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What Has Happened To VAWA?

by John Wheat Gibson

The greatest thrill in practicing immigration law is watching a woman walk out of your office with her head high and hope in her face, after she walked in with her head hanging and tears streaming. Alas, bureaucrats at the Department of Homeland Security have decided that pleasure is to be no more.

Maria (yes, that is her real name) explained through her sobbing that she had tolerated beatings and curses from her U.S. citizen husband for 10 years, because he would have her deported, and she would never see their children again, if she did not. She was a Mexican immigrant with no legal status. But now the husband had another woman and was going to divorce her. He did not want the children, but he would call the Migra if Maria answered his divorce petition.

After I told Maria that Congress had enacted a law to prevent exactly the sort of blackmail to which Maria's husband subjected her, she left with a plan, and, of course, she now is a United States citizen. Unfortunately, Congress also built in a back door by which sick or incompetent bureaucrats without fear of judicial oversight could indulge their personal quirks and deny even the most obviously deserving applications for legal status by battered women. As often is the case with immigration legislation, Congress enacted a law to protect the wretched of the earth and then told the bureaucrats they could flout it. INA §242(a)(2)(B).

In acting on petitions filed [by battered spouses] the Attorney General['s employee in the Bureau of Citizenship and Immigration Services] shall consider any credible evidence relevant to the petition. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General. INA §204(a)(1)(J).

"Within the sole discretion" means no court can look at an immigration decision of even the lowest and looniest bureaucrat in the BCIS.

Unfettered by law, BCIS bureaucrats have converted the Violence Against Women Act and the Battered Immigrant Women Protection Act into a David Lynch movie script.

For example, Blanca submitted a "self petition" under the Violence Against Women Act, after she separated from her U.S. citizen husband, who beat her for objecting to his bagging cocaine on the kitchen table while her children were in the house. The Vermont Service Center officer who decided her petition toyed with it and then denied it because he wanted her to tell him her "feelings." The Administrative Appeals Officer agreed that the VSC officer was entitled to demand intimate details of the relationship to prove she married the abusive husband for legitimate reasons.

There was no question that the marriage was legitimate. If the couple had married only for the green card, then they would not have lived together and fallen out over cocaine and brutality. Most significantly, the evidence of legitimacy was not in any way questioned or contradicted. An ample preponderance of the evidence proved the fact. Implicitly, however, the two officers, both of whom are male, imposed a virtually conclusive presumption, with no basis in the law, that women who have been beaten by their husbands always lie when they say they married for legitimate reasons. The two officers illegally imposed an evidentiary burden on Blanca to overcome their invented presumption by far more evidence than would have been required to prove the fact in any court in the Free World.

At first, the VSC officer sent Blanca a "Request for Evidence," form I-797, on which the Vermont Service Center checked the block requesting evidence "that you are a person of good moral character…." The VSC was satisfied with the evidence and did NOT check boxes demanding proof, "that you and your alleged abuser resided together," or "that you married the alleged abuser in good faith."

After Blanca's attorney provided all the evidence requested, the VSC officer sought another excuse to impose his will on her. The VSC sent her another RFE by form I-797, this time saying, "The documentation submitted is insufficient." Suddenly, Blanca had not shown abuse; cohabitation; or marriage in good faith.

Blanca replied with a detailed affidavit of her own, in which she said she loved her husband but no longer could tolerate the abuse. Additionally, she provided the affidavits of a son and daughter, and a letter from another son; and affidavits of friends and neighbors who had seen her all bruised after beatings, and one of whom had called the police while the husband was beating Blanca.

The VSC officer said it was not "satisfactory evidence." Then he soared into hysterical hyperbole: "There is no indication in your record which suggests that you married for the purpose of sharing a life together." In reality, the record proves absolutely that Blanca and her husband did in fact "share a life together," for three years, which certainly is some "indication" that they married for that purpose. The VSC officer proclaimed, "You have established all of the eligibility requirements except number (7), below." Number seven was, "entered into the qualifying relationship in good faith." The VSC officer said that the photographs and other evidence Blanca submitted "cannot express thoughts and feelings."

Of course, Blanca had expressed feelings in her affidavit. She had said, "I loved him, but after three years I no longer could stand his brutality." Blanca pointed out the statement in her appeal to the Administrative Appeals Office. She also cited the affidavits from family members and friends proving that she had lived with her husband but had been beaten because she objected to his bringing cocaine into the house.

The AAO officer, who decided Blanca's appeal from the VSC officer's decision, found that the evidence did not prove Blanca married in good faith. He said, "Although the record contains three statements from the petitioner, she fails to describe the couple's courtship and decision to marry in any meaningful way." The AAO officer said that the observations by people who met the couple after they were married "are not useful in determining whether she married E-D- in good faith." He said,

The record, as it currently stands, contains little information regarding the couple's relationship, such as the circumstances surrounding their first introductions; the petitioner's first impressions of E-D-; their decision to date; their courtship; activities they enjoyed together; their decision to marry; and their wedding. Decision of the AAO.

Thus, the AAO officer adopted the VSC officer's strong presumption of fraud, and held "The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 USC §1361. The petitioner has not sustained that burden." Ibid, p. 5. The law that the AAO officer cited does not mention a presumption of fraud, however, or in any other way require proof of any fact by more than is established by an uncontradicted, sworn averment of the fact. The law certainly does not require an abused woman to titillate the prurient interest of adjudications officers as a requirement for approval of her petition.

Through 2007, three-fourths of the petitions filed by abused spouses were approved. Fewer than half of the 9,272 petitions filed in 2008 were approved. Records of the National Network to End Violence Against Women show that Blanca was not alone in being the victim of arbitrary bureaucratic action. Saying, "The VAWA unit must return to embracing the law, Gail Pendleton, Co-Director, ASISTA Immigration Assistance, explains that

Since the restructuring the C[itizenship and] I[mmigration] S[ervices], VAWA unit at V[ermont] S[ervice] C[enter] has denied VAWA self-petitions and U visas because of obvious ignorance about domestic violence and legal standards that violate the law. Because the CIS personnel who make policy can no longer communicate with the unit's supervisors who are trained in domestic violence, there is no accountability for these wrongful denials. Gail Pendleton, letter to Michael Aytes, Acting Deputy Director, BCIS, 20 February 2009.

The ASISTA letter cites various examples, from a plethora of wrongful denials by bureaucrats. Describing the "case of Ms. G," the ASISTA letter notes that the adjudicating officer simply ignores the evidence and presumes the applicant intends fraud:

[T]he applicant supplied a detailed affidavit that explained how she met her husband, their dating relationship prior to their marriage, what occurred during their marriage, and why she stayed with him after the abuse started. She also supplied numerous photographs of their wedding and attendance at other events together, and affidavits of others.

The adjudicator (in the RFE and denial) dismisses the photos because they are undated. How is this relevant? Whether they were taken before or after the marriage, they are evidence that they had a real relationship.

The adjudicator also appears to insist on "jointly-held accounts" and "co-mingling of funds," exactly the kinds of evidence lacking in many domestic violence cases. He or she apparently dismisses love letters written by the abuser (because the victim no longer has her own letters) and affidavits of others, as well as the applicant's own affidavits, which may be the only evidence many domestic violence survivors will have of good faith marriage.***

Ms. G's denial demonstrates how the assumption of marriage fraud undermines the purpose of the law.

Denials based on inappropriate marriage fraud assumptions are particularly insidious; such claims are a primary weapon abusers use to manipulate the legal system against their victims.

The case of "Ms. L," which ASISTA cites, demonstrates the adjudicating officer's presumption that all applicants lie and mere evidence cannot overcome the presumption:

Ms. L provided a detailed affidavit concerning regular marital rape, battery, isolation, and degradation/humiliation. Her sister and a neighbor provided statements not only about what she had told them, but about what they had seen themselves. A school counselor and a social worker also corroborated that Ms. L described the abuse to them.***

The BCIS adjudicating officer simply declared that all the witnesses were lying, and so denied "Ms. L's" application.

The adjudicating officer in the case of "Ms. F," as in Blanca's case, demanded "joint leases and bank accounts," evidence obviously unavailable to many survivors of domestic violence. "Ms. F," in her motion to reconsider, which the adjudicator also denied, documented the hitting, degradation, economic control, and immigration threats to which her husband subjected her by her own affidavit, the affidavit of a friend, and the affidavit of a professional counselor. ASISTA reports that the adjudicator, "smugly citing adjudicator discretion," simply declared that they all were lying.

In similar adjudication of "U" visas, for victims of certain crimes, who cooperate with the police, the BCIS has shown unwillingness to comply with the law. Ana Gorman, in the Los Angeles Times, 26 January 2009, writes that in the eight years since Congress created the program in 2000, 13,300 people applied, but the BCIS granted only 65 and denied 20. The rest remain in the black hole of bureaucracy. ASISTA reports the treatment of "U" visa applications by BCIS officers: a domestic violence victim "supplied a hospital report documenting leg, neck, cardiovascular, visual, and gastrointestinal/neurological pain as a result of an assault. The adjudicator acknowledged that this shows the applicant sustained injury and bruises, but asserts this is not sufficiently 'substantial.'"

ASISTA reports an adjudicator, in denying another woman's application, said, "the applicant submitted medical evidence of a contusion to the applicant's eye socket, the consequence of being kicked by the abuser. The adjudicator determined that, because the applicant did not sustain injury to 'essential organs' and could be discharged without risk, the harm she suffered was not substantial."

Obviously many wrongful denials are the result of ignorance of the law and inability to understand legal technicalities. BCIS adjudicators are not lawyers. For example, ASISTA notes the denial of a motion to reconsider, which merely claims that there was legal error in the original decision, on the completely inapplicable ground of failure to produce new evidence. Nevertheless, malice and inappropriate preoccupation with intimate details is obvious in a large number of BCIS refusals to obey the law that was intended to shelter battered spouses.

The image of bureaucrats panting in their kiosks as they demand to know the "thoughts and feelings" of abused women, and the intimate details of "the couple's courtship and decision to marry," is disgusting, but it accurately describes the way BCIS officers decide which abused women will become legal residents and who will not. Congress should amend the law to make enforceable the right of battered wives to leave their abusive husbands, by providing for judicial review, to compel bureaucrats to follow the law instead of their prurient curiosities.

About The Author

John Wheat Gibson practices immigration law in Dallas, Texas. He is been in the practice for 22 years and currently member of the Texas State Bar.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.