Category: Immigration News

(Originally published in the Montana Lawyer, June/July 2015 Issue)

Representing Immigrant Victims of Domestic Abuse:

Abusive spouses’ manipulation of the system and misguided police enforcement cause additional troubles for immigrant survivors of abuse.

By Shahid Haque

Attorney, Border Crossing Law Firm, P.C.

Every immigration case implicates matters of family unity or separation, and can dramatically impact a client’s livelihood and quality of life.  Immigration matters involving domestic violence and abuse are often the most challenging — but also the most important — types of cases for immigration practitioners.  In my practice, I have assisted dozens of immigrant victims of domestic abuse, including both male and female victims.  In this article, I will discuss some of the common characteristics of these abusive relationships and the difficulties these victims can experience — particularly when law enforcement works against the victim instead of providing support.

How Our Immigration System Provides Opportunities for Abusive Spouses

Immigrant victims of domestic abuse may enter the country on a marriage or fiancé(e) visa, enter the country illegally, or “overstay” a visa. The victim may be married to a U.S. citizen, a permanent resident, or another person who is undocumented. All of these factors play into the type of relief that may be available to the victim.

Abusive U.S. citizens often use their spouse’s immigration status as a way to exert undue control. Often the immigrant spouse is isolated from society, unable to easily leave home because he or she lacks a driver’s license, prevented from using a phone or computer to connect to friends and family, and prohibited from forming friendships with others. The abuse may manifest as physical violence or extreme emotional cruelty. The abuse is often furthered by threats of deportation if the immigrant spouse ever reports the abuse.  Often, there are children in the household, and the abused spouse doesn’t dare report the abuse to police because of the risk of being deported and leaving the children in the hands of the abuser.

There are many ways that an abusive spouse can use someone’s immigration status as a constant threat.  This type of control is possible because our immigration system provides unfortunate opportunities for U.S. citizens to manipulate their partners’ ability to obtain legal immigration status. For instance, when a U.S. citizen applies for a fiancé(e) visa, the partner enters on a visa that expires unless they get married within 90 days.  Sometimes the U.S. citizen deliberately refuses to get married, leaving the immigrant partner undocumented and unprotected by our immigration laws, but dependent on the abuser.

Even when a couple gets married, the U.S. citizen spouse can still wield control over the immigrant spouse. When a couple has been married for less than two years, the immigrant spouse only gets a two-year “conditional” green card. During that time, immigrant spouses could lose their status if they get divorced or separated, giving the abuser undue control during that time period. Just before the “conditional” green card expires, the couple is expected to jointly file a petition to prove that the marriage is ongoing and is genuine. If an abusive spouse intentionally misses that deadline, the immigrant spouse can be at risk of being removed (i.e. deported) from the U.S. An immigrant can request a “waiver” of the requirement to file a joint petition after the two-year period, but faces a high burden of proof to show the marriage was genuine, and many abused spouses are either unaware of this or afraid to do so.

I have seen many instances in which a U.S. citizen spouse has forced the immigrant spouse to work despite simultaneously refusing to fix the spouse’s immigration status, which puts the immigrant spouse in the position of working without government authorization — often at low wages and without proper workplace protections. It also places the immigrant spouse at higher risk of being detected and arrested by immigration authorities.

Police Need to Be Vigilant and Understanding About Immigrant Victims of Abuse

It is critically important that police be aware of these dynamics and work to protect immigrant victims of domestic abuse. However, sometimes police and immigration officials have worked against abuse victims and helped the abusers. This is due, in part, to the manner in which immigration violations have been “criminalized” in our culture. Despite the fact that most immigration violations are civil in nature, local police have incorrectly viewed them as being serious crimes, and have overlooked the more serious issues of abuse that should be their focus.

A few years back, a female client of mine was strangled in public and police were called to the scene. The male abuser was convicted of partner/family member assault. Although they had been married for many years, and she had no impediment to getting a green card through marriage, the husband refused to follow through with a petition. He had not held a job for years, and he had forced his spouse to purchase a fake green card to obtain employment to support both him and their children.  But, after his conviction, he “tipped” immigration authorities that she was undocumented and had a fake green card.

Immigration authorities took the bait. They launched an investigation and a few months after the abusive spouse’s tip, they had arrested my client, taken her into custody, and issued a final order of deportation against her. They apparently did not take note of the fact that at the time the abusive ex-spouse “tipped” them, he had already pleaded guilty to Partner/Family Member Assault, had a permanent restraining order against him, and the Missoula County Attorney’s office had just brought misdemeanor and felony charges against him for violations of the order of protection. To make matters worse, the U.S. Attorney’s Office brought charges against her in federal court for possession of a fake green card, and she pleaded guilty. Now, that conviction is posing an obstacle to getting immigration relief as an abuse victim.

Types of Relief Available

The options available to immigrant victims of domestic abuse vary considerably depending on the circumstances, and have detailed requirements. Without delving into the minutiae of each type of relief, the following are some of the possibilities.

The Violence Against Women Act provides opportunities for the spouse of a U.S. citizen or permanent resident to “self petition” for lawful immigration status when he or she is the victim of physical abuse of extreme emotional cruelty.  The petition must be filed while still married or within a year of divorce.  “Good moral character” is a requirement, and is sometimes a real obstacle.  In the example referenced above, U.S
. Citizenship and Immigration Services agrees that my client was the victim of abuse, but is asserting that her criminal conviction for possession of a fake green card shows bad moral character.  We continue to fight her case and argue that they have their priorities wrong.

When the victim of abuse cooperates with law enforcement in the prosecution of an abusive spouse, he or she may also pursue a “U” visa.  This application must be certified by a Judge, prosecutor, or law enforcement officer.  While many law enforcement officers are reluctant to certify due to unfamiliarity with the U visa, this visa provides a pathway to permanent residency and citizenship, and should be seriously considered.

Victims of human trafficking, whose situations may differ considerably from abused immigrant spouses of U.S. citizens, may pursue a “T visa” under the Victims of Trafficking and Violence Protection Act.

In some rare instances, an immigrant victim of domestic abuse can pursue asylum.  Refugees who flee from their home countries to escape persecution on account of race, religion, political beliefs or particular social group can ask for asylum in the U.S.  It is a difficult form of relief to win due to its high burden of proof.  However, we recently won asylum for a woman from Mexico who fled the country to escape her husband’s severe violence and cruelty. We were able to demonstrate that she was viewed as the property of her husband, that she had reported the abuse to police and been ignored, and that she had fled multiple times only to be captured and returned to her husband. Under these rare circumstances, the immigration judge agreed that the abuse amounted to persecution on account of her “particular social group” and that she had a reasonable fear of returning to Mexico.

“Mail Order” Brides?

Sometimes, we hear of immigrant victims of domestic violence referred to as “mail order brides.” Except in the rarest instances, the term is really a misnomer, as it is not representative of most relationships or the manner in which most immigrant spouses came to the United States. In addition, it has some offensive and sexist undertones. First, it implies that the legal burden to get a visa for a spouse is easy. That is certainly not true, as one who goes through normal immigration channels to obtain entry on a fiancé(e) or marriage visa has to prove a genuine relationship, and this can often be difficult. In our practice, we have often dealt with legitimate marriage petitions that get wrongly denied because they don’t fit into traditional stereotypes.

The term also implies that the women who enter the U.S. as immigrants are complicit in wanting to enter into fake marriages just for the visa. In my experience, the immigrant spouse has typically wanted to enter into a genuine and legitimate relationship, but the relationship ends because of abuse or misconduct by the U.S. citizen.

While there are instances in which women have literally posed in magazines, been trafficked into the country, and ultimately sold into marriage, the broad usage of the term goes much farther than this limited scenario. Language is important because it shapes perspective and policy. The term is currently being used to malign legitimate relationships that may appear “suspicious” to someone based on their own preconceived ideas, but is actually just a form of stereotyping. Therefore, I encourage readers to either limit the term to the small instances where it would be correct, or simply stop using the term.

Concluding Thoughts

If you are interested in helping immigrant victims of domestic abuse, opportunities are often available to assist. Please feel free to contact me. We hope to create a list of volunteer attorneys we can turn to for assistance with these important cases.

Shahid Haque is an immigration attorney and founder of the Border Crossing Law Firm, P.C., and also serves as President of the Montana Immigrant Justice Alliance, a non-profit group advocating for the rights of immigrants. He will be teaching immigration law at the University of Montana School of Law starting in the Fall semester.

On Friday, Judge Jeffrey Sherlock of the First Judicial District Court struck down the vast majority of Montana’s voter-approved law requiring state agencies to determine an applicant’s citizenship or immigration status before granting a wide variety of state services.  The decision can be downloaded here.

The law would have required denial of unemployment insurance benefits, licenses to practice trades or professions, enrollment in state universities, crime victim services, and infant hearing screenings to those who cannot prove their citizenship or immigration status.

The referendum, which was presented to Montana voters in the November 2012 election, passed with almost 80 percent of the vote. Before the law went into effect, the Montana Immigrant Justice Alliance (“MIJA”) brought a lawsuit challenging its constitutionality.

Shahid Haque, the President of the organization and an immigration attorney with the Border Crossing Law Firm, served as MIJA’s lead attorney in the lawsuit. The Montana Attorney General’s office defended the law, with former Solicitor General Lawrence VanDyke serving as lead counsel on the case.

Judge Sherlock ruled in MIJA’s favor, holding that the mandates upon state agencies to determine immigration status, and deny a wide variety of state services to “illegal aliens,” are preempted by federal law as an impermissible regulation of immigration.”

This law was intended to make the state of Montana an unwelcoming place for immigrants. Striking down this law is a significant victory, and a message that the state has no business trying to regulate federal immigration policy,” Mr. Haque said.  “In this ruling, the court has prevented the state from engaging in misguided efforts to enforce federal immigration laws, which the state is neither qualified nor authorized to do.”This law would have placed added burdens on all Montanans to prove citizenship, but would have especially burdened immigrants.

The only provision of the law that was allowed to stand is one that partially corresponds to federal law, and permits communication between state employees and the federal government regarding a person’s immigration status. “Without the right to deny state services based on a determination that an applicant is unlawfully remaining in the country, this provision should not be significant.  Now that state agencies are not required to check into immigration status, they should have nothing to report to the federal government,” Haque said.

Judge Sherlock had previously granted a partial preliminary junction in March 2013, and had denied two separate motions brought by the state to dismiss the lawsuit.Brian Miller of Morrison, Sherwood, Wilson & Deola, PLLP served as co-counsel in this litigation, providing invaluable litigation support on a pro bono basis.

In our national debates on immigration reform, we typically omit an extraordinarily important component of the whole discussion:  How U.S. trade policy impacts immigration.  Understanding how trade policies such as NAFTA actually create and drive undocumented immigration is essential to the discussion, and  is perhaps the missing link to greater public understanding and appreciation of the need for immigration reform.  However, these are complex issues, and we rarely have the opportunity to delve into them.This is why I was so pleased to be interviewed on these topics by Will Boland for the Helena Civic TV show “Everybody’s Business.”  

We conducted the interview on January 9, 2014.

by Shahid Haque, Immigration Attorney with the Border Crossing Law Firm, P.C. and President of the Montana Immigrant Justice Alliance (“MIJA”).

Immigrants who are challenging LR-121, the State of Montana’s new anti-immigrant law, owe a debt of gratitude to the pioneering gay rights advocates who established an important legal precedent that gives marginalized groups legal standing to challenge laws that threaten to deprive them of their rights.

In 1993, Linda Gryczan led a legal challenge to Montana’s “deviate sexual conduct” statute, which criminalized consensual, private, same-gender sex between adults. In bringing this lawsuit against the State of Montana, she and her five colleagues broke new ground — this was well before the 2003 U.S. Supreme Court decision in Lawrence v. Texas reshaped the law regarding private same-sex relationships.

Under the law Gryczan challenged, sex between two consenting adults was a felony, with a possible 10 year prison term or a $50,000 fine. The discriminatory law was enacted in 1977, and although there were no reported instances of any arrests or prosecutions under the law, the threat of enforcement constantly loomed over the plaintiffs. They were made to feel like criminals and second-class residents of the state they called home.

The State of Montana asked the Judge to dismiss Gryczan’s lawsuit, arguing that these plaintiffs lacked legal standing to bring the constitutional challenge. The state argued that the statute had not yet been enforced against anyone, so there was no immediate threatened injury, and that “the mere apprehension of prosecution or the fact that a person may feel denigrated by the law is not sufficient.”

Essentially, the state was arguing that an unconstitutional law could remain on the books, serving as a constant threat that one could be deprived of their rights at any time, but no one could challenge the law until the state actually enforced it against them. In 1997, the Montana Supreme Court rejected the state’s assertion, finding that Gryczan and her colleagues were directly targeted by the law, and even if it had not yet been used against them, they had standing to challenge it based on the threatened injury.

Nevertheless, this familiar argument by the State of Montana was exactly the same one that members of the Montana Immigrant Justice Alliance (“MIJA”) faced after they brought their legal challenge to Montana’s new anti-immigrant law.

LR-121 was a referendum asking if voters were for or against denying certain state services to illegal aliens. According to the bill’s sponsor, Rep. David Howard (R-Park City), LR-121 was meant as “a deterrent, so that people will not focus on Montana as a place to come, take our jobs, take our benefits, and live here.”

The law ostensibly requires all Montanans to present proof of citizenship or lawful resident status before accessing state services, meaning that for the first time in Montana’s history, the state would be requiring all residents to start showing their papers before they can access basic state services. This is a massive undertaking. However, no effort has been made to uniformly apply this law, leading to the likelihood that only those Montanans who look or sound different will be asked to prove their status. LR-121 would also violate federal law by denying services to lawful permanent residents who illegally entered the country, but later fixed their immigration status and are now residing here legally. And, the law asks state agencies to misuse a federal database to determine immigration status — despite the fact that federal laws prohibit the database from being used this way — and report applicants to the federal government for deportation proceedings.

LR-121 has created fear and anxiety in the immigrant communities in Montana, amongst both documented and undocumented residents. Eleven members of MIJA who would be denied state services under this law came forward and challenged its constitutionality. However, Attorney General Tim Fox’s office filed a motion to dismiss this lawsuit, making the same arguments that Linda Gryczan faced over a 15 years earlier. The state argued that our claims were speculative because no state agency had yet denied anyone state services under this law, and that we had to wait until that happened to challenge the law.

In our response brief, we were able to draw a direct parallel between Gryczan and the immigrants affected by LR-121. Judge Sherlock agreed with us and rejected the state’s attempt to dismiss our lawsuit, finding that Gryczan had directly addressed this issue in her lawsuit many years ago:

In Gryczan, a group of homosexuals brought a constitutional challenge against Montana’s deviant sexual conduct statute. The statute was not being enforced against any of the plaintiffs, and there was no indication there was a credible threat that it would be applied against them. Further, the court record indicated that no one had ever been prosecuted under the statute. The Supreme Court noted that the key fact was that the statute in question was only 24 years old and had recently been amended. In the instant case, it is important to note that LR-121 was passed in November 2012. With the passage of such a recent enactment, one could say it is reasonable to assume that it will be enforced.Of further note to the Gryczan court was the fact that the plaintiffs were precisely the type of people the statute was designed to affect. Here, exactly the same situation obtains, especially as to the affidavits filed by Plaintiffs of various individuals who illegally entered the United States, but are now lawfully present in this country. The Gryczan court found that the plaintiffs’ reasonable fear of prosecution was enough to grant them standing under these circumstances. Another factor considered by the Gryczan court was that to deny the plaintiffs standing would be to immunize the statute from review.

The court found that “each of the factors mentioned above apply in this case” and denied the State of Montana’s attempt to dismiss our lawsuit.

Linda Gryczan won her lawsuit over 15 years ago, and the “deviate sexual conduct” statute was blocked. However, the Montana Legislature refused to take the obsolete and unenforceable language off the books until this year.

The lasting impact of Gryczan’s lawsuit has been felt not only by the LGBT community, but by all marginalized groups who are targeted by legislation that will deprive them of their rights. Thanks to Linda Gryczan and her co-plaintiffs, it is well-established under Montana law that groups who are targeted by discriminatory legislation can immediately challenge laws that threaten them, and don’t have to allow the laws to sit on the books — creating intentional fear and uncertainty — until the state chooses to enforce them.

———

The litigation against LR-121 is being done on a pro bono basis by Brian J. Miller of Morrison, Sherwood, Wilson and Deola PLLP, and Shahid Haque of the Border Crossing Law Firm, P.C. We are proud to stand up against LR-121.

As we have written about before, Shahid Haque of the Border Crossing Law Firm, P.C. is representing the Montana Immigrant Justice Alliance (“MIJA”) in a lawsuit to challenge Montana’s new anti-immigrant law called LR-121.  You can read all about the law and what it does here. This week, Judge Sherlock  rejected the Montana Attorney General’s efforts to dismiss our lawsuit, and has ruled that the Montana Immigrant Justice Alliance (MIJA) has standing to challenge LR-121 on behalf of its members, who have a reasonable fear that the law will be used to wrongly deny them benefits.Over ten members of MIJA, all of whom were also represented by Shahid Haque in immigration proceedings, came forward to tell the court how they would be impacted by LR-121.  Despite protests from the Montana AG’s office, the court held that these MIJA members had reasonable fears that LR-121 could violate their rights, and thus can move forward with their legal challenge.As reported in the Great Falls Tribune:

A district judge has ruled that a lawsuit aimed at blocking the implementation of a new immigration law can move forward.The Montana Immigrant Justice Alliance is seeking to overturn LR 121, a voter-approved ballot initiative that requires proof of legal standing for any applicant for state services, employment with a state agency, issuance of a state license or permit, unemployment or disability benefits, enrollment as a student or student aid.The law applies a definition of “illegal alien,” which attorneys for MIJA argue could unconstitutionally prevent certain legal citizens from receiving services from unemployment benefits to crime-victim assistance.Lawyers for Attorney General Tim Fox’s office are defending the law in court. The state asked the court to dismiss the case on the grounds that the plaintiffs lack the legal standing to bring the lawsuit because the law had not yet been implemented or used.District Judge Jeffrey Sherlock on Wednesday denied the state’s motion to dismiss. Sherlock said clients represented by MIJA, the lead plaintiff in the case, have reasonable fear that LR 121 could adversely affect them.Eight documented immigrants signed affidavits in the case saying they came into the country illegally, but are now legal residents. Lawyers for MIJA said under LR 121 those individuals who are legally allowed to be in the United States could unfairly be denied state benefits or services based on the existing definition of “illegal alien” contained in the voter-approved ballot initiative.“We view the judge’s decision as an unqualified victory for the plaintiffs,” MIJA attorney Shahid Haque said. “There’s now no further obstacle to determining the constitutionality of LR 121. We’re going to have the right to ask the state how they plan to implement the law, what training they plan to give to their employees who will be charged with making determinations under the law, and how they can possibly implement this law without violating the Montana and United State constitutions.”

The State has yet to explain how they can enforce this law without violating the Montana and U.S. Constitutions, and had sought to avoid answering these questions by simply dismissing the lawsuit. However, now that their argument has been rejected, the State must answer these important questions as we move forward.You can download a copy of the Judge’s order here.

On May 9, 2013, I participated in a panel discussion about immigrant victims of domestic abuse and sex trafficking victims in rural Montana.  The focus was on the remedies available to these victims, and issues surrounding lawyering and advocating for these groups.  The other panelists were Laurie Grygiel of the Montana Legal Services Association, Cynthia Wolken of the Montana Human Rights Commission, and Representative Jenifer Gursky.  The University of Montana Law School has made a video of this event available for all to view.

We have assisted numerous immigrant victims of domestic abuse with petitions under the Violence Against Women Act (“VAWA”), including both male and female victims.  Abuse under VAWA can include physical violence or extreme emotional cruelty.  In this panel, we discuss some of the common characteristics of these abusive relationships, the difficulties these victims can experience when law enforcement actually works against them, and we go into detail on one particular case study.

Immigrant victims of domestic abuse may enter the country on a marriage or fiancee visa, or enter the country illegally or overstay a different visa. They ultimately enter into a genuine, bona-fide marriage, which ends due to the abuse.

Abusive U.S. citizens often use their spouse’s immigration status as a way to exert undue control over them — isolating them from society, being physically and emotionally abusive, and threatening to have them deported if they ever report the abuse.  Often, there are children in the household, and the abused spouse doesn’t dare risk being deported and leaving the children in the hands of the abusive spouse.

There are many ways that an abusive spouse can hold someone’s immigration status over their head as a constant threat.  Often times, the spouse simply doesn’t file immigration paperwork, leaving the immigrant spouse in limbo.  If the spouse entered on a fiancee visa, which requires that the marriage occur within 90 days, the abuser can deliberately delay the marriage and cause the immigrant spouse to become out of status.  Or, even if they complete the process and get a green card, new marriages have a two-year “conditional” residence period.  During that time, an immigrant spouse could lose her status if they get divorced or separated, giving the abuser undue control during that time period.

Sometimes, we hear of immigrant victims of domestic violence referred to as “mail order brides.”  As we discussed at the panel, except in the most rare instances, the term is really a misnomer, as it is not representative of most relationships or the manner in which most immigrant spouses came to the United States.  In addition, it has some offensive and sexist undertones. First, it implies that the legal burden to get a visa for a spouse is easy. That is certainly not true, as one who goes through normal immigration channels to obtain entry on a fiancee or marriage visa has to prove a genuine relationship, and this can often be difficult.  In our practice, we have often dealt with legitimate marriage petitions that get wrongly denied because they don’t fit into traditional stereotypes.

The term also implies that the women are complicit in wanting to enter into fake marriages just for the visa. In my experience, the spouse has typically wanted to enter into a genuine and legitimate relationship, but the relationship ends through no fault of their own.While there may be rare instances in which women have literally posed in magazines, been trafficked into the country, and ultimately sold into marriage, the broad usage of the term goes much farther than this limited scenario.  Language is important because it shapes perspective and policy.  The term is currently being used to malign legitimate relationships that may appear “suspicious” to someone based on their own preconceived ideas, but is actually just a form of stereotyping.  Therefore, we encourage readers to either limit the term to the small instances where it would be correct, or simply stop using the term.

If you are the victim of domestic abuse, please contact us and we will try to help.

Home Ground Radio, hosted by Brian Kahn, is one of the most intellectually stimulating radio programs in the state of Montana.   We were proud to be asked to appear on the show to discuss immigration issues, and found it to be a great experience.  The interview was described as follows:

During the 2012 election, illegal immigration was a red-hot topic. But we didn’t learn much about who illegal immigrants are, why they come to America, or the pros and cons of allowing them to stay. Shahid Haque provides some context.

You can listen to the whole interview here:

Home Ground Radio is aired on Montana Public Radio and Yellowstone Public Radio. You can also listen to the archive  of programs over the years.

We have some exciting news:  Judge Sherlock has ordered the government Defendants to appear on February 7, 2013 at 10:00 am to “show cause why Plaintiffs’ application for a preliminary injunction should not be granted.”

As we previously reported, on December 7, 2012 the Montana Immigrant Justice Alliance (“MIJA”) filed a lawsuit in Montana’s First Judicial District Court to challenge and enjoin implementation of LR-121, along with our co-Plaintiffs MEA-MFT and Alisha Blair (a U.S. citizen who would likely be wrongly denied services under the law).  We are challenging the constitutionality of LR-121 because it violates the rights of all Montana residents, not just undocumented immigrants.We are seeking a temporary restraining order and preliminary injunction to prevent the law from being put into effect while this litigation is pending, and are looking forward to our first hearing in this case.

Please check out our LR-121 litigation page explaining what LR-121 is, why we filed a lawsuit to challenge the law, and how the law impacts all Montanans.