VAWA Confidentiality Protections for Immigrant Crime Victims in the Context of Immigration Enforcement (March 3, 2017)

The Three Prongs of VAWA Confidentiality and Courthouse Protections for Immigrant Victims of Domestic Violence, Sexual Assault, Human Trafficking and Other U Visa Criminal Activities (March 3, 2017) By: Leslye E. Orloff

VAWA confidentiality was designed to enhance protection for immigrant crime victims in several significant ways.  It allows victims to confidentially file for immigration relief under by prohibiting government agencies (DHS, the Department of State, and the Department of Justice) from releasing information about the existence of, actions taken in and/or information contained in a VAWA confidentiality protected case except under very limited circumstances that require that the person or entity receiving the information continue to treat it in a manner that continues to protect the confidentiality of the information.  Federal VAWA confidentiality laws generally prohibit immigration enforcement actions from occurring against immigrant victims of domestic violence, sexual assault, human trafficking and other U visa covered criminal activities at courthouses, shelters, rape crisis centers, and other statutorily prohibited locations courthouses.  Federal statutes require compliance with VAWA confidentiality statutes and DHS policies generally provide for supervisor involvement in decisions to undertake an enforcement action at  a protected location. VAWA Confidentiality also prohibits immigration enforcement officials from relying solely upon information provided by a perpetrator or alleged perpetrator or members of the perpetrators family to take any adverse action against a victim or the victim’s case.  This includes initiation of immigration enforcement actions, detention or deportation of a victim and seeking and/or relying upon information provided by a perpetrator or the perpetrator’s family member in the adjudication of any immigration case the victim may have filed.

Statutes and DHS Policies on VAWA Confidentiality (March 11, 2017)

Protections Against Disclosure of Information About a VAWA Confidentiality Protected Case: VAWA Confidentiality prevents the Department of Homeland Security (DHS), the Department of State (DOS) and the Department of Justice (DOJ) from releasing information contained in a protected immigration file to the abuser or others..[IIRAIRA §384 (a)(2); 8 U.S.C. §1367(a)(2).  This information includes the existence of a VAWA confidentiality protected immigration filing, actions taken in the case, locational information, information about the victimization and other information contained the case file of a VAWA confidentiality protected case.  In order to receive this protection the victim must have filed one of the following types of VAWA confidentiality protected cases:

  • VAWA self-petition
  • Battered Spouse Waiver
  • VAWA cancellation of removal
  • VAWA suspension of deportation
  • T visa
  • U visa
  • VAWA Cuban adjustment applicants
  • VAWA Haitian Refugee Immigration Fairness Act
  • VAWA Nicaraguan Adjustment and Central American Relief Act Protections
  • Work Authorization Applications Filed by Abused Spouses of A, E (3), G and H Visa Holders under INA Section 106

Prohibitions Against Reliance on Perpetrator Provided Information: The Department of Homeland Security, the Department of Justice and the Department of State (DOS) fare prohibited from using information provided by perpetrator or family member to make take any action or make any adverse immigration determination against the crime victim. IIRAIRA §384 (a)(1); 8 U.S.C. §1367(a)(1).   This protection extends to those who do not qualify to file, as well as those who have not yet filed cases for immigration relief as long as they are victims of the enumerated crimes, namely VAWA physical abuse or extreme cruelty, a severe form of trafficking in persons under the T-visa, or any of the U-visa qualifying crimes. IIRAIRA §384 (a)(1); 8 U.S.C. §1367(a)(1).

Immigration Enforcement Location Prohibitions: VAWA Confidentiality prohibits enforcement actions at shelters, rape crisis centers, victim services programs, community based organizations, courthouses in victim related cases, supervised visitation center or family justice centers.INA § 239(e); 8 U.S.C. §1229(e)  If DHS undertakes any part of an enforcement action at a protected location, it must disclose this fact in the Notice to Appear and to the immigration court, and must certify that such action did not violate VAWA confidentiality provisions. INA § 239(e); 8 U.S.C. §1229(e).   If the action is not certified, DHS officers face violation penalties.  IIRAIRA §384 (a)(2); 8 U.S.C. §1367(c).

Penalties for Violation:  Any DHS, DOS or DOJ official who: “willingly uses, or permits information to be disclosed in violation of this section…shall be subject to appropriate disciplinary action and subject to a civil money penalty of not more than $5,000 for each such violation.”
(8 U.S.C. § 1367(c)).

Technical Assistance and Training on VAWA Confidentiality

If you encounter a violation of VAWA confidentiality in your work with an immigrant survivor, you are working with a victim on a family law case in which you are concerned about family court discovery or courthouse enforcement, or you are seeking more information about VAWA confidentiality. NIWAP also offers training for advocates, attorneys, judges and court staff on VAWA Confidentiality.   Please contact NIWAP for technical assistance or training requests at 202-274-4457 or info@niwap.org

VAWA Confidentiality Webinar

The following is a list of statutory protection, DHS policies and legislative history on VAWA confidentiality:

All DHS Directive on VAWA Confidentiality Implementation which included and explains the annual requirement for training taking the FLTEC and DHS developed on line course ‘VAWA Confidentiality and Immigration Relief:: http://niwaplibrary.wcl.american.edu/pubs/implementation-section-1367/

All DHS VAWA confidentiality instruction: http://niwaplibrary.wcl.american.edu/pubs/implementation-of-section-1367-all-dhs-instruction-002-02-001/

DHS Broadcast Code of Admission for VAWA confidentiality protected cases the DHS computerized red flag system for cases that have already been filed: http://niwaplibrary.wcl.american.edu/pubs/dhs-broadcast-class-admission-code/

ICE and OPLA VAWA confidentiality operations memos: http://niwaplibrary.wcl.american.edu/pubs/iceopla-vawa-confidentiality-2007-foia/

DHS Civil Rights Civil Liberties Complaint instructions for violation investigations: http://niwaplibrary.wcl.american.edu/pubs/conf-vawa-gov-dhscomplaintinstrts-2008/

CRCL Complaint form (general use) http://niwaplibrary.wcl.american.edu/pubs/dhs-crclcomplaintform/

Statutes

Interlineated statute: http://niwaplibrary.wcl.american.edu/pubs/vawa-confidentiality-interliniated/

INA Section 239 VAWA confidentiality requirements barring courthouse enforcement in cases involving immigrant survivor and ICE requirements in removal cases issued in cases where facts involve Violations of VAWA confidentiality  http://niwaplibrary.wcl.american.edu/pubs/ina-239-initiation-removal/

Congress in VAWA 2005 mandated implementing policies

INS Memo on VAWA Confidentiality http://niwaplibrary.wcl.american.edu/pubs/conf-vawa-gov-insconfvawamemo-05-05-1997/

Executive Office of Immigration Review EOIR: VAWA confidentiality Procedures for immigration court;: http://niwaplibrary.wcl.american.edu/pubs/operating-policies-procedures-memorandum-no-97-7-procedures-identifying-potential-battered-spouse-battered-child-cases/

Training for ICE trial attorneys and procedures to intercede if a victim is involved in as removal proceeding and VAWA confidentiality has been violated: http://niwaplibrary.wcl.american.edu/pubs/ice-opla-vawa-confidentiality-training/

 VAWA confidentiality legislative history.

Bi-Partisan House Judiciary Report (Sensenbrenner-Conyers) VAWA 2005 (see p 122) http://niwaplibrary.wcl.american.edu/pubs/conf-vawa-lghist-dojexcerptshr-3402-09-22-2005/

Conyers Extension of remarks: (pp E2606-E2608) http://niwaplibrary.wcl.american.edu/pubs/conf-vawa-lghist-conyersextensionremarksimm-12-18-2005/

Helpful DHS Policy Memo:

Immigration and Customs Enforcement, Victim Witness Policy

Training Materials, Screening Tools, Legislative History and Practice Tools on VAWA Confidentiality:

Brochures and Advocacy Tools

Three Prongs of VAWA Confidentiality – Brochure

Advocates Guide to Immigrant Survivors’ Rights and Protections

Chapter 3.2 Breaking Barriers VAWA Confidentiality  and Breaches of VAWA Confidentiality (Tips for anticipating violations, including courthouse  enforcement and  filing complaints)

Service Provider Confidentiality Safeguards: Best Practices

Training Materials and Legislative History

Chapter 3 of Empowering Survivors:  VAWA Confidentiality, History, Purpose, DHS Implementation, and Violations of VAWA Confidentiality Protections

Newsletter on VAWA Confidentiality

Materials for Courts

Family Court Bench Card on VAWA Confidentiality

Bench Card: DHS Enforcement Priorities: Policies and Memoranda Information for State Court Judges