AND CLAIMS SUBCOMMITTEE
Thursday, July 20, 2000
This testimony identifies serious problems in the 'Battered Immigrant Women
Protection Act' (H.R.3083) These problems far outweigh any possible
benefits that might be gained by adoption of this legislation.
Mr. Chairman, Madam Ranking Minority Member and members of the Subcommittee, I am Duke Austin, a retired career employee of the Immigration and Naturalization Service. Since my retirement in 1995, I have continued to follow closely enforcement and policy issues related to immigration.
I accepted to share with you my concerns about provisions in H.R.3083 because I am convinced that, if enacted, this bill would have long-term harmful effects for our country. My concern is not with the concept of offering protection to aliens against physical or psychological abuse. That is an objective that I endorse. However, H.R.3083 goes far beyond that objective. It also misses an important point. If spousal abuse is going to be diminished, it must be faced squarely and the perpetrators must be seen to pay a penalty for their actions. When it is widely understood that spousal abuse will cost the perpetrators heavily, including loss of immigration status in this country, there will be a much greater deterrence against future spousal abuse.
This bill takes the approach that spousal abuse is a no-fault offense and does not require the abuse to be investigated and punished. Instead, it encourages those who are abused to opt out of the abusive relationship by granting them immigration status to which they otherwise may not be entitled. In this process, a vast loophole of potential fraud and abuse is opened for illegal immigrants who seek to obtain legal residence.
There are three main questions which should be focused on in considering this legislation. Is the legislation necessary? If there is a need, does the legislation meet that need? If the legislation is needed and offers appropriate remedies, does it go beyond that objective and create new problems?
My review of this bill has led me to the conclusion that by and large it is not needed. Secondly, even if it were needed, the approach taken in this bill would not achieve the long-tem objective of confronting and discouraging spousal abuse. Finally, this bill contains a Pandora's Box of unrelated measures that will be inimical to immigration law enforcement if adopted. I will explain each of these conclusions briefly.
H.R.3083 IS NOT NEEDED
There is no doubt that immigrant women, especially illegal alien women are vulnerable to spousal abuse. Part of the problem is that they and the person to whom they are married or in a relationship with are from societies in which spousal abuse is tolerated or not considered abuse. Another problem is distrust of police and limitations on effectively using legal protections that are available because of language or cultural barriers. To attempt to address this issue, a series of laws have been adopted, beginning in 1990. The process of becoming or remaining a legal resident in the United States that depends on a family relationship has been altered to permit the victim of spousal abuse to terminate the relationship without losing the opportunity to remain in the United States legally.
Those measures were designed to remove the power of the abusive spouse to threaten loss of immigration status as a means to subjugate the spouse. We are told now that those provisions are not adequate, because they are not sufficiently understood or sufficiently automatic to end the problem. However, there will continue to be a problem as long as there is a constant flow of newcomers who are unfamiliar with U.S. laws and who are especially vulnerable because they are in the country illegally.
The Violence Against Women Act of 1994 (VAWA) expanded the scope of protections. Self-petitioning was provided for spouses and children of U.S. citizens and legal permanent residents (LPRs). Relief was provided against deportation of illegal aliens who were battered spouses. Other provisions of VAWA that were specifically designed to address the special legal situation of illegal immigrants are not yet fully in effect because the INS has not yet issued regulations to facilitate their implementation. It makes little sense to be adopting new regulations when existing ones that are already on the books lie dormant.
Other issues addressed in H.R.3038 as problem areas are not real problems. For example, the provisions protecting children against losing immigration benefits by aging out of their status as a child, have been addressed by INS policy decisions. Similarly, in practice, the INS is so overwhelmed with the volume of aliens currently in the country and the scope of the services required by legal immigrants and the law enforcement challenge presented by the enormous and growing number of illegal immigrants, that no effort is expended on identifying abused spouse illegal immigrants for deportation.
Thus, a realistic appraisal of the current situation is that adequate protections exist in the law and in INS procedures and practice to protect abused spouses and their children.
THE APPROACH TAKEN IN THIS BILL WOULD NOT ACHIEVE THE LONG-TERM OBJECTIVE OF CONFRONTING AND DISCOURAGING SPOUSAL ABUSE
Even if the protections referred to above did not exist and needed to be enacted, the approach taken in this bill is off target. Our legal system is predicated on deterrence by exposing illegal activity and punishing it. A demonstration effect of the consequences for law breaking is fundamental to effective disincentives. That is not the approach taken by this bill.
There are no provisions in this bill that require abused spouses or their children to take legal action against their abuser. On the other hand, there are provisions that discourage resort to criminal or civil law by an abused woman. In those cases where the abuser is an immigrant, legal or illegal, the law provides that the person is no longer welcome in our society and should be removed. That is a tangible consequence, which if more often practiced and better understood would constitute a major protection to vulnerable women. This legislation does not pursue that objective, and, in fact, discourages it by treating spousal abuse as a no-fault offense.
UNRELATED MEASURES INIMICAL TO IMMIGRATION LAW ENFORCEMENT
Our country currently is confronting a massive problem of illegal entry, alien smuggling, visa overstays and attendant problems of demands for uncompensated emergency medical services, incarceration expenses, schools crowded with non-English speaking children, over-taxed social service programs, and uninsured motorists to identify only some of the issues that were addressed by the U.S. Commission on Immigration Reform and have been the subject of legal reform efforts by this Committee.
I trust that your approach to this legislation will include a critical focus on how it will further or hinder efforts to restore control over our nation's borders. It is my understanding that the vast majority of the aliens for whom the VAWA protections were adopted are illegal aliens. While spousal abuse should not be condoned in any situation, we should not allow our concerns about the victims of past abuse to override our insistence on respect for our immigration law once the threat of on-going abuse has been removed.
My approach to this issue was best summarized by the honorable Barbara Jordan, Chairman of the U.S. Commission on Immigration Reform, when she testified before this Subcommittee on February 24, 1995. She reminded us that a fundamental component of our immigration policy must be that "…those who should not be here will be required to leave." She underscored that point when she added "...for the system to be credible, people actually have to be deported at the end of the process."
The approach in H.R.3038 runs counter to that fundamental principal. Instead, the legislation prevents actions designed to remove persons who are in illegal status or have committed acts that should lead to their removal. It also confers legal resident status on illegal aliens who have been abused, even though that status is unnecessary to their further protection against abuse. The legislation is designed as if its primary objective were achieving legal residence status for illegal aliens, bypassing all of the provisions in the law that would deny that recourse.
The problem with that approach is not just that it undermines respect for our immigration law, but that it opens up numerous broad loopholes in the immigration law that will invite abuse by illegal aliens and alien smugglers in seeking a new route to undermine our system of legal immigration.
There are so many of these loopholes, that I will not try to identify all of them, and I know that your staff has a better capability to do so than I can offer. Nevertheless, let me offer a few examples of my concerns.
The evidentiary standards provided for in this bill submission of an affidavit is so amorphous that it is virtually impossible to administer by the INS and, therefore, becomes an attractive opportunity for fraud.
Retroactivity provisions incorporated in the bill open an enormous body of litigation that will further undermine current enforcement capabilities.
Time-clock provisions are introduced in the bill that will allow illegal aliens to continue to accrue residence status in this country (albeit illegal residence) as part of a process to gain status for claiming an immigration benefit. This will have the perverse effect of encouraging legal delaying tactics to take advantage of the ticking clock.
Removal of the filing deadlines and permitting previously denied applications to be refilled will increase INS backlogs. Fees would be waived by the bill, so the INS would have to address the workload increase without any additional resources.
The bill resuscitates Section 245(i) in the INA. This is a provision that was removed from the law because of objections to the idea of allowing illegal aliens to become legal residents without leaving the country for U.S. Conuslar screening. The bill attempts to recreate this provision as a backdoor route to permanent residence.
An entirely new term in federal law, "intended spouse," not only undermines the marriage relationship as a provision in immigration law for derivative immigration status, but it also invites abuse. If an illegal alien marries an already married U.S. citizen, the alien can gain legal residence status by alleging that she did not know she had entered a bigamous relationship. It is easy to see how tempting this would become as a way to gain legal residence, especially if there was no adversarial requirement that the alien take legal action against the bigamist.
The bill also provides an array of relief for persons who seek VAWA benefits that are not available to other immigrants. These include aging-out benefits that are not even available to children of asylum beneficiaries. They also include welfare benefits. It is easy to see how these benefits would attract fraud.
Other collateral provisions open doors to persons who have never set foot in the United States to self-petition for admission and legal residence on the basis of an abusive relationship that occurred abroad. The irony of this provision is that it would allow an abused spouse the opportunity to follow to join the abuser in the United States. If the objective of the drafters of this bill were truly to protect the spouse against future abuse, they would never have included such a provision.
The bill goes far beyond offering protections to spouses against ongoing abuse. It furnishes them fast-track ability to gain legal residence and to confer immigration benefits on other family members. The bill vastly increases the population of potential VAWA alien beneficiaries to include parents and adult children and their offspring.
Although I have been able to touch only briefly on some of my major concerns with H.R.3038, I trust that you will understand the problems that would arise if it were to be adopted in its current form. In fact, my conclusion is that the bill contains so many undesirable problem areas, that it would be extremely harmful for the nation in the long-term if it were adopted.
Please keep in mind that my opposition to this bill is not because I am unsympathetic to the problem of spousal abuse. However, the fact is that substantial protections for aliens against spousal abuse already exist in the law and in practice. Even more fundamental, in my view, is that this bill is not designed to achieve the long-tem objective of confronting and discouraging spousal abuse.
Thank you for the opportunity to testify, and I welcome the opportunity to answer any questions that you may have.