Immigration, domestic violence, and what the family practitioner should know.

• Jurisdiction: United States
• Date: 01 December 2007
• Author: Sullivan, Sarah Rebecca,Cosentino, Amy L.
• Published date: 01 December 2007
• Author: Sullivan, Sarah Rebecca

Florida's warm climate and beautiful beaches lure many people outside the state to adopt Florida as home. For noncitizens, the attraction is much deeper than aesthetics. It is the hope to find the American dream and to gain freedoms not afforded in other countries. According to the United Nations Human Development Report 2004, Miami has the largest percentage of noncitizens of any city in the world. (1) Therefore, no matter what area of the law in which the Florida lawyer engages, immigration law will overlap in some way. This article is designed to take the Florida lawyer through some of the essentials necessary in representing noncitizens in the context of family law: more specifically, special considerations of immigrant victims of domestic abuse, the impact of state court in civil and criminal actions, federal remedies, and practical considerations for the family law attorney.

Victims of domestic violence face many challenges in escaping their abusers. Being battered coupled with a less than favorable immigration status, further builds a barrier in the mind of the abused. (2) Immigration status may be used as a control device by the abuser in order to pressure the abused partner to remain in a violent relationship. (3) Cultural barriers are also significant since different nations accept domestic violence as the norm in the family, or have limited legal and social programs compared to those available in the United States. (4) Some immigrant victims have the misconception that legal protections afforded in the United States do not apply to them, or they become frustrated in asking for assistance for shelter, financial aid, food, and legal remedies due to their inability to speak English. (5) Underlying all of these fears is the concern that the legal system will deport them or the abuser, their only means for support. (6)

There are sources of information that the Florida practitioner can use to aid the client with these issues. For example, the Florida Coalition Against Domestic Violence (FCADV) is the umbrella organization for all of the certified domestic violence shelters in Florida. Whether your client is from a giant urban area such as Miami, or a rural community such as Macclenney, FCADV can provide direction for which services are available in your client's community. Several advocacy groups specifically serve the immigrant community. The Florida Immigrant Advocacy Center is a full-service, statewide legal services organization that not only provides a lawyer for the battered immigrant, but also has established relationships with other community service agencies throughout Florida. The Haitian Refugee Domestic Violence Project provides services to the Haitian--Creole community in Dade, Broward, and Palm Beach counties, (7) including translation services, injunction assistance, referrals, safety planning, and education programs. Other organizations, such as World Relief, Lutheran Social Services, and Catholic Charities, also assist noncitizen victims of domestic abuse.

Civil Remedies Available to Noncitizen Victims of Domestic Violence

There are civil remedies available to an abused spouse or intimate partner, such as filing an application for an injunction for protection against domestic violence or repeat violence. In addition to the "stay away" injunctive relief, the victim may ask the court for ancillary relief such as temporary use of the residence, child custody, child support, and spousal support. (8) The batterer may also be ordered to undergo psychological evaluations, submit to drug and alcohol evaluation/ treatment, and complete a batterer's intervention program (BIP). (9) Child visitation and/or visitation exchange may be supervised by a certified supervised visitation center or by a third party. At each step of the process, the noncitizen victim may be frustrated and intimidated by language barriers, cultural norms from her country of origin, and fear of retribution from her abuser. It is imperative for the family practitioner to be sensitive to these barriers and be willing to provide the additional support needed to make the process less daunting.

There is no minimum residency requirement to apply for a civil order of protection or injunction. Any person who is the victim of domestic violence within Florida (whether they are visiting or are residents) may petition for an injunction for protection against domestic violence. (10) Under F.S. [section] 741.30(j), a victim can apply for a domestic violence injunction in the circuit where the petitioner resides (even if temporary), where the respondent resides, or where the domestic violence occurred. Once the injunction is in place, there is statutory relief to assist the victim should the batterer violate an injunction no matter where the violation takes place.

The immigrant victim that moves or travels from one U.S. jurisdiction with a protective order to Florida is also protected under Florida law. According to F.S. [section] 741.315 (2007), full faith and credit is given to foreign states' protective orders by Florida courts and law enforcement agencies. Most importantly, the orders do not have to be domesticated, and there is no residency requirement in order for them to be enforced. Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003), broadens the protection even further. Here, the court determined whether calls the victim received while in the United States from her husband, begging her to return to him in Mexico, constituted extreme cruelty even though the violence itself occurred outside the U.S. The court affirmed that it did indeed constitute extreme cruelty under the Violence Against Women Act, (VAWA), and relied heavily upon psychological research data to reach its decision. (11)

If the noncitizen victim of domestic abuse is married to the abuser, either party may contemplate divorce. However, for the noncitizen, divorcing the battering spouse he or she relies on for "status" through family sponsorship may be compromised. Even if a client is undocumented or out of status, they may petition the family court for a divorce if they meet other jurisdictional requirements. Prior to filing a divorce for a noncitizen, the client's legal status should be examined so that the client is able to maintain lawful residency in the United States whether it be by removal of condition, VAWA self-petitioning, U-Visa, or other remedy. A noncitizen victim of abuse is entitled to the same relief as any other party in a Florida dissolution of marriage action such as child custody, visitation, spousal support, equitable distribution of debts/assets, and...