21 Dec Time to Stop the Silence: Sexual Assault and Immigration
By Attorneys Anda Kwong and Nancy E. Miller
2017 has been a breakthrough year for the victims of sexual assault; so much so that Time Magazine has named “the Silence Breakers” (whom they call “the voices that launched a movement”) as the Person of the Year. Bravo to the many individuals coming forward with sexual harassment and sexual assault stories against those who had abused their positions of power to silence their victims. Some for years. As a floodgate of cases is opening against well-known celebrities, producers, politicians, religious leaders, and news reporters, it is important to remember that not all perpetrators and not all victims are famous. One in four women and one in six men will be sexually assaulted in their lifetime, and in eight out of ten rape cases, the victim knows the perpetrator. But, as this year has shown, no one – including the undocumented and the non-citizen – needs to remain silent. There is law to help.
Sadly, many undocumented people have felt silenced for years, whether against employers, spouses, or “friends.” If and when an undocumented victim is ready to come forward, the first step is to ensure that s/he is safe, and has a place to stay. Once a safety plan has been established for her and her children, the immigration aspects can be addressed; whether the individual is in removal proceedings before an immigration judge or not. There are also ways to reopen cases if the individual has already been ordered removed from the US.
Some forms of immigration relief for victims of sexual assault include protections under the Violence Against Women’s Act of 1994 and Victims of Trafficking and Violence Protection Act. An undocumented spouse or child of a U.S. citizen (“USC”) or permanent resident (“LPR”), or a parent of a USC, who is battered or subject to extreme cruelty may file a self-petition. There are requirements that the spouse or child have resided with the USC or LPR abuser, was battered or subject to extreme cruelty during the marriage, the marriage was entered into in good faith, that she has good moral character, and that she is otherwise eligible for the petition. She does not necessarily still need to be married to the abuser, as long as she can show there was a connection between the termination of marriage and the abuse. There are other instances that may apply if there is no longer a valid marriage. Additionally, not everyone will have hard proof of the abuse, but there may be ways to show that it exists through circumstantial corroborative evidence.
Another potential avenue for relief is applying for a nonimmigrant visa (“NIV”) as a victim of an enumerated crime, such as sexual assault or rape. Even an attempt to commit either of these crimes may be sufficient depending on the circumstances. Before requesting a “U” NIV, law enforcement must sign a certification that the victim has been or is being or will be helpful to either the prosecution or investigation of the crime. The public policy idea behind this relief is that encouraging those without status to come forward and report crimes increases general public’s safety. A similar NIV, the “T”, is generally for those who have been subject to the use of force, fraud, or coercion for trafficking (including but not
solely sex trafficking). Those who qualify need to show that they are physically present in the US on account of the trafficking.
Furthermore, while asylum law is complicated and has stringent requirements, there is case law guidance on domestic violence-based asylum. One of the requirements of asylum as it pertains to sexual violence is that the applicant belongs to a particular social group where its characteristics are immutable. Claims have been successful where the applicant is a member of a group of married women unable to escape their relationships in Guatemala. Another successful claim is for victims of female genital mutilation. Sexual assault and rape may closely align with existing case law, and an advocate will tie the personal facts of the case, country conditions, and all other relevant factors in order to present the strongest arguments.
Step-by-step, we can work together to begin the healing process, such that the silenced may move forward to grasp life and live freely. There is a plethora of resources available to victims of sexual assault and rape. Depending on the facts of the case, there may also be immigration relief that applies. If you believe that you or someone that you know may be abused, consult with an experienced and knowledgeable immigration lawyer. There is help and the time for silence is over.