GAO's Blurred Take on How DHS Handles Cases of 'Abused' Alien Spouses

By David North on October 8, 2019

What happens when you cause a group of very systems-oriented federal workers to review the immigration-related work of another group of perhaps less system-oriented feds?

Well, in the case of the recently released report on green card-producing fraud springing from citizen-alien marriages written by the Government Accountability Office, you get a predictably mild, totally bloodless set of recommendations that more and better systems should be put in place, as of course they should.

It is the semi-insiders at GAO telling the insiders at DHS, very politely, to improve their game, which is what is done in this report with the long-winded title "Additional Actions Needed to Address Fraud Risks in Program for Foreign National Victims of Domestic Abuse", released on September 30.

The basic immigration-related problem is that many an alien, usually younger than the citizen involved, cons the citizen into a marriage, then fairly quickly complains that the citizen has abused her (it is usually an alien woman) and files a "self-petition" for a green card that is usually approved, and then the alien often obtains substantial sums of money from the citizen. There is routinely no opportunity for the citizen to speak up in this process. Both my colleague Dan Cadman and I have written frequently about these cases.

There were 4,471 admissions and adjustments of self-petitioning spouses of citizens and green card holders in FY 2016, and 3,920 admissions and adjustments in FY 2017.

The GAO's recommendations are useful, but what we need is for someone like that wonderful 16-year-old Swedish girl (who deals with global warming) to bluntly tell the DHS leaders to shape up or ship out.

The GAO report is a warm bath; what is needed is a mandatory plunge into Arctic waters.

All immigration fraud brings us people who should not be here and hurts the integrity of our immigration system. This is true with marriage-related immigration fraud as well as other immigration frauds.

GAO understands that.

But this is a form of immigration fraud that, in addition to the general hurt to our systems, deeply damages a small class of citizens, those falsely charged with abusing their alien spouses (and sometimes alien children, and rarely alien parents of U.S. citizens). These citizens' lives are often ruined by these false charges and the associated financial losses and, to add salt to their wounds, DHS routinely does not listen to the citizen's side of the story.

GAO misses this completely.

When there is a dispute in these cases between a citizen and an alien about an abuse charge, the alien can often get the assistance of a federally funded lawyer; the citizen never can.

Again, GAO misses this.

There are different levels of evil in the immigration business. There is the smuggler who threw a double amputee into the Rio Grande, and then there is the single alien farm worker who crosses the border looking for a job; both are breaking the immigration law, but one is much worse than the other.

The alien who cons a citizen into a marriage to get a green card, and often alimony as well, and who subsequently claims that the citizen abused her is more comparable to the smuggler than to the farm worker. It is appropriate to spend more time and energy on the smuggling and marriage-fraud cases, per case, than on the farm worker's case.

GAO does not make (or get) that point, and should have done so.

Within the marriage fraud business, there are three varieties, a distinction the report does not seem to make. First, there is the all-too frequent practice of the alien paying a citizen to engage in a phony marriage leading to a green card; in this case there are no individual victims, just everyone in the nation, generally.

Second, then there are the cases in which the alien cons the citizen into what the citizen believes to be a real marriage; later the alien claims abuse and then "self-files" a petition as an immediate relative, and then — from what we hear from many individual citizens — the Department of Homeland Security rarely, if ever, allows the citizen to contest the case. The Violence Against Women Act (VAWA) provides all sorts of questionable breaks for the alien in such instances and the law itself needs to be changed. Among these tilts, as GAO reports, is that the "abused" alien spouse, though usually in the nation illegally, is usually excused from the deportation process.

The third type of marriage fraud is a little gentler than the second. The alien waits for two years, sees to it that the spouse has filed papers for her (or him), and then ends the marriage, but no charges of abuse are filed.

This report is about the second kind of fraud.

There must be some cases of genuine abuse by the citizen or green card holding spouse. It is the sorting process between the genuine and phony cases that needs to be improved.

The Elephants in the Room. Were Greta Thunberg (the young lady from Sweden) to be doing this review, she would ask:

  • Why isn't everyone in these self-petitioning cases interviewed in person?
  • Why are the citizens in these cases not given a formal, routine opportunity to respond to the charges of abuse? (If the citizen was really an abuser, he could simply not go to the interview, and the alien's case would be confirmed.) The law is at fault here.
  • Why was the whole matter of the sufferings of the falsely accused citizen spouses not mentioned in the report?
  • And more fundamentally, although this would be beyond the GAO mandate: Why grant a green card to an abused alien spouse, anyway? The reason for the visa was the marriage, and if the marriage did not take, why not just give the alien a one-way ticket back to the homeland? Again the law allows these decisions.

GAO Doesn't Do Irony. This may be asking too much of a green-eye-shade agency, but there is hidden irony in the second kind of marriage fraud, and how it is handled by the feds.

In life the haves usually win. Those with money in the bank usually do better in court than those who are broke; if Daddy went to Yale and Mommy went to Smith, the child is much more likely to wind up in an elite school than a child of two high school drop-outs. And, all else being equal, it is better to be a citizen than an alien.

All of this is turned on its head in the way that the government handles the question of abused spouses of citizens. The citizen is usually a guy; he usually is better off, sometimes much better off, than the alien; but in these cases the fine print of the VAWA law, and the actions of the DHS, are pitched in exactly the opposite direction. I usually root for the have-nots, but not in these self-petition cases.

GAO Presents Some Tantalizing Tidbits. Although the report misses a number of key elements in the messy business of self-petitioning fraud, it presents three bits of partial evidence, but not the rest of the story.

For example, on p. 28 we find:

[W]e analyzed data on the outcomes of adjudications from the 10 countries with the largest number of self-petition filings and found the denial rate by country of birth of the self-petitioner varied by as much as a factor of three.

Here GAO has solid data on an important variable; this is statistical information, not data dealing with individuals. Does GAO share it with the reader? No.

We at CIS, using FOIA data on a different measure, found that when comparing the number of the main kind of self-petitioning spouses per country to all admitted and adjusted immediate relatives of citizens, in 2017, that there were different ratios. Typically, world-wide, there was one such self-petitioning spouse for every 159 immediate relatives.

However, the ratio was lower (and the risk higher) in some nations, such as Jamaica (one to 74), Peru (one to 79), and Honduras (one to 81) — meaning self-petitioning spouses were about two times more likely than average to come from those countries. My suspicion, after dealing with a number of these cases over the years, would be that the Philippines would be high on the GAO's suppressed list, as would the three just cited.

Similarly, on p. 24 the reader is told that in many cases the same address appeared on many of the applications — often an attorney or some other "safe address" used for communications to ensure confidentiality — including an astonishing 845 uses of the same address in the petitions filed between the start of FY 2009 and January 7, 2019. Did GAO send one of the 10 co-authors of this report off to the address in question? Apparently not.

While the exact name and address might be off limits, why not run the outcomes of the adjudications of the 845 cases and let us know if the denial rates were above or below average? Why not tell us if this prolific helper of aliens had federal funding, and if so, how much?

Then on p. 26 one encounters multiple uses of the alien number and the Social Security number in the 2009-2018 filings, with 218 instances of a Social Security number being used three times (thus in 654 filings) and the same alien number five times in 28 filings (for a total of 140). Did GAO then run these data against the adjudications data mentioned above to see if multiple use of these unique numbers suggested a higher (or lower) incidence of denials?


GAO's Recommendations. Unfortunately, as so often happens with these studies, the investigators were swept up in the ethos of the investigated. The conclusion of the report begins this way: "The VAWA program is designed to protect foreign nationals who are victims of domestic abuse."

It should read something like this: "The VAWA program should make sure that abused aliens, if truly abused, are granted their rights under the law, and it should, equally, make sure that citizens and green card holders are not falsely accused of such abuse."

The three recommendations are stated in very general terms (which allows USCIS to agree, easily, with them) and call for regular fraud risk assessments by the agency, the development of an anti-fraud strategy, and the development and implementation of USCIS's data analytics capabilities.

I would have preferred, in addition, a longer, more detailed list of specific recommendations, including:

  • Run, every six months, an analysis of the denial/approval data by the names of all agencies and law firms assisting alien applicants; then publish it.
  • If in doubt about a Social Security number's validity, use E-Verify to determine if the SSN belongs to the person to whom the number was issued; the report carries this remarkable note: "[O]fficials told us that the agency does not have the capability to check the validity of Social Security numbers."
  • Spend more time on applications from persons from nations with higher denial rates than those with lower ones; similarly, spend more time when the applicant's age is 20 or more years different from that of the spouse.
  • Share your detailed risk assessment findings with related agencies, such as the State and Justice Departments, with Congress, with Customs and Border Protection, and with the public.

CIS Involvement. Three members of the GAO team spent at least two hours with several of us at the CIS office as the study started. They asked a series of appropriate questions and gave us a chance to make detailed suggestions. There was little subsequent contact, though we did share some written material with the GAO team after the meeting.