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.