The Domestic Violence Survivors Justice Act of New York (DVSJA), which allows judges to reduce the sentences of survivors convicted due to acts of survival and self-defense, has been hailed as a step forward for the rights of survivors of domestic abuse. However, the law doesn’t exempt an immigrant survivor from deportation. Advocates estimate that hundreds of immigrant survivors of domestic violence are deported each year by Immigration and Customs Enforcement (ICE), regardless of the circumstances in which they violated the law.
“There is this idea that if someone has a conviction, they should be deported, and ICE would do anything to deport them regardless of who they are, the circumstances of what they’ve gone through, [or] their family connections,” said Samah Sisay, organizer at Survived and Punished, a grassroots organization that advocates for incarcerated survivors of domestic violence. “On paper, that was not supposed to happen [during the Biden administration].”
On May 27, John Trasviña, the chief ICE attorney appointed by President Joe Biden, sent out a memo encouraging immigration prosecutors to use their discretion to delay or dismiss certain cases, which could involve an “extraordinary humanitarian factor” like having a serious health condition or being elderly, pregnant, a minor, or a victim of domestic violence or other serious crimes. Those guidelines were built on a February memo, in which the Biden administration determined that people with criminal records were not necessarily deportation targets. The exception was if an immigrant was convicted under immigration law of an “aggravated felony”—a wide range of crimes and misdemeanors including filing a false tax return or failing to appear in court.
Biden’s memo and guidelines were of little help to Assia Serrano, an Afro-Panamanian immigrant who was deported to Panama on June 17 for a crime committed in 2003. Serrano had arrived in the United States as a teenager and was 22 years old when she tied up and assaulted Petra Cuchola during a robbery attempt with an accomplice. Serrano and her accomplice pleaded guilty to the second-degree murder of the 85-year-old Cuchola, who died as a result of a blood clot caused by the pressure of having her bound hands on her stomach. Serrano had previously tended to Cuchola as a healthcare worker and The New York Times reported that Serrano’s accomplice testimony “provided a rare glimpse into how a trusted care provider could turn on her patient for the most petty of reasons.” What the newspaper failed to mention is that Serrano was a survivor of domestic violence, coerced by her then-partner—an abusive man 20 years older than her—to commit the robbery in the first place.
Serrano spent 15 years incarcerated in an upstate New York prison before her sentence was reduced under the DVSJA. The judge overseeing her case acknowledged the abuse she endured and ordered her release last May. Serrano wished to reunite with her two U.S.-born children. Instead, she was handed directly over to the ICE for deportation.
This fate didn’t have to be an inevitability for Serrano, aggravated felony notwithstanding. The campaign advocating for Serrano demanded that New York Gov. Andrew Cuomo used his discretionary power to grant her a pardon. Her attorney requested immigration judges to reopen her case, arguing that she was unrepresented during her deportation proceedings, which had been immediately activated upon her arrest in 2003.
“Assia had very clear ways to fight her case. It was not as she had no avenues to gaining status [as a lawful resident in the United States]. She did. And ICE deported her before she could even explore those options,” Sisay said.
Immigrants like Serrano face an uphill battle in large part because they’re unaware that there are even options to avoid deportation and resources available to domestic abuse survivors to begin with. They endure at least as much intimate partner violence as U.S. women, and in some ways can be more vulnerable to abuse. Abusers may exploit their victims’ lack of English proficiency, isolation, and lack of familiarity with the US.. legal system. They may also take advantage of religious and cultural customs to threaten and manipulate, and use their partner’s lack of secure immigration status as a tool of coercion and control.
Immigrant survivors’ isolation is increased by their justified mistrust of authorities. More than three-quarters (76%) of the advocates in a 2019 survey reported that immigrant survivors had expressed concerns about contacting the police. More than half of the advocates (52%) knew immigrant survivors who decided to drop civil or criminal cases related to domestic abuse because they were fearful to continue with their claims.
In addition, the U.S. legal system appears to be woefully unprepared to treat survivors of domestic violence fairly. According to Cuomo, the vast majority of incarcerated women in New York have experienced physical or sexual violence in their lifetime. Many of them wind up in prison in the first place because they were protecting themselves from an abuser.
For immigrant survivors, the victimization goes beyond incarceration and frequently begins early in their lives. Many have “a long history of trauma,” especially when they arrive as refugees and asylum-seekers, said Grace Huang, director of policy at the Asian Pacific Institute on Gender-Based Violence, a resource center on domestic abuse and exploitation. Once in the U.S., she added, many experience racism, poverty, and challenges such as language barriers.
Congress acknowledged the complicated circumstances of immigrant survivors of domestic violence and sexual assault in the Violence Against Women Act (VAWA), approved in 1994 sponsored by then-senator Joe Biden. The act recognized that abusers often exploit a victim’s lack of immigration status as a tactic of control. The bill must be reauthorized every five years (although some years it has fallen behind schedule). The House of Representatives reauthorized it last March, and a version of it is waiting for a vote in the Senate.
A Biden statement after the passage of the House bill highlighted that “as many as 1 in 3 women are subjected to domestic violence, dating violence, sexual assault, and stalking at some point in their lives, and the rate is even higher for women of color, Native American women, and members of the LGBTQ community.”
In his statement, Biden did not mention immigrant survivors—they had been excluded of the Violence Against Women Act 2021 reauthorization.
“So far, they [members of Congress] have not included an immigration chapter even though every reauthorization of VAWA in the past included an immigration chapter,” Huang said.
On May 15, the Alliance for Immigrant Survivors, a coalition of advocates, and 105 civil society organizations sent an open letter to Sens. Dick Durbin and Gary Peters, chairs of the Senate Judiciary Committee and the Homeland Security and Government Affairs Committee, respectively, to demand an immigrant chapter in VAWA. They requested specifically to raise the U visa cap, currently at 10,000 per year. Created for victims of substantial mental or physical abuse while in the U.S. who are willing to assist in prosecuting crimes, the U visas have been crucial to protecting immigrant survivors of domestic violence. However, there is currently a backlog of 270,000 applications, which means years of waiting for survivors. The coalition is calling for survivors to not be deported before their applications for asylum or U visas are adjudicated. They’re also demanding that the Biden administration “prevent the unjust detention and deportation of survivors”—tasks that are mostly carried out by ICE.
Biden promised to create a “fair and humane” immigration system, a definition that should include consideration for survivors of domestic violence, given the administration’s vocal support for survivors within the courts and carceral system. ICE, however, is still punishing immigrant survivors like Serrano with deportation, regardless of the humanitarian factors. That promise remains hollow until the immigration system ensures full consideration for survivors as well.