Mail Order Brides and the Abuse of Immigrant Women
Webwork by Nikki Craft

A License To Abuse:
The Impact of Conditional Status on Female Immigrants

by Michelle J. Anderson

Text and footnotes reprinted from The Yale Law Journal
Volume 102 . April 1993 . Number 6

Copyright (c) 1993 by The Yale Law Journal
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Solutions to the problems of battered immigrant women advanced by other commentators have not been wholly adequate. Some have suggested that waivers of spousal petition requirements automatically be granted to battered conditional residents who have borne children of their marriages.(132) They argue that the existence of children born from the relationship should be treated as proof that the marriage was not fraudulently entered into for the purpose of obtaining legal immigration status. This suggestion increases immigrants' ability to establish marital legitimacy, but not to establish battery.(133) This suggestion, therefore, does not address the problem of spouse abuse directly.

As outlined above, current law allows husbands to control the petitioning process for those lacking conditional residency status, establishes unreasonable evidence requirements, and ignores both the community barriers to I accessing help and immigrants' fears of bureaucratic entanglement. A full response to the plight of battered conditional residents must address each of these inadequacies; it should allow women to self-petition for their immigration status, establish reasonable evidence requirements, and break down community barriers by encouraging confident interaction with the bureaucracy. These changes will not solve the problem of wife abuse. They will, however, mitigate the ways in which immigration status is now used against battered immigrants.

A. Allow Self-Petitioning for Immigration Status

Current law affords husbands a great degree of control over the immigration status of their immigrant spouses. If her husband refuses--however arbitrarily--to cooperate in the petitioning process from the onset of the relationship, an immigrant wife is out of luck, despite the existence of the battered-spouse waiver for those who already have conditional status. Battered immigrant wives of husbands who refuse to petition for their immigration status in the first place have "fallen through the cracks," and thus lack a remedy for their plight. Congress should amend the statute to allow all immigrant women to self-petition for their immigration status and to self petition to adjust from conditional to permanent status.(134)

This change would limit batterers' ability to hold the threat of deportation over the heads of immigrant women. Women would be allowed to petition the INS independently, regardless of their husbands' wishes. Women who self-petition would still face the threat of deportation, since the INS could find their marriages to be fraudulent. However, for those who have proof that their marriages were valid (such as marriage certificates, wedding photos, or letters between the spouses), the ability to self-petition will nearly eliminate that threat. Many abused immigrant women will still desire as little interaction with the INS as possible, and will, therefore, remain unlikely to petition for a battered-spouse waiver even if they are battered. By starting the two-year fraud clock earlier (when a woman files for her own conditional residence), however, those women who choose not to petition for battered-spouse waivers, for whatever reason, would have to stay with their husbands for a shorter time period before they could leave their marriages. If the system allowed women to initiate and terminate their own conditional residence status on their own initiative, then husbands would not be able to control their wives' immigration status by refusing to petition.

B. Establish a Reasonable Evidence Requirement

Battered conditional residents are often unemployed and have little social mobility. Those who come here poor may have little or no independent financial resources. To obtain waivers based on extreme cruelty, a reasonable evidentiary requirement would not require these women to present testimony from psychiatrists, psychologists, and licensed clinical social workers. Such a burden would be reasonable only if the INS provided these professional services free of charge to poor immigrants. As in the case of representation of indigent people, the process is neither equitable nor just if a person does not have the ability to present her case."(135)

Yet, poverty is not the only factor preventing immigrant women from seeking out professional expertise; community also plays a role. Abused conditional residents may not seek help from social service agencies in light of their own cultural definitions of family and community. Battered conditional residents may confide in members of an extended family, religious leaders, and others long before they consider seeking help outside the immigrant community.

To establish a reasonable evidentiary requirement, the INS should change its regulations to allow women to submit a broad. range of evidence.(136) In addition to the testimony of police, psychiatrists, psychologists, clinical social workers, and doctors, the INS should hear statements of family members, friends, religious workers, battered women's shelter staff, school teachers and administrators, immigrant community advocates who have witnessed the abuse or its effects, and others who can present pertinent evidence.(137) The decision makers' role is to evaluate the credibility of witnesses and evidence. They should not restrict the information they consider to a few sources, such as expensive professional testimony, that remain financially, culturally, and linguistically inaccessible to most immigrant women.

Since the statute does not mandate the use of professional evidence, this change would simply require an alteration in the INS regulations. A suit challenging the INS interpretation of the statute would likely be unsuccessful, given judicial deference to agency interpretations of statutes.(138)

C. Encourage Confident Interaction with Bureaucracy

To diffuse the fears of bureaucratic entanglement which many immigrants understandably hold, Congress should amend the statute to require the INS to distribute information about immigrant women's legal rights and options.(139) Immigrant women could then make informed choices about their safety and the relative risks of behaviors. The INS could enlist social service agencies having contact with abused immigrants--hospices, hospitals, police stations, clinics, immigrant community centers, battered women's shelters, cultural centers, rape crisis hotlines, religious institutions, schools, and others--to distribute pamphlets and utilize other media to explain that women can leave battering relationships without automatically being deported.

There is an even more efficient solution. The law presently requires that the INS inform conditional residents of the joint petition requirements to terminate their conditional status and achieve permanent status.(140) Information about the battered-spouse waiver to the joint petitioning requirement could easily be disseminated at the same time. Coupled with the ability to self-petition, an immigrant could be informed from the beginning of the process (when she initially petitions for residency status) of her rights and responsibilities as a conditional resident, thereby nearly eliminating the risk that she would remain ignorant of the waiver and therefore be unable to leave a batterer.

Some immigrant advocacy groups do distribute pamphlets that explain the legal options available to battered immigrants, but only to those women they can reach with their limited funds. In order for this information to reach an adequate number of immigrant women, Congress should direct the INS to create and provide such materials on a more extensive basis.


Implementing these changes to immigration laws would facilitate access to battered-spouse waivers. To some, this may signal a potential increase in fraudulent claims. In meetings with congressional leaders, INS officials expressed their suspicion that even the present waiver provision would be frequently "abused"--that women would attempt to falsify domestic battery as a means of staying in the country.(141) INS officials are reported to have claimed that if they permitted the testimony of battered women's shelter workers as evidence to corroborate claims of extreme cruelty, shelters would "try to make money off immigrant women by selling them false affidavits."(142)

In actuality, however, the risk that these rather modest changes in the law would open the proverbial immigration floodgates is minimal. First, to be attractive as an avenue for fraud, an immigrant would have to be willing to fabricate domestic abuse. The notion that immigrants would be willing to beat themselves to create the physical signs of domestic abuse seems farfetched, if not implausible. The concern that battered women's shelters or doctors would sell false affidavits to immigrants wishing to fabricate claims of domestic assault seems equally improbable.

Second, alternatives to waiving conditional status through proving battery would be more attractive to those who wish to attain legal status fraudulently (e.g., obtaining a good faith termination waiver).(143) If the INS does not find an immigrant's story of abuse credible when she comes forward to obtain a battered-spouse waiver, the INS will begin deportation proceedings against her. An alternative route of fraud such as continuing a bogus marriage for two years would require less interaction with the INS and less risk of deportation than would applying for a battered-spouse waiver. If these facts are true, the changes proposed in how the battered-spouse waiver, operates would not significantly affect the incentives to commit marriage fraud in the first place.

Third, even if there were those, at the margins, who might find the possibility of fabricating abuse more attractive than other modes of fraudulently obtaining legal status, when one compares the potential number of women who might be successful at this bizarre method of fraud to the large number of battered women these changes would potentially rescue from abuse, the weight of evidence is decidedly on the side of changing the law.

Fourth, the availability of broader options for documenting abuse would not negate a conditional resident's legal obligation to prove that her marriage was valid from its inception. Each person seeking a battered-spouse waiver would still be required to validate her marriage in the eyes of the INS. Women who present sufficient evidence to substantiate their marriages (marriage certificates, wedding photographs, joint bank accounts, letters, etc.) have not behaved fraudulently. They have entered into their marriages in good faith; they have not "entered by stealth" or "found community in America only after flouting th[e] law."(144)

Fifth, the changes suggested herein do not discard conditional residency or other requirements; they simply attempt to make the law what it already purports to be--an exception to conditional residency requirements for those who are abused by their LPR or citizen spouses. If immigration law provides a legal exception to conditional residency requirements for those who are abused, immigrant women should be made aware of that provision and the law should be effective and appropriate for the community it attempts to serve. Autonomy for immigrants petitioning the INS, equitable evidentiary requirements, and truthful information distribution in immigrant communities are necessary modifications. The proposed changes ask only that immigrants who marry citizens or LPR's legitimately be allowed to leave those relationships if they become abusive, without risking deportation.(145)

Finally, these proposals would create important positive incentives in immigrant communities. For instance, the ability to self-petition would increase wives' legal independence from their husbands. Autonomous interaction with the INS would afford immigrant women more independence generally. Accurate, multilingual information from the INS, dispersed through community centers, could be a means for decreasing immigrant women's isolation and fear of the immigration process in general. Thus, the incentives these legal changes would create would actually help alleviate some of the factors--dependency, isolation, and ignorance--that contribute to immigrant women's high risk for abuse in the first place.

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Imagine the experiences of a Haitian woman named Celeste. She marries an American citizen, immigrates to this country and believes her husband when he tells her that he has applied for her conditional residency. He has not. He begins abusing her within months of the marriage and convinces her that she will be deported if she tells anyone. He refuses to let her eat for days at a time, use the phone, or leave the house. Because she does not, speak English, she does not know what resources might be available if she flees the abusive situation. Moreover, she is afraid to leave her spouse because of the threat of deportation back to Haiti.

What can Celeste do under the status quo? Technically she could attempt to obtain a legal waiver of conditional residency, but she is not aware of this law. There is little possibility that she will come to know about it because she does not speak English and does not live in a community with many immigrants. Even if she knew about the waiver provision, because she does not presently have conditional resident status, she cannot qualify for a waiver at all. Even if she were a conditional resident, the INS might require her to get professional testimony to determine whether or not she suffered extreme mental cruelty. Without independent financial resources, she cannot meet this standard. Celeste must, stay and endure the abuse.

What would Celeste do if these changes were implemented? First, she would petition the INS for her own immigration status from the moment she immigrates to this country. Her husband would not control that process. Second, she would be informed about the battered-spouse waiver to the two-year conditional status requirement because the INS would provide her with that information when she initially applies for her status. Third, she would not need to obtain expensive professional affidavits about her mental state to obtain a battered-spouse waiver. Therefore her autonomy and ability to leave her abusive husband would be greatly increased.

The abuse suffered by conditional residents is easily ignored. Immigrant women constitute one of the groups most vulnerable to exploitation in our society, yet their needs remain unaddressed by the legal system. Tougher marriage fraud laws and their inadequate amendments have exacerbated the societal problems of wife abuse and bound battered conditional residents to their abusers.(146) An INS spokesperson admits that the two-year conditional requirement has become "equated to indentured servitude."(147) The terror and dependency under which abused conditional residents live prompted one sociologist to observe that "many Asian and Mexican women are kept virtual prisoners and slaves, living isolated lives of great fear and constant threat by their spouses of 'sending them back'--without their children."(148)

The idea of severely battered conditional residents living in conditions of "enslavement" may be more than metaphor or hyperbole. Claims under the Thirteenth Amendment,(149) which abolished slavery and all its accoutrements, have successfully challenged peonage,(150) forced prostitution,(151) and forced migrant labor.(152) Recently, legal scholars have urged a reanimation of the Thirteenth Amendment in a decidedly modern context. (153) They have argued that severely abused children(154) and severely battered women(155) each have legitimate Thirteenth Amendment claims against their abusers. Constructing the precise argument of a potential Thirteenth Amendment challenge for conditional residents is beyond the scope of this Note. It suffices to say that laws which make an immigrant's legal status dependent upon the actions of an abusive spouse, placing her at risk for a kind of involuntary servitude, may pose problems of constitutional magnitude.

Conditional residency laws afford batterers a license to abuse their immigrant spouses. This abuse harms not just the women who will sustain the bruises, but also this nation's claim that it stands as a beacon of liberty in the world. It is a cruel irony that many immigrant women left conditions of political turmoil and extreme poverty in their homelands to find a better life in this country. Newly wedded, immigrant women hoped to discover a land of freedom and opportunity. Many have found, instead, an existence impoverished by confinement, brutality, and the terror of nowhere to turn. --[END]

[Postscript: This piece of writing is but one of many scholarly articles criticizing the laws that have created problems for battered immigrant women who have conditional legal status or no legal status. Despite the publication of these articles, the relevant statute, 8 U.S.C.S. § 1186a (2001), and its implementing regulations, 8 C.F.R. § 216.5 (2001), remain essentially unchanged.]

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(132) Janet M. Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593, 628 (1991). The INS presently accepts birth certificates of children born of the marriage as evidence of good faith. 8 C.F.R. § 216.5(e)(2)(iii). Professor Calvo argues that "proof of the existence of a child born of the marriage should not just be a factor, but should preclude any finding that the alien spouse did not enter the marriage in good faith." Id. at 630-31. Representative Louise Slaughter has advocated a similar position. See 136 CONG. REC. H8642 (daily ed. Oct. 2, 1990) (statement of Rep. Slaughter). BACK

(133) Unless, of course, Professor Calvo would have the INS issue waivers of conditional residency to any woman who became pregnant or bore children from a marriage. BACK

(134) Professor Calvo has advocated this position. See Calvo, supra note 132, at 625. In late July 1992, Representatives Mazzoli and Slaughter introduced a bill that was referred to the House Judiciary Committee and the House Subcommittee on International Law, Immigration, and Refugees. The bill would permit those who already had conditional residency to petition for their own immigration classification. H.R. 5693. That bill is, unfortunately now "dead in the water" according to Representative Slaughter's office due to the end of the Congressional session. They plan to re-introduce the bill next session. Telephone Interview with Sandra Sobieraj, legislative aide to the Honorable Louise Slaughter (December 9, 1992). BACK

(135) This Note does not assume that the United States owes foreign nationals the benefits of immigration. A foreign national who seeks entry to this country has no right to enter. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 544 (1950) ("[A]n alien who seeks admission to this country may not do so under any claim of right... . Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.") A foreign national who has already gained entry into this country, however, does have constitutional due process rights. Landon v. Plasencia, 459 U.S. 21, 32 (1982) ("[0]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly."); Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953) (resident aliens have the "constitutional right to procedural due process"). A conditional resident possesses all the rights of a lawful permanent resident. 8 C.F.R. § 216.1 (a conditional resident has "the rights, privileges, responsibilities and duties which apply to all other lawful permanent residents."). To the extent that conditional residents possess due process rights, the procedures by which the INS denies them waivers of the two-year conditional status must comport with basic notions of equity and justice. BACK

(136) Representatives Mazzoli and Slaughter's bill would have permitted conditional resident's to submit any credible evidence on their behalf whether or not it was supported by licensed professionals. See supra note 134. BACK

(137) An author of the battered spouse waiver has stated, "Acceptable proof of battering or extreme cruelty should include affidavits from the abused or others who observed the abuse, reports from shelters, religious workers, community agencies,. and state or local employees." Slaughter-Schroeder Letter, supra note 114, at 1. BACK

(138) See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Chevron held that if a statute's plain language is contrary to agency regulations, then the regulations should be struck down. However, if the statute does not address the question directly, the courts should ask whether the regulation is a reasonable interpretation of the statute if so, courts should defer. Id. at 842-43. BACK

(139) Translation of the legal rules would further ensure that immigrants understood the law. This change in INS policy would not contradict the compelling reasons for encouraging immigrants' mastery of the English language and assimilation into the United States polity. See Peter H. Schuck, The Emerging Political Consensus on Immigration Law, 5 GEO. IMMIG. L.J. 1 (1991). Though the use of English should be encouraged to make it easier for immigrants to function and succeed in an English-dominated society, there will usually be, even under ideal circumstances, a time lag before an immigrant will understand the language fluently. Especially since the petitioning process will occur during the first few years of an immigrant's stay in this country, an immigrant's knowledge of English will be most limited at that time. Further, there is little evidence to suggest that the translation of legal information would significantly affect the already powerful incentives to learn English. See id. at 32; see also Robert Suro, Hispanic Pragmatism Seen in Survey, N.Y. TIMES, Dec. 15, 1992, at A20 ("economic self-interest and a driving commitment to be part of American society" create strong incentives to learn English). BACK

(140) Notification Requirements, 8 C.F.R. § 216.2 (1992). This strategy is analogous to the outreach requirements of IRCA which provided immigrants information on their legal options. See Selected Statements of Witnesses Before the House Judiciary Subcommittee on Immigration, Refugees, and International Law on 1986 Immigration Law, Statement of Alan Nelson, Commissioner of the INS, BUREAU NATIONAL AFFAIRS DAILY LABOR REPORT, May 18, 1989, at D1. BACK

(141) Sobieraj Interview, supra note 81 ("The INS was resistant to the whole concept of the legislation."). BACK

(142) Id. BACK

(143) The IMFA has been of dubious fraud prevention value. See Tucker, supra note 60, at 48 (discussing ease of maintaining "appearance of valid relationship for two years without great inconvenience, despite the Marriage Fraud Act"); see also David Moyce, Petitioning on Behalf of an Alien Spouse: Due Process Under the Immigration Laws, 74 CAL. L. REV. 1747 (1986) (criticizing scrutiny leveled at immigrant/citizen marriages as violative of due process, particularly what he calls "marital privacy"). BACK

(144) Peter H. Schuck, The Transformation of Immigration Law, 84 COLUM. L. REV. 1, 87 (1984). BACK

(145) The fear of deportation does not, in itself, indicate fraudulent acquisition of legal status. See supra note 127. BACK

(146) Hodgin, supra note 4. BACK

(147) Lin, supra note 9; see Walt, supra note 1 (citing INS spokesperson who says, "You can't place spouses in servitude for two years just because they're conditional residents."). BACK

(148) PAGELOW, supra note 122, at 97; see also Leung, supra note 40 (citing family counselor at church-affiliated social service organization in San Francisco's Chinatown as saying that some husbands reportedly treat their wives "more like slave servants than equal partners"); Villapando, supra note 32, at 325 (noting that, after investigating "mail-order bride" industry, sociologist observed that many men utilizing the service "beat their wives and treat them little better than slaves."); see supra note 130 for information on citizen children's constitutional rights. BACK

(149) BACK149. Section One of the Thirteenth Amendment to the United States Constitution declares that "[n]either slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. CONST. amend. XIII, § 1. Section Two provides a congressional grant of authority to implement § 1: "Congress shall have power to enforce this article by appropriate legislation." U.S. CONST. amend. XIII, § 2. The Supreme Court has declared that. "Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." Jones v. Alfred H., Mayer Co., 392 -U.S. 409, 440 (1968). Since the post-Civil War era, however, Congress has enacted little legislation that has expressly relied upon the Thirteenth Amendment. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 333 (2d ed. 1988).

(150) Peonage, servitude of forced labor to pay off a debt, violates the Thirteenth Amendment. See, e.g., Pollock v. Williams, 322 U.S. 4 (1944); Taylor v. Georgia 315 U.S. 25 (1942); United States v. Reynolds, 235 U.S. 133 (1914); Bailey v. Alabama, 219 U.S, 219 (1911); Clyatt  v. United States, 197 U.S. 207(1905). BACK

(151) In Pierce v. United States, the Fifth Circuit concluded that Joel  Pierce held young women in involuntary servitude by forcing them into prostitution. 146 F. 2d 84 (5th Cir. 1944), cert denied, 324 U.S.873 (1945). BACK

(152) See, e.g., United States v. Warren, 772 F.2d 827 (11 th Cir. 1985); United States v. Mussry, 726 F.2d 1448, 1453-56 (9th Cir. 1984), cert. denied, 469 U.S. 855 (1984); United States v. Harris, 701 F.2d 1095 (4th Cir. 1983); United States v. Booker, 655 F.2d 562 (4th Cir. 1981); United States v. Bibbs, 564 F.2d 1165, 1168 (5th Cir. 1977). Cf. U.S. v. Shackney, 333 F.2d 475 (2d Cir. 1964). BACK

(153) BACK153. For a discussion of the modern context, see generally John M. Cook, Note, Involuntary Servitude: Modern Conditions Addressed in United States v. Mussry, 34 CATH. U. L. REV. 153 (1984). For analysis of the role of labor in the Thirteenth Amendment, see Lea S. VanderVelde, The Labor Vision of the Thirteenth Amendment, 138 U. PA. L. REV. 437 (1989).
     The Supreme Court's first articulation of the scope of the Thirteenth Amendment is consistent with a modern interpretation of its scope. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72 (1873) (noting that "while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter").

(154) Akhil R. Amar & Daniel Widawsky, Child Abuse As Slavery: A Thirteenth Amendment Response to Deshaney, 105 HARV. L. REV. 1359 (1992). Amar and Widawsky define slavery, for the purposes of the Thirteenth Amendment, as a "power relation of domination, degradation and subservience, in which human beings are treated as chattel, not persons." Id. at 1365. Amar and Widawsky persuasively argue that when a parent systematically perverts the responsibility of custody by assaulting his/her child, "the parent violates the Thirteenth Amendment and should be subject to suit." Id. at 1364. Importantly, Amar and Widawsky also argue that the Thirteenth Amendment "imposes a duty on the state to provide an adequate apparatus to enforce the emancipation of all persons within its jurisdiction." Id. at 1380. See also Civil Rights Cases, 109 U.S. 3, 20 (1883) ("[T]he amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States."). BACK

(155) Joyce E. McConnell, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 YALE J.L. & FEMINISM 207 (1992). McConnell persuasively argues that to "focus only on the economic aspect of slavery as a system of production in the public sphere is to remove slavery from its hellish private context." Id. at 217. McConnell argues that extreme domestic battery, including 11 coerced sexual services," "should be considered as falling within the scope of the involuntary servitude prohibition." Id. at 218. For another innovative application of the Thirteenth Amendment in a modern context, see Andrew Koppelman, Forced Labor. A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. REV. 480 (1990). BACK (END)

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