Kimberly Kernan JD 2008
Maria, a Mexican citizen, met and began dating Jaime, a U.S. citizen, while in the United States on a visitor visa. Shortly after they began dating, Jaime asked Maria to marry him. With the promise of marriage and an opportunity to secure her lawful permanent residency in the U.S., Maria remained in the country while her visa expired. However, following Maria’s decision, Jaime lost his job at a local restaurant and began drinking on a regular basis. The relationship deteriorated and Jaime began to physically abuse Maria until his shoves when dinner was not ready on time escalated to an incident during which Jaime choked her until she fell unconscious. To make matters worse, Jaime ridiculed her attempts to speak English and refused to give her any money for groceries and household necessities.
When Maria threatened to leave Jaime, he laughed at her. He told her that there was nothing that she could do because she was an undocumented alien. She was not authorized to work, and if she tried to report him to the police, then she would be deported. Maria stayed with Jaime and endured his abuse out of fear of her own forced removal from the country she had come to consider her home.
Perpetrators of domestic violence abuse their victims by maintaining power and control over their intimate relationships. For immigrant victims of domestic violence their abuser’s means of control extends to instilling fear of the U.S. judicial system through threats of removing their dependent immigration status and fear of deportation. For these reasons, immigrant victims are less likely to report abuse or leave an abusive home because they fear deportation or believe that only citizens and authorized immigrants can obtain legal and social services.
Unknown to many immigrant victims of domestic violence, immigration laws have evolved in the last decade and special remedies have been created to assist battered immigrants. In 1994, Congress passed the Violence Against Women Act (VAWA) which made significant progress in reducing violence against national and immigrant women. In 2000, new VAWA legislation created an additional visa, the U-visa, for victims of serious crimes. The U-visa is available to victims of domestic violence and includes battered immigrants who were never married to their abusers and lesbian and gay victims of this horrible crime. In return, a U-visa applicant must certify that they will help in the prosecution of their abuser. While the federal government has not promulgated rules for issuing the 10,000 U-visas available annually, local Citizenship & Immigration offices have been directed to grant interim relief to U-visa applicants.
The U-visa greatly inhibits an abuser from controlling a victim’s legal status. However on December 17, 2005, Congress enacted additional legislation to eliminate obstacles to a battered immigrants safety. A victim of domestic violence may now apply to change status to a U-visa regardless of the nonimmigrant visa on which the victim entered the country. Thus, an immigrant victim may apply for a U-visa without having a legal right to residency in the United States under traditional immigration laws. Furthermore, a battered spouse of a nonimmigrant may obtain authorization to seek employment with an approved VAWA petition. Additional remedies created by the newest VAWA legislation include a “Battered Spouse Waiver” that allows dependent nonimmigrant victims an opportunity to apply for permanent lawful resident status without her batter’s cooperation. These provisions help to alleviate immigrant victims of their financial and status dependency on their abuser.
The most important improvement of the new VAWA legislation is the guarantee of legal services to aid immigrant victims of domestic violence regardless of their current status in the country. First, this provision explicitly includes all immigrants in the U.S., including those who entered the country illegally or are currently undocumented aliens. Second, the legislation allows federally-funded programs, such as free legal clinics, to provide these services.
Today, under federally-mandated exceptions to immigration laws, battered immigrants do not have to live in fear that leaving or reporting their abuser may result in their own deportation. However, a huge challenge still exists to eliminating abuser’s empty threats. Battered immigrants and their advocates must be made aware of the special exceptions that have been carved-out to stop the perpetuation of domestic violence. The interaction of immigration laws and domestic violence situations can be complicated, but it is essential to recognize that knowledgeable counsel can help an abused immigrant to find an appropriate remedy in the judicial system without inadvertently harming the victim.
If Maria had only known about the remedies available to her she would not have had to live-out her life in constant fear of her abuser and the system that kept her there. Despite Maria’s illegal immigrant status, she may apply for one of the 10,000 U-visas distributed annually, which would allow her to stay in the United States, to work, and after three years apply for her lawful permanent residency.
For more information on available remedies for battered immigrants visit www.legalmomentum.org. and information regarding application procedures can be obtained at www.uscis.gov.
