December 2003
Representing the Most Vulnerable
by Bob Free and Penny Fields
Perhaps the most vulnerable and marginalized of all people in America are the immigrant women who experience domestic violence (DV). They are vulnerable not only because they are controlled and abused by their husbands, but also because they face possible loss of their children, may have no place to live, and can be deported from the United States if their husbands refuse to sponsor them for legal status. Unfortunately, abused immigrant women have great difficulty accessing legal help. Two cases from King County illustrate the danger and depredation faced by some immigrant wives.
Susana Remerata originally met Timothy Blackwell after Blackwell saw her picture in a catalogue called Asian Encounters. The two wrote to each other for a year, then met in the Philippines and got married. Soon after their wedding, Blackwell became abusive and tried to choke Susana more than once. They separated not long after she came to the United States. Blackwell, 47, claimed his 25-year-old wife had duped him into the marriage, in part so she could live in America. She contended he beat her, forcing her to move out in fear. He filed for annulment; she filed for divorce. In March 1995, shortly before their divorce proceedings were to begin, Blackwell opened fire with a semiautomatic handgun in the King County Courthouse and killed his wife, her seven-month-old fetus, and two friends who had accompanied her to court.1
A similar fate met Anastasia King, a 20-year-old "mail order bride" from Kyrgyzstan who came to this country after meeting her husband, Indle King Jr., through an Internet matchmaking service. Once they were married and in the United States, King reportedly withheld his wife's school money, tightly controlled whom she could see, sexually assaulted her, and threatened to have her deported or to kill her if she tried to leave him. In September 2000, convinced she was about to divorce him, King strangled Anastasia and dumped her body in a shallow grave in a Tulalip Indian Reservation garbage dump.2
According to a 2002 interview with Charles De More, acting district director for the Bureau of Citizenship and Immigration Services (Immigration) in Portland, Oregon, U.S. men sometimes marry young women, use them for sex, and then try to have them deported just before the women can receive their green cards, claiming the women came into the marriage fraudulently. "We see guys who are abusive but the women don't report it for fear of being deported for not being a good wife."3
Domestic Violence Against Immigrant Women
Although national figures on abuse in immigrant marriages do not exist, there is reason to believe that the incidence of abuse is high. One study conducted among undocumented and recently documented Latina immigrants in the Washington, D.C., area found that nearly 60 percent of the married women had experienced physical and/or sexual abuse from their partners.4 Among the battered women in the survey, nearly one-third cited fear of immigration consequences as a significant barrier to seeking social and legal services.5 When abused women in the study did seek help, the most sought-after service was immigration assistance.6
Both U.S. citizens and lawful permanent residents can sponsor their foreign spouses and children for permanent residence status, giving the U.S. spouses considerable power over the dependents. Immigration sponsorship takes approximately three years before full, unconditional, permanent residence is granted to an immigrant spouse of a U.S. citizen. Withdrawal of sponsorship can lead to deportation. A batterer may refuse to sponsor his7 spouse at all, threatening to report her to Immigration if she is undocumented.8 Fear of being reported to Immigration and fear of deportation were listed in the Washington, D.C., study as the first and second most-intimidating factors that kept battered immigrants with their abusive spouses.9
An abuser may also deny his immigrant wife the opportunity to learn English or pursue job training and other education that would allow her to achieve social and economic independence. Immigrant women frequently do not know their legal rights in the face of violence by their husbands, and the husbands may convince them that there is nowhere to turn for help. Fear of police, and fear of the law and lawyers, may prevent immigrant women from seeking help. Finally, a spouse may threaten children or other family members, informing the victim that if she seeks help from the police or courts, he will automatically gain custody of the children, which may in fact be true in her home country.
The Violence Against Women Act and the Self-Petition Process
Help for these particularly vulnerable women came in 1994 when Congress passed the Violence Against Women Act (VAWA). VAWA permits an abused immigrant to file a visa petition on her own behalf if she or her children have been abused by her U.S. citizen (USC) or lawful permanent resident (LPR) spouse. 8 USC § 1154(a); Sec. 204(a) of the Immigration and Nationality Act. In addition to the self-petitioning process, immigrants can use VAWA defensively in deportation proceedings, requesting a suspension of proceedings if they or their children can produce credible evidence of battering or extreme cruelty by a USC or LPR spouse or parent. Amendments to VAWA in 2000 expanded eligibility for relief.10 For example, an abused immigrant may now self-petition for up to two years after divorcing her abusive spouse, or after the spouse has been deported or loses immigration status. Moreover, victims are no longer required to show that deportation would result in extreme hardship to them or even that the abuse occurred in the United States.
An immigrant self-petitioning pursuant to VAWA must show that she or her children have been physically battered or subjected to extreme mental cruelty by her USC or LPR spouse and that she has resided with the abuser, at least for a short time. If the spouse is not a USC or LPR, then no relief is available under VAWA.11 In addition, the self-petitioner must present evidence of her good moral character, and show the marriage was entered into in good faith and not simply for immigration purposes. Any credible evidence must be considered by Immigration.12 Nonetheless, gathering evidence can be the most difficult part of the self-petitioning process, especially in situations where the victim still lives with her abuser and is carrying out the self-petitioning process in secret. In some situations, the abuser will withhold documents such as the marriage certificate or identification papers from the battered spouse. Potential witnesses to the abuse may also be afraid of the abuser.
Once sufficient documentation has been gathered, an I-360 "self-petition" is filed with the Immigration Service Center in St. Albans, Vermont. Proof of filing makes the immigrant woman eligible for public benefits in Washington state, which may enable her and her children to escape the abusive relationship. Adjudicators in Vermont who are trained in DV issues and are generally more sympathetic than many Immigration officials issue either an approval or denial notice. An approval results in a grant of "deferred action"—an administrative decision to forgo deportation proceedings against someone who is otherwise removable—and eligibility for a temporary work permit. A denial is kept confidential and does not result in deportation. This process takes approximately six months from initial filing.
The final step, if the woman is otherwise eligible, is to file an application for lawful permanent residence with her local Immigration office. How long the woman must wait from receiving a VAWA approval until applying for permanent residence depends on the status of her spouse. If the abused woman is married to a permanent resident, the VAWA approval goes on the second-preference waiting list for spouses of permanent residents. A second-preference petition requires a wait of between five and seven years before she can actually apply for permanent residence. If the client was born in Mexico, the wait is a few years longer. The woman is granted deferred action for 15 months at a time, and can regularly get renewals of this status and of her employment authorization until her place comes up on the waiting list. If the woman is married to a U.S. citizen, she can apply for permanent-resident status as soon as the VAWA petition is approved.
Assistance for Immigrant Domestic-Violence Victims in Washington
Faced with literacy, language, economic, and cultural barriers, nearly all abused immigrant women require assistance with the VAWA self-petitioning process. Fortunately, there are a few organizations that serve this population in Washington state.
Northwest Immigrant Rights Project (NWIRP). NWIRP, founded in 1984, is a nonprofit legal-services office that provides legal representation and community education to low-income refugees and immigrants in Washington state. Originally set up to file political-asylum petitions for Salvadorans and Guatemalans fleeing war in their home country, the organization has expanded over the years to serve immigrants from every continent except Antarctica. NWIRP is the only organization of its kind in the region, and last year provided assistance to more than 17,000 women, children, and men throughout the state. NWIRP currently provides assistance with a variety of immigration matters, including representation in deportation proceedings, naturalization, family visas, applications for replacement green cards, and VAWA petitions. NWIRP has an office in Seattle, with 21 staff members serving clients from over four-dozen language backgrounds. A second office in Granger, Washington, has a staff of seven, and serves primarily Spanish-speaking farm workers of Mexican heritage.
Financial support for NWIRP's operations comes from a variety of sources. In 2002, contributions from foundations, such as the Legal Foundation of Washington, accounted for nearly 60 percent of the organization's funding. Another 15 percent came from state and federal sources, while individual donors contributed nearly 10 percent.
NWIRP began handling DV cases in 1990. A separate Domestic Violence Unit (DV Unit), which now handles all of NWIRP's VAWA cases, began operating in 1995. Currently the DV Unit is staffed by one attorney, Andrea Parra, and a volunteer assistant. Plans to hire much-needed paralegal help were cancelled this year when NWIRP lost Department of Social and Health Services funding, resulting in a loss of more than half the DV Unit's annual budget.
In Seattle, the DV Unit receives, on average, 20 new calls each week from immigrant DV victims. Often clients are referred to NWIRP by advocates from organizations such as the Refugee Women's Alliance (ReWA), Asian Pacific Islander (APIA) Women & Family Safety Center, the Chinese Information and Service Center (CISC), Consejo Counseling and Referral Services, the Domestic Abuse Women's Network (DAWN), and other local nongovernmental organizations with which NWIRP works closely. A detailed screening is carried out, usually over the phone, followed by a lengthy in-person interview. All callers are given information on local and statewide DV resources.
If a potential NWIRP client exceeds the maximum income requirement (125 percent of federal poverty guidelines), he or she is referred to a private attorney. More financially eligible clients seek NWIRP assistance than the organization has the capacity to help. Inevitably, the organization is forced to perform a balancing act among eligible clients, taking into account each applicant's individual situation. Priority is given to women facing immediate danger of serious physical harm from their spouse or a situation of economic crisis, and to those facing immediate deportation. Still others are placed on an ever-lengthening waiting list.
According to Neha Chandola, NWIRP's legal director, in spite of funding setbacks, the organization remains firmly committed to working with immigrant DV victims. "It's a critical area," she says, noting that "volume is so high that need will always outstrip our capacity. Immigration is growing more and more restrictive, and DV in the family is increasing, not decreasing."
Support from pro bono attorneys in the community has been essential to NWIRP's success to date. Currently, the DV Unit has 250 active cases, and is continually adding to that number. Approximately 20 private attorneys took cases in 2003. NWIRP would like to see twice that number take cases in 2004.
Immigrant Families Advocacy Project (IFAP). IFAP was founded at the University of Washington School of Law in 1996 by Professor Anita Ramasastry. During the school year, IFAP recruits from 50 to 70 UW student volunteers to work in pairs under the supervision of pro bono attorneys handling VAWA cases. Formed in partnership with NWIRP's DV Unit, the organization was run without a budget for its first four years, wholly dependent on personal financial contributions from both Ramasastry and involved UW student volunteers.
Finally, in 2000, the organization received a $25,000 grant from alumnus Bruce Garrison and his wife, Aphrodite. The grant of $5,000 per year for five years has permitted IFAP to fund student fellows throughout the school year and during the summer. These fellows provide administrative support to the program, organize CLEs, prepare grant applications, plan fundraisers, and work closely with NWIRP to develop better systems for tracking statistics on the clients served by the program.
In spite of its shoestring budget, IFAP has had broad impact, which Ramasastry credits to "a lot of volunteer time from students and attorneys." In its first six years of operation, IFAP has served more than 150 clients, most of whom were women with children. The clients, all indigent applicants referred from NWIRP, come from all over the world, including South and Central America, Russia, the Philippines, and South Asia.
The collaboration between UW students and supervising attorneys presents an excellent mentoring opportunity for the students. Many students bring with them language skills that are invaluable in dealing with IFAP's diverse clientele. In addition, the students are largely responsible for obtaining police and medical reports, interviewing witnesses, preparing a written declaration of the client, and preparing other information for the self-petition.
Seattle University (SU) School of Law Immigration Clinic. For the past four years, the SU School of Law has sponsored an Immigration Clinic in which law students represent abused women in immigration cases. Immigration lawyers at the Seattle law firm of MacDonald Hoague & Bayless have collaborated with SU law students to file VAWA cases at the Vermont Service Center. To date, the clinic has assisted 20 immigrant women in obtaining legal status and work permission. The students receive course credit for their work, and SU pays the costs if the women are unable to pay.
Conclusion
The rewards of working on a VAWA DV case are great. Not only are the clients among the neediest in the community, but the vast majority of the petitions are approved. However, available attorney assistance falls far short of local need. NWIRP and IFAP hope to recruit 40 to 50 attorneys to take pro bono cases in 2004. NWIRP, IFAP, and the American Immigration Lawyers Association (AILA) regularly offer CLE presentations on how to do a VAWA case. For details on volunteer opportunities through IFAP, contact Beth Kinne, IFAP's president, at bkinne@u. washington.edu, or Lynette Meachum, IFAP Garrison fellow, at meachum@u. washington.edu.
Another crucial way to help is to join NWIRP's Vision 20/20 Campaign, a fundraising effort in which new and increased individual donations are matched dollar for dollar. Given recent state budget cuts, NWIRP has become more reliant than ever on unrestricted funds from the Legal Foundation of Washington and particularly from individual donors. Donations and questions about volunteering can be directed to the Northwest Immigrant Rights Project, 909 Eighth Ave., Seattle, WA 98104; 206-587-4009, ext. 104 (Development Office).
Bob Free is a partner at MacDonald Hoague & Bayless and an adjunct professor of law at Seattle University School of Law, teaching the VAWA Immigration Clinic. Penny Fields is a 3L at the University of Washington School of Law and a member of IFAP.
NOTES
1. OCV Advocate, Office of Crime Victims Advocacy Quarterly Newsletter, Vol. 10, No. 1 (Spring 2002) <http://www.ocva.wa.gov/newsletter/Spring2002V10N1Web.pdf>.
2. "King Gets 28-Year Prison Sentence," David Fisher, Seattle Post-Intelligencer, Mar. 29, 2002. In response to stories like these, Senator Maria Cantwell and Representative Rick Larson recently proposed legislation cracking down on the "booming, but largely unregulated" mail-order-bride industry, which arranges as many as 6,000 marriages a year. The International Marriage Broker Regulation Act of 2003 would limit U.S. citizens to sponsoring only one fiancée for a visa each year; require those sponsors to undergo a criminal-background check; and require marriage brokers to inform prospective brides of their legal rights, should they become victims of DV. According to Senator Cantwell, "Foreign spouses already submit to criminal background checks as part of the immigration process, and it seems only right that someone seeking to marry an American have equal access to important personal information." Washington state already has such a law, RCW 19.220, which requires disclosure of such information about Washington residents who seek brides through international matchmaking services. Additionally, Washington has taken steps to address the larger problem of trafficking in person, through enactment of RCW 7.68.350, which, in 2002, created a task force to deal with issues of human trafficking, the victims of which are mostly women and children.
3. "Mail Order Mates Play Romance Roulette," Lisa Baker, BrainstormNW magazine (Feb. 2001).
4. Mary Ann Dutton, Leslye E. Orloff, and Giselle Aguilar Hess, Symposium Briefing Paper: Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Legal and Policy Implications, 7 Geo. J. Poverty Law and Pol'y 245, 258 (Summer 2000).
5. Id. at 287.
6. Id.
7. In spite of its name, relief under VAWA is available equally to women and to men. Similarly, the organizations mentioned in this article serve male as well as female clients. However, given that the vast majority of VAWA self-petitioners, like the vast majority of DV victims, are women, this article uses male pronouns to refer to the perpetrators, and female pronouns to refer to the victims, of DV.
8. In the Washington, D.C., study, 72 percent of the physically and/or sexually abused married women reported that their spouse had never filed immigration papers on their behalf. Id. at 259.
9. Id. at 293.
10. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386; 114 Stat. 1464, Oct. 28, 2000.
11. A limited number of "U" visas, created by Congress in 2000, are granted to immigrants who are victims of crimes in the United States. The visa was created primarily to aid victims of violent crimes such as sexual assault, DV, trafficking, and genital mutilation, who are willing and able to assist in the prosecution of their abusers.
12. 8 CFR § 204.2(c)(2)(i).
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