Protecting Undocumented Victims of Abuse: Does Hope Lie in Legislative History?

This is no requiem, no eulogy for the Violence Against Women Act (VAWA) — especially as it relates to the undocumented, who are among the most marginalized people it is meant to protect. The current government shutdown triggered the expiration of this statute that makes lawful immigration status a reality for undocumented people who have been victims of domestic abuse by US citizens or lawful permanent resident spouses. VAWA also provides protections for victims with lawful immigration status, including shelter space, counseling or legal assistance in obtaining protection orders.

Most recently, the statute was set to expire September 30, 2018, but was extended through December 7, 2018, under a stopgap spending bill. Another congressional stopgap funding measure extended VAWA until December 21, 2018. The tenuous extensions for weeks or days at a time only added to systemic disenfranchisement of domestic violence victims, at a time when even the most basic awareness should have led Congress to extend all VAWA protections permanently and without reservation. Now, the expiration of the statute makes these rights seem merely symbolic.

VAWA provisions creating immigration relief for undocumented victims were first added to the Immigration and Nationality Act (INA) in 1994, when VAWA was passed. Depending on the individual case, VAWA applications are adjudicated either by immigration courts or by US Citizenship and Immigration Services (USCIS). As a result of the government shutdown, immigration courts are closed, except for courts processing detained persons, which means that unless a VAWA applicant is currently in the custody of US Immigration and Customs Enforcement (ICE), the application is not being processed by an immigration court.

USCIS points out in a two-line paragraph on its website that the VAWA provisions incorporated into the INA “are permanent and do not require congressional reauthorization.” USCIS, which is funded largely by filing fees, reassures applicants that most of its operations will continue despite the government shutdown: “The current lapse in annual appropriated funding for the US government does not affect USCIS’s fee-funded activities.” VAWA applications processed by USCIS, however, are exempt from a filing fee. USCIS’s official statement, then, is cold comfort to VAWA applicants, who are implicitly being told that they get what they pay for.

The lapse of VAWA does not erase lines from the INA. It does not suddenly repeal one of the few rights of undocumented victims—to seek lawful status as the battered spouses of US citizens or permanent residents. However, necessary mechanisms for fully enforcing these rights are halted as a result of the government shutdown. The expiration of VAWA and the shutdown, then, turn these rights into legislative statues rather than the live bodies of law that they should be.

From the perspective of an immigration attorney who has represented VAWA applicants before both the courts and USCIS, a state of affairs without a fully empowered VAWA is unfathomable. If there was a collective voice strong enough to pass and reauthorize VAWA in the past, what exactly did it sound like, aside from the text of the statute itself? It’s one thing to be reminded generally that VAWA has been a consistent bipartisan effort. But what exactly does that mean? Some context and solace come, perhaps, from legislative history.

The Congressional Record

During debates on the re-authorization of VAWA in 2000, Sen. Chuck Schumer said poignantly,

Until the law [was enacted in 1994], by and large it had been a dirty little secret that every night hundreds of women showed up at police precincts, battered and bruised … All too often they were told by that law enforcement officer … : Well, this is a domestic matter. Go home and straighten it out with your husband.

Senator Schumer added, “So deep were the traditions ingrained that it was very hard to remove them. In fact, the expression ‘rule of thumb’ comes from the medieval law that said a husband could beat his wife with a stick provided that stick was no wider than his thumb.”

“But, as impressive as the advances were under the original VAWA,” he stated presciently during the 2000 debates, “we still have a long way to go; this horrible activity is ingrained deeply in our society.”

The lapse of VAWA does not suddenly repeal one of the few rights of undocumented victims. However, necessary mechanisms for fully enforcing these rights are halted as a result of the government shutdown.

As the undocumented and their attorneys present applications for relief under VAWA, it becomes clear in many cases that domestic abuse comes not only physically, but also in forms that can variously be described as psychological, emotional and mental. The statute hinges eligibility on having “been battered or … the subject of extreme cruelty,” which can manifest itself in a variety of words and actions. As quoted by the National Immigrant Women’s Advocacy Project, the formal legislative history of the 1994 VAWA showed that the House Judiciary Committee found patterns of psychological abuse and control necessitating legislative action:

Domestic battery problems can become terribly exacerbated in marriages where one spouse is not a citizen, and the non-citizen’s legal status depends on his or her marriage to the abuser. Current law fosters domestic violence in such situations by placing full and complete control of the alien spouse’s ability to gain permanent legal status in the hands of the citizen or lawful permanent resident spouse.

The Immigration and Nationality Act allows but does not require a US citizen or lawful permanent resident to file a relative visa petition on behalf of a beneficiary spouse. A petitioning citizen or lawful permanent resident can also revoke the petition at any time prior to the issuance of permanent or conditional residency to the spouse. As the House Judiciary Committee found, “Consequently, a battered spouse may be deterred from taking action to protect himself or herself, such as filing for a civil protection order, filing criminal charges or calling the police, because of the threat or fear of deportation.” The very existence of VAWA is a recognition of the dangers of leaving a vulnerable population disenfranchised. The failure to reauthorize the statute is a betrayal of this legislative spirit.

More surprising than Sen. Schumer’s words, during the VAWA 2000 congressional debates, Sen. Orrin Hatch introduced into the congressional record a joint managers’ statement showing bipartisan support for re-authorization of VAWA, noting that VAWA was not only intended to protect female victims of domestic abuse:

[I]t was not, and is not, the intent of Congress categorically to exclude men who have suffered domestic abuse or sexual assaults from receiving benefits and services under the Violence Against Women Act. The Act defines such key terms as “domestic violence” and “sexual assault,” which are used to determine eligibility under several of the grant programs … in gender-neutral language.

A cynical interpretation is that the statement is merely another example of GOP members’ minimization of the plight of female victims of violence, in favor of “himpathy.” The clear perversity of diminishing female victims’ experiences does not, however, eviscerate the fact that undocumented men have also been victims of domestic violence, presenting compelling VAWA applications.

In addition, when VAWA was reauthorized in 2013, it was the first time that a federal funding statute explicitly barred discrimination based on actual or perceived gender identity or sexual orientation — as well as race, color, religion, national origin, sex or disability. This gender-neutral leaning toward inclusion and recognition of the varied experiences of victims has seen some recent lapses from certain members of Congress, including from the newly retired Senator Hatch.

In his farewell speech on the Senate floor, Hatch lamented the current legislative “crisis” and implored a return to more collaborative lawmaking. “Regular order is a relic of the past. And compromise — once the guiding credo of this great institution — is now synonymous with surrender.” He added, “We must restore the culture of comity, compromise, and mutual respect that used to exist here.”

The 116th Congress has now come to order with a Democratically-controlled House that passed—on its first day in session—legislation to reopen the government. Amid the challenges ahead for approval by the Senate and the White House, there are at least some hopeful signals, both past and present, that our legislators regret past departures from the unity that brought VAWA into existence. There is some hope that the legislative history of VAWA will be more than just history.