The Trump Administration undermines existing protections for immigrant domestic violence survivors through its current enforcement priorities. In some cases, such as when Immigration and Customs Enforcement (“ICE”) shows up at courthouses, this is effectively state-reinforcement of the abuse of the victim. Because of the administration’s actions, immigrant domestic violence survivors have fewer options to escape their abuser and seek the protections offered under the law.
Domestic violence survivors in the United States have some avenues for protection under the immigration statute, regardless of their immigration status. If the abuser is a U.S. citizen or green card holder, the Violence Against Women Act (“VAWA”) allows the battered spouse (regardless of gender), child or parent to file for an immigrant petition through a couple of avenues. VAWA created the U visa, an immigrant visa which protects survivors of qualifying crimes so long as they “assist or are willing to assist in the investigation or prosecution of [the] criminal offense.” Similarly, the T visa provides a path to citizenship for survivors of human trafficking. VAWA also allows for a battered spouse to file an application to remove the conditional status (a two year status on a marriage-based green card designed to prevent fraud) or to self-petition for their green card without their abuser. These protections, designed by Congress, were created to encourage the reporting of crimes, including domestic violence, without fear of negative ramifications due to an individual’s immigration status. They also prevent abusers from using the federal government to carry out their abuse, as threatening to call ICE is a common abuse tactic when the victim is an undocumented immigrant.
Asylum seekers who arrive at the border, fleeing domestic violence in their own country have some protection under Board of Immigration Appeals (“BIA”) case law. Domestic violence survivors are framed as belonging to “a particular social group” in order to establish asylum. Asylum requires nexus, or that persecution happened on account of a protected ground, which includes being a member of a particular social group. The landmark case Matter of Matter of A-R-C-G- established “married women in Guatemala who are unable to leave their relationship” as a particular social group for the purpose of asylum. While the protection for domestic violence survivors through this avenue is inconsistently applied, it does provide important precedent for immigration lawyers to craft a domestic violence victim’s asylum case.
Enforcing an Abuser’s Control Through ICE
The current administration’s enforcement priorities include ICE “dramatically increase[ing] its activity in and around courthouses across the country over the past year” in order to pick up immigrants who are at the court house. A report by Northeastern University School of Law’s Immigrant Justice Clinic detailing ICE presence at Massachusetts courthouses found that “ICE is targeting both documented and undocumented immigrants, with no apparent regard for the seriousness of the pending charge.” ICE is also arresting immigrants at US Citizenship and Immigration Services (USCIS), the agency that processes many of the avenues to legal status, when they show up for appointments seeking legal residency, including routine marriage interviews.
Reports of domestic violence survivors being picked up by ICE began early in Trump’s presidency. In one case, the “local judge granted González a protective order against her physically abusive ex-boyfriend; less than an hour later, González left the building in federal custody, flanked by immigration officers.” As reported in a story in The Outline, her ex-boyfriend used her undocumented status against her as a control and isolation mechanism, and it is believed that her ex-boyfriend tipped ICE off about her location.
ICE’s practice of showing up at court houses has a chilling effect on undocumented domestic violence survivors seeking protective orders and other forms of help available to them from the courts. Cities in California found “[i]n the first six months of 2017, reports of domestic violence . . . declined among Latino residents in some of California’s largest cities,” a decline attributed to fear of the consequences of involving the legal system.
On a long-term basis, there may also be ramifications for domestic violence survivors in seeking any of the protections available to them under VAWA. Eligibility for both the U and T visas are contingent upon cooperation with the police and the courts. Will domestic violence survivors be able to interact with either if ICE is there? Individuals seeking VAWA battered spouse protections for the green card process commonly use restraining and civil protection orders and police reports to prove their abuse before USCIS. Without access to this evidence, they can still compile their case – but will they be able to go to a USCIS interview if ICE is there?
Threatening Asylum Options for Domestic Violence Survivors
The Attorney General has a rarely used authority to modify or overrule immigration cases by referring a Board of Immigration Appeals decision to himself. Attorney General Jeff Sessions embraces this authority, recently referring an unprecedented number of immigration cases to himself in order to utilize this unilateral authority. Some of these cases have potentially significant impact on domestic violence survivors. Politico summarized the choice of these cases by Sessions as “leading a broad review to question whether domestic or sexual violence should ever be recognized as persecution that would justify protection in the United States.”
In one case, the BIA granted asylum to a woman from El Salvador who was raped by her ex-husband and was threatened with death by both him and his brother, who is a police officer. Sessions assigned this case to himself to determine “whether ‘being a victim of private criminal activity,’ such as domestic violence, could ever fit the legal requirements for asylum.” Depending on how Sessions determines her case, “he could also choose to set precedent that makes it harder for other domestic violence survivors” to receive asylum based on their past abuse and the country’s conditions for asylum seekers.
In another case Session referred to himself, he questions the power of the Immigration Judge (“IJ”) to grant continuances. These continuances are often granted to allow for time for other visa avenues to be adjudicated, so the immigrant is not deported while they wait on a visa they are otherwise eligible for. In the seminal case on the matter, Mater of Hashimi, the individual in removal proceedings was granted a continuance to give USCIS more time to adjudicate his family-based immigrant visa petition. Considering how long many immigrant petitions can take to be adjudicated, any change to this discretion could have a significant impact on immigrants across the board.
For example, the U visa discussed above has a fiscal year cap of 10,000 visas. This cap is consistently reached, and eligible petitioners are placed on a waitlist – which in 2017 had 24,000 people on it and an additional 140,000 petitions pending for people waiting to go on the wait list. Under the current system, if an immigrant who appears eligible for the U visa is in removal proceedings, the IJ could continue the case until the visa petition is adjudicated. Changing the discretionary power of the IJ could mean an individual is deported despite a valid visa petition. At the very least, as Politico pointed out, it will “make it more difficult for [immigrants] to apply for visas as survivors of trafficking, or to become permanent residents if they had been abused by a spouse or relative who might sponsor them.”
The current enforcement tactics of the Trump administration actively undermine existing protections for domestic violence survivors. In the case of courthouse and USCIS appearances, the administration’s actions play right into the abuser’s attempts to control and intimidate their survivors. These actions have dangerous implications for the survivors as they create barriers for survivors to seek protection from the violence they face. Finally, the administration’s actions will discourage or prevent people designated by Congress as eligible for lawful immigration status from accessing the visas and green cards that could free them from a cycle of violence and fear.