International Refugee Assistance Project v. Trump

Filing 176

AMICUS CURIAE/INTERVENOR BRIEF by Tahirih Justice Center, The Asian Pacific Institute on Gender-Based Violence, Casa de Esperanza, and National Domestic Violence Hotline, Amicus Supporting Appellants and Affirmance in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 04/19/2017. [1000065211] [17-1351] Scott Winkelman

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No. 17-1351 IN THE United States Court of Appeals for the Fourth Circuit INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al., Plaintiffs-Appellees, v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., Defendants-Appellants. On Appeal from the United States District Court For the District of Maryland, No. 2:17-cv-00361 The Honorable Theodore D. Chuang BRIEF OF AMICI CURIAE TAHIRIH JUSTICE CENTER, THE ASIAN PACIFIC INSTITUTE ON GENDER-BASED VIOLENCE, CASA DE ESPERANZA, AND THE NATIONAL DOMESTIC VIOLENCE HOTLINE IN SUPPORT OF APPELLEES AND AFFIRMANCE Scott L. Winkelman Luke van Houwelingen Avi Rutschman Justin Kingsolver CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Tel: (202) 624-2500 Fax: (202) 628-5116 Counsel for Amici Curiae CORPORATE DISCLOSURE STATEMENT The amici curiae herein, Tahirih Justice Center, The Asian Pacific Institute on Gender-Based Violence, Casa de Esperanza, and the National Domestic Violence Hotline, through their undersigned counsel, submit this Disclosure Statement pursuant to Federal Rule of Appellate Procedure 26.1. All of these amici curiae are non-stock, nonprofit organizations, none of which has any parent company, and no person or entity owns them or any part of them. They are not aware of any publicly held corporations not a party to this proceeding with a financial interest in its outcome. i TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ....................................................... i INTEREST OF AMICI CURIAE ........................................................................... 1 SUMMARY OF THE ARGUMENT ..................................................................... 3 ARGUMENT .......................................................................................................... 7 I. THE ORDER TARGETS COUNTRIES WHERE VIOLENCE AGAINST WOMEN AND CHILDREN IS PARTICULARLY SEVERE. ...................................................................................................... 7 II. BY JEOPARDIZING THE T AND U VISA PROGRAMS, THE ORDER PUTS VICTIMS AT RISK AND UNDERMINES LAW ENFORCEMENT. ................................................ 10 A. Congress designed the T and U Visa programs to empower immigrant survivors of gender-based and domestic violence and to make our communities safer. .................. 10 B. The ninety-day travel ban for nationals of six countries impairs one of the most important forms of humanitarian relief offered by the T and U visa programs—family reunification through derivative visas. ............................................. 12 III. THE “CASE-BY-CASE” WAIVER PROVISIONS ARE UNDERDEVELOPED AND OF LITTLE CONSOLATION TO VICTIMS OF ABUSE. ........................................................................ 17 IV. THE ORDER DETERS IMMIGRANT SURVIVORS OF DOMESTIC VIOLENCE FROM ACCESSING THE JUSTICE SYSTEM..................................................................................................... 19 CONCLUSION ..................................................................................................... 22 ii TABLE OF AUTHORITIES Page(s) Cases Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) ............................................................................... 4 Korematsu v. United States, 323 U.S. 214 (1944) ............................................................................................ 22 Moore v. City of East Cleveland, 431 U.S. 494 (1977) ............................................................................................ 14 Statutes and Legislative History 8 U.S.C. § 1101(a)(15)(T)(i)(I)–(IV) (2013) ........................................................... 11 8 U.S.C. § 1101(a)(15)(U)(i)(I)–(IV) (2013) ........................................................... 11 8 U.S.C. § 1255(l-m) (2013) .................................................................................... 12 22 U.S.C. § 7101(b)(5) (2013) ................................................................................. 13 H.R. Rep. No. 106-487 (1999) ................................................................................. 11 Pub. L. No. 106-386, § 1513, 114 Stat.1464 (2000)............................................4, 10 Regulations 8 C.F.R. § 214.11(d)(11) .......................................................................................... 12 8 C.F.R. § 214.11(k)(1) ............................................................................................ 14 8 C.F.R. § 214.11(k)(2) ............................................................................................ 14 8 C.F.R. § 214.14(c)(7) ............................................................................................ 12 8 C.F.R. § 214.14(f)(1) ............................................................................................ 14 8 C.F.R. § 214.14(f)(2) ............................................................................................ 14 iii Executive Orders Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 30, 2017).................................... 20 Exec. Order No. 13780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) ..........................passim Other Authorities Ahmed Shaheed, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, U.N. Human Rights Council (Aug. 27, 2014) ....................................................................................... 9 Alytia A. Levendosky, et al., The Social Networks of Women Experiencing Domestic Violence, 34 AM. J. OF CMTY. PSYCHOLOGY 95 (2004) ...................................................................................... 13 Andy J. Semotiuk, What Trump’s Presidency Means For Illegal Immigrants And Immigration To The U.S., Forbes (Nov. 10, 2016). ................. 20 Beth Lubetkin, Violence Against Women and the U.S. Immigration Laws, 90 AM. SOC’Y INT’L L. PROC. 616 (1996)................................................. 21 Denise Brennan, Key Issues in the Resettlement of Formerly Trafficked Persons in the United States, 158 U. PA. L. REV. 1581 (2010) .................................................................................................................. 16 Domestic Violence National Statistics, National Coalition Against Domestic Violence, 1 (2015) ................................................................................ 3 Elizabeth M. McCormick, Rethinking Indirect Victim Eligibility for U Non-Immigrant Visas to Better Protect Immigrant Families and Communities, 22 Stan. L. & Pol’y Rev. 587 (2011)........................................... 22 Emma Lazarus, “The New Colossus” (1883) ............................................................ 6 Figures at a Glance, U.N. High Comm’r for Refugees (Jun. 20, 2016) ............... 7, 8 Global and Regional Estimates of Violence Against Women: Prevalance and Health Effects of Intimate Partner Violence and Non-Partner Sexual Violence, World Health Organization Dep’t of Reproductive Health & Research, 2 (2013).......................................................... 3 iv Heidi Glenn, Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases In Denver, NPR (Mar. 21, 2017) ................................................... 21 https://cgrs.uchastings.edu/our-work/matter-r (accessed Apr. 19, 2017) ..................................................................................................................... 4 James Queally, ICE agents make arrests at courthouses, sparking backlash from attorneys and state supreme court, Los Angeles Times (Mar. 16, 2016) ........................................................................................ 21 Jeremy Diamond, Trump orders construction of border wall, boosts deportation force, CNN (Jan. 25, 2017) ............................................................. 20 Jonathan Blitzer, The woman arrested by ICE in a courthouse speaks out, The New Yorker (Feb. 23, 2017) ................................................................ 20 Kathy Bosch & M. Betsy Bergen, The Influence of Supportive and Nonsupportive Persons in Helping Rural Women in Abusive Partner Relationships Become Free From Abuse, 21 J. OF FAMILY VIOLENCE 311 (2006) .......................................................................................... 16 Lisa Goodman, et al., Obstacles to Victims’ Cooperation with the Criminal Prosecution of Their Abusers: The Role of Social Support, 14 VIOLENCE AND VICTIMS 427 (1999)................................................ 13 Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010) ................................................................................... 18 Marty Schladen, ICE detains alleged domestic violence victim, El Paso Times (Feb. 15, 2017) ................................................................................ 20 Michele Black et al., National Intimate Partner and Sexual Violence Survey: 2010 Summary Report, Centers for Disease Control and Prevention, 2 (2011) ............................................................................................. 3 National Latin@ Network for Healthy Families and National Domestic Violence Hotline, Realidades Latinas: A National Survey on the Impact of Immigration and Language Access on Latina Survivors (April 2013) ............................................................................ 21 P.R. Lockhart, Immigrants Fear a Choice Between Domestic Violence and Deportation, Mother Jones (Mar. 20, 2017) ................................................ 20 v Somalia, Special Rep. of the Sec’y-Gen. for Sexual Violence in Conflict, United Nations (Mar. 25, 2015)............................................................. 8 U.S. Dep’t of State, Country Report on Human Rights Practices 2015, Iran § 6 .................................................................................................................. 9 U.S. Dep’t of State, Country Report on Human Rights Practices 2016, Somalia § 1(g) ....................................................................................................... 8 U.S. Dep’t of State, Country Report on Human Rights Practices 2016, Syria § 1(g) ....................................................................................................... 7, 8 vi INTEREST OF AMICI CURIAE1 Amici are a coalition of organizations united in the goal of serving survivors of gender-based and domestic violence. Tahirih Justice Center (“Tahirih”) is a national non-profit that has served courageous individuals fleeing violence since 1997. Through direct services, policy advocacy, and training and education, Tahirih protects immigrant women and girls and promotes a world where they can enjoy equality and live in safety and dignity. Tahirih serves immigrant women and girls who have rejected violence, but face incredible obstacles to justice, including language barriers, lack of resources, and a complex immigration system. The Asian Pacific Institute on Gender-Based Violence is a national resource center on domestic violence, trafficking, and other forms of gender-based violence in Asian and Pacific Islander communities. The institute serves a national network of advocates and community-based service programs that work with Asian and Pacific Islander survivors, and is a leader on providing analysis on critical issues facing victims in the Asian and Pacific Islander community. The institute aims to 1 In accordance with Federal Rule of Appellate Procedure 29(a)(2), amici curiae state that all parties have consented to the filing of this amicus brief. No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of the brief. No person other than amici curiae or its counsel made a monetary contribution to the preparation or submission of this brief. Fed. R. App. P. 29(c)(5). 1 strengthen advocacy, change systems, and prevent gender violence through community transformation. Casa de Esperanza seeks to mobilize Latinas and Latino communities to end domestic violence. Founded in 1982 to provide emergency shelter for women and children experiencing domestic violence in Minnesota, in 2009 Casa de Esperanza launched the National Latin@ Network for Healthy Families and Communities. The National Latin@ Network is a national institute focused on preventing and addressing domestic violence in Latino communities. It organizes national and regional events and provides training and consultations to practitioners and advocates throughout the United States, as well as in Latin America. The organization also engages in federal and state public policy advocacy and conducts research on issues that affect Latino communities. The National Domestic Violence Hotline (“NDVH”) was established in 1996 as part of the Violence Against Women Act. It operates a free, anonymous and confidential, around-the-clock hotline available via phone, internet chat, and text services to offer victims of domestic violence compassionate support, crisis intervention, safety planning and referral services to enable them to find safety and live lives free of abuse. A substantial number of the victims NDVH serves are immigrants or request help related to immigration-related issues. From May 2015 through March 2017, for example, over 10,000 victims contacted NDVH 2 identifying as immigrants and over 6,500 of them sought help related to immigration concerns. SUMMARY OF THE ARGUMENT Violence against women and children is a global crisis. Worldwide, one in three women will suffer domestic or sexual abuse in her lifetime. 2 In the United States, a woman is assaulted or beaten every nine seconds. 3 This abuse is often intimate or familial, carried out by the victim’s partner or parent. 4 The abuser dominates the victim’s life so fully that any hope for escape from the abuser is often out of reach—absent a robust system of social and legal support. For decades the United States has provided such support for its own citizens through an array of support systems and legal protections, from states criminalizing marital rape to Congress authorizing, then reauthorizing, the 2 Global and Regional Estimates of Violence Against Women: Prevalance and Health Effects of Intimate Partner Violence and Non-Partner Sexual Violence, World Health Organization Dep’t of Reproductive Health & Research, 2 (2013), http://www.who.int/reproductivehealth/publications/violence/9789241564625/en/. 3 Domestic Violence National Statistics, National Coalition Against Domestic Violence, 1 (2015), http://ncadv.org/files/National%20Statistics%20Domestic%20Violence%20NCAD V.pdf. 4 Michele Black et al., National Intimate Partner and Sexual Violence Survey: 2010 Summary Report, Centers for Disease Control and Prevention, 2 (2011) (“More than 1 in 3 women (35.6%) . . . in the United States have experienced rape, physical violence, and/or stalking by an intimate partner in their lifetime.”), https://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf. 3 Violence Against Women Act (“VAWA”), building a framework of federal protections for domestic violence victims and creating much-needed criminal justice system and community-based responses to gender-based crimes. While protecting its own, our nation has not closed its eyes, or its doors, to victims of abuse globally. Through VAWA and other legislation, Congress has extended protections to non-citizens, creating new pathways to safety, residency, and citizenship for immigrant, undocumented, and trafficked victims of violence. Congress created the U and T Visa programs, limiting criminals’ ability to transform our nation’s immigration laws into tools of abuse.5 Our immigration courts have granted asylum to refugees escaping gender-based violence, demonstrating our nation’s commitment to combat gender-based violence by recognizing gender-based persecution as grounds for asylum and refugee status.6 In one pen stroke, the President’s Executive Order 13780 (“the Order”) now endangers these protections and upends decades of moral leadership. 5 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106386, § 1513, 114 Stat.1464, 1533-1537 (2000). 6 E.g., Matter of R-A-, in which three U.S. Attorney Generals took personal jurisdiction (Board of Immigration Appeals and Department of Justice proceedings discussed at https://cgrs.uchastings.edu/our-work/matter-r (accessed Apr. 19, 2017)); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). 4 The Order singles out six nations where survivors of gender-based violence are particularly imperiled, thereby targeting for exclusion women and children in desperate need of the protections Congress has historically afforded. In the name of serving America’s public good, the Order also creates a public travesty by weakening the tools Congress has provided law enforcement officials to prosecute those who commit violence against women and children. The U and T Visa programs are designed to incentivize victims of domestic violence, sexual abuse, and trafficking to aid law enforcement in prosecuting abusers. The Order strips the beneficiaries of these programs of social support systems designed by Congress to help survivors of gender-based violence recover from their abuse and reintegrate into society. Survivors with U or T nonimmigrant status will no longer be able to seek derivative visas for family members, denying them an important means of combating the profound isolation that abusers impose through gender-based violence and domestic abuse. Through its hostile, ungenerous spirit, the Order also creates a broader—and very real—danger to noncitizen women and children survivors of gender-based violence. It sends the message that the United States, their governments, and officials are no longer friends to be trusted and turned to for protection and support, but threats to be feared. It compounds aversion to law enforcement, providing abusers yet another tool of control and coercion. This in turn 5 undermines an overriding priority of the T and U visa programs—to build trust in law enforcement and cultivate cooperation between survivors and officials to bring criminals to justice. The Order condemns survivors to remain in abusive situations rather than come forward—and exposes our communities to criminals who might otherwise have been brought to justice. Ours has long been a nation personified by a “mighty woman with a torch, . . . her name Mother of Exiles” who would challenge despots and tyrants to “[s]end these, the homeless, tempest-tost,” with her “lamp [lifted]” to welcome them in.7 Congress has honored this vision by crafting a framework of protections developed over decades across Administrations and party lines, one that enables survivors to escape extreme violence and rebuild a life of safety and basic humanity. The Order departs from this salutary vision, to no good end. The harm it will cause—and has already caused—victims of gender-based violence is all too real, as amici see in their work every day. It slams the nation’s door on displaced women and girls vulnerable and regularly subjected to gender-based violence. It impedes effective police work. It makes Americans and would-be Americans less safe. Amici respectfully request that this Court affirm. 7 Emma Lazarus, “The New Colossus” (1883). 6 ARGUMENT I. The Order Targets Countries Where Violence Against Women And Children Is Particularly Severe. The Order zeroes in on six nations—Iran, Libya, Somalia, the Sudan, Syria, and Yemen—where gender-based and domestic violence is particularly extreme and pervasive. Survivors in these nations are among those in greatest need of the protections United States law provides. The Order, perversely, singles out these women and children by denying them those very protections. Take Syria. Its enduring civil war has incited an epidemic of gender-based violence. In 2016, more refugees—4.9 million—fled Syria than any other nation on earth.8 The United States State Department recently reported that, since the conflict there began, Syrian government forces have committed over 7,600 incidents of sexual abuse against Syrian women.9 These forces exploit civil war as a license to target women for sexual abuse and use violent rape as a tool of warfare. The State Department’s report notes “an increased use of sexual violence 8 Figures at a Glance, U.N. High Comm’r for Refugees (Jun. 20, 2016), available at http://www.unhcr.org/en-us/figures-at-a-glance.html. 9 U.S. Dep’t of State, Country Report on Human Rights Practices 2016, Syria § 1(g). 7 against women before granting permission to depart besieged areas or to return with medical supplies and food.”10 Somalia is no different. Somali women and girls endure extreme violence from which this Order will afford no relief. Decades of armed conflict have eroded Somalia’s central government. Violent militias have capitalized on the resulting law enforcement vacuum to commit gender-based violence with impunity.11 These violent acts, which include rape and female genital mutilation/cutting, are often carried out by clan militias, al-Shabaab, members of the Somalia National Army and Somali police forces, and even soldiers enlisted in the African Union’s mission in Somalia.12 This dire crisis has led more than a million Somalis to flee the country as refugees.13 Even in more stable nations, legal systems fail to protect—and sometimes actively punish—victims of gender-based violence. In Iran, women and girls endure misogynistic laws and practices that perpetuate widespread sexual 10 Id. 11 U.S. Dep’t of State, Country Report on Human Rights Practices 2016, Somalia § 1(g) (“Government forces, allied militias, men wearing uniforms, and AMISOM troops used excessive force, including torture, and raped women and girls, including IDPs. . . . [I]mpunity was the norm.”). 12 Id.; Somalia, Special Rep. of the Sec’y-Gen. for Sexual Violence in Conflict, United Nations (Mar. 25, 2015), available at http://www.un.org/sexualviolenceinconflict/countries/somalia/. 13 Figures at a Glance, supra note 8. 8 violence.14 Forced marriages are common, especially for young women. Iranian law does not recognize rape inside marriage.15 Once married, women are statutorily required to “submit” to their husbands; refusal to have sex is punishable by law.16 Unmarried victims of sexual violence face implausible evidentiary burdens—a rape victim must proffer as witnesses four Muslim men or a combination of three men and two women or two men and four women17—often disabling Iranian courts from providing recourse for victims of even the most brutal rapes. Cruelly, victims who cannot meet this burden after reporting sexual violence are themselves subject to prosecution and barbaric punishment.18 The Order bars these innocent and needful victims from seeking sanctuary in the United States. 14 Ahmed Shaheed, Report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, U.N. Human Rights Council, at ¶ 18 (Aug. 27, 2014) (66% of Iranian women have experienced domestic violence), http:// www.ohchr.org/EN/HRBodies/SP/CountriesMandates/IR/Pages/SRIran.aspx. 15 U.S. Dep’t of State, Country Report on Human Rights Practices 2015, Iran § 6. 16 Id. 17 Id. 18 Id. (a woman found to have made a false accusation of rape faces 80 lashes). 9 II. By Jeopardizing The T And U Visa Programs, The Order Puts Victims At Risk And Undermines Law Enforcement. A. Congress designed the T and U Visa programs to empower immigrant survivors of gender-based and domestic violence and to make our communities safer. Congress created T and U nonimmigrant status in 2000 when it passed the Victims of Trafficking and Violence Protection Act (“VTVPA”).19 The bill recognized that unauthorized immigrants—particularly women and children—were vulnerable to gender-based violence because their fear of deportation could outweigh their willingness to seek justice against their abusers. To that end, the legislation created a sensible quid pro quo, whereby survivors were permitted legally to remain in the United States provided they assisted law enforcement in prosecuting their abusers and traffickers. Criminals could no longer wield immigration law against their victims with impunity. Survivors of “severe forms of trafficking in persons,” such as sex and forced labor trafficking, are granted nonimmigrant status under the T program. In addition to being a trafficking survivor, those granted T program status must be present in the United States because of trafficking, agree to assist law enforcement in the prosecution or investigation of trafficking, and show that they will 19 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106386, § 1513, 114 Stat.1464, 1533-1537 (2000). 10 experience extreme hardship if removed.20 Meanwhile, survivors of domestic abuse, as well as other enumerated crimes, can access nonimmigrant status through the U program. Eligible survivors must have suffered “substantial physical or mental abuse” as a result of the crime, possess information about the crime, be willing to assist law enforcement in the investigation and prosecution of the offender, and demonstrate that the crime occurred in the United States or violated a law over which our nation has extra-territorial jurisdiction.21 The T and U status programs help empower survivors by encouraging them to seek assistance from law enforcement rather than avoid it for fear of deportation. Incentivizing this cooperation makes all communities safer, as immigrants are more likely to serve as witnesses in investigations and prosecutions. This is an important animating purpose of the programs.22 It is not the sole purpose, however. Congress also meant to provide survivors with the means to rebuild their lives and reintegrate into their communities. The programs enable survivors to 20 8 U.S.C. § 1101(a)(15)(T)(i)(I)–(IV) (2013). 21 8 U.S.C. § 1101(a)(15)(U)(i)(I)–(IV) (2013). 22 E.g. H.R. Rep. No. 106-487, at 4 (1999) (“In order to deter international trafficking and to bring its perpetrators to justice, nations . . . must . . . giv[e] the highest priority to investigation and prosecution of trafficking offenses, and . . . protect[] rather than punish[]the victims of such offenses.”). 11 seek employment.23 They create pathways to lawful permanent resident status after continued residence in the United States.24 And because return to something approaching normalcy requires a stable, nurturing domestic environment, Congress specifically authorized survivors to seek derivative status for family members overseas. The Order wreaks havoc on this carefully constructed program. B. The ninety-day travel ban for nationals of six countries impairs one of the most important forms of humanitarian relief offered by the T and U visa programs—family reunification through derivative visas. The Order, on taking effect, imposes an immediate ninety-day travel and entry ban on nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. Nationals of these countries who are outside the United States and did not have a valid visa on January 27, 2017 or on the Order’s effective date cannot enter the United States.25 There are limited exceptions. The entry ban does not apply to lawful permanent residents, foreign nationals admitted or paroled into the United States after the Order’s effective date, or foreign nationals with advance parole or an equivalent document granting entry. The Order also purports to grant consular officers and Customs and Border Patrol (“CBP”) officials case-by-case waiver 23 8 C.F.R. § 214.11(d)(11); 8 C.F.R. § 214.14(c)(7). 24 8 U.S.C.A. § 1255(l-m). 25 Order, § 3(a). 12 authority on a discretionary basis if a foreign national can make certain demonstrations.26 Even were discretion exercised—and there is credible reason to doubt it will be—the Order’s scheme is woefully inadequate. The travel ban would cripple the T and U status programs and harm the very victims of violence Congress intended them to help. A strong network of support helps survivors of gender-based violence recover and reintegrate into society.27 For immigrant women and children who find themselves strangers in a strange land upon escaping their abusers, this social construct may be available only through reunification with family. Congress recognized this, and provided in the VTVPA that individuals with T or U status could obtain derivative visas for family members residing overseas.28 Congress’ recognition of the centrality of family for 26 Order, § 3(c)(iv) (waiver permissible if (1) denial of entry during the suspension would cause undue hardship, (2) the foreign national’s entry would not pose a national security threat, and (3) such entry would be in the national interest). The Order describes scenarios in which a waiver could be appropriate, including when a foreign national seeks to enter the United States to be reunited with “a close family member . . . admitted on a valid nonimmigrant visa[.]” ). 27 Alytia A. Levendosky, et al., The Social Networks of Women Experiencing Domestic Violence, 34 AM. J. OF CMTY. PSYCHOLOGY 95, 106 (2004); Lisa Goodman, et al., Obstacles to Victims’ Cooperation with the Criminal Prosecution of Their Abusers: The Role of Social Support, 14 VIOLENCE AND VICTIMS 427, 429 (1999) (survivors may hesitate to cooperate with law enforcement because they fear losing their abusers’ social and economic support). 28 22 U.S.C. § 7101(b)(5) (2013) (“Traffickers often transport victims from their home communities to unfamiliar destinations, including foreign countries away (continued…) 13 survivors echoes the value placed on the family institution by our Constitution and in our laws.29 Generally, an individual granted T or U nonimmigrant status can petition for certain family members to receive derivative status by filing a form with United States Citizenship and Immigration Services (“USCIS”).30 In the U Visa program, derivative visas are available for the survivor’s spouse, children, and unmarried siblings under the age of eighteen.31 If the survivor is younger than age twentyone, she can petition for derivative status for her parents.32 In the T Visa program, a survivor over twenty-one can petition for derivative visas for her spouse and children, while a survivor under twenty-one can also petition for derivative visas for her parents.33 The survivor must demonstrate that the individual for whom she seeks derivative status is an eligible family member and is admissible to the United (continued…) from family and friends . . . and other sources of protection and support, leaving the victims defenseless and vulnerable.”). 29 Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (“[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”). 30 8 C.F.R. § 214.11(k)(2); 8 C.F.R. § 214.14(f)(2). 31 8 C.F.R. § 214.14(f)(1). 32 Id. 33 8 C.F.R. § 214.11(k)(1). 14 States. If USCIS denies an application, it must do so in writing, providing the survivor with an opportunity to file an administrative appeal. The Order rescinds this framework. By its terms, if a survivor’s family members are nationals of one of the six enumerated countries, they will be banned from entering the United States absent a waiver from a consular or CBP official. That waiver mechanism is far from a viable alternative to the derivative visa program, as it imposes a heightened evidentiary burden on the individual seeking entry. Rather than observe the existing statutory requirement that the survivor demonstrate familial eligibility and admissibility, the family member must now satisfy the ill-defined requirement to prove he or she is not a national security threat to the United States and that her or his entry is in the nation’s interest. Worse, the consular or CBP official’s decision not to issue a waiver is not appealable. There is thus appreciable risk that family members who wish to enter the United States under U or T visa derivative status will be turned away, without recourse. The resulting risk to survivors is grave. The support provided by family members can help a survivor reconstruct her identity after leaving her abuser. Through assistance from family, she can shed the label “victim” and re-identify as “mother”, “parent”, or “sister.” This ability both to nurture family members, and be nurtured by them, begins to free survivors from the isolation that accompanies 15 their abuse.34 The presence of a family member also provides physical protection against retaliation by the abuser. And, in instances where a survivor can obtain a derivative visa for a parent, the parent’s presence can prevent her from sliding into poverty.35 A parent can assist with chores and child care, providing the survivor a base of domestic support necessary for her to become economically self-reliant and preventing an economically-driven return to abusive relationships. The presence of family can also allay a survivor’s often justified concern that her family members are not safe overseas. An abuser or trafficker often will have connections in the survivor’s native country. Threats to the well-being of family overseas can be every bit as coercive as threatening a survivor with deportation. Likewise, an underage survivor’s ability to obtain derivative status for her parents can rebuild the family structure, preventing a survivor from becoming a ward of the state and staving off continued abuse. 34 Kathy Bosch & M. Betsy Bergen, The Influence of Supportive and Nonsupportive Persons in Helping Rural Women in Abusive Partner Relationships Become Free From Abuse, 21 J. OF FAMILY VIOLENCE 311, 311 (2006) (“Social support reduces the isolation that many abusers enforce, and is a major factor in helping women become safe and free from abuse.”). 35 Denise Brennan, Key Issues in the Resettlement of Formerly Trafficked Persons in the United States, 158 U. PA. L. REV. 1581, 1583 (2010) (T visa recipients are usually locked into “low-paying and insecure jobs” even after receiving nonimmigrant status due, in part, to a lack of social networks and support). 16 For survivors of gender-based and domestic violence, who so often are left in precarious circumstances after escaping their abusers, even the Order’s three months of “temporary” delay will cause extreme hardship. Three months for a victim can be a lifetime—or the end of one. The immediate presence of family can mean the difference between recovery and more suffering. III. The “Case-By-Case” Waiver Provisions Are Underdeveloped And Of Little Consolation To Victims Of Abuse. In the Order’s latest incarnation, the President identifies certain categories of foreign nationals who may qualify for “case-by-case” admission at the discretion of the Secretaries of State and Homeland Security.36 This discretionary and unreviewable waiver regime poses at least three problems for the populations amici serve. First, victims of gender-based violence are excluded altogether from those the Order suggests may qualify for waivers. Second, public evidence unfortunately reveals this waiver provision, like the rest of the revisions found in the Order’s new version, to be just dressing—an attorney sleight-of-hand to inoculate the Order from legal challenge.37 The Order’s 36 Order, § 3(c). 37 Donald J. Trump, White House Press Conference (Feb. 16, 2017) (“The new order is going to be very much tailored to what I consider to be a very bad decision.”); see also Donald J. Trump, Nashville, Tenn. (March 15, 2017) (“The (continued…) 17 internal inconsistency alone betrays the waiver provisions’ emptiness. As one of only two specific examples of terrorism-related crimes used to justify the refugee ban, the Order cites the 2014 conviction of “a native of Somalia who had been brought to the United States as a child refugee.”38 This refers to Mohamed Osman Mohamud, born in 1991, who fled Somalia with his family in early 1992 to a Kenyan refugee camp.39 In October 1993, the United States allowed his father, a university professor who speaks five languages, to resettle in this country.40 When Mohamud was five, the United States permitted him and his mother to join his father in Portland.41 Presented with the identical situation today, two of the Order’s “case-by-case waiver” provisions would suggest that the State Department should admit Mohamud to the United States.42 Yet by using Mohamud as an (continued…) order he blocked was a watered down version of the first order that was also blocked by another judge and should’ve never been blocked to start with.”). 38 Order, § 1(h). 39 Lynne Terry, Family of Portland’s bomb suspect, Mohamed Mohamud, fled chaos in Somalia for new life in America, The Oregonian (Dec. 4, 2010), available at http://www.oregonlive.com/portland/index.ssf/2010/12/ suspect_in_portland_bomb_plot.html. 40 Id. 41 Id. 42 Order, § 3(c)(iv) (waiver appropriate when “the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent)” with long-term permission to remain in the United States) and (continued…) 18 example of the problem the Order is supposedly addressing, it suggests that he would have been excluded as a young child had the Order then been in effect. This confusion should give this Court no comfort that the waiver provisions can cure what ails the Order. Nor can survivors of gender-based violence rest secure that waiver provisions so vague and indeterminate will preserve the protections Congress provided with the T and U programs. Even if the waiver provisions are accepted at face value, as the District Court recognized, the waiver process—and the added evidentiary burdens it imposes on applicants—“presents an additional hurdle that would delay reunification.”43 This is no small matter where that reunification, by Congress’ design, could provide a gender-based violence survivor the social support and protection she needs. IV. The Order Deters Immigrant Survivors Of Domestic Violence From Accessing The Justice System The Order also imperils the safety of immigrant survivors of gender-based and domestic violence currently in the United States by stoking a fear of law enforcement. While not affecting their legal status in name, the Order reinforces a (continued…) Order, § 3(c)(v) (waiver appropriate when “foreign national is an infant, a young child or adoptee”). 43 Appendix 785. 19 growing anxiety among undocumented survivors that any interaction with government institutions may subject them to deportation. When viewed in conjunction with other fear-inducing government actions—the Administration’s promise to deport eleven million undocumented immigrants,44 its executive order on removal priorities,45 and ICE’s invasions of the sanctity of the courtroom46—the effects on undocumented survivors of domestic violence may be profound.47 Victims may well choose to remain in the shadows rather than seek justice or 44 Andy J. Semotiuk, What Trump’s Presidency Means For Illegal Immigrants And Immigration To The U.S., Forbes (Nov. 10, 2016) (noting President Trump’s intent to deport 11 million illegal immigrants), available at www.forbes.com/sites/andyjsemotiuk/2016/11/10/what-trumps-presidency-meansfor-illegal-immigrants-and-immigration-to-the-u-s/#47ebb17347eb; Jeremy Diamond, Trump orders construction of border wall, boosts deportation force, CNN (Jan. 25, 2017), available at http://www.cnn.com/2017/01/25/politics/donald-trump-build-wall-immigrationexecutive-orders/. 45 Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 30, 2017). 46 Marty Schladen, ICE detains alleged domestic violence victim, El Paso Times (Feb. 15, 2017) (ICE arrested undocumented victim of domestic abuse as she left the courtroom where she had just obtained a protective order from her abuser, apparently based on that abuser’s tip), available at http://www.elpasotimes.com/story/news/2017/02/15/ice-detains-domesticviolence-victim-court/97965624/; Jonathan Blitzer, The woman arrested by ICE in a courthouse speaks out, The New Yorker (Feb. 23, 2017), http://www.newyorker.com/news/news-desk/the-woman-arrested-by-ice-in-acourthouse-speaks-out. 47 P.R. Lockhart, Immigrants Fear a Choice Between Domestic Violence and Deportation, Mother Jones (Mar. 20, 2017), available at http://www.motherjones.com/politics/2017/03/ice-dhs-immigration-domesticviolence-protections. 20 cooperate with local law enforcement.48 The Order discourages the very cooperation the T and U visa programs are intended to foster. This growing fear and distrust imperils the lives of immigrant survivors. Often, the fear of being deported and separated from family is all that prevents an undocumented survivor from leaving her abuser.49 That fear can be wielded as yet another tool of coercion and control in an abuser’s hands. And domestic abuse is a crime that tends to escalate over time. The longer a survivor remains with her abuser, the more likely it is she will be seriously injured or killed. By intensifying 48 Heidi Glenn, Fear of Deportation Spurs 4 Women to Drop Domestic Abuse Cases In Denver, NPR (Mar. 21, 2017), available at http://www.npr.org/2017/03/21/520841332/fear-of-deportation-spurs-4-women-todrop-domestic-abuse-cases-in-denver; National Latin@ Network for Healthy Families and National Domestic Violence Hotline, Realidades Latinas: A National Survey on the Impact of Immigration and Language Access on Latina Survivors (April 2013), available at http://www.nationallatinonetwork.org/images/files/NLNRealidades_Latinas_The_I mpact_of_Immigration_and_Language_Access_FINAL.pdf; James Queally, ICE agents make arrests at courthouses, sparking backlash from attorneys and state supreme court, Los Angeles Times (Mar. 16, 2016), available at http://www.latimes.com/local/lanow/la-me-ln-ice-courthouse-arrests-20170315story.html (describing apprehension of undocumented immigrant by ICE on the steps to the Pasadena courthouse). 49 Beth Lubetkin, Violence Against Women and the U.S. Immigration Laws, 90 AM. SOC’Y INT’L L. PROC. 616, 620 (1996) (“Fear of deportation deters abused immigrant woman from coming forward to report abuse. Just as with abuse victims who are not immigrants, batterers threaten that they will take custody of minor children. For immigrant women, that threat is all the more frightening when they are unfamiliar with the U.S. justice system, may not speak English and fear they will never see their children again if separated from them through deportation.”). 21 a distrustful atmosphere, the Order deters undocumented survivors from seeking help from law enforcement, placing them in increased danger. This dynamic does not only endanger the immigrant survivors themselves. When victims of gender-based and domestic violence avoid cooperating with law enforcement to bring their abusers to justice, communities are less safe. As former New York City Mayor Rudy Guiliani remarked, “If you are an illegal immigrant . . . and a crime is committed against you, I want you to report that, because lo and behold, the next time a crime is committed, it could be against a citizen or a legal immigrant.”50 The public has a strong interest—reflected in the T and U visa framework established by Congress—in ensuring that undocumented immigrant survivors trust and not fear law enforcement. CONCLUSION Some of the darkest blots on our nation’s history have occurred when, in times of national fear, the Executive Branch has targeted the innocent to promote what it declares to be public safety. See, e.g., Korematsu v. United States, 323 U.S. 214, 218 (1944). By contrast, what has made our constitutional order the world’s envy are those other moments when, even in times of fear—especially 50 Elizabeth M. McCormick, Rethinking Indirect Victim Eligibility for U NonImmigrant Visas to Better Protect Immigrant Families and Communities, 22 STAN. L. & POL’Y REV. 587, 600 (2011). 22 then—we side with our founding principles and protect the innocent. This Order is an unfortunate example of the former. It would subvert Congress’s intent to extend protection and support to foreign national victims of gender-based and domestic violence, in places it is needed most. It would subvert the public interest in helping those survivors and enlisting their help in turn to bring criminals to justice. It would turn a blind eye to the world’s innocent women and girl victims. It would depart profoundly from our nation’s historical humanitarian bent. It would not, and should not, make us proud. Amici respectfully support Appellee’s position and request that this Court affirm the District Court’s preliminary injunction. April 19, 2017 Respectfully submitted, s/ Scott L. Winkelman Scott L. Winkelman Luke van Houwelingen Avi Rutschman Justin Kingsolver CROWELL & MORING LLP 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004 Tel: (202) 624-2500 Fax: (202) 628-5116 Counsel for Amici Curiae 23 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Effective 12/01/2016 No. ____________ 17-1351 International Refugee Assistance Project v. Trump Caption: __________________________________________________ CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Type-Volume Limit, Typeface Requirements, and Type-Style Requirements Type-Volume Limit for Briefs: Appellant’s Opening Brief, Appellee’s Response Brief, and Appellant’s Response/Reply Brief may not exceed 13,000 words or 1,300 lines. Appellee’s Opening/Response Brief may not exceed 15,300 words or 1,500 lines. A Reply or Amicus Brief may not exceed 6,500 words or 650 lines. Amicus Brief in support of an Opening/Response Brief may not exceed 7,650 words. Amicus Brief filed during consideration of petition for rehearing may not exceed 2,600 words. Counsel may rely on the word or line count of the word processing program used to prepare the document. The word-processing program must be set to include headings, footnotes, and quotes in the count. Line count is used only with monospaced type. See Fed. R. App. P. 28.1(e), 29(a)(5), 32(a)(7)(B) & 32(f). Type-Volume Limit for Other Documents if Produced Using a Computer: Petition for permission to appeal and a motion or response thereto may not exceed 5,200 words. Reply to a motion may not exceed 2,600 words. Petition for writ of mandamus or prohibition or other extraordinary writ may not exceed 7,800 words. Petition for rehearing or rehearing en banc may not exceed 3,900 words. Fed. R. App. P. 5(c)(1), 21(d), 27(d)(2), 35(b)(2) & 40(b)(1). Typeface and Type Style Requirements: A proportionally spaced typeface (such as Times New Roman) must include serifs and must be 14-point or larger. A monospaced typeface (such as Courier New) must be 12-point or larger (at least 10½ characters per inch). Fed. R. App. P. 32(a)(5), 32(a)(6). This brief or other document complies with type-volume limits because, excluding the parts of the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of contents, table of citations, statement regarding oral argument, signature block, certificates of counsel, addendum, attachments): 5,122 [✔] this brief or other document contains [ ] this brief uses monospaced type and contains [state number of] words [state number of] lines This brief or other document complies with the typeface and type style requirements because: [✔] this brief or other document has been prepared in a proportionally spaced typeface using [identify word processing program] in 14-Point Times New Roman Font [identify font size and type style]; or Microsoft Word [ ] this brief or other document has been prepared in a monospaced typeface using [identify word processing program] in [identify font size and type style]. (s) s/ Scott L. Winkelman Party Name Tahirih Justice Center, et al. Dated: 04/19/2017 11/14/2016 SCC CERTIFICATE OF SERVICE I hereby certify that on April 19, 2017, I electronically filed the foregoing with the Clerk of the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users and will be served by the appellate CM/ECF system. s/ Scott L. Winkelman Scott L. Winkelman

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