advocacy with immigrant survivors toolkit

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Help with Legal Cases: Aggressor raises the survivor’s immigration status in family court

 

Many immigrant survivors fear aggressors using the survivors’ immigration status against them in family court and, as a consequence, causing survivors to lose or be separated from their children. These are well-founded fears, as aggressors often use child custody cases as a platform through which to maintain control over survivors and shift the focus away from their own violent acts.[1]

 

However, immigrant survivors are often undocumented for reasons directly related to the abuse, because aggressors refuse to file immigration papers for survivors or cause revocation of the survivors’ immigration status. For example,

  • The survivor is eligible for a spouse visa based on their marriage to a US citizen or to someone who holds a work visa, but the aggressor-spouse files for a more restrictive tourist or fiancé(e) visa for the survivor, instead.
  • The survivor is married to a US citizen or lawful permanent resident aggressor, who has filed a family-based petition in order for the survivor to enter the US. The aggressor then refuses to file the paperwork necessary to change the survivor’s status to that of a legal permanent resident.[2] In this situation, the aggressor uses their control over the survivor’s immigration status to revoke both the survivor’s legal immigration status and the authorization to work legally in the U.S.

 

A survivor’s immigration status should not be considered relevant in custody, orders of protection, divorce, legal separation, child support, visitation, domestic violence, child abuse, or other family law proceedings. If it were rendered relevant in these processes, immigrant survivors with less documentation would not seek protection for themselves or their children for fear of deportation and/or separation from their children, and aggressors would not be prosecuted for their uses of violence. However, aggressors frequently use their control of survivors’ immigration status as a tactic of abuse; and use threats of deportation to keep survivors from calling the police, seeking an order of protection, or talking to anyone about the abuse.

 

Immigrant survivor in family court: Enhance your practice

 

In court, the attorney and/or advocate should seek to establish that sexual and domestic violence has clear relevance to family court proceedings, and court outcomes can enhance safety and security of survivors and their child(ren).

 

The attorney and/or advocate should be very vigilant about monitoring aggressor attempts to reference survivors’ immigration status in family court, or anywhere outside the context of immigration court. These references signal ongoing abuse and attempts to deflect attention from the aggressor’s own behavior.

 

1.     Educate the court about the dynamics of immigration-related power and control, and the specific risks to immigrant survivors’ safety and security.

 

2.     When aggressors try to use a survivor’s lack of legal immigration status in family court proceedings, immediate and longer-term attorney and/or advocate responses should include:

  • Objection as to relevance. Consider having an immigration expert explain this to the court.
  • When children are involved, the survivor’s immigration status is irrelevant to decisions in the best interests of the child(ren).[3] The Uniform Marriage and Divorce Act states a child’s “best interest” includes:

o   The wishes of the child’s parent(s) as to the child’s custody

o   The wishes of the child as to their custodian

o   The interaction and interrelationship of the child with their parent(s), sibling(s), and any other person who may significantly affect the child’s best interest

o   The child’s adjustment to home, school, and community

o   The mental and physical health of all individuals concerned.

Most states also require that courts consider domestic violence when determining the best interest of a child. The American Bar Association has taken the position that any history of domestic violence must be considered a primary factor in the best interest standard.

  • Determine the survivor’s eligibility for immigration relief.

 

3.     When aggressors try to argue that survivors without legal immigration status are a “flight risk,” advocates and/or attorneys should urge the court to require proof that flight is imminent and seek evidence regarding:

  • The survivor’s connections to the US
  • The survivor’s plans to leave
  • Whether the survivor has acquired the means to carry out a plan to leave, such as by purchasing airline tickets

Advocates should assist survivors to gather and present evidence to the court that demonstrates little or no risk of flight.

 

4.     When aggressors try to argue that the survivor is at imminent risk of removal (deportation), advocates and/or attorneys should:

  • Respond that lack of legal immigration status does not mean deportation is imminent. Consider having an immigration expert explain this to the court.
  • Seek expert testimony on the likelihood of removal in the survivor’s case.
  • Educate the court that many immigrant survivors of domestic violence have options for immigration relief (VAWA or U-visa), based specifically on their victimization.

 

Advocates and attorneys should collaborate on judicial education (pre-court) and briefing (in trial court) strategies that best represent the interests of immigrant survivors and their children. Develop a strong “court packet” (resource materials that can be used as evidence, for briefings, and for training) that includes information on sexual/domestic violence against immigrants and VAWA-specific and U-visa immigration relief.[4] In addition to informing the court about the issues and laws, consider educating the court about how these laws enhance justice, safety, and security for survivors. For example:

  • One of the purposes of VAWA was to correct immigration laws that reinforced abuse of immigrant victims by placing their ability to gain permanent legal immigration status under the complete control of the aggressor. VAWA-specific immigration relief alleviates this problem by giving immigrant survivors some measure of control over their own and their children’s immigration status.
  • Similarly, under VAWA Confidentiality, immigration enforcement against the survivor cannot be based solely on information from the aggressor, including that which the aggressor is attempting to introduce in family court.

 

 

 



[1]Orloff, L., Noche, J., Olavarria, C., Martinez-McIntosh, L., Rose, J. & Baran, A. (2013). Countering abusers’ attempts to raise immigration status of the victim in custody cases. In K. Sullivan & L. Orloff (Eds.) Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants. National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.

[2]“Adjustment of status” is the process by which an individual’s immigration status is changed from nonimmigrant (i.e., someone who is present in the US on a time-limited visa) to lawful permanent status. For individuals who entered the US on a family-based visa (filed by a US citizen or lawful permanent resident spouse or parent), the instructions for adjustment of status require that the applicant provide proof of the US citizen or lawful permanent resident spouse’s or parent’s own immigration status and proof of the qualifying relationship (spouse or parent).

[3]See also “Countering allegations that immigrant victims are likely to flee the jurisdiction with the children if granted custody” (pages 357-360) in Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrants.

[4]See, for example, “Immigration status and family court jurisdiction” (pages 451-466) in Breaking Barriers: A Complete Guide to Legal Rights and Resources for Battered Immigrantsfor an overview of statutory and case law that supports access to family court for immigrant survivors.