VAWA Confidentiality Provisions

VAWA Confidentiality, USC1367, myattorneyusa.com

 

Introduction

In 2006, President George W. Bush signed the Violence Against Women Act (VAWA) and Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 119 Stat. 2960 (2006) [link] into law. Among other things, the statute directed the Attorney General, the Secretary of State, and the Director of Homeland Security to provide guidance to employees of their respective departments regarding policies to protect information relating to victims of domestic violence and severe forms of trafficking in persons or criminal activity. In this article, we will examine the DHS's policies regarding the protection of information of applicants for protection under VAWA or VAWA beneficiaries and the procedures for seeking relief if these policies are violated.

Relevant Statute: 8 U.S.C. 1367

The provisions for protecting the information of VAWA applicants and beneficiaries are codified at 8 U.S.C. 1367 [PDF version]. The statute was last modified in 2013. In this section, we will examine 8 U.S.C. 1367 in detail.

8 U.S.C. 1367(a) provides that an official of the Department of Justice (DOJ), Department of State (DOS), or DHS may not make an adverse determination of admissibility or deportability of an alien using information furnished solely by:

A spouse, parent, or member of the spouse's or parent's household who battered or subjected the alien or the alien's child to battery or extreme cruelty (note: for “member of the spouse's or parent's household, this applies only when the spouse or parent consented or acquiesced to the battery or extreme cruelty and, if the victim is the alien's child, the alien did not participate in the conduct against the child);
In the case of an alien applying for relief under section 101(a)(15)(U) of the Immigration and Nationality Act (INA) (provisions for U nonimmigrant status), the perpetrator of the substantial physical or mental abuse and the criminal activity; or
In the case of an alien applying for relief under section 101(a)(15)(T) of the INA (provisions for T nonimmigrant status), under 22 U.S.C. 7105(b)(1)(E)(i)(II)(BB), section 244(a)(3) of the INA as in effect prior to March 31, 1999, or as a VAWA self-petitioner as defined under section 101(a)(51) of the INA, the trafficker.

There is a limited exception also provided in 8 U.S.C. 1367(a) that applies if the alien in question was convicted of a crime or crimes listed in section 237(a)(2) of the INA. Section 237(a)(2) provides for deportability for certain criminal activity. Please see our overview of section 237(a)(2) to learn more [see article].

In general, 8 U.S.C. 1367(a)(2) prevents the disclosure to anyone (other than a sworn officer or employee of a relevant organization handling the alien's case) of any information relating to an alien who is seeking relief under the provisions for T nonimmigrant status, U nonimmigrant status, or VAWA (including VAWA cancellation of removal [see article]) under the INA. The statute provides that “[t]he limitation under [8 U.S.C. 1367(a)(2)] ends when the application for relief is denied and all opportunities for appeal of the denial have been exhausted.”

8 U.S.C. 1367(b) provides general exceptions to 1367(a). These exceptions are paraphrased as follows:

1. The Secretary of Homeland Security or Attorney General may provide, in their discretion, for the disclosure of information in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under 13 U.S.C. 8.
2. The Secretary of Homeland Security or Attorney General may provide for the disclosure of information in their discretion to law enforcement officials to be used solely for a legitimate law enforcement purpose in a manner that protects the confidentiality of the victim.
3. 8 U.S.C. 1367(a) does not prevent the disclosure of information in connection with judicial review in a manner that protects the confidentiality of such information.
4. 8 U.S.C. 1367(a)(2) does not apply if the battered individuals are adults and if they waive the restrictions of the same subsection.
5. The Secretary of Homeland Security and Attorney General may disclose information to Federal, State, and local public and private agencies providing benefits to the alien if the information is to be used solely for determinations of eligibility for benefits under 8 U.S.C. 1641(c) (regarding eligibility to receive public benefits for certain battered aliens).
6. 8 U.S.C. 1367(a) does not prevent the Attorney General or Secretary of Homeland Security from disclosing information to the chairman and ranking members of the Judiciary Committees of the United States Senate and United States House of Representatives, for the exercise of congressional oversight authority. Information on closed cases must be provided in a manner that protects the confidentiality of the information and omits personally identifying information of the victims.
7. With the consent of the alien, information may be provided to nonprofit, nongovernmental victim's service providers for the sole purpose of assisting victims in obtaining victims services from programs with expertise working with immigrant victims. Furthermore, the alien may designate a safe organization through whom government agencies may communicate with him or her. Any organization that receives such a referral is henceforth bound by the confidentiality provisions in 8 U.S.C. 1367(a).
8. The Secretary of Homeland Security, Secretary of State, or the Attorney General may provide, in their discretion, for the disclosure of information to national security officials to be used solely for a national security purpose. The information must be provided in a manner that protects the confidentiality of the information.

8 U.S.C. 1367(c) provides for penalties for those who violate 8 U.S.C. 1367(a). This provision applies to anyone who:

Willfully uses, publishes, or permits information to be disclosed in violation of 8 U.S.C. 1367; or
Knowingly makes a false certification under section 239(e) of the INA (section 239(e) covers certification of compliance with restrictions on disclosure of information).

8 U.S.C. 1367(d) requires the Attorney General, Secretary of State, and the Secretary of Homeland Security to provide guidance to officers and employees of their respective organizations regarding 8 U.S.C. 1367. In the following section, we will examine the DHS's guidance in detail.

DHS Implementation of 8 U.S.C. 1367 Information Provisions

On November 1, 2013, the DHS published Directive Number 002-02, titled “Implementation of Section 1367 Information Provisions” [PDF version]. The directive was issued in accord with the requirement that the Secretary of Homeland Security provide guidance to DHS officers and employees under 8 U.S.C. 1367(d). It applies “particularly [to] those employees who work with applicants for victim-based immigration relief or who have access to protected information…” In this section, we will review provisions of the Directive that cover policy guidance that goes beyond rehashing the text of 8 U.S.C. 1367.

First, the guidance reiterates that the DHS may not make an adverse determination of admissibility or deportability against an alien who has applied for VAWA benefits or a T or U visa in reliance on information that was furnished solely by “prohibited sources associated with the battery or extreme cruelty, sexual assault, human trafficking[,] or substantial physical or mental abuse…” In fact, this prohibition applies broadly “whether the alien has applied for VAWA benefits, or a T or U visa.” The Directive instructs the DHS to treat any information furnished by prohibited sources as “inherently suspect.” DHS officers are instructed to “exercise all appropriate prosecutorial discretion in pursuing the adverse information.” The DHS may not take action based on information furnished by a prohibited source “unless there is an independent [non-prohibited] source of corroboration.”

Second, the Directive notes that DHS employees “complete a certification of compliance in cases where enforcement actions leading to a removal proceeding are taken at sensitive locations…” This is a general rule found in section 239(e) of the INA and discussed in 8 U.S.C. 1367. In the case of a victim applicant described in 8 U.S.C. 1367(a), the certification of compliance must “affirm[] compliance with section 1367 [i]nformation and prohibited source provisions.”

The Directive provides that all components of DHS that have access to 8 U.S.C. 1367 information that may be shared outside of DHS “develop any necessary implementing instructions or other policy guidance to the extent permitted by and consistent with their authorities and any restrictions imposed…”

Finally, the Directive provided for special training for any DHS employees who may come into contact with victim applicants or have access to information covered by 8 U.S.C. 1367.

DHS Guidance on VAWA Confidentiality for Applicants

The DHS published guidance on its website for reporting possible violations of VAWA confidentiality provisions by DHS officers or employees. The guidance, last updated on April 18, 2016, is titled “Violence Against Women Act (VAWA) Confidentiality Provisions at DHS” [PDF version].

Overview of VAWA Confidentiality Provisions

First, the DHS document summarizes the restrictions imposed by statute on the disclosure of information related to victims seeking benefits under VAWA (including U and T nonimmigrant status). We discussed these provisions in detail in the section of this article discussing 8 U.S.C. 1367. Here, we will paraphrase the DHS's simpler summary of the requirements and restrictions imposed by 8 U.S.C. 1367:

VAWA's confidentiality provisions generally prohibit disclosure to a third-party of any information relating to an alien who is an applicant for relief under VAWA.
VAWA's confidentiality provisions prohibit the DHS from using information solely furnished by a prohibited source involved with the victimization or trafficking of the applicant as a basis for arresting and charging an alien with removability, except if the alien has been convicted of certain serious crimes.
VAWA's confidentiality provisions require that the DHS certify in accord with section 239(e) of the INA compliance with 8 U.S.C. 1367 when enforcement actions are taken at certain specified locations (e.g., domestic violence shelters, rape crisis centers, or courthouses).

Reporting Violations of VAWA Confidentiality Provisions

In order to report a possible violation of 8 U.S.C. 1367 by a DHS employee, an applicant must submit the complaint in writing to the Office for Civil Rights and Civil Liberties (CRCL). The CRCL “is statutorily obligated to review and assess information concerning abuses of civil rights, civil liberties, and profiling on the basis of race, ethnicity, or religion by DHS employees and officials.” This requirement is found in statute at 6 U.S.C. 345 and 42 U.S.C. 2000ee-1.

There are two ways by which an individual may submit a complaint to the CRCL. However, we must first note that a complaint to the CRCL may be filed on behalf of someone else. In order for an individual or organization to file a complaint on behalf of someone else and to receive information which relates to the person or his or her complaint, the filer “must provide express written consent from that individual authorizing the DHS to share information with [the filer] about the complaint. The following are the two ways in which a complaint may be submitted.

First, an applicant may download and then mail the CRCL Complaint Submission Form from the DHS website. For reference, the following is the current fillable version of the form (last updated 3/15/2011) [PDF version]. Please note that we are providing the form for reference only. An individual filing a complaint with the CRCL should download the form from the DHS website to ensure that he or she is using the most current version of the form. The advantage of using the CRCL Complaint Submission Form is that it includes fields for information required in order for the CRCL to begin adjudicating a complaint.

Second, in lieu of the CRCL Complaint Submission Form, an individual may instead file a complaint containing all of the relevant information in “any written format.” The DHS explains that individuals opting for this course of action must include all of the following information.

First, the written complaint must include the alien's contact information. This includes the following:

Full name;
Date of birth;
Alien registration number (A-number if applicable);
Phone number;
Mailing address; and
E-mail address (if applicable).

If the filer is writing on behalf of someone else, he or she must provide his or her contact information, including an organization name if applicable, in addition to the relevant information about the alien.

Next, the written complaint must include a written description of the specific circumstances. This includes:

Date, time, and location;
Name(s) and contact information of any witnesses; and
Name, job title, agency or component, and contact information (if available) of the employee(s) alleged to have committed the violation, or the relationship of the alleged violation to a DHS program or activity.

Third, the complaint must include relevant documents. This includes, but is not necessarily limited to:

Copies of any paperwork related to the complaint or its circumstances (such as any Notices to Appear (NTAs) and warrants); and
Copies of any pending VAWA, T-visa, or U-visa applications filed with DHS.

Finally, the written complaint must include, when applicable, any other steps previously taken to resolve the complaint. This may include, but is not limited to, communications with a DHS component agency regarding the complaint, or letters written to the DHS Office of the Inspector General.

The CCRL accepts complaints in languages other than English. For more information, an applicant may visit the CCRL's website at https://www.dhs.gov/office-civil-rights-and-civil-liberties, or email or call the CCRL.

Upon receiving a complaint, the CCRL will initially forward it to the DHS Office of Inspector General. The CCRL may subsequently refer the complaint to the relevant DHS component.

The DHS explained that the CCRL “may disclose certain information from [a] complaint if [it] is required by law to do so or if there is no privacy impact.” As an example, the DHS cites the reports it must send to Congress every three months about complaints submitted by the public. These reports never include personal information about the applicants filing the complaints.

Complaints can be submitted in writing via standard mail, e-mail, or fax. The following are the relevant addresses as of May 1, 2017.

Standard Mail:

Standard U.S. Department of Homeland Security
Office for Civil Rights and Civil Liberties
Compliance Branch
245 Murray Lane, SW
Building 410, Mail Stop #0190
Washington, D.C. 20528 Mail
E-Mail: [email protected]
Fax: (202) 401-1464

Individuals may contact the CCRL at the following phone numbers:

Phone: (202) 401-1474
Toll free: (866) 644-8360
Local TTY: (202) 401-0470
Toll Free TTY: (866) 644-8361

Conclusion

For obvious reasons, Congress put in place strict rules regarding the confidentiality of information pertaining to alien victims seeking relief under VAWA. When seeking VAWA-related relief, an alien should always work with an experienced immigration attorney. Navigating the complex immigration system is difficult in and of itself, and often even more so for victims of the types of criminal activity covered by VAWA and by the T and U nonimmigrant programs. In addition to helping a victim navigate the immigration application process, an attorney will be able to ensure that the victim's privacy interests and dignity are protected throughout the entire process. If an apparent violation of the VAWA confidentiality provisions occurs, an attorney will be able to identify the violation and assist the victim in filing a complaint through the proper channels. Fortunately, the DHS provides simple procedures for filing complaints alleging civil rights violations.

To learn more about immigration relief for victims of violence and other criminal activity, please see the relevant section of our website [see category]. Furthermore, please see the following sections to learn about VAWA [see category], T nonimmigrant status [see category], and U nonimmigrant status [see category] in more detail.

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