Congress's proposed VAWA changes by Nicklaus Misiti, Esq.: An immigration attorney's perspective

May 14, 2012 - PRLog -- In 1994, Congress passed and has continued to authorize the Violence Against Women Act, or VAWA.   VAWA was created because Congress recognized that domestic abusers were exploiting the immigration laws and using them as a method to manipulate and control noncitizens.  Ironically, Congress (H.R. 4970, Rep. Adams, R-FL)  now seeks to roll back some of VAWA’s benefits because they claim that abuse victims are exploiting VAWA laws to remain in the US.  Essentially, they seem to claim that VAWA is ripe with fraud.

Current VAWA law allows a non citizen to petition for their green card if they meet 4 basic criteria: 1) they married a US citizen or lawful permanent resident, 2) the couple resided together, 3) they suffered abuse at the hands of their spouse,  and 4) they are a person of good moral character.  

VAWA petitions are kept confidential and the alleged abuser is not allowed to rebut the claims of abuse.  The reasoning behind this is that the abuser suffers no negative consequences if the victim files a VAWA petition.  Criminal charges are not filed against them and immigration has no power to punish them.  The second reason is that this protects the abused, as they do not have to suffer the fear that their abuser will be notified and decide to come after them.    

It is true that if notified by the applicant the District Attorney may be able to charge the abuser criminally, however, this is completely different than the immigration case.  If charged criminally the accused has all of their constitutional rights, including right to counsel, and right to face their accuser, etc.  

Moreover, under the current immigration laws simply alleging that one is a victim of abuse is not enough.  Evidence must be supplied to show that the applicant meets all of the above mentioned criteria.  They must collect bills and mail at the same address to show they lived together.  They must present evidence of abuse such as affidavits of witnesses, police reports, hospital records, psych evals, and any other evidence.  They must also show they have not been convicted of any crimes which would show they are not a person of good moral character.  Generally, this type of evidence cannot be obtained fraudulently and immigration officers adjudicating VAWA petitions are specially trained to determine if evidence submitted is fraudulent and if it meets the standards under VAWA.

Further, under current VAWA laws if the applicant meets all of the above mentioned criteria they will qualify for permanent residence and after 3 years can apply for citizenship.  The proposed changes to law would make the evidentiary burden much higher and would not allow the applicant to obtain permanent resident status or citizenship.  They would also do away with the confidentiality requirements and the abuser would be notified.

Such changes would virtually do away with the reasoning behind the VAWA laws.  The laws were enacted because abusive US citizens were utilizing the laws to control and manipulate noncitizens.  The self petitioning process was created so the non citizen was not dependent upon the abusive citizen for a green card or their lawful status.  Moreover, eliminating the confidentiality requirements would essentially place the abuser on notice that their spouse was trying to escape their control.

If Congress really wants to strengthen VAWA laws than they should seek to better train immigration officers to look for fraud and abuse and aid them in determining what is acceptable evidence.  They should also clarify what abuse is.  For example is it always physical or does mental and emotional abuse also qualify and if so what qualifies as mental and emotional abuse.

 The truth of the matter is that there will always be fraud in our immigration system and Congress should do everything they can to eliminate it but they should not punish those with valid claims because a few wrong-doers could potentially slip through the cracks.