Pot, Meet Kettle: U.S. Department of Justice’s Mishandling of Violent Assault Against Missoula Woman

February 20, 2014Shahid Haque

The U.S. Department of Justice has issued a scathing report detailing the alleged failures of the Missoula County Attorney’s office in handling sexual assault cases.  The U.S. Department of Justice has said that a pattern of misconduct by the Missoula County Attorney’s office is so serious that it amounts to gender discrimination.  Among other things, the report states that there is a lack of training offered to deputy county attorneys, low priority placed on sexual assault cases, and little time spent developing evidence.  The press has also been vicious in its criticism (and rightly so) of comments allegedly made by deputy county attorneys to victims.

However, the U.S. Department of Justice report doesn’t tell the story of every abuse victim in Missoula.  It doesn’t tell the story of my pro bono client, who was in a long-term abusive relationship and was the victim of an assault committed by her ex-spouse in Missoula.  While the Missoula County Attorney’s office diligently pursued charges against the abuser, the U.S. Department of Justice chose to prosecute the victim on criminal charges that were directly related to the long-term abusive relationship.  As a result of these charges, my client was ordered deported, felt compelled to drop charges against her abuser, and we’ve been fighting since 2011 to keep her here.

Deputy Missoula County Attorney Suzy Boylan has advocated for my client, and certified a “U visa” petition on my client’s behalf, which is a visa for victims of crimes who cooperate with law enforcement in pursuing the perpetrator of a serious crime (including domestic assault).  Despite this, the federal government has been fighting us at every step of the way, insisting on deporting my client despite clear evidence that she is the victim of assault.

To the extent that the U.S. Department of Justice Civil Rights Division is studying the handling of violent crimes against women in Missoula, we suggest that they also pay close attention to the conduct of the Missoula U.S. Attorney’s Office, and the actions of Immigration and Customs Enforcement officers here in Montana.  Though they criticize the Missoula County Attorney’s office for failing to advocate for female victims of assault, their own conduct has actually criminalized the victim of assault.

About My Client

Although we are not sharing my client’s name publicly at this time, documentation of all of the facts discussed herein can be made available to reporters who will assure her anonymity.

My client is a foreign national who has been living in the United States for over 20 years.  She entered the country legally, and subsequently got married to a U.S. citizen.  They have young children together (who are U.S. citizens), and who depend on my client for care.

In the years after my client’s marriage, her spouse promised to apply for her lawful permanent resident status (i.e. her “green card”).  They filled out the application forms together, and she was led to believe that the application had been filed.  Although the green card never arrived, her husband assured her that the card was simply lost.  He told her that he would never do anything to risk losing her, and she believed him.  As she discovered years later, he never filed for her immigration status, and he did this so that he could maintain control over her.  This is a common tactic for abusive U.S. citizens to  subjugate and control their immigrant spouses.

My client’s husband refused to maintain employment, instead relying on her to be the primary wage earner.  Therefore, she was put in a situation where she was the one who had to work to support the family, even though her ex-husband also deliberately put her in the position of being unable to prove that she could legally work.  He abandoned the whole family on several occasions, including when she was pregnant.  As a result of these financial and emotional pressures, she sought out and received public assistance to provide for her children.   This would come back to haunt her.

The Assault and Mishandling by Missoula County, the Department of Justice, and the Department of Homeland Security

Over the years, my client’s spouse exhibited controlling, manipulative, and emotionally abusive behavior.  However, as their relationship deteriorated, he also used her immigration status against her — threatening that he could have her deported at any time.  He ultimately retaliated against my client exactly as he had threatened, and he was successful in arranging for immigration authorities to arrest her and put her into deportation proceedings.

In 2010, my client’s ex-husband physically assaulted her, choking her viciously.  There were witnesses, and the police report includes photographs of serious bruising on her neck.  He was arrested and charged with Partner/Family Member Assault, and ultimately pled guilty.  My client obtained a permanent order of protection prohibiting him from having any contact with her.

Only a few days after the restraining order was issued, records establish that the abusive spouse retaliated against her for pursuing charges against him, and “tipped” Immigration and Customs Enforcement (“ICE”) about the her immigration status.

Records clearly show that he called ICE again a few weeks later to spur the agency to take action against her, stating that she was an undocumented alien who should be deported.  ICE agents in Montana initiated an investigation at the behest of the abusive ex-spouse.

At the same time, my client’s ex-spouse continued to harass her.  The Missoula County Attorney’s office ultimately brought felony and misdemeanors charges against him because he willfully refused to obey the order of protection — in less than a month, he had violated the order 150 different times by calling or texting my client against her wishes.

Meanwhile, ICE took the bait.  A few months after the abusive spouse “tipped” ICE about his ex-wife, 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 pled 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.

In fact, transcripts of conversations with the Missoula Police Department show that not only did ICE officers work in collusion with the abuser in this case, the abuser felt that ICE officers were sympathetic to him.

In most instances, an immigrant who is arrested by ICE gets to see an immigration judge and state any claims for relief to prevent deportation.  One such defense is under the Violence Against Women Act (“VAWA”), if you are the abused spouse of a U.S. citizen.  However, there was an important wrinkle in place here:  ICE alleged that my client’s most recent admission to the United States (after a brief vacation) was under the “visa waiver program.”  In the small print, it states that if you enter on this type of “visa waiver,” you have no right to see an Immigration Judge, and ICE agents can issue a final deportation order without any additional review or oversight.

So, within mere months of my client’s ex-husband being arrested and pleading guilty to Partner/Family Member Assault, she wound up being arrested by ICE, placed into custody, and ordered deported from the country.

To make matters worse, the U.S. Department of Justice, through the U.S. Attorney’s Office, decided to press charges against her criminally as well.  The charges stemmed from her allegedly receiving public assistance for herself and her children that she was not entitled to get as an undocumented immigrant.  Of course, she didn’t really know she was undocumented because she had trusted her husband when he said he had petitioned for her long ago.

The U.S. Attorney’s office initially sought exorbitant penalties, stating that they were seeking 10 years imprisonment in their charging documents.  Ultimately, she pled guilty to having a false green card in her house, a felony offense, even though she never used it.  All other charges were dismissed.  U.S. District Court Judge Donald Molloy ordered that she pay restitution for any public benefits she was not supposed to have received, but did not order any additional imprisonment.

The Effect of the U.S. Department of Justice’s Actions Against My Client

As a result of being arrested, held in custody, and charged with a felony by the U.S. Department of Justice, my client was separated from her children, and they were placed in the custody of her abusive ex-husband.  She is now in the impossible position of being required to pay restitution to the U.S. Probation Office every month — even though she still doesn’t have work authorization, and has a final order of deportation pending against her.  Nevertheless, through assistance from friends, she is managing to pay her restitution and is up to date on her payments.

My client is now facing permanent deportation and separation from her children.  A Missoula state court judge has stated that if/when she is deported, her children will be permanently placed in the custody of her abusive spouse.  Faced with the prospect that her only contact with her children will be under the control of her abusive ex-husband, my client was no longer in a position to press charges against him.  He now held all the cards.  Therefore, she felt compelled to dismiss the charges against him and attempt to mend their relationship, so that she could maintain some relationship with her children.  The Missoula County Attorney’s office respected her wishes, and reluctantly dismissed charges.

Continued Threat of Deportation

The worst result of the U.S. Department of Justice’s actions is that her conviction is ultimately the reason that the Department of Homeland Security won’t let her stay in this country.The only thing preventing ICE from deporting my client is the fact that I have filed a petition with U.S. Citizenship and Immigration Services (“USCIS”) for her to obtain legal status under the Violence Against Women Act (“VAWA”).

After filing, the government sat on the application for over 18 months.  ICE then took advantage of this inaction.  In early 2013, ICE sent a notice requiring that my client appear at the ICE offices in Helena, Montana with one piece of luggage to be taken into custody and deported once and for all.

We sent emergency requests to the Department of Homeland Security’s VAWA unit begging them to take action on her VAWA petition before she was deported and lost the opportunity.  After we did not receive any response, and her final deportation was impending, we utilized the only recourse available to us — we sought relief in the federal district court.

We filed a complaint in the U.S. District Court for the District of Montana for a writ of mandamus, and declaratory and injunctive relief, to demand that USCIS adjudicate her pending claim for immigration status under VAWA before she was removed from the United States — an act that would prevent her from receiving the requested relief under VAWA, separate her from her U.S. citizen children, place these children into the custody of the abuser, and prejudice the Plaintiff’s ability to ever return to the United States.

On February 1, 2013, District Judge Dana Christensen granted a temporary restraining order enjoining ICE from removing my client.This order is still in place, but the Department of Homeland Security has decided that they can’t approve her VAWA petition for one reason:  Because of her criminal conviction for possession of a false green card.  We are appealing this decision, because it is legally incorrect for a number of reasons.

In the meantime, we applied for another form of relief — the “U visa.”  As mentioned above, the “U visa” is for victims of crimes who cooperated with law enforcement in pursuing the perpetrator of a serious crime.  The succeed, you must get your application “certified” by a law enforcement officer.  Deputy Missoula County Attorney Suzy Boylan gladly certified this “U visa” petition on my client’s behalf.However, once again, the Department of Homeland Security is maintaining the position that they can’t approve her “U visa petition” because of her criminal conviction for possession of a false green card.

Where We Stand Today

The U.S. Department of Justice has alleged that the Missoula County Attorney’s office has an “institutionalized indifference” to crimes of violence against women.  This may be so.  However, the  U.S. Department of Justice need only look internally to discover its own institutionalized indifference to the plight of my client, who went from being a victim of assault to being charged criminally, and deported, in months.

To date,
the Department of Homeland Security has not disputed that my client was the victim of domestic violence, or challenged these facts.  The evidence is clear, and there can be no serious argument in that regard.  And yet, the decision by the U.S. Department of Justice to prosecute my client, and the decision by ICE to order her deported at the behest of her abusive spouse, have left her with dwindling opportunities to remain in the country.

The Department of Homeland Security need only grant relief under VAWA, or grant the U visa, to allow her to remain here.  She is clearly eligible under both forms of relief.  However, they have already denied the VAWA petition (which we are appealing), and stated their intent to deny the U visa.

If Department of Homeland Security  agreed to at least let her see an Immigration Judge, then she would almost certainly be granted relief by that judge.  However, thus far they are refusing to even give her a day in court.Unless their position changes, we will soon be without options to keep her here, and she will be deported.

This is not justice.  This does not embody the level of respect and understanding for crimes against women that the U.S. Department of Justice espouses in its condemnation of the Missoula County Attorney’s office.  It does not even make sense under ICE’s directive to prioritize deporting dangerous aliens.  My client simply cannot be deported under these circumstances, and yet this is what will happen without intervention.We must send a message to DHS that they got their priorities wrong, and that nothing is to be served by deporting this victim of assault,  separating her form her children, and placing them into the custody of the abuser.

Please sign this petition and contact the officials in DHS who can put a stop to this!  You can reference Case No.  EAC-14-027-50697.

  • ICE Contact: Matt Murphy, Assistant Field Office Director, Click to e-mail

  • USCIS Contact: Laura B. Zuchowski, Acting Center Director, Click to e-mail

More information:Article in the Missoula Independent Newspaper

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The Border Crossing Law Firm is a full-service immigration law firm, offering help with visas, green cards, citizenship, and deportation proceedings. We have been committed to the immigrant community for two decades, representing thousands of immigrants and their families across the country.