Information about VAWA confidentiality provisions at the Department of Homeland Security and instructions for reporting a violation. Updated on 12/12/2021. For previous information about VAWA confidentiality complaints go to https://niwaplibrary.wcl.american.edu/pubs/conf-vawa-gov-dhscomplaintinstrts-2008
VAWA Confidentiality > Confidentiality Statutes, Policy, & Regulations
Topic: Confidentiality Statutes, Policy, & Regulations
Various statutes and regulations regarding VAWA confidentiality.
[pdf] DHS Council on Combating Violence Against Women Instruction 002-02-001 (March 15, 2013) (+)
This Instruction describes the scope, responsibilities, composition, membership, and operating instructions for the DHS Council on Violence Against Women. It’s responsibilities include implementation of VAWA and TVPA and assisting with VAWA confidentiality protections across DHS.
[pdf] DHS Directive 002-01 Council on Combatting Violence Against Women (March 14, 2013) (+)
This directive establishes the Department of Homeland Security (DHS) Council on Combating Violence Against Women (“Council”) and its membership, and outlines the Council functions, coordination responsibilities, and operating procedures. Responsibilities of the Council include advancing knowledge and awareness throughout DHS about Violence Against Women Act (VAWA) and Trafficking Victims Protection Act and compliance with the requirements of each of these laws.
[pdf] FOIA USCIS Response to NIWAP’s FOIA on Battered Spouse Waiver Cases and Case Processing (August 25, 2017) (+)
This FOIA response discusses the application of VAWA confidentiality protections to battered spouse waiver and all VAWA cases; provides slides used to train on VAWA confidentiality and the rules that apply to district office staff adjudicating battered spouse waivers and VAWA adjustments of status applications for lawful permanent residency. These slides highlight the types of evidence that adjudicators cannot rely upon that come from the abuser under VAWA confidentiality law. It also discusses how many of the cases returned to the VAWA unit from district offices stems from reliance on regulations that were later overruled by subsequent VAWA statutes and have not been updated and highlight common returns that are errors. The training includes a copy of the 4.11.08 memo on adjustment of status for VAWA self-petitioners who are present without inspection. There are also documents discussing VAWA’s amendments designed to allow VAWA self-petitioners to remarry and the USCIS position on narrow implementation of the remarriage provisions. The materials provided in response to the FOIA provide detailed information in the form of emails, policies, and trainings warning adjudicators to not rely on perpetrator provided information in adjudicating VAWA self-petitions, adjustments or battered spouse waiver cases with good examples of the types of evidence that must be avoided, including not relying on perpetrator provided information in marriage based visa interviews. The policy discussing referrals from District offices for revocations for self-petitions is discussed. The response also included the memo on the 2 year custody and 2 year residency and custody exceptions for abused adopted children. Pages 1-57 of this FIOA response contain information applies primarily to VAWA self-petition or cases of abused adopted children.
Page 58 (Electronic page 72) of the response appears to be a check list of the types of evidence that may be fraud indicators or raise questions or lead to a request for further evidence (RFE) this appears to be self-petition related and it is not clear the extent to which it relates to battered spouse waiver cases.
Pages 59-61 and pp 88-91 directly related to battered spouse adjudications and provide direction on how District Office adjudicators are to respond when at an interview for a jointly filed request to remove conditions a battered spouse/child request to file a battered spouse waiver. These communications recognize the VAWA confidentiality implications in processing these requests. Pages 70-73 provide the formal interim process from changing from a joint petition to a battered spouse waiver.
Pages 62 -67, also provided on pages 82-87. Directly discuss battered spouse waiver adjudications with VAWA Unit staff providing examples the types of questions VAWA unit trained staff use in requests for further evidence (RFE) on the following topic proof of: extreme cruelty; battering (physical abuse); good faith marriage, residence with abusive spouse/parent. There is also included RFE language describing that marital tensions are not necessarily abuse. The materials also describe the three main reasons why battered spouse waiver adjudicators send cases to an interview at a field office. Any credible evidence rules are described and an explanation of Battering or Extreme Cruelty from Chapter 25 of the Adjudicators Field Manual is included. Page 92 also addresses similar issues.
Pages 76-78 set out the standard operating procedures (S)OP) used by District offices processing VAWA cases addressing both battered spouse waiver cases and VAWA self-petitions adjustments of status to lawful permanent residency. The SOP discusses interviews, the timing of interviews and the involvement of supervisors. It also discusses having a VAWA Point of Contact at the field office and their role. This SOP recognizes that some VAWA cases will be identified during an interview and any such cases are to be referred to the VAWA POC in the field office. This policy took effect August 1, 2011.
Pages 79-81 discuss the creation of the “384” code of admission notifying DHS staff that a case has VAWA confidentiality protection. It is interesting to note that no mention of battered spouse waivers are a case type is included in these communications despite VAWA 2005 defining battered spouse waivers as VAWA self-petitioners.
[pdf] VAWA Confidentiality Protections, Courthouse Enforcement, and Sensitive Locations Policies at a Glance (December 27, 2021) (+)
This tool assists judges, courts and attorneys in determining the applicability of VAWA confidentiality protections, DHS policies on protected areas, and DHS courthouse enforcement policies to cases involving immigrant survivors of crime and abuse, particularly victims of domestic violence, child abuse, sexual assault, stalking, human trafficking and any U visa covered criminal activity. It assists courts in designing court orders including protection orders and visitation exchange and helps attorneys and victim advocates safety plan.
[pdf] Quick Reference: VAWA Confidentiality Protections: Quoting Statutes, Regulations and DHS Policies (June 12, 2021) (+)
This documents provides a quick reference for judges on federal Violence Against Women Act VAWA immigration confidentiality laws listing quotes from the statute, legislative history, regulations and U.S. Department of Homeland Security policies. It concludes with a discussion of DHS VAWA confidentiality procedures and complaint process for violations of this federal statute.
[pdf] DHS Disclosure of Section 1367 Information to National Security Officials for National Security Purposes Instruction (11/7/13) (+)
This DHS Instruction implements the Department of Homeland Security (DHS) Directive 215-01, Disclosure of Section 1367 Information to National Security Officials for National Security Purposes Title 8, United States Code (U.S.C.), Section 1367(b)(8), with respect to the disclosure of any information related to applicants for or beneficiaries of T Visa, U Visa or Violence Against Women Act (VAWA) protections (“Section 1367 information”) for National Intelligence (including Foreign Intelligence and Counterintelligence) purposes to elements of the Intelligence Community or for counterterrorism purposes to elements of the Intelligence Community, other Federal departments and agencies, and foreign government entities. Includes a required standard warning that is to accompany all releases of information on the last page of the instruction.
[pdf] DHS Disclosure of Section 1367 Information to National Security Officials for National Security Purposes Directive (11/6/2013) (+)
This DHS Directive serves as the principal reference for disclosing any information related to applicants for or beneficiaries of T Visa, U Visa, or Violence Against Women Act (VAWA) protections (“Section 1367 information”) for National Intelligence (including Foreign Intelligence and Counterintelligence) purposes to elements of the Intelligence Community or for counterterrorism purposes to elements of […]
[pdf] DHS Disclosure of Section 1367 Information to Law Enforcement Officials For Legitimate Law Enforcement Purposes (June 18, 2016) (+)
This DHS Instruction implements the Department of Homeland Security (DHS) Directive 002-02 with respect to the disclosure to Law Enforcement Officials for legitimate Law Enforcement Purposes any information relating to applicants for or beneficiaries of T nonimmigrant status applications (“T visa”), U nonimmigrant status petitions (“U visa”), or applications for immigration relief under the Violence Against Women Act (VAWA) (“Section 1367 Information”). Title 8, United States Code (U.S.C.), Section 1367(a)(2),(b)(2). Includes a required standard warning that must be included with any release of information to law enforcement regarding the obligation to continue to not release the information to other persons.
[pdf] DHS The Council on Combating Violence Against Women Instruction (3/15/2013) (+)
This DHS Instruction implements the Department of Homeland Security (DHS) Directive 002-01, The Council on Combating Violence Against Women (“Council”) and its
membership, and outlines the Council functions, coordination responsibilities, and operating procedures. The Council focuses on advancing overall compliance with, and knowledge about, the Violence Against Women Act (VAWA), the Victims of Trafficking and Violence Protection Act (VTVPA), subsequent reauthorizations of those laws, and related immigration laws and issues, and the provision of training and resources to stakeholders and the public as appropriate.
[pdf] DHS Council on Combating Violence Against Women Directive (3/14/2013) (+)
This directive establishes the Department of Homeland Security (DHS) Council on Combating Violence Against Women (“Council”) and its membership, and outlines the Council functions, coordination responsibilities, and operating procedures. The Council focuses on advancing overall knowledge of and compliance with the Violence Against Women Act (VAWA), the Victims of Trafficking and Violence Protection Act (VTVPA), subsequent reauthorizations of those laws, and related immigration laws and issues, as well as the provision of training and resources to
stakeholders and the public as appropriate.
[pdf] DHS – Delegation of Authority to Issues Guidance and Implement VAWA Confidentiality 8 USC 1367 (September 23, 2013) (+)
This Delegation vests the authority described herein in the DHS Officer for Civil Rights and Civil Liberties. delegate to the Officer for Civil Rights and Civil Liberties the authority to provide DHS-wide guidance and oversight on the implementation of 8 United States Code (U.S.C.) Section 1367 confidentiality and prohibited source provisions (relating to applicants for and
beneficiaries of Violence Against Women Act (VAWA), T visa, or U visa protections) in accordance with policies and procedures established by implementing departmental Directives or Instructions.
[pdf] DHS: Privacy Compliance Review of the Privacy Incidents Affecting Individuals Protected by Section 1367 (February 4, 2019) (+)
This is a report produced by DHS that review compliance with VAWA Confidentiality (8 U.S.C. 1367). It discusses many of the DHS and USCIS policies on VAWA confidentiality, but interestingly did not discover or recognize the two ICE VAWA confidentiality implementation policies that were issued in January of 2007. The appendix to the report includes most of the DHS policies implementing VAWA confidentiality are required by statute in VAWA 2005.
[pdf] VAWA-Confidentiality-History-Purpose-and-Violations (+)
Chapter in Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault. This chapter contains detailed legislative history on the development and evolution of the Violence Against Women Act (VAWA) confidentiality protections under U.S. immigration laws. VAWA’s immigration confidentiality protections accomplish three objectives: 1) preventing DHS, DOJ and the U.S. State Department from relying on information provided by a perpetrator or the perpetrator’s family member to harm victims; 2) barring the release by government officials of information about the existence of, actions taken in, or materials contained in a VAWA confidentiality protected case file; and 3) establishing a list of protected locations at which immigration enforcement actions in cases involving immigrant crime victims are not to take place. This chapter discusses each of these protections in detail and includes statutory and legislative history, regulations and government policies implementing VAWA confidentiality protections. This chapter also contains a discussion of sanctions applicable to DHS, DOJ, and State Department officials when VAWA confidentiality violations occur.
[pdf] State Confidentiality Statutes (+)
[pdf] DHS ICE Field Officer Policy VAWA Confidentiality (1.22.2007) (+)
[pdf] DHS ICE-OPLA-VAWA-2005-Confidentiality Implementation (2.1.2007) (+)
OPLA VAWA Confidentiality and VAWA 2005 implementing policy.
[pdf] DHS U Visa Regulations- VAWA Confidentiality (September 17, 2007) (+)
VAWA confidentiality regulations and preamble included in the U visa regulations 2007. See electronic pages 3, 14, 15, and 27. Search for “1367”.
[pdf] VAWA Confidentiality Complaint Process at DHS Civil Rights and Civil Liberties (CRCL) (2018) (+)
This flow chart describes the process that the Department of Homeland Security’s Office of Civil Rights and Civil Liberties uses to process VAWA confidentiality complaints.
[pdf] USCIS Memo: Eligibility for Employment Authorization for Battered Spouses of Certain Nonimmigrants (March 8, 2016) (+)
United States Citizenship and Immigration Service USCIS revisions to adjudicators manual and policy memo implementing VAWA 2005’s creation of access to work authorization for immigrant spouses and children subjected to battery or extreme cruelty by their work visa holder (A, E(3), G or H) spouse or parent. It is important to note that these victims also receive VAWA confidentiality protection.
[pdf] ICE OPLA VAWA Confidentiality and Immigration Relief for Crime Victims Training (November 11, 2016) (+)
This notice reports on the trainings conducted by the Immigration and Customs Enforcement’s Office of Principal Legal Advisor on VAWA Confidentiality and immigration protections for victims for ICE Assistant chief counsel and Enforcement and removal officers. The goal of this training was to ensure that all ICE Trial Attorneys and the Assistant Chief Counsel they report to are aware of the requirements of VAWA confidentiality and the protections available to immigrant crime victims under the VAWA, T visa, and U visa programs and under the 2011 Victim Witness Memo. The document lists the process for contacting the ICE Office of Chief Counsel for problems with particular cases and the point of contact at OPLA on VAWA confidentiality.
[pdf] 2007 ICE and OPLA VAWA Confidentiality and VAWA 2005 Implementation Memos -(FOIA Release – February 15, 2015) (+)
Through a FOIA request in 2015 ICE Officially released two documents of importance the those in the field working with immigrant survivors of crime. These memos together with the memos issued by DHS that govern all of its branches and bureaus govern VAWA confidentiality implementation at ICE.
— February 1, 2007, William J Howard, “VAWA 2005 Amendments to the Immigration and Nationality Act and and 8 U.S.C. 1367” This is an Office of Principal Legal Advisor (OPLA) memorandum on VAWA confidentiality implementation and the VAWA 2005 Amendments to the Immigration and Naturalization Act.
— January 22, 2007, Director John P. Torres, Office of Detention and Director Marcy M. Forman Office of Investigations, Immigration and Customs Enforcement Memo “Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005.and changes made to VAWA confidentiality protections and ICE memorandum on Interim Guidance Relating to Officer Procedure”
[pdf] Department of Homeland Security: Civil Rights Complaint Form (+)
The purpose of this form is to assist you in filing a civil rights/civil liberties complaint with the Department of Homeland Security (DHS) Office for Civil Rights and Civil Liberties (CRCL) regarding DHS programs and activities. This form is not intended to be used for complaints about employment with DHS. You are not required to use this form to file a complaint; a letter with the same information is sufficient. However, if you file a complaint by letter, you should include the same information that is requested in the form.
[pdf] Current State of VAWA and Trafficking Victim Protection Act Implementing Regulations and Policies (February 13, 2013) (+)
The following article provides an up-to-date list of VAWA statutory provisions for which no implementing regulations or policies have been issued. This list is followed by a consequent list of VAWA and Trafficking Victim
Protection Act (TVPA) regulations that were overruled by statute. This report ends with a list of
current regulations that do not reflect expansions of VAWA or TVPA protections that became
law subsequent to the issuance of the regulations.
[pdf] State Confidentiality Statutes (+)
Information on state confidentiality statutes and a detailed table of the most common privileged relationships by state.
[pdf] Court Rulings Confirm Federal VAWA Confidentiality Protections Bar Discovery of VAWA Confidentiality Protected Information in State Family Court Proceedings (+)
This factsheet provides an introduction to VAWA confidentiality, an overview of the decisions in Hawke v. United States Department of Homeland Security and Demaj v. Sakaj, and implications of the Hawke and Demaj decisions in state family court cases.
[pdf] All DHS Directive on Implementation of Section 1367 Information Provisions (November 1, 2013) (+)
Department of Homeland Security directive on agency wide implementation of Section 1367 VAWA confidentiality provisions.
Law Enforcement, Prosecutor and T and U Visa Certifier Training Materials
Most of the documents in this section and the trainings provided to law enforcement and prosecutors listed at the end of this section were supported by grants from the Office on Violence Against Women, The Bureau of Justice Assistance and/or the Training and Technical Assistance Center of the Office of Victims of Crime of the […]
[pdf] Section 809 Eligibility of Crime and Trafficking Victims in the Commonwealth of the Northern Mariana Islands to Adjust Status and Section 810 Disclosure of Information for National Security Purposes (+)
Section 809 of VAWA 2013, defining eligibility of crime and trafficking victims in the commonwealth of the northern Mariana Islands to adjust status and section 810 of VAWA 2013, covering disclosure of information for national security purposes.
[pdf] VAWA 2013 VAWA Confidentiality Amendments (+)
Section 1367 interlineated with VAWA 2013 amendments.
[pdf] DHS Broadcast Message on New 384 Class of Admission Code (December 1, 2010) (+)
Broadcast from the Department of Homeland Security to DHS personnel on the creation of the Class of Admission “384” code in the Central Index System, that alerts personnel of an immigrant victim who is protected by VAWA confidentiality protections.
[pdf] Judgment of Hawke v. United States Department of Homeland Security, Citizenship and Immigration Services (+)
Federal Court judgment in Mark Hawke v. United States Department of Homeland Security, Citizenship and Immigration Services, No. C-07-03456 RMW.
[pdf] Order Denying First Amended Petition of Hawke v. United States Department of Homeland Security, Citizenship and Immigration Services (+)
An order denying the first amended petition filed in Mark Hawke v. United States Department of Homeland Security, Citizenship and Immigration Services, No. C-07-03456 RMW.
[pdf] DHS Civil Rights Civil Liberties Complaint Instructions for Violation Investigations (+)
Information about VAWA confidentiality provisions at the Department of Homeland Security and instructions for reporting a violation.
[pdf] Court Decision Interprets VAWA Confidentiality Provisions (+)
A summary of the decision in Hawke v. Department of Homeland Security, a case of first impression on the issue of VAWA confidentiality.
[pdf] Memorandum: Interim Guidance Relating to Officer Procedure Following Enactment of VAWA 2005 (+)
Memorandum from John Torres to Field Office Directors and Special Agents in Charge providing guidance to operational units of U.S. Immigration and Customs Enforcement on the new confidentiality procedures created by VAWA 2005 in cases involving individuals who may be eligible to apply for VAWA benefits or T or U visas.
[pdf] INA: Section 239 – Initiation of Removal Proceedings and VAWA Confidentiality (2006) (+)
Immigration and Nationality Act section 239 provision on the initiation of removal proceedings. Section 239(e) defines when a certificate of compliance was required when an enforcement action that took place at a sensitive location lead to a removal proceeding to ensure that confidentiality provisions were complied with.
[pdf] Section 1367 of VAWA 2005: Penalties for Disclosure of Information (+)
Section 1367 of VAWA 2005 detailing the penalties for disclosure of information, as it appeared in the U.S. code in 2005.
[pdf] VAWA 2005 House HR 3402 Sec. 817: VAWA Confidentiality Nondisclosure (+)
Confidentiality nondisclosure provision in VAWA 2005, section 817, as it appears in the House version of VAWA 2005.
[pdf] VAWA 2005 HR 3402 Sec. 825(c): Certificate of Compliance with Restrictions on Disclosure (+)
VAWA 2005 section 825 (c) amended INA section 239 (8 U.S.C. 1229), adding a requirement that a certificate of compliance be filed if an enforcement action took place at a sensitive location that lead to a removal proceeding to ensure that confidentiality provisions in Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) were complied with.
[pdf] Offering a Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses (March 1, 2002) (+)
This article chronicles the legislative history of immigration protections afforded immigrant crime victims in the Violence Against Women Acts (VAWA) of 1994 and 2000, through the Battered Spouse Waiver, and through VAWA Confidentiality, the history and development of the VAWA self-petition, VAWA cancellation of removal, the battered spouse waiver, any credible evidence standard, VAWA confidentiality, benefits access for battered immigrant VAWA self-petitioners and cancellation/suspension applicants, the U-Visa, victim’s ability to obtain lawful permanent residency in the U.S. and Legal Services Corporation funded legal assistance are discussed in detail. This article collects and publishes information contained in documents developed during advocacy that led to the passage of federal immigration law legislation creating each of these protections.
[pdf] Memorandum: Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues (+)
Memorandum from Paul Virtue outlining changes in the handling of I-360 self-petitions for immigrant status filed by battered spouses and children of U.S. citizens and permanent residents aliens and addresses related issues.
[pdf] Memorandum: Non-disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA 384 (May 5, 1997) (+)
Memorandum from Paul Virtue regarding non-disclosure and other prohibitions relating to battered aliens under IIRIRA 384 confidentiality provisions to all INS employees.
[pdf] Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 (+)
Full version of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 , public law 104-208. Confidentiality provisions are listed in Section 384.
[pdf] Operating Policies and Procedures Memorandum No. 97-7: Procedures for Identifying Potential Battered Spouse/ Battered Child Cases (+)
A memorandum about the operating policies and procedures for identifying potential battered spouse/ battered child cases from the office of the Chief Immigration Judge to all deputy chief immigration judges, all assistant chief immigration judges, all immigration judges, all court administrators, all judicial law clerks, and all court staff.