U.S. Challenged on Immigrant Women's Legal Limbo

(WOMENSENEWS)–Advocates for immigrant women who are victims of domestic violence and applying for visas have filed a class-action lawsuit against the Department of Homeland Security.

The suit on behalf of immigrants nationwide presses the government to enact regulations needed to implement the Victims of Trafficking and Violence Protection Act, passed in 2000. That law provides that undocumented immigrant victims of certain violent crimes, including domestic violence, may apply for and receive a visa–called a U-visa–after cooperating with law enforcement in the investigation or prosecution of the crime against them. After maintaining a U-visa for three years, the victim can then apply for a "green card" which provides for lawful residence in the U.S on humanitarian grounds.

"We hope the mere filing of the lawsuit will light a fire under the Department of Homeland Security," says Peter Schey, president and executive director of the Center for Human Rights and Constitutional Law and lead counsel in the case. "But if not, we’re prepared to move ahead."

To date, not a single U-visa has been granted. That’s because the federal government has yet to issue the regulations necessary to implement the law, leaving the intended beneficiaries in a state of uncertainty.

The government has 60 days from the March 6 date on which the lawsuit was filed in a San Francisco federal court to give responsive pleading.

"I wouldn’t be surprised if they just got the regulations out instead of filing a pleading," says Schey. "They have virtually no defense."

While unable to comment on pending litigation, U.S. Citizenship and Immigrations Services spokesperson Shawn Saucier says U-visa regulations require a high degree of bureaucratic coordination. "We’re not talking about a rule that affects just one agency. It’s a complex issue that touches on state and local law enforcement agencies as well. We need to be careful not to make mistakes."

Groups Join to Press Case

In bringing the suit the Los Angeles-based Center for Human Rights and Constitutional Law is joined by several organizations that assist immigrant crime victims, including New York’s Sanctuary for Families.

This is the second lawsuit filed by Schey’s organization on behalf of immigrant victims of violent crimes. The Department of Homeland Security responded to the first, filed in October 2005, by seeking and obtaining from Congress an extension to issue U-visa regulations by July 2006. As the present lawsuit alleges, the Department of Homeland Security has failed to comply with the extension.

In the meantime, interim procedures implemented in 2001 provide that immigration personnel should ensure that non-citizen crime victims who cooperate with police are not prematurely deported. This means that advocates for immigrants, who should be able to simply request U-visas for their clients, must write to the Department of Homeland Security’s U.S. Citizenship and Immigration Services and seek what’s called "deferred action status" for their clients on a case-by-case basis.

The result is a haphazard approach that strains the resources of advocacy groups and leaves crime victims at the mercy of immigration officials who must work without the benefit of a clear blueprint for handling these cases. Moreover, deferred action status is only granted a year at a time, which means the process must be repeated annually for each client.

Devastating Impact to Women

Living in legal limbo has devastating effects on the women and children who would be protected if the government were in compliance with the law.

One Sanctuary for Families client, an immigrant woman from Ecuador residing in Brooklyn, N.Y., was severely beaten by her husband. She cooperated with law enforcement in New York, resulting in her husband’s successful prosecution and deportation back to Ecuador, where he is living with the couple’s children because they never left their home there.

"He’s now terrorizing and abusing the children," says Julie Dinnerstein, co-director of Sanctuary for Families’ Brooklyn Family Justice Center Project.

Under the law Dinnerstein’s client, who would be in danger if she returned to her home country, should be eligible for what are known as "derivative" U-visas that would allow her children to enter the United States. "Here’s a woman who felt it was safe to cooperate with prosecutors because her kids would be safe. If the law were functioning, they would be."

Because of their uncertain immigration status, such women are often unable to take advantage of a wide range of social services that are available to them under the U-visa law.

Delays From Lack of Regulations

Constantina Campos, an immigrant victim of domestic violence and a Sanctuary for Families client, is one of the named plaintiffs in the recently filed lawsuit. After cooperating with police in New York to bring about the prosecution of her abuser, Campos was first granted deferred action status in 2003. "If the regulations were in place, she would be eligible for a green card and would likely have one by now," says Dinnerstein.

But since the regulations are not in place, Campos has no green card. This means that her 17-year-old daughter, who has lived in the United States for much of her life, is not eligible for financial aid and may not be able to attend college.

Schey fears that the government’s failure to implement the law is having a chilling effect on the reporting of violent crimes.

"Victims are reluctant to apply for deferred action status because if they come forward before the government issues regulations they won’t know the rules of the game and could be deported." Schey says the government’s delay is defeating the legislation’s purpose, which is to protect victims and stop crime.

Advocates for immigrants entitled to seek U-visas believe the government’s relative indifference to their clients’ rights is to blame for the current situation.

"It’s a shockingly low priority, and the Department of Homeland Security is not generally in a hurry to grant benefits to immigrants," says Dinnerstein. "The people who will benefit from the legislation are low-income immigrant women with very little political clout," says Schey.

Adriana Gardella, a former practicing attorney, is a writer in New York.