Reimagining Justice for Immigrant Survivors Through VAWA

Reimagining Justice for Immigrant Survivors Through VAWA

The immigration-related provisions of the Violence Against Women Act (VAWA) hold powerful potential to help us reimagine our understanding of diaspora, integration and discrimination.

Among the various purposes of VAWA is to make lawful immigration status a reality for those who have been victims of domestic abuse by spouses, parents or children who are U.S. citizens or lawful permanent residents. Beyond this, VAWA-based immigration cases help discredit the myth of the miscreant invader — not just because its immigration relief is premised on having been abused, but on having been abused by a U.S. citizen or lawful permanent resident.

VAWA cases are distinct from those involving survivors seeking asylum in the U.S. after domestic abuse committed abroad. Also, in contrast to VAWA cases are “U visa” cases, which can arise from certain instances of domestic abuse, but in which the immigration status of the perpetrator is irrelevant.

VAWA explicitly acknowledges the violence — physical and psychological — that U.S. citizens and lawful permanent residents commit against immigrants. VAWA places an emphasis on abuses in an intimate partner setting but carries an implicit recognition of the potential imbalance of power in mixed-status interactions.

With the incorporation of VAWA’s immigration provisions into the Immigration and Nationality Act (INA), these provisions became permanent and do not require congressional reauthorization — an affirmation of the unceasing urgency of these cases. Of course, one current travesty of VAWA is that its provisions outside of the INA are still awaiting reauthorization, with a bill held up in the Senate after April 2019 passage by the House.

VAWA’s immigration provisions are a conduit for broader conversations about the toxicity of violently wielded American power against non-Americans and about immigration-related reparations. As the Women of Color Network, Inc. points out within the context of domestic abuse, “the threat of deportation can be a powerful and intimidating control scheme.” Some abusers with lawful immigration status “make threats like ‘you will be deported,’ ‘the government will take the children,’ or ‘the children will be given to me.’”

With all of VAWA’s force for the rights of immigrant survivors, it remains striking how little is written about it in the context of immigration. This reticence almost mirrors the silence of immigrants eligible for VAWA-based relief who back away from applying, due to fear.

Carole Levine’s recent article in Nonprofit Quarterly was appropriately titled, “Violence toward Women and Our Immigration Laws: Time to Make Noise.”

Let’s make it a long, slow holler. Let’s support organizations that amplify the voices of immigrant survivors through mental health services and legal services.

As Levine notes, “more and more women have stopped seeking this status as enforcement has tightened and increased.” A study by Catalina Amuedo-Dorantes and Esther Arenas-Arroyo found:

that the reduction in self-petitioning is driven by fear that the self-petitioners may be deported themselves or have their existing status jeopardized in this new era of increased immigration law enforcement. In effect, victims of domestic violence are fearful of speaking up or seeking relief from their abusers; they are condemned to endure their abuse for fear of deportation or detention under increased immigration enforcement activities in the US.

According to the authors, “Changes in official policy reducing the protection from deportation for individuals facing domestic violence, announced in June 2018, can only serve to worsen these outcomes.”

In the event of detention and/or placement in removal proceedings before an immigration court, the possibility arises of eligibility for a type of VAWA-based relief only available in removal proceedings, the “EOIR-42B” application for special rule cancellation of removal. Eligibility needs to be determined on an individual basis in each case, and the idiosyncrasies of specific judges in applying the law can lead to infuriating unpredictability — but the fact remains that the current administration’s policy memos do not repeal statutory provisions establishing immigration relief.

VAWA embraces and embodies legislative intersectionality in ways that make its title somewhat deceptive. VAWA immigration applicants are among the most underserved people in the world, standing at the harrowing intersection of disenfranchisement based on socioeconomics, race, ethnicity, immigration status, sexual orientation and gender status. As I wrote previously for Truthout, 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.

Well before that, during the VAWA 2000 congressional debates, Republican Sen. Orrin Hatch of Utah, of all people, introduced into the congressional record a joint managers’ statement showing bipartisan support for reauthorization 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.

VAWA presents the possibility of a broader conversation on transformative justice. VAWA immigration relief does not explicitly hinge on the victim’s having reported the abuse to the police; this distinguishes VAWA cases from U visa cases, which require law enforcement participation. In some VAWA cases, this raises obvious concerns about impunity for violent abusers, because the VAWA relief for the victim is completely independent of whether any “justice” comes to the perpetrator.

However, the emphasis inherent in VAWA is on the personhood and emergence of the survivor, which makes VAWA a remarkable invitation to imagine transformative justice, a system that focuses on building the lives of survivors rather than on discarding another life into a criminal punishment system rife with its own unjust disparities. Of course, there is something less than sacrosanct in the fact that VAWA sets up this thought experiment in the context of perpetrators who are all U.S. citizens and lawful permanent residents transgressing against others who haven’t reached this elite status as of yet. An added layer of complexity appears in VAWA cases involving abusers who immigrated from abroad before becoming U.S. citizens or permanent residents. What histories of trauma might abusers themselves have lived before inflicting harm? Is it important to ask this question equally in cases of abusers born and raised abroad and in cases of abusers born and raised in the U.S.? In asking the question, do we detract from survivors’ own necessary narratives — or do we invite narratives that are also necessary for addressing past and present abuses, and for preventing future abuses?

One clear shortcoming is that VAWA is slow in practice, though this is due to bureaucratic processing rather than any mandate in the text of the statute itself. According to U.S. Citizenship and Immigration Services, the processing times for two types of VAWA-based cases, “I-360 petitions and “I-751 battered spouse waiver applications,” are 18.5 months to 24 months for the former category, and 22.5 months to 42 months for the latter category. In some cases, the average wait is now three times as long as it was in 2016. The only redeeming feature of the current crisis-level wait times is the possibility that they will outlive the current administration, so that final decisions will come under better leadership.

Legislation, as a human creation, is never perfect. Yet VAWA’s immigration provisions have been a remarkable experiment, inviting American self-reflection on past and continuing failings. VAWA is an opportunity for ideation on a transformative future that recognizes each immigrant survivor as transcending victimhood, finding all of their own power, agency and possibility.