Ashley Carter

Richard Kelley

Over the course of the past four years, immigrant survivors of domestic violence have faced an increasingly hostile landscape.

In June 2018, then-Attorney General Jeff Sessions issued an order instructing U.S. immigration courts to stop granting asylum to victims of domestic abuse, ending nearly two decades of protection.[1] The Trump administration's policies of courthouse detentions and expanded home raids by the U.S. Immigration and Customs Enforcement worsened fears that filing for a protection order or custody could result in deportation.[2]

Domestic violence advocates have become increasingly alarmed at the chilling effect that these immigration policies have had on an immigrant survivor's willingness to pursue relief in civil court.[3] This hostile landscape has become even more dangerous during the COVID-19 pandemic, where reports of domestic violence incidences have skyrocketed.

According to a February report released by the National Commission on COVID-19 and Criminal Justice, incidences of domestic violence increased 8.1% after jurisdictions implemented pandemic-related lockdown orders; the report attributes this increase to various factors, including increased unemployment, financial insecurity, substance abuse and stress.[4]

While the Biden administration has taken steps to roll back the tide of these immigration policies, the administration has also recognized that the process will take quite some time.[5]

For example, on Feb. 2, Biden signed an executive order requiring that the attorney general and the secretary of homeland security conduct a "comprehensive examination" of current asylum law to "evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards."[6]

The order provides 180 days for this review, but does not make clear when current rules might be changed or what the immediate impact will be on asylum seekers currently claiming protection based on domestic violence.

On Feb. 18, the Biden administration also issued new guidelines meant to focus enforcement efforts on national security risks and risks to public safety; however, these guidelines do not prohibit ICE agents from arresting undocumented individuals who fall outside of those focus areas.[7]

The fear created by harsh immigration policies, coupled with the confusion of complex and frequently changing laws, leaves immigrant survivors vulnerable to abuse.

For example, one of our clients — we'll call her Sarah to protect privacy — endured years of physical abuse by her husband in their home country before coming to the U.S. Sarah's husband had applied for a green card to move to the U.S. himself, and he included their son in the application without her knowledge or consent. When he told her that he was taking their child to the U.S., she knew that she had to find a way to be with her son.

She came to the U.S. on a tourist visa and was forced to return to her home country every six months to renew that visa. Sarah's husband did not physically abuse her in the U.S. because he feared he would be arrested, but he continued to emotionally abuse her. When she told him that she wanted to leave the relationship, Sarah's husband told her that he would call ICE and the U.S. Citizenship and Immigration Services and have her deported.

Even though she knew that she was in the country legally, Sarah was not familiar with immigration laws and was scared that her husband could follow through on the threat and have her status revoked. Terrified that she would be separated from her son, Sarah stayed in the relationship and continued to endure emotional abuse and threats of harm for several more years.

Attorneys practicing at the intersection of domestic violence and immigration law often feel frustrated by the enormous roadblocks to relief for immigrant survivors and the slow crawl of federal immigration reform — and the last several years has only exacerbated those challenges. However, as several jurisdictions and courts begin to open up and more individuals feel safe about reaching out for legal assistance, it is incumbent on practitioners to expand their toolkits to address the unique needs of immigrant survivors of domestic violence.

Recent legislation enacted in some states has increased protections for immigrant survivors without attracting the contentious fights that accompany immigration reform. An examination of the District of Columbia blackmail statute, amended in 2019, reveals a blueprint for the ways that state laws can provide more effective relief for immigrant survivors of domestic violence.

Changing State Laws to Address National Problems

Sarah's story is representative of a systemic problem facing immigrant survivors of domestic violence. Abusers often use their partners' immigration status and fear of deportation as a tool of power and control.

A 2003 study of immigrant victims of domestic violence submitted to the U.S. Department of Justice found that 75% of victims reported that their abusers used their immigration status against them.[8] In the same study, 40% of abusers threatened to call immigration authorities or report the victim's immigration status to authorities.[9]

Experts in domestic violence recognize that emotional and psychological abuse, including threats regarding immigration status or deportation, are themselves forms of domestic violence.[10]

While emotional and psychological abuse are widely understood to be part and parcel of the power and control utilized by abusers, a survivor's ability to seek protection from an abuser based on these claims varies by state.

A small minority of states, including Nevada and New Mexico, include forms of emotional abuse within their definition of domestic abuse.[11] Other states, such as Kentucky and Georgia, define domestic violence narrowly as a set of specific criminal offenses.[12]

Many states, including the District of Columbia, are somewhere in between.

For example, D.C. law does not provide a narrow list of offenses, but it does limit the definition of domestic violence to include only criminal offenses against a person or threats to commit those offenses.[13] However, changes made in 2019 to D.C.'s blackmail statute have opened a new avenue for immigrant survivors to access protection.[14]

Prior to the 2019 amendments, D.C. Code 22-3252 provided the following definition of blackmail:


While this version of the blackmail statute covered a broad range of actions, the D.C. Council recognized that the law did not adequately address situations involving threats to notify law enforcement of an individual's immigration or citizenship status.[15]

While the statement of purpose and effect from the council's Committee on the Judiciary and Public Safety did not affirmatively state that the bill addressed domestic violence situations, the committee cited the testimony of a number of organizations that provide assistance to survivors of domestic violence, who argued that the blackmail statute as written did not adequately protect survivors.

The Sexual Blackmail Elimination and Immigrant Protection Amendment Act took effect on April 26, 2019, amending D.C. Code Section 22-3252.[16] Pursuant to the amendment, Section 22-3252 now includes the following language:


This language explicitly covers situations like Sarah's, where an abuser threatens to expose a survivor's immigration status in order to force a survivor to stay in the relationship or keep quiet about abuse. As outlined below, the new language of the D.C. blackmail statute opens the door for immigrant survivors of domestic violence to obtain important forms of protection and relief.

Expanding Access to the Civil Protection Order Process

In addition to creating criminal penalties for abusers who commit blackmail, the D.C. Council has also provided a new way for survivors to access an important domestic violence prevention tool: a civil protection order.

The civil protection order process is often the first step taken by a survivor of domestic violence to obtain protection from an abuser. A CPO can include numerous forms of relief for survivors, including a stay-away and no-contact order, temporary custody of children, an order for the abuser to vacate a shared residence, financial compensation for damaged property or medical bills, and orders for various counseling programs.[17]

However, in order to obtain a CPO in the District of Columbia, the survivor must allege that the abuser either committed, or threatened to commit, a criminal offense against him or her.[18]

In the past, survivors have struggled to obtain protection orders in situations where the only abuse that the survivor could prove in court was mental or emotional abuse. By explicitly criminalizing threats to expose a survivor's immigration status, the amended blackmail statute provides a new opportunity for survivors to qualify for legal protection from their abusers.

Expanding Access for Immigrant Victims to Immigration Relief

In addition to the expanded scope of relief through the civil protection order process, immigrant victims of domestic violence will likely be able to more readily access federal immigration relief and move toward permanent status in the United States.

As one example, victims of blackmail are eligible for U nonimmigrant status under federal law, colloquially referred to as a U visa.

The U visa was created through the passage of the Victims of Trafficking and Violence Protection Act in 2000 and was intended to protect immigrant communities when they came forward to report crimes and cooperate with police or other officials in their investigation and prosecution of crimes.[19]

In order to be granted U nonimmigrant status, an individual must show they: (1) are the victim of a qualifying criminal activity, (2) have suffered substantial physical or mental abuse as a result of the criminal activity; (3) have information about the criminal activity; (4) were helpful, are helpful, or are likely to be helpful to law enforcement in the investigation or prosecution of the crime; and (5) the crime occurred in the United States or violated U.S. laws.

If an individual demonstrates these elements and is otherwise admissible (or able to obtain a waiver of any inadmissibility grounds), they can be granted U nonimmigrant status and can eventually apply to become a legal permanent resident in the United States.[20] Importantly, the law governing U visas provides a specific list of qualifying crimes, one of which is blackmail.

D.C.'s expansion of the blackmail law to include the use of immigration status to coerce someone into performing (or not performing) certain actions is a critical protection for immigrant victims of domestic violence. And by expanding what is covered by the blackmail statute, D.C. has created meaningful protections for domestic violence victims too afraid to come forward due to threats to their (or their children's) permanency in the United States.

The introduction of the U.S. Citizenship Act last month[21] offers a fresh breath to U nonimmigrant status for survivors of domestic violence. In part, the new legislation proposes an expansion of available visas from 10,000 per year to 30,000 per year. This change is predicted to drastically reduce the wait time for this path to safety and security, which can currently take nearly a decade.

Additionally, D.C.'s new blackmail statute — as discussed above — can lead to a civil protection order for victims of domestic violence or to criminal prosecution of an abuser. Adjudicated civil protection orders or criminal prosecution can be important supporting evidence for applications under the federal Violence Against Women Act. Immigrant survivors of domestic violence can use this evidence to qualify for VAWA petitions or battered spouse waivers,[22] either of which permits the applicant to move forward in a family-based petition without their abusive sponsor's knowledge or consent.[23]

While abusive behavior, including psychological or emotional harm, has always been recognized under VAWA, because there was not a specific law or statute protecting immigrant victims from this harm, it required more documentation and was a less certain path to citizenship.

With legal recognition of this abusive behavior, victims in D.C. will now have more readily available options to gain immediate protection through a civil protection order and be able to use the documents provided through the legal system as additional support for their request for immigration relief.

Takeaways for Attorneys and Advocates

Unfortunately, the use of immigration status as another form of power and control is not universally recognized; and even when it is recognized, is not always treated in the same way as physical abuse.[24] This means that these types of protections are not available uniformly to immigrant victims, and instead are only available to those who happen to live in specific geographic areas, like D.C.

Because many of these laws were only recently implemented, many immigration victims are not aware that threatening to harm them through their immigration status is considered a form of abuse. Here are some steps attorneys and advocates can take to help.

Check your state's law.

If you are unfamiliar with the law in your jurisdiction, look up how your jurisdiction may protect individuals who are victims of abuse based on their immigration status. Sometimes, these protections can be found in blackmail or extortion statutes, but they may also be codified elsewhere. If your jurisdiction does not have these protections, you may be able to advocate for these protections to be adopted.

Build community awareness of protections for status abuse.

Even if your jurisdiction does provide protections, that is only part of the challenge. Awareness of these protections for immigrant victims is critical.

Unfortunately, immigrant victims often face various barriers to having the knowledge and awareness they need to seek safety from their abusers, including language barriers; lack of familiarity with U.S. culture, laws or organizations; and fear of deportation.[25]

All of these (and other) concerns can create additional challenges for immigrant domestic violence victims. That is why it is so critical that advocates in the community raise awareness of the availability of this relief, either through our own work or in partnership with other community organizations.

Argue under existing law, where possible.

Even if your jurisdiction does not explicitly name immigration status as part of its extortion or blackmail statute, advocates can explore whether, under existing law, an argument can be made that threatening immigration status already falls within the current law.

Unfortunately, threats to immigration status are a common way to exert power and control over domestic violence victims, particularly when children are involved. Creative advocacy on behalf of immigrant victims is essential to creating safe and stable options for immigrant victims to exit abusive situations.

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Ashley Carter is an Equal Justice Works fellow at the DC Volunteer Lawyers Project, where she manages its Protection Order Clinic at the D.C. Superior Court.

Richard Kelley is managing attorney of the immigration and child advocacy practices at the DC Volunteer Lawyers Project.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See Katie Benner and Kaitlin Dickerson, Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum, N.Y. Times, June 11th, 2018, https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html.

[2] See Rebecca Tan, Amid immigration crackdown, undocumented abuse victims hesitate to come forward, Washington Post, June 30, 2019, https://www.washingtonpost.com/local/social-issues/amid-immigration-crackdown-undocumented-abuse-victims-hesitate-to-come-forward/2019/06/30/3cb2c816-9840-11e9-830a-21b9b36b64ad_story.html.

[3] See id.

[4] National Commission on COVID-19 and Criminal Justice, "Impact Report: COVID-19 and Domestic Violence Trends." (February 23, 2021). https://covid19.counciloncj.org/2021/02/23/impact-report-covid-19-and-domestic-violence-trends/.

[5] Jarret Renshaw and Nandita Bose, White House says it needs time to put in place a 'moral', 'humane' immigration process, Reuters, Feb. 2nd, 2021, https://www.reuters.com/article/us-usa-biden-immigration-process/white-house-says-it-needs-time-to-put-in-place-a-moral-humane-immigration-process-idUSKBN2A22MH.

[6] Department of Justice, Executive Officer for Immigration Review, Guidance Regarding New Regulations Government Procedures for Asylum and Withholding of Removal and Credible Fear and Reasonable Fear Reviews (Dec. 11, 2020), https://www.justice.gov/eoir/page/file/1344511/download.

[7] The Associated Press, Biden administration reverts to targeted immigration enforcement, (Feb. 19, 2021), https://www.nbcnews.com/politics/immigration/biden-administration-reverts-targeted-immigration-enforcement-n1258318.

[8] See Edna Erez and Nawal Ammar, Violence Against Immigrant Women and Systemic Responses: An Exploratory Study, 97 (2003), https://www.ncjrs.gov/pdffiles1/nij/grants/202561.pdf.

[9] See id.

[10] See Types of Abuse, National Domestic Violence Hotline, https://www.thehotline.org/resources/types-of-abuse/; https://ncadv.org/learn-more; Learn More, National Coalition Against Domestic Violence, https://ncadv.org/learn-more ("It is important to note that domestic violence does not always manifest as physical abuse. Emotional and psychological abuse can often be just as extreme as physical violence. Lack of physical violence does not mean the abuser is any less dangerous to the victim, nor does it mean the victim is any less trapped by the abuse.").

[11] See Nev. Rev. Stat. Ann. § 33.018(1)(e) ("Domestic violence occurs when a person commits one of the following acts...(e) A knowing, purposeful or reckless course of conduct intended to harass the other person.") N.M. Stat. Ann. § 40-13-2(D)(2)(b) ("domestic abuse...means an incident by a household member against another household member consisting of or resulting in:... severe emotional distress).

[12] See Ky. Rev. Stat. Ann. § 403.720(1) ((defining "domestic violence and abuse" as physical injury, serious physical injury, stalking, sexual abuse, strangulation, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, strangulation, or assault between family members or members of an unmarried couple); Ga. Code. Ann. § 19-13-1(2) (defining "family violence" as encompasses the following offenses: battery, simple battery, simple assault, assault, stalking, criminal damage to property, unlawful restraint, criminal trespass, or any felony. § 19-13-1(2).).

[13] See D.C. Code 16-1001(7) ("'Intimate partner violence' means an act punishable as a criminal offense that is committed or threatened to be committed by an offender…").

[14] See Comm. on the Judiciary and Public Safety, D.C. Council, Committee Report on B22-0472, the "Sexual Blackmail Elimination and Immigrant Protection Amendment Act of 2018," (2018), available at https://lims.dccouncil.us/downloads/LIMS/38850/Committee_Report/B22-0472-CommitteeReport1.pdf.

[15] See id.

[16] Council of the District of Columbia, Legislation Detail, "B22-0472 - Protection from Sexual Extortion Amendment Act of 2017 (now known as "Sexual Blackmail Elimination and Immigrant Protection Amendment Act of 2018"), https://lims.dccouncil.us/Legislation/B22-0472.

[17] See D.C. Code § 16-1005(c).

[18] See D.C. Code § 16-1001 (Defining the violence that must be alleged in a Petition for Civil Protection Orders as "An act punishable as a criminal offense that is committed or threatened to be committed by an offender upon a person.").

[19] See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000).

[20] 8 U.S.C. §1101(a)(15)(U); see also U.S. Citizens and Immigration Services, "Victims of Criminal Activity: U Nonimmigrant Status" https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity-u-nonimmigrant-status.

[21] U.S. Citizenship Act (Feb. 18, 2021). https://www.congress.gov/bill/117th-congress/house-bill/1177.

[22] Victims of domestic violence, under the Violence Against Women Act, can move forward in their immigration process without the knowledge or consent of the U.S. citizen or legal permanent resident spouse. When the victim of domestic violence files an initial request for legal permanent residence, a VAWA self-petition is available to the petitioner should they meet with requirements for a self-petition. If a victim has already received their conditional permanent resident card through a joint application for a conditional permanent resident card, but, because of domestic violence, cannot file jointly to waive the conditional designation, the victim can request a battered spouse waiver, permitting them to move forward in the application process without the knowledge or consent of the abusive spouse.

[23] U.S. Citizens and Immigration Services, Battered Spouse, Children, and Parents, https://www.uscis.gov/humanitarian/battered-spouse-children-and-parents.

[24] See supra notes 3-6.

[25] See Abuse in Immigrant Communities, National Domestic Violence Hotline, https://www.thehotline.org/resources/abuse-in-immigrant-communities/.