Immigration Options for Immigrant - Advancing justice and...

427Clearinghouse REVIEW Journal of Poverty Law and Policy ■ September–October 2004

1Mary Ann Dutton et al., Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered ImmigrantLatinas: Legal and Policy Implications, 7 GEORGETOWN JOURNAL ON POVERTY LAW AND POLICY 245, 270–71 (2000).

Working with immigrant victims of domestic violence presents a series ofchallenges. Battered immigrant women may fear deportation more thanthey fear their batterers, and that fear of deportation means that a battered

immigrant woman initially may fear you, the service provider and representative ofthe outside world, as much as, or even more than, the batterer himself. Hand andhand with fear is a lack of knowledge about immigration law, about non-immigra-tion-related supports and protection that may be available to a battered immigrantwoman and her children (e.g., shelter, counseling, police protection, public assis-tance), and about her own immigration status.

Your work with an immigrant victim of domestic violence, as with any victim ofdomestic violence, must begin with gaining her trust. You can do so both by listeningto her concerns and priorities, which may not be the same as your own, and by lettingher know that you are there to help her find solutions that work for her, not to tell herwhat to do or to contact immigration authorities. Familiarity with common barriersthat immigrant victims fleeing domestic violence face, with various immigration sta-tus, and with possible immigration law remedies—as well as immigration attorneysand representatives in your area able to handle your clients’ cases if you are not ableto do so yourself—will put you in the best position to serve your immigrant clients.

I. Common Barriers for Immigrant Victims of Domestic Violence

Almost all domestic violence victims face barriers in their efforts to escape abusivepartners. However, immigrant victims’ barriers are unique or affect them in a dis-tinct manner. When serving immigrant victims, you should watch for these specialissues.

A. Lack of Money

Lack of money is a primary reason why immigrant domestic violence victims cannotescape. According to a study by Ayuda, a nonprofit organization based in Washington,D.C., 67.1 percent of battered immigrants (compared to 40 percent of U.S. citizens)cite lack of money as the reason that they stay with their abusers.1

Immigrant (as opposed to U.S. citizen) victims of domestic violence are particularlyvulnerable to economic pressure to stay with the batterer because they are

■ more likely to have limited or no English proficiency;

■ less likely to have immigration status and thus less likely to be authorized to worklegally in the United States;

■ more likely to be ineligible for public benefits or, if eligible, fear immigration con-sequences of seeking public benefits;

Immigration Options for ImmigrantVictims of Domestic ViolenceBy Julie E. Dinnerstein

Julie E. DinnersteinDirector, Immigration

Intervention Project

Center for Battered Women’s Legal Services

Sanctuary for Families67 Wall St., Suite 2211New York, NY 10005212.349.6009 ext. [email protected]

428 Clearinghouse REVIEW Journal of Poverty Law and Policy ■ September–October 2004

Immigration Options for Immigrant Victims of Domestic Violence

■ more likely to be rejected by their com-munity for leaving;

■ less likely to have backup child carefrom friends and family; and

■ more likely not to have the education,training, or work experience necessaryfor employment.

In sum, money matters. A woman whocannot come up with an alternate plan forproviding food, clothing, and shelter forherself and her children is unlikely toleave an abusive home where, at least,such necessities may be covered. Evenmore than with citizen domestic violencevictims, basic financial-resource plan-ning must be part of the discussion thatyou have with your client.

B. Fear of Consequences in theHome Country

Immigrants leave many friends and fam-ily members behind when they come tothe United States, and abusive partnersmay well have long arms that reach all theway back to the home country. Even if animmigrant victim of domestic violence isable to find adequate protection from herabuser in the United States, chances areslim that she can protect her children,siblings, parents, and friends back homefrom an abusive partner who has connec-tions in the home country and an abilityand the will to travel there. Rarely cananyone in the United States do anythingto protect these friends and family mem-bers in the home country.

Realize that while you are engaged insafety planning for the woman sitting inyour office, she may be calculating safetyrisks for friends and family back home.

C. Fear of Losing Custody of the Children

For a variety of reasons, immigrants fearthat if they separate from an abusive part-ner, they will lose their children. In manycountries in the world, children, either bycustom or by law, go to the father, not themother, when a couple splits up. Regardless

of the rules and practices in the home coun-try, many immigrants assume that theirabusive partners will be awarded custodybecause of their superior command ofEnglish, their superior economic resources,their stronger family and community sup-ports, and, above all, their immigration sta-tus. Friends and abusive partners alikeoften tell immigrant victims (who just asoften believe them) that judges adjudicatingcustody will have them deported while theirchildren remain behind with the abusers.

To advocate on behalf of immigrantdomestic violence victims, you shouldknow how family court judges in theirarea handle custody battles in which oneparent does not have immigration status,and, if you are representing such parents,you should be prepared to argue thatdomestic violence, not immigration sta-tus, is the key issue when making a cus-tody determination.

D. Fear of Deportation

Coloring every aspect of fear that noncitizenvictims of domestic violence experience istheir terror at the prospect of deportation.2

Many noncitizens cannot distinguishbetween immigration officials and othergovernment officials, particularly thosewho wear uniforms (the police) or robes(judges) or who work in imposing buildingssuch as courts (attorneys). While the actualrisk to domestic violence victims of govern-ment officials alerting federal immigrationauthorities about their actual (or purport-ed) unlawful presence varies from locationto location, the fear that all governmentofficials are in collusion to deport immi-grants is real and overwhelming for mostnoncitizen victims of domestic violence.

When serving noncitizen victims ofdomestic violence, you need to know thepolicies and practices of government andother social service workers in their areaand the likelihood of these noncitizens’being reported to federal immigrationauthorities through contact with systemsdesigned to help and support domesticviolence victims.

2The term “removal” is the formal name for deportation proceedings initiated by the U.S. government on or after April1, 1997. Section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,110 Stat. 3009, created “removal” proceedings.



II. Immigration Status

The foreign-born population in theUnited States is growing rapidly. In 1990foreign-born persons made up 7.9 per-cent of the population.3 By 2003 that fig-ure had increased to 11.7 percent, whichmeans that 33.5 million people living inthe United States were foreign born.4

There are a wide variety of immigrationstatus and more than sixty differentkinds of visas that foreign-born personsmay have. Or they may have no immigra-tion status at all or may fit into more thanone category and be changing their sta-tus. Also, more than forty-five differentcategories may give a noncitizen the basisfor employment authorization. Simplestatements such as “she has a work per-mit” or “she has a social security num-ber” do not give sufficient informationfor an analysis of the client’s immigrationstatus.

In the following subsections I discuss thevarious immigration status and cate-gories that you are most likely toencounter among immigrant victims ofdomestic violence:

■ U.S. citizens,

■ lawful permanent residents,

■ conditional permanent residents,

■ refugees and asylees,

■ T visa holders,

■ deferred action, and

■ permanently residing in the UnitedStates under color of law (commonlyknown by the acronym “prucol”).

A. U.S. Citizens

Under the U.S. Constitution, “[a]ll per-sons born or naturalized in the UnitedStates . . . are citizens of the UnitedStates.”5 Persons born outside the UnitedStates still may be citizens by birth if bornin certain U.S. territories.6 Or they may becitizens because one or both of their par-ents are U.S. citizens.7

From the perspective of an immigrationlawyer working for a nonprofit organiza-tion, a citizen often is considered to besomeone who may not be deported; iseligible to vote; may (if 21 years of age orover) sponsor parents, spouses, siblings,and children for immigration status; andhas no immigration bars to eligibility forpublic benefits.8 However, when workingwith immigrants, do not forget the “natu-ralized” portion of the Constitution’s defi-nition of U.S. citizen. Many immigrantswhom you serve, including those withlimited English proficiency, may be nat-uralized U.S. citizens who, whether or notthey realize it, generally have nothing tofear from federal immigration authori-ties.9 Further, many immigrants whomyou serve are lawful permanent residentswho may be eligible for naturalization,which protects immigrants and theirchildren from the harsh consequences ofimmigration laws They often do not real-ize the importance of becoming natural-ized; if you are working with families in

3U.S. CENSUS BUREAU, NO. P23-206, PROFILE OF THE FOREIGN-BORN POPULATION IN THE UNITED STATES: 2000, at 9 (Dec. 2001),www.census.gov/prod/2002pubs/p23-206.pdf.

4LUKE J. LARSEN, U.S. CENSUS BUREAU, NO. P20-551, THE FOREIGN-BORN POPULATION IN THE UNITED STATES: 2003, at 1 (Aug. 2004),www.census.gov/prod/2004pubs/p20-551.pdf.

5U.S. CONST. amend. XIV, § 1.

6See, e.g., 8 U.S.C. § 1402, Immigration and Nationality Act (INA) § 302 (2004) (Puerto Rico); 8 U.S.C. § 1403, INA § 303 (2004)(certain persons born in the Canal Zone or Republic of Panama); 8 U.S.C. § 1405, INA § 306 (2004) (the Virgin Islands); 8. U.S.C.§ 1406, INA § 307 (2004) (Guam).

7See 8 U.S.C. § 1401, INA § 301 (2004) (describing nationals and citizens of the United States at birth); see also 8 U.S.C.§ 1409, INA § 309 (2004) (children born out of wedlock); cf. 8 U.S.C. § 1408, INA § 308 (2004) (nationals but not citi-zens of the United States at birth).

8Cf. 8 U.S.C. § 1451, INA § 340 (2004) (outlining certain limited circumstances for revocation of naturalization, which,in turn, would allow for the rare situation in which a U.S. citizen could be subject to the INA and deported). “Citizen”does not appear to be defined in the INA.

9See 8 U.S.C. § 1101(a)(23), INA § 101(a)(23) (2004) (defining “naturalization”).



which any of the members are lawful per-manent residents, consider it part of yourethical duty to inform them.

B. Lawful Permanent Residents

Lawful permanent residents are “foreignnational[s] . . . granted the privilege ofliving and working permanently in theUnited States.”10 They are popularlyknown as “green card holders,” “legalpermanent residents,” “permanent resi-dents,” or “residents.”

While lawful permanent residents maylive in the United States permanently,their rights are more limited than thoseof U.S. citizens. For minor infractions,such as marijuana possession orshoplifting, lawful permanent residentsmay be deported or refused entry aftershort trips abroad.11 They may sponsoronly spouses and unmarried children.12

By contrast, U.S. citizens also may spon-sor parents (when the U.S. citizen is 21 orover), siblings, and married children.13

Lawful permanent residents have accessto some, but not all, public benefits.14

They are eligible for federally fundedfinancial aid.15 And they may serve in the

U.S. military.16 If they spend extendedtime abroad (e.g., caring for a sick rela-tive, or, in the case of young lawful per-manent residents, being cared for byfamily members abroad), they may losetheir resident status.17

In the 2002 fiscal year, the most recentyear for which statistics are available, theUnited States granted lawful permanentresident status to just over one millionpeople.18 More than 60 percent of thosegrants were to immigrants sponsored byfamily members.19 While most immi-grants do not know the exact statistics,they are aware that most people get greencards through family sponsorship. Forwomen relying on abusive husbands forsponsorship, this awareness contributesto a sense of being trapped in a violenthome without any realistic possibility ofescape.

C. Conditional Permanent Residents

Immigrants who are sponsored by theirspouses or stepparents may be grantedconditional rather than permanent resi-dent status when they first are granted

10U.S. Citizenship and Immigration Services, How Do I Become a Lawful Permanent Resident While in the United States?,http://uscis.gov/graphics/howdoi/legpermres.htm (last modified Nov. 10, 2003); see also 8 U.S.C. § 1101(a)(20), INA § 101(a)(2)(2004) (“The term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilegeof residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not havingchanged.”).

118 U.S.C. § 1101(a)(13)(C)(v), INA § 101(a)(13)(C)(v) (2004).

128 U.S.C. § 1153(a)(2), INA § 203(a)(2) (2004).

138 U.S.C. § 1151(b)(2)(A)(i), INA § 201(b)(2)(A)(i) (2004) (parents); 8 U.S.C. § 1153(a)(4), INA § 203(a)(4) (2004) (sib-lings); 8 U.S.C. § 1153(a)(3), INA § 203(a)(3) (2004) (married children). Like lawful permanent residents, U.S. citizens maysponsor spouses and children. 8 U.S.C. § 1151(b)(2)(A)(i), INA § 201(b)(2)(A)(i) (2004) (spouses and unmarried minor chil-dren); 8 U.S.C. § 1153(a)(1), INA § 203(a)(1) (2004) (adult unmarried children).

148 U.S.C. § 1612 (2004) (describing limited eligibility of qualified aliens, including lawful permanent residents, for cer-tain federal programs).

15See 20 U.S.C. § 1091(a)(5) (2004); 34 C.F.R. § 668.33(a)(2)(ii) (2004); see also Policy Development Division, StudentFinancial Assistance Programs, U.S. Department of Education, Policy Bulletin: Welfare Reform Legislation (July 30, 1997),http://ifap.ed.gov/pbulletins/doc0003_bodyoftext.htm (hereinafter Policy Bulletin); Letter from Elizabeth M. Hicks, DeputyAssistant Secretary for Student Financial Assistance Programs, U.S. Department of Education, to Dear Colleague, GEN-98-2 (Jan. 1998), http://ifap.ed.gov/dpcletters/doc0468_bodyoftext.htm.

1610 U.S.C. § 3253 (2004); see generally Margaret D. Stock, When Your Client Fights for Uncle Sam: “No Card” Soldiersand Expedited Citizenship, 8 BENDER’S IMMIGRATION BULLETIN 1889 (2003) (describing the general requirement of lawful per-manent resident, U.S. national, or U.S. citizenship status as well as exceptions during time of war).

17See 8 U.S.C. § 1101(a)(20), INA § 101(a)(20) (2004); 8 U.S.C. § 1101(a)(27), INA § 101(a)(27)(A) (2004); In re Huang,19 I. & N. Dec. 749 (Bd. Immigration App. 1988); see generally Deborah F. Buckman, Annotation, Abandonment of LawfulPermanent-Resident Status, 193 A.L.R. FED. 673 (2004).

18U.S. DEPARTMENT OF HOMELAND SECURITY, 2002 YEARBOOK OF IMMIGRATION STATISTICS 6 (2003).

19Id.



residence.20 Spouses who have beenmarried for less than two years when theyare granted green cards as well as spous-es who enter the United States onfiancé(e) (K-1) visas are granted what isofficially known as “conditional perma-nent residence” and more popularlyknown as a “temporary green card.”21

Similarly children whose sponsoringstepparent has been their stepparent forless than two years when a green card isgranted as well as children who enter theUnited States on children of fiancé(e)(K-2) visas also are granted conditionalpermanent residence.22

Conditional permanent resident status isconferred for two years, although the sta-tus continues beyond the initial two-yeargrant until federal immigration authori-ties formally act to terminate such sta-tus.23 They may terminate the status onlyon a finding that

■ the underlying marriage was “improper”(essentially a finding that the marriagewas entered into for purposes of immi-gration fraud)24 or

■ the conditional permanent residentfailed to file a petition to remove the con-dition or attend any required personalinterviews or both.25

Immigrants with conditional permanentresident status are treated in law just aslawful permanent residents.26 The onlydifference is that conditional permanentresidents must apply, generally in the lastninety days of the two-year period forwhich such status has been granted, toremove the condition on their residentstatus or show good cause for their failureto do so.27 Domestic violence victims fil-ing battered spouse or child waivers mayfile at any time during the two-year peri-od of conditional residence or later.28

D. Refugees and Asylees

Refugees and asylees are persons (1) whohave fled their native countries or fearreturning to such countries; (2) have soughta safe haven in the United States; and (3)officially have been recognized by the U.S.government as refugees.29 Amid contro-versy in this area, the U.S. government hasbeen granting asylum status to an increas-ing number of domestic violence victims.

20See Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537 (creating conditional per-manent resident status).

21See generally 8 U.S.C. § 1186a, INA § 216 (2004) (describing conditional resident status, the procedures for removingthe condition on such status, and the possibility of losing such status).

22Id.

238 U.S.C. § 1186a(b), INA § 216(b) (2004); 8 U.S.C. § 1186a(c)(2), INA § 216(c)(2) (2004). Although the card that mostconditional permanent residents have expires after two years, the status does not. Practically speaking, while your clientcannot give proof of status to a new employer, a public benefits official, or a financial aid officer, a conditional perma-nent resident with an expired card lawfully may continue to work, receive public benefits, or receive federally fundedfinancial aid, among other benefits, until a federal immigration officer actually terminates her immigration status.

24See 8 U.S.C. § 1186a(b), INA § 216(b) (2004); 8 U.S.C. § 1186a(c)(3), INA § 216(c)(3) (2004).

25See 8 U.S.C. § 1186a(c)(2), INA § 216(c)(2) (2004).

268 U.S.C. § 1186a(e), INA § 216(e) (2004).

278 U.S.C. § 1186a(c), INA § 216(c) (2004).

28See 8 U.S.C. § 1186a(c)(4), INA § 216(c)(4) (2004); see generally 8 U.S.C. § 1186a, INA § 216 (2004), for an absence oftiming requirements for (c)(4) waivers. The three hardship waivers available under INA § 216(c)(4) are extreme hardship,divorce, and battered spouse or child waivers. For more information on the battered spouse or child waiver, see infra III.A.1.

29See 8 U.S.C. § 1101(a)(42), INA § 101(a)(42) (2004) (defining “refugee”). The term “asylee” does not appear to bedefined in the INA; but see 8 U.S.C. § 1158, INA § 208 (2004) (governing the granting of asylum status). General immigra-tion law relating to refugees and asylees is available at 8 U.S.C. § 1157, INA § 207 (2004); 8 U.S.C. § 1158, INA § 208 (2004);8 U.S.C. § 1159, INA § 209 (2004).



Refugees and asylees are granted statusindefinitely, but they may lose it if they vol-untarily return to their home countries.30

Refugees and asylees generally have better,less restricted access to public benefits thanlawful permanent residents.31 They mayreceive federally funded financial aid,but they have limited rights to share theirimmigration status with spouses andunmarried minor children.32 Like lawfulpermanent residents, refugees andasylees risk losing their immigration sta-tus on the basis of minor criminal infrac-tions.33 Refugees and asylees may applyfor lawful permanent resident statusafter having held refugee or asylee statusfor one year.34

E. T Visa Holders

Some people brought into the UnitedStates for the purpose of commercial sex-ual exploitation or forced labor are eligi-ble for trafficking visas (commonlyknown as T visas).35 Victims of sex traf-ficking frequently are forced into abusiveintimate relations with their traffickersor pimps. You may first encounter a vic-tim of trafficking as a victim of domesticviolence in an abusive relationship withher boyfriend or husband and only later

learn that the abusive partner is also yourclient’s trafficker or pimp or both.

In most respects, U.S. law treats traffick-ing victims with T visas in the same way asrefugees and asylees. The most signifi-cant difference involves the applicationfor lawful permanent resident status.Whereas refugees and asylees must waitonly one year to apply for such status, Tvisa holders must wait three years andmeet additional requirements to be grantedlawful permanent resident status.36

F. Deferred Action

Deferred action is among the more diffi-cult immigration categories for nonim-migration lawyers to understand, but it iscritical in the world of domestic violence.Almost all victims of domestic violencewho are married to abusive U.S. citizensor lawful permanent residents and whofile Violence Against Women Act (VAWA)self-petitions to obtain immigration sta-tus are granted deferred action.37 Fromwhen the VAWA self-petition is approvedto when lawful permanent resident statusis granted—a period that could last forseveral years—the approved VAWA self-petitioner’s only immigration status isdeferred action. Domestic violence vic-

308 U.S.C. § 1158(c)(2)(D), INA § 208(c)(2)(D) (2004).

31Compare 8 U.S.C. § 1612(a)(2)(A) (2004) (granting access to federal benefit programs during the first seven years ofstatus for asylees, refugees, and those granted similar relief) with id. § 1612(a)(2)(B) (requiring lawful permanent residentsto have the equivalent of a ten-year work history before being granted access to federal benefit programs).

32See 8 U.S.C. § 1157(c)(2), INA § 207(c)(2) (2004) (refugees); 8 U.S.C. § 1158(b)(3), INA § 208(b)(3) (2004) (asylees).

33See generally 8 U.S.C. § 1227, INA § 237 (2004).

34See 8 U.S.C. § 1159(a), INA § 209(a) (2004) (refugees); 8 U.S.C. § 1159(b), INA § 209(b) (2004) (asylees).

35See 8 U.S.C. § 1101(a)(15)(T), INA § 101(a)(15)(T) (2004), 8 U.S.C. § 1184(o), INA § 214(o) (2004) (describing statu-tory requirements for a T visa); see also 8 C.F.R. § 214.11 (2004) (describing regulatory requirements for a T visa); see gen-erally Sheila Neville & Susana Martinez, The Law of Human Trafficking: What Legal Aid Providers Should Know, 37CLEARINGHOUSE REVIEW 551 (March–April 2004).

368 U.S.C. § 1255(l), INA § 245(l) (2004).

37See Memorandum from Michael D. Cronin, Acting Executive Associate Commissioner of the Office of Programs,Immigration and Naturalization Service, to the Vermont Service Center (Sept. 8, 2000); Memorandum from Michael D.Cronin, Acting Associate Commissioner of the Office of Programs, Immigration and Naturalization Service, to RegionalDirectors, Immigration and Naturalization Service (Dec. 22, 1998). For a discussion of this practice, see generally ChristophHoashi-Erhardt & Stephen Yale-Loehr, Self-Petitions for Battered Immigrant Spouses and Children, 6 BENDER’S IMMIGRATION

BULLETIN 1227 (2001).



tims who apply for interim relief under U visa legislation intended to help crimevictims also are granted deferred action.38

Deferred action, though not a particular-ly common immigration status amongimmigrant population groups at large, isa status that large numbers of immigrantvictims of domestic violence either haveor hope to obtain.

Deferred action is not really a status, andit is not defined by statute. Essentially, incertain situations, federal immigrationauthorities, by policy choice and throughtheir sole discretion, choose to grant“deferred action” to certain immigrants.In granting deferred action, federalimmigration authorities make an affir-mative statement that (1) the immigrantin question is in the United States; (2) theimmigrant may or may not be lawfullypresent; (3) the immigrant appears towish to stay in the United States indefi-nitely; and (4) federal immigrationauthorities, by administrative choice, aredeferring the action of initiating removal

proceedings against the immigrant.39

Deferred action status may be taken awayat any time. While immigrants maintaindeferred action status, they are protectedfrom removal proceedings and may applyfor an employment authorization docu-ment (popularly known as a work per-mit).40

Deferred action is a form of prucol status(which I discuss in the next subsection)and is the basis for eligibility for certainpublic benefits in New York and severalother states.41 Deferred action does notallow for the sponsoring of relatives orthe application for lawful permanent res-ident status. Persons with deferredaction status may not travel outside theUnited States. Deferred action status isnot a basis for receiving federally fundedpublic benefits or financial aid.42

However, some people with deferredaction status—for example, VAWA self-petitioners—may have an independentreason for accessing federally fundedbenefits.43

388 U.S.C. § 1101(a)(15)(U), INA § 101(a)(15)(U) (2004), 8 U.S.C. § 1184(p), INA § 214(p) (2004) (describing statutoryrequirements for a U visa); Memorandum from William R. Yates, Associate Director of Operations, U.S. Department ofHomeland Security, to Paul E. Novak, Director of the Vermont Service Center, U.S. Department of Homeland Security (May6, 2004); Memorandum from William R. Yates, Associate Director of Operations, U.S. Department of Homeland Security,to Director of the Vermont Service Center, U.S. Department of Homeland Security (Oct. 8, 2003); Memorandum fromMichael D. Cronin, Acting Executive Associate Commissioner for the Office of Programs, Immigration and NaturalizationService, to Michael A. Pearson, Executive Associate Commissioner for the Office of Field Operations, Immigration andNaturalization Service (Aug. 30, 2001).

39See Immigration and Naturalization Service Operations Instruction § 103.1(a)(ii) (in effect before June 15, 1984) or § 242.1(a)(22) (in effect from June 15, 1984, to June 24, 1997); Reno v. American-Arab Anti-Discrimination Committee, 525U.S. 471, 483–84 (1999) (Clearinghouse No. 51,915) (describing deferred action as an “‘exercise in administrative discretion,developed without express statutory authorization’” which “‘means that . . . no action will thereafter be taken to proceedagainst an apparently deportable alien’” (quoting 6 CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE § 72.03[2][h] (1998)));see also Memorandum from Johnny N. Williams, Executive Associate Commissioner of the Office of Field Operations,Immigration and Naturalization Service, to Regional Directors, the Deputy Executive Associate Commissioner for ImmigrationServices, and General Counsel, Immigration and Naturalization Service (June 12, 2002) (Clearinghouse No. XX,XXX) (listinggrants of deferred action as a “period[] of stay authorized by the Attorney General”).

40See 8 U.S.C. § 1324a, INA § 274A (2004); 8 C.F.R. § 274a.12(c)(14) (2004).

41See N.Y. SOC. SERV. § 122(c) (Consol. 2003) (describing immigrant eligibility for state-funded cash assistance and med-ical insurance programs); N.Y. SOC. SERV. § 158(g) (Consol. 2003) (describing immigrant eligibility for state-funded cashassistance program); see Aliessa v. Novello, 754 N.E.2d 1085, 1098 (N.Y. 2001) (Clearinghouse No. 52,429) (holding thatthe U.S. and New York State Constitutions required New York to grant state-funded Medicaid to persons with “perma-nently residing under color of law” (prucol) status on the same terms as other New York residents). For a state-by-statereview of immigrant eligibility for public benefits, including references to states that continue to rely on the concept ofprucol persons in determining eligibility for public benefits, see NATIONAL IMMIGRATION LAW CENTER, GUIDE TO IMMIGRANT

ELIGIBILITY FOR FEDERAL PROGRAMS (4th ed. 2002).

42See 8 U.S.C. § 1641(b) (2004) (which defines “qualified aliens” for public benefit purposes but does not include per-sons with prucol status); Policy Bulletin, supra note 15 (which does not list prucol as a category of immigrant eligible forfinancial aid); see also Hicks, supra note 15 (which does not list prucol as a category of immigrant eligible for financialaid).

438 U.S.C. § 1641(c) (2004) (defining as “qualified aliens” those who need public benefits to escape domestic violenceand who have established a prima facie case for a Violence Against Women Act (VAWA) self-petition or have an approvedVAWA self-petition).



G. Permanently Residing UnderColor of Law

“Permanently residing under color oflaw” is not an immigration status; rather,it is a concept used in state-funded pub-lic benefits.44 The idea behind the pru-col concept is that many immigrants arein the United States with the full knowl-edge of federal immigration authorities(a knowledge generally based on anapplication for some kind of permanentimmigration status that has not yet led toany kind of formal immigration status)where the government is making noeffort to deport them. The driving theorybehind the prucol concept is not thatthese immigrants are in any way protect-ed from deportation but that, for the timebeing, the government can be said tohave acquiesced in the immigrants’ pres-ence.45 Of course, the government maydecide at any time to deport such immi-grants.

In addition to finding proof that yourclient has made her presence known tofederal immigration authorities andindicated her intent to stay, you will alsowant to know if federal immigrationauthorities are seeking to deport yourclient. While you cannot always find thisout, if you have the client’s alien number,you can contact the immigration court’s

automated information system at800.898.7180 to find out about any past orcurrent proceedings against your client.

III. Immigration Law Remedies

The fundamental problem with the U.S.immigration system is that many morepeople would like to immigrate to theUnited States than the law allows.Immigrants may not simply apply forpermanent immigrant status; rather,they must have some kind of supportingapplication or petition establishing eligi-bility. Eligibility categories can be divid-ed roughly into four categories:

■ family,46

■ humanitarian,47

■ employment,48 and

■ diversity lottery.49

Since 1990, through both legislation andcase law, feminist activists have foughtsuccessfully to create relief for immi-grant victims of domestic violence inboth the family and humanitarian cate-gories. While the relief can be significantfor those who qualify, many, perhaps amajority of, immigrant victims of domes-tic violence are not eligible for any of theforms of relief I describe in this article.

44Before passage on August 22, 1996, of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996(Pub. Law No. 104-193, 110 Stat. 2105), which severely limited immigrants’ access to public benefits, the prucol concepthad been developed and used under federal law relating to public benefits. Since August 22, 1996, only a limited num-ber of states, including New York, have continued to use the prucol concept in determining immigrant eligibility for pub-lic benefits. See also supra note 41.

45See, e.g., 42 C.F.R. § 435.408 (2004) (describing an immigrant who is prucol as a noncitizen who is “residing in theUnited States with the knowledge and permission of the Immigration and Naturalization Service (INS) and the INS doesnot contemplate enforcing the alien’s departure. The INS does not contemplate enforcing an alien’s departure if it is thepolicy or practice of INS not to enforce the departure of aliens in the same category, or if from all the facts and circum-stances in a particular case it appears that INS is otherwise permitting the alien to reside in the United States indefinite-ly.”); Lewis v. Thompson, 252 F.3d 567, 571–72 (2d Cir. 2001) (citing Berger v. Heckler, 771 F.2d 1556, 1575–76 (2d Cir.1985)) (stating that prucol “status . . . is an amorphous and ‘elastic’ one,” which includes “at least those aliens who areresiding in the United States with the INS’s knowledge and permission and whom the INS does not contemplate deport-ing”).

46See 8 U.S.C. § 1151(a)(1), INA § 201(a)(1) (2004); 8 U.S.C. § 1151(b)(2), INA § 201(b)(2) (2004); 8 U.S.C. § 1153(a),INA § 203(a).

47See generally 8 U.S.C. § 1157, INA § 207 (2004) (refugees); 8 U.S.C. § 1158, INA § 208 (2004) (asylees). Other human-itarian provisions are scattered throughout the statute and apply to distinct groups of immigrants. See, e.g., 8 U.S.C. § 1101(a)(15)(T), INA § 101(a)(15)(T) (2004); 8 U.S.C. § 1184(o), INA § 214(o) (2004) (trafficking victims); 8 U.S.C. § 1101(a)(15)(U), INA § 101(a)(15)(U) (2004); 8 U.S.C. § 1184(p), INA § 214(p) (2004) (certain crime victims).

48For the principal provisions, see 8 U.S.C. § 1151(a)(2), INA § 201(a)(2) (2004); 8 U.S.C. § 1153(b), INA § 203(b) (2004).

49See 8 U.S.C. § 1151(a)(3), INA § 201(a)(3) (2004); 8 U.S.C. § 1153(c), INA § 203(c) (2004).



In this section I review six distinct formsof relief: battered spouse or childwaivers, VAWA self-petitions, and VAWAcancellation, which are variations onfamily-based immigration, and asylumand U and T visas, which are humanitari-an forms of relief.50

A. Family-Based Immigration

For domestic violence victims, familysponsorship is perhaps the most impor-tant basis for achieving lawful permanentresident status. Of the more than onemillion people who are granted lawfulpermanent resident status each year inthe United States, more than 60 percentare sponsored by family members.51

These figures include almost 300,000spouses of U.S. citizens, 100,000 chil-dren of U.S. citizens, and another almost85,000 spouses or children of lawful per-manent residents.52 No annual cap is puton the number of spouses and children ofU.S. citizens allowed to apply for lawfulpermanent resident status each year.53

However, the number of spouses andchildren of lawful permanent residentswho may apply is strictly limited.54

The family sponsorship process forobtaining permanent immigration statustakes several years. The sponsoringspouse’s or parent’s signature is requiredon certain forms to initiate the process,and the sponsor generally must partici-

pate in the final interview before thegranting of immigration status. In light ofthe length of time involved in becoming alawful permanent resident and thenecessity of the sponsor’s involvement,the dilemma for battered immigrantsbecomes clearer—whether waiting outthe abuse is worth it to get the covetedgreen card, the passport to freedom.

Three forms of immigration relief—bat-tered spouse or child waivers, VAWA self-petitions, and VAWA cancellation—aremeant to help battered immigrantscaught in this trap.

1. Battered Spouse or Child WaiversThe general rule for conditional perma-nent residents is that they must file, dur-ing the ninety-day period immediatelybefore the second anniversary of havingbeen granted status, a joint petition withthe sponsoring spouse or parent toremove the condition on their status.55

However, a waiver of the joint filingrequirement is available to domestic vio-lence victims. Battered spouse or childwaivers are available to conditional per-manent residents where “the qualifyingmarriage was entered into in good faithby the alien spouse and during the mar-riage the alien spouse or child was bat-tered by or was the subject of extremecruelty perpetrated by his or her citizen . . . spouse or . . . parent. . . .”56

50Please be aware that this article does not contain sufficient information to train you to provide legal services in any ofthese areas. Rather, I intend generally to familiarize you with these forms of immigration relief. Resources for represent-ing clients in battered spouse or child waivers, VAWA self-petition and cancellation cases, and U and T visa cases are avail-able from the National Immigration Project, Immigrant Survivors of Domestic Violence and Sexual Assault, atwww.nationalimmigrationproject.org/domestic-violence/domvioindex.htm (last visited Sept. 7, 2004). Resources for rep-resenting gender-based asylum seekers are available from the Center for Gender and Refugee Studies, athttp://w3.uchastings.edu/cgrs/ (last modified Aug. 25, 2004) (the center is staffed by two of the country’s leading expertsin this field, Karen Musalo and Stephen Knight).

51Department of Homeland Security, supra note 18.

52Id. at 7. Note that the data break down spouses and children of U.S. citizens but lump together spouses and childrenof lawful permanent residents.

538 U.S.C. § 1151(b)(2)(A), INA § 201(b)(2)(A) (2004).

548 U.S.C. § 1151(a)(1), INA § 201(a)(1) (2004).

55See 8 U.S.C. § 1186a(c)(1)(A), INA § 216(c)(1)(A) (2004).

568 U.S.C. § 1186a(c)(4)(C), INA § 216(c)(4)(C) (2004); see also 8 C.F.R. § 216.5 (2004). Note that the requirement men-tioned in 8 C.F.R. § 216.5(e)(3)(iii) for an “evaluation of a professional recognized by the [Immigration and Naturalization]Service as an expert in the field” is no longer required since this regulatory provision has been overridden by statute.Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 40,703, 108 Stat. 1796, 1955 (amend-ing 8 U.S.C. § 1186a(c)(4), INA § 216(c)(4), requiring the consideration of “any credible evidence”). To apply for a bat-tered spouse or child waiver, use Form I-751, available at www.uscis.gov.



The conditional permanent residentwhose petition to have her conditionremoved is granted is a lawful permanentresident. The lawful permanent residentstatus dates back to when the conditionalpermanent resident status was grant-ed.57 In many cases, by the time the bat-tered spouse waiver is approved, theimmigrant (who must wait five years afterbecoming a lawful permanent resident orconditional permanent resident) will beeligible to apply to become a naturalizedU.S. citizen.58

2. VAWA Self-PetitionsImmigrant victims of domestic violencewho have not yet become conditionalpermanent residents or lawful perma-nent residents and who are married to orare the children of abusive U.S. citizensor lawful permanent residents may fileVAWA self-petitions.59 The VAWA self-petitioner must either be the spouse orchild of the abusive U.S. citizen or lawful

permanent resident at the time of filing,or the relevant spousal or parent-childrelationship must have ended in divorcedue to domestic violence within the twoyears preceding the filing.60 VAWA self-petitioners whose abusive spouse or par-ent has lost immigration status duringthe past two years in connection withhaving committed domestic violence alsoremain eligible to self-petition.61

Like those seeking battered spouse or childwaivers, VAWA self-petitioners must estab-lish both the abuse suffered and the good-faith marriage or parent-child relationshipwith abusive U.S. citizens or lawful perma-nent residents.62 VAWA self-petitionersalso must establish good moral characterand joint residence with their abusivespouses or parents.63

The successful VAWA self-petitioner isgranted deferred action status, whichmust be renewed each year.64 VAWA

57See 8 U.S.C. § 1186a(e), INA § 216(e) (2004). The statute refers only to backdating for naturalization, but this prac-tice is followed across the board in other contexts.

58Under the plain words of 8 U.S.C. § 1430(a), INA § 319(a) (2004), those with approved battered spouse or child waiversshould be eligible to apply to become naturalized U.S. citizens after three years of conditional permanent resident or law-ful permanent resident status. Unfortunately a current federal immigration authority policy memorandum does not sup-port this position. See Memorandum from William Yates, Deputy Executive Associate Commissioner of the Office of FieldOperations of the Immigration Services Divisions, to Regional Directors, District Directors, Officers-in-Charge and ServiceCenter Directors (Oct. 15, 2002).

59See 8 U.S.C. § 1154(a)(1)(A)(iii), INA § 204(a)(1)(A)(iii) (2004) (spouse of U.S. citizen); 8 U.S.C. § 1154 (a)(1)(A)(iv), INA§ 204(a)(1)(A)(iv) (2004) (child of U.S. citizen); 8 U.S.C. § 1154 (a)(1)(B)(ii), INA § 204(a)(1)(B)(ii) (2004) (spouse of lawfulpermanent resident); 8 U.S.C. § 1154(a)(1)(B)(iii), INA § 204(a)(1)(B)(iii) (2004) (child of lawful permanent resident); seealso 8 C.F.R. § 204.2(c) (2004) (spouse of U.S. citizen or lawful permanent resident); 8 C.F.R. § 204.2(e) (2004) (child ofU.S. citizen or lawful permanent resident). However, as of September 2004, the regulations have not been updated toreflect the Battered Immigrant Women Protection Act of 2000 incorporated into the Victims of Trafficking and ViolenceProtection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464. To apply for a VAWA self-petition, use Form I-360, avail-able at www.uscis.gov.

608 U.S.C. § 1154(a)(1)(A)(iii) (II)(aa)(CC)(ccc), INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(ccc) (2004); 8 U.S.C. § 1154(a)(1)(A)(iv), INA§ 204(a)(1)(A)(iv) (2004); 8 U.S.C. § 1154(a)(1)(B)(ii) (II)(aa)(CC)(ccc), INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(ccc) (2004); 8 U.S.C. § 1154(a)(1)(B)(iii), INA § 204(a)(1)(B)(iii) (2004). Note that innocent bigamy victims who believed themselves to be lawfullymarried are also eligible for VAWA self-petitions. 8 U.S.C. § 1154(a)(1)(A)(iii)(II)(aa)(BB), INA § 204(a)(1)(A)(iii)(II)(aa)(BB)(2004); 8 U.S.C. § 1154(a)(1)(B)(ii)(II)(aa)(BB), INA § 204(a)(1)(B)(ii) (II)(aa)(BB) (2004).

618 U.S.C. § 1154(a)(1)(A)(iii)(II)(aa)(CC)(bbb), INA § 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb) (2004); 8 U.S.C. § 1154(a)(1)(A)(iv),INA § 204(a)(1)(A)(iv) (2004); 8 U.S.C. § 1154(a)(1)(B)(ii)(II)(aa)(CC)(aaa), INA § 204(a)(1)(B)(ii)(II)(aa)(CC)(aaa) (2004); 8U.S.C. § 1154(a)(1)(B)(iii), INA § 204(a)(1)(B)(iii) (2004).

628 U.S.C. § 1154(a)(1)(A)(iii), INA § 204(a)(1)(A)(iii) (2004) (spouse of U.S. citizen); 8 U.S.C. § 1154(a)(1)(A)(iv), INA § 204(a)(1)(A)(iv) (2004) (child of U.S. citizen); 8 U.S.C. § 1154(a)(1)(B)(ii), INA § 204(a)(1)(B)(ii) (2004) (spouse of lawfulpermanent resident); 8 U.S.C. § 1154(a)(1)(B)(iii), INA § 204(a)(1)(B)(iii) (2004) (child of lawful permanent resident).

63For requirements that VAWA self-petitioners establish good moral character, see 8 U.S.C. § 1154(a)(1)(A)(iii)(II)(bb), INA § 204(a)(1)(A)(iii)(II)(bb) (2004); 8 U.S.C. § 1154(a)(1)(A)(iv), INA § 204(a)(1)(A)(iv) (2004); 8 U.S.C. § 1154(a)(1)(B)(ii)(II)(bb), INA§ 204(a)(1)(B)(ii)(II)(bb) (2004); 8 U.S.C. § 1154(a)(1)(B)(iii), INA § 204(a)(1)(B)(iii) (2004). For requirements that VAWA self-peti-tioners establish joint residence with their abusive spouses or parents, see 8 U.S.C. § 1154(a)(1)(A)(iii)(II)(dd), INA § 204(a)(1)(A)(iii)(II)(dd) (2004); 8 U.S.C. § 1154(a)(1)(A)(iv), INA § 204(a)(1)(A)(iv) (2004); 8 U.S.C. § 1154(a)(1)(B)(ii)(II)(dd), INA§ 204(a)(1)(B)(ii)(II)(dd) (2004); 8 U.S.C. § 1154(a)(1)(B)(iii), INA § 204(a)(1)(B)(iii) (2004).

64See supra note 37.



self-petitioners who are the current orformer spouses or children of U.S. citi-zens may immediately apply for lawfulpermanent resident status. VAWA self-petitioners who are the current or formerspouses or children of lawful permanentresidents generally must wait severalyears before applying to become lawfulpermanent residents.65

3. VAWA CancellationVAWA cancellation is specifically intendedfor domestic violence victims who are inremoval proceedings (popularly known asdeportation proceedings) and who have orhad a qualifying relationship with an abu-sive U.S. citizen or lawful permanent resi-dent.66 As with battered spouse or childwaivers and VAWA self-petitions, thequalifying relationship may be a spousalrelationship or a parent-child relation-ship.67 An immigrant with a child in com-mon with a U.S. citizen or lawful perma-nent resident who abused the child also iseligible to file for VAWA cancellation.68

Like VAWA self-petitioners, those seekingVAWA cancellation must establish goodmoral character.69 Those seeking VAWAcancellation have two additional require-ments not part of the criteria for batteredspouse or child waivers or VAWA self-petitions. They must establish

■ three years of continuous physicalpresence in the United States70 and

■ extreme hardship to themselves, theirparents, or their children were they tobe deported.71

A person granted VAWA cancellation ofremoval is granted lawful permanent res-ident status in the United States.72

B. Humanitarian-Based Immigration

America’s approach to humanitarianissues in immigration law dates back tothe aftermath of World War II—both thepostwar refugees and the Cold War.Western powers drafted the UnitedNations Convention Relating to theStatus of Refugees (the RefugeConvention) based on their understand-ing of persecution during World War II.73

The United States did not sign onto theRefugee Convention but in 1968 did rati-fy the subsequent United NationsProtocol Relating to the Status ofRefugees (the Refugee Protocol), whichincorporated most of the provisions ofthe Refugee Convention.74 The RefugeeProtocol’s protection provisions becamepart of U.S. statutory law in 1980.75 Theparadigm of the Refugee Convention andProtocol is that of a government actor

65A discussion of the priority date system, in which VAWA self-petitioning spouses and children of lawful permanent res-idents are under preference category 2A, is beyond the scope of this article. Additional information relating to prioritydates and the waiting period for family members of lawful permanent residents is available at the U.S. Department ofState’s monthly Visa Bulletin, http://travel.state.gov/visa/frvi_bulletin.html. For more information on the preference system,see Charles Wheeler, Family-Based Immigration, in this issue.

66See 8 U.S.C. § 1229b(b)(2), INA § 240A(b)(2) (2004); see also 8 C.F.R. §§ 1240.20, 1240.58 (2004). To apply for VAWAcancellation, use Form EOIR-42B, available at www.usdoj.gov/eoir/formslist.htm.

678 U.S.C. § 1229b(b)(2)(i)(I), INA § 240A(b)(2)(I) (2004); 8 U.S.C. § 1229b(b)(2)(i)(II), INA § 240A(b)(2)(II) (2004). Note that, aswith VAWA self-petitions, innocent victims of bigamy are also eligible for VAWA cancellation. 8 U.S.C. § 1229b(b)(2)(i)(III), INA§ 240A(b)(2)(III) (2004).

688 U.S.C. § 1229b(b)(2)(i)(I), INA § 240A(b)(2)(I) (2004); 8 U.S.C. § 1229b(b)(2)(i)(II), INA § 240A(b)(2)(II) (2004).

698 U.S.C. § 1229b(b)(2)(iii), INA § 240A(b)(2)(iii) (2004).

708 U.S.C. § 1229b(b)(2)(ii), INA § 240A(b)(2)(ii) (2004).

718 U.S.C. § 1229b(b)(2)(v), INA § 240A(b)(2)(v) (2004).

728 U.S.C. § 1229b(b)(2)(a), INA § 240A(b)(2)(a) (2004) (indicating the circumstances under which “[t]he AttorneyGeneral may cancel removal of, and adjust the status [to that] of an alien lawfully admitted for permanent residence” forcertain immigrant victims of domestic violence).

73Convention Relating to the Status of Refugees, opened for signature July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137.

74Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.

75Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 U.S.C.). For acomprehensive review of the U.S. response to refugees and asylum seekers from World War II through the passage of theRefugee Act of 1980, see Deborah Anker & Michael Posner, The Forty Year Crisis: A Legislative History of the Refugee Actof 1980, 19 SAN DIEGO LAW REVIEW 9 (1981).



targeting and persecuting with a genoci-dal ferocity identifiable groups withinsociety—the model of Nazi persecutionduring World War II.

Over the years, both in the United Statesand other signatory countries, the under-standing of the kinds of refugees whomerit protection under the RefugeeConvention and Protocol has expanded(albeit reluctantly) to include those whosuffer harm at the hands of private actorsin a variety of circumstances. However,Refugee Convention and Protocol pro-tection provisions require that the harmsuffered by the asylum seeker must be onaccount of some particular demographiccharacteristic (race, religion, nationality,political opinion, or membership in aparticular social group).76

In addition to its compliance with certaininternational treaties on refugee protec-tion, the United States has a distinctpost–World War II tradition of creatinghumanitarian legislation to afford aseries of hybrid immigration forms ofrelief to particular groups of people atparticular moments.

Grants of asylum are in accordance with theinternational tradition of the RefugeeConvention and Protocol, whereasissuances of U and T visas, which affordimmigration relief to noncitizen victims ofcertain crimes, predominantly associatedwith gendered harms, fit within the distinc-

tive, almost ad hoc, tradition of providinghumanitarian relief for a host of internaland geopolitical reasons.

1. AsylumTo be eligible for a grant of asylum, a personmust establish that she has been subject topast persecution or has a well-founded fearthat she will be subject to future persecutionon account of her (1) race or (2) religion or(3) nationality or (4) membership in a par-ticular social group or (5) political opinionwhere the persecution is (a) committed bythe government in the applicant’s homecountry or (b) the government in the appli-cant’s home country is unable or unwillingto protect the victim from persecution.77

The applicant generally must file within oneyear of entry into the United States unlessthere are changed circumstances orextraordinary circumstances.78

No specific statutory provisions relate togender-based asylum claims. Although theImmigration and Naturalization Serviceproposed specific regulations relating togender-based asylum claims, these regula-tions have never been implemented.79 Afamous and unresolved case, In re R.A.,about a Guatemalan victim of domestic vio-lence is pending before Atty. Gen. JohnAshcroft.80 However, many victims ofdomestic violence, female genital mutila-tion, honor killing, and similar gender-related harms have prevailed on gender-based asylum claims under the criteriadescribed above.81

768 U.S.C. § 1101(a)(42), INA § 101(a)(42) (2004) (defining the term “refugee” for purposes of asylum); 8 U.S.C. § 1231(b)(3)(A), INA § 241(b)(3)(A) (2004) (describing noncitizens to be granted withholding of removal due to threatsto life or freedom in their home countries).

77See 8 U.S.C. § 1101(a)(42), INA § 101(a)(42) (2004); 8 U.S.C. § 1158, INA § 208 (2004); see also 8 C.F.R. §§ 208.1 etseq., 1208.1 et seq. (2004). While withholding of removal under 8 U.S.C. § 1231(b)(3), INA § 241(b)(3) (2004), and reliefunder the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishmentas implemented by 8 C.F.R. § 1208.18 (2004), are forms of immigration relief similar to asylum and generally sought atthe same time as asylum, discussion of these forms of relief is beyond the scope of this article.

788 U.S.C. § 1158(2)(B), INA § 208(2)(B) (2004) (generally requiring that asylum applications be filed within one year ofarrival in the United States); 8 U.S.C. § 1158(2)(D), INA § 208(2)(D) (2004) (providing exceptions to the one-year rule forboth changed circumstances and extraordinary circumstances). To apply for asylum, use Form I-589, available atwww.uscis.gov.

79See 65 Fed. Reg. 76588 (proposed Dec. 7, 2000).

80In re R.A., 22 I. & N. Dec. 906 (Bd. Immigration App. June 11, 1999) (Interim Decision No. 3403), vacated and remand-ed on other grounds, In re Rodi Alvarado Pena, Op. Atty. Gen. 2370-2001 (Jan. 19, 2001) (Reno order), recertified to theAttorney General, Op. Atty. Gen. 2661-2003 (Feb. 21, 2003) (Ashcroft order) (Clearinghouse No. 55,763). See, e.g.,Rachel L. Swarns, Ashcroft Weighs the Granting of Political Asylum to Abused Women, NEW YORK TIMES, March 11, 2004,at A20; George Lardner Jr., Ashcroft Reconsiders Asylum Granted to Abused Guatemalan: New Regulations Could AffectGender-Based Persecution, WASHINGTON POST, March 3, 2003, at A2; Monica Rhor, U.S. Asylum Ruling Awaited for Womanwho Alleges Abuse: Ashcroft to Decide Case that Could Add a Class of Victims, BOSTON GLOBE, Feb. 19, 2004, at A7.

81Sanctuary for Families, with the support of pro bono attorneys, has won several gender-based asylum cases on behalf ofclients. See, e.g., In re [redacted], [Alien No. redacted] (New York, N.Y. Immigration Ct. March 10, 2003) (Clearinghouse No.55,775).



Asylees may live and work in the UnitedStates indefinitely.82 They also mayapply for travel documents that allowthem to travel in and out of the UnitedStates.83 However, they may not travelback to their home countries.84 One yearafter being granted asylee status, theymay apply for lawful permanent residentstatus.85 Unfortunately, at this time, thewait for the granting of lawful permanentresident status to asylees is backed upabout twelve years.86 This wait isbecause, by statute, only 10,000 asyleesand refugees may be granted lawful per-manent resident status each year.87

2. U VisasOn October 28, 2000, Pres. Bill Clintonsigned legislation creating U visas.88 Todate, no U visa has been issued. However,federal immigration authorities are grant-ing interim relief in the form of grants ofdeferred action to immigrants who make aprima facie case for eligibility.89

An immigrant may be eligible for a U visaif the immigrant

■ has been a victim of one of a list of enu-merated crimes;90

■ as a result of being a victim of one of theenumerated crimes, “has suffered sub-stantial physical or mental abuse”;91

■ has information about the crime (or, inthe case of an immigrant under 16, “theparent, guardian, or next friend” hasinformation about the crime);92

■ is a victim of a crime violating a law some-where in the United States or its territo-ries and possessions, and the crime tookplace within the United States or its terri-tories and possessions;93

■ “has been helpful, is being helpful, oris likely to be helpful” (or, in the case ofan immigrant under 16, “the parent,guardian, or next friend” is helpful) inthe investigation or prosecution of thecrime;94 and

■ can produce a certification of suchhelpfulness from a relevant govern-ment official.95

Advocates are encouraged to bring to theattention of federal immigration author-ities immigrants seeking interim reliefonly in cases that fit squarely within the Uvisa legislation.96 However, without reg-ulations, determining the ultimate scopeof the U visa statute is difficult.

82See 8 U.S.C. § 1158(e)(1)(A), INA § 208(e)(1)(A) (2004); 8 U.S.C. § 1158(e)(1)(B), INA § 208(e)(1) (2004); cf. 8 U.S.C.§ 1158(e)(2), INA § 208(e)(2) (2004) (listing circumstances that could lead to the termination of asylum status and theright to remain in the United States).

838 U.S.C. § 1158(e)(1)(C), INA § 208(e)(1)(C) (2004).

848 U.S.C. § 1158(e)(2)(D), INA § 208(e)(2)(D) (2004).

858 U.S.C. § 1159(a)(1)(B), INA § 209(a)(1)(B) (2004); 8 C.F.R. § 209.2(1)(ii) (2004).

86See Anastasia Brown & Charles Wheeler, Immigrating Spouses and Children of Refugees and Asylees, 9 BENDER’SIMMIGRATION BULLETIN 1 (2004).

87See 8 U.S.C. § 1159(b), INA § 209(b) (2004).

88Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464. Because noregulations relating to the U visa have been promulgated as of September 2004, what form will be created for U visaapplications and the fee that will be charged are unknown.

89See supra note 38. Requests for interim relief may be made by letter and without a fee. To submit a work permitrequest in connection with the deferred action status granted to the immigrant who establishes a prima facie case forinterim relief, use Form I-765, available at www.uscis.gov.

90See 8 U.S.C. § 1101(a)(15)(U)(i)(IV)(iii), INA § 101(a)(15)(U)(i)(IV)(iii) (2004).

918 U.S.C. § 1101(a)(15)(U)(i)(I), INA § 101(a)(15)(U)(i)(I) (2004).

928 U.S.C. § 1101(a)(15)(U)(i)(II), INA § 101(a)(15)(U)(i)(II) (2004).

938 U.S.C. § 1101(a)(15)(U)(i)(IV), INA § 101(a)(15)(U)(i)(IV) (2004).

948 U.S.C. § 1101(a)(15)(U)(i)(III), INA § 101(a)(15)(U)(i)(III) (2004).

95See 8 U.S.C. § 1184(p), INA § 214(p) (2004).

96See 8 U.S.C. § 1101(a)(15)(U), INA § 101(a)(15)(U) (2004); 8 U.S.C. § 1184(p), INA § 214(p) (2004).



U visas allow visa holders to live and work inthe United States with temporary residentstatus.97 After three years, “for humanitar-ian grounds, to ensure family unity, or . . .otherwise in the public interest,” they mayapply for lawful permanent resident statusin the United States. 98

3. T VisasA “T visa” is a trafficking visa.99 It is avail-able to someone who ■ “has been a victim of a severe form of

trafficking,”100

■ is in the United States or its territo-ries,101

■ “would suffer extreme hardship involvingextreme and unusual harm” if deport-ed,102 and

■ either helps law enforcement officialsinvestigate or prosecute the traffickers oris 17 or younger.103

For purposes of a T visa, trafficking meansbeing brought to the United States for pros-titution or forced labor.104 To meet thequalifications for the T visa, the traffickingmust be “severe,” which means that the vic-tim had to have been “induced by force,fraud, or coercion” into sex or forced labortrafficking or, in the case of sex trafficking,be under 18.105 T visas are available to traf-ficking victims who can establish that their

current presence in the United States or itsterritories is directly related to having beentrafficked.106

The spouse, children (unmarried andunder 21), and siblings (unmarried andunder 18) of the principal T visa applicant,as well as the parents of the principal appli-cant if the applicant is under 21, also may begranted the visa upon a finding of extremehardship.107 After holding a T visa for threeyears, upon a showing of extreme hardshipinvolving unusual and severe harm uponreturn to the home country or if the T visaholder has complied with reasonablerequests for assistance in the investigationor prosecution of a trafficking case, a T visaholder may apply for lawful permanent res-ident status in the United States.108

■ ■ ■

Immigration issues always will be keyaspects of working with noncitizen vic-tims of domestic violence. Awareness oftheir unique immigration problems andknowledge of the possibilities for (andlimitations of) immigration law remedieswill go a long way toward helping you pro-vide legal representation that is botheffective and compassionate to immi-grant victims of domestic violence.

97See 8 U.S.C. § 1184(p)(3)(B), INA § 214(p)(3)(B) (2004).

988 U.S.C. § 1255(m)(1)(B), INA § 245(m) (1)(B) (2004); see also 8 U.S.C. § 1255(m), INA § 245(m) (2004).

99See 8 U.S.C. § 1101(a)(15)(T), INA § 101(a)(15)(T) (2004); 8 U.S.C. § 1184(n), INA § 214(n) (2004); 8 C.F.R. § 214.11(2004); see also 22 U.S.C. § 7105 (2004) (describing protection and assistance available to victims of trafficking). To applyfor a T visa, use Form I-914, available at www.uscis.gov.

1008 U.S.C. § 1101(a)(15)(T)(i)(I), INA § 101(a)(15)(T)(i)(I) (2004). Note that while current regulations require an official from afederal law enforcement agency to certify that the T visa seeker has provided reasonable assistance (8 C.F.R. § 214.11(a) (2004)),Congress has amended the law governing T visas explicitly to allow assistance to state and local authorities to be a sufficientbasis for seeking a T visa. See 108 Pub. L. No. 193, § 4(3), 117 Stat. 2875 (Dec. 19, 2003) (codified at 22 U.S.C. § 7105(b)(1)(E)(iv) (2004)). Since no regulations or policy memoranda have been issued to respond to this legislative amendmentat writing, T visa applications relying on cooperation with a state or local law enforcement agency will not be adjudicated. SeeMemorandum from William Yates, Associate Director of Operations, U.S. Citizenship and Immigration Services, to Paul Novak,Director of the Vermont Service Center, U.S. Citizenship and Immigration Services (April 14, 2004).

1018 U.S.C. § 1101(a)(15)(T)(i)(II), INA § 101(a)(15)(T)(i)(II) (2004).

1028 U.S.C. § 1101(a)(15)(T)(i)(IV), INA § 101(a)(15)(T)(i)(IV) (2004).

1038 U.S.C. § 1101(a)(15)(T)(i)(III)(aa), INA § 101(a)(15)(T)(i)(III)(aa) (2004); 8 U.S.C. § 1101(a)(15)(T)(i)(III)(bb), INA § 101(a)(15)(T)(i)(III)(bb) (2004).

1048 C.F.R. § 214.11(a) (2004).

105Id.

1068 C.F.R. § 214.11(g) (2004).

1078 U.S.C. § 1101(a)(15)(T)(ii), INA § 101(a)(15)(T)(ii) (2004).

108See 8 U.S.C. § 1255(l), INA § 245(l) (2004).

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