Domestic Violence

Subscribe to Domestic Violence via RSS

Recent events have created an urgent need for an independent Immigration Court separate from the Department of Justice.  On October 17, Proskauer hosted a panel discussion in its New York office co-sponsored by Sanctuary for Families, the New York Immigration Coalition, and the Federal Bar Association’s Immigration Law Section entitled, “Lives in the Balance: Eviscerating Asylum Protection for Victims of Gender Violence.”  The speakers included The Hon. Carolyn Maloney, U.S. Representative from New York’s 12th Congressional District, the Hon. Amiena Khan, Executive Vice President, National Association of Immigration Judges, Lori Adams, Director, Immigration Intervention Project at Sanctuary for Families, and Lisa Koenig, a Partner at Fragomen.

The immigration lawyers on the panel provided different perspectives on Matter of A-B, a consequential decision from last summer where the Attorney General purported to overrule Immigration Court precedent, and thereby limit the availability of domestic violence as a basis for asylum.  Aside from placing the law on asylum in flux, the AG’s action raises the important question of how a cabinet-level, executive branch official could claim the authority to reverse a court’s decision.    

A recent change in immigration policy is adversely impacting a vulnerable population, and is likely to have a chilling effect on immigrants reporting crime and cooperating with law enforcement. Undocumented immigrant victims of domestic abuse, who prior to the updated guidance could freely file petitions for U Nonimmigrant status or Violence Against Women Act (VAWA) self-petitions without fear of bringing on deportation proceedings, now may suffer the very real repercussions of an unfavorable petition or application.  If unsuccessful, they now face a mandated issuance of a Notice to Appear (NTA), which is the charging document that initiates removal proceedings.

In a letter dated June 28, 2018, the United States Citizenship and Immigration Services (USCIS) issued “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Policy Memorandum 602-0050.1, in pertinent part, provides updated guidelines regarding USCIS’s issuances of NTAs in Immigration Court. The new guidelines serve to ensure conformity with Executive Order 13768, and replaced, in its entirety, Policy Memorandum 602-00550 published in November 2011.

The South Texas Family Residential Center here in Dilley, Texas is surrounded by metal fencing, video cameras, and tall light poles that you can see from miles away at night. The country’s largest immigration detention facility, it sprawls 50 acres and is comprised of 2,400 beds in a series of large barracks-style trailers which look eerily similar to pictures of the Japanese-American “relocation centers” during World War II.

I met more than 25 detained women and their children here. All are from El Salvador, Honduras or Guatemala, and all but two suffered from some form of gang violence, severe domestic violence or in many cases, a combination of both. I heard stories from people who witnessed the murder of family members, and who themselves were subjected to unspeakable violent crime without protection from law enforcement.

A team of Proskauer attorneys, on behalf of 12 leading non-profit organizations specializing in advocacy for victims of domestic violence, drafted an amicus brief in support of a mother seeking to uphold a district court’s determination that her child would be subject to a grave risk of harm were he to be returned to his country of residence with his father.  The respondent and her minor child, K.D., fled French St. Martin to the United States to escape abuse at the hands of K.D.’s father.  In response to a petition filed under the Hague Convention by the child’s father, Judge Vincent L. Briccetti of the Southern District of New York determined that the minor child could not safely be returned to his home country with his father.  The father appealed to the Second Circuit.

When can domestic violence form the basis of a successful asylum claim?  A New York City immigration judge recently granted asylum to one of our pro bono clients who was found to have suffered past persecution on account of her membership in a particular social group—that of “Honduran women in a common law marriage who are unable to leave the relationship.”  This result is consistent with recent authority establishing that an asylum claim can, depending on the particular facts and circumstances, be grounded upon the inability to leave an abusive domestic relationship.