start by introducing yourself, your role, any limits on your ability to maintain confidentiality for the survivor (e.g. your mandatory reporting status), and the purpose and process of the intake meeting.
Any shelter, rape crisis center, domestic violence program, or other victim service program that receives either Violence Against Women Act (VAWA) or Family Violence Prevention and Services Act (FVPSA) funding is barred from disclosing to anyone any information about a survivor the program is serving or has served in the past. Although VAWA, FVPSA, and state confidentiality statutes are designed specifically to prevent aggressors from tracking and further harming survivors, there continue to be gaps. The VAWA Confidentiality provision is one safeguard specific to the confidentiality needs of immigrant survivors.
The VAWA Confidentiality provision prevents aggressors from accessing information from the Department of Homeland Security (DHS) about survivors who are pursuing VAWA-specific immigration relief such as self-petition, cancellation or suspension of removal, and the battered spouse waiver. There are three key elements to VAWA Confidentiality:
- The US Departments of Homeland Security, State, and Justice cannot release information in a VAWA Confidentiality-protected file to the aggressor or any others, including affirming or denying the existence of the file, with certain limited exceptions.
- The US Departments of Homeland Security, State, and Justice cannot use information solely provided by the aggressor or a family member to take action or make an adverse immigration decision against the survivor. This protection extends to survivors who have not filed or are not eligible to file, so long as they are victims of the VAWA crimes of physical abuse or extreme cruelty, any of the U-visa qualifying crimes, or trafficking.
- The Department of Homeland Security cannot take enforcement actions at shelters, rape crisis centers, victim services programs, community-based organizations, courthouses, supervised visitation centers, or family justice centers.
Any violation is punishable by fine and disciplinary action of the DHS official(s) involved.
Documenting Violations of VAWA Confidentiality
Advocates are often especially well-positioned and well-qualified to work collaboratively with survivors and immigration attorneys to thoroughly document any violations of the VAWA Confidentiality provision and file complaints.
- Aggressors may try to obtain information about survivors’ immigration cases through “discovery” in a family or criminal court case. Advocates can ensure that survivors’ attorneys are familiar with VAWA Confidentiality. Attorneys, in turn, can tell the court that under the provision, the Departments of Homeland Security, Justice, and State are prohibited from verifying the existence of a protected file and releasing information from any VAWA Confidentiality-protected file, even to an unrelated case in state (family or criminal) court.
- If the violation seems to be due to the aggressors having provided information about survivors to DHS, advocates can help prepare and provide documentation (usually about a series of related events) of the following:
- Threats by aggressors to report survivors to DHS or sabotage their pending immigration case.
- Details that indicate potential communications between DHS and the aggressor, particularly information DHS has that only the aggressor would know.
- If DHS arrests the survivor in a prohibited location and you were present, advocates can note what happened, conversations with the DHS official(s) about the VAWA Confidentiality violation, and who else was present and saw the arrest (e.g., aggressor, social worker, victim advocate, judge).
An effective, actionable VAWA Confidentiality violation complaint to DHS must also be accompanied by proof of a survivor’s eligibility for VAWA Confidentiality protections. The advocate can also help gather evidence of the abuse and/or the survivor’s immigration status.
Finally, complaints filed on behalf of an immigrant survivor must be accompanied with written consent from the survivor authorizing DHS to share information with the person filing (in this case, the survivor’s attorney or the advocate) about the complaint; and the name, organization, and contact information of the person authorized to receive information about the complaint.
VAWA Confidentiality violations are filed with the DHS Office of Civil Rights and Civil Liberties (CRCL). CRCL has a Civil Rights Complaint form (Reclamo sobre Derechos Civiles in Spanish and Queixa Referente a Direitos Civisin Portuguese) that can be used to file VAWA Confidentiality violations.
If a survivor chooses not to use the CRCL form, there is a separate process for filing VAWA Confidentiality violations.
“VAWA confidentiality: History, purpose, DHS implementations and violations of VAWA confidentiality protections” in L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault[a7] provides guidance and tools for attorneys working with survivors whose VAWA Confidentiality has been violated.
For technical assistance on VAWA Confidentiality violations, contact the National Women’s Immigration Advocacy Project (NIWAP) at firstname.lastname@example.org 202-274-4457.
Orloff, L.E. (2013). VAWA confidentiality: History, purpose, DHS implementations and violations of VAWA confidentiality protections. In L. Orloff (Ed.), Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault.National Immigrant Women’s Advocacy Project, Washington College of Law at American University, and Legal Momentum.
Certain disclosures to law enforcement may be made for legitimate law enforcement or national security purposes. See 8 USC 1361, DHS Implementation of 1367 Information Provisions, and the NIWAP Newsletter on VAWA Confidentiality(January 2015).
Also available in Arabic, French, Haitian Creole, Russian, simplified Chinese, Somali, and Vietnamese at www.dhs.gov/file-civil-rights-complaint