Immigrant survivors of domestic abuse are more vulnerable than I’ve ever seen in my 20 years of working as a lawyer, thanks to the flurry of confusing and conflicting executive orders issued by the Trump administration.
However you feel about undocumented migrants, everyone should agree that survivors of domestic abuse should not be fearful about seeking out help and their privacy should be ensured to protect them from their abusers, no matter their status.
Dozens of these executive orders target nonprofits, immigrants and survivors. Also, federal funding for programs that impact women, children and families has been targeted by the administration and members of Congress through executive and Congressional budget resolutions. Many of these changes directly violate codified laws that ensure survivors have specific rights to services, privacy and confidentiality.
Carmen McDonald
The Violence Against Women Act — referred to by one of our domestic violence and sexual assault sheros as one of the first feminist public policy laws — provides that nonprofits can help immigrant crime victims. VAWA includes a nondisclosure provision from releasing a survivor’s information, as well as limits on what information the Department of Homeland Security can use that is obtained from perpetrators and restricts enforcement on certain confidential locations. VAWA also provides what is referred to as section 1367 confidentiality and protects survivors’ information being shared in several ways, including between agencies.
So USCIS should not share information with DHS. These laws were created to prevent perpetrators from using the immigration system as a tool and remain intact. Yet clients are afraid to leave their abusers.
The Office of Family Violence and Prevention and Services governs domestic violence shelters and the need to serve survivors regardless of immigration status, yet some domestic violence victims are afraid to go to shelters. The Victims of Crime Act requires all survivor programs to ensure confidentiality for survivors, while the 1996 PRWORA law requires access to shelters for all.
Two recent lawsuits have rolled back government certifications that violate these provisions. Yes, survivors are afraid. All immigrant survivors can still get Medicaid, yet we have had clients tell us they are nervous to get medical treatment.
Service providers also are worried. Many rely on federal funding to serve survivors. Some are worried about helping certain demographics, even though we don’t have to turn over client specific info, just aggregate data. Nonprofits are not required to verify immigration status for eligibility; we always have prided ourselves on that at the Survivor Justice Center.
“These executive orders are having a chilling effect on survivors, putting their very lives at risk.”
Lawyers like myself are prohibited by the Rules of Professional Code from breaching attorney-client privilege. The domestic violence community has navigated confidentiality rules with mandated reporting rules for years. And we have worked to stop re-victimizing survivors by keeping them out of the child welfare system. But these executive orders are having a chilling effect on survivors, putting their very lives at risk.
This is why lawyers are worried about the numerous and potential conflicting laws. We are trying to navigate confidentiality, privilege, mandated reporting and HIPAA. We already worried as a community that our own protective laws cause more harm. Now, we must advise about potential harms despite the biggest harm that can come from domestic abuse.
Despite the laws still in place, our clients are afraid to come see us in person; they prefer remote visits and want to stay off public transit. Our immigrant family law clients are frequently more scared of being at court in public than they are of seeing their abusers. Some clients were worried about calling the police when they were the victim of a crime, or letting a landlord know about a problem, or reapplying for public benefits when at first denied or told they won’t qualify, incorrectly.
Then, we have HR1 that has stripped the federal courts’ contempt power. What does this mean for laws if the courts have lost their only power to enforce them?
Added to this, local jurisdictions’ enforcement rights are being eroded by the National Guard taking over the jobs of local law enforcement.
It is discouraging because we already have educated and advised clients that they are protected by law, but now they are worrying again, remaining isolated and vulnerable. Sowing confusion and fear is part of the administration’s agenda, but this should not be the case for immigrant domestic violence survivors.
Carmen McDonald is an attorney who serves as executive director of the Survivor Justice Center; she is a Public Voices Fellow of the OpEd Project and Blue Shield California.