Immigration Relief for Victims of Domestic Violence in a Mass Deportation Environment

Intimate partner violence affects an average of 23 people per minute, according to the Emergency Assistance Foundation. This form of abuse worsens when victims lack legal status. While victims navigate isolating and terrifying circumstances, the threat of deportation or withholding of immigration benefits complicates their ability to seek help. The government attempts to protect these victims through the Violence Against Women Act (VAWA) and U Visa programs, which were created in response to immigrants’ low rates of reporting crimes. As the new administration threatens mass deportations, changes to or termination of these programs increase the level of fear among vulnerable populations such as victims of domestic violence (DV).

VAWA

Congress passed VAWA in 1994. This act created a special route to lawful status for DV victims who normally rely on their abusers to file for their status. Generally, a U.S. citizen (USC) or legal permanent resident (LPR) can sponsor their spouses and stepchildren. For DV perpetrators, this process offers a way to control victims who often are from another country and do not know the laws or language of the United States well. 

One way perpetrators exude power over DV victims is to threaten them by calling immigration officials and accusing them of marrying for immigration purposes only. This often creates a high level of emotional abuse, which convinces victims they cannot leave the relationship and forces them to stay despite the abuse. Often in consultations, clients are hesitant to discuss the abuse because they have been made to believe recourse is unavailable. This is why it is important for attorneys to know how to spot issues and proceed carefully when inquiring about them. 

VAWA offers victims a way out. To obtain legal status through VAWA, a victim must file an application with the United States Citizenship and Immigration Services (USCIS) and prove that the marriage to the abuser was in good faith. A marriage in good faith can be described as a Disney marriage—one the person believes would last forever and they would live happily ever after. Typical proof can include marriage certificates, written statements from wedding attendees, birth certificates of any children the couple had, etc. However, for DV victims who flee their homes in desperation, proving this element is often hard because, at times, they leave without anything, let alone any documents. There is no magic piece of evidence to prove a good-faith marriage; at times, well-written testimony from victims can suffice, but thinking outside the box can be helpful. For instance, social media posts and photos documenting the relationship can be as powerful as a marriage certificate. 

Another required element is proving the perpetrator is a USC or LPR. Due to the lack of documents, attorneys have to be creative to prove this requirement. Voting registration is public information; therefore, if the perpetrator ever voted, this is a way to prove his or her status. 

A victim must also show good moral character (GMC) to obtain VAWA. GMC does not have a specific definition for immigration purposes. However, victims may prove GMC by showing a lack of criminal record with a police clearance or Federal Bureau of Investiation record if the person lived in multiple states. While a traffic violation is unlikely to cause problems, more serious convictions like driving under the influence and/or controlled substance violations could bar the victim from obtaining status. If the victim has a conviction connected to the abuse they suffered, i.e., assault/battery, the victim might be eligible for a waiver of such ineligibility. 

Lastly, the victim must prove “battery or extreme cruelty” occurred in the relationship. At times, victims call the police or have to go to the hospital due to the severity of the abuse. These documents are good evidence to prove this element existed. However, if they do not exist, it is important to consult the victim’s state definitions of DV. Every state defines DV differently, and some definitions include a wide array of actions. For example, in Nevada, someone can be convicted of DV if they caused injury to or killed a pet in an attempt to harass the victim. NRS 33.018(e)(7). Therefore, a declaration describing those circumstances could result in good results.

If USCIS grants VAWA, the survivor receives deferred action (low priority for deportation) and an employment authorization card. If the perpetrator is a USC, the victim can apply for residency at the same time they submit their VAWA application, leading to permanent status faster than when the abuser is only an LPR. Multiple entries to the country can affect a survivor’s ability to adjust status, so it is important to screen for all inadmissibility issues before submission. 

U Visa

While VAWA requires the perpetrator to be a USC or LPR, a noncitizen who is the DV victim of another noncitizen may still have an alternative pathway to legal status. As part of the Victims of Trafficking and Violence Prevention Act of 2000, Congress created specific immigration benefits, including U nonimmigrant status (U Visa) for noncitizen victims of certain crimes who cooperate with law enforcement. A key distinction between the two programs is that U Visas require criminal activity to be reported to a law enforcement agency (LEA), while VAWAs do not. 

To be eligible for a U Visa, noncitizens must be victims of a qualifying crime (such as murder, extortion, felonious assault, DV, and more), possess credible and reliable information about the criminal activity, have suffered substantial physical or mental abuse, and be helpful to an LEA in the detection, investigation, and/or prosecution of the criminal activity. USCIS adjudicates U Visa applications, but before a noncitizen may submit their application, they must first receive an LEA-signed certification verifying they were helpful in the investigation of the crime. 

State or local LEAs, such as local police, district attorney offices, and even judges, can sign these certifications. In signing these certifications, the agencies are simply attesting to the victim’s cooperation and willingness to help investigate the crime. However, this interplay between state and federal immigration law often leads to reluctance among many state LEAs who are asked to sign certifications, which presents one of the biggest challenges for victims of DV hoping to get a U Visa.

DV typically represents a pattern of behavior that often goes unreported by victims or is not prosecuted. Unfortunately, without an investigation, the likelihood of receiving a certification decreases significantly. However, USCIS does not require that any investigation or prosecution of the relevant crime result in a specific outcome because they recognize that the initiation or progress of an investigation is outside the victim’s control.

Despite USCIS guidance encouraging LEAs to implement this victim-centered approach, the decision to sign the certification is ultimately up to the discretion of a certifying officer. This often leads to many unjust denials, particularly in conservative cities and/or rural towns. However, there are certain situations where agencies may be compelled to sign a certification. 

Certain state legislatures have instituted statutory mandates certifying officials must follow when a noncitizen requests a certification. For example, Nevada requires certifying agencies to make determinations of whether the noncitizen is the victim of criminal activity, if they have been helpful, and, if the noncitizen has met those requirements, the agency must complete and sign the certification. See NRS 217.580-.585. This language can be used to remind LEAs of their responsibility to provide certifications even when no active investigation, charge, or prosecution has followed suit.

Warning LEAs of the consequences of their failure to follow state legislation can be crucial to a DV victim’s case because it may mean the difference between having the ability to apply and obtain a pathway to legal status or not. 

Conclusion

VAWAs and U Visas provide support for survivors of DV and offer them the assurance of being able to rebuild their lives free from the fear of deportation. While processing times for these two benefits can be lengthy, knowing there is a possibility to fix their legal status can bring victims relief. 

It is important to recognize and respect the barriers impeding a victim’s ability to report their abuse, including financial dependence on the perpetrator, as well as the victim’s fear or distrust of law enforcement based on their own immigration status—a concern that is likely to grow over the next few years due to the new administration. 

These concerns are not unfounded. Under the first Trump administration, asylum seekers were inhibited in their right to obtain asylum due to gender-based violence, public charge rulings threatened social support programs DV survivors needed to escape their abusers, and more. See Matter of A-B-, 28 I&N Dec. 307. 

Working with victims of DV requires an understanding of the victim’s circumstances, their valid fears and concerns, and a willingness to open our minds to creative strategies that provide clients with sufficient evidence to support their applications. The process can be complicated, and understanding clients’ particular circumstances is imperative for positive results.