Professor Birdsong’s student, Aliya Wisehart, has given permission to publish her well written and compelling paper wherein she proposes immigration reform for undocumented victims of domestic violence. You will learn a lot by reading this piece. Enjoy.
IMMIGRATION LAW REFORM TO PROTECT VICTIMS OF DOMESTIC VIOLENCE
Aliya Wisehart © 2012
I. Introduction
Maria was born and raised in Monterrey, Mexico. She entered the United States without inspection 7 years ago by walking across the Arizona desert. Her main purpose for coming to the United States was to be with her then-fiancé Corey, whom she met the summer he vacationed in her hometown. Maria and Corey fell in love quickly and passionately. Their whirlwind summer romance marked the beginning of a two year relationship of phone calls, emails, letters, and visits. Corey visited Maria in Mexico frequently and spoke Spanish fluently.
Maria came from a close-knit and wealthy family. She lived in an apartment in the city and enjoyed her job as a teller for a large bank in Monterrey. Despite the comforts of home and family, her love for Corey outweighed the risk of entering the United States illegally. The prospect of a life with this handsome southern gentleman from Georgia, prompted Maria to go against her better judgment. After Corey asked Maria’s father for her hand in marriage he proposed at a big family fiesta and then promised Maria he would bring her to the United States when the time was right.
While Maria waited for Corey to complete the immigration paperwork, the distance began to slowly take its toll. Corey started to pressure Maria to “just drop everything and come to Georgia”, saying things like, “I don’t know how much longer I can be without you.” Scared that Corey would not wait for her and that the distance was becoming too much for him to bear, Maria made a very impulsive decision. She decided to sneak across the border and into the United States. Demonstrating her determination and resolve, Maria was turned away five times before successfully entering Arizona on the sixth attempt. She rationalized that she and Corey were engaged and they could always straighten out the paperwork after they were married. Little did she know how vital this overlooked detail would prove to be.
Maria immediately traveled to Georgia and moved in with Corey right away. They were married less than a month later in a simple courthouse ceremony. As Maria began to settle into married life, she came to the abrupt realization that she did not know anyone except her husband and though she wanted to make friends, she could not communicate in English. Still, her love for Corey carried her through this very lonely time.
About six months after getting married, Corey and Maria attended a party together when Maria began conversing with a man there who also spoke Spanish. Desperate for conversation in her native tongue, Maria happily talked with a new found friend. When her husband saw her talking to another man, he stormed over to the two and ordered his wife to leave. Corey was enraged in a way Maria had never seen before. He grabbed her by the arm and pushed her into the car yelling all the way home about how she had humiliated him. Maria broke down and tried to explain to Corey that she was just happy to have someone to talk to in Spanish. His only response to her was that he should always be enough. The bruises on Maria’s arm from that night were unfortunately just the beginning.
After that night, Maria would not recognize Corey as the man she had risked everything for and left home to marry. Corey became angry and controlling. He drank and yelled and kept Maria extremely isolated. She didn’t have any money because she could not work legally and Corey never gave her any. She was trapped in her own home with no way to leave. At this time, Corey became violent during every argument. Slapping escalated into closed fist punching and bruises into broken bones. While Maria searched for a way out, Corey continued to dominate her life. He would go through spells of heavy drinking and abuse followed by apologies and remorse for what he had done. This pattern of abuse continued for seven years. During that time, Corey refused to purchase any type of birth control for Maria. Coupled with this was Maria’s cultural understanding and acceptance that a husband was allowed to physically abuse and require sexual acts from his wife at any time. Because of this mindset, Maria endured more than most and instead of getting out of the relationship; she ended up having two daughters with her abuser. Maria always considered her girls to be her greatest blessing, but since they were also Corey’s daughters and United States Citizens like their father, they deeply complicated an already impossible situation.
When the abuse started affecting their daughters, Maria tried to leave but did not get far. Corey immediately tracked her down, drug her home, and warned her that if she ever tried to leave again, he would call immigration, have her deported and make sure she never saw their daughters again. At this point, Maria lived in constant fear. If it was not fear for her own life and safety, it was fear of Corey taking away her daughters and having her deported. Corey had complete power over her and every move she made.
On December 26, 2011, in a moment of desperation, Maria and her two daughters fled to a battered women’s shelter in Orlando called Harbor House. Maria acquired the information of this safe house from a Spanish speaking woman she met at the church she was able to attend a handful of times. Harbor House was able to offer Maria protection, a place to stay, and free legal services. They referred her to Legal Aid, a nonprofit organization in Orlando offering free legal services to indigent people. Legal Aid was able to procure a permanent injunction for Maria against Corey giving Maria full custody of their two girls.
On January 5, 2012, I met Maria and her two precious daughters for the first time. I was assigned their case while working in the Barry Law School Immigration Clinic. It took several meetings to build the necessary trust between Maria and myself before she was able to tell me her full story. We filed and were granted a VAWA self-petition with the USCIS. This gave Maria Legal Permanent Residence (LPR) status so that she can work and live in the United States with her daughters. Maria currently has her own apartment and works at a local restaurant. Her daughters are both in school and the three are healthy, happy, and free from fear. Maria’s story is just one of many where a woman finds herself trapped in a situation with an abusive United States citizen spouse. By mere chance, through a woman at church, Maria was able to find and obtain the legal resources she desperately needed. Unfortunately though, the majority of women in these situations are not so lucky.
It is one thing to read about domestic violence against an undocumented woman and another to talk to that woman, see her scars, listen to her story, and watch the tears fall from her eyes. After meeting Maria and her daughters and seeing their struggles firsthand, I recognized the disparity of rights given to women who are U.S. citizens and women who are not. The right of a person to be free from domestic violence is within the inherent dignity of all people. This is not exclusively an American right.
This personal experience made me aware of the problems faced by battered spouses and has fueled my passion for finding some kind of solution. This paper consists of three main parts. First, I will discuss the background of domestic violence and statistics that have been gathered on the subject. Secondly, I will explain how the United States has responded to the problem of domestic violence as well as the evolution of immigration laws protecting battered immigrant women. Lastly, I will address necessary reform and possible solutions to this complex and multi-faceted crisis.
II. DOMESTIC VIOLENCE TOWARDS UNDOCUMENTED IMMIGRANT SPOUSES
- A. Definitions and Data
Domestic violence is defined as a pattern of abusive behaviors by one partner against another in an intimate relationship such as in family relationships, cohabitation, dating, or marriage.[1] It includes physical aggression or assault such as hitting, biting, kicking, shoving, restraining, throwing objects, slapping or threats of doing these things.[2] Domestic violence can also include sexual abuse, emotional abuse, controlling or domineering behavior, intimidation, stalking, and passive or covert abuse in the form of neglect and economic deprivation.[3]
The United States Center for Disease Control (CDC) divides domestic violence into two categories; Reciprocal and non-reciprocal violence.[4] Reciprocal violence is when violent behavior is displayed by both partners and non-reciprocal violence is where only one partner is violent.[5] Domestic violence can vary in frequency and severity. The continuum can range from one hit to severe battering.[6]
The CDC recognizes four main types of domestic violence.[7] The first type of violence is physical violence. Physical violence is the “intentional use of physical force with the potential for causing death, disability, injury, or harm.[8] Physical violence includes, but is not limited to; scratching, pushing, shoving, throwing, grabbing, biting, choking, shaking, slapping, punching, burning, use of a weapon, and use of restraints or one’s body, size, or strength against another person”.[9]
The second type of violence the CDC recognizes is sexual violence.[10] Sexual violence can be the use of physical force to compel a person to engage in a sexual act against his or her will, whether or not the act is completed.[11] It is also an attempted or completed sex act involving a person who is unable to understand the nature or condition of the act, to decline participation, or to communicate unwillingness to engage in the sexual act.[12] This impairment can be due to illness, disability, or the influence of alcohol or other drugs, or because of intimidation or pressure.[13] Sexual violence also includes abusive sexual contact.[14]
The third type of domestic violence recognized by the CDC is the threats of physical or sexual violence. This includes the use of words, gestures, or weapons to communicate the intent to cause death, disability, injury, or physical harm.[15]
The last category of domestic violence as defined by the CDC is psychological and/or emotional violence.[16] This type of violence involves trauma to the victim caused by acts or threats of acts of psychological abuse.[17] This abuse can include, withholding information from the victim, isolating the victim from friends and family, humiliating the victim, controlling what the victim can or cannot do, deliberately doing something to make the victim feel diminished or embarrassed, or denying the victim access to money or other basic resources.[18] Stalking is also included under this definition and is defined as “harassing or threatening behavior that an individual engages in repeatedly, such as following a person, appearing at a person’s home or place of business, making harassing phone calls, leaving written messages or objects, or vandalizing a person’s property”.[19]
It is imperative to have consistent definitions of the abuse defined under domestic violence. This consistent definition will help monitor the incidence and magnitude of domestic violence and can aid in examining trends over time.[20] This is necessary to measure risk and protective factors in order to aid in prevention and intervention.[21] Most importantly for the purposes of this paper, the USCIS use these definitions of abuse and domestic violence when considering whether a self petitioner has been battered or subjected to extreme cruelty by her citizen or LPR spouse thereby qualifying her for relief.
- B. Domestic Violence and the Law
Violence against women is not limited by socio-economic level, education, class, culture, borders or immigration status.[22] In a recent study by the Centers for Disease Control and Prevention and the National Institute of Justice, it was found that approximately 4.8 million intimate partner rapes and physical assaults are perpetrated against women annually.[23] “Violence against women means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” [24]
It is nearly impossible to identify exact numbers of those affected by domestic violence due to significant underreporting by victims.[25] The CDC estimates that between two and four million women are abused by intimate partners each year in the United States.[26] This translates to one in four women in the U.S. being abused in their lifetime.[27] The United States Surgeon General has warned repeatedly that family violence poses the single largest health risk to adult women. [28] Violence against women in the family and society is pervasive and cuts across lines of income, class and culture. [29]
For women who have immigrated to the United States, the dangers of an abusive relationship are even greater. [30] Historically, immigration laws have only exacerbated these harmful situations for many undocumented immigrant women. Not only are these women victims of abuse, many face language barriers, economic uncertainty, as well as gender, race, or ethnic discrimination.[31] The harmful effects of domestic violence are only magnified when one spouse is not a citizen and their legal status depends fully on their relationship with their United States citizen spouse.[32] In general, United States Immigration law gives a United States citizen spouse control over the immigration status of their family members by requiring their participation in filing the documents on their behalf.[33] This inherently traps and isolates many battered immigrant wives. For those who do not know about VAWA provisions for relief, these battered women become prisoners in their own violent homes in fear of deportation if they try to leave or find help.[34]
In Washington, D.C. a survey among Latina immigrants found that 21.7% of the battered immigrant women participants listed “fear of being reported to immigration” as their main reason for staying in an abusive relationship.[35] An abuser’s threats of deportation can be extremely powerful because they play upon real and deep-seated fears of deportation.[36] Abusers use these constant threats as a tool to prevent battered immigrant women from seeking help thereby keeping them in the violent relationship.[37]
Historically, United States immigration laws placed complete control over the legal immigration status of the battered immigrant in the hands of the United States citizen or legal permanent resident spouse.[38] If a U.S. citizen used domestic violence to control his spouse the structure of early immigration laws allowed this abuse without consequence. [39]
Since 1990 though, Congress has passed a series of amendments to criminal and legal services and immigration laws that reveal an evolving understanding of domestic violence and the hazards it creates for society as a whole, as well as to the individual victims (citizens, and non-citizens alike).[40] This new understanding has led to the creation of certain legal protections for battered immigrant women and their children in the United States.[41] For example, on December 7, 2000, the INS proposed regulations that would offer, for the first time, a way for battered immigrant women who had fled to the United States because of domestic violence in their home countries to receive gender-based asylum. [42]
Before these amendments, United States immigration laws actually fostered domestic abuse. Past immigration laws in the United States were created around the concept of coverture.[43] Coverture is “a legislative enactment of the common law theory that the husband is the head of the household.”[44] These laws were prevalent in the 1920s and gave male United States citizens and lawful permanent residents control over the immigration status of their immigrant wives and children.[45] These laws required the U.S. citizen husband to either file a petition for his wife or accompany her when she applied for immigration status.[46] Under these archaic laws, female U.S. citizens or lawful permanent residents were not allowed to file petitions for their male immigrant spouses.[47]
These laws created a culture where “the very being or legal existence of the woman was suspended during the marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection, and cover, she performed everything.”[48] Also incorporated into common law was the husband’s right of “chastisement'[49] to restrain his wife from “misbehavior,’ thus creating an environment in which spousal abuse was condoned by common law. [50] During this time, coverture was accepted as state sanctioned legal principle, creating a social atmosphere where domestic violence was not only condoned, but encouraged. [51]
Necessary changes were made with the Immigration and Nationality Act of 1952 (“INA”). The INA changed the statutory language of the past immigration laws so that they would be gender-neutral.[52] This gave women the right and ability to confer legal immigration status on her spouse, instead of just the other way around.[53] While it was a step in the right direction, the complete and total power of legal autonomy and sponsorship was held solely by the United States citizen or lawful permanent resident spouse.[54]
Since the majority of undocumented immigrant spouses and victims of domestic violence are women, the repercussions of spousal immigration sponsorship are in turn most severe for women.[55] “The law gives so much power to the citizen or resident spouse that the immigrant spouse is faced with an impossible choice: either remain in an abusive relationship or leave, become an undocumented immigrant and be potentially deprived of home, livelihood and perhaps child custody.”[56]
In 1986, Congress made a number of changes to immigration law that further jeopardized the safety of battered immigrant women.[57] The Immigration Marriage Fraud Amendments of 1986 (“IMFA”) gave even greater control to the citizen or lawful permanent resident spouse by requiring them to petition for their immigrant spouse’s legal permanent resident status.[58] Additionally, the legal resident could revoke that petition at any time prior to the issuance of permanent legal status to the immigrant woman. [59]
Finally, in 1990, Congress worked to reform immigration laws and protect battered immigrant spouses by enacting the “battered spouse waiver”.[60] This was the first piece of legislation recognizing domestic violence as a problem faced by immigrant women who were dependent on their spouses for immigration status.[61] The battered spouse waiver offered relief to battered immigrant spouses by defining domestic violence as “battering or extreme cruelty.”[62] Extreme cruelty can include insulting, taunting, and other conduct likely to cause humiliation, degradation, or fear. [59]
This definition changed due to the evolving international law definition of domestic violence, which included some forms of emotional abuse.[63] Because this new definition was based on international instead of U.S. law it was far more inclusive than the original U.S. domestic violence definition used in most state protection orders.[64] These protection orders and criminal domestic violence statutes only covered domestic violence that violated criminal laws.[65] This new definition was the first step the United States took towards immigration law protections being offered for humanitarian reasons.[66]
While the battered spouse waiver helped battered immigrant women escape abusive marriages it still did not provide a way for the immigrant spouse to become a citizen unless the resident spouse sponsored her.[67] Thus, the battered woman was essentially barred from attaining legal immigration status without her abuser’s help.[68]
Additionally, the INS complicated the waiver process by requiring battered immigrants to submit with their application evidence of “extreme cruelty” from a licensed mental health professional. [69] This requirement marked a financial and emotional hurdle that made the process much more difficult for women seeking relief.
III. THE UNITED STATES AND VAWA
- A. VAWA I
The Violence Against Women Act of 1994 (“VAWA I”), was the first piece of federal legislation in the United States specifically designed to help reduce domestic violence.[70] The goals of VAWA I were to bring justice and protection to battered women and to increase collaborative efforts between battered women and supportive services and the criminal and civil justice systems.[71]
The VAWA I provisions provided funding for a national domestic hotline, state domestic violence coalitions, battered women services, prosecutors and police services.[72] Additionally, VAWA I provided incentives to any jurisdiction that would fund or take measures to put an end to practices that were harmful to battered women.[73] Congress found that domestic violence threatens the wellbeing, safety and lives of millions of women and children in the United States each year.[74] When VAWA I was enacted, Congress noted that the act was “an essential step in forging a national consensus that our society will not tolerate violence against women”.[75] In a 2000 national violence against women survey, researchers found that approximately “30.4% of all women in the United States are physically abused by a husband or male co-habitant at some point in their lives”. [76]
Congressional reports also noted that immigration laws in the United States at the time failed to confront the domestic violence issue.[77] The House of Representatives Committee on the Judiciary found that domestic abuse problems are “terribly exacerbated in marriages where one spouse is not a citizen and the non-citizens’ legal status depends on his or her marriage to the abuser.” [78] This report also discussed how an abuser’s threat of deportation or fear of deportation can deter a battered spouse to take action that would protect herself and her children. [79] These actions can include calling the police, filing for a civil protection order, or filing criminal charges.[80] These conditions can then lead to the battered spouse to a life trapped in a violent home, afraid to ask anyone for help.[81]
By enacting the VAWA I immigration provisions, Congress intended to protect battered immigrant women and children and also enhance their ability to legally prosecute abusers by giving them the protection of legal immigration status.[82] Subtitle G of VAWA I provided protections specifically for battered immigrant women and children.[83] Subtitle G also gave USCIS the authority to grant immigration benefits to battered immigrant women married to abusive United States citizen or legal permanent resident husbands without the abusers’ knowledge or consent.”[84] VAWA I’s battered immigrant provisions permit two types of relief. The first provision allows the battered immigrant spouse to self-petition for lawful permanent resident status.[85] This self-petition allows women to petition for permanent residency on their own and without the cooperation of their United States citizen abuser.[86] The second VAWA I provision allowed for the suspension of deportation.[87] This provision would allow battered immigrant women who are in deportation proceedings the ability to stay in the United States.[88]
- B. VAWA II
In 2000, Congress recognized again that the immigration protections of VAWA I were not completely adequate in protecting battered immigrant women.[89] Thus, Congress addressed this lack of protection with “Division B of the Victims of Trafficking and Violence Protection Act of 2000” (“VAWA II”). [90] Title V of VAWA II is entitled the Battered Immigrant Women Protection Act of 2000 (“BIWPA”). [91]
BIWPA contained three main improvements. The first improvement was the ability and authorization for a battered immigrant woman to self-petition. [92] This provision requires an immigrant woman to demonstrate that: i) she is a person of good moral character; ii) she has lived in the United States with her citizen or LPR spouse; iii) she is currently residing in this country; iv) she married in good faith; v) during the marriage, the alien or her child was battered or subjected to extreme cruelty by her spouse; and vi) deportation would result in extreme hardship to her or her child.[93] This self-petition would protect a battered spouse and enable them to leave an abusive situation without fear of deportation or putting their legal status in jeopardy. [94]
Secondly, BIWPA improved relief for suspension of deportation (which has-since been renamed cancellation of removal).[95] Cancellation of removal requires that an applicant be “deportable”. Anyone present in the United States without legal immigration status is “deportable”. [96] A battered immigrant woman may apply for cancellation of removal under this provision if she can prove that: i) she has been physically present in the United States for at least three years immediately prior to the application; ii) she was battered or subjected to extreme cruelty by her citizen or LPR spouse; iii) she is of good moral character; and iv) deportation would cause extreme hardship to her or her child.[97] This relief comes about when a sponsor-husband fails to file an initial petition for residency for their undocumented battered spouse.[98] This provision allows a battered spouse to leave without the threat of deportation.
Lastly, BIWPA established a new U-visa option for violent-crime victims.[99] This was an option given to battered immigrant women who would otherwise be ineligible for VAWA relief.[100] The new provisions of VAWA II have given undocumented immigrant women a voice and have contributed to the ability of these battered spouses to remain in the United States while also improving community safety.[101] Additionally, VAWA I and II have removed the antiquated notion of coverture in immigration law.[102]
Even with the most recent improvements to immigration laws through VAWA I and II, there are still serious barriers to relief for undocumented immigrant victims.
- IV. CURRENT BARRIERS TO THE VAWA SELF PETITION
Although immigration laws have changed drastically, there are still significant problems with the current system in regards to battered immigrant spouses who are undocumented. Some of these barriers include language barriers when completing a VAWA application, The U.S. Supreme Court upholding state statutes like “show me your papers” in Arizona, along with the fact that VAWA is currently stymied in Congress.
- A. Language Barriers
These barriers were glaringly obvious in Maria’s situation. A church member gave Maria a copy of the VAWA application, Form I-360,[103] but it was only available in English and Maria was unable to understand it.[104] Maria also could not figure out if the I-360 was the correct form. Nowhere on the I-360 did it say it was for a VAWA claim. The language on the form impeded Maria’s ability to access VAWA remedies because, she was unable to understand the five pages of instructions in college-level English and fill out a four-page application.[105]
Maria was required to send in evidence with her application.[106] This was extremely difficult since Maria could not read amd understand the English-language documents she was required to send,[107] It was also nearly impossible to locate and remove these documents without creating suspicion in abusive husband Corey.[108] Still other documents she possessed and was required to send with the application were in Spanish and Maria did not know anyone who could certify the translation nor did she have the money to pay a translator to do this. There were also a few documents Maria needed to request from agencies or organizations which were only available in English. These agencies typically have few or inadequate “limited English proficient” accommodations that might help Maria in her request. [109] Due to these language barriers alone, Maria would have been unable to obtain VAWA relief on her own.
- B. Arizona’s “Show me your papers” Law
Even though Maria may not speak or understand English well, she was well aware of the new laws in Arizona allowing law enforcement to demand documentation if they are at all suspicious that someone may be present in the U.S. illegally. Corey reminded her all too often what could happen if she went to the police to report his abuse. Her undocumented status created a fear of United States law enforcement that stopped her in her tracks if she even contemplated leaving the abusive situation.
Known commonly as “show me your papers”, this new Arizona law was found by the United States Supreme Court to be constitutional and therefore upheld and valid in the state of Arizona.[110] Whether intentional or not, this law has created an extremely fearful atmosphere for victims who are greatly discouraged from reporting their abusers due to pure fear of their undocumented immigration status. This law directly increases the number of victims and the quantity and power of abusers. It not only fosters domestic violence but also creates an incentive for abusive or power-seeking U.S. citizens to find a spouse who is undocumented.
On April 23, 2010, Governor Jan Brewer of Arizona signed Senate Bill 1070 (SB1070),[111] also known as an “Anti-Immigration Law.” [112] This law is considered by most to be the “nation’s toughest bill on illegal immigration”.[113] It’s purpose is simple: identify, prosecute, and deport illegal immigrants.[114] One day before this law was to go into effect, a federal district judge issued a preliminary injunction, in an effort to prevent implementation. This judge was concerned that many of the provisions in this law would have a detrimental effect on battered immigrant women (like Maria).[115] This federal court found these provisions would likely be found unconstitutional because they were preempted by immigration law at the federal level.[116]
The provisions expected to be found unconstitutional included “(1) the requirement that state officials determine the immigration status of everyone arrested or detained under local laws and prohibit their release until such a determination has been made,[117] and (2) the creation of independent state penalties for immigrants who fail to carry alien registration documents as required under federal law.” [118]
The law ended up in the Supreme Court with a split decision given in June 2012.[119] Although leaving the door open for challenges, the court unanimously sustained the “show me your papers” provision.[120] This provision requires law enforcement to verify the immigration status of anyone they stop and also allows them to check the status of anyone they may suspect of being in the country illegally. [121]
Even though the other provisions of the law were struck down by the Supreme Court, the “heart of the law” was upheld.[122] The “show me your papers” provision was found to be valid and in turn creates egregious obstacles to women seeking protection and relief under VAWA.[123] Specifically, SB1070 creates exceptionally negative consequences for an undocumented woman reporting abuse to authorities. Since law enforcement are required to check immigrant documentation first, the victim is penalized before they can even be heard. SB1070 also destroys the small amount of trust an undocumented battered woman may have had in law enforcement. [124] The provision creates an overall environment of fear as well as an individual sense of terror in battered undocumented women. It fosters abusive situations and discourages citizens in the state from offering assistance to undocumented battered women due to the possibility of their “help” causing the victim to be deported.[125] As a result, SB1070 serves to deter undocumented battered women from reporting their abuser and seeking relief under VAWA. [126]
Due to the fact that undocumented battered women do not have the identification required by SB1070, they are subsequently discouraged from trying to contact police or even leave their homes in an effort to seek relief under VAWA. [127] The identification provision of SB1070 requires that all citizens and immigrants carry relevant identification documents. [128] “Willful failure to complete or carry an alien registration document” constitutes a new state criminal offense in Arizona. [129] Furthermore, under SB1070, a person is presumed to be a legal resident of the United States if they can present any of the following documents when stopped: (1) a valid Arizona driver license, (2) a valid Arizona non-operating identification license, (3) a valid tribal enrollment card or other form of tribal identification, or (4) if the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state, or local government issued identification. [130]
If a person who is stopped by law enforcement is not carrying the proper documentation, it is considered a Class 1 misdemeanor, which is punishable with a maximum fine of $100 and twenty days of jail time. [131] The penalty increases to thirty days jail time for any subsequent offenses. [132] This requirement is particularly harsh when applied to undocumented battered women in Arizona for several reasons. First, these women do not possess the necessary identification documents because their abusive husbands control their access to the immigration process. [133] This provision of SB1070 is in direct conflict with VAWA which does not mandate that a woman present any form of identification as part of qualifying for relief. [134] In fact, an undocumented battered woman is eligible for relief under VAWA precisely because she does not have the proper documentation or necessary identification to otherwise help herself through the immigration process. [135]Nevertheless, since these battered women cannot disprove the presumption that they are illegally in the United States if they are stopped by law enforcement, SB1070 prevents them from leaving an abusive home and seeking relief under VAWA. [136]
Secondly, identification documents are not required under VAWA and the official government issued documentation can take over a year to be received by a woman self- petitioning for them. [137] The current standard processing time for VAWA petitions is approximately fourteen months. [138] In the meantime, the applicant may only have a letter stating that she filed an application for VAWA relief. This letter does not satisfy SB1070’s identification requirements. [139] The federal government may be aware that an undocumented woman is here illegally while she is in the process of obtaining relief under VAWA, and still not penalize her by initiating deportation proceedings.[140] Arizona’s SB1070 fails to consider this possibility and assumes that the woman will have the required documentation immediately upon applying for VAWA relief.[141] Ultimately, due to SB1070, “the predicament of being in limbo – applying for legal status, but lacking official identification – affects potentially thousands of people who are either applying for asylum or visas.” [142]
Many non-citizens are currently present in the United States without formal permission. They also lack the “registration document” mandated by SB1070, but would not be removed if placed in federal removal proceedings. [143] An example of this is an individual who is eligible for some form of immigration relief, such as asylum. This individual is known to the federal government; but is not identified until they are actually placed in proceedings by the federal government and their case is adjudicated.
SB1070 mandates that battered immigrant women have the required documentation with the intent to imprison and refer them to federal authorities if they do not. [144] As mentioned earlier, the federal government may already know that they are self-petitioners and would not require imprisonment up to their grant or denial.[145] SB1070 thus serves to discourage these women from contacting police or leaving their homes. It essentially penalizes them for an undocumented status perpetuated by their abusive husbands. [146] Consequently, the provision counteracts the efforts of VAWA and prevents these women from attempting to seek the relief it offers.
Unfortunately, SB1070 threatens to silence battered undocumented immigrant women through provisions that focus on status rather than safety. [147] VAWA has made great strides in furthering equality and ensuring that women are not victims because of their status. SB1070 undoes this progress by victimizing these women and offering immunity to their abusers. [148]
- C. “Good Moral Character” and VAWA Reauthorization
There is also a potential barrier in regards to the good moral character requirement in the VAWA self-petition. Actions taken against a woman flowing from her experience of abuse may affect the good moral character requirement. [149] These actions include an abuser filing for custody of children based on an immigrant woman’s undocumented status, bringing counter charges against the wife in criminal proceedings, or government agencies such as Department of Social Services intervening to take children away from the woman. [150] Due to their unique legal circumstances, a battered immigrant women’s individual situation must be taken into account by the USCIS when determining “good moral character” eligibility.
In addition to the above mentioned barriers, this year Congress voted on the reauthorization of the Violence against Women Act (VAWA) for another four years.[151] This legislation was passed easily in the Senate but is currently stymied due to opposition from House Republicans.[152] House Republicans are instead pushing their own version of VAWA which would limit relief given to undocumented immigrants.[153] In a statement after the Senate vote, Senator Patty Murray (D-Washington) said, “Expanding coverage for domestic violence should never have been controversial. Where a person lives, who they love, or what their citizenship status may be should not determine whether or not their perpetrators are brought to justice.” [154]
V. NECESSARY REFORM
A life free from violence and abuse is an inherent right that human dignity demands. Battered immigrant women now face uncertainty and problems that must be addressed with a comprehensive approach to guarantee that actions are taken to protect their human dignity. Due to the current barriers impeding that right for individuals in the United States, multi-faceted reform is essential. Positive modifications are necessary and can be propagated through three central methods 1) education and awareness, 2) state based regulations and training and 3) passage of the current Senate version of VAWA 2012 legislation.
The first method of reform is education and awareness. It is crucial for U.S. Citizens to be aware that domestic violence is a serious issue for undocumented immigrants. This education should be available to citizens early and often. Programs increasing awareness can be implemented in public schools and community programs. This will increase the likelihood of educated citizens voting and being involved in the creation of positive legislation that will protect victims of abuse.[155]
In addition to citizen awareness, immigrants must also have access to education about their rights. Cultural barriers can be a huge obstacle for an individual seeking necessary help.[156] Many cultures accept domestic violence and abuse as a norm.[157] Additional cultural obstacles can include; isolation from their family and community, not knowing English, and feelings of shame.[158] Any or all of these factors might prevent an immigrant woman from seeking help, leaving an abusive relationship, and/or finding women’s shelters or other social services.[159] These cultural barriers must be recognized at the community level and should be addressed in a manner that is sensitive to the individual.[160]
Education and outreach are important ways a community can address these needs. Education about domestic violence should be accessible to people of all racial and ethnic groups and include services to language minority communities.[161] The education and outreach programs should promote awareness about the rights and options available to immigrant women in domestic violence situations.[162]
These rights and options can be disseminated in pamphlet form throughout the community.[163] The pamphlet should be offered in several different languages. It is crucial that the information be available in places of high traffic such as; English as a second language classrooms, local churches, ethnic fairs, local community shops, cultural centers, hospitals, schools, legal service buildings, community centers, libraries, and any immigrant organizations in the community.[164] Public awareness campaigns using local media outlets are also an excellent way to educate the community.[165] Information can be given about domestic violence, local support services, and shelters.[166] These campaigns are particularly effective when broadcast on television and radio in multiple languages.[167] Communities can also increase education and awareness by providing non-English speaking individuals with greater access to translators.[168] Effective translation should be available in hospitals, social services, mental health services, courts, and police stations.[169]
Secondly, lobbying and involvement in the creation of state regulations will have a direct impact on the community atmosphere and forms of relief available to battered immigrant women. State statutes must give victims of violence a reasonable way out of an abusive situation. State statues, unlike Arizona’s SB1070, should uphold all VAWA provisions protecting battered women. INS regulations must also be updated to authorize swift work authorization to self-petitioners so that they can conquer economic barriers and gain independence from their abuser.[170] These types of realistic INS regulations are necessary so that battered immigrant women are able to not only leave but remain separated from their abuser.[171]
Another important regulation that must be revised involves United States marriage licenses. Currently, in the United States, a U.S. citizen can marry an undocumented immigrant in the United States with zero issues.[172] I propose that this be changed in an effort to protect undocumented immigrants from entering into a marriage where a power struggle is inevitable. If this type of regulation infringes too greatly upon personal freedom and privacy, I would suggest at the minimum a required informed consent in the native language of both parties. Before a legally binding marriage of a United States citizen and undocumented non-citizen, the non-citizen must be informed of the dangers of entering into the marriage and their options and protections should they experience any type of abuse.
Training is also necessary at the state and community levels. [173] It is essential that every person in the community who might come in contact with a domestic violence victim have the proper training in dealing with those situations.[174] The individuals most likely to interact with victims of domestic violence are lawyers, judges, and police officers.[175] Appropriate training includes instruction on multi-cultural aspects and appropriate responses.[176]
Lastly, the passage of the current 2012 Senate version of VAWA is necessary for undocumented immigrant spouses to be free from abuse and mistreatment. Voters can contact their local representative and request that they vote in favor of the version of VAWA passed by the Senate. Lobbyists could also be crucial in the reauthorization of this act. On May 15, House Republicans ignored President Obama’s veto threat and passed their own regressive version of VAWA.[177] This bill does not include new protections for immigrant victims and rolls back protections for undocumented immigrant women who “report abuse and cooperate with law enforcement.”[178] At present, reconciliation of the two VAWA bills has been stymied leaving the reauthorization in limbo.[179]
VI. CONCLUSION
In conclusion, this paper began with the true story of Maria, an undocumented immigrant woman who was a victim of domestic violence at the hands of her United States citizen husband. Her story revealed the real-life struggles and obstacles faced by a battered undocumented woman trying to self-petition out of an abusive situation. Despite her good intentions of re-uniting with her fiancé, the repercussions of her decision to marry a United States citizen as an undocumented immigrant resulted in devastating consequences for her and her children.
I then provided definitions and data about domestic violence towards undocumented immigrant spouses. Domestic violence is a pattern of abusive behaviors by one partner against another in an intimate relationship. Domestic violence includes reciprocal and non-reciprocal violence and can be in the form of physical violence, sexual violence, threats of violence, and psychological and/or emotional violence. I noted the importance of a consistent definition for purposes of the USCIS establishing and granting relief to self-petitioners.
Next I discussed domestic violence in reference to past United States law which was based on the archaic idea of coverture. This common law principle created a huge disparity in rights and led to the evolution and enactment of VAWA I and VAWA II. The Violence against Women Acts (I & II) extended protections to victims of domestic violence and in particular to battered undocumented immigrant women. VAWA II increased protections and improved VAWA I while still leaving room for additional improvement.
Subsequently, I went over several barriers that exist in regards to the VAWA self petition and additional improvement that can and should be made. I covered barriers such as language barriers for non-English speaking women trying to file a VAWA self-petition. I also discussed the need for constant and necessary advancement of protections for battered women. This advancement must be conscious and unwavering especially in the face of laws such as Arizona’s “show me your papers”. These types of laws end up causing a digression in rights and protections for battered women and must be fought against. The current VAWA legislation is a barrier at the present time because a new and improved version is stymied in Congress. The reauthorization of VAWA which include protections for undocumented immigrant women is crucial to our moving forward as a nation characterized by equality and human dignity.
Finally I proposed necessary reform to overcome the current barriers to relief. This reform should begin with communities and extend through state and federal legislation. The three central methods I focused on were 1) education and awareness 2) state based regulations and training and 3) passage of the current version of VAWA 2012 legislation.
The United States through VAWA II recognized and responded to the horrific violence faced by immigrant women who are trapped in abusive relationships. However, as I have described in detail, these protections are constantly being threatened and therefore must be met with action from communities, individual states, and the federal government. Domestic violence against women with no protections or form of relief is a flagrant violation of human dignity. The United States must protect and promulgate basic human rights. These efforts should start with communities and individual states and be carried over and supported nationally and internationally through the common aspiration of human dignity for all.
[1] Shipway, Lyn. Domestic Violence: A Handbook for Health Care Professionals. London: Routledge, 2004. Print.
[2] Id.
[3] Id.
[4]Whitaker, D. J.; Haileyesus, T.; Swahn, M.; Saltzman, L. S. (2007). “Differences in Frequency of Violence and Reported Injury Between Relationships with Reciprocal and Nonreciprocal Intimate Partner Violence”. American Journal of Public Health 97 (5): 941–947
[5] Id.
[6] Id.
[7] Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, 20 Sept. 2010. Web. 21 Nov. 2012. https://www.cdc.gov/ViolencePrevention/intimatepartnerviolence/definitions.html.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Tjaden P, Thoennes N. Stalking in America: Findings from the National Violence Against Women Survey. Washington (DC): Department of Justice (US); 1998. Publication No. NCJ 169592.
[20] Saltzman et al. 2002. Saltzman LE, Fanslow JL, McMahon PM, Shelley GA.
[21] Id.
[22] Id.
[23] Patricia Tjaden & Nancy Thoennes, Extent, Nature and Consequences of Intimate Partner Violence: Findings from the national violence Against Women Survey, iii (Nat’l Inst. of Just. & Ctrs. for Disease Control and Prevention, NCJ 181867, 2000).
[24] Id.
[25] Centers for Disease Control and Prevention. Centers for Disease Control and Prevention, 20 Sept. 2010. Web. 21 Nov. 2012.
[26] Id.
[27] S. Rep. No. 138-138, at 41-42 (1993).
[28] Leslye E. Orloff & Nancy Kelly, A Look at the Violence Against Women Act & Gender-Related Political Asylum, Vol. 1, No. 4 Violence Against Women 380 (1995).
[29] Id.
[30] H.R. Rep. No. 103-395, at 26-27 (1993).
[31] Id.
[32] 146 Cong. Rec. S10,195 (daily ed. Oct. 11, 2000).
[33] Marry Ann Dutton et al., Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas, 7 Geo. J. on Poverty L. & Pol’y 245, 271 (2000).
[34] Id.
[35] Id. at 292.
[36] Id.
[37] Orloff & Kelly, supra note 3, at 380.
[38] Id.
[39] 65 Fed. Reg. 76,588-98 (proposed Dec. 7, 2000).
[40] S. Rep. No. 81-1515, at 414 (1951).
[41] Id.
[41] Id.
[42] Act of May 29, 1921, Pub. L. No. 5, 2(a), 42 Stat. 5 (1921).
[43] Act of May 26, 1924, Pub. L. No. 139, 4(a), 43 Stat. 155 (1924).
[44] Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 San Diego L. Rev. 583, 596-97 (1991).
[45] W. Blackstone, Commentaries on the Laws of England 432 (1765).
[46] Id.
[47] Calvo, supra note 18, at 593.
[48] Id.
[49] INA 101(a)(27), 204, 205 (codified as amended in scattered sections of 8 U.S.C.).
[50] Id.
[51] INA 204(a), 205; 8 U.S.C. 1154; 8 C.F.R. 205.1(a)(1).
[52] S. Rep. No. 101-545, at 30 (1990); H.R. Rep. No. 103-395, at 26 (1993).
[53] Calvo, supra note 18, at 610.
[54] Id.
[55] Id.
[56] Id.
[57] Immigration Act of 1990, 701, Pub. L. No. 101-649, 104 Stat. 4978 (1990).
[58] 8 U.S.C. 1186a(c)(4); Calvo, supra note 18, at 613.
[59] Declaration on the Elimination of Violence Against Women, G.A. Res. 104, U.N. GAOR, 48th Sess., Agenda Item 111, U.N. (1994).
[60] Id.
[61] Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection for Battered Women, 21 Hofstra L. Rev. 801, 870-73 (1993).
[62] Id.
[63] Conditional Basis of Lawful Permanent Residence Status, 8 C.F.R. 216.5(e)(3)(iv)-(vii) (2001).
[64] Id.
[65] Id.
[66] VAWA 2000, 146 Cong. Rec. S10192 (Oct. 11, 2000).
[67] Id.
[68] VAWA 1994 40121, 40231, 40295.
[69] VAWA 1994 40231.
[70] S. Rep. No. 103-138, at 41-42 (1993).
[71] Id.
[72] Tjaden & Thoennes, supra note 1, at iv.
[73] H.R. Rep. No. 103-395, at 26.
[74] Id.
[75] Id.
[76] Id.
[77] See H.R. Rep. No. 103-395, at 26-27 (1993).
[78] VAWA 1994 40703(a) (codified at 8 U.S.C.A. 1254(a)).
[79] Id.
[80] Id.
[81] VAWA 1994 40701(a) (codified at 8 U.S.C. 1154(a)(1)).
[82] VAWA 1994 40703(a) (codified at 8 U.S.C. 1254(a) (amending INA 244(a)).
[83] Id.
[84] VAWA I, supra note 1, 40,703.
[85] Calvo, supra note 18, at 598.
[86] VAWA II, supra note 2.
[87] VAWA II, supra note 2, 1504 at Title V.
[88] Id.
[89] Gail Pendleton & Sarah Ignatius, New Immigration Relief for Women and Children Suffering Abuse, 22(4) Immigr. Newsl. (Nat’l Immigr. Project of the Nat’l Law. Guild, Boston, MA) June 1995, at 24.
[90] Self Petitioning for Certain Battered or Abused Spouses, 61 Fed. Reg. 13061, 13062 (1996).
[91] 8 U.S.C. §1186a(b)(1).
[92] 8 C.F.R. § 216.5(e)(3)(i) (1996).
[93] 8 U.S.C. § 1154(a)(1)(A)(iii)(I).
[94] Id.
[95] VAWA II, supra note 2, 1504.
[96] Id.
[97] Orloff & Kelly, supra note 3, at 380.
[98] Id.
[99] Id.
[100] Id. at 1513
[101] Id.
[102] Id.
[103] U.S. Citizenship & Immigration Servs., Petition for Amerasian, Widow(er), or Special Immigrant (Sept. 11, 2000) https://uscis.gov/graphics/formsfee/forms/i-360.htm.
[104] Cf. Lee, supra note 35.
[105] See Form I-360, supra note 56, at Instructions 1.
[106] Calvo, at 617
[107] Id.
[108] Id.
[109] Id.
[111] Id.
[112] Alexander Ryland, Why Arizona’s Anti-Immigration Law Will Hurt the State’s Economy, Christian Sci. Monitor (July 30, 2010), https://www.csmonitor.com/Business/The-Adam-Smith-Institute-Blog/2010/0730/Why-Arizona-s-anti-immigration-law-will-hurt-the-state-s-economy;
[113] Archibold, supra note 2.
[114] Id.
[115] United States v. Arizona, 703 F. Supp. 2d 980, 1007-08 (D. Ariz. 2010).
[116] Arizona, 703 F. Supp. 2d at 1007-08.
[117] Ariz. Rev. Stat. Ann. § 11-1051(B) (2010); see also Arizona, 703 F. Supp. 2d at 993-98.
[118] Ariz. Rev. Stat. Ann. § 13-1509 (2010); see also Arizona, 703 F. Supp. 2d at 998-99.
[120] Id.
[121] Id.
[122] Id.
[123] Id.
[124] Id.
[125] https://www.huffingtonpost.com/2012/04/26/violence-against-women-act-passes-senate_n_1456839.html
[126] Id.
[127] Id.
[128] Id.
[129] Id.
[130] Id.
[131]Self Petitioning for Certain Battered or Abused Spouses, 61 Fed. Reg. 13061, 13062 (1996).
[132] Id. at 130
[133] Id.
[134] Id.
[135] Id.
[136] 703 F. Supp. 2d at 993-98
[137] Id.
[138] 703 F. Supp. 2d at 998-99
[139] Id.
[140] Id.
[141] S. Rep. No. 103-138, at 41-42 (1993).
[142] Id. at 47
[143] Id.
[144] Id.
[145] Id.
[146] Id.
[147] Id.
[148] Id.
[149] Id.
[150] Id.
[151] https://www.nytimes.com/2012/07/24/opinion/delay-on-violence-against-women-act.html?_r=0
[152] Id.
[154] Id.
[155] Id.
[156] Id.
[157] Id.
[158] Id.
[159] Id.
[160] Archibold, supra note 2.
[163] Id.
[164] https://www.nytimes.com/2012/07/24/opinion/delay-on-violence-against-women-act.html?_r=0
[165] Id.
[166] Calvo, at 627
[167] Id.
[168] Id.
[169] Calvo, at 628
[170] Id.
[171] Id.
[172] Id.
[173] Id.
[174] Id.
[175] Id.
[176]Calvo, at 629
[177] Id.
[178] Id.
[179] Id.
