Thursday, April 23, 2015

Intersection of Family Law, Immigration Law, and VAWA's Limitations

By Andrea Bruss, guest blogger and law student, University of San Francisco:

Whether it’s the abduction of hundreds of girls in Nigeria by Boko Haram, the rape of a woman on a bus in New Dheli, or Hillary Clinton speaking about empowering women, violence against women and girls across the world is garnering national headlines. This new elevated media consciousness about widespread violence against women and girls across the world is not just because of the sheer sensationalism of the acts, but rather is a part of an overarching narrative and international consciousness that is beginning to recognize the severity of this issue. Violence against women and girls is a pervasive problem occurring in rich and poor nations. International economic and human rights actors are starting to recognize violence against women and girls and the systematic subjugation of women has economic consequences in a global market where countries are rapidly trying to develop and compete. While this growing consciousness is positive, it is not enough.

Locally in the Bay Area this issue was highlighted most recently with the case of Nan-Hui Jo, a Korean immigrant who suffered years of physical and emotional abuse from her citizen partner. Fearing for her life she returned to Korea with the couple’s young daughter only to be arrested and prosecuted for child abduction when she returned and thrust into deportation proceedings. The coordination between the values and principals of family law and immigration law are completely at odds in cases like Nan-Hui’s. In family court, the judge is required to consider what is in the best interest of the child in determining custody and visitation rights of parents. Generally, courts find that preserving contact and a relationship with a parent is critical to a child’s emotional development especially when that parent has been the primary care giver and especially when children are young. Family courts have allowed visitation with parents who have admittedly abused their children in an effort to preserve a connection between them. Child development specialists and scientific studies have demonstrated the loss of a parent is a severe trauma for children that impacts their emotional and physical development. Children don’t necessarily differentiate between whether that parent was a good loving parent or an abusive one, but they can strongly experience feelings of abandonment if a parent leaves or doesn’t have contact with them. If California courts have allowed visitation between a parent who has sexually molested their child how can they prohibit a loving mother like Nan-Hui from seeing her daughter? The answer is simple – she is an immigrant facing deportation. Immigration law in many ways is a system that operates outside many of our societies accepted legal principals.

Unfortunately stories like Nan-Hui’s are not unique. An estimated 59% of married immigrant women experience physical or sexual abuse, which is higher than non-immigrant married women. Additionally, an estimated 51% of homicide victims who were murdered by their partner are foreign born. Immigrant women who are victims of domestic violence often feel isolated and fear that they cannot seek help because of their immigration status. Additionally, the abusers often use their partner’s immigrant status as a tool of control to prevent them from seeking help or leaving the abusive relationship. In Nan-Hui’s case she was previously married to a U.S. citizen but was not able to obtain permeant legal status or citizenship through that marriage because her husband, who was prosecuted and jailed for domestic violence, did not complete her immigration application. Because Nan-Hui was not married to her most recent partner and father of her daughter she couldn’t obtain legal status through him. Additionally, while she has a U visa application pending she is still facing removal proceedings. While Nan-Hui could have arguably persued a U or V visa earlier after her first marriage, these processes can be expensive, complicated and discouraging for many victims to peruse without legal and community support.

While laws like the Violence Against Women Act or “VAWA” have been an advancement they have not gone far enough. The do not provide the wrap around services victims of domestic violence who are in the immigration detention system need to obtain justice and fair representation; VAWA does not provide enough legal and support services to victims who may qualify for a U or V visa. Women in Nan-Hui’s situation not only need representation for removal proceedings but also counseling, financial support and support with custody issues. If Nan-Hui had the support she needed after her first experience with an abusive husband she may have been able to obtain lawful status and been able to stay in the U.S. with her daughter. Additionally, laws like VAWA don’t address the incredible discretion that the government and immigration judges have in removal decisions. Furthermore, when women like Nan-Hui do reach out to law enforcement for help they are often dismissed and ignored, making it difficult for them to substantiate they have been a victim of severe abuse, which is a requirement of obtaining a U visa and further marginalizes them. Nan-Hui called the police twice over domestic violence issues with her partner and neither one of those incidents resulted in an arrest or charges. While Nan-Hiu could have persued a temporary restraining order, for someone with limited English skills, limited resources, and who is a repeat victim of domestic violence that process can be challenging and for some insurmountable.

Federal laws like VAWA need to be complemented with mandatory local enforcement and response to domestic violence issues, increased education to immigrants about what their options are if they are victims of domestic violence, and real resources to help them overcome the economic dependence and social isolation they have on their abuser.

For Nan-Hui the consequences of her decision to protect herself and her daughter are severe. She faces deportation and a permanent loss of her relationship with her daughter whom she has not been permitted to see for the last eight months. For her partner, the abuser, his consequences are non-existent. He faces no criminal charges and has sole custody of their daughter. Nan-Hui is scheduled to be sentenced for her child abduction conviction next week. Unfortunately, many are not hopeful that the outcome will be anything but a blow to Nan-Hui and her daughter, and serve as another example of how our immigration, criminal and family legal systems do not serve the interests of public safety, victim or children. When this is the outcome for victims of domestic violence in our country our policies are not working.

bh

https://lawprofessors.typepad.com/immigration/2015/04/intersection-of-family-law-immigration-law-and-vawas-limitations.html

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