Another Missed Opportunity to Fix VAWA

By Dan Cadman on November 23, 2019

Following a breakdown of bipartisan talks (is there really such a thing anymore?) over extension of the Violence Against Women Act (VAWA), Democrats have filed their version, which seems to be chock-a-block full of anti-second amendment provisos masquerading as a way to stem domestic violence.

In response, Sen. Joanie Ernst (R-Iowa) filed a bill with her own version, which can be seen here. Sen. Ernst, as a survivor of abuse and rape, speaks with authority on the issue, and her bill contains a number of proposals that go beyond my purview to discuss since they have little to do with immigration, per se.

I note with approval, though, something in Sen. Ernst's bill with clear relevance to immigration policy, and that is a series of provisions (in Title XIII) governing female genital mutilation (FGM), which is an abhorrent practice imported to the United States as the result of cultural traditions in a host of third-world countries. Interestingly, Sen. Ernst's bill focuses on the "commerce clause" of the Constitution, governing interstate and foreign commerce, as a justification for federal involvement and strengthening of the federal criminal code. Sadly, what she and her staff missed is the opportunity to amend the Immigration and Nationality Act (INA) to render as inadmissible or deportable an alien who directly or indirectly causes, induces, conducts, or participates in FGM. That would have been an excellent addition to the INA.

Embedded within that same title of the bill is a proviso addressing forced marriage, which often enough is the lot of under-aged minors primarily, although not exclusively, introduced by communities of immigrants whose cultural traditions endorse "arranged" marriages of extremely young brides to considerably older men. Again, though, there has been no consideration by Sen. Ernst or her staff to what might have been done specifically within the context of the INA to shore up federal policies and ensure that we are not as a government inadvertently leaving the door open to such practices.

But important as they are, if we put female genital mutilation and forced marriage aside for a moment, VAWA is of interest to those who study the immigration process, because embedded within VAWA — which sunsets periodically and therefore requires reassessment, amendment, and passage into the law — is a provision that allows abused alien spouses to file a self-petition that, if approved, grants them a coveted green card. Note that, despite the specific reference in the very name of the act to women — who are, it should go without saying, the primary victims of sexual and violent domestic abuse — the provision applies equally to male alien spouses as to females. In other words, the genders, and for that matter sexual orientations, of the spouses are irrelevant to the filing and adjudication of such a petition.

The problem, as I, my colleague David North, and others have noted with some frequency is the way in which the petitions are filed and adjudicated. They are done sub rosa, so to speak. The citizen (or lawful resident) spouse who is the ostensible abuser on which the whole claim is based has no way to contest the assertion. He or she isn't even told that such a petition has been filed. But if the petition is approved for the alien wife or husband alleging abuse, the clear imputation is that the citizen or resident was a domestic abuser. The problem with such a system is self-evident. It's an invitation to fraud and scheming by unscrupulous aliens who take advantage of a system where all it takes is their word that they received abuse at the hands of their spouse. Done and dusted!

So, you may ask, what does it matter if no one knows you are, by imputation, abusive? Setting aside the fact that no alien should be able to get away with such blatant fraud, let me pose these questions: How would you like to discover after the fact that, for instance, you've been the subject of a federal inquiry in which a government agency arrives at the conclusion that you're a (pick your poison here — alcoholic, drug abuser, stalker, ad infinitum). Are you 1) going to rest easy that such conclusions were made without your knowledge; or 2) assume that those results will never leak out, and therefore no harm, no foul? Not likely.

And there's no guarantee that the results won't leak out — or even be revealed officially. If, hypothetically, an IRS agent was looking into your and your alien spouse's finances, and thought something might be gleaned by a look at the spouse's A-file with related paperwork, he or she could request a look at those files based on the investigative predicate and almost certainly would be given the chance to look at and make notes from, or quite possibly request copies of, relevant pages from those files.

What's more, if you as the "abuser" get wrapped up into a contest over alimony or any one of a dozen other issues as the result of a nasty divorce, guess what might just pop up into the court record as proof of what a villain you are? Make no doubt that U.S. Citizenship and Immigration Services (USCIS) would inevitably respond to a subpoena to produce such records if authorized by the presiding court. In this way, you take a double-whammy because not only did you have no opportunity to even know about, let alone rebut, the accusation of abuse in the first place, you now have to fight an after-guard action to refute the USCIS adjudication — an official finding of the federal government — which by implication makes you an abuser (since that, after all, was the basis of the self-petition).

From our study and writing about how often this happens, both North and I can tell you of our many contacts with people of all colors, creeds, ethnicities, countries of origin, genders, and sexual orientations who have been duped by aliens and then found themselves on the back end of such an allegation, with their emotional, financial, and sometimes professional lives thrown into complete turmoil.

Because Sen. Ernst is a survivor of horrific abuse, she might have been relied upon to examine our present Kafkaesque system and suggest intelligent, honorable, and sensitive ways to address the needs of true victims of spousal abuse, while at the same time protecting the rights of the accused abusers to at least have the opportunity to defend themselves against baseless allegations that wouldn't stand up to the light of day if outed. Unfortunately, that didn't happen.