Removing Barriers for Battered Immigrant Women under the Violence Against Women Act of 2005

Living Without Fear: Removing Barriers for Battered Immigrant Women under the

Table of Contents

• Abstract…………………………………………………………………………………………….3
• Introduction…………………………………………………………………………………………4
• Chapter 1: The Immigrant Experience…………………………………………………………….8
  • Figure 1: Foreign Born in the United States by Region of Origin (2009)…………………7
• Chapter 2: Violence Against Immigrant Women…………………………………………………16
  • Figure 2: Immigrant Power and Control Wheel…………………………………………18
• Chapter 3: Historical Overview of the Legal Protections for Battered Immigrant Women………26
• Chapter 4: Barriers Experienced by Battered Immigrant Women that Disrupt Effective Implementation of VAWA 2005 Protections…………………………………………………….39
  • Figure 3: Sample Evidence List for Immigrant Victims Applying for VAWA Self-petition……………………………………………………………………………………45
• Chapter 5: Recommendations to Removing Barriers for Battered Immigrant Women under VAWA of 2005……………………………………………………………………………………48
• Concluding Comments……………………………………………………………………………56

Abstract

 

In 1994, 2000, and 2005, Congress included in the Violence Against Women Act (VAWA) immigration provisions that sought to remove barriers that had previously prevented immigrant victims from safely fleeing domestic violence, sexual assault, human trafficking, and many other forms of violent abuse. The VAWA immigration provisions were designed to protect all victims of violence without regard to their immigration status. The reauthorization of VAWA of 2005 included provisions that allowed battered immigrant women and their children to self-petition for legal immigration status, provided them with access to public benefits, and added protections against deportation. Despite these policy efforts, battered immigrant women continue to experience personal and systemic barriers that disrupt effective implementation of the 2005 protections. This paper will discuss the experience of immigrants in the United States, the prevalent risks that may increase domestic violence for immigrant women, will provide a historical overview of policies that have led to the passage of VAWA 2005, and enumerate the systemic barriers to effective implementation. Further recommendations to removing barriers experienced by battered immigrant women are offered in domains of research, policy, and practice.

Introduction

 

In the United States, approximately 1.5 million women are raped and/or physically assaulted by an intimate partner (Runner, Yoshihama, Novick, 2009). Nearly one-third or 31% of American women experienced physical or sexual abuse by a husband or boyfriend at some point in their lives (Runner et al., 2009). Domestic violence or intimate partner violence (IPV) is a pattern of assaultive and coercive behaviors designed to establish control by a person who is, was, or wishes to be involve in an intimate or dating relationship with an adult or adolescent, who may or may not be cohabiting (Runner et al., 2009). Domestic violence has been shown to have severe impact upon women and children’s mental, physical, and social health (Murillo, 2008; Runner et al., 2009; Tjaden & Thoennes, 2000; UNIFEM, 2003).

Although intimate partner violence affects families across the United States from all socioeconomic and racial or ethnic backgrounds, it appears that immigrant women may encounter higher risks, prevalence rates, prolonged exposure to this type of violence, and related adverse injuries (Ingram, McClelland, Martin, Caballero, Mayorga, Gillespie, 2010; Erez & Ammar, 2003; Orloff & Little, 1999). Key risk factors that influence the experiences of battered immigrant women appear to include their uncertain immigration legal status, limited host-language skills, social isolation, and lack of financial resources (Menjivar & Salcido, 2002; Orloff & Little, 1999).

In the 1990s, legislative protections for battered immigrant women surfaced because of recognition that citizen or permanent resident spouses had absolute control over the battered immigrant’s legal status (Shetty & Kaguyutan, 2002). The Violence Against Women Act (VAWA) of 1994 and the reauthorization of the policy in 2000 and 2005, recognized that immigration law, and other cultural and socioeconomic barriers experienced by immigrant women further trapped them in abusive relationships. Under VAWA, immigration benefits were adopted to protect immigrant women that allowed them to self-petition for legal immigration status, without the knowledge and assistance of their abusive citizen or permanent resident spouse.

Even with recent reauthorization of VAWA in 2005, domestic violence is still a significant problem for immigrant women, as it is for all women in the United States (Orloff & Little, 1999). Despite policy efforts, battered immigrant women today still face a number of personal and systemic barriers that limit their ability to apply and receive the legal benefits entitled to them under VAWA. Some of the personal barriers immigrant women face are connected to their limited language skills, vulnerability and fear created by uncertain immigration status, fear of deportation, isolation in a foreign country, and economic dependency on their abusers (Ingram et al., 2010). Systemically, battered immigrant women receive minimal information about the VAWA application process; experience difficulties with the confusing and extensive VAWA application process, and in some instance, have negative experiences with indifferent attorneys, law enforcement, and social service staff. This paper will discuss the prevalent personal barriers that battered immigrant women continue to experience, and the systemic barriers that women encounter when applying for VAWA immigration benefits.

There are many unique features and variations between different immigrant groups. However, this paper will focus on the common features of violence against immigrant women in general. This paper will open the first chapter by looking at the experiences of immigrants in the U.S.; will continue with the second chapter by analyzing the factors that may increase the risks of violence for immigrant women. The third chapter will follow by providing a historical legislative overview of policies that have led to the passage of VAWA 2005. Chapter four will examine the personal barriers to help-seeking, and the systemic barriers to effective implementation of the VAWA legal protections for immigrant women. Finally, the concluding chapter will offer research, policy, and practice recommendations, which ensure that barriers experienced by battered immigrant women are alleviated and reduced.

Chapter 1: The Immigrant Experience

 

Immigrants often arrive in the United States with the hope of creating a better life for themselves and their families. Some flee poverty, violence, persecution, war, and unemployment in their home countries. The process of migration can be daunting and stressful for many immigrant families. Effective social work with immigrants and refugees requires knowledge of their country of origin experiences, the factors that led to the decision to migrate, their transit experiences, and resettlement (Healy, 2009). For these reasons, this chapter will provide a framework to understanding the significant size of the immigrant population in the United States, the distinctions between U.S. citizens, legal permanent residents, and persons with other immigration status categories, and the macro-level reasons that people migrate here.

Size of the Immigrant Population

The United States has seen a substantial increase in immigrant populations since the 1990s. In 1990, the foreign-born[1] population reached 19.8 million (Portes & Rumbraut, 2006). In the 2009, approximately 38.5 million foreign-born individuals lived in the U.S. (Census ACS, 2009). The foreign-born population is made up of primarily three groups: naturalized U.S. citizens, legal permanent residents (LPR) or “green card” holders, and undocumented or unauthorized population (McCabe & Meissner, 2010). Using 2009 Census data, the Pew Hispanic Center estimated that approximately 53.1 percent of immigrants residing in the U.S. in 2009 came from Latin America (including Central America, South America, Mexico, and the Caribbean), 27.7 percent from Asia, 12.7 percent came from Europe, 3.9 percent from Africa, and 2.6 percent from other localities (2009). (See Figure 1)

Figure 1:

Source: US Census American Community Survey (2009).

Annual immigration flows have tripled during the last decade (Erez & Ammar, 2003). The Population Division of the U.S. Census states that almost one-third of the current population growth is caused by net immigration[2], and by 2050, about 86 percent of the population growth may be due to the effects of post-1992 net immigration (U.S. Census Bureau, 2010). The size of the unauthorized population grew at a rate of 300,000 to 500,000 per year between 1990 and 2006, and by 2008, the number of unauthorized persons reached an estimated 11.9 million according to the Pew Hispanic Center analyses of official data (McCabe & Meissner, 2010).

Distinctions Between Different Immigration Status Categories

Immigration status[3] determines the rights and privileges to which is entitled. In current immigrant law, most U.S. citizens and legal permanent residents (LPR) are entitled more rights and privileges than immigrants, or nonimmigrant visas holders and undocumented persons. A U.S. citizen can vote in federal elections, serve on a jury, sponsor a family member to the U.S., become eligible for certain federal employment positions, grants, and scholarships, and have access to a prompt and fair trial by a jury (USCIS website, 2011). A person can be granted citizenship by birth in the U.S., birth to a U.S. citizen parent or parents, or by naturalization, where a qualified “green card” holder passes an examination of U.S. history and civics (Lincroft & Junck, 2009). A legal permanent resident does not have the same rights of a U.S. citizen, but is permitted to work and live in the U.S. permanently. Persons who receive priority immigration status as potential legal permanent residents include foreign nationals who have (1) a close family relationship with a U.S. citizen or legal permanent resident; (2) specific job skills; (3) residence in countries with relatively low levels of immigration to the United States; or (4) refugee or asylee status (Runner et al., 2009). In 2007, women compromised 55 percent of these new legal residents, and 58 percent of new women applicants were married (Runner, et al., 2009).

There are strict U.S. immigration quotas, each with numerical limits, established by U.S. immigration laws that restrict the number of immigrants who may enter the U.S. annually (Runner et al., 2009). The entry of immigrants to the United States differs along two dimensions: (1) the immigrant’s personal resources, in terms of material and human capital, and (2) their classification by the U.S. government (Portes & Rumbraut, 2006). The first dimension, personal resources, ranges from immigrants with high capital and investment to those with only their labor to sell (Portes & Rumbraut, 2006). While the second dimension, classification by the government ranges from immigrants who arrive legally to those that arrive illegally or unauthorized (Portes & Rumbraut, 2006).

Some immigrants arrive in the U.S. with legal documents or means to enter, others without legal authorization, and some enter legally and overstay their legal admission. An immigrant can enter the U.S. legally by holding a noncitizen visa, such as a tourist, student, or work visa that allows them to legally live and/or work temporarily. Unauthorized or undocumented persons may have entered the U.S. without legal authorization by crossing the border or with fraudulent documents, or may have entered legally and overstayed their temporary visas. An undocumented person is someone who does not have legal immigration status to live and work in the United States. A noncitizen, which includes a legal permanent resident, visa holder, or an undocumented person, is always subject to the possibility of deportation or removal regardless of his or her circumstances (Lincroft & Junck, 2009). Once an immigrant is deported or removed, they experience extreme difficulties in attempts to return legally or unlawfully to the United States. Most legal and undocumented immigrants that are deported by the government are subject to a three to ten-year bar from admission back into the United States (Lincroft & Junck, 2009).

Many immigrants who enter the United States without proper documentation or overstay their visas have few avenues to convert to legal status after arrival (Runner et al., 2009). A small number of undocumented persons are eligible to apply for legal immigration status through various categories. In most cases, the power of legal immigration status sponsorship and autonomous action lies with U.S. citizens or legal permanent residents (Erez & Ammar, 2003). Most undocumented persons can obtain legal status by marriage to a U.S. citizen or legal resident. While other undocumented immigrants can be sponsored by citizen or legal family members, employers, or by other means. However, in some cases, undocumented persons who obtained entry into the U.S. by crossing the border without authorization do not qualify to apply for legal status, only those who entered legally with a visa may qualify to be sponsored by a citizen or legal resident (Lincroft & Junck, 2009).

Reasons that People Migrate to the United States

Despite the challenges and risks of obtaining legal immigration status, immigrants endure additional risks that include life-threatening travel, high expenses, and even risk entering the U.S. with fraudulent documentation. As annual immigration flows have tripled during the last decade, further analysis of the reasons behind this tripling effect and the decisions of people abroad to migrate to the United States is investigated in this section. While some immigrants decide to migrate to stay close to family already in the U.S., or to improve the educational future of their children, others seek new economic opportunities or attempt to find ways to provide financial support for their families “back home.” For example, the single most common reason that Latinos give to immigration is to seek economic opportunities (Cavazos-Rehg, Zayas, Spitznagel, 2007). At the same time, once in the U.S., a substantial number of undocumented Latinos find jobs that are unsteady, low paying, oppressive and often physically unsafe (Cavazos-Rehg et al., 2007).

In the book Illegal People: How Globalization Creates Migration and Criminalizes Immigrants (2008),David Bacon describes how globalization affects migration patterns and contributes to the increasing number of people migrating over the years. Essentially, according to Bacon (2008), larger economic and political forces “push” people to migrate so that they may escape unfavorable conditions in their home countries and/or “pull” or lure migration to fill low-skilled employment in the United States. Since the passage of the North America Free Trade Agreement (NAFTA) in 1994 and other global trade policies, millions of people have migrated away from their home countries to escape unfavorable conditions, such as poverty, unemployment, high inflation, and corruption in their home countries (Bacon, 2008). Most unfavorable conditions in migrant-sending countries are a consequence of global capitalism and U.S. market-oriented policies, such as NAFTA (Bacon, 2008). Driven by a desire to increase profits, multinational corporations enter poor and developing countries and exploit their raw materials, labor, and land. This creates greater income deprivation for those living in poor and developing countries. Eventually, these market-oriented policies displace people from their land and from their means of survival (Bacon, 2008). People in poor or developing countries are forced to make the decision to migrate to the U.S. without legal admission in order to escape unfavorable conditions. This is just one of the many theories in the current immigration discourse that explains the connections between the rising numbers of immigrants and the reasons behind immigrants’ decisions to migrate to the United States.

An increasing number of women are migrating specifically to the United States (Menjivar & Salcido, 2002). Of the proportion of women legally admitted to the United States their numbers rose from 49.8 percent in 1985 to 54.5 percent in 2004 (Pearce, 2006). Women are more likely than men to enter the U.S. as immediate relatives of citizens or LPRs (Pearce, 2006). Many immigrants are now utilizing their links within the U.S. to perpetuate their migration (Menjivar, 1997). Legal admissions based on family unification accounts for almost three-quarters of all legal immigration (Erez & Ammar, 2003). The presence of relatives and friends at the place of destination lowers the costs, both monetary and socio-psychological, of immigration (Menjivar, 1997). These social networks may be compromised of spouses, friends, or other family members currently in the United States.

A number of women are migrating to the U.S. with their families by following husbands who are working or studying in the U.S. under a temporary immigrant visa status (Erez & Ammar, 2003). In other cases, citizen or LPR men seek out women abroad for marriage. Finally, some women are independently arriving in the U.S., and marry once they establish their lives here. For women who arrive independently, it has been suggested that the demand for labor in areas such as nursing, nursing aides, and domestic work in the U.S. may have influenced the tendency for immigration officials to be more willing to grant visitor’s visas to women, thus increasing the number of women arriving in the United States (UNIFEM, 2003).

Stressors Experienced by Immigrants

In addition to stressors explained that “push” or “pull” people to migrate, an undisputed fact related to migration is the extreme levels of stress experienced by the majority of individuals and families before, during, and after their relocation (Yakushko, 2010). Stress is a combination of cognitive, emotional, behavioral, and physiological reactions to events that evoke subjective individual reactions (Yakushko, 2010). The number and intensity of stressors experienced by immigrants vary depending on their negative or positive experience to the following factors: pre-migration expectations, reasons for migration, and immigration status (Yakushko, 2010). Most immigrants experience pre-migration expectations of seeing the U.S. either as a fearful or an opportunistic country. As explained in the section above, immigrants have a variety of reasons for migration, either because of their need to flee poverty and violence or to acquire wealth and safety. Finally, the significance of having or not having legal immigration status affects pre-, peri- and post-migration experiences. All these factors determine the intensity and causation of stressors for immigrants.

During the mid-1990s, rising anti-immigrant national sentiments in the U.S. provided ammunition for the enactment of restrictive immigration laws, such as the Illegal Immigration Reform and Immigration Responsibility Act of 1996, which increased government efforts to deport immigrants. Further discussion of this policy is provided in chapter 3. Since the 1990s, the U.S. has also increased enforcement of borders crossings of immigrants by restricting their ability to enter or exit the United States. Enforcement along the U.S.-Mexico border has taken the form of major investment in additional Border Patrol personnel, today numbering approximately 20,000, infusions in technology that include sensors, drone aircraft, and cameras, and extensive fencing (McCabe & Meissner, 2010). This widening of anti-immigrant sentiments since the mid-1990 and the establishment of restrictive immigration policies contribute to high levels of stress for both undocumented and documented immigrants before, during, and after their relocation to the United States.

Stressors experienced by recent immigrants after migration are typically termed culture shock or acculturation stress (Berry, 1997). Acculturation can influence the development of specific sources of stress for immigrants. Acculturation or assimilation refers to the patterns of reactions by minority groups to a new dominant cultural environment (Berry, 1997). Examples of specific sources of stress have been associated with difficulties in adaptation to a new culture, linguistic limitations, relational conflicts within the family due to cultural or gender role changes, economic challenges, loss of social contact with family, loss of social status, as well as oppression and discrimination in the new environment (Yakushko, 2010).

The experience of stress for immigrants does not necessarily vary significantly between documented and undocumented immigrants. According to a study conducted by Arbona, Olvera, Rodriguez, Hagan, Linares, and Wiesner (2010), the association of acculturation-related stressors (family separation, lack of English skills, and traditionality) to the levels of stress experienced in relation to occupational and immigration factors were similar for documented and undocumented immigrants. However, undocumented immigrants do report higher levels of fear of deportation than their documented counterparts (Arbona et al., 2010). The simple activities of walking in the street, driving, or requesting help from government officials elicited the highest levels of stress because of fear of deportation for undocumented immigrants.

For those immigrants who are undocumented, the day-to-day feeling of vulnerability to immigration laws and the sense of “being hunted” by law enforcement officials may never dissipate even with longer lengths of time lived in the United States (Cavazos-Rehg et al., 2007). Even with all the stressors and difficulties experienced by immigrants, many attempts to address the changes in their lives. There are a variety of coping strategies adopted by immigrants, from constructive to detrimental strategies (Yakushko, 2010). Constructive strategies focus on directly addressing the stressor and results in positive outcomes for the individuals, families, and communities, such as seeking education, or giving to family and community. While on the other hand, detrimental strategies involve trying to manage stressors by adopting negative patterns of coping that can he harmful, such as isolation, substance abuse, or being violent towards spouse or children (Yakushko, 2010). Under certain situations, some immigrants may cope with the stressors by exhibiting anger, and later externalize their anger through violence against others (Yakushko, 2010).

Chapter 2: Violence Against Immigrant Women

Family violence is one of the largest health threats to adult women, and continues to be a pervasive and harmful family problem in today’s society. In the United States, in 2004, it was estimated that every year 4.5 million women sustain physical violence by an intimate partner (Murillo, 2008). In addition, a U.S. Department of Justice report stated that in recent years, it was noted that of women who reported having been raped, physically assaulted, or stalked since age 18, 60% stated the abuse had been perpetrated by a husband, co-habiting partner, boyfriend, or a date (Murillo, 2008).

Studies of domestic violence have demonstrated that despite differences in language, religion, and customs, violence against women occur at all social and economic levels (Menjivar & Salcido, 2002). Although there is evidence that immigrant women encounter certain factors that put them at greater risk to intimate partner violence than the general population (Erez & Ammar, 2003; Ingram et al., 2010; Raj & Silverman, 2002). The stressors and conditions tied to migration heighten the likelihood of domestic violence for immigrant women, and exacerbate the gender-linked vulnerability of women (Erez & Ammar, 2003). For example, in a study of Latina domestic violence survivors found that 48 percent had experienced higher levels of domestic violence since they immigrated (Pearce, 2006). For these reasons, this chapter will provide a brief summary of the (1) prevalence and impact of IPV for immigrant women, (2) the effects of domestic abuse, and (3) the risk factors or causes of domestic violence for immigrant women.

Prevalence and Impact of IPV for Immigrant Women

Significant progress has been made toward the safety and security of battered immigrant women. The adoption of the Violence Against Women Act by U.S. Congress in 1994 has certainly provided a variety of protections for battered women. However, the prevalence of domestic violence continues to be high. In 2007, it was estimated that 34 percent to 49.8 percent of immigrant women are victims of domestic violence in the U.S., and these numbers increase once more to 77 percent when we only consider married women whose immigration status is dependent upon their spouse (Clark, 2007).

Immigrant women are at greater risk for victimization compared to their American counterparts (Ingram et al., 2010; Erez & Ammar, 2003). A New York City study of intimate-partner homicide victims, for example, found that 51 percent of the victims were foreign-born and 45 percent native-born (Pearce, 2006). In addition, a National Violence Against Women Survey found that Latinos living in the United States have a 23.4% lifetime prevalence rate of exposure to relationship violence (Murillo, 2008).

Women who are abused by their spouses experience a varying number of assaults and coercions, such as physical assault, psychological or emotional abuse, sexual assault, progressive social isolations, stalking, deprivation, intimidation and threats (Runner et al., 2009). For further examples of the types of abuse that apply to immigrant women, see Figure 2 for the Immigrant Power and Control Wheel adopted by the National Center on Domestic and Sexual Violence (2002).

The effects of domestic violence on immigrant women are severe. Health care providers and advocates around the world are increasingly recognizing that all forms of domestic violence can have devastating physical and emotional health effects. In the general population, domestic violence is associated with mental health problems such as anxiety, post-traumatic stress disorder, and depression. A number of studies suggest a strong correlation between domestic violence and mental health concerns. These studies suggest increased rates of depression (both short-term and long-term) and post-traumatic stress disorder (Tjaden & Thoennes, 2000). Studies also suggest associations between experiences of violence and the use of substances as a coping, or escape, mechanisms (Tjaden & Thoennes, 2000).

Figure 2: Immigrant Power and Control Wheel

Source: The National Center of Domestic and Sexual Violence (2002)

In contrast to a wide and extensive body of research that exists on the health and social consequences of IPV in the general U.S. female population over the last two decades, a far smaller number of studies have examined these consequences in immigrants/refugees (Runner et al., 2009). A study of the health status of immigrant battered women indicates similar negative impacts of IPV for the general U.S. women population and immigrant women (Runner et al., 2009). Most of the impact of IPV affects women’s physical health, mental health, such as depression, post-traumatic stress, and anxiety symptoms and disorders, substance abuse, and reproductive/sexual health, such as miscarriage and unwanted pregnancies (Runner et al., 2009).

Risk Factors of Domestic Violence for Immigrant Women

This section will provide a brief overview of the general factors that may increase the likelihood of domestic violence for immigrant women. While recognizing that the issues that these women face are expansive and vary among different groups, this overview will provide a background to the most prevalent factors by first (1) discussing how immigration, by way of women’s uncertain immigration legal status and other related factors, increases vulnerability of women and is used by abusers to control and abuse them, (2) how culture (practices, values, and norms) and the acculturation of immigrants affect their experiences with IPV, and (3) introducing the importance of the intersectionality of factors that affect immigrant women’s experience with IPV, rather than grouping factors as universal and equal for all.

Immigration Status.According to Menjivar and Salcido (2002), the experiences of immigrant women in domestic violence situations are often exacerbated by their specific positions as immigrants in the host country. Immigration is associated with many changes and stressors, including disruption in the social support system, lack of familiarity with the U.S. social system, lack of or uncertain legal immigration status, which in turn may intensify domestic violence vulnerabilities for immigrant women. In addition, as previously stated in chapter 1, immigrants enter the U.S. in a variety of ways under different immigration classifications. Immigrants in different legal categories may have distinct levels of experience with IPV based on their immigration status. There is a hierarchy of immigration statuses, and women’s place in this hierarchy relates to their vulnerability to abuse (Raj & Silverman, 2002).

In a provision established by the Immigration Marriage Fraud Amendments of 1986, a foreign spouse of a U.S. citizen is granted conditional residency status for two years, requiring the U.S. citizen to petition on behalf of his/her foreign spouse in order for the latter to obtain permanent residency (Runner et al., 2009). Since the citizen or legal resident spouse must agree and move forward with the petition, they hold more power over the immigrant spouse. In fact, 72 percent of citizen or legal permanent resident spouses who are abusive do not file immigration petitions for their wives (Ingram et al., 2010).

In most immigrant categories held by battered immigrant women, an abuser may use a woman’s immigration status against her. As stated by Ingram et al. (2010), Erez and Ammar (2003), and Menjivar and Salcido (2002) immigrant women’s uncertainties about their current immigration status or their ability to become legalized in the United States increases their vulnerabilities and their dependency on their spouses. The occurrence of domestic violence increases in marriages where an immigrant women’s legal status is highly dependent on her marriage to a U.S. citizen or legal resident. This dependency places greater control and power on the hands of the citizen or legal resident. Abusers use immigration status to threaten deportation and also to warn that the abuser, the battered immigrant women, or her children/family could be deported if the violence were disclosed (Runner, et al., 2009). A battered spouse may be deterred from taking action to protect herself, by filing a civil protection order, filling criminal charges, or calling the police because of the threat or fear of deportation (Erez & Ammar, 2003). Many immigrant women lived trapped and isolated in violent homes, afraid to turn to anyone for help.

Once in the United States, immigrant women are isolated from their family members and community that remains in the home county. This isolation increases the women’s dependence on their abusive spouse for economic security. Most undocumented immigrant women are not able to legally work in the U.S. because of their immigration status, while others lack access to dignified jobs that pay reasonable wages. Foreign-born women’s earnings in 2003 were concentrated in the lowest income range (Pearce, 2006). A majority of foreign-born women, or 61.7 percent, earned less than $25,000 (Pearce, 2006). Immigrant women, who are economically and emotionally dependent on their partners, may face difficulties when attempting to escape abusive relationship (Liang, 2005). All the factors mentioned above do not exert their influence alone. For example, economic hardship can prevent women from leaving an abusive relationship, which is exacerbated when women either do not speak the language or are undocumented and do not know their options because they are isolated (Menjivar & Salcido, 2002).

Culture and Acculturation.Cultural and behavioral expectations, strong familialism, patriarchal structures, gender role changes, and acculturation and displacement, may increase the likelihood of domestic violence in some immigrant communities. While no single factor can account for the causation of domestic violence in immigrant communities, it is important to note that there are common tendencies to stereotype domestic violence in some ethnic groups. As previously stated, IPV may occurs in all social, cultural, and economic levels. For these reasons, caution must be taken not to over-romanticize increased risks for domestic violence based solely on cultural aspects.

In certain cultures, norms prioritize family and community over the individual and emphasize the role of women in maintaining family unity (Ingram et al., 2010). The ‘family’ is very significant in many immigrant populations. The ‘family’ can connect communities and bring a sense of belonging to women. At the same time, a strong sense of familialism may play a great role in immigrant women’s reaction to IPV. In many immigrant population groups, there is strong pressure to keep the family together, and not to shame the family. This strong sense of familialism can hinder battered women’s willingness to escape from, disclose, or report their partner’s abuse. In some immigrant communities, families and community women condone or ignore the abuse and encourage battered women to place family and community first, to suffer silently, and to be self-sacrificing (Raj & Silverman, 2002).

Battered immigrant women do not leave abusive partners for many of the same reasons as American women. These reasons include fear for their children’s welfare, economic dependency on their abusive spouse, fear of loss of children in custody battles, and love for the spouse (Raj & Silverman, 2002). In addition to these reasons, immigrant women may experience the stigma of divorce at greater levels than American women. Some immigrant communities may alienate and fault divorced battered women and their children (Raj & Silverman, 2002). For example, for Asians, Latinos, and Middle Eastern immigrants, divorced battered women are often blamed for breaking up their families and taking the father away from their children; and both women and children can be stigmatized and ostracized by their communities (Raj & Silverman, 2002). The cultural stigmas created by divorce hinder immigrant women’s ability to separate from their abusive spouses.

Patriarchal values and practices are found in almost all societies and cultures, including in contemporary American society (Runner et al., 2009). In some cultures, patriarchal structures predispose men to believe that they are entitled to control women. Certain aspects of patriarchal family structures, such as hierarchical control over the family, may be intensified in certain immigrant groups. Some immigrant women come from cultures with highly defined gender roles, with men seen as having the dominant decision-making role, while women are expected to be passive and submissive (Erez & Ammar, 2003).

In some immigrant cultures, restricting women to their traditional roles is seen as central to preserving national identity and cultural pride. The control of women in this context ensures that the traditional immigrant values are collectively within the boundaries of what is accepted in the broader immigrant culture. For example, findings from studies of Asian and Middle Eastern immigrant communities indicate that both men and women feel that if women do not stay within their prescribed roles, it is culturally acceptable for men to “discipline” them using physical abuse (Raj & Silverman, 2002).

Acculturation to a new U.S. dominant culture creates many changes for immigrant families. Both men and women experience social, economic, and political displacement in their new host country. Shifting gender roles, the greater autonomy experienced by immigrant women, and immigrant men’s fear that their wives would find American men more attractive, are cited as the threats to masculinity experienced by some immigrant men (Liao, 2006). As immigrant women alter their ideologies to accommodate the dominant U.S. culture, they may no longer conform to the strict traditional gender-roles set before them. For immigrant men who experience displacement and a lack of control over their daily lives, controlling women’s behavior and sexuality become a symbol of continuity and orderliness (Erez & Ammar, 2003).

Intersectionality of Factors.Traditional feminist perspectives argue that violence against women is a consequence of socially constructed and culturally approved gender inequality, and that in general, “every person, across race, class, nationality, and religious lines” is equally subjected to domestic violence (Sokoloff & Dupont, 2005). These perspectives emphasize that women experience a universal risk to violence constructed by gender inequalities. However, many are challenging feminist views. Studies show that marginalized women in diverse communities are greatly affected by domestic violence. The National Violence Against Women (NVAW) survey conducted by the U.S. Department of Justice discovered that minorities have higher rates of intimate partner violence than do whites; lower income women have higher rates of IPV than do higher income women; less educated women have higher rates of IPV than do more educated women; and couples with income, educational, or occupational status disparities have higher rates of intimate partner violence than do couples with no status disparity (Tjaden & Thoennes, 2000).

Sokoloff and Dupont suggest that domestic violence is not an unchanging phenomenon that is universally similar for all women, but rather, intersectionalities of the meaning and nature of domestic violence exists in “social contexts created by the intersections of systems of power (e.g., race, class, gender, and sexual orientation) and oppression (e.g., prejudice, class stratification, gender inequalities, and heterosexist bias)” (Sokoloff & Dupot, 2005, 43). The intersectionalities of race, class, gender, and oppression recognize the domestic violence experiences of marginalized immigrant women. Immigrant women often live within two conflicting cultures, their own culture and the U.S. culture, and within each may be isolated and viewed as the other (Raj & Silverman, 2002).

Because immigrant women are significantly impacted by domestic violence in a variety of ways, U.S. Congress has passed policies that protect the rights of battered immigrant women and provide them with a path towards legal status, without the knowledge and assistance of abusive spouses. The next chapter will provide a historical background of past and current policies that protect battered immigrant women and their families.

Chapter 3: Historical Overview of the Legal Protections for Battered Immigrant Women

 

This chapter provides a historical overview of the legislative protections for battered immigrant women in the United States. Early immigration law and policies placed full control over the immigrant women’s rights and legal status to abusive U.S. citizens or legal permanent resident spouses. Over the years, U.S. immigration policies evolved to recognize the issues that battered immigrant women and children endure. The passage of later policies, such as VAWA in 1994, established important legal changes that created legal protections and access to welfare for many battered immigrant women in the United States.

The Cable Act of 1922

In 1922, the Cable Act gave male citizens and legal permanent residents control over the immigration status of their immigrant wives and children (Erez & Ammar, 2003). The Cable Act gave U.S. citizen or permanent resident husbands the ability to file a petition for their wives to become legal residents. However, the Act did not allow U.S. citizen or legal permanent resident women to petition for their husbands. In the past, some United States policies followed the “coverture” common law doctrine, and the Cable Act of 1922 was an approach that followed this doctrine. The “coverture” doctrine was defined as the “principle by which the very being or legal existence of the woman is suspended during marriage, or at least incorporated and consolidated into that of the husband, under whose wing, protection, and cover, she performs everything” (Erez & Ammar, 2003, p. 36).

The Immigration and Nationality Act of 1952

The 1952 Immigration and Nationality Act (INA) codified immigration law. Congress constructed the law to be gender-neutral when allowing women to obtain legal immigration status from their husbands. By replacing the terms “husband” and “wife” with the term “spouse”, Congress was attempting to create a neutral immigration statute (Wood, 2007). The Act also removed quotas on the number of husbands and wives who could sponsor a spouse to become a permanent resident. The problems of “coverture” still remained in the INA of 1952. Because of this, the power of sponsorship and autonomous action still lied with the citizen or legal permanent resident spouse (Clark, 2007). Since at the time, the majority of immigrant spouses seeking legal residency were women, dependency problems that increased the vulnerability of these women still persisted.

Immigration Marriage Fraud Amendments of 1986

Due to governmental concerns over fraudulent marriages in the 1980s, Congress passed the Immigration Marriage Fraud Amendments (IMFA) in 1986. However, the policy changes adopted under the IMFA further endangered the safety of immigration women. The IMFA of 1986 increased the level of control that a citizen or legal permanent resident spouse had over their alien spouse’s immigration status. Under the law, only the citizen or legal permanent resident husband or wife could petition for the alien spouse. The IMFA also imposed a two-year conditional status to all alien spouses who gained legal residency based on marriage for spouses married for less than 2 years (Erez & Ammar, 2003). A joint petition would be filed 90 days prior to the expiration of the conditional residency. Following the joint petition, the couple would have to undergo a personal interview with immigration officials to prove that the marriage was not a fraud (Bhandari, 2008).

The IMFA contained two provisions that allowed an alien under conditional status to be granted permanent status without adhering to the requirements of joint petition and interview. Upon the fulfillment of the “extreme hardship” and “good faith/good cause” criteria, battered women could self-petition for legal permanent residency. Under the “extreme hardship” waiver, the alien must show that extreme hardship would result from deportation. The “good faith/good cause” criteria would grant the waiver upon the alien spouse’s initiation of the divorce proceedings. Both of these criteria failed to take consideration of the difficulties involved in leaving an abusive marriage. In the case of the “good faith/good cause” waiver, these criteria promoted a “race to the courthouse” between the wife seeking a waiver and the husband trying to block her by being the one to initiate divorce (Erez & Ammar, 2003). Even when the alien spouse was successful in deliberating these two criteria, the ultimate decision was left up to the immigration authority.

Battered Spouse Waiver of 1990

In 1990, the IMFA was amended to include a waiver that offered relief for battered immigrant spouses. The Battered Spouse Waiver became the first legislation that recognized domestic violence as a problem experienced by immigrant wives dependent on their citizen and lawful permanent resident spouses (Erez & Ammar, 2003). The Battered Spouse Waiver did not require the immigrant spouse to be the one to initiate divorce. While the Battered Spouse Waiver assisted many battered immigrant women and their children, there were issues that remained within the policy. The “coverture” doctrine remained a principle in the Battered Spouse Waiver. Consequently, citizen or legal resident spouse’s control over an immigrant woman remained. An alien spouse could only leave conditional residency and become a permanent resident only if the citizen or legal permanent resident sponsored her.

Violence Against Women Act (VAWA) of 1994

The Violence Against Women Act (VAWA) of 1994, included as part of the Violent Crime Control Act of 1994, was a piece of legislation designed to help curb domestic violence. In order to stop domestic violence, the legislation provided funding to improve services to victims, improve police department and prosecutor’s office procedures for handling domestic violence cases, educate and train community members and professionals about domestic violence, and to foster collaboration between battered women’s advocates and justice system personnel (Erez & Ammar, 2003).

Until VAWA of 1994, the control of the immigration status of the immigrant spouse rested on the spouse who was a U.S citizen or a legal permanent resident (Bhandari, 2008). The VAWA Act attempted to decrease the control that U.S. citizen or legal permanent resident spouses had over their alien spouses. It included immigration protections for battered immigrant women and children. The provisions allowed battered immigrant women, whose abusive citizen and legal permanent resident spouses used their vulnerable immigration status as a means of inflicting physical, emotional, and economic abuse on them and their children, to file and receive legal immigration status without the approval, assistance, or cooperation of their abusive spouses (Erez & Ammar, 2003). VAWA also included children as derivative applicants in the VAWA self-petitions. By providing legal immigration status to battered immigrant women, VAWA enhanced the ability of these women to report crimes and help with the prosecution of their abusers.

Battered immigrant women could receive permanent residency in two ways; they could either self-petition for permanent resident status or they could apply for a suspension of deportation (Clark, 2007). To file a VAWA self-petition, a battered immigrant woman would need to prove battering or extreme cruelty to herself or her children, that she entered into a “good faith” marriage, that she possessed “good moral character”, and that she or her children would suffer extreme hardship if deported (Erez & Ammar, 2003). Both documented and undocumented battered immigrants could file for self-petition. Self-petition was gender-neutral and could be submitted by abused wives, husbands, or children. At the same time, if needed, battered immigrant women under deportation proceedings could file for a VAWA suspension of deportation and would allow them to remain in the U.S. to self-petition for legal permanent residency (Clark, 2007).

While VAWA of 1994 provided relief to battered immigrant women and children, many still remained in abusive environments without assistance. Battered immigrant women and their children were in dire need for access to a welfare safety net and economic security that VAWA 1994 did not provide (Erez & Ammar, 2003). For battered women who self-petitioned under VAWA, they were granted legal employment authorization after their VAWA petition has been approved. Legal employment authorization from immigration was a long process that took anywhere from four months to a year (Clark, 2007). During the waiting period, these women only option may have been to rely on public benefits.

Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 and Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)

In the mid-1990s, two federal policies were passed that set the tone for state and federal to restriction on immigrants’ entry into the U.S. and their access to services. Both passed in 1996, these were the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). The passage of IIRIRA and PRWORA in 1996 created many problems for battered immigrant women. The policies drastically limited legal immigration, excessively penalized those who violated immigration laws, and reduced federal and state public benefits for many immigrants (Erez & Ammar, 2003). In response to a growing number of unauthorized populations in the United States, in 1986, Congress passed the Immigration Reform and Control Act (IRCA) that sought to restrict the ability of undocumented immigrants to enter the country. IIRIRA barred undocumented immigrants who left the U.S. from re-entering for either three or ten years depending on the length of their unlawful residence here. The welfare reform legislation or PWORA denied undocumented and certain legal immigrants in the U.S. access to federal, state and local benefit programs. PRWORA barred undocumented immigrants from eligibility for food stamps, TANF, and other major federal public benefits except emergency medical care (by Medicaid) (Runner et al., 2009).

In the years following the passage of IIRIRA, amendments were made to the act in hopes of protecting and assisting battered immigrants. These amendments allowed battered immigrants who benefited from VAWA to become exempted from the three or ten-year bars of re-entry into the United States. Amendments to IIRIRA also restored some of the public benefits to battered immigrants who were denied benefits under PRWORA. Congress granted battered immigrant women access to a welfare safety net based on the understanding that to escape from abusive relationships battered women need access to financial resources. Another amendment required IIRIRA to extended the confidentiality protections for these women. The new rules prohibited immigration agents or other justice department officials from releasing information about a battered immigrant’s case to any person (Erez & Ammar, 2003). At the same time, the new rules compelled that immigration agents could not use the information provided by an abuser against a battered immigrant woman’s immigration case.

Reauthorization of Violence Against Women Act (VAWA) of 2000

The Violence Against Women Act (VAWA) amendments in 2000 added new visa categories and increased the number of battered immigrants who could receive legal benefits. The “T” and “U” visa categories were introduced under VAWA of 2000. The “T” visas provided legal status for up to five thousand victims of sex trafficking and forced labor each year, and the “U” visas were issued to immigrants who were either victims of or who possessed information regarding many forms of criminal activity like rape, domestic violence, and sexual assault (Bhandari, 2008). These new visa categories provided undocumented immigrants in the U.S., who had been victims of violence, with nonimmigrant legal visas that allowed them and their families to live and work in the U.S. legally. The new visa categories required battered immigrants to provide extensive documentation of the abuse, and proof that they suffered “extreme hardship” is deported back to their home countries. Many battered immigrant victims, including women, required the assistance of attorney to gather such extensive documentation proving “extreme hardship”. As a result, many battered immigrant women who did not have access to legal assistance from attorneys or other qualified individuals did not receive approvals of their self-petition cases for their “T” or “U” visas (Bhandari, 2008).

In the wake of the events of September 11, 2001, state and federal policies were enacted and major government branched were restructured to combat terrorism. These acts expanded authority to the U.S. government to restrict, detain, and deport immigrants. Prior to the events on September 11, 2001, the Immigration and Naturalization Services (INS) branch administered most of the citizenship and immigration services. After this event, the INS and the functions of federal immigration law were reorganized under the Department of Homeland Security (DHS). Within DHS, the following branches were created to administer immigration law and services: the U.S. Citizenship and Immigration Services (USCIS or CIS), the U.S. Customs and Border Protection (CBP), and the U.S. Immigration and Customs Enforcement (ICE) (Erez & Ammar, 2003). The USCIS processes and reaches decisions on applications for immigration benefits, such as applications for legal permanent residency, citizenship, and many other types. Immigration benefits and protections for battered immigrant victims are administered under the USCIS branch, where applications are processed. The CBP inspects visitors and cargo at points of entry into the U.S. borders. ICE serves as enforcement within the U.S. by means of initiating removal or deportation proceedings and by the apprehension of noncitizens. While no federal law requires state and local officials to affirmatively enforce federal immigration laws, certain states and local policies may require authorities and officials to report unauthorized person (Lincroft & Junck, 2009).

Violence Against Women Act of 2005

The immigration protections under the Violence Against Women Acts of 1994 and 2000 established significant steps to reducing violence against immigrant women. However, the provisions left many gaps in the services offered to battered immigrant populations. Even with the legal protections provided by early VAWA, there were still large numbers of battered immigrant populations who were being deported, who remained in abusive relationships for economic reasons, who lacked access to legal assistance to file petitions, or who were not eligible for VAWA protections (Arguello et al., 2009; Bhandari, 2008; Lin & Orloff, 2005). Early VAWA did not provide immigration protections for abused immigrant children, abused immigrant elderly, and provided no protections for a trafficked victim’s family members.Under VAWA of 1994 and 2000, women were still subjected to certain restrictions to apply for legal status, such as the proof of “good moral” character. Proof of “good moral” character for immigration officials was characterized as no previous deportation orders from an immigration judge. As a result, many battered immigrant women under deportation orders were denied access to legal residency under early VAWA.

In the hopes of addressing some of the problems in the previous VAWA bills, Congress amended and reauthorized the Violence Against Women Act (VAWA) of 2005. The reauthorization of VAWA in 2005 emphasized the significance of protecting women from violence for Congress. VAWA of 2005 allowed for new changes that attempted to expand services for women and families, increase protections for immigrants who experience violence, and enable the prosecution of perpetrators and abusers. It did so by cancelling existing deportation cases for battered women, enhancing confidentiality procedures, providing economic security for immigrant victims and their children, creating improvements in processing of VAWA cases, and establishing the International Marriage Broker (IMB) regulations (Arguello et al., 2009). VAWA of 2005 also cut off the ability of abusers, traffickers, and perpetrators of sexual assault to blackmail their victims with threats of deportation, and thereby avoid prosecution (Lin & Orloff, 2005). As of 2006, a total of 42,000 self-petitions had been approved since the program began, and 10,000 had been denied, according to a staff member of Citizenship and Immigration Services (Runner et al., 2009).

The previous VAWA of 2000 granted legal immigration status to victims of human trafficking and to certain victims of violent crime with the use of “T” or “U” visas. These visa categories were established to provide victims of trafficking or other violence with the ability to live and work legally in the U.S. While the previous 2000 bill allowed for some forms of protections for these victims, the 2005 bill increased the protection of victims by providing “U” visas to family members accompanying or following them without having to prove “extreme hardship” in their country of origin (Arguello et al., 2009). These additional protections allowed battered immigrant women to be reunited with their children and family members living abroad. VAWA of 2005 also extended the duration of the “T” and “U” visas for up to four years with the

[1] The term “foreign-born” and “immigrants” are used interchangeably and refer to persons without U.S. citizenship at birth.

[2] The term “net immigration” refers to the net effect of immigration and emigration (or in-migration and out- migration) on an area’s population (increase or decrease).

[3]  The term “immigration status” refers to a person’s classification under U.S. immigration laws (Lincroft & Junck, 2009).