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Victim of Sex Trafficking Prevails Suing USCIS

August 2nd, 2023

When Karina met her husband John, she had no idea what was going to happen to her, because at first he was so nice and treated her so well.  However, it did not take long for his true nature to reveal itself. He was abusive and manipulating, and to make the situation worse, he was desperate for money and soon began to offer her for sexual services and transport her to different cities and states across the U.S.  She went along with this for reasons she does not even understand, and it was a horrible chapter of her life.  When thankfully, federal officials conducted a sting operation that resulted in her ex-husband’s arrest and her freedom from that life, that, is when she realized what had happened to her and in her search for help was first introduced to attorney FitzGerald.

Under the immigration law, there are many barriers for someone who was involved in prostitution to get legal status in the United States.  Attorney FitzGerald understood that Karina should not be held responsible for something that was essentially involuntary.  Karina was a victim of domestic violence in one of its most despicable forms. Her ex-husband John was a US citizen and therefore, she was eligible to apply for U.S. residency under the Violence Against Women Act (VAWA).  Attorney FitzGerald was able to identify this as an option for her, because he knew the VAWA act provides for many exceptions of inadmissibility including some related to prostitution.

When Karina’s application was filed with USCIS, she felt that she was finally after so many years going to be able to sustain herself here in the United States.  However, instead of initially receiving a positive response from the Immigration Office, one that should have included the working permit she needed so desperately, USCIS demanded that she provide records related to her criminal history.  Not only was this unnecessary, as these records would be acquired by USCIS directly upon the completion of their mandatory security background procedure, but it was also not required under the law.  In addition, this was presenting a formidable logistical obstacle for Karina as she did not even have access to all of the information related to her criminal history.

The immigration office would not heed attorney FitzGerald’s directives that her case should proceed based on her affidavit alone and instead they refused to process her case. At this point, attorney FitzGerald counseled Karina that her best option was to go to the federal court for relief.  He prepared a lawsuit against USCIS and the Department of Homeland Security, which explained the evidence that was required in support of a VAWA petition and how the demands from USCIS were unlawful.  Fortunately, for Karina, it did not take long for the US attorney’s office to review her Writ of Mandamus and determine that the conduct of USCIS was improper and unlawful.

The government quickly agreed to withdraw their baseless request and properly process Karina’s VAWA petition in return for the dismissal of her lawsuit.  That choice was easy for Karina.  She happily agreed to dismiss her lawsuit, knowing that there would be no more improper demands made of her and with the faith that her case would be approved.  It did not take long after attorney FitzGerald filed the lawsuit dismissal for Karina to be interviewed by USCIS and granted legal permanent residency in the US.  Finally, she was going to be allowed to live permanently legally in a country where she could now feel safe and protected.

The Path to Citizenship

Having received her US legal permanent residency, Karina was ready to move on with her life, so she took the step to file for divorce from John, her abusive husband. She did not have the original marriage certificate which was required for filing for divorce, so she filed a special request to have the case accepted with just a copy and it was allowed.

Karina obtained a summons from the court, served it on her defendant husband and filed that with the court.  It appeared like everything was completed.  Her defendant husband did not respond to the divorce in 21 days as the court summons ordered, so she believed she was done and she could finally put the entire tragic experience behind here.

She continued to progress at her office job, receiving several promotions and found herself in a stable relationship that eventually led her to get married again.  While she was busy working and raising her step-daughter, Karina decided it was time to apply for her U.S. citizenship.  She met with the attorneys at FitzGerald Law Company and was asked for the certificates that are usually required for a naturalization application (N-400), which included her divorce certificate.

It was at this time that she learned her divorce from her prior husband was never completed, and even worse, it meant she was married to 2 people at the same time, which is a crime that is serious under U.S. immigration law.  It also meant her current marriage was unlawful and it seemed like there was nothing that she could do and she could even lose her Green Card.

Fortunately, attorney FitzGerald was aware of a special authority or power that some of the courts in Massachusetts have, which is the power of equity or in simple terms, the power to make things fair.  This authority includes the power to issue an order that is dated as if it happened earlier in time.

Martin Luther King once said that “Justice delayed is Justice denied”, but the ability of the Massachusetts Courts to issue an order “Nuc Pro Tunc” at which is Latin for “Back in Time”, allow justice to prevail even when it would have seemed to be too late.

Attorney FitzGerald prepared a petition for the Divorce Court which explained the tragedy of Karina’s prior relationship, her struggle to get out of it and how terrible it was for her to manage a legal proceeding in which her perpetrator was involved.  It would be completely unjust if the technical continuance of that prior marriage could continue to destroy her life, her new marriage, and her immigration status.

The Divorce Court judge understood her situation and granted attorney FitzGerald’s request, ordering the date of her divorce “back in time” to the year in which it was originally filed.

Karina became a U.S. citizen the following spring and continues to move forward with a life she is finally in control.