LEXIS-NEXIS® Congressional Universe-Document

Search Terms: legal services corporation, House or Senate or Joint

Document 4 of 44.

July 20, 2000, Thursday

SECTION: PREPARED TESTIMONY

LENGTH: 4606 words

HEADLINE: PREPARED TESTIMONY OF LESLYE ORLOFF DIRECTOR IMMIGRANT WOMEN PROGRAM NOW LEGAL DEFENSE AND EDUCATION FUND

BEFORE THE HOUSE JUDICIARY COMMITTEE IMMIGRATION AND CLAIMS SUBCOMMITTEE

SUBJECT - H.R. 3083; THE BATTERED IMMIGRANT WOMEN'S PROTECTION ACT OF 1999

BODY:
SUMMARY

On behalf of NOW Legal Defense and Education Fund and the National Network on Behalf of Battered Immigrant Women present this testimony in support of the Battered Immigrant Women's Protection Act of 1999 which will go far toward furthering the original purpose of VAWA's immigration provisions -- freeing battered immigrant women abused by citizen and lawful permanent resident spouses or parents to report the abuse to police, seek help and prosecute their abuser's for the multiple crimes they commit against family members. We have learned much over the past 6 years about instances in which the original legislation works effectively and when it does not. H.R. 3083 is designed to correct unforseen problems in the legislation and erosions in access to VAWA that have prevented many of the needy domestic violence victims VAWA sought to protect from seeking help. Helping battered immigrant women escape abuse and bring their abusers to justice will reduce domestic violence in our communities and will ensure that the citizen children of immigrant parents have the same opportunity to live lives free of domestic violence that VAWA sought to provide to all domestic violence victims. ****************

STATEMENT

Introduction

Mr. Chairman, Members of the Subcommittee, my name is Leslye Orloff and I am the Director of the Immigrant Women Program at NOW Legal Defense and Education Fund. NOW Legal Defense and Education Fund is a leading national, nonprofit civil rights organization with a 30 year history of defining and defending women's rights. We provide a broad range of legal and educational services aimed at eliminating sex-based discrimination and securing equal rights for all women focusing on issues of domestic violence, child care, employment, immigration, reproductive rights, and economic justice. NOW Legal Defense and Education Fund's Immigrant Women Program co-chairs the National Network on Behalf of Battered Immigrant Women(1), a broad-based national coalition of more than four hundred member organizations and individuals that work to improve protections for and provide services to immigrant victims of domestic violence. We appreciate the opportunity to submit this testimony in support of H.R. 3083, the Battered Immigrant Women's Protection Act of 1999, legislation that will enhance protections for one of the most marginalized groups in the United States: immigrant victims of domestic violence.

Before I begin, I want to thank Chairman Smith and the Members of the Subcommittee for inviting me to testify today. I am especially grateful to Congresswomen Schakowsky, Jackson-Lee, and Morella for sponsoring H.R. 3083 and for spearheading this bipartisan effort to protect battered immigrant women and children. A special thanks to Ranking Member Sheila Jackson Lee for her leadership and to Congressman McCollum for his commitment to these issues. Lastly, I would like to acknowledge Senators Abraham and Kennedy for sponsoring Title V of S. 2787 the Violence Against Women Act, the Senate counterpart to H.R. 3083, which is also devoted to ending violence against immigrant women and children.

Domestic Violence, Power, and Control Against Immigrants

Domestic violence is a societal problem of epidemic proportions. Experts estimate that two to four million American women are battered every year,(2) and that between 3.3 and 10 million children witness violence in their homes.(3)

As information about the extent and impact of domestic violence emerges, it has been identified as a criminal justice issue, a public health crisis, and a costly drain on economic productivity.(4) Domestic violence crosses ethnic, racial, age, national origin, religious, gender, geographical and socioeconomic lines.(5)

However, immigrants have been particularly vulnerable to becoming victims of domestic violence. Research has found that 34-49.8% of immigrant women experience domestic violence over the course of their lifetimes.(6)

Immigrant married women experience higher levels of domestic violence (59.5%)(7) and research has found that over 50% of immigrant women surveyed were still living with their abusers.(8)

Victims of domestic violence are particularly vulnerable because they face even greater obstacles in their efforts to escape violent relationships.(9)

Language, culture and immigration status often block victims from access to information about legal remedies, and complicate their efforts to obtain the relief needed to end the violence.(10)

As is the case with all victims of domestic violence, battered immigrants experience physical violence, coercion, threats, intimidation, isolation, destruction of important documents or possessions, and emotional, sexual or economic abuse.(11)

Cases of battered immigrants are ultimately complicated by their abuser's use of immigration status as a tool of control. Immigration- related abuse is a critical way in which batterers of immigrant women exert power and control to dominate and isolate their abused family members. Research indicates that immigration-related abuse most often co-exists with or appears to be a predictor of physical and/or sexual violence.(12)

The 1994 VAWA Immigration Provisions Congressional Intent

In 1994, Congress enacted the Violence Against Women Act (VAWA) in an effort to deter and punish violence crimes against women.(13)

Acknowledging the complexity of hardships facing battered immigrants, VAWA contained immigration provisions that would protect battered immigrants.(14)

Prior to this enactment, the citizen or lawful permanent resident spouse had full control over the legal status of their immigrant spouse. Because abusers often use immigration status as a form of control, many battered immigrants who could have been granted legal immigration status if their abusive spouse chose to file a visa application with the Immigration and Naturalization Service were left without legal immigration status in the U.S. Research has found that in abusive relationships, 72.3% of citizen and legal permanent resident spouses never filed immigration papers for their immigrant wives.(15) Subtitle D of the Act recognized the importance of extending all VAWA protections to battered immigrant women and children, whose immigration status remained uncertain in the hands of savvy U.S. citizen and lawful permanent resident abusers.

When enacting Subtitle D of the Act, Congress recognized that many immigrant women live trapped and isolated in violent homes, afraid to turn to anyone for help. They fear both continued abuse if they stay with their batterers and deportation if they attempt to leave. (16)

This fear of deportation paralyzed immigrant victims and prevented them from calling the police for help, from cooperating with prosecutors bringing criminal cases against their abusers and from seeking protection orders.(17)

Consequently, Congress enacted the self-petitioning provisions in Subtitle D of the Act to permit self-petitioning for battered immigrant women to prevent the citizen or legal resident spouse from using the petitioning process as a means to control or abuse an alien spouse.

(18)B

By allowing for self-petitioning and by assuring that all the other provisions of the Act applied to battered immigrants, Congress envisioned several overall benefits: removing the abuser's control over the victim's immigration status,(19) encouraging reporting of the abuse without the risk of deportation,(20) and facilitating prosecution of abusers, by making law enforcement officials more receptive to complaints of domestic violence and thereby eliminating a class of abusers immune from criminal prosecution.(21)

The goal of H.R. 3083 is identical to that of VAWA's immigration provisions - to free abused immigrant spouses to cooperate in their abuser's prosecution and to obtain justice system protection for themselves and their children. The amendments proposed in H.R. 3083 will improve access to the criminal justice system for battered immigrants abused by citizens or other persons lawfully permitted to reside in the United States, will remove legal impediments that continue to encourage battered immigrants to choose to remain with their abuser and will correct omissions and implementation problems that prevent the prosecution of batterers who abuse immigrant family members.

Legal Impediments That Trap Battered Immigrants in Violent Relationships NOW Legal Defense and Education Fund's Immigrant Women Program and the National Network on Behalf of Battered Immigrant Women receive over 2,000 calls a year from advocates and attorneys trying to help women and children who have been victims of domestic violence. Although over 5200 battered immigrants have received help under VAWA, we are finding that several categories of immigrants battered by citizen and lawful permanent resident spouses and parents cannot attain VAWA protections either because of omissions in the original legislation or because of implementation problems.(22) The following are some examples of the access problems advocates report: Vanna is a Cambodian wife of a member of the U.S. military who is currently stationed abroad in a country that is not her homeland. During her abusive marriage she has lived with her citizen husband in the U.S. and in various countries in which he has been stationed. Her relationship has been plagued with sexual abuse with her husband forcing Vanna to engage in sexual behaviors that made her feel demeaned and humiliated. His physical and sexual abuse has included threats to kill Vanna in which he told her that he could make her death look like an accident. Her husband also restricts the amount of food she is allowed to eat and where she was allowed to go. He threatens her with withdrawing the immigration papers he filed for her and telling her that she would be deported back to Cambodia where she would probably be killed. She feels trapped and isolated on the military base. Vanna wants to return to the U.S., but she does not qualify for VAWA self-petitioning because she lives abroad. H.R. 3083 would help Vanna by allowing abused spouses and children of U.S. citizens and lawful permanent residents to file for VAWA protection whether or not they were residing in the United States. Sara is the 21- year old Panamanian daughter of an abusive lawful permanent resident. She has been sexually abused by her father since she was in junior high school. Her father brought her mother and Sara into the U.S. without visas when she was twelve years old. Her father has never filed a family-based petition for his wife nor Sara. By the time she finally found the courage to disclose the sexual abuse to her mother, who had also been abused by her father Sara was already 21 and it was too late for Sara to receive protection under VAWA. She is afraid to report the incest to authorities because she has no immigration status and fears being deported to her home country where she knows no one. As a result her father goes unpunished and Sara struggles to overcome the effects of the abuse. H.R. 3083 would allow Sara to file for relief under VAWA. Lupe was born in El Salvador. She came to the U.S. at age five and grew up in the United States where she met and married her lawful permanent resident spouse. Shortly after the marriage her husband began closely monitoring her every move. When Lupe was pregnant with their first child Lupe fled to her parents house. Her husband followed her and ordered her to get into his car. When she refused he dragged her by the hair into the passenger's seat. Her pregnant belly got stuck between the seats and she could not move. When her mother and brother tried to help, he threw her mother to the ground and sped off with Lupe. He drove her to his apartment and locked her inside. After the baby was born, he began raping Lupe and threatening that if she didn't comply, she would never see the baby again. When she found him abusing the baby, locking him in a closet to punish him for crying, and crushing his favorite toys underfoot, Lupe fled back to her parents' house. After a restraining order was issued, he again abducted her and threatened to drown her. Following this incident Lupe retained an attorney and filed a self-petition that has been approved. Lupe fears having to return to El Salvador to obtain her lawful permanent residency. Her husband continues to stalk her and has many family members there. Lupe does not speak Spanish and her protection order, which granted her custody, cannot be enforced if she leaves the United States. Leaving the country to obtain permanent residency is too dangerous for her. H.R. 3083 would allow Lupe to safely apply for adjustment of status in the United States.

H.R. 3083: Restoring Access, Addressing Omissions, and Correcting Unintended Effects and Implementation Problems of VAWA 1994

H.R. 3083 continues Congress's commitment to the plight of battered immigrants and the work that began with the passage of VAWA 1994 to help battered immigrant women secure lawful immigration status and legal protection so they may flee violent homes, cooperate in the criminal prosecution of their abusers, and take control of their lives without fearing deportation. The specific purposes behind H.R. 3083 are tri-fold. First, the bill restores access to VAWA relief that was weakened by subsequent legislation. Second, H.R. 3083 offers access to lawful permanent residence status to victims who were inadvertently omitted under VAWA 1994. Finally, the bill corrects unintended effects and implementation problems of VAWA 1994 that were not anticipated when the bill was enacted. Some of the highlights of H.R. 3083's provisions include:

Restoring Access to VAWA

Adjustment of Status: Changes to immigration laws that occurred after VAWA became law in 1994 now force many battered immigrant women and children with approved VAWA self-petitions to choose between remaining without access to lawful permanent residency status and being required to leave the United States to obtain their lawful permanent residency. This is true despite the fact that the INS has already determined that they will suffer extreme hardship if returned to their home country. Further, the law makes no exceptions for battered immigrants who have proven that returning home will jeopardize their safety, undermine the treatment they rely on to overcome the abuse or interfere with custody decrees crafted to protect children from the harmful effects of domestic violence. H.R. 3083 allows battered immigrants with approved self-petitions to adjust their status to lawful permanent resident while remaining safely in the United States.

Addressing Omissions in VAWA 1994 Children Who Age-Out: The fact that domestic violence often spreads from the battered spouse as the target of the violence to abuse of the children has been well documented.(23) Battered immigrant women fleeing abusive relationships must be able to protect to their children. VAWA allows battered immigrants to include their undocumented children who are under 21 years old at the time of filing. Currently, even if a child is under 21 when the self-petition is filed, they must remain under 21 until they can obtain lawful permanent residency status based on the approved VAWA self-petition.

Since the waiting time between filing of the self-petition and obtaining lawful permanent residency can range from 6 months to almost 5 years, many children who were to be offered protection by including them in their mother's petition Aage @ by turning 21. The effect of this gap in the legislation is to force battered immigrants with older children to remain with their abusers as the only hope that her older children will benefit from a petition that their abusive spouse can file for the child even if the child turns 21. In order to assure that children over 21 have access to VAWA provisions, H.R. 3083 allows derivative children who are under 21 when the self-petition is filed, to continue to be included in their parent's petition until they can obtain their permanent residence status.

Deleting the Residence in the U.S. Requirement: Battered immigrants married to either citizens or permanent residents living outside the U.S. have no access to VAWA immigration relief. Current VAWA provisions state that an applicant must reside within the territory of the U.S. to file a self-petition. There is not a residency requirement in regular family-based visa petitions. A citizen or legal permanent resident spouse living abroad can file a visa petition on behalf of their immigrant spouse at the American Consulate. Battered immigrants need the same access to immigration benefits they would have if their spouse was not abusive. H.R. 3083 allows abused spouses and children of citizens and permanent residents to file for VAWA protection without regard to where they currently reside, this removes an incentive for abused immigrant spouses and children to remain with their abusers. Because of the transient nature of the military (military members move twice as often as the civilian workforce), military spouses are particularly affected by this provision. This is important because the frequency of abuse in military families is proportionally much greater and more severe than in civilian families.(24)

Effect of Changes in the Abuser's Immigration Status: Conviction of a domestic violence crime is a removable offense. One unintended effect is that the battered immigrant's pending VAWA self-petition becomes void when her husband is deported. This creates a perverse incentive for the battered immigrant either to tolerate the abuse rather than report it or to refuse to cooperate in his prosecution. H.R. 3083 allows battered immigrants to file a VAWA self-petition that would remain valid even if the batterer is deported due to domestic violence.

Unintended Effects and VAWA Implementation Problems

Deleting Extreme Hardship: VAWA self-petitioning applicants would normally be beneficiaries of regular family-based petitions, but for the actions of the abusive spouse or parent. To win approval of a family-based visa petition the parties must prove that they have a valid marriage or parent/child relationship. In addition to this proof, VAWA self-petitioners must prove that they have been victims of battery or extreme cruelty at the hands of their citizen or resident spouse or parent and that they are persons of good moral character. Once the self-petitioner has proved all of these facts, they must additionally prove that their deportation would cause extreme hardship to themselves or their children. Extreme hardship is a difficult evidentiary test that battered immigrants who file applications with INS without the assistance of an attorney find almost impossible to meet. The extreme hardship requirement has resulted in INS denials of self-petitions of many unrepresented battered immigrants are of good moral character, who present compelling evidence of abuse and whom INS believes are in good faith valid marriages. This result is contrary to VAWA's goal of providing relief to battered immigrants; with the end result of abusers continuing to go unprosecuted. INS' reviewed VAWA cases and found that in no instance did they find credible evidence of marriage fraud and credible evidence of domestic violence in the same case.(25)

VAWA's evidentiary requirements are ,even without extreme hardship, much higher than the proof requirements in all other family based visa cases. H.R. 3083 deletes the extreme hardship requirement recognizing that it poses a difficult, unnecessary hurdle that deprives many needy victims of VAWA's protections and allows their abusers to go free.

Public Charge: In legislation crafted by Chairman Smith, Congress provided battered immigrants who were eligible under VAWA or who were the beneficiaries of petitions filed by their spouses or parents, access to the public benefits safety net. Under current immigration laws, however, immigrants who use those benefits may be deemed public charges and denied lawful permanent residency. H.R. 3083 creates an exception to the public charge ground of inadmissibility for battered immigrants who need access to benefits in order to flee their abusers and survive economically.

Discretionary Process to Reinstate a Revocation: As the protections offered battered immigrants through VAWA become more well known in immigrant communities, the National Network on Behalf of Battered Immigrant Women has been receiving increased reports of abusers seeking to revoke approved family-based visa petition and have their spouses placed in removal proceedings. H.R. 3083 would prevent an approved petition from being revoked and would allow INS to reinstate a revoked family-based visa petition when INS received credible evidence that the citizen or lawful permanent resident spouse or parent has perpetrated battery or extreme cruelty. Further, the H.R. 3083 provisions will require that once the INS or the immigration judge determines that the spouse or parent is an abuser, they must act to undo any harm that has occurred as a result of the abusers withdrawal or revocation of the petition or his report that initiated removal proceedings. For example, if an abuser revoked a petition and convinced INS to place his abused immigrant wife in removal proceedings, INS would be explicitly authorized to close those proceedings and to allow the victim to self-petition under VAWA.

Access to Legal Services: Battered immigrants are far more successful in their applications for VAWA self-petitions when they are represented by lawyers who have received domestic violence training. Legal Services Corporation (LSC) funded programs provide the vast majority of legal services to battered women in the country. Recognizing this fact, in 1997 Congress amended legal services appropriations legislation to allow lawyers working for LSC-funded programs to represent battered immigrant women, a variety of domestic violence related matters, without regard to their immigration status in so long as those services are funded with non-LCS dollars. The legislation, however, used the INS definition of family relationships (spouses and children) rather than each states' own domestic violence definition. This had the effect of cutting off access to legal services for many battered immigrants who would be protected if the state definition had been used B including immigrant women battered by their citizen boyfriends. H.R. 3038 will make an important technical correction to fix this problem.

Recommendations and Conclusion

On behalf of NOW Legal Defense and Education Fund and the National Network on Behalf of Battered Immigrant Women, thank you for the opportunity to present this testimony in support of the Battered Immigrant Women's Protection Act of 1999. The Act will go far toward furthering the original purpose of VAWA's immigration provisions -- freeing battered immigrant women abused by citizen and lawful permanent resident spouses or parents to report the abuse to police, to seek help and to prosecute their abusers for the multiple crimes they commit against family members. We have learned much over the six years, since VAWA's enactment, about instances in which the original legislation works effectively and when it does not. H.R. 3083 is designed to correct unforseen problems in the legislation and erosions in access to VAWA that have prevented many of the needy domestic violence victims VAWA sought to protect from seeking help. Helping battered immigrant women escape abuse and bring their abusers to justice will reduce domestic violence in our communities and will ensure that the citizen children of immigrant parents have the same opportunity to live lives free of domestic violence that VAWA sought to provide to all domestic violence victims.

FOOTNOTES:

1. The National Network on Behalf of Battered Immigrant Women is co- chaired by NOW Legal Defense and Education Fund, The Family Violence Prevention Fund, and the National Immigration Project of the National Lawyer's Guild.

2. Criminal Vicitmization in the United States: 1990-1997 Trends. Bureau of Justice Statistics. Washington, DC: U.S. Department of Justice, December 1997, pp.57-58.

3. Howard A. Davidson. The Impact of Domestic Violence on Children; A Report to the President of the American Bar Association. ABA. 1 (1994).

4. See e.g., Ted Miller et al. National Institute of Justice. US Dept of Justice. Victim Costs and Consequences: A New Look. 18-19 (1996) ( Finding that domestic violence costs $67 billion a year in property damage, medical costs, mental health care, police and fire services, victim services, and lost worker productivity).

5. David M. Zlotnik. Empowering the Battered Woman: The Use of Criminal Contempt Sanctions to Enforce Civil Protection Orders. 56 Ohio St.L.J. 1153, 1162-63, 1215 (1995).

6. Rodriquez, R. (1995 May/June), Evaluation of the MCN Domestic Violence Assessment Form and Pilot Prevalence Study. The Clinical Supplement of the Migrant Clinicians Network, 1-2.

7. Mary Ann Dutton, Leslye E. Orloff, and Giselle Aguilar Hass, Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Lega l and Policy Implications. Georgetown Journal on Poverty Law & Policy, Volume VII, Number 2, Summer 2000. Page

8. Coalition for Immigrant and Refugee Rights and Service(CIRRS). (1990). A needs assessment of undocumented women. Author; San Francisco. and Mary an Dutton, et. al. Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Legal and Policy Implications. Georgetown Journal on Poverty Law & Policy, Volume VII, Number 2, 13 (Summer 2000).

9. Mary Ann Dutton, et. al., Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Lega l and Policy Implications. Georgetown Journal on Poverty Law & Policy, Volume VII, Number 2, 38 (Summer 2000). Language barriers (29.7%), lack of knowldege about formal services available to help battered immigrants (23%) and fear, particularly immigrant consequences (27%) appear to pose significant barriers to battered immigrant Latinas' access to institutionally based legal, social and health services.

10. Id. at 36

11. See Power and Control Wheel Produced by the Domestic Abuse Intervention Project, Duluth, MN.

12. See Mary Ann Dutton, et. al. Characteristics of Help-Seeking Behaviors, Resources and Service Needs of Battered Immigrant Latinas: Lega l and Policy Implications. Georgetown Journal on Poverty Law & Policy, Volume VII, Number 2, 6-7( Summer 2000).

13. House Report No. 395, 103rd Cong., 1st Sess. (1993) 25.

14. Id.

15. See Mary Ann Dutton, et. al., Characteristics of Help-Seeking Behaviors, Resources and Service Need of Battered Immigrant Latina=s: Legal and Policy Implications at 15.

16. House Report No. 395, 103rd Cong., 1st Sess. (1993) 26-27.

17. Id. at 26.

18. Id. at 37.

19. Id. at 37.

20. Id. at 38 (discussed in the context of child abuse).

21. Id. at 25, 27.

22. Immigration and Naturalization Service, November 1999.

23. See Hughes, HM et al (1989). Witnessing spouse abuse and experiencing physical abuse: A >double whammy=, Journal of Family Violence, 4, 197-209.

24. The Miles Foundation, ADomestic Violence in the Military Facts and Statistics (visited June 7,2000) <http://pages.cthome.net/milesfdn>.

25. Immigration and Naturalization Service, International Matchmaking Organizations: A Report to Congress

END

LOAD-DATE: July 25, 2000

Document 4 of 44.


Search Terms: legal services corporation, House or Senate or Joint
To narrow your search, please enter a word or phrase: