The Center's Dan Cadman and David North have written frequently about a troublesome migrant population: spouses of U.S. citizens and green card holders who have used actual abuse or alleged abuse to secure green cards. It is a worrisome population because the aliens involved are obtaining green cards based on nothing more than a failed marriage.
In disputed cases, the U.S. resident is routinely not allowed to present testimony about the matter and the decision is made by an examination of the paper record by U.S. Citizenship and Immigration Service's (USCIS) service center in Vermont. In many cases, there also is no interview of the alien who has "self-petitioned" for this status.
Comparing more recent data to data from that report, CIS found:
- The number of AAO appeals in this field parallels a continuing decline in approvals for this benefit. Appeals decreased from 488 in FY 2014 to 141 in FY 2018; approvals have dropped from a recorded 8,706 in 2014 to an estimated 2,177 in 2018.
- Once a staff decision has been made against an alien, which is a relatively rare occurrence, that decision tends, by an 8:1 ratio, to be confirmed by the AAO.
- Recently, apparently in a cost-cutting move, useful demographic and other background information has begun to disappear from these AAO decisions.
To standardize and randomize the examination of these AAO decisions, we chose to reemploy the method used originally by North and review every 16th AAO decision from 2015 through 2018. In total, we reviewed 73 cases from the 1,124 available (6.5 percent). Of these cases, there were:
|Confirmations of Staff Decisions||61|
|Reversals of Staff Decisions||9|
|Remands for Reconsideration||3|
It is important to note that for cases in which the motion to reconsider was denied, the petition was concerning an abused child, or the motion was summarily dismissed, we moved onto the next decision in which an initial appeal was considered. There were 61 cases in these categories.
From these results, it is clear that decisions made by USCIS's Vermont service center are very unlikely to be reversed. This may decrease the incentive to appeal these decisions.
What we found reflects a larger role for Hispanics and fewer male appellants, as compared to North's earlier results.
Of the 73 cases reviewed, 46 of the petitioners were women (63 percent) and 27 of the petitioners were men (37 percent). In comparison to the cases reviewed from 2011 to 2014, there was a decline in the percentage of men appealing (from 47 percent). Moreover, the failure of men's petitions has continued, with none of the petitioners in the decisions reviewed by North appealing from 2011 to 2014 receiving a decision in their favor and only one of the nine male petitioners receiving a reversal by the AAO in the decisions we reviewed from 2015 through 2018.
There are numerous possibilities for this decline. One is the increased intensity of the American feminist movement, and its counterpart #MeToo movement that gained traction in 2017, causing fewer men to appeal. Also, AAO is possibly easing its tougher stance against male petitioners, allowing more to be granted eligible status without having to endure the appeals process.
Nation of Origin
In comparison to the data from 2011 to 2014, luckily there has been a greater overall percentage of AAO decisions that indicate the petitioner's nation of origin, from 61.3 percent for 2011 through 2014 to 78.1 percent for 2015 through 2018. Of the 57 from 2015 through 2018 that indicated nation of origin, we found the following:
In terms of region, however, this data reflects a larger trend than in terms of individual nation:
|Central and South America||17|
|Asia (including the Middle East)||10|
One notable trend is the increased role of those from Central and South American nations. From 2011 to 2014, only nine of the 57 petitioners (15.8 percent) from known countries of origin came from these two regions and yet from 2015 to 2018, 17 of the 57 petitioners (29.9 percent) from known countries of origin originated in Central or South America. The reason for this is unclear. Table 21 in DHS's Yearbook of Immigration Statistics reports fluctuating statistics for the region. However, CIS recently was able to attain information on the nations of origin for self-petitioning spouses who received adjusted statuses in 2017 through a FOIA request. This confirmed, on a much greater scale, the trend of this small sampling.
Status Upon Last Entry into the United States
Although not examined in North's 2016 Backgrounder, some AAO decisions (41 of 73 total) disclosed the petitioner's status upon his/her last entry into the United States. Here, we found:
|Entry Without Inspection||11|
|Visa Waiver Program||1|
Thus, about a quarter of the aliens involved in these cases arrived illegally, while the rest had visas. To what extent the appellants were in illegal status at the time of the filing could not be determined.
We found that the average time between last entry into the United States and the filing of the self-petition was 8.4 years. With the exception of F-1 student visas, the longest period that the other visas used upon entry would allow a petitioner to stay is five years (J-1 visas). Hence, visa overstayers likely compose a large portion of this population. This is further reflected in DHS's 2018 Yearbook of Immigration Statistics, which reports that the greatest number of self-petitioners are those seeking adjustment of status, rather than new arrivals to the United States.
For years, U.S. citizens and permanent residents have been taken advantage of by this faulty system, and this review has shed new light on the abuse of self-petitioning. In addition to the trends above, when reviewing the decisions, we found numerous reports of failures to divorce prior spouses, petitioners' criminal histories, fraudulent identity documents, and petitioners' marriages to their U.S. citizen or permanent resident spouses being their second or third marriages. This is in accordance with the same patterns observed by North, and further highlights the concern for U.S. residents' inability to defend themselves.
Additionally, the number of self-petitions for spouses overall have been decreasing in recent years, as illustrated below.
Spouses and Children
Sources: Column two, six subclasses of self-petitioning spouses from Table 7 of the DHS Yearbook of Immigration Statistics from 2014 to 2018; Column three, AAO decisions for petitions for battered or abused spouses or children under VAWA from 2014 to 2018 (there were very few children in this category).
* Estimated; not yet published.
Although the 2018 Yearbook of Immigration Statistics (and thus the number of approvals) has not yet been released by DHS, using data and overall trends from prior years, CIS was able to estimate that in 2018, there were 2,177 approvals or, with a 3 percent margin of error, between 2,112 and 2,242 approvals. Should this estimate be correct, we are witnessing a significant decrease in VAWA self-petitions, for unknown reasons.
Some possibilities include aliens simply filing self-petitions less often, American citizens and permanent residents getting wiser, and the government being more aware of the rampancy of fraud and thus better assessing these cases. However, as mentioned in an earlier blog by North, the backlog of undecided cases is increasing and so the numbers of both approvals and denials are shrinking. Hence, we may be misled by the optimistic trends of fewer petitions being filed, but we cannot be sure because of the lack of conclusive information.
Disturbing and Decreasing Access to Information
One disturbing trend we noticed while reviewing these cases is the lack of information provided by USCIS. No detailed information is available about approved cases and those denied (and not appealed). In other words, fewer than 5 percent of all decisions made by USCIS are available to the public and crucial decision-makers.
In the few decisions accessible to the public, there is a disconcerting trend in which the reports on AAO's decisions are getting shorter and less detailed. To illustrate, in 2015, almost every report had an entire section devoted to cases' "Facts and Procedural History" that contained the information reported above about demographics, status upon last entry, etc. However, in the cases following, especially those in 2017 and 2018, this section was eliminated in the decision summaries and so we must search through other sections for the reasons for decisions in hope of a mention of such vital information.
This concerning trend is manifested in the fact that in the 2015 and 2016 decisions I reviewed, 36 of the 47 (76.6 percent) available specified the petitioner's status upon entry. Yet, in the 2017 and 2018 decisions, only five of the 26 (19.2 percent) specified this information.
And this is not the only type of case that AAO is neglecting to report specified information about. I sampled other decisions made by AAO in these same years and found the same disturbing trend regarding less information in the case of U-visas and petitions to classify convention adoptees as immediate relatives.
These decisions are just about the only glimpse into the VAWA proceedings, and outsiders need to know more details, not fewer, about who is trying to beat the system. Thus, it is detrimental to all those who may use the data, from student researchers to those making crucial national decisions in Congress and the executive branch.
Moreover, information about these cases allows social workers, volunteers, etc. to observe trends about legitimately abused immigrant spouses that could help provide better aid for these victims.
Furthermore, the AAO's extreme concern for the petitioners' privacy will not be endangered by providing more information; a petitioner's background is essential to understanding the AAO's decision, and the inclusion of the petitioner's nationality, gender, etc. does not pose a threat.
All in all, the patterns and trends discussed in North's 2016 Backgrounder continue. And still there are no indications of USCIS contacting the accused U.S. citizen or permanent resident spouses to hear their side of the story. Although perhaps well intentioned, this lack of due process favors the petitioner and oftentimes destroys the emotional and financial status of the American spouse.
Yet, what may be equally disconcerting is the inability of outsiders, ranging from the curious public to influential policy-makers, to understand the extent of this problem. Consequently, we know little about the extent to which the American right to due process is violated. If tangible policy reform is to occur, there almost certainly must be more information provided by USCIS. These policy changes could aid both the immigrant and the citizen, providing the opportunity for bipartisan agreement on this issue.