Over the years, my colleague David North has written a number of pieces contributing to what we know about certain shady undersides of how the immigration laws actually work where the granting of benefits is concerned.
I'm talking specifically about misuse and downright fraud against the system, and the particular abuses to which I refer are:
- Procuring a green card as the result of a fraudulent marriage; and
- Procuring a green card after abandoning your spouse as an alleged abuser, which permits the alien to apply for an exemption (accompanied, of course, by a green card) and be forgiven from any further participation in the marriage, which was, after all, the basis under law by which the alien was initially entitled to seek resident status.
The latter occurs by virtue of provisions inserted into the Immigration and Nationality Act by the Violence against Women Act (VAWA). Note that despite the name, it applies to any alien spouse, male or female, who is abused by the petitioning citizen or resident alien who applied to vest that spouse with "immediate relative" status. (In practice, it is usually a U.S. husband and alien wife.) In fact, VAWA also applies to "battered" parents and children of petitioners.
North's most recent insightful work is "Are U.S. Spouses 22 Times More Abusive than Nonimmigrant Ones?". As the name implies, the VAWA provision allowing abused aliens to leave their spouses and nonetheless reap the benefits of residency, itself appears to be the subject of significant abuse. This isn't a surprise. The law is well intended but flawed.
Using VAWA as a convenient loophole comes about for the same reasons that marriage frauds take place. An unsuspecting citizen meets and falls in love with an alien who isn't in love, but is all too keen to procure that coveted green card. The alien may, in fact, still be married abroad and looking not only to end up with resident status, but ultimately to have a foothold by which the original, real spouse (and perhaps even children) can later be petitioned for and brought to the United States.
Such a situation is, as I have discussed myself in prior blog posts, essentially a one-sided marriage fraud (see, e.g., here and here). The difference with VAWA is that the alien wants to avail herself of the law's escape hatch from the marriage before actually gaining the green card, but obviously still wants the resident alien status. Calling oneself battered permits that to happen.
It's easy enough, because under VAWA the alien petitions for herself as the victim of abuse, and the matter is then adjudicated by immigration examiners from U.S. Citizenship and Immigration Services (USCIS) as a matter of course, handled no differently than a host of other different kinds of applications and petitions. And therein lies the problem. The alien's word is taken without reference to the petitioning citizen or resident spouse.
Can one imagine any other situation in which a U.S. citizen or resident alien can be labeled as "abusive" by an official entity of the federal government while having no say-so whatever about it? None comes readily to my mind. There are potentially injurious consequences to being labeled an abuser, and yet the petitioner is given no chance to salvage his or her reputation. Just to give one example: What if an employer finds out that the alien has been granted status on the basis that the petitioning citizen or resident was abusive, and decides to discharge him?
The answer would seem to me to be simple: Remove this particular benefit from the current methods of adjudication and require that a hearing be held before an immigration judge in which both the accuser and the accused have a chance to speak to the matter. It would then be handled more along the lines of a divorce hearing, and the presiding judge would have the opportunity to weigh evidence and the credibility of both sides before moving on to a decision about whether spousal abuse existed, or was instead a convenient fiction by a scheming alien who entered into the marriage in bad faith.
I think many citizen and permanent resident spouses would want this chance to speak out before being officially deemed abusive by an organ of government.
This change in process to make such findings more fair and honest could, of course, be accomplished by legislative amendment. This would be the cleanest method. But, in truth, I have no faith whatever in our Congress in recent years to do anything where immigration is concerned, other than wring their hands about unconstitutional executive actions such as those taken by the former president, while actually doing nothing.
Could such a change be effected by regulation? It's an interesting thought, but that would require the will to do so, and in truth I don't have much more faith in the Department of Homeland Security or the Executive Office for Immigration Review (the arm of the Justice Department that houses the immigration courts) than I do in Congress.
But, as North has so clearly pointed out, something needs to be done.