Individuals who are international students, undocumented immigrants, or otherwise noncitizens of the US have legal rights and protections if assaulted on campus. Due to their citizenship status they are in a vulnerable position to be targets of violence and abuse. Students without US citizenship may believe that they do not have legal rights in the US. However, Title IX law extends to students who may or may not have legal immigration documents. The Department of Education outlines Title IX to include non US citizen students and allows them to file complaints against educational institutions as well. The Office of Civil Rights (OCR) states that, “Title IX protects all students attending recipient institutions in the United States regardless of national origin, immigration status, or citizenship status.” However, international and undocumented students face immigration concerns if they wish to file a Title IX complaint. For more information on protections under Title IX, filing complaints, and emergency visas, click here.
School Obligations under Title IX
In order to be inclusive of non US citizen students under Title IX, the OCR created specific requirements (recently rescinded) to cover the rights of international and undocumented students. Under Title IX schools are obligated to:
Ensure that all students regardless of immigration status fully comprehend their rights
Make all school reporting forms, information, or training on sexual violence accessible to students who are English language learners.
In addition to these requirements, the OCR has a list of recommendations (recently rescinded) that institutions should follow so that all students are given equal educational access regardless of citizenship status. The following is a list of these suggestions.
The OCR recommends that schools coordinate with their international office and undocumented student program coordinator in order to help communicate Title IX in different languages for international and undocumented students.
OCR also encourages schools to provide survivors without US citizenship with information about U visa and T visa.
It is recommended that a school works with international students so that they understand their academic requirements for a student visa; and if a student wishes to adjust their academic schedule after an assault, schools should coordinate with a designated school official or PDSO to make the appropriate accommodations.
It’s recommended that institutions train their employees who work with non US citizen students on sexual violence and the school’s sexual misconduct policies.
OCR recommends that employees who handle sexual violence complaints and counsel survivors are trained and understand the unique challenges non US citizen students may encounter after an assault.
Finally, schools are prohibited from threatening students with deportation or invoking a student’s immigration status in order to intimidate or deter students from filing Title IX complaints. The OCR considers this to be an act of retaliation and would violate Title IX.
Although Title VI is not extensive in its requirements, it does protect non US citizen students from discrimination. Title VI specifically prohibits discrimination based on race, color, or national origin in an educational program or activity. Thus, students without US citizenship would be covered under the Title VI category of national origin. Sexual violence against non US citizen students ultimately denies these survivors the benefits of and participation in education. Therefore, filing joint Title IX and Title VI complaints could cover the different ways in which you were discriminated against by your institution. Additionally, Title VI ensures survivors the assistance of qualified interpreters in communication with federal government funded programs such as law enforcement, courts, and schools. For more information on Title VI, its protections, and filing complaints, click here.
Information on different visas:
Undocumented survivors might believe that they do not have legal protections outside of Title IX after an assault due to their citizenship status. However, there are several visas for survivors of sexual assault who do not have legal documentation. These visa options are the T Visa for survivors of trafficking or the U Visa for survivors of violent crimes, as well as legal protections under the Violence Against Women Act and asylum. When undocumented students experience sexual violence on campus there may be some concerns with their citizenship status and eligibility for visas. Your status cannot be used against you to deter you from reporting a sexual assault, though that doesn’t necessarily mean that some people won’t try. It is important that an immigrant survivor seeks assistance from a qualified immigration attorney for all these options. Each visa has its own requirements, the following is information for undocumented survivors who might apply for the T Visa, U Visa, VAWA self petitions, and asylum:
The T visa is to protect survivors of “a severe form of trafficking.” Severe forms of trafficking include:
Sex trafficking of people under the age of 18
Recruiting or obtaining people for labor or services through use of force, fraud, coercion for the purpose of subjecting people to involuntary servitude, debt bondage, or slavery
To qualify for a T visa, applicants must demonstrate that:
They have been a survivor of a “severe form of trafficking” -- meaning a type of trafficking when the survivor is forced to perform sexual acts for commercial purposes.
Are physically present in the United States, Samoa, or a port of entry
Would suffer extreme hardship involving unusual and severe harm if they were removed from the United States
Complied with a reasonable request for assistance in a trafficking investigation
Or are less than 15 years old
One of the most important factors of the T visa application is that the applicant must be in contact with law enforcement. Ultimately the applicant must be in contact with a federal law enforcement agency (ie. the Federal Bureau of Investigation, etc.) so applicants must have local and state law enforcement contact a federal law enforcement in order for a T visa to be granted. A qualified immigration attorney should be contacted for more information about obtaining a T visa.
The U visa is for serious crimes that target vulnerable foreign individuals. The U visa is specifically for protecting immigrants, both documented and undocumented because it’s understood that immigrant survivors of violent crime fear being deported from the United States. The U visa covers many violent crimes including rape, incest, sex work, kidnapping, false imprisonment, domestic violence, trafficking, sexual assault, and more. To qualify for a U visa, applicants must:
Cooperate of the survivor in the investigation and prosecution of the crime, but does not have to result in a conviction
Suffered substantial physical or mental abuse as a result of the crime
Have information on the crime
And a law enforcement official or judge certify that the survivor has been helpful, is being helpful, or is likely to be helpful in investigating or prosecuting a crime
Violence Against Women Act
The Violence Against Women Act (VAWA) is a federal law that aims to protect different survivors of domestic and intimate partner violence, stalking, sexual assault and rape that specifically extends services, justice, and safety for Native American survivors, LGBTQ survivors, public housing residents, immigrant survivors, and college campus survivors. VAWA self petitions are only available to people whose immigration status is dependent on an abusive parent or partner. The survivor can file a VAWA self petition in order to obtain permanent resident status without the knowledge, cooperation, or participation of the assailant.
Though the name might suggest that only women are covered under the VAWA, male survivors can also apply and are covered in these legal protections. In order to be eligible for a VAWA self petition, a survivor must:
Show they are a good person of moral character (ie no criminal record)
The citizen or permanent resident the survivor is dependent on has subjected the survivor to battery or extreme cruelty, which includes physical or mental abuse
The VAWA also has the ability to cancel deportation processes. The VAWA cancellation of removal, or deportation, relief applies to survivors who are presently in deportation proceedings before an immigration judge. These protections are especially for undocumented survivors whose assailants have reported their immigration status as a form of abuse. A grant of VAWA cancellation of removal by an immigration judge suspends deportation proceedings and affords an immigrant survivor lawful permanent residence in the US. A person seeking VAWA cancellation of removal while under removal proceedings must demonstrate:
They have resided continuously in the US for three years
A person of good moral character (ie. no criminal record)
Them or their child would suffer extreme hardship if returned to their country
They were subjected to battery, which includes sexual assault, by a US citizen or permanent resident
Immigrants or refugees that fear persecution in their country of origin are eligible to request asylum in the United States. The persecution must be based on a refugee’s religion, nationality, membership in a particular social group (ie. women, LGBTQ), or political opinion. Gender, sexism, and sexual assault could potentially be claims made for asylum by survivors and social groups such as women and LGBTQ. A person could claim that they would suffer extreme hardship if returned to their country of origin as a result of their identity. However, being approved for asylum could be a difficult process, especially if the refugee’s claims are not recognized by reviewers. Thus, it is important to seek assistance from a qualified immigration attorney, especially because asylum is claimed once deportation proceedings have begun.