The Violence Against Women Act (VAWA) is one of those unusual laws that includes a sunset, after which it self-destructs. It has been that way since first enacted. Most recently, VAWA sunsetted at the end of last year and has lain dormant since that time, awaiting re-ratification by passage through Congress and signature by the president.
As my colleague David North has noted, the House of Representatives recently voted to restore VAWA into the law (and along the way slipped some gun control legislation into the mix, despite which several Republicans voted in favor of the measure). The Senate hasn't voted yet on its version of the bill, but will likely do so soon. There are several provisions within VAWA that affect the Immigration and Nationality Act (INA), most notably a provision that permits alien spouses to self-petition to obtain green cards if it transpires that they married abusive citizens. Note that I say "spouse" and not "wife" because even though the self-petition provision was a part of the Violence Against Women Act, it applies equally to alien men if they marry an abusive citizen.
The theory behind the law is that aliens should not be obliged to remain shackled through marriage to abusers for fear of losing the chance to gain lawful resident status, so they are permitted to petition for themselves, break free from the grasp of the abuser, and still obtain the coveted green card. It's a fine theory, but flawed in execution because of the way the law is written. It doesn't take deep reflection to recognize that a scheming alien might very well dupe a citizen into marriage, then claim abuse, file a self-petition, and take the citizen for the emotional and financial roller-coaster ride of his or her life. It happens all the time.
I know this factually, not only from my years in the immigration bureaucracy, but also from my experience here at the Center. I and some of my colleagues here at the Center who have written about the self-petitioning process, such as David North, routinely receive anguished correspondence from citizens who find themselves on the back end of a process that they didn't even know was going on. It's worth spelling out for readers that these correspondents who tell their stories come from many different races, ethnic backgrounds, and gender preferences — and no small number of them were also at one time immigrants who assimilated and naturalized, later to marry an alien only to find themselves on the receiving end of abuse by the workings of a system that, ironically, was created to prevent abuse. How did this happen?
The reason is simple: Congress established a Kafkaesque system that permits "abused" spouses to self-petition without the citizens being aware that they have done so. The one-sidedness of such a system is manifest: The citizen never gets a chance to contest that he or she never engaged in abuse and is, in fact, the victim of a fraud being perpetrated against him- or herself, as well as the government writ large (see here and here).
Once the self-petition is approved by an adjudicator from U.S. Citizenship and Immigration Services (USCIS), then the fun starts. The alien is well on her (or his) way to obtaining a green card and can institute any number of civil proceedings to obtain alimony, or half of the citizen's assets in a community property state, even though the alien essentially engaged in a one-way sham marriage to begin with. The intent from day one was to marry and then claim abuse, leave, and file the self-petition. Sadly, the workings of this section of law have become widely known in faraway countries, and that in itself lends to the phenomenon of self-petition fraud.
Worse, the USCIS adjudicator operates under rules that permit, if not outright encourage, accepting as proof nothing more than affidavits filed by the "abused" spouse, despite the obvious self-serving nature of such documents. There need not be any proof of police calls to the house as the result of domestic altercations, no proof in the way of restraining orders, no medical bills for bruising or injuries. In short, the adjudicator is pretty much expected to accept the alien's word even though there are many reasons to believe that the system is being manipulated on a large scale.
I am not suggesting that citizen abusers don't exist; certainly they do. However, the resolution to this is not to place self-petitions under a cloak of invisibility that precludes getting to the truth of the matter, which is where things stand, and it's a shameful place for the status quo to rest.
It's both the time and opportunity for the Senate to fix this egregious imbalance by amending the law to require evidentiary hearings when self-petitions are filed; hearings at which a citizen spouse is asked to appear and provide his or her side of the story. This leaves them free not to show (quite possible if they are indeed abusive), or conversely to appear and testify to the contrary, and at least be given the opportunity to try to preserve their character, reputation, and financial assets, if not their emotional well-being.
If the Senate takes this path, it is in the perfect position to oblige House Democrats to take a reasonable middle course in accepting such a system of fairness and balance, in return for returning VAWA to the statute books.
After all, a foundational notion of justice in our system of jurisprudence is that people accused of maleficent acts, whether in the criminal or civil law context, should be permitted to face their accusers and defend themselves against the accusations levied.
Isn't this the American way?