Remembering the Purpose of the VAWA: Protecting Abused Immigrants

JURIST Assistant Editor Brandon Gatto, University of Pittsburgh School of Law Class of 2013, argues for the reauthorization of the Violence Against Women Act to better protect immigrant partners and spouses from abuse... (His opinions are not intended to represent those of JURIST)
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While it remains surprisingly and disconcertingly true that roughly one-quarter of all women in the US will incur some form of partner violence during their lives, it is even more disturbing that immigrants are three to six times more likely to experience domestic violence. Although precise numbers are difficult to gauge, Leslye Orloff, vice president and director of the Immigrant Women Program, testified before Congress that between 34 and 49.8 percent of immigrant women in the US are victims of domestic violence. She said that this percentage jumps to a harrowing 59.5 percent when considering married immigrants, and a startling 77 percent when considering women who depend upon their spouses for legal immigration status. Furthermore, because of language barriers, threats of deportation and other cross-cultural barriers, these percentages are likely low due to unreported incidents. To address this tragedy, Congress, in 2000, reauthorized the Violence Against Women Act (VAWA) and created the U Visa, a mechanism by which battered immigrant spouses can self-petition the US Citizenship and Immigrant Service (USCIS) for a stay in the US.

Among various problems with the process, the most detrimental was the government's failure to devise U Visa regulations until seven years after the U Visa was created. According to a Department of Homeland Security (DHS) report [PDF], between 2000 and 2008, a total of 12,151 immigrants had filed U Visa applications, but because of the delay in guidelines, only 50 U Visas were formally approved, as of January 2009. To make matters worse, only nine of the petitions submitted were actually denied or withdrawn, the other 12,092 were put on indefinite hold.

Even if the problems plaguing the process were remedied, sadly, U Visas are capped at 10,000 per year, which has only been met over the last two years. In response, Congressional Democrats have proposed increasing the cap to 15,000 to compensate for the eight-year backlog and to distribute the thousands of unissued, leftover U Visas. With Republicans drawing a hard line on the controversial issue of immigration, however, some politicians appear to be forgetting that one of the original rationales for creating the VAWA was "to encourage law enforcement officials to better serve immigrant crime victims." With this in mind, I offer this opinion as a means to first educate those unfamiliar with the challenges faced by battered immigrant spouses, and second, as a suggestion for improving the VAWA's U Visa application process to more effectively accomplish the purpose of the act.

Although immigrant partners and wives face obstacles similar to those of domestic ones, there are several cultural barriers that intensify these problems for immigrants, which require a remedy. First, immigrant women may be unaware that partner abuse is against the law in the US, because it is legal in many other countries. Moreover, these women may be wary of requesting police services in the US, due to law enforcement inefficiencies in their host countries. In an interim regulation, relying on research, Congress has declared that, "[a]lien victims may not have legal status, and therefore may be reluctant to help in the investigation or prosecution of criminal activity for fear of removal from the United States." As a method to control immigrant wives and partners, the batterer reinforces these fears.

Second, while many domestic women feel pressure to stay in relationships due to social conventions, immigrant women are often more likely to stay in relationships due to the varying social conventions of their countries of origin. This creates the fear that, not only may they be deported if they report their batterer to the police, but that they may also have to face family members as a shunned divorcee.

Finally, language serves as the most obvious barrier that prevents many immigrant women from taking legal action against their abusers. Not only may a woman have difficulty conveying the physical and mental abuse perpetrated against her by her batterer, she may also be isolated from the legal and social services available to her due to a language barrier.

The original self-petition process of the VAWA of 1994 required that the applicant prove that she is of good moral character, that her marriage was entered into in good faith and that deportation would result in extreme hardship to herself or her children. A spouse who is either a US citizen or a lawful permanent resident must also have battered the petitioning immigrant or child. To compensate for potential fraud, the US Attorney General was allowed to consider and weigh any credible evidence relevant to an applicant's petition for legal residency.

The VAWA of 2000 lessened the burden of proof by no longer requiring battered immigrant women to show that leaving the US would be an "extreme hardship." Most significantly, the creation of the U Visa allowed immigrant woman to self-petition even if not married to a US citizen or lawful permanent resident. Accordingly, petitioners who could show that they suffered substantial physical or mental abuse as a result of domestic criminal activities might be granted relief status through a four-year stay in the US, employment authorization eligibility and the possibility of receiving permanent residency in the future. To be eligible for such relief, the victim must obtain proof that they have been helpful to the investigation of their domestic abuse from a "certifying official" at a "certifying agency," which can be a federal, state or local law enforcement agency, prosecutor, judge or other authority, that has the responsibility for investigating or prosecuting domestic abuse crimes.

Although VAWA was again reauthorized in 2005, to allow a temporary stay for immigrant victims cooperating in criminal proceedings, battered immigrant victims still face a high burden in establishing that their marriage was entered into in "good faith." Rather than giving victims the benefit of the doubt and presuming that they did not intend to enter into an abusive relationship, the current petitioning presumption is that the immigrant married dishonestly to gain citizenship. Due to the aforementioned cross-cultural barriers, this burden may prove insurmountable for many victims lacking proper assistance, and essentially prevent potential relief. This burden is particularly heavy for immigrant victims who are part of the "mail-order" bride system, as the legitimacy of such marriages is often negatively stigmatized in society. Some politicians, including Iowa's Republican Senator Chuck Grassley, have used the "sham marriage" rationale to defend capping U Visas at 10,000 a year, declaring that, "[caps] are a stop-gap measure against fraud." Rather than follow in the progressive direction of recent VAWA reauthorizations, Grassley has proposed further restrictions on U Visas, including in-person interviews of applicants and a requirement that battered immigrants obtain a doctor's note documenting their abuse. Though Grassley believes the additional measures would improve the U Visa procedure, it is far more likely that such requirements would only restrain an already backlogged process that has just recently found its legs. USCIS is already equipped with an anti-fraud department and, more significantly, local law enforcement agencies dealing directly with victims often serve as certifying officials, and thus, safe guard against deceitful endeavors even before applications arrive at the federal office.

Not surprisingly, the sole agency with authority to process and accept U Visa applications is USCIS. While such authority must necessarily remain with this federal agency, immigrant victims are further burdened by the U Visa's Form B, which mandates that U Visa applications be certified at the discretion of USCIS agency heads or other approved individuals, such as judges, before the applications may even be reviewed. Form B provides that the agency is under "no legal obligation" to certify forms for review, even despite the fact that non-certified forms are immediately ineligible for review. During the eight-year backlog, only 85 U Visa petitions were considered for review, and even less received formal approval.

Keep in mind that the burdens of battered immigrants discussed thus far, particularly Form B certification, occur before the victim is even evaluated for a U Visa. Additionally, certification problems are further exacerbated by a lack of overall knowledge about U Visa regulations, and by the mistaken notion that certifying Form B is "pro-immigration." Similarly, numerous directors for the National Immigration Project of the National Lawyers Guild have notified the DHS of the problems with Form B, stressing that only allowing supervisors or heads of agencies to sign the certification violates the statute and purpose of the law.

In light of a clear need to ease the burdens of this pre-evaluation process, policy makers should consider amending the Form B procedure in the proposed reauthorization of the VAWA of 2011 to allow any member of a certifying agency to certify the battered immigrant's Form B, provided that the member is directly involved in the investigation of the battered immigrant's abuse case. Significantly, amending the process in such a way would be more time and resource efficient for law enforcement, as officers and other officials would no longer be required to relay the battered immigrant's information to a supervising authority or proper certifying agent to re-evaluate the case in full before signing off on Form B. Moreover, offering battered immigrants a chance to obtain certification from a range of agents instead of a limited number of supervisors or a few certifying agents, creates not only wider and more efficient opportunities for battered immigrants dealing with cross-cultural barriers, but just as importantly, it guards against any certifying agent's potential mistaken opinion that certifying Form B is "pro-immigration."

Additionally, since local entities tied directly to domestic abuse cases undoubtedly have more experience with a given victim, they should be allowed to submit discretionary recommendations to USCIS on behalf of victims, as well as their own inferences and conclusions regarding a battered immigrant's "good faith" marriage. Such information can be used to assist USCIS's fraud department in guarding against ill-sought citizenship, and should ultimately improve the efficiency of USCIS officials in approving or denying the tens of the thousands of U Visa applications they receive.

While immigration has long been a controversial issue between liberals and conservatives, the Republicans' alleged "War on Women" has pushed VAWA into a light it has never known. What has been a bipartisan effort to protect women for the past 18 years may unfortunately be reduced to a talking point for those running for office and a method to draw support from political bases. As both sides endlessly claim that they want nothing more than to protect women, their dangerous game of political football will continue to waste opportunities for battered and abused immigrants and further delay what has already been a seven-year drought in VAWA reauthorization.

Brandon Gatto graduated from The Pennsylvania State University, where he earned degrees in International Politics and English. During his first year of law school at Syracuse University College of Law, he studied legislation and policy, focusing primarily on how to improve the VAWA.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Brandon Gatto, Remembering the Purpose of the VAWA: Protecting Abused Immigrants JURIST - Dateline, April 17, 2012, http://jurist.org/dateline/2012/04/brandon-gatto-vawa.php.



This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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