Summary: Statement of Jacqueline Rishty

Catholic Charities Immigration Legal Services of Maryland

on behalf of Catholic Charities USA

Catholic Charities USA is the nation's largest social service provider. Our 1400 local agencies provide a wide range of human services. Many of Catholic Charities USA's local agencies assist battered immigrant women and see the problems these women face every day. While Catholic Charities USA and our local agencies are strong supporters of marriage and family, the Catholic Church does not counsel victims of domestic violence to remain in abusive situations. We strongly urge the Committee to support H.R. 3083 to ensure protection of the rights of battered immigrant women.

We fully support H.R 3083 in its entirety but would like to highlight five issues:

• Adjustment of Status - H.R. 3083 would allow battered immigrant women who obtain an approved self-petition to also obtain a green card without leaving the U.S. This would allow a battered immigrant woman to maintain the protections of the U.S. judicial system while proceeding through adjustment of status proceedings.
 
• Self-Petitions - H.R. 3083 would allow battered immigrant women to self-petitioner for legal status even if their abusers divorce them, die, or are deported.

Catholic Charities USA also supports H.R. 3083's provision to allow women and children to file self-petitions and adjust their status to legal permanent residents while remaining in the U.S.

• Cancellation of Removal - H.R. 3083 would consider a battered immigrant's total physical time in the U.S. when evaluating her access to cancellation of removal proceedings. In addition, we support the elimination of the cap on the number of green cards available under cancellation of removal proceedings for battered immigrants.


• Waivers of Inadmissibility and Bars on Re-entry - H.R. 3083 would provide battered immigrant women meaningful access to waivers of inadmissibility and bars on reentry. We support the provisions in H.R. 3083 which waive inadmissibility and deportability requirements for battered immigrant women if the abuse was the reason for the battered immigrant woman's action. Further, we support the provisions which provide meaningful exceptions by allowing battered immigrant women to demonstrate extreme hardship to their children if not allowed to remain or enter the U.S.

• Access to Legal Services - H.R. 3083 would allow battered immigrant women to obtain legal assistance in VAWA immigration cases from organizations funded by VAWA grants or through the National Legal Services Corporation. H.R. 3083 would allow legal services organizations to provide legal services, with non-federal funds, to anyone covered by a State's civil protection order statute.

Statement of Jacqueline Rishty

Catholic Charities Immigration Legal Services

on behalf of Catholic Charities USA

Thursday, July 20, 2000

House Subcommittee on Immigration and Claims

Committee on the Judiciary

Hearing to Consider H.R. 3083,

"Battered Immigrant Women Protection Act of 1999"

My name is Jacqueline Rishty and I am a senior attorney with Catholic Charities Immigration Legal Services in Maryland. I am pleased to testify today on behalf of Catholic Charities USA.

Catholic Charities USA is the nation's largest social service provider. Our 1400 local agencies provide a wide range of human services. Many of Catholic Charities USA's local agencies assist battered immigrant women and see the problems these women face every day. Many of these women are placed in the untenable situation of choosing to remain in a violent relationship to protect their immigration status, or leaving the relationship and having to leave the United States as well.

While Catholic Charities USA and our local agencies are strong supporters of marriage and family, the Catholic Church does not counsel victims of domestic violence to remain in abusive situations. Battered women should not have to choose between remaining in a violent marriage to a citizen or lawful permanent resident who could provide them legal immigration status, or leaving that abusive relationship and risk deportation. Thus, we strongly urge the Committee to support H.R. 3083 to ensure protection of the rights of battered immigrant women. Our local agencies, who see the problems these women face every day, have conveyed to us how important this bill is.

We applaud the work of Chairman Smith and Ranking Member Jackson-Lee in convening this hearing. We believe H.R 3083 would correct many of the grievous injustices in the immigration system that bar battered immigrant women from the relief granted them in 1994 by the Violence Against Women Act (VAWA).

1. Adjustment of Status

Under prior section 245(i) of the Immigration and Nationality Act, a battered immigrant woman who was not a legal permanent resident could adjust her status to legal permanent resident and obtain a green card without leaving the United States. She could file a self-petition and if INS granted it, she would be automatically granted a green card. Since expiration of section 245(i), immigrant women who are married to U.S. citizens or lawful permanent residents may still file self-petitions to change their status to that of lawful permanent residents. But if an immigrant is "out-of-status" (e.g. overstaying a visa) for more than six months, even if the Immigration and Naturalization Service (INS) approves their self-petitions, they must leave the U.S. and return to their country of origin to obtain their green cards (unless they are a spouse or child of a U.S. citizen).

The expiration of this provision has created danger and extreme hardship for many battered immigrant women and children. These women lose the protection provided by civil protection orders when they travel abroad to obtain their green cards, even though their abusers can freely travel to follow them. Many of these women are forced to leave their children behind with caretakers who may not be able to adequately protect the children from the abuser. Requiring the battered immigrant to leave the country also provides the abuser leverage to convince a court that the battered immigrant has abandoned the children and that custody should be awarded to him. Moreover, if an untrained consular official chooses not to honor the INS' approval of the self-petition, and instead denies a battered immigrant woman a green card, she has no venue for appealing and can not return to the U.S. and her children.

Faced with such choices, many battered immigrant women may choose to stay with their abusers to protect their children rather than seek a green card and leave the country. These women make that choice despite the fact that obtaining a green card, and, later, citizenship, could allow them and their children to escape ongoing violence.

For example, a Mexican client of Catholic Charities in Florida told a caseworker about an incident after she separated from her husband because he beat her. She obtained a protection order but said her husband came to see her despite the order. At that time, her husband said that if she did not comply with his requests for oral sex, he was going to call the immigration office and have her application for legal status canceled. He also threatened that he had what he needed to "beat the crap" out of her and that if she returned to Mexico he would send someone to kill her and her two sons. The woman feared returning to Mexico because the court system does not offer the same protections as in the U.S. and her husband's entire family lives in Mexico. She had to choose between continuing with her application for legal status, which would require her to go to Mexico to obtain a green card, and withdrawing her application because of fear of retribution.

Catholic Charities USA thus supports H.R. 3083's provision to allow women and children to file self-petitions and adjust their status to legal permanent residents while remaining in the U.S. This was the approach originally contemplated when VAWA became law in 1994, and would be restored by H.R. 3083.

• Self-Petitions and Changes to the Immigration Status of the Abuser

a. Continuation of Self-Petitions

Catholic Charities USA also supports the provisions in H.R. 3083 which would allow a battered immigrant woman's self-petition to be filed and continue even if the abuser's immigration status changes or the abuser divorces the self-petitioner.

Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress made domestic violence a deportable crime. If a battered immigrant woman

brings charges of abuse against her legal permanent resident spouse, the spouse may thus be subject to deportation. However, if the spouse is deported before the battered immigrant learns about self-petitioning, has filed the self-petition and has had the self-petition approved by INS, the battered immigrant woman's self-petition becomes void because her ability to obtain relief is directly linked to her abuser's immigration status.

Given the structure of current law, abusers have the upper hand in a relationship in which the battered immigrant woman is dependent on the abuser for her legal status in the U.S. Many battered immigrant women delay or choose not to report abuse because they do not want to jeopardize their self-petitions.

In addition, under current law, self-petitions are only available to battered immigrant women who are still married to their abusers at the time of filing. Abusers can thus leverage current law to continue their abusive relationships. This rule is particularly problematic. For example, an abuser who knows his spouse fears deportation proceedings may threaten divorce as a means of forcing the battered immigrant woman to stay in the abusive relationship or may institute divorce proceedings to cut off the battered immigrant woman's ability to self-petition. In addition, an abuser who is not a U.S. citizen may taunt his spouse that she can not call the police during or after physical abuse because the abuser's arrest and conviction can lead to his deportation and jeopardize her immigration status. To sever some of the control U.S. citizen and lawful permanent resident spouses and parents continue to exert over the lives and immigration status of their spouses and children even after VAWA, battered immigrant women need to have the ability to file a VAWA self-petition, for at least a limited time, following divorce, the abuser's loss of status or death.

These are not speculative concerns. Many of Catholic Charities' local agencies have directly seen the impact of the abuser's power in these situations. One client of Catholic Charities in Arizona said that her husband routinely reminded her that she had to accept whatever he did because her legal status was dependent on him. Another client, a Russian mail-order bride who received assistance from Catholic Charities in Virginia, said her husband constantly threatened her because she did not have a green card and he could institute deportation proceedings against her. Another Russian client in Florida said her husband threatened deportation if she did not do as he said.

We therefore strongly support H.R. 3083's provision to allow the self-petition to be evaluated regardless of the abuser's immigration status. H.R. 3083 would allow a battered immigrant woman up to two years to file a self-petition after the death, deportation or loss of citizenship of her abuser. H.R 3083 would also allow a self-petition to remain valid even if her spouse is deported due to domestic violence.

These provisions would not be anomalous in immigration law. An example of an analogous provision is section 204(a)(1)(A)(ii) of the INA which provides widows two years from the time of their spouse's death to file a self-petition. We believe that battered immigrant women should have a similar time frame if their spouse divorces them, dies, or is deported.

b. Extreme Hardship

Under current law, for a self-petition to adjust status to be approved, a battered immigrant woman must not only demonstrate a valid marriage to a legal permanent resident or citizen, good moral character, and evidence of battering or extreme cruelty but also demonstrate that denial of the petition would cause "extreme hardship" to herself or her children if the self-petition is denied and she would have to leave the U.S.

We have discovered that, in practice, this additional requirement creates a high burden of proof which is often unsurmountable without legal assistance. For many battered immigrant women such legal assistance is unavailable or unaffordable. The extreme hardship requirement results in the denial of self-petitions for many battered immigrants who file pro se applications with INS and who can prove the other requirements of a self-petition to INS' satisfaction - a valid marriage to a U.S. citizen or lawful permanent resident; battering or extreme cruelty existed in the marriage; and good moral character. Proving all of this evidence in a self-petition should be deemed sufficient. The safety of battered immigrant women and their children, and the ability to prosecute abusers for criminal acts committed against battered immigrant women and/or their children, will be enhanced with elimination of the extreme hardship requirement.

• Cancellation of Removal

a. Calculation of Time in the U.S.

Catholic Charities USA supports changing the accrual method of counting the time a battered immigrant woman is in the United States from current law to the provision originally included in the Violence Against Women Act of 1994.

In addition to offering battered immigrant women and children the protection of self-petitioning, VAWA also provided battered immigrants who had been physically present in the United States for longer than 3 years with a defense against deportation or removal -- regardless of whether the battered immigrant woman had filed a self-petition. This provision provided a much needed remedy for battered immigrants whose husbands divorced them before they could file their self-petition or whose husbands placed them in deportation proceedings. In addition, it assisted many mothers who sought to remain in the U.S. to protect their children from an abusive father or step-father. If the mothers were deported, the children may have had to continue residing with their abusive father or step-father.

Under VAWA, this option was available to any woman who had been residing in the U.S. for at least three years, regardless of whether INS had instituted deportation proceedings. The woman would still have to demonstrate "good moral character," prove that she has been subjected to battering or extreme cruelty by her U.S. citizen or lawful permanent resident spouse or former spouse, and prove that deportation would cause extreme hardship to herself or her children.

IIRIRA, however, amended the law to provide that once INS begins deportation proceedings, the accumulation of the 3 years necessary to verify cancellation of removal stops. This has removed the effectiveness of the provision for many battered immigrant women. Since an abuser may turn his spouse in to INS for deportation or threaten harm if she attends the deportation hearing, the battered immigrant woman may be unable to defend against the deportation action. This is even more egregious when an abuser does not allow a battered immigrant access to her mail so she never receives notice that she is subject to a deportation hearing. Since the abusers can initiate deportation proceedings, they may purposely start proceedings right before a battered immigrant meets the three year requirement, thus foreclosing her access to cancellation of removal proceedings.

We support the provision originally included in VAWA, and now included in H.R. 3083, which specified the method of counting a battered immigrant's time in the U.S. for purposes of cancellation of removal. That original provision does not stop the clock when deportation proceedings are initiated but rather counts the total time a battered immigrant is physically present in the U.S. For example, assume a battered immigrant woman has resided in the U.S. for 2 ½ years. Her spouse then notifies INS of his spouse's unlawful presence in the U.S. (which was related to the abuse because he refused to allow her to reapply for a visa) and INS undertakes deportation proceedings. If the deportation proceedings take eight months (not unusual for INS proceedings), current law would not allow the battered immigrant woman to apply for cancellation of removal even though her total time in the U.S. is over three years (2 ½ years prior to initiation of proceedings + 8 months after initiation = 3 years, 2 months). The original provision in VAWA would allow her access to cancellation of removal because her total time in the U.S. is over 3 years. This approach was crafted with the goal of offering protection to a broader group of battered immigrants.

In addition, the original provision furthers the aims of the criminal justice system. In some situations, abusers institute deportation proceedings against battered immigrants to prevent their participation in criminal proceedings. The provision was based on an understanding that for every battered immigrant who could not attain relief under cancellation of removal, there often was a U.S. citizen or lawful permanent resident abuser who could not be effectively prosecuted for abuse inflicted on the battered immigrant. Restoring the calculation of the three year time period to physical presence would allow battered immigrant women to access cancellation of removal procedures as intended by VAWA.

b. Removing the Cap on Green Cards Issued through Cancellation of Removal

IIRIRA also placed a cap on the number of cancellation of removal procedures INS could approve -- whether for VAWA or non-VAWA cases. The current limit is 4,000. We believe battered immigrant women should have access to cancellation of removal proceedings without a cap and without a link to non-VAWA cases.

Under IIRIRA, "suspensions of deportation" became "cancellation of removal." There was a yearly cap of 4,000 on the number of suspensions of deportation and cancellations of removal INS could grant. Under NACARA (the Nicaraguan and Central American Relief Act), Congress exempted VAWA suspension of deportation applicants from the 4,000 cap. (This exemption applied to any VAWA applicant who had received notice from INS of the initiation of deportation proceedings before April 1, 1997.) The provisions in H.R. 3083 would lift the cap on cancellations of removal, providing the same exemption as Congress enacted in NACARA..

• Waivers of Inadmissability and Bars on Re-Entry For Otherwise VAWA Eligible Battered Immigrants

Catholic Charities USA also supports developing a meaningful waiver of certain inadmissibility and deportation grounds for battered immigrant women who can demonstrate that a connection exists between their inadmissibility or deportability grounds and the abuse they have suffered.

With the passage of IIRIRA, Congress imposed a variety of new inadmissability and deportability grounds that reduced the access battered immigrants previously had to VAWA's protections. These included:

• a bar to re-entry for applicants who were lawfully admitted to the U.S. but "out-of-status" for more than six months (3 year bar) or more than one year (ten year bar) - even if the applicant could demonstrate extreme hardship to a child;

• a bar to re-entry for applicants who entered the United States illegally on more than one occasion - even if a battered immigrant's departure or reentry to the U.S, was related to the abuse;

• a bar to re-entry for applicants who had been previously deported from the United States -- even if the deportation, the reentry and/or the attempt to reenter the United States was connected to the abuse;



• deeming applicants inadmissible when they have been convicted of certain crimes -- even if a battered immigrant woman acted in self-defense, under duress from the abuser, or when the crime they plead guilty to was connected to the abuse or being able to survive the abuse;


• deporting victims of domestic violence who were arrested for, plead guilty to or were convicted - even if, as noted above, they acted in self-defense, under duress or if they were wrongly convicted of violation of a protection order issued to protect them.


• deeming applicants inadmissible if they use fraud or willful misrepresentation of a material fact to obtain admission into the United States -- even if the misrepresentation was connected to the abuse or being able to survive the abuse.

a. Bars on Reentry

In IIRIRA, Congress enacted a number of new bars on reentry. Any immigrant who entered the U.S. illegally is inadmissible. Immigrants who remain in the U.S. "out-of-status" (e.g. with an expired visa) for more than six months have to leave the U.S. to apply to become legal permanent residents (unless they are a spouse or child of a U.S. citizen).

The situations that cause a battered immigrant woman to be subject to a bar on reentry vary. Some battered immigrant women, especially those who live near the Mexican or Canadian borders, often leave the U.S. either because their abusers force them to leave or they flee to escape abuse and/or heal from injuries. The abuser may stalk or threaten the battered immigrant and force her to re-enter the U.S. In some of these instances, the battered immigrant may have been previously deported and either her deportation, her attempt to reenter, or her application to reenter may have been related to the abuse. In these situations, the battered immigrant women will not be able to reenter directly as a result of the abuse inflicted by their U.S. citizen and lawful permanent resident spouses. Battered immigrant women and children should not be subject to these bars since the effect of doing so is to let the abusers of immigrant spouses go free.

One specific provision of IIRIRA imposes a three year bar on reentry for any immigrant who has been out-of-status for more than six months, and a ten year bar on reentry for anyone out-of-status for more than one year. A waiver to this inadmissibility does exist. To be eligible for the exemption, however, an individual must show extreme hardship to the citizen or legal permanent resident spouse or parent of the applicant. For example, if an individual is subject to the 3 year bar (because she was out-of-status for more than six months and not married to a U.S. citizen) but demonstrates that her spouse has a severe disability and would be unable to take care of his needs without assistance from the spouse, INS could determine the spouse is eligible for an exemption based on extreme hardship. But if a battered immigrant woman demonstrated that her citizen children would be subject to extreme hardship if she were not allowed to return because they would have to remain with their abusive father, she would not be eligible since the exception is limited to extreme hardship to her spouse or parent.

Catholic Charities USA supports the provisions in H.R. 3083 which would allow the Attorney General to waive the bar for humanitarian purposes, to assure family unity, or if there is a connection between the grounds for inadmissibility and the abuse.

b. Bars Related to Misrepresentation

The issue of an exemption that does not provide practical relief also exists with misrepresentation. Under current law, a battered immigrant woman may only receive a waiver of inadmissibility for misrepresentation if the legal permanent resident or citizen spouse of the immigrant subject to the bar would suffer extreme hardship. As stated above, it would be unlikely that a battered immigrant would choose to demonstrate extreme hardship to her abuser since that would presumably require her to return to the abuser to mitigate his extreme hardship.

Current law does not allow consideration of whether the bar might cause extreme hardship to the battered immigrant or her children (who often are U.S. citizens and remain in the U.S.). Battered immigrants should be afforded the same access to waivers as they would have had if their spouse was not an abuser.

We support the provisions in H.R. 3083 which would allow battered immigrant women to obtain a waiver for misrepresentation by demonstrating extreme hardship to their citizen or legal permanent resident child or parent.

c. Waiver of Deportation for Criminal Convictions

Finally, IIRIRA imposed many changes in admissibility and deportation grounds that have significantly heightened danger for battered immigrant women. Some battered immigrant women become involved as defendants in criminal prosecutions. This happens for a number of reasons. In many instances their inability to speak English fluently can result in their arrests for domestic violence either together with or instead of the abuser because police officials do not obtain an interpreter and listen to only the spouse's version of the incident. One example involves a Filipino immigrant, a client of Catholic Charities in Hawaii. The woman's husband verbally and physically abused her. Twice when she and her husband had a fight, her husband, a lawyer, made it appear to the police that the woman abused him and showed the police bruises and scratches on his arm which he, in fact, willingly inflicted on himself. After both incidents, the woman was arrested and put in jail. The husband ultimately dropped the charges and the woman eventually separated from him.

But if the woman had been convicted, or accepted a plea agreement, she could have then faced deportation. Battered immigrants who are arrested often accept plea offers instead of contesting the case because judges and lawyers do not understand or inform them of the immigration consequences of such pleas. The battered immigrant woman's primary focus is often to do what she can to be released from jail because there is no safe person to care for her children. In another case, a battered immigrant shoplifted baby food to feed her starving children once she escaped from her abuser. Even if she received no jail time but a one year suspended sentence for a $15 crime, she could face deportation. Under current law, battered immigrant self-petitioners and all battered non-citizens could be placed in deportation proceedings with no possible remedy. These harsh consequences on battered immigrants should be remedied by allowing the INS and immigration judges to waive inadmissibility and deportation grounds in cases of battered immigrants where the crime or inadmissable act was connected to the abuse.

d. Conclusion

The rules on inadmissibility and deportability which were enacted in IIRIRA should not preclude a battered immigrant woman from residing in the United States or shutting her and her children off from all access to legal remedies, including protection for herself and her children through the courts, custody decrees, and law enforcement. Depending on her country of origin, she may not have judicial protection and may herself be placed in danger either from the abuser or others who believe her allegations of abuse bring disgrace on her and/or her family. VAWA eligible battered immigrants abused by citizens and lawful permanent residents need and deserve our protection. Waivers should be available for acts that are connected to the history of abuse or their attempts to end the abuse and similarly battered non-citizens should be able to obtain waivers of deportation grounds.

We support the provisions in H.R. 3083 which waive inadmissibility and deportability requirements for battered immigrant women if the abuse was the reason for the battered immigrant woman's action. Further, we support the provisions which provide meaningful exceptions by allowing battered immigrant women to demonstrate extreme hardship to their children if not allowed to remain or enter the U.S.

• Access to Legal Services

The legislation increases access to funding for legal service organizations representing battered immigrants. For example, H.R. 3083 clarifies that VAWA civil legal assistance funds can be used to increase direct legal services to immigrant battered women, including in VAWA immigration cases. It would also allow legal services organizations to provide legal assistance to battered immigrant women in VAWA immigration cases.

Battered women often need access to legal services to obtain legal relief to help them halt the abuse and create a new home for their children apart from the abuser. This legal assistance most often includes seeking a protection order, custody order, child support, assistance in immigration matters or sometimes help obtaining legal separation or a divorce. Under current law, organizations funded through the Legal Services Corporation may provide services to immigrants with non-federal funds only in very limited circumstances. These circumstances exist, however, only when the person committing the domestic violence is a spouse or parent. H.R. 3083 expands these circumstances to include any individual in a relationship accorded redress under a State protection order statute.

• Conclusion

Catholic Charities USA commends this subcommittee for convening this hearing to address the needs of battered immigrant women. We believe protections in H.R. 3083 would represent justice and compassion for battered immigrant women while maintaining the essential principles of our immigration system. We urge you to act expeditiously on H.R 3083 to address the issues that I have highlighted and other issues that interfere with the ability of battered immigrant women and children to obtain protection from ongoing abuse and undermine our ability to hold abusers accountable. We look forward to working with you to ensure these provisions become law in the remaining days of this Congress.