Follow some basic rules for representing immigrant survivors subjected to abuse by an intimate partner. 

• Do not obtain a final divorce order for any immigrant survivor client before filing a VAWA self-petition. A divorce decree will preclude a self-petition.
• Obtain details about immigration-related abuse (e.g., threats to deport, withholding assistance, or preventing the survivor from being able to work legally).
• A client should always speak to an immigration law expert before speaking with ICE. ICE may arrest them and deport them before they have a chance to speak to a lawyer.
• Clients should not sign ICE documents without first speaking to an immigration lawyer.

• A self-petitioning domestic violence victim must show battering or extreme cruelty.1  A state-court proceeding that builds the factual record can help a self-petitioning victim.

• Findings in the custody case may help a self-petitioning immigrant prove “extreme hardship,” if deported.

• Consider including a provision in the protective order that prohibits the abusive spouse from withdrawing an application for permanent residence filed on the victim’s behalf, or from contacting immigration, any government agency, or law enforcement for purposes of interfering with her status in any way. The evidence and paperwork needed for an application for permanent residence with a spousal sponsor is lower than that required for a self-petition under VAWA.2

• If the abusive party has stolen or retained documentation or records essential to your client’s immigration case, consider asking the judge to order their return during the protective order proceeding.

• Plan to respond and object if the abuser raises immigration issues in court. Alternatively, immigration abuse can be a part of your abuse case.

• If the abuser has sponsored the victim, obtain copies of the Affidavit of Support he signed. This can help with support hearings.

• Talk to your client about the immigration status of her children. If the children have been victims of abuse, abandonment, or neglect in their home country or in the US, they may be eligible for Special Immigrant Juvenile status (SIJ).  This process is different from a U-Visa or VAWA petition and requires certification by a family or juvenile court that the child is eligible for SIJ.  Help your client obtain a knowledgeable immigration attorney to help with the initial process of determining SIJ eligibility.

• NEVER AGREE TO A MUTUAL PROTECTIVE ORDER.

• 1Abused Spouses, Children and Parents, U.S. Citizenship & Naturalization Servs.
• 2See Green Card Eligibility Categories, U.S. Citizenship & Naturalization Servs.

If English is not the survivor’s first language and the lawyer does not have fluency in the survivor’s first language, the lawyer must quickly establish a communication plan that includes professional interpreters and a protocol for communication that reduces stress on the client.1  Lawyers should avoid using the victim’s friends and family as interpreters for client meetings for a variety of reasons, including client confidentiality and the risk of waiving attorney-client privilege.

For court, attorneys should file a motion under La. C.C.P. art. 192.2 requesting an interpreter as soon as possible. The court is required, under that article, to appoint an interpreter before the Rule to Show Cause for a protective order hearing under title 42.2  Costs for a professional interpreter must be paid out a court fund,3  or paid by the abusive party.4

Prepare your client for testimony through interpreters. When possible, have your own interpreter in court, in addition to the court-appointed interpreter, so that you may communicate confidentially with your client during court proceedings and breaks. At the very least, it is a good idea to have a non-witness friend, relative, or other person who speaks the same language as your client listen to testimony to tell you if the professional interpreter is interpreting accurately.

• 1For detailed discussion of the use of interpreter to facilitate access to justice for individuals with limited English proficiency, see this manual’s chapter on language access.
• 2La. C.C.P. art. 192.2(C).
• 3La. C.C.P. art. 192.2(B).
• 4La. R.S. 46:2136.1; La. R.S. 9:367.

After securing an interpreter, a crucial next step is to find and consult an immigration expert about any risks your client may face by taking any particular course of action in the legal system. Lawyers should use extreme caution to avoid inadvertently creating immigration problems for their clients and should seek to protect clients from immigration abuse. Many lawyers do not understand how easy it is to create problems for a client’s immigration case for what may seem like unrelated actions. Even consent judgments in family law cases can positively or negatively affect a client’s immigration situation.

Immigration-related risks to clients can be especially high cases involving a concurrent criminal case. Because of language barriers, victims who lack proficiency in English can be vulnerable to arrest when interacting with police during domestic violence calls, especially if the abuser speaks English and is more easily able to communicate his version of events. If the client is charged with a crime, a guilty plea could mean immediate deportation and loss of status, which should be discussed with a client as part of any settlement calculation. The failure to discuss these issues with a client can result in harm to the client, lawyer malpractice, and disciplinary action taken by the state bar association.

Most lawyers do not have overlapping expertise in domestic violence and immigration. If this is you, consult an expert right away to make sure that your planned course of action for the client does not involve risks unknown to you. There are excellent resources available to lawyers advocating for immigrant survivors. If you are unsure what to do, or who to consult for help, a good first step would be to reach out to an organization that provides expert technical assistance and consultation to lawyers, such as ASISTA.1

• 1See ASISTA Immigration Assistance.

Immigrant survivors who leave their abusive partners may face enhanced vulnerability to deportation through their partners’ actions or inactions.  Specifically, abusive partners often threaten to pull previous support for permanent residency for victims, refuse to assist in the seeking of residency, fail to pass on documents and correspondence from immigration proceedings, or, in the most extreme cases, contact I.C.E. to report the victims as being in the country illegally. Lawyers should make sure that immigrant survivors of abuse receive legal advice about deportation risks and potential avenues for protection. These avenues include:

• U- Visa – allows immigrant victims of certain types of crimes, including domestic violence, who have been helpful in the investigation of prosecution of the crime to apply for a visa that may lead to green card status.1
• VAWA – allows an abused spouse or child of a U.S. citizen or lawful permanent resident to self-apply for lawful permanent status and also allows for employment and access to public benefits.2
• T-Visa – allows human trafficking survivors to apply for permanent status and employment authorization.3

If a survivor may be eligible for these immigration protections, assist them in securing representation by an immigration attorney or advocate.

• 1Victims of Criminal Activity: U Nonimmigrant Status, U.S. Citizenship & Naturalization Servs.
• 2Green Card for VAWA Self-Petitioner, U.S. Citizenship & Naturalization Servs.
• 3I-914, Application for T Nonimmigrant Status, U.S. Citizenship & Naturalization Servs.

LSC attorneys are allowed to represent immigrant domestic violence survivors. The Violence Against Women Act was specifically amended to allow the use of VAWA funds to represent battered immigrant spouses.1

• 1Immigration law is complex and frequently changes. You should develop a relationship with an immigration expert for cases where a battered immigrant spouse needs legal help to avoid deportation.

Cases involving LGBTQI+ survivors of abuse can present challenges that lawyers need to be prepared to address. Most domestic violence attorneys have little experience representing LGBTQI+ survivors, in part because a history of homophobia or ignorance among mainstream service providers has led to distrust and a lack of organizational competence to provide services. Although there is a commonly held belief that intimate partner violence is more pervasive in heterosexual relationships than in others, studies show similar rates of intimate partner violence among same-sex couples.1  And transgender women experience some of the highest rates of gender-based violence but are among the least likely to access services or to have options for culturally competent services.2

An important part of being accessible to LGBTQI+ survivors is recognizing the need for specialized training and support. The American Bar Association’s Commission on Domestic & Sexual Violence has an LGBTQI+ Legal Access Project that provides training, support, and individualized technical assistance to lawyers and programs providing legal services to LGBTQI+ survivors.3  The Project can provide support to programs seeking to improve their accessibility and organizational competence with respect to LGBTQI+ survivors, as well as technical assistance on individual cases.

Some of the challenges LGBTQI+ survivors face include the fact that law enforcement tends to be less competent in identifying the predominate aggressor when responding to calls for service, more likely to minimize the danger to a victim, and more likely to make dual arrests.4  LGBTQI+ survivors can face abuse in the form of threats to “out” the victim or to take away children to which the victim may have limited or no custodial rights. Furthermore, survivors may find it difficult to avoid an abusive former partner in a local, socially insular LGBTQI+ community and may face homophobia or transphobia among law enforcement, service providers, and courts when they seek help.

Especially in protective order cases involving same-sex partners and transgender women, the often ineffectual or harmful responses by police can make litigation more challenging by painting a picture of mutual violence. Lawyers should develop evidence to show how the purpose and the effect of the abusive party’s violence is different from physical violence the victim may have used to resist or defend against control and abuse. For example, an abusive party may laugh at or taunt a victim who strikes the abuser, suggesting that the abuser does not actually fear the victim; the absence of fear undercuts the notion that both parties are equal aggressors. Additionally, the type of violence used can also be an important way of helping judges understand distinctions between the abusive party and the victim when there are dueling claims of abuse. For example, strangulation is a behavior only an abusive party engages in, and an expert in strangulation may be able to explain the pervasive tactic of strangulation in abusive relationships to a judge.

• 1Mikel J. Walters, et al., Div. of Domestic Violence Prevention, Cts. for Disease Control & Prevention, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Findings of Victimization by Sexual Orientation (2013).
• 2Sarah M. Peitzmeier, et al., Intimate Partner Violence in Transgender Populations: Systematic Review and Meta-analysis of Prevalence and Correlates, 110 Am. J. Pub. Health e1 (2020).
• 3See LGBTQI+ Legal Access Project, Am. Bar. Ass’n.
• 4Leigh Goodmark, When Is A Battered Woman Not A Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75, 90–92 (2008).

It can sometimes be complicated to advise LGBTQI+ clients about their parental rights in Louisiana. This is especially true in cases involving children shared by unmarried same-sex partners. In some cases, the victim may be the sole party with an adoptive or biological filiation to the child or children. In other cases, the victim may be the parent with no adoptive or biological filiation to a child they have raised since birth. In the latter situation, victims can feel especially trapped and fearful of losing rights and access to shared children. Louisiana’s courts of appeal have applied varying and confusing standards to cases like these, and outcomes in both trial and appellate courts have been unpredictable and sometimes conflicting.1

Technically, under Louisiana law, these cases would fall under La. C.C. art. 133’s test for non-parent custody. Under Article 133, a non-parent seeking custody bears the heavy burden of proving that “substantial harm” would result to the child if the legal parent is awarded custody. In multiple cases, however, Louisiana’s trial and appellate courts have applied a standard much more akin to a “best interest” test if the child or children’s conception occurred during the relationship and as a result of a shared decision, or where the parent with the biological or adoptive filiation had previously consented to prior a judgment of shared or joint custody.2

It is worth noting that, in 2019, Louisiana’s Fifth Circuit Court of Appeal decided an unusual case that created helpful precedent for parents of shared children who do not meet the current legal definition of “parent” in Louisiana; at the same time, the case created dangerous precedent for domestic violence victims. In Ferrand v. Ferrand, the Fifth Circuit reversed a trial court order that had denied custodial rights to Vincent Ferrand, a transgender man who was not a “legal” parent under Louisiana law but had acted as a parent to the children for the first four years of their lives. Mr. Ferrand had also been convicted for battery of the children’s mother, after physically attacking her in the children’s school yard and spitting on her in front of the children. The mother had been awarded a permanent order of protection and, before that, had filed for protective orders on grounds that Mr. Ferrand had abused her and threatened to shoot her in the head when she attempted to retrieve the children from him. In the custody case, the Fifth Circuit overruled the trial court’s credibility determinations and findings of abuse (despite a conviction), and instead adopted Mr. Ferrand’s factual allegations about the mother in the “Facts” of its opinion. The court then conducted a best interest analysis based on those “Facts,” discredited expert testimony from the children’s therapist that the children feared Mr. Ferrand and that contact with him created anxiety and behavior problems and concluded that the mother had “alienated” the children from Mr. Ferrand. The Fifth Circuit awarded Mr. Ferrand shared custody of the children, five years after the children had last seen or visited with him.3

The Ferrand decision created legal precedent that may be helpful for LGBTQ parents with no biological or adoptive filiation to their children. But the opinion reflected palpable disdain for the mother, who had been subjected to abuse. The court made repeated reference to the mother’s “choice” to stay in a relationship with Mr. Ferrand for eleven years. And it opined that three earlier incidents of domestic violence, including a strangulation, even if true, would have “no bearing on the children’s psychological and emotional well-being” because of their remoteness in time.4  The court referred to the video-recorded incident during which Mr. Ferrand flung the mother to the ground by her hair and spit in her face in front of children and schoolteachers as “extremely poor judgment.” And although the trial court concluded that Mr. Ferrand’s own conduct had led to the children’s “alienation” from him, the Fifth Circuit concluded instead that the mother was at fault for having alienated the children from Mr. Ferrand. The Court applied a lower legal burden to Mr. Ferrand—who had been convicted for his abuse of an intimate partner—than the PSFVRA burden that would have applied to a “legal” parent under Louisiana law.

• 1Cook v. Sullivan, 53,741, p. 20 (La. App. 2 Cir. 11/18/20), 307 So. 3d 1121, 1130, aff’d, 2020-01471 (La. 9/30/21); 330 So. 3d 152 (finding that shared custody between unwed same-sex couple was improper under 133 standard). But see Ferrand v. Ferrand, 18-618, p. 1 (La. App. 5 Cir. 12/6/19), 287 So. 3d 150 (finding that joint custody between unmarried same-sex couple was appropriate under 133 standard).
• 2See In re J.E.T., 2016-0384, p. 14 (La. App. 1 Cir. 10/31/16), 211 So. 3d 575 (explaining the approach under Article 133 to nonparent custody termination).
• 3Ferrand, 287 So. 3d 150.
• 4This rationale conflicts directly with the Post-Separation Family Violence Relief Act, which imposes no recency requirement for family violence and does not give courts discretion to conclude that family violence committed by one parent against the other has no bearing on children’s well-being.