The Violence Against Women Act : The Shield Protecting Abused Immigrant Spouses

By Eric E. Ludin and Ahmad M. Yakzan

Your client is clearly trying to cover up fresh bruises with makeup. You know that her husband is abusing her and that she is terrified of calling the police for fear that it could affect her immigration status.  You learn that her husband applied for your client to get her green card and she is afraid that if she reports his abuse he will withdraw his petition once he is confronted. In fact, you know that he has threatened to have your client deported whenever they argued in the past. You need to know what advice you can offer to a client subjected to this intolerable victimization.

Thankfully there is help for the immigrant victims of spouse abuse. The law allows your client to self-petition for her permanent residency, under the Violence Against Women Act (VAWA), without her abusive husband ever knowing. This article will discuss your client’s eligibility to self-petition under the law and no longer be controlled by her abusive husband’s deportation threats.[1]    

VAWA’s History

The Violence Against Women Act was passed in 1994 as a legal tool to protect all women in the United States. The law, however, had an immigration related provision allowing abused spouses and children to self-petition for permanent residency in the United States. The original law had several flaws, including the inability of the foreign national to self-petition if a lawful permanent resident abuser lost his residency. This would have been possible for example, if the authorities filed criminal charges because of the abuse of the foreign national spouse. The law was modified in 2000 to eliminate this catch-22 along with several other obstacles. The law allowed foreign born spouses the ability to self-petition, even if the lawful permanent resident abuser lost his residency, if the self-petition was filed within two years of their divorce.

Eligibility under VAWA

There are several things that the applicant must prove to be eligible to self-petition. First, the foreign national must show that she resided with the abusive spouse. Second, she must show that the marriage was bona fide. Third, the person must show that she or her child were subject to “extreme cruelty” during the marriage. Fourth, the person must show that she is eligible to adjust her status. Lastly, the person must be of a good moral character. There is a lowered evidentiary standard where the adjudicating officer and immigration judges could consider “any credible evidence” submitted by the self-petitioning foreign national. This does not mean that these are “open and shut” cases since these applications are cumbersome and should be filed by an experienced immigration attorney.

Hurdles

There are several events that could interfere with self-petitioning spouses from attaining permanent residency even though they were subjected to the extreme abuse. One typical scenario involves the following facts. A United States citizen or Lawful Permanent Resident spouse applies for permanent residency for his foreign national spouse. This fact becomes a bargaining chip to get what he wants from the foreign national since he now holds all the cards. The couple gets summoned by immigration authorities for her adjustment of status interview. The abusive spouse, after prolonged questioning by officers, says that his marriage with the foreign national is a sham in an attempt to get the abused spouse in legal trouble. In certain cases the abused spouse is then arrested and sent to an immigration holding facility to appear before an immigration judge.

Being placed in holding or in removal proceedings is exceptionally unpleasant and harshly impedes the abused spouse’s ability to attain permanent residency. Once the immigrant is at a holding facility on an allegation of marriage fraud, it is difficult to get her released on bond. Incarceration will also limit her ability to successfully self-petition since she would be physically separated from the evidence that would prove her case. She would not have easy access to psychologist and mental health professionals who would be able to document the abuse. Very few of these professionals would be willing to visit the foreign national in an immigration holding facility.  These hurdles must be eliminated for VAWA to achieve the goals it was enacted to achieve.  One way to do so is to allow a foreign national to enter bond if documented allegations of abuse are made. This will ensure a fair process for foreign nationals who have been treated unfairly.

Conclusion

The Violence Against Women Act was a great step forward for immigrant women’s rights, but it is not perfect. Congress and the President must deal with the hurdles in the law for the law to have its full impact. This will ensure that the United States will always be a refuge to the oppressed.

If you or a client needs assistance due to spouse abuse by a United State Citizen or Lawful Permanent Resident, do not hesitate to call the attorneys at Tucker & Ludin at 727-572-5000 or contact us through the website at www.tuckerludin.com .

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[1] Even though all references in this article relate to abused women, the law protects men and women equally.