Category: domestic violence

How to Apply the Board’s Grant of Asylum for Domestic Violence to the Middle East

In recent post I discussed the Board’s decision to allow Guatemalan women to apply for asylum based on a history of domestic violence in their country. As I discussed in that post, the Board left the door open to asylum claims to victims from any country that fails to protect victims of domestic violence because of state inability to protect or inaction. The history of domestic violence in Guatemala in staggering, with the United Nations reporting that 2 women are killed every day because of domestic violence in the country.
Although these numbers are mind-numbing, the numbers in the Middle East are more staggering. These numbers how that, for example, in Lebanon 88% of women were subject to some form of abuse. The question will be whether, on a case by case basis, the abuse will rise to the level of persecution under asylum law. These high numbers of domestic violence cases and the lack of protections for victims opens the door to asylum cases from the Middle East. I know that these cases will come up through the system and I hope that USCIS will grant them because I know that these women deserve protections.

BIA Issues Three Decisions Dealing with the Adam Walsh Act

The Board of Immigration Appeals issued three decision dealing with issues related to the Adam Walsh Act. The Adam Walsh Act prevents USCIS from approving any visa petition filed by a United States citizen if the Petitioner was convicted of a charge relating to the abuse of a minor. The Service could approve the petition if the Petitioner proves that he poses no risk to the beneficiary. The standard used for this discretionary decision is very unclear and convoluted. The decisions clarified nothing.

Unlike other immigration laws, the Adam Walsh Act does not seek to prevent an immigrant from receiving an immigration benefit but prevents a United States citizen from ever moving past a mistake he has committed. Despite the numerous arguments made by advocates to limit the law’s interpretation, the Board decided that the law was retroactive, meaning it applies to cases with convictions before its enactment. The Board also refused to delineate the standard of proof the Petitioner must meet to show that he poses “no risk” to the beneficiary, and in the third case, the Board ruled the the Petitioner bore the burden of proof in showing that his conviction is not a “specified offense against a minor”. The latter allowed the Service to use a case-by-case analysis, and permitted the Service to abdicate the long-standing categorical approach in analyzing such offenses.

As I argued before, there are several constitutional problems with the law. The Board can not rule on constitutional challenges to the laws which it applies. The task of determining the constitutionality of these laws falls on circuit and district courts around the nation. I look forward to the constitutional challenges that advocates will bring forward against this injurious law.

To read the three decision visit here.

Litigating Petitions that might be Barred under the Adam Walsh Act

The Adam Walsh Act Child Protection and Safety Act aims to protect minors from sexual exploitation. Section 402  of the Act meets that goal by preventing a United States citizen or a lawful permanent resident from petitioning for an immigration visa if he has been convicted of a sex crime relating to a minor. The Act applies to petitions filed on or after July 27, 2006, when it was passed by Congress. There is an exception under the law if the sexual assault was consensual and with an adult.
The law gives DHS the discretion to waive the criminal bar under the Act, if the petitioner proves, beyond a reasonable doubt, that he poses no risk to the beneficiary.
There are several problems with the Act. To be clear, I do not condone sexual assault on anyone. However, I have represented many US citizens who have truly reformed. They, themselves, had nothing to do with their past, and were subjected to abuse at a young age. They have reformed and they are leading better lives when they come see me. The law precludes these citizens from applying for their spouses, a right that they should have. The law also limits the petitioner’s right to challenge the Service’s discretion and elevates the burden of proof to beyond a reasonable doubt, the level of proof required in criminal cases. AILA has recently filed an amicus brief  in a challenge to the law. I look forward to the decision on the case.

Fifth Circuit Rules that VAWA Does Not Trump K-1 Bar

The Fifth Circuit ruled last week that the approval of a VAWA petition does not trump the K visa bar. Le v. US Atty Gen. Under the Act, a person who enters the United States as a fiancé may not adjust her status except through marriage to the Petitioner. Le came the United States pursuant to a K-1 fiancé visa. The petitioner was already married and she could not marry him. She subsequently met a United States citizen who was abusive. She petitioned for a VAWA self petition which was approved. She subsequently filed for adjustment of status, which was denied by the District Director and she was placed in proceedings. While in proceedings she argued that she was eligible for adjustment of status or cancellation of removal. The IJ denied her requests since she entered as a K-1 visa holder and the BIA upheld.
Upon review before the Fifth Circuit, Le argued that her status can be adjusted since her approved VAWA petition trumped the K-1 bar. the court refused to follow such reasoning since, as it opined, the statute does not have such exception for VAWA self-petitioners and it could not breathe in such exception when the statutory language does not contain it.
Unfortunately for Ms. Le, the odds were stacked against her and she could not have won the case. VAWA allows an illegal immigrant to adjust her status if she proves that she was subjected to abuse, because the law waives such illegal entry but does not waive the K-1 bar. I wonder if she will petition for certiorari review.


Saudi Arabia Passes Law Against Domestic Violence

I am very cautious about the new development about a new law in Saudi Arabia criminalizing domestic violence. I read a article on CNN mentioning that the new law was passed today criminalizing domestic violence against women, children and domestic servants. Human Rights Watch was very skeptical about the effectiveness of the law, especially in light of the system of male guardianship followed in Saudi Arabia. While I agree with the law, I am doubtful that it will be followed because of some restrictive interpretations of the Quran, the Islamic holy book, which give men the right of guardianship over his wife. As the CNN article mentioned, how could a woman escape her abusive relationship when she could not even drive?  
Another reason for my hesitation is the effect the law would have on domestic servants. This problem is endemic in Saudi Arabia and abroad and is nothing short of human trafficking. Would these domestic servants be allowed to stay in a country where even persons born there, including myself, do not get any immigration benefits?
Regardless, it is too soon to know the full impact of the new law. I think many Middle Eastern countries could benefit from our Violence Against Women Act. I do think this is a step in the right direction. The problem will be enforcement, especially in a culture that does not give a woman her full rights.