Recently I wrote on a provision of law that allows aliens who allege abuse at the hands of U.S.-citizen spouses to leave the relationship and self-petition to obtain a green card.
My complaint wasn't so much that the provision exists, but in the inherently one-sided way in which it was written into law and is administered. U.S. Citizenship and Immigration Services (USCIS) allows the petition to be filed and adjudicated without the citizen spouse being able to rebut the accusation of abuse — or, in fact, even knowing that the petition has been filed or adjudicated.
This leaves a stain on the spouse's reputation, can lead to potential harm in the economic and employment arena, and, often enough, real harm in the division of assets that results from separation and divorce after such a finding. It is incredible to me that USCIS examiners are permitted to adjudicate such applications without the opportunity for the U.S. citizens to contest the charge in any meaningful way, and renders fundamental concepts of fairness in law a mockery.
I got feedback on that blog post from readers, including a man named "Nathan", whom I won't further identify in order to protect his privacy. Nathan made the astute observation that even in the event of an opportunity to rebut in a more formal hearing context, there would quite possibly be echoes of the recent Kavanaugh confirmation debacle, with a "he-said-she-said" divide between those who choose to believe the accuser and those who choose to believe the accused.
I certainly acknowledge that possibility, but nonetheless think that how VAWA spousal abuse self-petitions are handled now is wrong. Everyone accused of misconduct — which, after all, is at the heart of self-petitions alleging that a citizen spouse is abusive — should be given their chance to set the record straight. Some will succeed in doing so, some will fail, but the opportunity should exist. This isn't only just a matter of fairness, although it is certainly that, too. It's also needed as a tonic against the wide-open opportunity for fraud that exists when aliens come to know that simply by making the allegation, they can defeat the usual processes inherent in obtaining resident status via marriage to a citizen. The status quo is an invitation to manipulation of our immigration system by the unscrupulous.
As to the "he-said-she-said" divide: In addition to providing a chance at rebuttal by U.S.-citizen spouses accused of abusive behavior, it seems to me that immigration examiners who adjudicate VAWA self-petitions should 1) receive specialized training to recognize both the signs of legitimate abuse exhibited by victims, and also the signs of fraud that might accompany fake claims; and 2) even more importantly, be given specific training in use of the "preponderance of the evidence" standard that ought to be used in adjudicating claims.
If an alien claimant meets that standard, she or he should be granted the petition; if not, the petition should fail. It's that simple. This is, after all, a legal standard that is the norm in almost all civil cases (although some raise the bar of evidence even higher), and administrative adjudications for immigration benefits are nothing more than a particular type of civil case.