Battered Immigrant Women and Immigration Remedies: Are the Standards Too High?
By Lydia Brashear Tiede
Domestic violence victims suffer unspeakable horrors at the hands of their abusers throughout the world. Two often-overlooked groups of domestic violence victims are women who are abused in their home countries and seek to immigrate to the United States and immigrant women living in the United States who are abused in this country. How the circumstances of the abuse are interpreted as well as how the available legal standards are applied in these cases depend exclusively on whether the victim is fleeing domestic violence that occurred in her home country or domestic violence occurring within the United States. Immigration law deals with these two groups of women separately. Each group must fulfill different legal requirements and evidentiary burdens.
Abuse Is Abuse
Women subjected to domestic violence in their home countries confront social, familial, and legal systems that refuse to acknowledge the seriousness of the problem or to protect the victim. In many countries, the voices of the victims go unheard, drowned out by age-old traditions that perpetuate the idea that women should serve their husbands no matter how they are treated. Often, the victims' own families do nothing to help the victim of spousal abuse and force her to "endure"-as generations of women have done.Outside the family network, women also find little assistance in the legal system. Many countries do not codify domestic violence as a separate crime, and some countries regard domestic violence as strictly a family issue to be dealt with in a private manner. In many countries, the law fails to recognize rape by a spouse, a policy that was prevalent in many U.S. states not so long ago. Few countries recognize domestic violence as a crime or have enacted protections for domestic violence victims. And, measures that have been enacted all too often fall short due to little or no enforcement. Calling the police in many countries does not ensure any real protection for the victim.
Battered immigrant women in the United States face similar traumas due to both the culture and traditions in which they have been raised. The victim often does not know protection is available, or how to seek it. Many immigrant victims do not speak English and are uninformed about U.S. criminal and immigration laws and systems. Some victims lead very isolated lives in the United States; if they are undocumented, they live secret lives in which they literally have no legal identity and few if any ties to social services, friends, or family. Abusers often compound their abuse by threatening to call the Immigration and Naturalization Service (INS) and have the victim deported if she dares complain about the abuse. The impact of such threats is not exaggerated; undocumented victims know that they are constantly at risk of deportation and fear leaving their children in the United States with the abusing spouse and facing a hostile society upon return to their home country. For example, in many Latin American countries, a woman who returns to her village without her husband and children is ostracized, making it difficult to survive.
The Battered Asylee
As stated above, immigration relief available to battered immigrant women depends on where the abuse occurred. A woman fleeing her country due to domestic violence can, when she enters the United States, seek the remedy of political asylum based on the domestic violence. This makes her subject to asylum law, which derives from U.S. treaty obligations under the United Nations Protocol Relating to the Status of Refugees. To qualify for asylum, an individual must establish that he or she is a "refugee," defined in the Immigration and Naturalization Act as any person who is unable or unwilling to return to his or her home country due to persecution or a well-founded fear of persecution for one of five reasons: race, religion, nationality, membership in a particular social group, or political opinion.Asylum claims related to women are often referred to as "gender-based" asylum claims and include any type of persecution that is inflicted on women solely due to their gender. Gender-based asylum claims include rape, female genital mutilation, forced abortion, and domestic violence. Generally, gender-based asylum claims rely on the theories of membership in a social group or political opinion that are found in the definition of a "refugee."
U.S. law recognizes persecution due to gender-related abuse as a basis of asylum. International standards include the United Nations Declaration, the United Nations High Commissioner of Refugee Standards, and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as gender-related persecution guidelines adopted in Canada in 1993. The INS issued its own guidelines, Considerations for Asylum Officers Adjudicating Asylum Claims from Women, in May 1995. They specifically address types of persecution suffered by women and discuss legal arguments tying gender-related persecution to membership in a social group and/or political opinion.
The issue of asylum based on domestic violence took on new significance in the 1999 Board of Immigration Appeals (BIA) decision in In re Matter of R-A (Interim Decision 3403, BIA 1999). A Guatemalan woman was subjected to extreme domestic violence at the hands of her husband, who beat and raped her repeatedly. He dislocated her jaw, kicked her in the stomach when she was pregnant, whipped her with an electrical cord, and wielded a machete while threatening to cut off her limbs and leave her to spend the rest of her life in a wheelchair. The victim in this case argued that she qualified for asylum because she was persecuted, as evidenced by the domestic violence, based on both a social group and political or imputed political opinion theory.
Although the Immigration Court (an administrative court) granted the victim asylum in the first court proceeding, the BIA reversed the decision, denying the victim's claim on both theories. Especially troubling is that not only did the BIA appear to disregard the INS guidelines and previous gender-based asylum case law, but it also added additional requirements to the asylum standard.
The BIA found that the victim was not a member of a particular persecuted social group, defined as "Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination." In rejecting the victim's social group argument, the BIA required that the victim not only prove that she was hurt due to her membership in a group but also that her social group was "cognizable" or easily recognized in society and that there existed a "nexus" between the victim's abuse and the social group. In other words, the BIA required the victim to prove that her spouse specifically abused her due to her membership in a recognized persecuted group.
Under the imputed political opinion theory, the BIA was equally restrictive and denied the victim's asylum claim, stating that she failed to prove that her husband hurt her due to her specific political beliefs.
After efforts made by immigration and women's rights advocates, U.S. Attorney General Janet Reno, on December 7, 2000, issued proposed rules to amend the INS regulations dealing with political asylum and social groups. The drafters recognized that gender could be a basis for a particular social group in an asylum determination and that due to the decision in R-A, the issue of women and asylum requires further examination. The regulations allowed for a commentary period through January 2001. Subsequently, Reno ordered the BIA's decision in R-A to be vacated and remanded the case back to the BIA for reconsideration with instructions to rehear the case after the proposed regulations become final. It is unclear what form the final law regarding gender based asylum will take and how this will ultimately affect the decision in R-A.
Battered Immigrant Women Living in the United States
The treatment of domestic violence in the asylum context is starkly different from the treatment of domestic violence suffered by immigrant women in the United States. A comparison reveals a double standard in which battered immigrant women living in the United States face a much easier standard than their counterparts fleeing abuse in their home countries.In 1994, Congress recognized that battered immigrant women who were undocumented, living in the United States, and married to U.S. citizens or legal permanent residents warranted special protection. Traditionally, these women relied on their husbands to petition for their legal status, and had to remain in their good graces. This situation gave the petitioner even more control over his spouse, because her entire immigrant status and ultimate identity in American society depended on his cooperation in signing an affidavit of financial support and attending an interview with his spouse-sometimes years after the application had been filed. The process encouraged undocumented women to stay with their abusers.
Legislation enacted by Congress in 1994 recognized the vulnerability of these battered women. As part of the Violence Against Women's Act (VAWA), Congress amended the INA, allowing battered women who meet certain requirements to seek legal immigration status through a self-petitioning process that does not require the assistance of their abusive spouses. Under this legislation, women must prove the following requirements: (1) legal marriage to a U.S. citizen or legal permanent resident; (2) residence in the United States with the abuser; (3) abuse or extreme cruelty occurring within the U.S.; (4) good moral character of the victim; and (5) extreme hardship if deported. Under this law, women or their attorneys compile the above proof and submit it to the INS. If their self-petitions are approved, the women can immediately apply for work authorization and can eventually apply for legal permanent residency.
In the fall of 2000, the U.S. Congress amended VAWA significantly. The changes allow even more women to qualify for benefits under the law.
A Double Standard
These differing approaches reflect an indefensible double standard. The asylee who flees her country may be held to extraordinarily stringent evidentiary and legal standards. In contrast, the undocumented victim in the United States who meets the requirements is assured protection and legal status by virtue of the fact that the abuse occurred in the United States and that the victim was married to a U.S. citizen or legal permanent resident. If legislators are serious about domestic violence, which the amended VAWA legislation indicates is so, they should work to protect victims of domestic violence regardless of where the abuse occurs. The recent events regarding the proposed gender-based asylum regulations as well as Janet Reno's vacating of the decision in R-A may provide parity to these two groups of victims. A double standard serves no one's interests.
Lydia Brashear Tiede is a lawyer in San Diego where she represents battered immigrant women, asylum seekers, and immigrants who are in detention.
