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Immigration Remedies for GBLT DV Victims

August 1, 2008

Our country's immigration laws are extremely complex and arduous to navigate through for any body.  For an immigrant who is also a victim of domestic violence, the obstacles become increasingly daunting.  Fortunately, there are protections in the law for immigrant victims of domestic violence – if they meet certain criteria.  For example, under the Self-Petitioning process of VAWA (Violence Against Women's Act), an abused immigrant who is married to a United States Citizen (USC) or Legal Permanent Resident (LPR), can petition to adjust his or her status and get a green card by showing evidence of a good faith marriage that has turned abusive.  They will also need to show evidence of joint residence and good moral character.  The key to benefiting from this remedy is that the immigrant victim must be married or have been married to a USC or LPR. (Note: if divorced, the petitioner must file within two years of the divorce). 

Approximately 75% of the one million green cards or immigrant visas that are issued each year are issued to family members of U.S. citizens and permanent residents.1 Because same-sex partners are not recognized under the Immigration and Nationality Act's definition of "family," they face many more obstacles to obtaining legal status.  Since immigration law is federal law, and federal law does not recognize same-sex marriage, the gay and lesbian community is automatically left out of the protections afforded by the VAWA Self-Petitioning process via form I-360 and the Battered Spouse Waiver via form I-751.  This article will discuss some of the immigration remedies that are available to DV victims who are part of the GLBT community.  These remedies can help the GLBT DV victim gain legal status in the U.S.

The U.S. is far behind the international trend when it comes to affording same-sex couples the same immigration remedies as heterosexual couples.  Human Rights Watch and Immigration Equality have identified 19 countries that recognize same-sex relationships for immigration purposes.  For now, we must rely on much more limited immigration remedies for these populations.  In the U.S., immigration remedies that are available to GLBT DV victims without the marriage requirement include the U Visa, T Visa, S Visa, and asylum.  For these immigration remedies, the battered immigrant does not need the marriage correlation to a USC or LPR that is essential for the Self-Petition or Battered Spouse Waiver.

U Visa for Immigrant Victims of Severe Crime

In 2000, Congress enacted the Victims of Trafficking and Violence Protection Act which created the U visa classification, offering protection and temporary immigration benefits to victims of severe crimes in exchange for helping law enforcement to investigate and prosecute criminal activity.2  At the time, the U Visa provided eligible immigrants with authorized to stay in the United States and employment authorization through what was termed as "deferred action."  When the U Visa was first created, no one was actually receiving U Visas.  The Department of Homeland Security was giving interim relief for crime victims.  After seven years of granting deferred status to eligible victims, the necessary regulations to make U Visa applications officially available were finally adopted.  The U.S. Citizenship and Immigration Services (USCIS) issued the U Visa regulations on September 17, 2007.  These regulations became effective on October 17, 2007.

The U Visa (form I-918) is available to noncitizens who: 1) have suffered substantial physical or mental abuse resulting from a wide range of criminal activity, AND 2) have been helpful, are being helpful or are likely to be helpful with the investigation or prosecution of the crime.  Since there is no marriage requirement with the U Visa, this immigration remedy can be extremely valuable to the GLBT population.  With domestic violence awareness being spread throughout the GLBT community, the U Visa becomes increasingly valuable for victims who have suffered from a criminal activity at the hands of their intimate partner.  However, the victim must be willing to assist in the investigation and prosecution of the crimes committed by their partner.

T Visa for Immigrant Trafficking Victims

The T Visa (form I-914) allows victims of severe forms of trafficking in persons to remain in the United States and assist federal authorities in the investigation and prosecution of human trafficking cases.3  The Trafficking Victims Protection Act of 2000 (TVPA) was created to provide protection for victims of human trafficking.  In 2002, the Department of Justice began issuing T Visas to some trafficking victims to prevent them from being deported as illegal immigrants. 

Securing a T Visa for a trafficking victim is no easy task.  The trafficking victim must assist federal authorities in the investigation and prosecution of human trafficking cases in order to get the benefits of the visa.  Many victims are traumatized already from being trafficked; confronting the perpetrators can double this victimization.  Most of the time, the trafficked victim has not even seen the actual trafficker, especially when highly organized and multifaceted trafficking rings are involved.

Trafficking victims who are transgendered face even more hurdles.  Social pressures and economic trouble are among the challenges combined with gender and civil discrimination.  The majority of transgender sex workers are trans-females (males who identify as females).  Although service providers for trafficking victims recognize that males and transgender youth are also trafficking victims, emphasis and delivery of services is directed towards females who are victims of trafficking.4

On June 6, 2007, new legislation to prevent human trafficking was signed into law in New York State by Governor Spitzer.  This law went into effect on November 1, 2007 and strengthens the penalties against traffickers and provide assistance to trafficking victims in New York State.5

S Visa for Immigrants who Cooperate with Law Enforcement

The S Visa (form I-854) is granted to aliens who have agreed to assist U.S. law enforcement in various investigative procedures leading to the arrest of individuals in connection with illegal or terrorist activities.6  With the S Visa, the law enforcement agency with which the immigrant is cooperating needs to be the petitioner.  The law enforcement agency also assumes responsibility for the immigrant from the time of admission until departure.  If the immigrant supplies information to authorities that substantially contributes to a successful investigation or prosecution of a crime, they are qualified for adjustment of status.  Also, if the immigrant's information substantially contributes to the prevention of an act of terrorism, or to the apprehension of a person involved in terrorist activities, they are allowed to adjust their status under the rules. 

Asylum

Persecution based on sexual orientation has been grounds for asylum in the U.S. since 1990 through (form I-589).7  However, the evidentiary requirements for asylum applicants is much more stringent than those applying through the Self-Petitioning process, which, as noted, is not a remedy available to same-sex couples.  The U.S. Attorney General may grant asylum to non-citizens who have suffered and/or will suffer (well-founded belief) persecution in their home country on the basis of five internationally recognized grounds: race, religion, nationality, political opinion, or membership in a particular social group.8  In 1994, U.S. Attorney General Janet Reno officially opened the "social group" category up to gay and lesbian applicants seeking asylum in the U.S. by declaring a 1990 decision to grant asylum to a gay Cuban man.9

Numerous challenges arise for the GLBT immigrant population who seek asylum as a way to gain legal status in the U.S.  Asylum seekers must file their applications within one year of entering the U.S.  In limited circumstances, an applicant may be able to overcome the one year filing deadline by demonstrating to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within one year of the applicant's last entry into the United States.10 

This harsh one-year rule was enacted April 1, 1997 as part of the Illegal Immigration Reform and Immigration Responsibility Act of 1996, pushed by the White House and Congressional Republicans in an effort to stiffen immigration regulations.11

Cultural, social and economic constraints affecting the GLBT population generally impede their ability to flee from their home countries.  If an applicant decides to file an application based on asylum, he or she is forced to reveal to authorities and possibly their peers, their sexual orientation.  Once the applicant decides to come forward with an asylum application based on sexual orientation, they expose themselves to deportation by Immigration Customs and Enforcement (ICE) if their application is denied.

Persecution at the hands of groups or individuals other than the government, such as family members, is rarely accepted as a reason for granting asylum.  The applicant not only must prove that persecution exists, but that there is nowhere in their home country they can go to avoid it.  It can also be very challenging to prove that an applicant was persecuted based on sexual orientation when he or she comes from a country with dictatorial governments that repress various groups of people because the applicant has to prove that he or she was persecuted because of his or her sexual identity.12

There is still widespread prejudice against the GLBT community and many judges do not understand the social ramifications the applicant might be experiencing.  Couple this with widespread inconsistent decisions by judges in asylum cases and the GLBT immigrant community faces numerous hurdles.  Legal representation for asylum applicants is even more troubling.  Since immigration law is civil law and not criminal, asylum-seekers are not guaranteed the right to an attorney.  Two-thirds of asylum applicants are not represented by an attorney, which drastically diminishes the chances of an asylum application being granted.13  Government data reveals that only 14% of those asylum-seekers without attorneys win the right to remain in the country.14

Transgender Marriage Recognition

Although a gay or lesbian DV victim cannot benefit from the immigration remedies available through the Self-Petition and Battered Spouse Waiver because their marriage is not recognized under federal immigration laws, a transgender individual may be able to benefit from the above applications if their marriage is recognized by their state.  In 2004, Citizenship and Immigration Services (CIS) stated that it would recognize marriages for immigration purposes where one or both of the spouses claim to be transgender.  The Board of Immigration Appeals (BIA) recognized as valid a marriage between a transgender woman and a non-transgender man in North Carolina in Matter of Lovo.15  The decision stated that when a marriage with a transgender spouse is valid in the state where it was celebrated, it is valid for immigration purposes.16  In this decision, the State recognized the change of sex of the postoperative transsexual and therefore considered the marriage a valid heterosexual marriage when she married a man.

Conclusion

If family unification is the core theme of U.S. Immigration law and policy, then same-sex relationships should be recognized under immigration law so that gay and lesbian couples can remain together.  Keeping same-sex couples apart works against the guiding principles of our immigration laws and does nothing but rip apart same-sex relationships.  This not only victimizes the immigrant partner, but the U.S. citizen or permanent resident is also harmed when confronted with losing a loved one.

Beyond recognizing these relationships as legal and valid, if immigration law recognizes same-sex relationships, then gay and lesbian immigrants who are victims of domestic violence would also  be able to benefit from the protections that were put into place to help immigrant victims of domestic violence who are in heterosexual relationships.  Domestic violence does not only affect the heterosexual world; it is equally present in same-sex relationships.  It is therefore imperative that same-sex couples be afforded similar protections that heterosexual couples are granted instead of being cast aside and marginalized because of their sexual identity.


Footnotes

1www.hrc.org

2. INA§101(a)(15)(U)

3. INA §101(a)(15)(T)

4. Heather J. Clawson & Lisa Goldblatt Grace, "Finding a Path to Recovery: Residential Facilities for Minor Victims of Domestic Sex Trafficking", September 2007

5. S.B. 5902, 228th Leg., Reg. Sess. (N.Y. 2007), chaptered on June 6, 2007.

6. INA §101(a)(15)(S)

7. I.N.A §208

8. I.N.A. § 101(a)(42), 8 U.S.C. § 1101(a)(42)(A) (2006)

9. Matter of Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990) 

10. 8 U.S.C. § 1158(a)(2)(D) (2006)   

11. "Experts warn time running out for Gay refugees", by Kai Wright, www.glas.org

12. "Foreigners' Abuse Increasingly Seen as Grounds for Asylum", by Pamela Constable, The   Washington Post, July 10, 2007  

13. "Since 9/11, Blind Eye to Persecution", by Doug Ireland, Gay City News, January 11, 2007

14. Id.

15Matter of Lovo, 23 I&N 746 (BIA 2005)

16. Id.

 





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