HHH Prof. Fennelly: Why Some Immigrant Women Fear Saying #MeToo

Why Some Immigrant Women Fear Saying #MeToo      

By Katherine Fennelly | March 13, 2018
Crossposted from the Gender Policy Report, UMN http://genderpolicyreport.umn.edu/why-some-immigrant-women-fear-saying-metoo/

The #MeToo movement has been crucial in raising the profile of sexual harassment and violence through the voices of women from Hollywood to Congress, yet we have heard less about the experiences of women from other socioeconomic sectors – poor women, women of color, immigrant women. The U.S. does have limited policies in place to protect some immigrant victims of sexual violence, but those systems need to be more accessible ­and to be made consistent across jurisdictions.
The Good News

Some immigrants in the U.S.—predominantly women—who have been victims of sexual and other forms of violence are eligible for a humanitarian visa. The U Nonimmigrant Visa is designed to protect those who have suffered mental or physical abuse and encourage them to cooperate in criminal investigations and prosecutions. It allows victims to remain in the country and apply for a green card. The goal is to protect both individuals and communities by helping law enforcement agencies better serve crime victims. 

The Bad News

The bad news is that getting a U Visa depends more on a victim’s zip code than on the merits of her application.

Congress created the U Nonimmigrant Visa to help foreign-born victims of crime as part of the Victims of Trafficking and Violence Protection Act of 2000. Each year, up to 10,000 victims of violence receive this protection from deportation, employment authorization, and opportunity to become lawful permanent residents—and ultimately, U.S. citizens.

Still, demand for U Visas far outpaces the supply. In addition, there is wide variation in the extent to which law enforcement agencies facilitate or impede the certifications that are a required part of the application process.

According to attorneys at Her Justice, an organization that assists thousands of women applying for U Visas, the most serious obstacle to the protection of foreign-born victims of violence is that 10,000-per-year cap. There is a huge, and growing, backlog of applications. In fiscal year 2017, for example, the USCIS received 36,531 U visa petitions and approved 10,031. Adding the balance to backlogs, that meant 110,511 petitions were awaiting decisions. For victims, this means waiting years to have their cases heard and to get even conditional authorization to work in the U.S.

Without permission to work, already vulnerable women who may have separated from abusers, are in a uniquely difficult bind if they need to support children, or simply want to support themselves.

Other, less-well-known barriers to these protections stem from law enforcement officials’ poor understanding of victims’ circumstances. To be eligible for a U Visa, an individual must demonstrate that she has cooperated in the investigation or prosecution of the crime, as certified by police and/or a district attorney (if the abuser was arrested). Obviously, there’s a great deal riding on how any given official defines “cooperation.” This varies greatly across the U.S. and even within the same county.

Some officials understand the U Visa requirements and have reasonable, streamlined procedures for evaluating applications for the cooperation certification. Others may be reluctant to provide certifications because they believe that people apply for U Visas fraudulently—not because they need protection from violence, but because they are seeking an “easy” path to legal status. Authors of a UNC Law School study of differences in U-visa certifications across the U.S. cite the case of a Spring Lake, Minnesota Chief of Police, who said that he would not feel “comfortable” certifying U visa applications for anyone whom he did not know personally.

In some jurisdictions, if a woman drops the charges against her abuser she is considered to be “non-cooperative.”

Such policies ignore the myriad factors that can lead a woman to drop charges—for example, fear of retribution, or the fact that a victim and her children are often dependent upon the abuser for financial support. In other circumstances a woman may want to separate, but not necessarily to see her partner or the father of her children jailed or deported.

Sealed criminal records are also an impediment: if an abuser is undocumented, his attorney may try to get the charges sealed so that they don’t lead to his deportation. Then, when district attorneys are asked to certify that a victim has cooperated, they may say (incorrectly) that they are unable to certify because the court records are sealed, and punt the request back to police.

Such arbitrary differences in local policies and procedures can result in immigrant victims with identical histories of abuse and law enforcement cooperation seeing different certification outcomes (and recall, the certification is only one step in the process of getting a U Visa). Many jurisdictions have no standard policies or designated certifiers. Some states are taking action, implementing uniform definitions of what constitutes cooperation with law enforcement. California, for example, has enacted the 2016 Immigrant Victims of Crime Equity Act.
What Lies Ahead?

The stresses experienced by abused women are greatly compounded for immigrants who do not have permanent legal status in the US. Without work authorization, many face an impossible choice between fleeing an abuser and being able to pay rent and living expenses for themselves and their children. It is thus unsurprising that some victims who call the police during a crisis later decide to drop charges against their abusers. Sadly, in some localities this decision can have serious consequences, making them ineligible for the kind of protection offered by the U Visa.

The current Administration’s anti-immigrant rhetoric and actions have exacerbated the plight of foreign-born victims of violence.

Delays in obtaining U Visas today have a particularly devastating impact in this climate because a victim may be picked up by ICE during the waiting period before her application is reviewed or approved.

Furthermore, inflammatory statements and actual immigration raids make many victims fearful of coming forward to report crimes. When law enforcement and immigration enforcement are tied, victims understandably avoid contact with both groups; this is precisely what the authors of the original Victims of Trafficking and Violence Protection Act hoped to avoid.

One, as-yet-unexplored outgrowth of the #MeToo movement should be attention to the plight of foreign-born victims of violence, particularly through designing better, more standard U Visa policies and working to educate the public and law enforcement officials about this uniquely vulnerable set of victims.

Katherine Fennelly is professor emerita of public policy at the Humphrey School of Public Affairs
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