PRIORITY

RECOMMENDATIONS BY LEADING NATIONAL EXPERTS TO ADDRESS VIOLENCE AGAINST WOMEN IN COMPREHENSIVE IMMIGRATION REFORM*
April 8, 2013 As Congress considers how to meaningfully reform the nations immigration laws and system, it has a special obligation to safeguard and enhance protections for immigrant survivors of domestic violence, sexual assault, human trafficking and other abuses. Immigration reform is critical to help prevent vulnerability to abuse and exploitation. Indeed, many immigrant women find themselves in abusive or exploitative situations in their homes and workplaces due to their lack of immigration status. Abusive partners, opportunistic predators, and manipulative employers often exploit a victims lack of immigration status, or dependent immigration status, as a way to maintain power and control and to keep victims silent. Unfortunately, despite current humanitarian provisions of US immigration law intended to reduce these vulnerabilities, many obstacles to immigrant survivors access to safety and justice still remain. Other immigrant women and girls fear gender-based persecution in their home countries such fundamental human rights abuses as domestic violence (severe, sustained and unaddressed by the authorities), rape (including as a weapon of war), human trafficking, female genital mutilation, honor crimes, and forced marriage and seek safe haven in the United States. A profound lack of clarity, consistency and coherence in how such gender-based asylum cases are currently handled by adjudicators around the country compromises their access to safety and justice, and again, exposes them to the risk of further violence and victimization. While protections currently provided under the Violence Against Women Act (VAWA), the Trafficking Victims Protection Act, and US asylum laws help some of these particularly vulnerable survivors, clarifying and strengthening these forms of protection so that no survivor falls through the cracks is urgently needed. Any comprehensive immigration reform effort must pay sharp attention to the needs of survivors of domestic violence, sexual assault, human trafficking and other gender-based human rights abuses. Leading national experts and advocates for immigrant survivors urge the following 8 key legislative reforms1: Immigrant Survivors of Domestic and Sexual Violence and Human Trafficking (VAWA, T, and U Visa Reforms) 1. Ensure that any path to legalization, if it offers that path as well to spouses and children (derivatives) of eligible immigrants, also includes protections in case of abuse. While the precise form of this protection will depend on the proposal and mechanisms for legalization, the principle is clear; if abused immigrants rely for their own legal status on a spouse or parent, they should be provided with an opportunity to independently petition for legal status rather than have to choose between deportation and continued abuse.2

The priority recommendations included here are not exhaustive; we have identified additional legislative reforms for immigrant survivors of domestic violence, sexual assault, human trafficking, and other gender-based human rights abuses in a separate document. The priority recommendations included here also are not exclusive; we support other key reforms identified and championed by other groups advocating to promote the needs and interests of women in immigration reform generally, or to protect human trafficking victims and asylum-seekers specifically. The priority recommendations in this document are intended to elevate and underscore critical reforms that uniquely or especially impact immigrant women survivors of violence.

Congress has a history of recognizing pathways for abused immigrants who may rely on abusive spouses and parents for their status. INA 101(a)(51) broadly defines a VAWA self-petitioner as an abused individual, or child of an individual eligible for seven different types of relief on the basis of having a qualifying relationship with a US citizen, legal permanent resident, or a principal applicant for relief (e.g., NACARA and Cuban-adjustment Act principals), and having suffered battery or extreme cruelty.

2. Issue employment authorization documents (EADs) for VAWA self-petitioners, U visa and T visa applicants who currently struggle to survive during the long pendency of their applications. This critically needed reform, identified as a top priority by advocates working with immigrant survivors around the United States, would support survivors self-sufficiency and remove vulnerabilities to further victimization. Due to lengthy delays in the adjudication (up to 16 months or longer) of these applications and lack of access to financial resources, survivors face additional risks of violence, exploitation, manipulation, and trauma, including losing custody of children. When an abused immigrant does not have an EAD, the ripple effects are acutely debilitating. Without work authorization, an immigrant victim faces many difficulties demonstrating to a family court judge how she will provide for her children, she is unable to obtain a drivers license, and may encounter significant barriers to accessing transitional housing services or renting an apartment. 3. Improve access of immigrant survivors to critical safety-net benefits that enable them to escape abuse and exploitation. Incorporate provisions of the Women Immigrant Safe Harbor (WISH) Act to include U visa holders as qualified aliens3 and to eliminate the five-year bar to accessing public benefits for VAWA self-petitioners and U visa holders; clarify housing laws to ensure abused immigrants have access to public and subsidized housing.

4. Strengthen the U visa program by increasing the number of U visas annually available, from the current 10,000 annual cap to at least 15,000. Congress created the U visa in VAWA 2000, to provide protections to immigrant victims of certain enumerated serious crimes (including domestic violence and rape). Congress envisioned the U visa as a powerful tool for law enforcement: to promote public safety by encouraging immigrant victims to come forward, report crimes, and cooperate with law enforcement in investigations and prosecutions.

5. Include child abuse and elder abuse as U visa qualifying crimes to protect these already vulnerable populations from abuse, and to promote reports and prosecutions.
Immigrant Survivors of Gender-Based Persecution (Asylum Reforms) Ensure that women and girls fleeing fundamental human rights violations have access to refugee protection in the United States, by enacting reforms to: 6. Remove legal obstacles posed to gender-based claims and clarify legal standards to ensure that such claims are properly recognized. (Proposals in the Refugee Protection Act of 2013 (RPA)/ (S.645), Section 5). We especially urge that Congress clarify what can constitute a particular social group (the statutory ground under which many asylum claims by women and girls are brought); what kinds of evidence can support such claims (evidence not only of the persecutors intent, but also evidence that women and girls in that country cannot access protection from persecution); and that asylum seekers must be given a reasonable opportunity to explain any inconsistent statements and to obtain corroborating evidence deemed necessary by an immigration judge. Inconsistences may arise in an individuals case because of the cultural taboos and personal trauma involved in speaking of violations like female genital mutilation or rape. For example, a woman may not reveal to a male border inspector who initially questions her that she was raped by her persecutor, but may later after working with a therapist and with the support of an advocate testify to having been sexually assaulted. Reasonable explanations for such inconsistencies must be taken into full and fair account.

As defined in Section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c))

7. Eliminate the asylum filing deadline that applies to all asylum claims and impacts women particularly harshly4, and remediate past injustices caused by the deadline by permitting individuals granted withholding rather than asylum to adjust their status to legal permanent resident. (Proposals in the RPA, Section 3) The one-year filing deadline has had a devastating impact on refugee women and girls fearing persecution, preventing them from obtaining protection or sharply limiting the kinds of relief for which they qualify. Women escaping domestic violence, rape, female genital cutting, or other gender-based harms may fail to file within one year of arrival for legitimate reasons, such as suffering from Post Traumatic Stress Disorder (PTSD) caused by their past persecution, or out of fear of being stigmatized. While regulatory exceptions to the deadline contemplate PTSD and other compelling reasons for delay, adjudicators narrowly construe the exceptions and refuse to waive the deadline in such cases. In addition, the regulatory exceptions to the one-year filing deadline do not expressly reference the many compelling but ordinary circumstances that can reasonably prevent a woman from fleeing persecution from filing for asylum within her first year in the United States, such as being consumed by the challenges of surviving in a new country; not knowing that they can ask for asylum at all and specifically from gender-based persecution, let alone that they are on the clock to submit a timely application; and resisting applying for asylum until they absolutely must, since by taking that drastic step they may be forever severing ties with their family and community, as well as country. 8. Permit derivative asylum status to extend to parents and siblings under 18 of a child who is the principal asylee, to ensure that parent-protectors of a child at risk of persecution in her home country (e.g., female genital mutilation) are allowed to remain with their child in the United States; to prevent the permanent separation of an entire family being the price of one childs protection; and to harmonize asylum derivative provisions with T and U visa derivative provisions.

*These recommendations were prepared and endorsed by a national committee of leading experts on existing protections and protection gaps in US laws affecting refugee and immigrant women survivors of domestic violence, sexual assault, human trafficking, and gender-based persecution, including ASISTA Immigration Assistance, Casa de Esperanza: National Latin@ Network for Healthy Families and Communities, The Center for Gender and Refugee Studies, The Coalition to Abolish Slavery and Trafficking (CAST), National Immigrant Justice Center, National Immigration Project of the National Lawyers Guild, the Tahirih Justice Center and the Washington State Coalition Against Domestic Violence. For more information or to meet to discuss these priorities and proposals, please contact Cecelia Levin, ASISTA Immigration Assistance (cecelia@asistahelp.org) or Jeanne Smoot, Tahirih Justice Center (jeanne@tahirih.org).

4 DHS has concluded that the asylum filing deadline should be eliminated, confirming that the agency expends resources without

helping uncover or deter fraud (UNHCR Washington Office, Reaffirming Protection, October 2011, Summary Report, p. 18, at http://www.unhcrwashington.org/atf/cf/%7BC07EDA5EAC71-4340-8570-194D98BDC139%7D/georgetown.pdf). The Administration has publicly pledged to work with Congress to eliminate the deadline (U.S. Department of State, PRM Fact Sheet: U.S. Commemorations Pledges, 7 December 2011, available at http://www.state.gov/j/prm/releases/factsheets/2011/181020.htm). Several studies underscore this problem including Human Rights First, The Asylum Filing Deadline, (New York: 2010) available at http://www.humanrightsfirst.org/wpcontent/uploads/pdf/afd.pdf and P. Schrag, A. Schoenholtz, J. Ramji-Nogales, and J.P. Dombach, Rejecting Refugees: Homeland Securitys Administration of the One-Year Bar to Asylum, William and Mary Law Review, (2010), available at http://wmlawreview.org/files/Schrag.pdf. For a further examination of the harsh implications of the one-year bar on women and girls seeking asylum, see report of the Tahirih Justice Center, Precarious Protection: How Unsettled Policy and Current Laws Harm Women and Girls Fleeing Persecution (October 2009) at pp. 33-39 and Appendix C, pp. 45-46, available at http://www.tahirih.org/site/wp-content/uploads/2009/10/tahirihreport_precariousprotection.pdf.