The Violence Against Women Act and Immigrants: Not Just for Women Anymore

By: Elizabeth Cordeiro-Rowe, Esq.

It is hard to believe the end of October is almost here. Many love the “not so hot and not so cold” weather during this time of year and watching the foliage change colors. This is also a great time to take the kids for a hay ride and maybe pick a pumpkin at a local pumpkin patch. Every retailer has already begun to display Christmas merchandise. Most people look forward to these things to share with their families, as well as the upcoming holidays. Unbeknownst to many, the month of October has taken on a new meaning for various advocates nationwide, as it has been designated as the Domestic Violence Awareness month.

Domestic violence is defined as a pattern of abusive behavior where one partner tries to maintain control over the other by using physical, psychological, verbal, and sexual violence. Although factors such as drug and alcohol use, stress, or a family history of abuse may contribute to the problem, domestic violence is primarily an issue of power and control. Domestic violence has no boundaries: it occurs across all socio-economic and cultural backgrounds; it occurs in dating relationships, between cohabiting partners, in marriage, and same-sex relationships. Statistics gathered by the Centers for Disease Control reflect that nearly 25% of surveyed women and 8% of surveyed men said they had been raped and/or physically assaulted by a current or former spouse, cohabiting partner, or by someone they had dated at some time in their lives. Domestic violence is not an act or a group of acts that affects only the direct victim. Rather, it adversely impacts the lives of the victim, children, and families of those involved. Additionally, it plagues the elderly community, the disabled, as well as the immigrant community.

In the context of immigration, those who are affected by domestic violence face a unique set of challenges. Those women and men who are married to an abusive spouse and who have not yet acquired lawful permanent resident status are especially vulnerable to continued incidents of domestic violence for various reasons: they do not want to file a police report against their abuser because they are afraid of the potential aftermath, which may include violence at the hands of their abuser and potentially being turned over to Immigration and Customs Enforcement (ICE) for removal or deportation by the abuser. Further, they run the risk of losing custody of their U.S. citizen children if they are removed or deported. In addition, those immigrants being abused seldom have access to resources that would enable them escape the abusive relationship, such as access to checking or savings accounts, a driver’s license, a car, or a support network.

Although U.S. immigration laws tend to be harsh when it comes to those who have violated some provision of the Immigration and Nationality Act, (INA), it has been amended to make provision for those who are victims of domestic violence, affording them a real opportunity to ameliorate their personal situations. Namely, it allows those who are in abusive situations who are able to escape, to still be able to attain lawful permanent resident status, even if their U.S. citizen or green-card holding abusive spouse refuses to submit a petition for an immigrant visa on their behalf. The obstacles facing an immigrant in an abusive relationship are many, but these recent changes and updates in our immigration laws have given many renewed hope, in potentially allowing them to stay in the United States and raise their children here, obtain authorization to work, and eventually, attain lawful permanent resident status.
This provision of the INA, also known as the Violence against Women Act, or “VAWA,” is a reflection of Congress’ commitment to pass legislation that addresses domestic violence on a federal level. Prior to the passage of this law, domestic violence was often treated as a matter confined within the boundaries of private life and that it was an issue best dealt with on a community level. However, in the early 1990's, there was a growing concern that police departments and courts were not treating domestic violence as seriously as other forms of violence. As a response to these concerns, Democratic Senator Joe Biden drafted VAWA as part of the Violent Crime Control and Law Enforcement Act of 1994, which was supported by Congressional Democrats and signed into law by President Clinton. VAWA '94 was a turning point in the struggle to deal with issues of domestic violence, as it was the first comprehensive federal law to address violence against women as a national concern. VAWA was reauthorized by Congress in 2000, and again in October 2005, when it passed the Senate unanimously. The bill was signed into law by President George W. Bush on January 5, 2006. The latest version also recognizes male victims of domestic violence and sexual assault for the first time.

Through these laws, Congress has created a means for immigrant women and men in abusive relationships to be able to “self-petition” for a green card, which means that they can apply for the green card on their own, along with their children. The abusive spouse plays no role in the process and does not have to know that their victim is applying for this benefit. Children affected by the abuse may also apply for immigration benefits under VAWA. There are some basic requirements that the victim of domestic violence must meet before their petition is approved by the U.S. Citizenship and Immigration Service (USCIS), which include:

(1) The self-petitioner must have had a relationship with a US citizen or lawful permanent resident. Only those who are or have been spouses or children or parents of U.S. citizens or lawful permanent residents qualify for immigration status under the VAWA provisions;

(2) The abuser must have subjected the applicant to “battery or extreme cruelty;”

(3) The self-petitioner must show that they did not marry the abuser solely for the purpose of gaining immigration status in the United States; and

(4) The self-petitioner must demonstrate that they have good moral character.

If you are in an abusive marriage with a lawful permanent resident or U.S. citizen who refuses to submit a petition on your behalf, and if you meet the requirements above, you should seek the assistance of an immigration attorney, a local domestic violence shelter, or a victim advocacy group in your area to help you navigate through the intricacies of the self-petitioning process and help you take advantage of any immigration laws that may help you ameliorate your immigration status. In my opinion, it is one of the most compassionate provisions in the INA to date. It reflects that there is a national awareness of domestic violence, and more importantly it is a serious and realistic effort to assist and improve the standing of domestic violence victims and their children.

If you have any questions about this article or wish to speak with an immigration attorney, please call the multi-lingual law firm of Rapposelli & Gonzales at 1-866-652-8711 or send an email to immigration@rglaw.us.