Domestic Violence Unique for Immigrants

November 2009Articles Philadelphia Bar Reporter

Immigrants are uniquely victimized in domestic violence situations. Language barriers, fear of authorities and deportation, and an inability to legally secure employment often prevent abuse victims from reporting incidents of domestic violence and seeking help. The abuser frequently reinforces the immigrant victim’s heightened apprehension of coming forward to report domestic violence by threatening to disclose or revoke the victim’s status in the United States.

Lisa Hurlbut of HIAS and Council and Deborah Culhane of Women Against Abuse discussed the remedies available to immigrant victims of domestic violence at the Oct. 5 meeting of the Family Law Section.

Hurlbut advised that the federal government has developed domestic violence immigrant relief programs through the Violence Against Women Act, passed in 1994. This act applies to both men and women. Many of the programs can provide legal status to victims who self-report incidents of domestic violence. Hurlbut explained that some of the requirements under VAWA include a valid marriage to a United States citizen or lawful permanent resident (or a divorce from such a person within the past two years), no criminal record, and an incident of battery or extreme cruelty (which includes psychological abuse such as the abuser refusing to file necessary immigration papers for the immigrant victim). Under a Form I-360, if certain requirements are met, an immediate visa is available to a domestic violence victim, even if she or he is not eligible for derivative status under their spouse or former spouse.

Another form of relief is the issuance of a “U” visa. Such a visa is available to victims of specifically listed crimes, including domestic violence, aggravated assault and sexual assault. In such cases, the victim must have suffered physical and/or psychological harm; the victim must have information to assist law enforcement; and must be willing to cooperate with the authorities in prosecuting the abuser. The U visa is not contingent upon marriage to the abuser.

A family lawyer can significantly assist an immigrant victim of domestic violence by first recognizing that several forms of immigration relief may be available and referring that client appropriately and also by gathering evidence and information through a protection from abuse case that can be used by the immigration attorney to document the immigrant victim’s application(s) for relief under VAWA. The type of evidence that is useful includes a copy of the petition for protection from abuse and any corresponding order, police reports, documents for any corresponding criminal case, photographs of injuries; medical records, evidence about the abuser such as copies of a passport or green card, proof of cohabitation, financial records and birth certificates for any children.

Culhane, an advocate for victims of domestic violence, advised that immigrant victims have full access to the court system for filing and prosecuting petitions for protection from abuse. Immigrant status is not a ground to deny access to the courts. Culhane warned that practitioners must be extra sensitive to language barriers. Although a client may have good day-to-day language skills, her or his ability may be very limited when it comes to discussing legal issues or incidents of abuse. Act 172 mandates that interpreters must be provided to litigants for court proceedings. Culhane suggested also having an interpreter present during the client interview.

Although immigrant status is not an issue directly related to PFA proceedings, such status may be relevant if used by the abuser to control the victim, to explain a client’s inability to work or to account for a language barrier.