Betsy DeVos’ New Title IX Guidelines Give More Grief to Noncitizen Survivors

Education Secretary Betsy DeVos unveiled her final new Title IX guidelines Wednesday, adding more barriers to justice for already vulnerable noncitizen survivors of sexual assault.

U.S. Secretary of Education Betsy DeVos speaking at the 2018 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo/Gage Skidmore)

By Athiyah Azeem

SILVER SPRING, MD — Education Secretary Betsy DeVos unveiled her final new Title IX guidelines Wednesday, adding more barriers to justice for already vulnerable noncitizen survivors of sexual assault.

These guidelines to the federal statute governing sexual misconduct on campuses would give more protections to those accused of sexual assault. They would be presumed innocent throughout trial and given the right to view all evidence against them.

It also narrows the definition of sexual assault to “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

By contrast, the Obama era definition was kept broad, as an “unwelcome conduct of a sexual nature.”

Colleges and schools K-12 can also be only held accountable if they handled sexual assault reports with “deliberate indifference.”

The changes will take effect August 14.

“If this rule goes into effect, survivors will be denied their civil rights and will get the message loud and clear that there is no point in reporting assault,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. The Center announced it will be taking these new guidelines to court.

“We are also concerned about the impact on noncitizen students,” Lisae Jordan Esq., Executive Director of the Maryland Coalition Against Sexual Assault told The Immigrant’s Bay. 

She believes while the new Title IX regulations will affect students across the board, “noncitizen students are often at higher risk of violence and more reluctant to report.”

“Often perpetrators will use a survivor’s legal status as a way of exerting power and control and make a survivor more likely to be victimized,” said Meredith Varsanyi, a Training Program Coordinator at MCASA. She spoke at the University of Maryland’s annual Sexual Assault and Vulnerable Populations (SAVP) webinar on Wednesday.

Varsanyi states undocumented students and U.S. citizens of undocumented parents are also confused on how confidential their sexual assault report would be, and “what may put them in danger of being deported.”

International students would also have to tough through the process on their own, far from home. They may also be reluctant to report, if they are in the U.S. for only one semester or graduating soon. 

According to Andrea Finuccio, Staff Attorney at MCASA’s Sexual Assault Legal Institute (SALI), there are special visa options available for foreign survivors of sexual assault — as long as they cooperate with the police. 

The U nonimmigrant visa, commonly known as the U visa, was created alongside the Victims of Trafficking and Violence Protection Act of 2009. It grants a three-year stay with work authorization to noncitizen victims of violent crime, provided they aid the police in a criminal investigation.

After three years, U visa holders can apply for a green card. Similarly, there is a T nonimmigrant status, or T visa, that is specifically given to victims of human trafficking.

Undocumented survivors can file for a waiver of inadmissibility, essentially apologizing for their status. They are then able to apply for a U or T visa. An undocumented parent of a U.S. citizen can do the same, as long as they can prove they are cooperating.

But to even obtain an U visa is another question. 

According to Women’s Law, as of January 2018, the U.S. Citizenship and Immigration Services is reviewing applications filed in August of 2014. USCIS only grants 10,000 U visa applications a year, so now there is a backlog of almost 240,000 pending U visa applications, with a wait time of up to five years.

“I do not think they anticipated the amount of people that would be applying for the U Visa,” Finuccio told attendees of the SAVP webinar. When the visa was first introduced in 2009, USCIS received about 11,000 applications from foreign-based U.S. consulates. Now, according to USCIS U visa statistics, there were almost 59,000 applications made in 2019 alone.

While U visa applicants have a path to citizenship, it can take up to 13 years before they can apply for citizenship.

Before the current administration, work permits would be given to applicants before their U visa came. Now, work permits come jointly with the visa, but according to Finuccio, applicants may receive delays between receiving both, “which is a problem that doesn’t allow people to work and make a living, in a way that people see as legally valid.”

Alternatively, women sexual assault survivors of U.S. citizen or permanent resident relatives can self-petition for a green card under the Violence Against Women Act (VAWA). There is no known wait list for VAWA, and is approved within six months to two years.

SALI provides legal aid to noncitizen sexual assault survivors, and helps them apply for VAWA self-petitions, U or T visas.