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Criminal Defense Attorneys

Confidentiality of Immigration Status of DV Victim?

It is a fairly well-known fact that if one is a victim of domestic violence, that person may be entitled to preferential treatment in one’s application to become a legal resident or even a U.S. citizen.  For just this reason, some argue, a person seeking to become a legal resident or U.S. citizen may fabricate charges of domestic violence.
 
Approximately ten years ago, there was a website our client directed us to that gave instructions to a person seeking such preferential immigration treatment, including how to bruise oneself safely in areas of the body that are commonly injured during domestic violence incidents, what to say to police, whether to write a statement for police and how to testify in court.  The instructions came in the form of a checklist.  Our client at the time was married to a woman who was engaged in an extramarital affair and was not a U.S. citizen, so she wished to divorce our client and become a U.S. citizen, according to our client.

This incentive, motivation or modus operandi is therefore relevant toward the credibility of the victim in certain cases.  Can a defendant therefore introduce evidence of a domestic violence victim’s immigration status?
 
Senate Bill 785, passed into law on May 17, 2018, and effective until January 1, 2022 (but subject to extension), added provisions to the Evidence Code that prohibit the disclosure of a person’s immigration status in open court in both civil and criminal proceedings.  
The purpose of the bill is to “immediately help protect undocumented residents of California and their ability to participate in the California justice system.”  The added provision, at Evidence Code § 351.4, pertaining to criminal court proceedings, states that before evidence of a person’s immigration status can be disclosed in open court, the presiding judge must first determine whether the evidence is admissible in an in-camera hearing requested by the party seeking disclosure of a person’s immigration status.  Evidence Code § 351.4(a).

However, this new provision does not: (1) apply to cases in which a person’s immigration status is necessary to prove an element of an offense or an affirmative defense (i.e., a hate crime or illegal re-entry case); (2) to limit discovery in a criminal action; or (3) prohibit a person or his or her attorney from voluntarily revealing his or her immigration status to the court.  Evidence Code § 351.4(b).  Senate Bill 785 also does not affect a prosecutor’s existing obligation to disclose exculpatory evidence.

The federal Violence Against Women Act (VAWA) confidentiality statute at 8 U.S.C. § 1367 also protects victim immigration applications and information, including the existence of, or information contained within an immigration case and any related action taken by the Department of Homeland Security.  Specifically, disclosure is prohibited to all persons, not just the perpetrator, and all agencies receiving any information under VAWA, whether governmental or nongovernmental, are bound by the confidentiality provisions and other restrictions set out in 8 U.S.C. § 1367.8, CFR § 214.14(e)(2). 

Due to the highly confidential nature of victim immigration information under VAWA, if disclosure is ordered, the judge should consider appropriate orders to protect the confidentiality of the information outside of the court proceedings.  For example, the court should consider an order that defendant not disclose the information to other third parties or to not interfere by any means with a person’s immigration application.

If immigration status information of a victim or witness is being considered for disclosure, a judge should also consider appointing counsel for the victim or witness to protect the person’s Fifth Amendment right against self-incrimination, since disclosure of such information could potentially expose the noncitizen victim or witness to federal criminal prosecution for immigration-related crimes such as illegal entry under 8 U.S.C. § 1325 and illegal reentry under 8 U.S.C. § 1326.

We bring this article to the reader’s attention because the national origin or immigration status of a victim sadly is an issue, we find, quite commonly.  Sometimes, it is an issue in how the victim responds to the police or why they call the police at all.  In some countries (we are told, but have not confirmed except anecdotally), police will respond and just separate the spouses for an evening, with no further consequences, which is not how domestic violence is handled here.

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