Lacking U.S. Citizenship, Some Survivors of Domestic Violence Face Extra Challenges

Gail Pendleton, co-director of ASISTA, which advises and trains advocates and attorneys who work with immigrant survivors of domestic violence and sexual assault, discusses some of the complex issues non-citizen survivors face. July 2012

The following is a transcript:

SARAH SCHWEIG: Hi, I'm Sarah Schweig at the Center for Court Innovation and today I'm speaking with Gail Pendleton about how issues around domestic violence become far more complicated when they involve victims with pending immigration status. Gail Pendleton is co-director of ASISTA, a national immigration law technical assistance project supported by the Federal Office on Violence Against Women. Thank you for speaking with me today and welcome.

GAIL PENDLETON: Thank you.

SARAH SCHWEIG: Women who are victims of domestic violence already face a number of hurdles, and women who aren't citizens often face a much more complex situation. Can you give a sense of these challenges and, you know, for instance, how does immigration status factor into the sort of abuse patterns that they're experiencing?

GAIL PENDLETON: Well the first thing to think about is how is this similar to what you might see with citizen survivors? So for instance, language might be an issue for deaf women, for instance, right? Language access and understanding what they're saying, and who's information are you taking as true, if you're not getting it directly from their mouth.  Culture also could be an issue. Is the pastor or the religious leader telling people they should stay married? That could be true for immigrants, it could be true for citizens. Economics, also an issue for citizens, but when you're talking about someone who may not be able to work legally, or is working illegally, that adds an extra tool of power and control in the hands of—particularly a documented spouse or intimate partner. And in our immigration family system, prior to the Violence Against Women act, the U.S. citizen or lawful permanent resident spouse controls the immigration process. And so that's why, in the Violence Against Women Act, Congress created a special route to status for victims of domestic violence by citizens and lawful permanent residents. So that control of the immigration status is the one weapon that, you know, wouldn't happen to a U.S. citizen. And the other thing that I think is probably true for a lot of citizen survivors, but especially true for a lot of non-citizens is who is their source of information? Because the isolation may be even more intense for non-citizen survivors than it is for citizens, their source of information is going to be their perpetrator and what are they telling them? They're telling them, you—our court system won't help you because you're undocumented, or semi-documented. I'll get custody of the kids, you'll get deported, you'll get turned over to ICE if you call the police. All of those are very effective tools for abusers to keep their spouses and their kids in violent homes.

SARAH SCHWEIG: Right. And ICE, just for our listeners—

GAIL PENDLETON: Oh right. Immigration and Customs Enforcement.

SARAH SCHWEIG: Okay. A victim of domestic violence, a domestic violence offender, and any children involved may have all varying immigration status. Is that right? How does that further complicate the situation, and how do you sort of deal with those differences in the court system?

GAIL PENDLETON: Well, the crucial role that we have tried to work on is ensuring that there are routes to status that allow victims of domestic violence to pursue immigration status without the control of their abusers. And so most of the system, unless you're the—what we call the principal beneficiary of an immigration benefit, which is usually going to be the abuser, frankly, like say engineers who come over on high-tech visas or whatever. Their family members are here legally, but if they leave them then they get deported. So you can't—and in the family-based system, as I mentioned, the abuser controls—for the most part—controls the process. So that was the initial attempt was—it doesn't matter so much whether, what status they have. It matters who c controls getting a permanent status. And the safest permanent status, short of citizenship, is a green card, what people call lawful permanent residents. And that actually takes a long time, even if you do self-petitioning. Or the U-Visa, which is the other thing I wanted to mention because self-petitioning just parallels regular family-based process, but those of you who work in court systems will know that often times the abuser also lacks a secure immigration status, or doesn't fit our normal family base, like same-sex marriages, for instance. Immigration law does not recognize same sex marriages, because DOMA trumps, like Massachusetts state law, where I'm from. So—Oren Hatch, as I mentioned in the training just now suggested the U-Visa as a tool to get people who are too afraid, victims who are too afraid to call law enforcement, give a tool for law enforcement to reach out to those folks and a form of humanitarian relief for them. They do have to be helpful to law enforcement and they have to have certification for law enforcement. So the hurdles are higher in terms of proof, for getting that status, but it helps a lot of people who really wouldn't be able to be helped in our regular system.

SARAH SCHWEIG: Yeah. You mentioned that you've done a lot of reform work with immigration issues and policy change, and I know policies are often shifting and making headway on this issue. Can you describe some of the recent legislation Congress has passed, and what hurdles have been cleared and what else needs to be accomplished?

GAIL PENDLETON: Well, one of the things I tell the impatient lawyers and advocates is that getting the law passed is, in some ways, the easy part and then you spend a decade getting it implemented the right way. And we've been fortunate in the Violence Against Women area to have basically a series of incremental improvements in access to status for immigrant survivors of domestic violence and sexual assault, and human trafficking. So you have the '94 Violence Against Women Act, then 2000, the Victims of Trafficking Act, 2005 again, but we're still working—I also serve as a liaison at immigration services on how to implement these laws since 1997, and so it takes a long time, you know? It's the government, right? It's the federal government and there are a lot of stakeholder besides us who are involved. So we're still working on getting some parts of, for instance, the U-Visa implemented, even though it was passed in 2000. So a lot of what I do is work with the advocates and lawyers, and with CIS trying to create that fruitful communication as opposed to adversarial relationship. And like I just said, we also recently in the past year have developed the same kind of relationship with ICE headquarters, Immigration and Customs Enforcement, and the Department of Homeland Security, Civil Rights and Civil Liberties. So we're trying to find common ground and, you know, share agendas. We obviously don't all share all agendas, but we do share some.

SARAH SCHWEIG: And at least share the information to help an act.

GAIL PENDLETON: Right, and I help inform them about what we're seeing in the field. So, for instance, in the past year—I can't take credit for this—but ICE did implement some prosecutorial discretion memos and one is designed specifically for victims of crimes. And the idea is they have priority, you know, people with criminal convictions, terrorists, you know, there are other priorities they have for removal, so if someone is the victim of a crime and is being helpful to law enforcement, it's not a high priority for them to remove them, and tehy should allow them to stay here and pursue status. So that just happened, so again, my message to the field is—this is gonna take another decade to actually make it work, but we're here to—we, at the national level are here to help you try to work that out in as non-adversarial way as possible.

SARAH SCHWEIG: As with any issue with sort of ever-changing policies, keeping court advocates up to date seems incredibly crucial. How do you ensure that jurisdictions are kept informed, and all those stakeholders are, you know, trained? How does that work?

GAIL PENDLETON: Well there are two ways that we try to do it. One is that we work with organizations such as the Center for Court Innovation and the National Judicial Institute, that are sponsored by the Office on Violence Against Women, who have special training for court systems, and that's kind of the trickle down, and then because we've been doing this since 1993, we have a large field of thousands of people who are out there, actually out there doing this, right? And so the idea is give them the ability to go out and do this locally, because there's only so much you can do. You have to have a bottom, pushing from the bottom, us pushing from the top. So, and it's never gonna be perfect, but hopefully it will make our systems better. I would say a thing to do in the next few years is pick a few models that seem to be working, you know? There's no one model that works everywhere, so like what works in Suffolk County, New York, is not gonna work in northwest Arkansas, right? You know, you've got to take the principles, it seems, the most important principles and figure out how people can apply them to the resources that they have locally.

SARAH SCHWEIG: And so for those jurisdictions that maybe haven't gotten, you know, the training, what can a court do to help advocates and attorneys work with immigrant survivors of domestic violence and you know, what are the key things that you think they need to be aware of?

GAIL PENDLETON: Well I’d say the message for judges is judicial leadership. That's the key thing is that they need to go back to their systems because there's only so much a judge can do by the time it gets to them, right? It's got to be the advocates in the system, it's got to be the police and the DAs, and the domestic violence people out there who are really the first point of entry for these folks so that they even get to the judge, right? So often what the judges will say, the main thing they realize is they've got to take this back and encourage bar association trainings, and at the stakeholder meetings raising these issues, that kind of thing. And then the other piece is to get all those other players in the system trained up. There are trainings out there, we do trainings at the National District Attorneys Association. The FJC conference is the Sexual Assault and domestic violence Conferences for advocates, and there's lots of materials out there. That's the other message is, you don't need to start from scratch. Lots of people have been doing this around the country in lots of different context so we don't—because we have this huge network, we can also find people who can talk to you. I'm a big fan of peer training. So if the message is better coming from and advocate for advocates, or a police chief for other police chiefs, we can work on that.

SARAH SCHWEIG: That's great. Thank you so much for talking to me today. I'm Sarah Schweig and I've been speaking with Gail Pendleton, co-director of ASISTA, about domestic violence and its bearing on immigration policy. To learn more about the Center for Court Innovation please visit www.courtinnovation.org. Thank you for listening.