Several studies confirm that abusive U.S. ex-spouses raise the immigrant status as a deflecting tactic to incite a court against the immigrant parent. One such study summarizing theses tactics was published by the National Immigrant Project and reflects that it is a common tactic used by the abusive ex-spouse where children are involved.
“Many immigrants come to the United States because of the ideals embodied in our Constitution, especially the promises of freedom and impartial justice.Unfortunately, noncitizens often encounter special difficulties in accessing our civil court system and in obtaining justice from that system. This article attempts to explain why noncitizens may be reluctant to access and fully utilize their rights in the civil justice system, how the system may unwittingly discourage full participation, and what courts can do to ensure that noncitizens, especially noncitizen survivors of domestic violence and sexual assault, receive fair hearings and just results.
Many judges attempt to avoid allowing racial or gender bias from affecting deliberations in their courts. This article suggests that judges should consider immigration status (or lack thereof) in the same light. Like race and gender, immigration status should not affect whether an individual receives due process or the full panoply of remedies available from the court. One party may attempt to use immigration status as a weapon against another party in court. Courts should actively avoid being used by abusers in this way, and should view such attempts with prejudice against the would-be manipulator.
A. CONGRESSIONAL MANDATE
Congress has repeatedly acknowledged the particular vulnerability of noncitizen survivors of domestic violence and has taken steps to help them achieve security and safety. When Congress passed the Violence Against Women Act (VAWA) in 1994, it was well aware of the special problems facing battered women and children in our society. It noted that domestic violence is “terribly exacerbated in marriages where one spouse is not a citizen and the noncitizen’s legal status depends on his or her marriage to the abuser.” In addition, “many immigrant women live trapped and isolated in violent homes afraid to turn to others for help; they fear continued abuse if they stay,and deportation if they attempt to leave.” Congress created special routes to immigration status “to prevent the citizen or resident from using the petitioning process as a means to control or abuse an alien spouse.”
Congress enacted VAWA “to respond both to the underlying attitude that [domestic] violence is somehow less serious than other crimes and to the resulting failure of our criminal justice system to address such violence.”6 It intended to correct “not only the violent effects of the problem, but the subtle prejudices that lurk behind it.” 7 VAWA’s overarching goal was to eliminate existing laws and law enforcement practices that condoned abuse or protected abusers and, instead, to commit the legal system to protecting victims of abuse while identifying and punishing the perpetrators of domestic violence.8 By including special provisions aiding noncitizens, Congress made clear that noncitizens are not exempt from this mandate. As described in Section C of this article, the civil court system in particular is often used by abusers as a weapon against their noncitizen victims. Civil courts must, therefore, be especially vigilant when noncitizens, or those who may be noncitizens, appear before them.
In 1994, Congress created two routes to immigration status for those who suffer domestic violence: self-petitioning and suspension of deportation (see Section D for more details on immigration options). In 1996, while erecting new barriers for most noncitizens, Congress included exceptions for VAWA applicants by allowing them access to public benefits,9 and mandating confidentiality and presumptions against using information from abusers.10 In the Battered Immigrant Women Protection Act, part of the Violence Against Women Act of 2000 (“VAWA 2000”),11 Congress created new immigration provisions to aid battered immigrants by repairing residual immigration law obstacles impeding immigrants seeking to escape abusive relationships.12 It expanded the categories of immigrants eligible for VAWA protection, improved battered immigrant access to public benefits, and created two new visas for noncitizen victims of crimes (see Section D for an expansion of U visas and T visas).VAWA 2000 moves forward Congress’s express and unequivocal intent to “ensure that domestic abusers with immigrant victims are brought to justice and that the battered immigrants Congress sought to help in the original Act are able to escape the abuse.”13
There are many ways that civil courts can further the national commitment mandated by Congress. But first, they must understand why noncitizen survivors may perceive their choices differently from citizens and how that inhibits their full participation in the civil court system.
B. REAL AND APPARENT OBSTACLES TO FULL PARTICIPATION1
Noncitizen survivors face a number of obstacles when they try to access the legal system. Many of the obstacles noted below are not “problems” with the noncitizen, but problems embedded in systems that are supposed to assist everyone. Fortunately, the courts can help address all of these obstacles (see Section D).
Lack of Knowledge and Misinformation about the Legal System.
Both citizen and noncitizen abusers routinely misinform their victims about their rights in the United States. For instance, they often claim that a noncitizen cannot obtain child custody from a U.S. court and that attempting to do so will result in the noncitizen’s deportation, or the child’s deportation if the child is undocumented. Courts who use a noncitizen’s immigration status against her when determining child custody serve as effective weapons in an abuser’s arsenal and legitimize fears that the civil system is not a source of justice for immigrants.
Many noncitizens also come from countries where women cannot receive justice.They may lack domestic violence laws, or, if laws do exist, they may be unenforced. Additionally, the proof requirements for enforcement may be absurdly onerous. Foreign courts may require oral testimony or prohibit testimony from women. They may provide justice only to those who pay for it. Social mores about “a woman’s place”also may discourage women from accessing civil systems in their homeland (or in the United States).
Fear of the Police and Judicial System
Similar dynamics as described above apply to a noncitizen victim’s fear of the police and the judicial system. Abusers tell victims that the police will not help them if they are undocumented, or that calling the police will result in their deportation. Noncitizens may come from countries where police are instruments of repression, respond only to bribes, or believe women should be subordinate to men. Unfortunately, some police officers in this country do discriminate against noncitizens, especially if they are people of color or do not speak English well. Reports of police helping to enforce the immigration laws by arresting, detaining, and handing noncitizens over to Department of Homeland Security (DHS) personnel undermine or eliminate any trust immigrant communities might have had in the police. Courts that allow or encourage DHS personnel to attend hearings (and often to arrest and detain noncitizens) ensure that immigrants will not view themas a source of fairness or justice.
Fear of Deportation or Removal
Fear of deportation (now called “removal” by Congress and DHS) is paramount for all immigrants. Although some immigrants may travel safely back and forth between their home country and the United States, victims of domestic violence are rarely in this situation. They often will lose access to their children, be ostracized and shunned in their home country, and otherwise suffer if they are returned to their home country. If the children remain here, they often remain in the hands of the abusers.
Abusers play on this fear in many ways. They routinely threaten to report their victims to DHS. In many situations, they actually do control their victims’ access to immigration status, and their victims’ status may be revoked by DHS if reported. Abusers very typically call DHS when a victim starts to challenge their domination, alleging that she married him only to gain immigration status. Fortunately, with the new routes to status, noncitizens in this situation may be able to gain status without the help, and despite the interference, of the abuser. Any systems that actually do turn noncitizens over to DHS legitimize this fear and erect an insurmountable barrier to serving immigrant communities. Unfortunately, DHS may attempt to remove noncitizen victims reported to them by abusers, even though the victims have pending applications for immigration status based on domestic violence.”
“As the American Bar Association’s Center for Children and the Law noted in 1994: Batterers whose victims are immigrant parents use threats of deportation to avoid criminal prosecution for battering and to shift the focus of family court proceedings away from their violent act…[W]hen the judicial system condones these tactics, children suffer…[P]arties should not be able to raise, and courts should not consider, immigration status of domestic violence victims and their children in civil protection order, custody, divorce, or child support proceedings…[T]his…will ensure that children of domestic violence victims will benefit from… laws (like presumptions against awarding custody or unsupervised visitation to batterers) in the same manner as all other children.”
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