*Amicus Briefs-VAWA Confidentiality

Hawke v. Department of Homeland Security, (May 23 2008) United States District Court for the District of Northern California. Legal Momentum, represented by Morgan and Lewis submitted this amicus brief discussing the history and purpose of VAWA Confidentiality created in 1996 (expanded in 2000 and 2005) as Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). In this case of first impression, the Court clarified that VAWA confidentiality provisions protect victims filing for VAWA immigration relief even if the case is ultimately denied when such denials were not based on the merits. Procedural denials or withdrawals of applications continue to receive the full scope of VAWA Confidentiality eligible protection. Topics addressed in this Amicus Brief:

  • Even assuming the existence of a VAWA application, the confidentiality provisions of VAWA would still prevent disclosure…….6
  • The Alleged VAWA-Related Application Was Not Denied on Its Merits,
    but Mooted…………………………..6
  • Other VAWA Applications Would Also Prevent Disclosure…..7

Romain v Napolitano (March 16 2012), U.S. District Court, Eastern District of New York. NIWAP, represented by Morgan, Lewis and Bockius, served as lead amicus in the first VAWA Confidentiality appeal of denial of a criminal court discovery order. This was a case in which a domestic violence perpetrator who was being prosecuted for domestic violence sought discovery under Brady and W.M.V.Crio of the VAWA confidentiality protected VAWA self-petition immigration case filed by his battered immigrant spouse. The perpetrator of spousal rape subpoenaed the victims VAWA self-petition case from the U.S. Department of Homeland Security. The Federal District Court ultimately denied the subpoena and discovery of the self-petition file by the criminal defendant spouse.

Topics addressed in this Amicus Brief:

  • VAWA’s confidentiality protections expressly prohibit the plaintiff from acquiring any VAWA, T-visa and U-visa applications for relief the victim may have filed……………4
  • No exception to VAWA confidentiality applies here………………6
  • The plaintiff has no constitutional right to obtain information protected by VAWA confidentiality……8
  • Legislative history confirms that VAWA confidentiality prevents accused batterers from using the immigration system against their victims………………….10
  • In enacting the Violence Against Women Act of 1994, Congress understood that confidentiality protections were necessary in light of the dangers of domestic violence faced by immigrant victims……………………11

Equal Employment Opportunity Commission v. Koch Foods (October 22, 2015) 5th Circuit Court of Appeals, NIWAP Inc., Legal Momentum, Arnold and Porter and Procopio. Amicus brief submitted in an interlocutory appeal of a Federal District Court decision to allow an employer who employed supervisors who perpetrated rape, sexual assault, felonious assault, extortion, sexual harassment and other discrimination against workers to use civil court discovery in an EEOC enforcement action to obtain copies of the victim’s VAWA confidentiality protected U visa case files. The 5th Circuit overruled this District Court decision based upon the history and purpose of VAWA Confidentiality law. The brief provides the legislative history of the VAWA confidentiality provisions and the U visa and discusses the public policy effects on victims of domestic violence, sexual assault, human trafficking and other crimes if discovery of VAWA confidentiality protected information is allowed in civil cases.

Topics addressed in this Amicus Brief:

  • The legislative history of the U visa program clearly highlights congress’ intent to expand the confidentiality provided to U visa applicants and the contents therein….43
  • The confidentiality provisions of the U visa program prohibit disclosure of an applicant’s information to any third party, and particularly the aggressor, during discovery….47
  • Importance of VAWA Confidentiality for Crime Victim Protection …..51
  • Protection of Victims. ……………………………………………………………. 51

Cazorla v. Koch Foods of Mississippi, (October 22 2015) United States Court of Appeals, 5th Circuit. NIWAP, represented by Procopio, Cory, Hargreaves & Savitch, LLP, Arnold and Porter, Latino Justice PRLDEF, was the lead Amicus in the first case to reach the U.S. Courts of Appeals on the (VAWA) immigration confidentiality protections. In this workplace sexual assault case brought by the EEOC the employer is attempting to obtain through civil court discovery receive copies of and/or information contained in victim workers’ U visa cases filed with the U.S. Department of Homeland Security that under federal law are to receive VAWA confidentiality protection.

Topics addressed in this Amicus Brief:

  • The legislative history of the U visa program clearly highlights congress’ intent to expand the confidentiality provided to U visa applicants and the accusations…….8
  • The confidentiality provision of the U visa program prohibits the disclosure of an applicant’s information to any third party, and particularly the aggressor, during discovery…..13
  • Importance of VAWA confidentiality for crime victim protection……..17
  • Protection of Victims. ……………………………………………………………..17

Matter of MA (March 23, 2020) Board of Immigration Appeals. In the Matter of M-A. (2020). NIWAP was lead amicus in an appeal to the Board of Immigration Appeal in a case of first impression challenging an Immigration Judge’s denial of VAWA cancellation of removal to an LGBTQ+ immigrant victim of spouse abuse who suffered multiple VAWA confidentiality violations including Immigration and Custom’s Enforcement informing the court they planned to call the perpetrator as a witness, submitting an affidavit by the perpetrator that the immigration judge relied upon to deny the victim VAWA cancellation of removal, the immigration court failing to remove the victim’s case from the publicly available computer system and numerous other VAWA confidentiality violations. The brief provided detailed legislative, regulatory and policy history on VAWA confidentiality and discussed each of the numerous VAWA confidentiality violations occurring in this case by Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, the immigration judge and the immigration courts.
Topics Addressed in this Amicus Brief:

  • Legislative History of VAWA and its Confidentiality Provisions…………………………………………………………………………………….. 3
  • VAWA Confidentiality Violations in Mr. M.A’s Immigration Proceedings………………………………………………………………………………………………….. 13
  • The Board Must Sanction the Egregious VAWA Confidentiality Violations that Occurred in this Case………………….. 23

Francisco Ramirez, Jacqueline Reyes-Mendoza, And Their Minor Child B.R., v Hon. Daylene A. Marsh and David Paulino Padilla-Suazo (August 14 2023) Supreme Court of the State of New Mexico. NIWAP, represented by Skadden, Arps, Slate, Meagher & Flom LLP and Saiz, Chanez, Sherrell + Kaemper, PC, submitted this emergency petition for writ of superintending control to the New Mexico Supreme Court in a sexual assault case in which a state court judges ordered U visa applicant victims to turn over in criminal court discovery information contained in the victim’s VAWA confidentiality protected case in violation of federal law.
Topics addressed in this Amicus Brief:

  • Legislative History Supports Petitioners. …………………………………….. 1
  • Congress Enacts VAWA To Protect Abuse Victims. ……………………… 2
  • VAWA Confidentiality Contains No Discovery Exception. ……………… 7
  • Judicial Consensus Weighs Against Permitting Discovery. …………….8

Published April 25, 2024