that have jurisdiction to detect, investigate, or prosecute in their respective areas of expertise, such as child or family protective services, the Equal Employment Opportunity Commission, and the Department of Labor.  

Important! You always have discretion to complete a declaration or certification. You are under no legal obligation to complete the declaration or certification. You can provide the declaration or certification even if there is no arrest, no charges filed, no formal investigation, no prosecution, no conviction, or even if the case is closed. There is no federal statute of limitations on when a crime occurred and when a victim may be eligible for these immigration benefits. You can provide the declaration or certification for past, present or future work. Only USCIS has the authority to grant or deny a person’s T or U visa application. Despite discretion, your agency may have its own policy about filling out the declaration or certification. You can provide a declaration or certification for cases that occurred months or years ago, as long as the victim was working with you. You can provide the declaration or certification when the victim has worked with you in the past, if the victim is currently working with you, or if the victim is likely to work with you in the investigation or prosecution of the crime committed against the victim. The declaration or certification is only one piece of evidence USCIS reviews before making a decision on an application. USCIS requires additional evidence of eligibility and does full background checks. The declaration and certification form alone does not grant any immigration benefit or legal status in the U.S.  You will not be liable for future conduct of the victim. 

Or email: LawEnforcement_UTVAWA.vsc@uscis.dhs.gov Withdrawal The victim is required to continue to support the investigation or prosecution as long as it is reasonable. Send your withdrawal to: U.S. Citizenship and Immigration Services Vermont Service Center ATTN: T/U-Visa Unit 75 Lower Welden St. St. Albans, VT 05479-0001 Or email: LawEnforcement_UTVAWA.vsc@uscis.dhs.gov You can withdraw your declaration or certification after it has been submitted to USCIS for any reason, including when the victim unreasonably refuses to assist you. You should notify USCIS in writing and include the victim’s name, date of birth, and A-File number (if available), along with a description of the reason for the withdrawal.

VAWA victims must establish Have or had a qualifying relationship with the abuser spouse, or, are the parent or child of the abuser Reside or resided with the abuser Have good moral character, and Have been victims of battery or extreme cruelty. Some immigrants may be afraid to report acts of domestic violence to the police or to seek other forms of assistance. Such fear causes many immigrants to remain in abusive relationships. Victims of domestic violence who are the child, parent, or current/former spouse of a United States citizen or a permanent resident (green card holder) and are abused by the citizen or permanent resident may be eligible to apply for a green card themselves without needing the abuser to file for immigration benefits on their behalf. This provision of the law was created under the Violence Against Women Act (VAWA). VAWA provisions apply equally to men and women. Victims of domestic violence, whether a spouse, child, or parent of the abuser, may self-petition by filing Form I-360, Petition for Widow(er)s, Amerasians, and Special Immigrants. Available at USCIS.gov

VAWA INA §101(a)(51) Self-petitions Proof Denials Includes but is not limited to reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers and other social service agency personnel. A denial of an I-360 may be reviewed by the AAO or BIA. Judicial review would be in the US District Court unless barred due to lack of good moral character

Ethical Issues Confidentiality of petition vital Ensure communication not sent to trafficker, abuser In VAWA cases, 8 USC §1367 makes it illegal to release any information concerning a battered spouse or child applicant. Section (a)(1) prohibits officials of the DOJ, DHS or DOS from making an adverse A government agent who receives information concerning a battered spouse or child applicant cannot act on it unless it is independently corroborated by an unrelated person. Violation can result in disciplinary action or civil penalties up to $5,000.00 Our biggest challenge is that law enforcement refuses to certify. Recent example

Resources for Law Enforcement http://www.dhs.gov/blue-campaign LexisNexis Expert Commentaries Winning U Visas: Getting the Law Enforcement Certification By Gail Pendleton http://niwaplibrary.wcl.american.edu/reference/additional-materials/materials-for-adjudicators-and-judges/tools-for-courts www.ilrc.org/files/documents/u_visa_basics_for_law_enforcement.pdf http://www.sogpubs.unc.edu/electronicversions/pdfs/ilb02.pdf Gail Pendleton, co-director of ASISTA, co-authored this article, published by LexisNexis in February 2008. Still relevant years later, this article provides background on the U visa, legal citations, and best practices for working with law enforcement to obtain a U visa certification. Includes especially useful tips on how to build trust with law enforcement when you must venture outside the traditional lawyering model. This toolkit, provided by the National Immigrant Women’s Advocacy Project (NIWAP), hosts a breadth of helpful information for advocates wanting to draft a U visa protocol. There is also guidance for judges who may consider signing a U visa certification. This is an excellent, succinct two-page resource, published by the Immigrant Legal Resource Center (ILRC). The document provides answers to law enforcement’s frequently asked questions. This is a useful description of the certification process by a uniquely situated School within a public university. Established in 1931 as the Institute of Government, the School provides educational, advisory, and research services for state and local governments. The mission of the School of Government is to improve the lives of North Carolinians by engaging in practical scholarship that helps public officials and citizens understand and improve state and local government. This six-page document, in question and answer style format, can be used as an additional tool when approaching law enforcement to help inform them of their role in signing certifications for U visas http://www.cahr.fsu.e FSU Center for the Advancement of Human Rights

FSU Center for the Advancement of Human Rights http://www.cahr.fsu.e

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