ARE YOU A VICTIM OF ABUSE ?

Domestic violence is a pattern of abusive behaviors used to establish power and control over an intimate partner often leading to the threat or use of violence. Abuse is any controlling, hurtful act, word, or gesture that injures another's body or emotions. Domestic violence is not a disagreement, a marital spat, or an anger management problem.

If you are subject to abuse you should leave your home immediately. As an attorney I have a duty to report abuse, and I will do so! The Florida bar rules of professional conduct state that a lawyer must reveal such information to prevent serious bodily harm to another. Check here if you think you are a victim of abuse. The more you answer "yes" the more likely it is that you are. Remember, Abuse can be verbal, and does not need to be limited to physical violence. Often, verbal abuse is worse.

Anyone who is in fear of their life, or who is being abused, has the right to file an protection order against their abuser. Most local shelters, courthouses, and legal services offices will have the applications available, and in most large cities, the courts are open until late in the evening. In most cases, the courts will immediately issue a temporary restraining order, and set the case for hearing.

1. Introduction: is there a problem?

Women and children constitute approximately two-thirds of all legal immigrants. Increasing evidence indicates that many are suffering from some form of abuse, afraid to request help, or unaware of where to turn for help. According to a National Institute of Justice survey, approximately 25% of all adult women in the United States are at risk of being abused by a male intimate partner during their lifetime. Each year an estimated 8% to 11% of all married women (4-6 million) in the United States are physically abused by their current or former intimate partners. A survey conductedby the Immigrant Women’s Task Force of the Northern California Coalition for Immigrant Rights (formerly the coalition for Immigrant and Refugee Rights and Services, CIRRS) revealed that 34 % of Latinas and 25 % of Filipinas surveyed had experienced domestic violence either in their country of origin, in the U.S., or both.

The increase in international dating and international relationships is a direct result of the computer age, and chat rooms are taking the place of bars, libraries, and other meeting places. More and more (especially) American men are using the internet to get in touch with women from other countries, emailing back and forth for several months, and often traveling to places like Russia, The Ukraine, Thailand, or other exotic places to meet their date in person. In most cases these ‘meetings’ last no more than a week, after which a decision is made to spend a life together.

The visa process of the United States has unfortunately not kept pace with these international relationships. Email conversations cannot take the place of real life dating experiences, and are at best not an ideal way to get to know a potential life partner. Unfortunately, there is currently only one way for a dating couple to spend time together in the United States, the fiancé visa: This visa allows a fiancé to come to the United States for up to 90 days. What most fiancées do not realize is that, if they do not marry the petitioner within this 90-day period, they may be barred from obtaining lawful status at all.

In light of the above, I strongly advocate a 6 – 12-month visa to allow two partners to get to know each other, even requiring that a departure bond be posted to assure departure from the United States should the relationship not work out. And likewise, I advocate the possibility to adjust through other means than marriage to the fiancé who petitioned.

However that may be, a fact is that many of these ‘email’ brides enter the United States completely unaware of what life in the United States entails. And precisely because all or most contact has taken place in cyberspace, most immigrants are completely unaware of their partner’s real character and criminal record, or his living circumstances. There are vast cultural differences and expectations between Americans and people from other countries about what defines a good marriage, often caused by language problems. The “waterfront home” turns out to be a two room trailer near a swamp; and unless the immigrant is willing to spend enormous sums of money, there is no way to do a background check on the U.S. petitioner’s criminal background. Of course it is also true that the economic situation in many countries is so desperate, that people will do almost anything to get out.

While many relationships develop into long lasting and happy marriages, unfortunately more and more immigrant women are subject to abuse. And because of their unfamiliarity with the English language, or with resources and agencies that could offer advise and help, many stay in abusive situations for years. In many situations there are children involved.

Precisely because they are immigrants, non-American women face forms of abuse that often far exceed the ‘mere’ physical abuse Americans suffer, ranging from threats of refusal to marry or file for benefits with the U.S.C.I.S. (preventing the immigrant to obtain legal status) to hiding of passports and other identity documents. In addition to a language barrier, most immigrants are not aware of their options to escape or report abuse.

Many immigrants are trapped in isolated and violent relationships, afraid to turn to the authorities for help, especially because they are undocumented and are afraid to be arrested and deported.


2. Immediate Action

If someone is subject to abuse they should leave their home immediately. As practitioners, we have a duty to advise our clients to do so, or to assist them wherever possible, if we detect signs of abuse. The Florida bar rules of professional conduct state that a lawyer must reveal such information to prevent serious bodily harm to another. Depending on whether the practitioner represented the immigrant, the United States citizen spouse, or both, she may have to withdraw from the case to prevent a conflict of interest. It is important to realize these potential conflicts in advance.

Anyone who is in fear of their life, or who is being abused, has the right to file an protection order against their abuser. Most local shelters, courthouses, and legal services offices will have the applications available, and in most large cities, the courts are open until late in the evening. In most cases, the courts will immediately issue a temporary restraining order, and set the case for hearing.
In order for the Court to determine whether there is sufficient evidence to grant an permanent Injunction, the petition must contain at least the following information: specific facts and circumstances, including dates, which convince the Court that an immediate and present danger of domestic or repeat violence exists. The petition also asks to describe any previous or pending attempts the abused spouse has made to obtain an Injunction for Protection, or any other cause of action currently pending between her and the Respondent. It is important to know that the abuse spouse may keep her address confidential.
The information contained within the Petition will determine whether or not the court decides to provide the abused spouse with the necessary protection as a victim of domestic or repeat violence.

Before leaving the home, an abused spouse should try to gather as much information and documents as possible: Important documents would be a passport and other immigration papers; a personal diary reflecting incidences about the abuse; and evidence about the legal status of the abuser: in short, evidence that would be hard or impossible to get once the abused spouse has left the house. Other evidence, such as proof of joint residence, criminal - or medical records, can usually be obtained at a later date.

If, for whatever reason, the abused person can’t leave, they should at least try to call the police. Although there currently is legislation pending in Congress (the CLEAR - Act), which would require the police to report undocumented immigrants, most police departments have confirmed that they will not inquire into the immigration status of those who are claiming abuse.

Many women who are subject to abuse blame it on themselves. This is a myth: abuse is caused by the abuser, and it will not go away as long as the abused remains in the relationship: Domestic violence often gets worse over time, as the abuser gains power every time he gets away with an abusive act. It is important to convince your client to get away from the situation, if only to protect any children that may be involved. Most local phone books have a women’s shelter listed with a 24-hour emergency number.


3. What about immigration?

The Immigration Act of 1990 first mentioned a “battered spouse waiver, allowing a divorced spouse of a United States citizen to obtain her permanent resident status based on evidence that she had been abused during the marriage, and was now divorced. It also allowed conditional resident spouses to obtain a divorce and still file an application for removal of conditions on residence upon submitting evidence that the marriage had originally been entered for bona fide reasons. This signaled a beginning of understanding that the number of abused immigrant spouses daring to come forward was only the tip of the iceberg. Until then, women were required to make a choice to either remain with the batterer, or face removal to their own country. During the following years, slowly, more legislation was passed to afford protections to battered spouses and children.

The Violence Against Women Act (VAWA) of 1994 for the first time allowed spouses and children who had been battered or subjected to extreme cruelty by a lawful permanent resident or U.S. citizen spouse or parent to self-petition for immigrant visas. The purpose of this provision was “to prevent the citizen or resident from using the petitioning process as a means to control or abuse the immigrant spouse.”

Subsequent legislation introduced exemptions from and waivers for certain grounds of inadmissibility that had precluded many non-citizens abused by U.S. citizen or permanent resident spouses or parents from filing successful self-petitions due to circumstances beyond their control.

VAWA 2000 eliminated the requirement that the battered spouse or child demonstrate ‘extreme hardship’ if removed, a showing that is not required of regular family-based petition beneficiaries. VAWA 2000 also eliminated the requirement that the self-petitioner be married to the abuser and reside in the United States at the time of filing, and expanded the waivers and exceptions to legal bars that had kept battered spouses and children from filing successful self-petitions, and aided VAWA applicants in adjusting their status and gaining citizenship.

At this moment, still unregulated are fiancees, who come to the United States on a K-1 visa and discover the abuse prior to marriage, or whose United States citizen fiancé refuses marriage as a means to force dependence. Because a fiancee may only adust status to lawful permanent resident if she has been married to the petitioner, the fiancee if still forced to endure abuse until the United States citizen spouse consents to marriage, or faces a forced departure back to the home country.


4. Determine Your Immigration Status.

There are three distinct stages in family immigration: 1 No immigration paperwork has been filed or adjudicated. 2. Conditional residence has been granted, and 3. The immigrant is a lawful permanent resident without conditions. For purposes of this article, I will concentrate on immigrants in stages 1 and 2. Most phase-3 immigrants are under no immediate threat of removal, unless the battering spouse has filed domestic violence charges. In that case it is very important to secure good criminal counsel, and to ensure that criminal counsel obtains information about the immigration status of their client. Immigration law provides a specific waiver of removal for victims of domestic violence, if the immigrant was acting in self-defense.

Current immigration policies make the immigrant spouse dependent on the United States citizen or lawful permanent resident spouse for immigration benefits, thus conferring even more ‘power’ to that spouse. Unfortunately, in an abusive relationship this dependence can be exploited as a means of continuing domestic violence and reinforcing the battered spouse or child's dependence on her abuser. In many cases the spouse has been known to threaten or suppress the immigrant spouse by withholding promises to file immigration paperwork, or refuse to go to the interview.

To address this problem Congress has passed several laws, the most significant of which is the Violence Against Women Act (VAWA), which permit battered spouses and children to file a petition for a family-based immigrant visa on their own behalf. The ‘self-petition’ allows a battered spouse or child to be classified for the immigrant visa category for which she would be eligible, given her relationship to the U.S citizen or permanent resident sponsor, had the sponsor willingly cooperated in the visa petition process. A successful self-petition from a battered spouse or child, therefore, ultimately yields the same benefit to the self-petitioner that an approved petition for immigrant relative would have yielded in a non-abusive relationship.

Since its enactment, VAWA has proven to be an important means of assisting battered non-citizen spouses and children. The I.N.S. confirms that in the year 2000 approximately 3,400 women claimed that their U.S. citizen husbands were abusive, and about 3,000 successfully obtained a green card without their spouse's sponsorship.


5. Requirements for Self-Petitioning as a Battered Spouse or Child.

a.Who May Self-Petition

The following categories of abused individuals can self-petition for a family-based visa:

• non-citizens who were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident spouse;

• non-citizen spouses whose children were battered or subjected to extreme cruelty by the non-citizens' U.S. citizen or permanent resident spouse; and
• non-citizen children who were battered or subjected to extreme cruelty by their U.S. citizen or permanent resident parent.

The legal status of the self-petitioner or her child is irrelevant: they can be undocumented, in status (with a nonimmigrant visa, for example), or out of status. However, the abuser must be a U.S. citizen or lawful permanent resident, or have lost that status “due to an incident of domestic violence.” A person abused by an undocumented or nonimmigrant non-citizen does not qualify.
Victims of severe domestic violence or other forms of exploitation who cannot file a self-petition may be able to qualify for a T or U visa. (See below)
Applicants must provide evidence that they are eligible to file an application for lawful permanent resident status. In determining whether each of these prerequisites has been met the Service is instructed to consider “any credible evidence relevant to the petition.” The following is an abbreviated list of such evidence:

b. Eligibility for an Immigrant Visa

The self-petitioner must show that she is eligible for classification as an immediate relative or second preference family-sponsored immigrant. The self-petitioner must provide evidence both of the current or former citizenship or lawful permanent resident status of the abuser, and of the requisite relationship between the self-petitioner and the abuser.

c. Bona Fide Marriage

The non-citizen spouse self-petitioner must show that her marriage to the U.S. citizen or permanent resident spouse was entered into in good faith. It is no longer necessary to prove that you continue to be married or are living with your abuser. The Service may approve petitions even if one of the following has occurred:

• the spouses are no longer living together and the marriage is no longer viable;
• the marriage was terminated within the past two years and the self-petitioner can demonstrate a ‘connection’ between the termination of the marriage and the domestic violence;

• the marriage was never legitimate solely because of the bigamy of the abuser;
• the abuser died within the past two years (U.S. citizen abusers only);

• · the abuser lost or renounced citizenship or permanent resident status within the past two years related or due to an incident of domestic violence; or
• the applicant remarried after her self-petition was filed or approved.

d. Battery or Extreme Cruelty

The non-citizen spouse or child must have been battered or subjected to extreme cruelty by the spouse during the marriage, or the relationship that was intended to be a marriage in the case of a bigamous abuser.
Evidence of abuse may include but is not limited to reports and affidavits from police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel. Often the best evidence of abuse is a diary, kept by the immigrant.

e. Residency

The applicant must show that she either currently resides or has resided in the past with the abuser. She is not required to prove that she currently resides in the United States, or has resided in the United States with the abusive spouse at some time in the past. Most importantly, there is no requirement to currently reside with the abusive spouse or parent.

f. Good Moral Character

Like every other applicant for immigration benefit, an abused spouse or child must be a person of ‘good moral character.’ However, there is a specific waiver of removability for victims of domestic violence, if the charges or the conviction was directly connected to having been battered or subjected to extreme cruelty.
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6. Conclusion.

There is a problem! Immigrant victims of abuse need to have easy access to all protection our laws offers. Yet laws alone will not stop abuse, and especially immigrant victims of abuse may have less access to protection than Americans. With the increase in international relationships comes the need for a changed visa policy so that people have a chance to get to know each other before they marry. There is no excuse for abuse, and no victim should ever be blamed for entering into, or remaining in an abusive situation simply because she is either ashamed to go back home, or because the economical situation in her home country. This may take more than a law change: it takes an attitude change. She did not ask for it!!!

The single most important issue that needs our immediate attention is to provide victims of abuse who have the courage to escape their situation a permit to work immediately! It takes courage to leave an abusive relationship, and the fact that the victim knows she may not have a source of income may be a deterrent to get out.

The next issue is education. I believe it is our duty as practitioners to outreach to immigrant spouses and provide them with the best information possible on how to detect early signs of abuse, where to go, and how to protect both themselves and their immigration status. I do not see that as a conflict of interest. It is extremely important that victims of abuse start gathering evidence of the relationship, start documenting the abuse, and report it, early. And that they know there is, if no one else, their attorney to turn to.

Helpful Links:

The website from the St. Petersburg, FL, Center Against Spouse Abuse. Provides arguably the best information on detecting abuse, and what to do about it. Also check out the Spring in Tampa, FL. If you live in Pasco, please contact Sunrise.

Another great website disseminating a wide range of information from sociological and psychological perspectives that would be of interest to Muslims and non-Muslims. Contains excellent information on detecting signs of abuse. Go to “psychcorner, click on “psychstuff” for many articles on abuse.

In addition, the website of the Nemours foundation, providing a wide range of articles written for parents, kids and teens about issues ranging from bullies at school to physical and sexual abuse. Also provides a “resource” page where to turn for more information or help. Provides information in Spanish!

For articles and information especially for Women, i recommend the WomanSavers website.

Many cities and counties have a website, directing you to their court system for legal information of filing injunctions. The most victim-friendly website I found comes from the Warsaw / Kosciusko County, Indiana Police Department. Check out their website!

For Hillsborough County, go to “courts”, click on “domestic violence” and you will find a very clear and easy to understand information about filing injunctions for protection against domestic violence and for protection against violence for other situations such as stalking. A search on Google with the key words “domestic violence injunction [your city/county/state]" should provide all necessary resources on how to file an injunction.

If you don't know what to do or where to turn, contact the National Domestic Violence Hotline website or call them in Spanish or English

at 1-800-799-SAFE (7233) or 1-800-787-3224 (TTY).