When the Victim is an Immigrant: Opportunities, Pitfalls & Ethical Issues in Applying for Victim’s Visas

When the Victim is an Immigrant: Opportunities, Pitfalls & Ethical Issues in Applying for Victim’s

Visas CLE Presented by Angela L. Williams

The Law Offices of Angela L. Williams, LLC4235 Baltimore Ave

Kansas City, MO 64111816-531-2166 (T)816-531-2444 (F)

angie.williams@me.comwww.williamslawkc.com

For the Kansas Coalition against Sexual & Domestic ViolenceOctober 12, 2010

Topeka, KS

MY CLIENT IS AN IM

MIGRANT. NOW

W

HAT?

In all representation, it is important to verify the whether the client is a US citizen. Non-citizens, especially undocumented people may have immigration options.

Kansas Code of Professional Conduct

Kansas Rules of Professional Conduct

Kansas Rules of Professional Conduct

Types of “Victim’s” Visas U Visa- Crime victim’s visa T Visa- Visa for the victims of Human

Trafficking VAWA-Violence Against Women Act- Visas

for abused spouses or children of US Citizens or Permanent Residents

Juvenile Visas- Special Juvenile Immigrants or Unaccompanied Minors

Deferred Action-Temporarily Stops Physical Deportation

U Visas Visa for Victims of Crimes Goal- to encourage undocumented people to report

crimes and cooperate with law enforcement Can be found at INA § 101(a)(15)(u)-Definitions; §214(p)-

Numerical limits and procedure; §245(m) adjustment of status: & 8 CFR §214

Requires the person 1. Was a victim of a crime listed in the regs or other serious crime; 2. The person has information important to the investigation of the case 3. The person was or is being helpful; 4. The person suffered “permanent harm” as a result of being a victim; 5. The application must include a certification from investigating body, a prosecutor or judge of the persons helpfulness.

U Visas Continued If approved gives the person and

certain derivatives legal status and the right to work for 3 years

At the end of 3 years the person may self petition for Lawful Permanent Residency

After 5 years of Residency the person my self petition for US Citizenship

Waives almost everything except genocide and being a Nazi

T Visas Be a victim of a severe form of

trafficking in persons Be physically present in the US as a

result of the trafficking Comply with any reasonable request

for assistant or prosecution Have Suffered extreme hardship

involving unusual and severe harm upon removal from the US

T Visas Can self petition Some family members can be included Eligible to work in the US 4 year visa May self petition for Lawful Permanent

Residency After 4 years Pro- No need for the certification Con- Higher level of proof of meeting

the trafficking definition

VAWA Not just for women, can be abused

men or children (USC or LPR) or parents (USC only)

Abuser must be USC or LPR: This statute takes the place of the Abusing Petitioner

Self Petitioning Is or was married to USC or LPR/child of

USC or LPR or Parent of USC

VAWA Subjected to battery or extreme cruelty by

the abuser Resides or resided with the abuser Good moral character Pro- Do not need a sponsor and is self

petitioning, can work, can remarry after petition is approved, can have derivatives; can apply to 751 as well as initial residency; Can apply for residency immediately if you qualify; 3 years to NATZ

VAWA Cons: GMC not auto-waived like with

U’s and T’s; Criminal history might make you ineligible; Multiple entries, deportations, Voluntary returns might make you ineligible; If married to a LPR you have to wait for the priority date; Common law marriage very hard to prove: No benefit if abuser is undocumented (though U might be available)

Children Children can qualify for U’s, T’s & VAWA

either as the stand alone victim or as a derivative to mom or dad

Abused, abandoned or neglected children- SIJS- Special immigrant juvenile status- Requires a guardian, maybe even one parent, needs state court action followed by immigration petition that takes them directly to LPR

Children Juveniles in State Juvenile Court system Juveniles in Federal Custody MUST have a state juvenile court

dependency order Dept of Health and Human Services has

responsibility for care and custody of unaccompanied minors in federal custody

May be able to file an asylum application in some situations

Children Pros- One Stop Shop from undocumented to LPR;

waives many things but not everything; Gives you until 21 to apply for the immigration benefit; Quick adjudication (180 days); Eligible to work; Cannot apply for abusive parents

Cons- have to be under 18 to get the state order but you have until 21 to apply for the immigration benefit; have to have a state court finding that the child needs a guardian not solely for immigration purposes; tricky if there are multiple entries or if even 1 parent of the child is in the US (though not impossible)

Ethical considerations in working with victims

Look always to the Professional Rules in

deciding how to approach a potential victim situation.

K.Y.C.Know Your Client

You may be the first person to hear this story

Representing victims means building a trust relationship with them.

This relationship sometimes takes time to develop

Be aware of your own limitations and preconceptions

Be courteous and do not dismiss what the person is saying

Considerations Be aware of the cultural and social

implication of what the client is telling you Be aware that you will probably not get

the whole story the first time Be aware that depending on the trauma to

the victim their story might be disjointed and have later remembered details

Be aware they may even lie because of shame or embarrassment

Follow the Code 1.2 Scope of representation- A lawyer shall

abide by the client’s decision concerning the lawful objectives of representation

May limit the scope of representation May not counsel client to do anything

criminal or fraudulent but can discuss the consequences of these course of actions

2.1 Counselor: Advisor- Says that sometimes the best advice is that other types of professional help is necessary

Other Ethical Dilemmas Conflicts of interest (1.7) Confidentiality (1.6) Duty of Candor Toward the Tribunal

(3.3) Clients with Diminished Capacity (1.14)

When the relationship goes bad… 1.16 Client-Lawyer Relationship:

Declining or Terminating Representation (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;

(3) the lawyer is discharged; or (4) the client persists in a course of

action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client has used the lawyer's services to perpetrate a crime or fraud;

(2) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(3) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(4) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(5) other good cause for withdrawal exists.

Duty of Meritorious Claims Does that mean

100% winnable? Just barely not fraud?

Somewhere in between

Most important: Client is fully

awareand informed on

the risks andbenefits of the application so he or she can

make an informed decision

Other issues Victim’s Statement Your job as the editor or re-writer or

transcriber Working with very traumatized people Working with translators/interpreters What if the client has cold feet later? What if he or she is still living with the

abuser? Working with difficult police, prosecutors or

court victim’s advocates

Questions?