Immigrant Women Protection Act
Testimony by Dan Stein, FAIR Executive Director
submitted on July 20, 2000
This statement addresses problems in the drafting of the ‘Battered Immigrant Women Protection Act’ (H.R.3083) As written, this bill may encourage more violence against immigrant women than it deters and increase illegal means to residence in the United States.
Surely no one would oppose a bill designed to protect immigrant women against physical or mental abuse if it were designed to have only that consequence and did not appear to open up broad avenues of undesirable unintended consequences. Unfortunately, H.R.3083 suffers from both of those problems. In fact, the bill has so many unfortunate side effects that it should not be passed in its current form.
We are taught from a young age not to look a gift horse in the mouth. It is considered ungracious. We also learn at a somewhat later age that the Trojans made a fatal mistake because they failed to look a gift horse in the mouth. Heeding the latter lesson, we at the Federation for American Immigration Reform have taken a close look at H.R.3083. What we have found is that within the shell of this proposed legislation are many dangerous provisions which, if enacted into law, would damage the enforceability of the nation’s immigration law.
Protections for vulnerable populations are noble. Few would disagree that illegal aliens are a vulnerable population. The authors of this legislation are so focused on the issue of protection that they ignore the consequence of the illegal status. Illegal immigration is so massive a problem at present that we believe that any measure, such as this bill, that encourages or even rewards illegal immigration should be avoided if at all possible. On the other hand, we would support workable provisions that are designed to prevent the loss of immigration benefits for a legal immigrant whose family relationship has been terminated as a result of spousal abuse.
The argument might be made that the problem of violence against immigrant women is so serious a social problem that we should overlook some possible unintended consequences. In other words, avoid throwing the baby out with the bathwater. That is a misleading argument. The protections against spousal abuse adopted in 1994 will be continued by adoption of H.R.1248, a bill that does not contain the destructive consequences of H.R. 3083.
H.R. 3083 contains more than three dozen substantive amendments that repeal or weaken provisions of the Immigration and Nationality Act (INA), the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). The bill would eliminate or weaken every statutory standard applicable to petitions for adjustment of status to legal permanent residence where the petitioner invokes Violence Against Women Act (VAWA) provisions. Every cancellation of removal requirement for VAWA beneficiaries and an expanded class of derivative relatives would be repealed or weakened.
Before entering a detailed discussion of the bill’s provisions, four examples of the pitfalls included in the bill will demonstrate the nature of our concerns.
- The bill would create a new INA category of “intended spouse” (Section 7(c)(1)). This is a term that exists nowhere else in federal law. The adoption of this provision would serve as a wedge for undermining the institution of marriage as well as opening a loophole so wide that it could be used for litigating a panoply of perhaps unintended issues such as same sex relationships. The bill would disadvantage law-abiding traditional immigrant families, reward fraudulent behavior, and attack privacy protections for American citizens at the expense of privileged treatment for inter alia illegal immigrants.
- Another provision would open the door to persons who have never set foot in this country to self-petition to enter the country for permanent residence on the basis of a VAWA assertion that they had been abused by a U.S. citizen or resident (Section 7(c)(1)). In other words it would allow the alien to “rejoin” in the United States a person who is resident abroad, or if that person has returned to the United States, to rejoin the abuser.
- The bill removes most of the adversarial nature of legal proceedings that allow an accused person to defend himself. The adversarial proceedings that are removed by the bill would serve to expose the possible use of the bill for fraudulent application for immigration benefits. It may be argued that the accused abuser does not need the opportunity to defend himself against the abuse charges, because under the bill, he does not face any legal repercussions as a result of the accusation. That argument identifies another major flaw in this bill; acts of abuse that are serious enough to justify VAWA protections are actions that should result, if proven, in legal repercussions against the abuser. If the abuser is an alien the actions should lead to his removal.
- Other provisions in the bill would establish new substantive and procedural legal preferences favoring VAWA beneficiaries — including illegal aliens — over all other non-citizens. Included among these are a backdoor reestablishment of INA Section 245(i) which allows illegal aliens to obtain legal residence without leaving the country. Many of the provisions include retroactivity features that would reopen years of immigration litigation, compounding current backlog problems.
These are only four examples of a long list of serious flaws embedded in H.R. 3083. The cumulative harmful effect of the bill, if adopted, would not, however, be confined to such provisions. A broader concern is that evidentiary standards in this bill are set so low that the bill’s provisions would become a super-highway for fraudulent claims to immigration benefits. The minimal standards would seriously impede any effort by the INS to investigate, expose and prevent fraud, whether by individuals or by racketeers.
The immigration and other benefits provided by this bill are so ‘big-hearted’ that they may be seen by some illegal aliens as outweighing the threat of detection for fraudulent allegations of abuse. Rather than protecting them from abuse, it seems possible that the bill will encourage immigrants to feign abuse in order to be able to qualify for benefits that include not only preferential status for legal residence but also welfare eligibility.
H.R.3083 is reminiscent of the most unsuccessful provisions of the Illegal Immigration Control Act of 1986. The IRCA provision for employer sanctions was designed to deter illegal immigration by denying jobs to illegal entrants and visa overstayers. The 1986 amnesty was accepted as a necessary evil to facilitate the implementation of the new illegal immigration deterrence provisions. Despite the good intentions, the country ended up with the worst features of the amnesty — including rampant fraud — without the benefits of the deterrence, because the sanctions system was established without the necessary immigration status verification provisions needed to make it effective. In practice, rather than deterring illegal immigration, IRCA now stands as a landmark pointing to an increase in illegal immigration.
Like IRCA, H.R.3083 is portrayed as offering a benefit to society in exchange for overlooking illegal alien status. The bill also includes an amnesty feature. But, by not addressing the fundamental problem, i.e., discouraging violence against women by identifying and punishing the abuser, the bill will instead result in a one-way street of benefits for illegal aliens without the benefits to the country by removing persons whose presence is undesirable. In addition, H.R.3083 will open new avenues for bypassing our system of legal immigration.
A full analysis of the potential harm embedded in H.R.3083 requires an itemized discussion of the bill’s provisions and how they relate to the current legal protections that are already provided. In addition not all of the deleterious effects of the proposed provisions are obvious on the surface, so it is necessary to speculate how the provisions might work in practice if adopted rather than accept them at their face value.
Our comments are arranged in seven sections as outlined below:
- Expansion of the existing VAWA self-petitioning criteria;
- Expansion of cancellation of removal provisions for VAWA beneficiaries;
- Restoration of welfare benefits for VAWA beneficiaries
- Weakening of immigration law enforcement;
- Restriction of state and local enforcement against illegal aliens;
- Establishment of new preferences for VAWA beneficiaries;
- New “amnesties” for Cuban, Central American and Haitian VAWA beneficiaries.
1. EXPANSION OF THE EXISTING VAWA SELF-PETITIONING CRITERIA
H.R. 3083 would eliminate or erode every statutory standard applicable to petitions for adjustment of status to legal permanent resident where the petitioner is a VAWA beneficiary, including: Those standards include the requirement for a bona fide marriage, proof of good moral character, meeting the extreme hardship criteria, status derivation based on the U.S. residence of the petitioner, or the traditional parent-child relationship. All of these standards disappear in the proposed legislation, if battery or extreme cruelty is alleged and the low evidentiary standards of act are met. A fast-track naturalization benefit unavailable to other immigrants is provided for VAWA aliens.
H.R. 3083 creates new institutional benefits for unmarried non-citizens that are unavailable to married non-citizens. The effect is that married aliens are placed in a disadvantage. All of the benefits and purported “protections” in the bill require that the spouses, children and even the elderly parents separate permanently and then formally denounce their U.S. citizen or legal permanent resident (LPR) spouse or parent.
The federal benefits from asserting abusive treatment include legalization and access to welfare under a faster and more expansive procedure than offered to any other class of non-citizens. The accuser receives these benefits without any reciprocal responsibility to cooperate with the INS or local law enforcement to punish or deport the purportedly abusive father or husband. The absence of provisions to link the immigration benefits for the VAWA petitioner with sanctions against the “abusers” under immigration law suggest that H.R. 3083 was never intended to serve as a deterrent to future abuse in immigrant communities.
Rather than focusing public opinion against spousal abuse, the ironical effect of H.R. 3083 is more likely to be to create a focus by alien smugglers on how the bill’s provisions can be exploited to facilitate the lucrativeness of their smuggling operations. This assessment is based on experience with the coaching by Chinese “snakehead” smugglers of their illegal alien clients to claim asylum under the Chinese family planning provision added in 1996 by Section 601 of IIRAIRA. The likelihood is that VAWA relief provisions will be rapidly exploited by organized crime and immigrant advocacy organizations with the concomitant effect that physical and mental abuse (or at least allegations of such treatment) will increase, and patterns of dependence, poverty and social dysfunction will blossom in immigrant communities.
Section 4(e) would allow a VAWA self-petitioning spouse to remarry before obtaining LPR status, revoking current regulation 8 CFR 204.29(c)(1)(ii). Thereby an illegal alien would be able to enter into a sham marriage or intimate relationship with a U.S. citizen or LPR, provoke or simply allege abuse, divorce or separate from that person and marry a fellow illegal alien and be able to not only gain LPR status but also confer a derivative immigration benefit on the new spouse.
Section 7(a) would create the new INA category of “”“intended spouse”“.” This would be an entirely new status in federal law. This new status is defined in a way to cover aliens who may once have had a derivative immigration status based on a relationship with a citizen or LPR, but who has lost that status by death, divorce or legal provision and they assert that lost immigration status involved domestic violence. The implication of this provision is that an illegal alien who terminates a marriage or relationship with a U.S. citizen or LPR by killing him does not lose a derivative immigration benefit if there is some evidence of abuse. In theory, the alien could gain a benefit by murder that was withheld by the murder victim while alive. Thus, the alien would be able to gain legal residence by an act that constitutes a basis for termination of legal residence.
Section 7(c)(1) allows “intended spouse’s” to self-petition for VAWA benefits. It also removes the current requirement that they reside in the U.S. As previously noted,“intended spouse” is a provision that does not exist elsewhere in federal law, and, if enacted, would establish an entirely new alternative to marriage as a standard for judging what constitutes a family relationship.
INA Section 204(a) which establishes the basis for self petitioning for immediate relative and spousal second preference status, currently provides that the petitioning alien must reside in the United States. By removing that requirement, an entirely new population of aliens would become eligible to obtain preferential immigration status.
The range of aliens who are made eligible to self-petition is widely expanded by including, in addition to spouses, children and adult sons and daughters of citizens (Sections 7(c)(6) and 7(d)(5)).
Section 7 also removes the current requirement that a VAWA illegal alien self-petitioner prove “extreme hardship” to family members if they were to be sent home. This provision would give privileged status to illegal aliens who invoke the VAWA provisions over all other applicants for withholding of removal.
Another provision in current law — that self-petitioners be legally married to the abuser at the time the petition — is removed by the bill (Sections 7(c)(1)(B) and 7(d)(1-2)). If adopted, the alien would become able to self-petition up to two years after a divorce from, or death of, or loss of legal immigration status of the abusive US citizen or LPR. This provision expands the scope of the VAWA statute as a defensive claim against deportation. In a similar vein to the counsel given thousands of illegal aliens that they may escape or delay deportation if they can show a well-founded fear of persecution if deported, a new standard of relief from abuse may arise as a defensive measure. The difference is that the “well-founded” test will be replaced by a much lower standard of evidence.
The Immigration Marriage Fraud Act would be weakened by the bill. The IMFA provides that women sponsored by citizens or LPRs for fiancé (K) visas must marry within 90 days. This was adopted to prevent the fiancé visa from being used for fraudulent entry. The bill undermines that anti-fraud measure by providing that the marriage requirement may be waived for aliens who self-petition for VAWA adjustment of status (Section 7(c)(2)).
The requirement that fiancés and their children remain in conditional resident status for two years before becoming LPRs — in order to deter the practice of marriages of convenience as a way to gain immigration benefits — is also eliminated by Section 4(b). By asserting abuse by the fiancé, the alien is able to bypass the waiting period and apply for an immediate waiver to adjust to permanent status. Elimination of the requirement for the putative fiancé to document the basis for a battered spouse waiver will inhibit investigation of marriage fraud.
Adult sons and daughters (aged 21 or older) of a VAWA petitioner are made eligible for immigration preference as a “child” — currently unavailable under INA §101(b) — if they or their mother claim abuse occurred before they turned 21 (Section 7(b)). Thus, aliens who are ineligible under current law for either an immediate relative visa or a second preference visa reserved for children, become eligible for that status by asserting abuse of the parent or abuse of themself. These adult “children” can include their own children (i.e. the abusive parent’s grandchildren) on their petition. They would not need to have lived with the abusive parent, but simply have spent a “period of visitation,” (Sections 7(c)(3) and (d)(3)). With no time limits on petitioning, this provision invites fraudulent applications.
The bill provides alien parents who are abused by U.S. citizen children with the same immigration benefits as “intended spouses” (Section 7(c)(4))
2. EXPANSION OF CANCELLATION OF REMOVAL (COR) PROVISIONS FOR VAWA BENEFICIARIES:
H.R. 3083 provides VAWA beneficiaries with a way around virtually every current COR requirement including:
- documentation of extreme cruelty,
- continuous presence,
- good moral character,
- inadmissibility on criminal grounds,
- the extreme hardship rule,
- the annual cap on petitions, and
- the even the deadline for filing petitions.
Section 3(b)(2) would remove the numerical restriction on COR cases by exempting VAWA COR applicants from the ceiling. The consequence, in combination with other H.R. 3083 provisions creating VAWA loopholes throughout the immigration law, will be a dramatic increase in illegal alien applicants for COR and suspension of deportation status.
Current INA 240A(b)(2) — a special VAWA provision, adopted in 1996 — reduces the 7-year continuous residence standard to a 3-year continuous (unlawful) physical presence. But the clock stops on accrual of that residence when the INS serves a Notice to Appear (NTA) on the alien. Under H.R. 3083 (Sections 3(b)(1) & (b)(3)) COR applicants who have been placed in deportation proceedings would continue to accrue time towards the 3-year requirement. Section 3(b)(1) would repeal the so-called “stop-time” rule, which cuts off the accrual of “continuous presence” once the INS issues an NTA. Retroactivity of the provision back to the enactment date of IIRAIRA would affect all current cases and encourage new and reopened ones.
Another provision (Sections 6(a) and 6(b)) would allow the INS to weaken the continuous presence/residence requirements even further by creating a waiver of continuous presence for “humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the alien demonstrates that the absences were connected to the battery or extreme cruelty forming the basis” for the COR or suspension of deportation applicants. This broad discretionary standard for waiving the requirement is an open invitation to abuse.
Eligibility for COR that is now limited to battered spouses and children would be greatly expanded in scope by Section 8. It would expand the “special rule” for eligibility for COR (and adjustment of status) in INA 204(b)(2) to the son or daughter of a US citizen, or an “intended spouse” of a bigamous US citizen or LPR.
Section 8(a) would also exempt VAWA COR applicants from the termination of accrual time towards the 3-year continuous residence requirement, although it refers to the NTA as a “charging document”.Considering the routine grant of continuances by immigration judges, and the statutory rights of the alien to file a motion to reconsider and a motion to reopen under 240(c), or a petition for review of removal under 242, H.R. 3083 makes it much easier for a VAWA applicant to qualify for COR within a period of time significantly shorter than three years.
Section 8(a) would allow the Attorney General to waive ineligibility for COR to benefit a wide range of criminals and undesirables, including aggravated felons, inadmissible criminals under INA 212(a)(2), and aliens who are deportable for major crimes or marriage fraud under INA 237(a). Because the waiver provision invokes vague humanitarian, family unity, or public interest grounds for the proposed waiver of inadmissibility in Section 5(a), but without the restrictions on waivers in INA 212(a)(3) or 237(a)(4), the waiver authority appears to extend COR benefits even to aliens excludable on security risk and terrorist grounds.
Section 8(b) would make the revised special COR rules retroactive to April 1, 1997, facilitating motions to reopen removal or deportation proceedings.
Section 8(c) retroactively permits VAWA suspension of deportation applicants to adjust the status of illegal children, spouses, adult sons and daughters, and parents (of child applicants).
3. ELIMINATION OF WELFARE REFORM FOR VAWA BENEFICIARIES
Welfare reform measures adopted in 1996 (PRWORA) would be restored for a greatly expanded class of VAWA beneficiaries. H.R. 3083 would grant subsidized legal assistance not available to most citizens and legal permanent residents. The provisions create what amounts in practice to a preferential treatment to illegal immigrant spouses and children from tenuous or broken homes, and would reward fraudulent behavior.
The bill exempts immediate relatives, second preference derivative immigrants, battered self-petitioners, COR and suspension of preference deportation applicants, plus derivative spouses, children, from public charge determinations (Section 10(b)). Proposed INA §212(a)(4)(E)(ii) is particularly pernicious because it would expand the waiver to cover any person eligible to petition for classification as a family preference immigrant under INA 203(a) “who has been battered or subjected to extreme cruelty,” plus “any derivatives or immediate relative children” of these persons. As written, the provision drops the requirements that the alien be of “good moral character” and that the petitioner show “extreme hardship.” This exemption would in practice benefit a much larger group than just the INA 204(a) battered aliens.
Sections 10(d), 10(e), and 10(f) contain several related provision that would eliminate restrictions on the use by VAWA aliens of food stamps and SSI, on federal housing assistance or access to federally-funded services or shelter “provided to battered women or abused children,” and exempts them from the 5 year ban on receipt by immigrants of public benefits. Sections 11(a) and 11(f) make the same class eligible for free legal assistance funded by the Legal Services Corporation. This provision would overturn a present prohibition against LSC-funded attorneys representing illegal aliens.
Section 10(h) would expand the term “family” in the definition of “qualified alien” eligible for public benefits and welfare from spouse, parent, and child to “any individual having a relationship with the alien covered by the civil or criminal domestic violence statutes in the State… in which the alien could obtain a protective order.” Such a “covered relationship” could include remote relations, informal relations, same-sex relations, cohabiting relations, extended customary or tribal relations, lodgers, etc., depending on the jurisdiction. The uniform federal standard would be eliminated.
Section 10(i) would also expand the definition of “qualified alien” eligible for federal, state, or local welfare to include any VAWA alien for whom welfare benefits “would alleviate the harm from such battery or cruelty or enable the alien to avoid [it] in the future.” It would also add similar language to expand the grounds for exemption from the PRWORA sponsorship income deeming rule. VAWA applicants would also become eligible from PRWORA deeming requirements for purposes of suspension of deportation. A married VAWA beneficiary would become allowed to divorce her spouse and still qualify for SSI and food stamps using the spouses’ qualifying “quarters” of work (Section 10(j)).
4. WEAKENED FEDERAL ENFORCEMENT OF ILLEGAL IMMIGRATION LAWS
H.R. 3083 would create a broad (and easily abused) waiver of INA provisions defining the classes of both inadmissible and removable aliens (Section 5). Waivers could be granted at the Attorney General’s discretion for “humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” The very broad scope of the proposed waiver would cover “any provision” of INA 212 or 237,keeping absolute bars only for terrorists, national security threats, polygamists, international child abductors (domestic kidnapers would apparently be eligible for the waiver), and wealthy Americans who renounced citizenship to avoid taxation. Inadmissibility standards that could be waived would include health-related grounds; public charge grounds; labor certification qualifications; restrictions on illegal immigrants, parole violators, previously removed aliens, unlawful voters, uncertified physicians and unqualified foreign health care workers; standards for granting H1-B visas; and standards for computing prevailing wage levels.
Even exclusion on criminal grounds and for obtaining a visa by fraud or falsely claiming citizenship could be waived by the INS if the crime was committed by a VAWA petitioner and the alien could “demonstrate a connection between the crime or disqualifying act and battery or extreme cruelty” (Section 5(a)(1)). A “connection” is a very vague legal standard, which could cover numerous factual circumstances. Section 5 also would make eligibility for waiver relief retroactive to April 1, 1997. These provisions invite extensive litigation relating to pending or closed removal cases.
Grounds for removal under INA 237 that could be waived for VAWA beneficiaries under Section 5(a)(2) include alien smuggling, marriage fraud, multiple criminal convictions, aggravated felonies, high speed flight, controlled substances laws, firearms offenses, illegal voting, smuggling for immoral purposes, domestic violence and child abuse.
The new language would form a much weaker standard than the current waiver provision in 212(h), which is limited to simple possession of 30 grams or less of marijuana, and only if exclusion would result in extreme hardship to the alien’s US citizen or LPR immediate family members. A restrictive interpretation of the text would limit the waiver to battered class petitioners, but rules of statutory interpretation would favor a more expansive interpretation.
Under current law, aliens convicted of crimes of domestic violence, stalking, child abuse and violations of protective orders are deportable. Section 5(b)(5) would allow the Attorney General to waive deportability for any alien convicted of these crimes, regardless of membership in the class of battered petitioners, for “humanitarian reasons,” or alternatively if the alien committed the crime in self-defense or under duress, or was not the “principal or primary perpetrator of violence in the relationship.”
The bill would allow the Attorney General to disregard criminal court records and declare VAWA aliens to be of good moral character — and thus eligible for classification or relief — if the petitioner was convicted of any crime where the alien could claim “a connection between the crime and having been battered. This makes no sense if the alien is no longer in the abusive relationship, and therefore no longer in need of protection.
Current law exempts battered spouses and children who have entered the U.S. unlawfully from inadmissibility or removal if they can show a “substantial connection” between the battery and their illegal entry into the U.S. Section 5(b)(1) would eliminate illegal entry as a bar to admissibility or a waiver or removal for any VAW petitioner, by deleting the “substantial connection” clause entirely. A claim of abuse would become an “open ticket” to LPR status for illegal aliens.
Aliens who procure a visa or admission into the U.S. by fraud or misrepresentation are excludable under current law, although the rule can be waived at the discretion of the Attorney General if exclusion would result in extreme hardship to the citizen/LPR spouse or parent. Rhe bill would expand eligibility for the waiver to include parents, children, and adult sons and daughters of VAWA beneficiaries (Section 5(b)(6)(A)). Similar changes are made to waivers of deportability provisions.
The Immigration Marriage Fraud Act is weakened by the bill(Section 7(c)(2)) Aliens who enter the U.S. on fiancé (K) visas and fail to marry within the statutory 90 days could apply for COR or suspension of deportation or self-petition to adjust status, even if they subsequently marry a third party.
5. NEW RESTRICTIONS ON LOCAL AND STATE ENFORCEMENT OF ILLEGAL IMMIGRATION LAWS:
PRWORA mandated new regulations requiring verification of proof of citizenship status by Federal agencies and states administering federally-funded programs. H.R. 3083 would prohibit state agencies that administer federal welfare programs from inquiring or collecting information about the immigration status of an alien applying for welfare benefits on behalf of a U.S. citizen or qualified alien (Section 10(g)(1)). Another Section 10 provision would bar reports of illegal aliens to the INS by the Social Security Administration, or state agencies with which it has cooperative agreements.
Section 12(b) modifies Section 133 of IIRAIRA to require that, as a matter of public policy, no cooperative agreement with local law enforcement agencies may “discourage crime victims, including victims of domestic violence,” from cooperating with police and prosecutors. This appears to preclude any agreement that would allow local law enforcement to detain, or inform the INS of, illegal aliens who were “crime victims,” broadly defined.
6. NEW LEGAL PREFERENCES FAVORING VAWA BENEFICIARIES:
Section 3(a) reopens the 245(i) adjustment of status loophole for “battered” illegal alien self-petitioners and their derivative relatives so that they can legalize their status to permanent resident without leaving the country. This loophole was closed on January 14, 1998.
Section 3(c) eliminates the 90 and 180-day deadlines for filing motions to reopen or rescind removal or deportation proceedings or orders imposed by IIRAIRA. This could allow large numbers of illegals to re-adjudicate their cases with no showing of changed circumstances, and benefit from the concomitant delays.
Section 4(a) would allow a VAWA self-petitioner to derivatively maintain the permanent resident or citizenship status of the abuser accused in the petition at the time of filing, regardless of the death or any negative change whatsoever in the status of the accused, except that if the change in the abuser’s status is positive, the VAWA applicant’s status will also be upgraded automatically.
Sections 4(c) creates a legal presumption against a U.S. citizen or LPR against whom “credible evidence” has been provided in a VAWA self-petition that requires the INS to grant a petition “notwithstanding” [any] “determination based on the petitioners actions that could result … in denial or revocation of the petition.” In other words, as long as battery is alleged under this very low evidentiary standard, the citizen or LPR is stripped of the ability to oppose the proceeding.
Section 4(c) would create a preferential exemption in the Privacy Act to allow alien immediate relatives access to confidential INS files for “immigration relief or other domestic violence-related court or administrative remedies.”
However, files of illegal aliens who had submitted “evidence” of battered or extreme cruelty status would be exempt from disclosure. Moreover, Section 4(d) would add a statutory requirement that state and local law enforcement agencies and prosecutors certify that their “laws, policies, and practices do not discourage or prohibit” access to information by a VAWA beneficiary regarding the immigration status of an accused abuser, while maintaining Privacy Act protections for the illegal VAWA beneficiaries.
Section 13 would create a new “T” visa category for aliens “who have suffered substantial physical or mental abuse as a result of … criminal or other unlawful activity.” Although there is a provision for supplying information to law enforcement officials, this is an even looser requirement than the “credible evidence of battery or extreme cruelty” standard to be used for other VAWA beneficiaries. The bill is similar to, but with much weaker program controls, than H.R. 3244.
7. NEW “AMNESTIES” FOR VAWA BENEFICIARIES FROM CUBA, CENTRAL AMERICA, AND HAITI
Section 14(a) exempts a “battered” child or spouse of a Cuban applicant for LPR status under the preferential rules of the Cuban Adjustment Act from the requirement that the spouse or child reside with the applicant in the United States.
Sections 15 and 16 extend eligibility for relief for derivative aliens who were at the time of application the spouse, child or unmarried son or daughter of a Central American, Cuban, and Haitian who has adjusted status under NACARA or HRIFA, if the derivative alien was battered or subject to extreme cruelty.
Other Harmful Provisions
Sections 14, 15 and 16 all require the INS to accept “any credible evidence” in processing applications from VAWA applicants, a very low evidentiary standard that will encourage and abet fraud and abuse in these amnesty programs.
The current requirement that self-petitioners must be legally married to the abuser at the time the petition is filed is replaced with a provision that allows filing of a self-petition up to two years after a divorce from, or death of, or loss of legal immigration status of the abusive US citizen or LPR. .
The bill weakens the Immigration Marriage Fraud Act by allowing women who enter the U.S. on fiancé (K) visas sponsored by citizens or LPRs and who fail to marry within the statutory 90 days to self-petition for VAWA adjustment of status, even if they subsequently marry a third party (Section 7(c)(2)). The current anti-fraud requirement that fiancés and their children remain in conditional status for two years and then file a battered spouse waiver to adjust to permanent status is eliminated by Section 4(b). Elimination of the requirement for the putative fiancé to document a battered spouse waiver will inhibit investigation of marriage fraud.
The categories of aliens who gain immigration benefits under this bill are greatly expanded beyond the provisions in current law. Those who will gain access to LPR status include aliens 21 or older for whom a VAWA petition was filed — either directly as an abused child, or as a derivative child of a battered spouse — before the child turned 21.
These adults who are treated as children are provided self-petitioning rights on a similar basis to “intended spouses,” as long as they have spent at least “any period of visitation” with the abusive citizen parent. These “children” can include their own children (i.e. the abusive parent’s grandchildren) on their petition. Another provision in Section 7 would allow adult sons and daughters of U.S. citizens and LPRs to self-petition for adjustment of status if at least one incident of battery occurred before the petitioner was 21. With no time limits on petitioning, this provision invites fraudulent applications.
In addition to the adult “children,” Section 7 also extends VAWA self-petitioning to alien parents who have been abused by U.S. citizen children on the same basis as “intended spouses.” No evidence has been introduced that establishes a need for these protections, and they simply open up new avenues of immigration to the United States for persons who would otherwise be ineligible for visa.
Mr. Chairman, the above lengthy listing of serious problems that would be created by H.R.3083 is not exhaustive. The bill contains so many new features with far-reaching implications that it would be difficult to unravel all of them in my testimony. Nevertheless, the above survey should serve to indicate the gravity of the implications that would be unleashed if this legislation were enacted.
The American public demands increased respect for the nation’s immigration laws and a reduction in today’s mass immigration. This bill would weaken those laws, further overburden the enforcement and adjudications capability of the INS, increase the ease of fraudulent access to residence in this country by illegal aliens, and increase the number of people able to immigrate to this country by backdoor provisions.
We trust that this Subcommittee will withhold its approval of this bill and use its expertise to eliminate any of these harmful provisions if they should be introduced elsewhere.