Safety Planning: Rights, safety, and security related to local/state police and/or immigration law enforcement
Arrest and conviction of immigrant survivors
Survivors acting in self-defense or whose conduct is directly related to the abuse may be charged with crimes of violence or assault. Immigrant survivors with limited English proficiency who are not provided with qualified interpreter services at the time of the arrest or when charges are brought against them are especially vulnerable to these charges.
A criminal conviction or guilty plea can render immigrant survivors ineligible immigration relief and subject them to removal (deportation). A criminal conviction can also jeopardize the immigration status of survivors who are lawful permanent residents or have lived in the US for years, even if they have have close family ties to citizenship, such as US-born citizen children.
Federal law recognizes this double bind for immigrant survivors, and offers VAWA-specific immigration relief. However, access can still be hugely complicated if a survivor has a criminal conviction.
Consider some of the important questions about the circumstances of arrest of any survivor:
- Was the survivor acting in self-defense?
- Was this a case of dual arrest?
- Is the aggressor the predominant perpetrator of abuse in the relationship?
If the response is “yes” for describing the circumstances of arrest of an immigrant survivor:
ð There is a need for education/training about the impact of conviction on immigration status and how this places immigrant survivors’ rights at risk; advocates should identify and partner with experts on the intersections between immigration and criminal law.
ð There is a need for education/training about immigration-specific tactics of abuse; some aggressors will trigger a survivor’s arrest and conviction and/or use the survivor’s criminal record to threaten deportation.
Other important questions include the following:
- Does the survivor speak English fluently?
- Did the police speak the survivor’s language or have a qualified interpreter?
ð If the answer is “no,” this indicates a need for systems advocacy regarding language access and the rights of persons with limited English proficiency.
- Does the aggressor speak English?
- Did the police speak only with the aggressor or the aggressor’s family members?
ð If the response is “yes” and the immigrant survivor has limited English proficiency, this indicates a need for education/training on language access and how aggressors use survivors’ limited English proficiency as a means to keep survivors isolated, minimize/deny the abuse, and manipulate systems to protect themselves and punish survivors.
More broadly speaking, if there are also local patterns of differential policing of immigrant communities – such as higher rates of arrest of immigrant survivors – these indicate systems’ bias and abuse of power and control. There is a clear and immediate need for a community-wide, collaborative effort to change policies and procedures, and increase accountability.
1. One of the biggest barriers to reporting and seeking help for immigrant survivors (of all crimes, including those of domestic and sexual violence) is the fear of being reported to immigration enforcement by police. Local police have the right to inquire into the immigration status of immigrant victims of crimes – the Supreme Court has established an individual’s immigration status can be inquired into without first establishing reasonable suspicion. There is no exception for survivors. Police are not, however, required to inquire into or report the immigration status of crime victims.
2. When immigrant victims know that local/state police will inquire about their immigration status, they are unlikely to report victimization. This must be taken into account when safety planning with immigrant survivors.
3. The safety and security of immigrant survivors is placed at risk not only by the aggressor’s violence and control, but also by an immigration system that generally considers a criminal conviction as cause to reconsider, revoke or deny immigration status and, as a result, to render them ineligible for immigration relief or jeopardize their documented status.
4. Immigrant victims of crime, as do all victims of crime, have the right to due process and equal protection. In cases where the victim has limited English proficiency, all police departments and court systems that receive federal funds, even if for just specific programs, must provide meaningful language access to services. Bilingual advocates, family or friends of the survivor, or any other persons who are not qualified interpreters and/or pose a conflict of interest should not serve as interpreters with police departments and court systems.
During safety planning:
- Offer the survivor education and tools (such as an “I speak” card that identifies their language and requests an interpreter and a “Know Your Rights” card) regarding their rights and responsibilities in the event they are questioned by police or arrested.
- Ensure the survivor has the telephone numbers of the sexual/domestic violence program and of an immigration attorney (encourage them to memorize these numbers).
- If the survivor has or may have been arrested and/or convicted:
o Review the basics of “Post conviction relief” (Own the Dream) about the ways in which it may be possible for an immigrant survivor with a conviction to access immigration relief, i.e., vacating, reducing, expunging, or otherwise modifying the survivor’s plea, sentence, or record of conviction. Although this is written specific to people applying to renew their DACA (Deferred Action for Childhood Arrivals) applications, the information is applicable to other forms of immigration relief. This should be for review purposes only and to help you support the survivor to understand and prepare for these processes, as the survivor will likely need the services of both criminal defense and immigration attorneys.
o Offer the survivor information about how to determine if they have criminal records and, if so, how to access copies (see, for example, “How to get your criminal record” by Own the Dream). This information will help the criminal defense and immigration attorneys determine eligibility for and access to immigration relief.
For more information and resources, see “Rights, safety, and security related to local/state police and/or immigration law enforcement” in this Toolkit.
Develop a systems advocacy plan to ensure police recognize and protect the rights of immigrant survivors and hold aggressors accountable. Elements of your plan may include:
- Collaborate with immigration rights advocacy groups in your community.
o Build your own capacity regarding local immigrant communities’ safety needs, experience with local police, and language access needs.
o Offer education regarding sexual/domestic violence and VAWA.
o Partner to develop an organizing platform that works toward law enforcement protection for all residents, including immigrants and immigrant survivors.
- Develop and provide training to police regarding sexual/domestic violence against immigrants, VAWA immigrant-specific provisions (see “VAWA Confidentiality” and “Survivor-specific immigration remedies” in this Toolkit), and language access.
- Provide assistance to police to develop new policies, update training curricula, or culturally-relevant community policing plans (plans that actively pursue and develop meaningful, productive, and trusting relationships with immigrant communities served).
Tools & Resources
Changing systems(Cambiar sistemas) in the Enhancing access for individuals with limited English proficiency toolkit(Haciendo accesibles para personas con conocimiento limitado del ingles los servicios de apoyo contra la violencia doméstica) by the National Latin@ Network for Healthy Families and Communities provides guidance and resources in for use in developing effective systems advocacy for language access services.
The federal interagency website on limited English proficiency (www.lep.gov) provides resources on the responsibility to provide language access, including the governing laws and regulations (see “Frequently Asked Questions”) and implementation guidance (see “DOJ LEP Guidance for Recipients”).
The Immigrant Women Programof Legal Momentum provides guidance and resources for developing training for systems on sexual/domestic violence against immigrants.
Engaging Police in Immigrant Communities: Promising Practices from the Fieldby the Vera Institute of Justice (2012) documents promising “law enforcement practices that cultivate trust and collaboration with immigrant communities.”
Orloff, L., Story, R. & Angel, C. (2013). The criminal justice system and immigrant victims. 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.