The Inherent Unfairness of an Immigration Provision in the Violence Against Women Act

By Dan Cadman on September 20, 2018

I was reading an article in National Review by Andrew McCarthy and came upon this statement, which I find to be both self-evident and at the same time profound:

[I]n our adversary system, we do not submit disputes to a team of independent expert investigators. We have advocates for each side — partisans — make the case as well as it can be made from their side's perspective, and we let the other side attack with all its partisan might. We allow each side to examine the other's witnesses. Based on this often heated clash, we expect that members of the public will be able to figure out what information is reliable, what is nonsense, and what the truth is. That is the process we use for deciding life-and-death criminal sentences, as well as civil judgments that can be financially ruinous. We have used it for centuries because it works.

McCarthy was speaking in the context of the controversy surrounding the allegations against Supreme Court nominee Brett Kavanaugh, but of course his remarks are relevant to our notions of fairness in the judicial system at large. Yet I would go a step further — they should also be relevant to administrative adjudications precisely because, as McCarthy notes, out of the clash of opposing presentations, we expect the truth to become clear.

And that brings me to the focus of this posting: the Violence Against Women Act (VAWA). It is one of those peculiar laws that has always come with embedded sunsets that require periodic re-introduction of the law in one form or another. It's once again up for renewal.

Law360 tells us that House Minority Leader Nancy Pelosi has urged congressional Republicans to get behind a new version of VAWA introduced by Rep. Sheila Jackson Lee, whereas the Republicans would prefer simply to authorize a hold-in-place measure through midterm elections until December 7.

One of the singular provisions contained in VAWA allows aliens to self-petition to obtain their green cards if they are married to an abusive spouse. (Note that although this provision is contained in a bill geared toward protecting abused women, it applies to men as well.) That sounds reasonable; after all, why should an alien have to continue living with someone who abuses her (or him) and who holds over her (or his) head the threat of not filing the petition needed to procure resident status as an immediate relative?

Here's why, and I quote directly from the webpage of U.S. Citizenship and Immigration Services (USCIS), the Homeland Security agency responsible for adjudicating VAWA petitions:

You may self-petition under VAWA by filing a Petition ... without your abusive family member's knowledge or consent. [Emphasis added.]

Translated, what that means is that an alien can allege that her (or his) spouse engages in domestic violence and abuse and — without that citizen having a chance to clear his (or her) name and possibly not even knowing that such an allegation has been levied with immigration officials — upon grant of the petition, a federal government employee has in effect certified that the citizen engages in spousal abuse.

How can this travesty of justice take place? Clearly there are significant emotional, financial, and perhaps even professional employment consequences that can flow from such a Kafkaesque adjudication.

I don't wish to suggest that I in any way condone abuse. But neither can I condone a system that permits a single federal bureaucrat to render such a decision with such far-reaching adverse consequences to the citizen spouse who has no opportunity to rebut the allegation.

Both my colleague David North and I have spoken extensively about a series of off-kilter provisions in the immigration laws, including one-sided marriage fraud in which the alien takes advantage of an unsuspecting (and ultimately heartbroken) citizen spouse (see e.g. here, here, and here). VAWA is merely a variation of that theme, because it is a loophole wide enough to drive a tractor-trailer through for unscrupulous aliens who dupe citizens into marriage with no intent whatever to follow through and live with that person.

It would be easy for those who advocate the existing system to suggest that these cases almost all inevitably involve men of a certain age who "bride shop" hoping to find appropriately submissive wives. The reality is far different.

I won't speak for North on this score (although I imagine his experience is the same as mine), but I can say that because of my blog postings, I routinely receive email messages from citizens and residents who have been taken advantage of with disastrous consequences — and they span the spectrum of humanity. I have been contacted by both men and women who feel victimized by one-sided marriage fraud and/or by VAWA self-petitioners; I have been contacted by straight and by gay citizen victims; and I have been contacted by individuals of color and from different origins all over the globe who have been victimized by unscrupulous aliens who marry with the sole intent to obtain their green cards by any means necessary, and at whatever cost to the citizen victim. What the victims have in common is that they have been vilified and left hanging by schemers who often leave financial, emotional, and other havoc in their wake.

By no means do I suggest that fraud is the norm; I have no way of knowing from anecdotal evidence. But it clearly happens frequently enough that it has persuaded me that a system with no accountability, in which individuals are free to cast the most base allegations without giving the accused recourse to clear their names, is abysmally wrong.

This leads us full-circle back to McCarthy's remarks. Surely fundamental fairness requires that those accused of abuse be given their "day in court" so that adjudicators have more than simple one-sided allegations from which they are supposed to arrive at a true judgment of whether an alien is the victim of abuse, or not.

So let our congressional representatives consider renewing VAWA in the fullness of time, but when they do, let them also redraft the provisions relating to alien self-petitioners in such a way as to allow citizens and residents to rebut false allegations when they occur.