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National Network on Behalf
of Battered Immigrant Women
Co-Chaired by the following organizations
| Now Legal Defense and Education Fund
Immigrant Women Program1522 K Street, N.W. Suite 550Washington, DC
20005(202) 326-0040 |
Family Violence Prevention Fund383 Rhode
Island St., Suite 304San Francisco, CA 94103(415) 252-8900 |
National Immigration Project of the
National Lawyers Guild14 Beacon St., Suite. 602Boston, MA 02108(617)
227-9727 |
Strategy for Obtaining Interim Relief
for U Visa Eligible Noncitizens
November 5, 2001
At the seventh annual conference of the National Network on Behalf of
Battered Immigrant Women INS released a memorandum on interim relief for U and T
visa eligible noncitizens.1 This strategy piece
derives from months of working with advocates and INS to implement the memo
without its formal publication. Now, with the memo public, we encourage all of
you to use it to educate and advocate in your areas.
First, please note that this strategy is a work in progress. Please report to us
your experiences and strategies that work in your area. Second, this memo does
not address T visa eligible noncitizens, although the strategy will be very
similar for them. To ensure you receive up-to-date information on T and U visa
strategies, make sure you are on the "VAWA Updates" list serve, run by
the National Immigration Project of the NLG. 2
I. Use the Memo to educate local INS and criminal justice system personnel
about U and T visa eligible noncitizens
Educate yourself first. Read INA §§ 101(a)(15)(U), and the versions of
212(d)(13), 214(o), and 245(l) relating to Us (the T visa used identical
designations). We strongly encourage you also to read the suggestions the
National Network on Behalf of Battered Immigrant Women sent to INS. 3
Set up a meeting with local INS district office and District Counsel to discuss
how they plan to help noncitizens eligible for Us obtain deferred action, parole
and stays of removal, as prescribed by the memo.4
Use existing contacts from VAWA work to meet with local criminal justice system
personnel; educate them about the U visa and discuss how they can help
non-citizen victims find safety and security with the interim relief. We
strongly encourage you to work with local and national members of the National
Network on Behalf of Battered Immigrant Women when educating local officials. 5
A. Key Advocacy Points
The memo says, among other things:
* Noncitizens "identified as possible victims in the above categories [U or
T] should not be removed from the United States until they have had the
opportunity to avail themselves of the provisions of the VTVPA. . .," 6"INS
personnel should keep in mind that it is better to err on the side of caution
than to remove a possible victim. . .",7
and "[i]n the absence of governing regulations, Service personnel should
ensure broad interpretation of the guidance to ensure an alien is not removed. .
." 8
* "Possible Victim is any alien who may be eligible for benefits
under the 'T' or 'U' visa categories"9
* "Existing authority and mechanisms such as parole, deferred action, and
stays of removal will be used to achieve this objective. . . " 10
* "Individuals who are identified as possible 'T' and 'U' victims may be
granted work authorization pursuant to existing authority and utilizing existing
application procedures." 11
* "When a possible 'T' or 'U' victim is encountered during the course of
proceedings, the District Counsel's office should contact the District Victim
Witness Coordinator so that appropriate action can be taken in accordance with
the instructions in this memo. The District Counsel's office has the discretion
to seek a continuance of the proceedings or to request administrative closure or
termination." 12
* The guidance went into effect on August 30 and "will remain in effect
until regulations on T and U visa status are in place. The guidance supercedes
or augments any previous national or local guidance on T and U visas." 13
The statute has a dual purpose: "to strengthen the ability of law
enforcement agencies to detect, investigate aned prosecute cases. . ." and
"offering protection to victimws of such offenses in keeping with the
humanitarian interests of the United States."14
It should both help law enforcement serve immigrant communities and provide
safety to undocumented victims who otherwise might be deported if they reported
the perpetrators.
II. Obtaining interim relief for individuals
Be careful about exposing out of status noncitizens. Obviously, if a U eligible
non-citizen already is in proceedings, you should immediately contact the
District Counsel responsible for the case. Similarly, noncitizens with other
avenues of relief or with existing status may incur little risk by asking for
interim relief. Those who lack status, however, should weigh the possibility of
ultimately losing a U visa application against the need for immediate work
authorization and safe status. As was evident from the "stakeholders"
meeting on these visas, there is a significant segment of INS that seek an
extremely narrow interpretation of the U visa. See the next section for tips in
evaluating the risk.
The best way to show a non-citizen is eligible for the interim relief is to
prepare a brief packet and submit it to both the local INS office and to the INS
personnel charged with writing the regulations on U and T visas (the Trafficking
Working Group in DC). If your local office is unreceptive or misinterprets the
memo, members of the Trafficking Working Group may be able to sort out the
problem.
A. Contents of the Packet
The most important thing in the packet is the "certificate" or letter
from a federal, state or local law enforcement officer (including INS),
prosecutor, judge or agency charged with investigating or prosecuting the crimes
listed at 101(a)(15)(U)(iii). Use the sample certificateor something similar that contains the information in
the certificate. In addition, the packet should include a one-page letter
describing why the non-citizen meets the basic requirements for the U visa:
* What is the criminal activity that victimized the applicant and did it
take place in the United States or violate the laws of the United States?
* Has the applicant suffered "substantial physical or mental abuse"
resulting from the criminal activity?
* Does the applicant possess information concerning the criminal activity?
* Does the applicant have a certificate or other affirmation by a designated
official that she "has been helpful, is being helpful, or is likely to be
helpful" to an investigation or prosecution of the criminal activity?
Even if your client decides not to file for interim relief, the process of
evaluating eligibility and marshalling documentation will help ensure she
ultimately receives a visa.
PRACTICE POINTER
Strike while the iron is hot for law enforcement folks. Get certificates NOW for
anyone who is being or was helpful or who is interacting now with the criminal
justice system in a helpful way. It may be much harder to obtain such
certificates when the case is no longer at the forefront of the law enforcement
person's agenda.
Similarly, start corroborating NOW the mental and physical abuse suffered by the
applicant and the information she possesses that concerns the criminal activity.
As with VAWA, corroboration by a counselor or other expert may be extremely
helpful. It should recount in detail the abuse suffered by the victim and
explain why this is credible from the viewpoint of someone who interviews
hundreds of victims.
B. CC the packet to the Trafficking Working Group and to us
Based on the VAWA experience, we anticipate you may encounter resistance from
local INS and District Counsel. By sending a copy of the packet to the
Trafficking Working Group and to us, you ensure your case will be monitored at
the national level. It is the best way to ensure the central office will
intervene if the local office or counsel does not comply. We also will use your
cases (without identifying information) for continuing advocacy on the U
regulations. Send copies of the packet to:
Anne Veysey
Director, INS Program Strategy & Development,
Office of Investigations
425 I St., N.W., Room 1000
Washington, DC 20536
INS Commissioner James Ziglar
425 I St., N.W.
Washington, D.C. 20536
Gail Pendleton
NIPNLG
14 Beacon St., Ste 602
Boston, MA 02108
nipgail@nlg.org
Janice Kaguyutan
Immigrant Women's Program
NOW Legal Defense & Education Fund
1522 K St., N.W., Ste. 550
Washington, DC 20005
III. What is not a risky case?
While nothing is certain, some cases seem to squarely fall under the statutory
requirements for U visas. Others, however, may be subject to statutory
interpretations we can not predict right now. Any case in the latter category
may be a risky case in which to seek interim relief. We think "slam
dunk" cases include those in which an applicant:
* Is a direct victim of a crime listed in the statute, the state law is
clear that this is the crime, and the crime was committed in the United States
fairly recently or the investigation/prosecution is ongoing;
* Has contacted law enforcement and has a certificate or similar document;
* Can show "substantial" physical or mental abuse flowing from the
criminal activity. The "any credible evidence" standard from VAWA
applies, but "substantial" is an unknown quantity. Start marshalling
corroborative evidence as noted above and as described in VAWA training
materials. 16
* There are no admissibility issues. Remember that the U visa is a
nonimmigrant visa, and applicants must show they are admissible. There is a
"public or national interest" waiver for all grounds except
terrorism, but it is discretionary and we expect its application will turn on
who adjudicates applications (see Network suggestions to INS).
A. What about the risky cases?
Many noncitizens who may not fit neatly in these categories should qualify for
Us. If the regulations fail to implement the statute and the will of Congress,
however, there may be a period of grave uncertainty for those who have received
interim relief but do not appear to qualify under the regulations. Prepare a
plan for challenging the regulations, if your clients fall in this nebulous
category. Let us know about such cases, so we can include the factual scenarios
in our advocacy. We will organize comments and other challenges to the
regulations if they undermine the law, so make sure you maintain contact with
the Network.
B. What about people who don't benefit from the interim relief?
Some people who currently have status may not greatly benefit from the interim
relief unless they forfeit their current status. For instance, children of some
nonimmigrant visa holders may not be eligible to receive work authorization
unless INS revokes their status as derivatives and grants deferred action. Let
us know about these cases, as well as any creative arguments for "existing
mechanisms" other than those specifically listed in the memo which would
allow work authorization in such cases.
Please consult with us if you contemplate litigation on the U visa. On the one
hand, local offices who defy the national directive are extremely vulnerable to
scrutiny by the courts. On the other hand, we believe that forcing INS to issue
U visa regulations now would serve the interests of those who seek a narrow
construction. The Network wrote the U visa legislation, has been working on its
interpretation, and is coordinating national support and strategy on interim
relief. We believe we are best situated to evaluate and represent the interests
of all U visa eligible noncitizens.
IV. Networking, training materials and updates
We are developing outreach and training materials for advocates in the many
systems that may encounter U eligible noncitizens. Please stay tuned and share
with us the creative educational and advocacy strategies that work in your area.
For the Network
Gail Pendleton
Associate Director
National Immigration Project of the National Lawyers Guild
.To
join that list serve, send a note to Sandy Lin at nip@nlg.org.
Attached or on the NIPNLG website, supra
note 3.
See Applications for Immigration Status
under the Violence Against Women Act 2001, section III(C) at www.nlg.org/nip,
click on “domestic violence.”
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