IMMIGRATION LAW 101 for ADVOCATES

Immigration Status Permanent Residents, “green card” holders (LPR) May live and work legally in the United States May apply to become citizens after 3 to 5 years, depending on the circumstances Until this occurs, a permanent resident can be deported from the US for certain crimes, including certain drug related and domestic violence convictions,

Immigration Status (cont) The most common route to permanent residency is through the family based immigration process. This process allows a citizen (USC) or LPR to petition for an immigrant visa for certain relatives such as their spouses and children. This is a two-step process: 1. Filing the visa petition 2. Application for the green card itself

Immigration Status (cont) Traditionally, both steps of the family based immigration process are controlled solely by the petitioning USC/LPR. S/he has complete discretion as to whether and when to file a visa petition, and whether to assist in completing the process of obtaining a green card.

How Immigration Law Impacts Domestic Violence This structure of family based immigration created a dangerous imbalance of power between the petitioner and the non-citizen beneficiary ESPECIALLY when domestic violence is involved. Perpetrator had complete control over victim’s immigration process Perpetrator continued isolation through fear of deportation

Immigration Remedies for Victims

Immigration Protections Immigration law recognizes the barriers faced by immigrant victims of domestic violence and offers protections under the: Violence Against Women Act (VAWA), as amended by VAWA 2005 Trafficking Victims and Violence Prevention Act (VAWA II) And other related laws…

Immigration Protections Self-Petition under VAWA U (Crime Victim) Visa T (Trafficking) Visa … and more!

VAWA SELF-PETITIONS

Self-Petitioning under the Violence Against Women Act (“VAWA”) Undocumented women, children and the elderly who have been subjected to battery or extreme cruelty by a spouse, parent or child may self-petition for their permanent residency. Available to: Abused spouses of USCs or LPRs; Abused children of USC or LPRs; Non-abused spouses of USC or LPR whose child is abused; Abused parents of adult US citizen children.

Self-Petitioners must prove: Identity and that of their children (children may be included on mother’s application) Identity and immigration status of abuser Good Faith Marriage Residence with Abuser Residence in USA (or if outside, residence with military spouse) Battery and Extreme Cruelty Good Moral Character

How to prove battery and extreme cruelty? Affidavit or history of client, detailing all incidents of abuse Affidavit of domestic violence counselor Police Reports or 911 Call Transcripts Hospital Records Shelter Records Affidavits of friends and family members Diaries or photos of abuse and destruction of property

SARA’S STORY Sara is from the Phillipines. She met Walter a U.S. citizen over the internet. He went to the Phillipines and asked Sara to marry him. Walter sponsored Sara for a fiancee visa and Sara came to the U.S. to marry Walter and live here as his wife. Not long after they married, Walter became physically abusive. Sara comes to the shelter for help.

Benefits of Self-Petitioning Puts control back in hands of victim Process is CONFIDENTIAL Children are included as derivatives With approved self-petition, get deferred action status (quasi-legal status) and a work permit MAY be eligible for certain public benefits Ability to apply for green card

U VISAS Victims of Crimes

THE NEW U VISA On October 17, 2007, a new visa was created called a U visa. There are more than 10,000 visas available each year. A brand new application and procedure was created to assist victims of crimes. We are still learning a lot about the new process.

U VISA for Victims of Crime Crime victim visa available to non-citizen individuals who have been victims of certain crimes and have cooperated with police or the courts. Beneficiaries include: Spouse of foreign medical resident, Undocumented woman married to undocumented spouse, Victim not married to perpetrator, Abused spouse of visa holder, Same sex violence couples

Crimes under U Visa statute Domestic Violence Rape Trafficking/Forced Prostitution Felony Assault False Imprisonment/Kidnapping Murder Blackmail/Extortion Any similar crimes Attempt or conspiracy to commit any of these crimes

To seek a U Visa, the victim must Obtain a certificate from law enforcement agency, prosecutor or judge certifying: That s/he is the victim of a crime That s/he has been helpful, is being helpful or is likely to be helpful in investigation OR prosecution of the crime That the crime is one that is included in statute Also must prove: Suffered substantial physical or emotional abuse Note: Conviction is NOT required

IRMA’S STORY Irma is from Honduras. She lives with her husband and 4 children. Irma, her husband and her 2 oldest children are undocumented. The 2 youngest children are U.S. citizens. Irma and her husband were victims of a violent home invasion. They were tied up, held at gunpoint, and beaten. Irma’s son called the police. Irma received a subpoena to testify in court.

How does U Visa benefit the victim and her family? Will receive temporary visa and permission to work in the U.S. for period of 4 years Children, spouses, parents (of minor children) and siblings (of minor children) may be included in application May be able to apply for permanent residency after three years.

The Old System 2000 – 2007 Eligible victims were granted a temporary status called “interim relief” or “deferred action.” Received permission to stay and work in the U.S. but required annual renewal. Must apply for the new visa. Refer for legal assistance.

VICTIMS of HUMAN TRAFFICKING

What is Human Trafficking? Human trafficking is a form of modern-day slavery. Human trafficking targets our most vulnerable populations, including homeless, women, children and immigrants. Human trafficking is the exploitation of people for commercial sex or labor purposes. Human trafficking is a local, national and international problem.

What is Human Trafficking? Human trafficking is NOT: Human Smuggling Just about the physical movement of the victim

Cristina’s Story Cristina, a 14 year old girl from Mexico, came to the U.S. to escape an abusive home. A smuggler brought her across the border illegally for a fee. When she arrived in the U.S. the smugglers told her she would have to pay off the rest of her fee. Cristina was told she would work it off by having sex. She was moved from brothel to brothel around the country.

Kentucky Context We do know that human trafficking has occurred and will continue occur in Kentucky. Information indicates we are a source, transit and destination state. Interstate highways Military bases Large sporting events Recent UK study found at least 69 cases of trafficking in Kentucky.

Possible Cases in Kentucky Examples of human trafficking from communities, legal aid lawyers, victim advocates and law enforcement: Domestic Servants Mail-Order Brides Massage Parlors Brothel Networks Teenage Runaways

Human Trafficking: KY Law July 2007 Kentucky law created two new human trafficking offenses: 1. Human trafficking Commercial sex trafficking Forced labor or services 2. Promotion of human trafficking Profits from trafficking Attempts, recruits, transports, obtains person for trafficking

Human Trafficking: KY Law Human trafficking is: 1. Commercial sex trafficking where commercial sexual activity is obtained through force, fraud or coercion, Can be prostitution, pornography, or sexually explicit performance 2. Forced labor or services compelled through force, fraud or coercion Any type of work, but may be most present in domestic servitude, agriculture, hotels, factories, and restaurants

Human Trafficking: KY Law Force, fraud or coercion: Accomplished by the means and methods in the definition of “restraint” in KRS 509.010. Confinement or movement without consent By deception, intimidation, physical force or any other means NOT a required element if victim of commercial sex trafficking is a minor.

Human Trafficking: KY Law Forced labor or services: Labor is defined as “work of economic or financial value” Services are defined as “an ongoing relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor” Can encompass sexual servitude and servile marriages

Human Trafficking: KY Law Promoting Human Trafficking Benefits financially or receives anything of value from knowing participation in human trafficking; or Recruits, entices, harbors, transports, provides, or obtains by any means, or attempts, to recruit, entice, harbor, transport or provide or obtain by any means, another person, knowing that the person will be subject to human trafficking.

Human Trafficking: KY Law Human trafficking is a class C felony, unless Serious physical injury, then it is a class B felony If victim is a minor, one class higher Promoting human trafficking is a class D felony, unless If victim is a minor, then it is a class C felony

Human Trafficking: KY Law Protections for Victims Human trafficking victim evidentiary privilege Communications between victim and trafficking counselor are confidential Counselor includes any person with an agency that serves human trafficking victims and who has received 40 hours of training on human trafficking. Right not to be imprisoned or detained for underlying offenses, unless Detention is least restrictive alternative Necessary for safety Poses threat to community safety

T Visas for Victims of Human Trafficking Eligibility Physically present in the U.S. on account of human trafficking Complied with law enforcement requests OR is under 18 Would suffer extreme hardship if deported Benefits Ability to apply for LPR after 3 years Eligibility for certain public benefits

VICTIM PROTECTIONS CONFIDENTIALITY REQUIREMENTS INDEPENDENT VERIFICATION OF INFORMATION REPORTED TO ICE RESTRICTIONS ON ARRESTS AT COURTS, SHELTERS, & OTHER VICTIM SERVICE ORGANIZATIONS PENALTIES FOR NON-COMPLIANCE

QUESTIONS?

THANK YOU! Presentation by: Cori A. Hash Immigrant Rights Project Kentucky Equal Justice Center Maxwell Street Legal Clinic 315 Lexington Avenue Lexington, KY 40508 (859) 233-3840