|
Article Excerpt
I. INTRODUCTION: DOMESTIC VIOLENCE IN LATIN AMERICAN IMMIGRANT COMMUNITIES
Domestic violence is a crime that does not recognize racial, cultural, or socioeconomic barriers. Between 1992 and 1996, there were an average of 960,000 incidents of violence between partners in an intimate relationship per year; most of these victims were women. (1) The case of the Latin American immigrant community is examined later in Part IV of this Note. Although rates of violence between intimate partners are somewhat lower among Hispanics in the United States than the general U.S. population, (2) undocumented immigrants represent a subgroup in the Hispanic community that is more vulnerable to domestic violence, in part because they are less protected by the legal system. (3) In this Note, I will argue that undocumented immigrants fall between the cracks left between American criminal law and federal immigration law. (4) Regardless of their immigration status, all victims of domestic violence are entitled to the protection of local law enforcement. However, they may not seek that protection because of real and perceived risks to their continued presence in the United States. (5) While many battered immigrants are protected by the immigration provisions of the Violence Against Women Act, undocumented women may face the threat of deportation and possible separation from their children if they report their batterers to the police. (6)
Although immigrants, both legal and undocumented, are less likely than other women to report all categories of crime to law enforcement, domestic violence is even more likely than other crimes to remain unreported. (7) Lack of reporting seems, in part, to be due to cultural constraints on battered women. The structure of immigration law, however, is the greatest barrier to reporting crimes of domestic violence. Women who are hoping to obtain legal status through their husbands inevitably fear that reporting abuse will jeopardize their chances for legal immigration, and undocumented women whose husbands or partners are themselves undocumented face the additional threat that their abusers will report them to immigration authorities, and that they will be deported as a result.
II. HISTORY OF PROTECTIONS FOR BATTERED IMMIGRANTS
A. The Historically Gendered Structure of Immigration Law
The historical foundations of United States immigration law reflect the gendered structure of American law generally. Early U.S. immigration laws gave citizen husbands the right to petition for the legal immigration of their noncitizen wives, yet denied the right of citizen wives to petition for their noncitizen husbands. (8) American women who married noncitizen men would, in fact, lose their U.S. citizenship as their identities were merged with those of their husbands via the doctrine of coverture. (9) Noncitizen husbands and wives continued to receive explicitly disparate treatment through the 1940s and the immediate postwar period. (10) Although a few minor changes were made, lawmakers never challenged, or sought to change, "the law's basic notion that one spouse was dominant, and therefore rightfully controlled the other spouse's immigration status." (11)
The 1952 Immigration and Nationality Act (INA) and its subsequent amendments codified immigration law. (12) With the INA, Congress strove to create a facially neutral immigration statute by replacing the terms "husband" and "wife" with the term "spouse." (13) In theory, then, men and women were to be treated equally. In practice, however, the immigration statute retained the structure of one dominant spouse who controlled the immigration status of the other. (14) Thus, as more women than men continued to immigrate through their spouses, (15) the law continued to have a disparate impact on women.
B. Basic Procedure for Immigration as the Spouse of a Citizen or Permanent Resident
One of the easiest and most frequently employed means to legal immigration is through a family relationship. (16) Many immigrants obtain legal status through marriage to a U.S. citizen or lawful permanent resident (green card holder). The spouse of a U.S. citizen is considered an immediate relative not subject to the country quotas to which other immigrants are subject, and is therefore immediately eligible for an immigrant visa if the sponsor's petition is approved. (17) A permanent resident may also sponsor his or her spouse, although subject to greater restrictions. These immigrants are subject to two sets of numerical quotas: those established for the particular category of immigrant, and those established for the immigrant's country of origin. (18)
Although the INA is facially neutral in its treatment of spouses, in practice the great majority of immigrant spouses are women. (19) Because the sponsoring spouse must file a petition for the immigrant spouse, the immigrant spouse's immigration status is in the hands of the sponsor. If the sponsoring spouse decides not to file the petition, or decides to withdraw it after filing, the immigrant spouse has little recourse and must either find another route to legal immigration, remain in the United States illegally, or return to her country of origin.
C. Historical Protections and Barriers for Battered Immigrants
In 1986, Congress amended the INA by passing the Immigration Marriage Fraud Amendments of 1986. (20) These amendments were enacted in response to perceived abuses of spouse-sponsored immigration. Congress found that while:
[h]istorically, U.S. immigration policy has recognized the importance of protecting nuclear families from separation by permitting immediate family members of U.S. citizens to immigrate to the United States without numerical limitation[,] ... aliens who either cannot otherwise qualify for immigration to the United States or who, though qualified, are not willing to wait until an immigrant visa becomes available, frequently find it expedient to engage in a fraudulent marriage in order to side-step the immigration law. Surveys conducted by the Immigration and Naturalization Service have revealed that approximately 30% of all petitions for immigrant visas involve suspect marital relationships. (21)
Among other provisions, the new law created criminal penalties for citizens and noncitizens who entered into a marriage for the purposes of circumventing immigration laws. (22) The new law also raised the barrier to permanent resident status for immigrant spouses by establishing a two-year period of "conditional" permanent resident status. (23) A noncitizen spouse whose petition is approved is only granted permanent resident status conditional upon the marriage having been entered into in good faith, (24) the filing of a joint petition to remove the conditional status within ninety days of the second anniversary of the approval of the initial petition, (25) and the participation of both spouses in an INS interview within ninety days of the approval of the second petition. (26)
The added burdens of a two-year waiting period for permanent resident status, the tiling of a second petition, and the joint appearance at an INS interview increase the power that the sponsoring spouse wields over the immigration status of the noncitizen spouse. Even if the citizen or permanent resident spouse agrees to sponsor the immigrant spouse and files the initial petition, he may still prevent her from achieving unconditional permanent residence if he declines to file the second petition or appear for the joint interview. In effect, the nonimmigrant spouse controls the immigration status of his spouse for an additional two years under the...
|
