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Introduction – This Article addresses a loophole in the immigration laws that permits undocumented persons – who allege acts of domestic violence – to obtain asylum – that is to remain legally in the United States. This technicality has led to many individuals being falsely accused of acts of domestic violence.
In recent years, a new form of immigration fraud has come to light. The Violence Against Women Act (VAWA) clearly encourages immigration fraud.
To understand the process – you need to understand the Immigration Process
How the Immigration Process is Designed to Work
The Citizenship and Immigration Service (CIS) is the federal agency that processes applications for visas, work permits, and citizenship . Immigration law allows an American citizen or permanent legal resident to sponsor a fiance or spouse to obtain a Green Card (work authorization), permanent residency, and eventual citizenship. The “alien” goes through the following steps:
The person obtains a fiancé visa (K-1) or spouse visa (K-3) that allows the person to enter the United States.
Once the couple is married and residing in the U.S., the American citizen can sponsor the spouse to obtain a conditional green card, based on the stability of the marriage.
After two years, the American citizen and immigrant spouse file a joint petition with the Citizenship and Immigration Service (CIS) to remove the conditions on the green card, thus granting permanent residency and opening the door to eventual citizenship.
Once approved, the immigrant is entitled to receive the range of government services and benefits that American citizens take for granted.
To counter immigration fraud, the CIS has established a variety of policies and procedures.
Fraud Detection Units seek to identify false statements in immigration application forms. Persons who have engaged in immigration fraud are referred to Immigration and Customs Enforcement (ICE). This agency ensures the departure from the United States of removable aliens through enforcement of the nation’s immigration laws.
Immigration law has long included humanitarian provisions that allow foreign nationals subjected to persecution or extreme cruelty to seek refuge in the U.S. Provisions in the Violence Against Women Act has steadily expanded these laws.
The original 1994 VAWA allowed immigrants who could demonstrate “extreme hardship” to bypass usual sponsorship requirements and “self-petition” to remove the conditions on the green card. The self-petition procedure allows the immigrant to apply on his or her own behalf rather than being required to be sponsored by his or her spouse.
The 2000 renewal of VAWA expanded this concept and incorporated several new provisions:
Eliminated the extreme hardship requirement
Removed the U.S. residency requirement
Strengthened confidentiality provisions
Guaranteed legal representation
Eliminated deportation hearings (referred to as cancellation of removal)
After the 9/11 attacks, the Immigration and Naturalization Service (INS) was transferred to the Department of Homeland Security and renamed the Citizenship and Immigration Service.
The Violence Against Women Act has been documented to facilitate immigration fraud in these ways:
Provides Free Legal Services to Persons who Claim to be Victims
Authorizes millions per year for legal assistance under civil and criminal law.
Guarantees immigrants access to legal services by authorizing the Legal Services Corporation to represent a person who claims to be an abuse victim.
VAWA monies can be used to assist persons who claim to be victims of abuse, but not those accused of the offense an imbalance that undermines the even-handed administration of justice.
Broadens the Definition of Extreme Cruelty
For years, immigration groups and attorneys have sought to expand the definition of domestic violence to include actions that do not involve actual violence. Five examples are given below:
Legal Momentum (formerly the National Organization for Women Legal Defense Fund) cites the following as examples of extreme cruelty: ( are you kidding? )
Minimizing, denying, and blaming
The Catholic Legal Immigration Network manual states that extreme cruelty and battery include psychological abuse, accusations of infidelity, and acts that may not appear violent but are part of an overall pattern of violence. The publication does not explain what is meant by an act that may not appear violent.
The Legal Assistance Foundation of Chicago claims that indicators of extreme cruelty include:
Trying to get legal custody of children
Using gestures that create fear
Needing to “walk on eggshells”
Being possessive or jealous
The Immigrant Legal Resource Center in San Francisco publishes a Spanish-language flyer that cites “emotional abuse” as a form of domestic violence, and highlights the benefits that await persons who make such allegations:
If you answered “yes” to any of the above areas - you and your children could qualify for:
permission to live in the United States while your application is being processed
obtaining permanent residence without help from your husband
medical care and government benefits such as money and food stamps
Citizenship and Immigration Service examiners are now instructed to evaluate VAWA petitions on what is referred to as the any credible evidence standard. According to an internal CIS memo, any credible evidence includes court documents, medical reports, police reports, or sworn statements (affidavits).
The instructions for Form I-360, the application form used by persons who file VAWA self-petitions, further explains that evidence of abuse includes reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, or an order of protection.
It is well known that civil definitions of domestic violence are broad, and that orders of protection are often issued with no hard evidence of abuse. Such orders are widely available, even to persons who entered the country illegally.
As the Arizona Domestic Violence Benchbook states, a denial of a protective order would be considered discrimination based on national origin which is specifically prohibited by law.
Sally Kinoshita of the ASISTA project takes the case further. Arguing for what she calls the subjective test, she indicates that not even a restraining order should be necessary:
A finding of extreme cruelty involves the examination of the dynamics of the relationship, the victim’s sense of well-being before the abuse, the specific acts during the period of abuse, and the victim’s quality of life and ability to function after the abuse. The self-petitioner’s own declaration should cover these factors.
A person who enters the country without permission is referred to as an “undocumented” immigrant. By law, such persons cannot later apply for legal immigration status, because that would be an obvious incentive for persons to attempt to enter the country illegally.
In the past, an exception to this rule was allowed if a person could demonstrate a “substantial connection” showing that extreme cruelty had forced the victim to escape to the United States.
But under VAWA, the substantial connection requirement has been eliminated. As a result, the CIS revised its Adjudicator’s Field Manual to read, ….”the VAWA self-petitioner is not required to show a ” substantial connection” between the qualifying battery or extreme cruelty and the VAWA self-petitioner’s unlawful entry.
This means that anyone who enters the country illegally and can produce a restraining order or affidavit, even with no hard evidence of abuse, is likely to be approved for a work permit and permanent residency.
By law, the CIS classifies a person accused of being an abuser as a “prohibited source.”This means that the CIS is not allowed to accept any evidence from that person, even if it shows that the petitioner has engaged in illegal behavior. The alleged abuser is often the person who is most knowledgeable about the petitioner’s actions.
As a result, the CIS will not deport a VAWA petitioner, even if presented with credible evidence that the petitioner is illegal. As one CIS employee stated,..”if an abuser reports that the victim is undocumented, they will not pursue the person.
The Violence Against Women Act funds efforts to educate attorneys and others how to take advantage of VAWA’s immigration provisions.
In 2006, the DOJ Office on Violence Against Women awarded $363,160 to the Legal Assistance Foundation of Chicago. The group provides the following advice to attorneys on how to prepare a client for an interview with the CIS adjudicator:
Some officers may try to trick your client into admitting information that could make her inadmissible and ineligible to adjust, e.g.,”When was the last time you voted in the U.S.? This is relevant because only U.S. citizens can vote; voting illegally is a ground of inadmissibility.
Such questions are not tricks. They are legitimate tools to determine whether a potential American citizen is of good moral character.
The following year, the Office on Violence Against Women (OVW) awarded a $1.35 million grant to the ASISTA project, which maintains an immigration Information Clearinghouse and publishes the ASISTA News. The Fall 2006 issue of the newsletter features an article that encourages women to file a VAWA self-petition if they are in a relationship marked by “possessiveness’or a “need for apologies.”
Ironically, the next article in the newsletter discusses the ABA ethical requirements to bring only meritorious claims and contentions and to disclose misrepresentations or falsehoods.
If an immigrant is discovered without proper documentation, the CIS refers the person to Immigration and Customs Enforcement (ICE) to initiate removal proceedings. But under
VAWA, a claim of abuse can cancel the deportation proceedings.
At one conference session, a CIS official was asked how many VAWA cases have been referred to ICE for removal. The categorical answer was: ” currently, cases are not being specifically referred for removal.” Even if the immigrant had been previously ordered to leave the country and re-entered illegally, the CIS official explained, No, VSC is not passing them on to ICE.
The Immigration and Naturalization Act allows for a variety of financial and administration sanctions to be imposed on illegal aliens who are ordered to leave the country but fail to do so. The Government Accountability Office has criticized the CIS for its leniency in applying these sanctions.
According to the Violence Against Women Act, such sanctions cannot be applied gif the extreme cruelty or battery was at least one central reason for the illegal alien’s overstaying the grant of voluntary departure. Since extreme cruelty is viewed broadly, almost any illegal alien who claims abuse can escape sanctions.
In sum, VAWA condones and promotes immigration fraud through a variety of legal and administrative strategies, even for persons who entered the country illegally.
The most fundamental principle of a criminal justice system is that the accused must be afforded the opportunity to refute an allegation of wrongdoing. But under VAWA immigration provisions, a person accused of partner abuse has no legal standing to refute the claim. Indeed, as a result of VAWA confidentiality provisions, the alleged abuser often is not informed that the allegations were made.
The 2000 renewal of the Violence Against Women Act stated that one of its goals was “to remove immigration laws as a barrier that kept battered immigrant women and children locked in abusive relationships.” In practice, this means VAWA provides no safeguards to prevent or deter an immigrant spouse from making false statements about spousal abuse.
The combined effect of the immigration provisions of VAWA, their broad interpretation by the Citizenship and Immigration Service, and their flexible implementation by VAWA grantees, can be summarized as follows:
Educates immigrants how to take advantage of the VAWA domestic violence provisions
Substantially weakens traditional standards of proof, requiring only a personal statement by the immigrant or an ex parte restraining order
Allows immigrants, some with criminal backgrounds, to self-petition for a Green Card based on claims of domestic violence
Provides free legal services to immigrants who claim abuse
Substantially broadens the definition of “extreme cruelty.”
Classifies U.S. citizens accused of abuse as a “prohibited source,” thus prohibiting the submission of evidence that may reveal fraudulent or criminal behavior
These provisions create a veritable Sword of Damocles that hangs over the head of any American citizen who enters into a romantic relationship with an immigrant.
Immigrants who are true victims of domestic violence, and have proof to back up their claim, should have the ability to file a self-petition in order to escape an abusive relationship. But the humanitarian impulse that motivates that principle should not be allowed to infringe on the due process rights of law-abiding American citizens.
The Immigrant False Accuser: Why is That Different?
A claim of abuse ensures free legal assistance and invokes federal laws prohibiting the person’s removal from the United States.
The police may arrest the alleged abuser without any physical evidence. Immigration laws allow false accusers to receive welfare benefits and financial aid during the processing of their petition.
Surprisingly, the law does not require the accused to be informed of the charge, so the person is often unaware that an allegation has been made. Even more amazing, if the accused should become aware of the charge, this person is considered by law to be a “prohibited source,” and not allowed to submit any evidence that may refute the accusation.