Marriage Agencies and Domestic Violence - Russian Ukrainian Belarus Travel Music Woman Dating News

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The Dysfunctional Love Triangle of Mail-Order Brides: Immigration Laws, Expectations and Domestic Violence
------------------------------------------------------------------------------- With the advancement of the internet, the mail-order bride industry has recently begun to flour-ish and is responsible for an estimated 4,000 to 6,000 marriages annually between American men and foreign women. In examining this phenomenon, most scholarly authors agree that the immigrant bride population has a higher rate of domestic violence than the American female population in general, even though there appears to be very little empirical research in this area. This raises the question: What are the factors that increase the susceptibility to domestic violence for immigrant women and mail-order brides? There appears to be an interweaving of several factors: culture, language, family structure, gender portrayals, dif-ferences in motivation and expectations, immigration laws that are oppressive and restrictive, as well as a complete failure to regulate the mail-order bride industry. Through interpretive analysis of scholarly and non-scholarly articles, primary analysis of mail-order bride websites and catalogs, inspection of immigra-tion laws and personal interviews of immigrant women, a picture begins to develop of an industry that notonly endangers immigrant women, but also prevents them from accessing resources to escape abusive relationships.
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In the days of the wild frontier, American men, through correspondence, would seek out and marry mail-order brides who were shipped out to them in covered wagons. During the 1970’s the mail-order brideindustry began a resurgence and the advancement of the internet has allowed the industry to flourish overthe past decade. In their 1994 book Mail-Order Brides: Women for Sale, Glodava, Mila and Onizukareported that there were 100 mail-order bride companies in existence. By spring of 2002, according to astudy by Scholes and Phataralaoha that was funded by the department of Immigration and NaturalizationServices, there were more than 340 different companies that provided foreign women the opportunity toadvertise for husbands. Scholes and Phataralaoha (2002) translate this into an annual estimate of 100,000 to 150,000 women from a variety of countries that advertise themselves as available for marriage. Scholesand Phataralaoha further estimate that the mail-order bride industry arranges 4,000 to 6,000 marriagesannually between American men and foreign women. According to Bob Burrows, president of CherryBlossoms which has been operating since 1974, his business can generate nearly $2 million annually whileserving over 12,000 men (Scholes & Phataralaoha). In an interview published in Canadian Dimension,Eugene Kantor, owner of an international matchmaking company that matches Russian women withAmerican men, expresses his excitement at the humanitarian prospects of offering people the opportunityto acquire “friendship, perhaps leading to matrimony or at least improved relations” (as quoted in Weir,1990). Despite the perceived humanitarian aspects of the mail-order bride industry, the thought of foreignwomen submitting themselves to this process and American men using such services as a basis from whichto enter a marriage prompts further investigation of the mail-order bride industry. The question of whatmotivates American men and foreign women to choose this particular avenue to matrimony is an intriguingquestion that opens the door to the more serious question of what sort of conflict is created when thesemotivations and expectations do not agree? According to the Jean Kilbourne’s (1999) findings of the Global Report on Women’s HumanRights, “Domestic violence is a leading cause of female injury in almost every country in the world and istypically ignored by the state and only erratically punished” (p. 452). Adding emphasis to this finding isformer surgeon general Antonia Novello who stated that: “...battery is the single greatest cause of injury towomen in America... more than one-third of women slain in this country die at the hands of husbands orboyfriends” (as quoted in Ho, 2003). With incidents of domestic violence and abuse showing up increas-
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ingly in marriages and relationships, nationally it is predicted to occur in 16%-50% of all American mar-riages, what happens to the rate of domestic violence when a marriage involves American men and foreignbrides? Although many scholarly authors agree that the rate of abuse is much higher in the immigrant bride population (estimated to be up to 77% of all international marriages), there are no significant studies aboutthe plight of battered immigrant brides. This begs the specific question that this paper addresses: What arethe factors that increase the susceptibility to domestic violence for mail-order and immigrant brides?Although there is a plethora of statistics illustrating the seriousness and prevalence of domestic vio-lence against American women, there is very little information in regards to the plight of battered immi-grant women and even less on battered immigrant brides. Could this simply be an oversight or hasAmerican society simply been content to break domestic violence down to the population of Americanwomen and no further? What other factors might be involved in the lack of information relating to the rateof domestic violence in the immigrant bride population? In her descriptive study titled Domestic Violenceand Asian Immigrant Women, Marianne Yoshioka (1999) points out:The limited research available suggests that a complex interweaving of cultural, environmental, andinterpersonal factors contribute to risk of violence among immigrant families. Traditional Asian val-ues of privacy, honor, self-restraint, harmony and order may encourage minimization and hiding offamily problems.As this passage illustrates, among the many factors involved in the failure to discover incidents of domesticviolence among immigrant brides, cultural factors play a significant part in denying the very existence ofdomestic violence among many immigrant cultures. Expanding on this point, Sudha Shetty (2003) asserts that several foreign cultures maintain “cultur-al beliefs and practices that provide rationalizations used to excuse or deny the existence of domestic vio-lence in immigrant communities.” After all, it would be nearly impossible to be held up as a “model minor-ity” if there were incidents of domestic violence prevalent in that minority community. When leaders inminority communities deny the existence of domestic violence it becomes difficult, if not impossible, toestablish and promote accessible community-based resources for battered immigrant women. This has theeffect of not only minimizing awareness to the rate of domestic violence, it also prevents resources
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immigrant women to escape an abusive relationship. Closely related to, if not intertwined with, culture is the role of familial structure of immigrant fam-ilies and how that structure contributes to the minimizing and hiding of problems such as domestic vio-lence. Shetty (2003) contends that many foreign countries have a “frequent reliance on patrilineal familystructures, with males having the most authority and females expected to obey that authority.” She reportedfurther that many immigrant women find their particular familial roles to be “daughters, wives, and moth-ers living with the expectation that they will sacrifice themselves for their families.” These findings indi-cate that maintaining family harmony through cooperation and self-sacrifice is a traditional role and foun-dation for many immigrant women. As an example, Shetty offers the scenario of Asian battered womenwho may recant stories of abuse when interviewed by police in order to support a strong family system. Ina vicious circle of repeating violence, this strategy for coping not only allows for the continuation of anabusive relationship, it also prevents the use of resources and minimizes and hides the abuse.If cultural and familial structures play important and significant internal roles in increasing animmigrant bride’s susceptibility to domestic violence, then gender portrayal in the media plays just as sig-nificant an external role. The portrayals of men and women in mail-order bride catalogs and websites differgreatly and the positioning of the participants creates an immediate imbalanceof power primarily due to race and gender. As an example, in most advertise-ments in the Anastasia catalog, women were listed first by their ad number, theirorigin, then by their age, height, weight and whether or not they have any chil-dren. Only then were careers, hobbies and interests listed. In several cases, col-lage ads were displayed that featured only suggestive photos, the websiteaddress and advertisement numbers. But the most noticeable emphasis, arguablythe only thing that truly matters to the men viewing these advertisements, werethe photographs submitted by the applicants. Although the magazines claim that they only accept amateur photographsfor advertisements, it is obvious that most of these photos were of a GlamourShots variety. In Glamour Shots photographs, women (and occasionally men)
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can pay a price to be “made-over,” complete with new hairstyle and wardrobe, into a glamorous, romantic,superstar version of themselves. Professional photographs are then taken to capture the romantic essenceand star-image of that person. They are glamorous photographs yet they do not give a full representation ofthe person as they exist day in and day out. The photographs in these ads appear to be similar to GlamourShots photographs: contrived and glamorous photos yet bordering on sexist, repletewith plunging necklines and see-through blouses. Even A Foreign Affair prints a dis-claimer about not putting too much emphasis on these photos, saying “The point isthat the woman in the photo may look quite different in real life.”Although several of these photos are flattering girl-next-door facialportraits, there is a pervasive feeling of sex sells and that each photo-graph is chosen to present the utmost in sensuality and sexual avail-ability. Clear examples of this can be taken from examining the pho-tos on this page, which appeared in advertisements in Anastasia andA Foreign Affair catalogs and the Asian Blossoms website. So what is wrong with this portrayal of women as sexualobjects? Where is the line drawn between beauty pageantry andprostitution (and isn’t the mail-order bride industry simply another form of commercein women)? Shouldn’t the women with the best physical attributes be the ones whohave positioned themselves to attain marriage into a society that is believedby many to have better opportunities to escape the economic disparitiesimposed simply by geographical karma? It is this very portrayal, althoughencouraged as an advantageous tool in the mail-order bride industry, thatserves to create a glass ceiling that limits, oppresses and victimizes thesesame women and women in general. The results of this victimization fre-quently come in the forms of domestic violence and abuse.Media portrayal of both men and women leads to objectification and may evenencourage domestic violence. In the following passage, Jean Kilbourne (1999) talks about objectification and its ramifications
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Objectification and disconnection contribute to the state of terror. Turning a human being into athing, an object, is almost always the first step toward justifying violence against that person. It isvery difficult, perhaps impossible, to be violent to someone we think of as an equal, someone wehave empathy with, but it is very easy to abuse a thing (p. 452). And isn’t this necessarily what the mail-order bride industry is doing; sorting and placing women, accord-ing to their physical attributes and placing them on the shelves of catalogs and websites to be perused,inspected, compared, admired and admonished as sexual objects, worthy or not, of men’s desires? Examination of the photographs included on this page, obtained from the Anastasia Fall 2002 andA Foreign Affair Volume VIII catalogs, offer stark proof of how these mail-order bride advertisementsencourage objectification of mail-order brides. In the first photograph, taken from a collage containingonly the web address and an advertising number, the advertised woman is shown posing on a city streetwhich encourages the interpretation of her being a prostitute, simply available for sex with no emotionalinvestment required. In the second photograph, the advertised woman is shown witha torn sweater, dangling bra strap and exposed breasts suggesting she is agreeable toviolence and rape. The final photograph shows the advertised woman appearing to benude and in a position that suggests subservience.Uma Narayan (1995), writer of arguably the most-referencedarticle regarding mail-order brides and domestic violence, contends thatthe Asian mail-order bride industry promotes the exploitation of “stereo-types of Asian women, tapping into the existing views of Asian womenas Lotus Blossoms and Geisha girls, devoted and deferential to men, the“feminine” and “delicate” counterparts of their loud, independent west-ern sisters.” It is a stereotype that these websites and catalogs promoteof Asian and Russian brides, touting them as beautiful, faithful, affec-tionate and traditional women. Agreeing with Narayan, former president of thePhilippines Corazon Aquino declared that the mail-order bride industry exploitsPhilippina women and enacted laws making the industry illegal in the Philippines inthe late 1980’s.\
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It is also objectification when the mail-order bride industry offers hundreds of women possessing these qualities for a price. Indeed, for a price of $1,850, Anastasia will take over all of the bothersome work of searching for a life-mate. Included in this “Executive Search” is help writing an introduction letter that will be most appealing to the ladies, translation services, sending and receiving up to 100 letters, a per-sonal weekly database search that identifies women’s profiles that correspond to the man’s profile, andprompt, guaranteed responses. This tutoring of men in obtaining the ideal mate is referred to as the “shot-gun approach” in which it is suggested that volume, not personality and character, is paramount to findinga match and obtaining marital bliss. The women advertised are also coached in ways to be deferrential tothe men writing in order to increase their chances of being selected.If the mainstream media has an influence on the portrayal of men and women as claimed by severalscholarly authors, then what is its effect on the portrayal of male-order bride marriages? Mia Consalvo’sexploration of the Susana Blackwell murder revealed some interesting information on media portrayals.Consalvo (1998) determined that there was bias in the mainstream media coverage of the shooting deathsof a mail-order bride, Susana Blackwell, and two of her friends in the Seattle Federal Courthouse by herAmerican husband, Tim Blackwell. Consalvo did a primary source analysis of coverage in the SeattleTimes and the Seattle Post-Intelligencer, and contrasted that with analysis of the coverage provided by thesmaller, independent newspapers the Asian Weekly and the International Examiner. From Consalvo’sobservations, perhaps the most symbolic conclusion was that Suasana’s marriage was not portrayed asbeing equal to other marriages because she was “ordered” through the mail. From the use of only heradvertisement photo, which prevented any real ability for the reader to empathize or view her as a personrather than a product, to the emphasis of Susana being from an island province, suggesting rural life andperhaps poverty, there was an initial qualitative difference in the portrayal of class and race for each personin this marriage. Key to defining the power and influence of media, Consalvo (1998) concludes that thenews media is a powerful source for determining and portraying “reality” in our society. As a result,Consalvo argues, “how the news media constructs reality must be continually examined in order to ensurethat competing views surrounding issues such as immigrant women’s agencies and domestic violence willbe given the coverage they deserve” (p. 20).And what of the portrayal of the men who use the services of the mail-order bride industry?
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Scholarly authors unanimously agree that they are older white men who are politically conservative, col-lege-educated, earning a higher than average income, and frustrated by the women’s movement (Narayan,1995; Ho, 2003). It is often suggested by scholarly writers that those men who use mail-order bride ser-vices are stereotyped as losers and “not normal” (Narayan, 1995, p. 108; Ho, 2003 p. 11; Consalvo, 1998,p. 6; Scholes & Phataralaoha, 2002, p. 2) due to their inability to marry locally. Where the women adver-tising in mail-order bride services are perceived to be motivated by the desire to improve their standard ofliving and increase their chances for a stable, strong family. The men are perceived as being motivated bysexist and racist goals, seeking total dependence and control. As Narayan (1995) contends, these men arebelieved to be “disenchanted with changing gender roles in American society and blame the women’smovement for their inability to find locally the sort of woman they wish to marry.”And it is just these types of men that mail-order bride catalogs such as Anastasia are targeting. Forexample, the following is an excerpt from the Fall 2002 Anastasia catalog: But of course, most Russian women want to find a decent husband. Unfortunately, a huge number of women wind up with men who deep down, feel like failures. No woman wants to spend her life playing nursemaid to a man who feels beaten down, and raising her children in an atmosphere of hopelessness. Ultimately, all of these issues add up to one very simple problem, for Russian and Ukrainian women; they simply cannot find a stable, decent husband. In the same way that many American men have become generally dissatisfied with American women, the ladies involved with Anastasia are also looking for alternatives to the kinds of men they can marry in their own coun-tries. (Anastasia, 2002, p. 25)This subtle tactic is obviously aimed at targeting men who think themselves to be rugged, strong and capable , characteristics that modern media portrayals define as real and successful men. As Kilbourne(1999) claimed, “Advertising often encourages women to be attracted to hostile men while encouragingboys to become those men” (p. 447). This tactic also levels the playing field for men who may have doubtsabout being able to obtain a beautiful bride by implying that these women, even though beautiful, are alsodisenchanted with their own search for a husband. Not only does Anastasia (2002) level the playing fieldbut they proceed to further degrade the status of women from the start when they portray them as “unlikeAmerican women,... raised to respect the traditional roles of men and women in marriage, not to see those
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roles as a ‘threat’ to their self-image. Russian women still expect their men to fill their traditional roles asthe ‘Head of the Family, Father figure, Patriarch, etc...’” (p. 25). This implies an automatic sense of superi-ority and a higher status to those men that participate in the mail-order bride industry. This stereotype sim-ply serves to portray Russian women as more desirable than American women by virtue of a subservientrole in marriage.Another example can be had from a similar response in Volume 8 of A Foreign Affair catalog inwhich it is stated that, “The Russian culture does not glorify youth as does ours, thus many of the womenseek men who are 10 to 15 years their senior. They feel older men will be more mature, stable and support-ive, thus providing a solid foundation on which to build a strong family” (p. 17). Agreeing with this tactic,www.Asian-brides.com offers this response on their frequently asked questions page, “Asian women have ahistory and reverence for the mature, older man and they seek the comfort and solace of their wisdom.”These examples illustrate generalizations that disarm American men from feeling threatened that thesewomen are seeking only a meal-ticket way into America as well as encouraging the gender-based doublestandard of youth being attractive in women and age and experience being attractive in men.If there are opposing differences in the portrayals of men and women participants in the mail-orderbride industry, then how do differences in motivation by gender play a factor? Paraphrasing Narayan(1995), men seeking mail-order brides are motivated by racist and sexist stereotypes in an attempt toobtain a beautiful, faithful, affectionate wife who is totally dependent on them, who will not seek workoutside the home and is devoted to both family and husband. As Scholes and Phataralaoha (2002) havenoted, foreign women are motivated by the search for a “better life” in socio-economic terms, havingcome from countries where there is little opportunity for women and that are stricken with high unem-ployment and political strife. According to scholarly writers, these differences in motivation betweenAmerican men and immigrant women create an initial imbalance of power. This imbalance results in theAmerican men immediately being put in a position of superiority as the “breadwinner” and permanent law-ful resident. In several ways, Immigration laws further skew this imbalance of power. Immigration laws current-ly require immigrant brides to be living with their spouse in marriage for two years before the permanentlawful resident (usually the spouse) can petition to remove the conditional resident status of the bride
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(Immigration and Naturalization Service, 1996). In other words, the spouse holds the power and sole dis-cretion of whether or not to petition for a change to permanent legal resident status for the immigrantbride. This is frequently used by the spouse as a tool of power in immigrant bride marriages (Narayan,1995). Immigration laws prohibit immigrant brides from working during this two year term increasing thelikelihood of financial dependence on the spouse. Those immigrants “entering the country after August 22,1996 will not be eligible for federal financial assistance for a period of five years,” according to Minty SiuChung, a Washington D.C. lawyer based with the National Network for Battered Immigrant Women(Capellaro, 1997). Further exacerbating this imbalance of power, immigrant brides are often forced intofurther dependence by the trauma of relocating to a foreign country where they know little of the languageor resources and are removed from familial and social support systems. This leaves little opportunity orincentive to escape abusive relationships.Immigration laws currently project a guilty-until-proven-innocent image for immigrant brides.Although there have been recent enactments of ammendments to immigration laws that allow for the self-petitioning for permanent resident status due to abuse, these requirements fall short of protecting immi-grant brides. If immigrant brides self-petition for permanent resident status on the basis of domestic vio-lence they must prove: 1-They, or their children, are the victims of violence, abuse or were subjected toextreme cruelty; 2- They entered the marriage in good faith; and that, 3- They are of “good moral charac-ter” (U.S.Department of Justice, 1996). How does one prove that they are of “good character moral?” Howdoes one prove that they have been subjected to abuse or extreme cruelty, other than allowing it to happento themselves or their children? It is these types of requirements that give the immigration laws the aura ofguilty-until-proven-innocent.Also of serious consequence to preventing access to resources for escaping an abusive relationship,there is minimal supervision of the mail-order bride industry as a whole. According to the U.S.Department of State (2003), while mail-order bride and international matchmaking agencies are considered
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legitimate businesses, “they are almost completely unregulated [and] there is generally no obligation forfull disclosure, no liability, and no obligation to give the women information about their rights.” The com-plete lack of regulation allows for the advertisement, in some cases, of minor women in foreign countries.The Global Survival Network (U.S. Department of State, 2003) has found that marriage agencies “general-ly do not screen their male clients, even though some have backgrounds that include domestic violence.”This is of particular contrast when referring to the requirement of Russian women to show their passportand go through background checks and be screened for marital status and criminal records prior to attend-ing social events on romantic tours.Adding to this scholarly body of knowledge, a survey and personal interviews were conducted.Personal interviews were held with five legal immigrant women who fall under the immigration classifica-tion of conditional resident. Responses to survey questions were received from three separate domestic vio-lence resource agencies and two cultural organizations. In personal interviews, participants were chosen bytheir status as female conditional residents and as legal immigrants. Each participant was interviewed sepa-rately and asked a series of questions designed to ascertain their experience and exposure to domestic vio-lence and understanding of resources for domestic violence (see Appendix for specific questions). Throughthese personal interviews, data has been generated supporting claims that culture and race play significantparts in preventing domestic violence as well as suggesting that there is a lack of awareness among immi-grant women in regards to resources for escaping domestic violence. Lina Chau (2003), a 29 year old Vietnamese immigrant, expressed that in her immigrant communi-ty “most women are reluctant to claim abuse because it is seen to be a personal family matter” echoingresearch indicating family structures can hide and minimize instances of domestic violence. Chau claimedthat when she came to America in 1993 as a 19 year old, “Nobody talk to me about violence. I was accept-ed into school and struggled, but not one time did anybody ask me about violence or abuse.” Lina has notcompleted her high school education and has no plans to become a permanent citizen although she doeswork two jobs and supports herself, two children and her mother. Wieslawa Paleczny (2003), a 49 year old of Polish descent, claimed that “when you come toAmerica, nobody gives you any information. Most immigrant women are intimidated by the whole system
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and don’t understand what are their options.” Ludmila Skolnik (2003), a 49 year old Ukranian immigrantadmitted in her interview that “when I come to America, I am simple woman. I don’t need police to inter-fere in my marriage. Sometimes, you see friends who are beaten by their husband, but it is a family matterand so you simply support the wife. Men, they have a lot of responsibilities and pressure, you take thegood with the bad.” Lyuda Putin (2003), a 28 year old immigrant from the former Soviet Union remarkedthat, “a couple of my friends had tried the matchmaking agencies. A lot of us were encouraged to find aman who would take us to America. My friend Oksana came to America through a bride catalog and shedid not last many months before she could not take the abuse. When she told her husband she wanted to goback home, he let her, but now she is back in the same situation at home... no future and no opportunityeven to have a good family. I was lucky that my father was able to find work and bring us over.” Theseexamples further exemplify the cultural restrictions that further limit access to resources for immigrantwomen escaping abusive relationships. Contesting the theory of immigrant women seeking only permanentresidency in America, none of these women have plans to attempt to gain permanent resident status.The lack of empirical evidence and data regarding the rate of domestic violence among immigrantwomen clearly shows a need to further examine this topic. Regardless of this lack of data, it has becomeapparent that there are several factors that appear to increase susceptibility to domestic violence for theimmigrant bride population. Several of the internal factors involved, including cultural and language barri-ers, family structure, gender portrayals and differences in motivation, can only be adequately addressedthrough educational and awareness campaigns. These campaigns can be organized through a coalition ofimmigrant women’s advocates and domestic violence resource agencies. This is evident in the recent cre-ation of such organizations as the Battered Immigrant Women’s Network, the Immigrant Women’s TaskForce, and the Violence Against Women coalition.In regards to external factors, regulation of the mail-order bride industry and international-match-making agencies must occur. There is an obvious need for regulation which must include requirements onproactively providing information and classes regarding resources for escaping domestic violence andabuse. Information regarding legal rights and how to access the legal system must also be included, as wellas information on the process of self-petitioning for permanent resident status. It would appear that a more
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proactive approach in regards to supply information would allow these women the opportunity to makesound judgements regarding their own personal safety. This could perhaps be administered through theImmigration and Naturalization Services and supported by funding from the imposition of specific taxes orfees imposed on mail-order bride and international matchmaking businesses as a requirement for licensing. Changes in immigration laws and restrictions are paramount to transforming the immigrationprocess from a guilty-until-proven-innocent process. Alteration of restrictions preventing immigrant bridesfrom seeking employment for two years and elimination of the five-year waiting period before being eligi-ble for governmental financial assistance can minimize some of the factors that work to prevent detectionof domestic violence in the immigrant bride population. Literature and information should also be mademandatory as part of a personal interview process when applying for the so-called fiancee visas. Immigrantwomen who are participating should be provided with access to criminal history and backgrounds ofpotential husbands in order to allow them to make better judgements when agreeing to enter an internation-al marriage. By accomplishing these types of changes, the government would show a willingness to beproactive in addressing this important topic. After all, as a democratic nation self-described as a meltingpot, why should we restrict and subject immigrant brides to the same oppressive conditions, abuse and lackof fundamental rights that we publicly scold other countries for?
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ReferencesAnderson, M. (1999). A license to abuse: The impact of conditional Status on female immigrants.Retrieved March 6, 2003 from: http://www.nostatusquo.com/ACLU/and.../htm.Capellaro, C. (1997). Help for battered immigrant women. The Progressive 61(7). Retrieved February 25,2003 from Expanded American Academic Index: http://web7.infotrac.galegroup.com/Chau, L. (2003, March 4). Interview.Consalvo, M. (1998). “3 Shot Dead in Courthouse”: examining news coverage of domestic violence andmail-order brides. Women’s Studies in Communication 21 (2), 188-213. Retrieved January 29,2003 from .Ho, C. (2003) The circuit of culture of mail-order brides. Retrieved February 13, 2003 fromhttp://us_asians.tripod.com/articles-mailorder-bride.html .Kilbourne, J. (1999). “Two ways a woman can get hurt”: Advertising and violence. In G. Colombo, R.Cullen, B. Lisle (editors). Rereading America, Cultural contexts for critical thinking and writing(pp. 444-464). New York. Bedford/St.Martin’s.Glodava, Mila & Onizuka R. (1994). Mail-order brides: Women for sale. Colorado. Alaken, Inc.Narayan, U. (1995). “Male-order” brides: immigrant women, domestic violence and immigration law.Hypatia 10(1), 104-116. Retrieved February 3, 2003 from Expanded American Academic Index.Nishioka, J. (1999, August 4) Love links & listings: The internet makes it easier for potential mates to con-nect across seas. AsianWeek, p. 15. Retrieved February 4, 2003 from Proquest.
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Dysfunctional Love Triangle 16Paleczny, W. (2003, February 25). Interview.Putin, L. (2003, February 26). Interview.Scholes, R.J., Phataralaoha, A. (2002). The “mail-order bride” industry and its impact on immigration.Retrieved January 29, 2003 from the Immigration and Naturalization website:http://www.ins.usdoj.gov/graphics/a...ies/Mobappa.htm .Shetty, S., Kaguyutan, J. (2002) Immigrant victims of domestic violence: Cultural challenges and availablelegal protections. Retrieved February 6, 2003 fromhttp://www.vaw.umn.edu/documents/vawnet/arimmigrant/arimmigrant.html#abraham2000.Skolnik, L. (2003, March 3). Interview.U.S. Department of Justice. (1996). Petition to classify alien as immediate relative of a United States citi-zen or as a preference immigrant; Self-petitioning for certain battered or abused spouses or chil-dren . Retrieved February 6, 2003 from the Immigration and Naturalization’s Office onViolence Against Women website: http://www.ojp.usdoj.gov/vawo/laws/insvawa.htm.U.S. Department of State. (2003). Mail-order bride companies. Retrieved March 6, 2003 from theInternational Information Programs website:http://usinfo.state.gov/topical/glo...chapt10.htm.Vo, A. (2003, February 25). Interview.Weir, F. (1990). Imperialism of the heart. Canadian Dimension 24 (6), 40-43. Retrieved February 25, 2003from Expanded American Academic Index.
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Yoshioka, M. (1999). Domestic Violence and Asian Immigrant Women. Retrieved February 6, 2003 fromwww.columbia.edu/cu/csswp/research/descriptions/Yosh.htm.Dysfunctional Love Triangle 17

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A License To Abuse:
The Impact of Conditional Status on Female Immigrants
by Michelle J. Anderson

[Text and footnotes of this article are reprinted from The Yale Law Journal. Volume 102 . April 1993 . Number 6. Copyright (c) 1993 by The Yale Law Journal Co., Inc.]

Maria was born in the Dominican Republic. She married a United States citizen, immigrated to this country, and obtained "conditional" resident immigration status, which enabled her to remain legally in the United States provided that she stay wedded to her spouse. Soon afterward, her husband began to brutalize her physically. "One time I had eight stitches in my head and a gash on the other side of my head, and he broke my ribs.... He would bash my head against the wall while we had sex. He kept threatening to kill me if I told the doctor what happened."(1) Afraid of the risk of deportation, Maria endured her husband's treatment for months. After she finally fled, her spouse demanded that she return to his apartment for her immigration documents. At first, she told him, "No, you're going to hit me." But then she realized that she had to go because she needed the papers. She described the consequences: "He beat me on the head. He sat on my stomach. He put a knife to my throat and raped me. Then he threw me naked on the street."(2)

Sue,(3) a Chinese -national, immigrated and obtained conditional residency after marrying a U.S. citizen. Like Maria, Sue had to remain married to maintain her legal immigration status. Unfortunately, the similarities did not end there. Sue's husband repeatedly beat her. "You do exactly what I say, or I'll call Immigration," her husband warned, kicking her in the neck and face. "You need me." Sue feared she would not live. "Her story is typical of the battered immigrant women we see," explains Beckie Masaki, Executive Director of San Francisco's Asian Women's Shelter. "The batterer uses his citizenship to control and humiliate his wife."(4) Pat Eng, founder of the New York Asian Women's Center, concurs, "Batterers invariably use[ ] the threat of deportation as a weapon in the abuse of their alien wives."(5)

Female conditional residents are at risk for abuse due not only to their status as women in a culture in which violence against women is relatively common,(6) but also to their position as immigrants who marry citizens or legal permanent residents (LPR' s).(7) Studies vary widely in estimating the percentage (between 12-50%) of all married women who experience some form of domestic battery in their lives.(8) Whatever the rate in the general population, the percentage for immigrant women is probably higher.(9) Linguistic and cultural differences between spouses may hamper communication, tolerance, and understanding.(10) The immigrant wife may be economically(11) and psychologically(12) dependent upon her spouse, limiting her alternatives to the relationship and placing her at increased risk for domestic violence.(13) Stresses associated with migration itself, discrimination against racial minorities in this country, poverty, unemployment, and crowded living conditions heighten the chance that a husband will become abusive.(14) Forty-eight percent of Latinas in a Coalition for Immigrant Rights and Services study reported that domestic violence against them had increased since they immigrated to the United States.(15) Therefore, conditional resident status affects the lives of women who already face an enhanced risk of domestic violence from their partners.

A statute designed to combat an exaggerated claim of marital fraud, a well-intentioned amendment to limit the statute's draconian effects on battered women, and a meager interpretation of that amendment by the Immigration and Naturalization Service (INS) constitute the conditional residency laws that affect the lives of immigrant women. Like prior laws, but with new presumptions and procedures, the Immigration Marriage Fraud Amendments (IMFA) of 1986 authorize the INS to scrutinize immigrants' nuptial ties to citizens or LPR's in an effort to discover and deport any alien who obtained immigration status fraudulently, through a bogus marriage. Under the IMFA, when a citizen or LPR files a petition with the INS requesting residence for his, immigrant spouse, and the qualifying marriage is less than two years old,(16) the INS awards the immigrant conditional residence. Under conditional residence, the marriage must remain intact for at least two years; otherwise, the immigrant spouse loses her legal status, and becomes deportable. Because an immigrant cannot petition for her own conditional status, battered wives can be trapped in something less than wedded bliss. In 1988, Congress amended the IMFA in an attempt to correct this problem by allowing women who could prove they were battered to adjust from conditional to legal permanent resident status. That amendment was too limited in scope, however, and too narrowly interpreted by the INS. Congress' original attempt to regulate marriage fraud and its legislative and regulatory progeny have thus inadvertently increased abusers' coercive power over conditional resident spouses.

Part I of this Note portrays difficulties facing certain immigrant women by describing two subpopulations of female conditional residents: military brides and so-called "mail-order brides." Part II describes the statutory and regulatory scheme governing immigrant women, including the IMFA of 1986 that Congress enacted to curb illegitimate immigration,(17) the amendment to the statute in 1988,(18) and subsequent INS regulations implementing these laws.(19) Part III argues that the current statutory and regulatory framework exacerbates immigrant women's dependence upon their spouses, establishes unreasonable evidentiary requirements, and ignores community barriers and immigrants' fear of bureaucratic entanglement. Part IV urges that we solve these problems by allowing women to petition for immigration status, establishing reasonable evidentiary requirements, and encouraging confident interaction with bureaucracy.(20) Some proposed solutions would require only new INS regulations that conform with statutory intent, while others would require Congress to amend the present statutory scheme. Part V analyzes the likely impact of these proposed changes.

I. TWO SUBPOPULATIONS OF CONDITIONAL RESIDENTS

Foreign nationals can come to marry U.S. citizens or LPR's in a variety of ways. For example, a citizen may live overseas for some time, marry, and then bring the spouse to the United States, as occasionally occurs with military wives. Sometimes foreign nationals and U.S. citizens or LPR's first come to know each other entirely through the mail, after which the foreign national immigrates and marries, as with many mail-order bride unions. In other circumstances, a foreign national enters the United States on a student, tourist, business, or other visa, marries, or simply remains in this country beyond his or her visa limits, and then weds a legal resident. Other immigrants reside in the United States illegally for some time and then marry citizens or LPR's.

Unique stresses can arise when two people from different cultures marry. Two types of intercultural relationships illustrate some reasons why immigrant women may be particularly susceptible to abuse in these circumstances: marriages involving military and mail-order brides. These conditional residents are not the only immigrant women at risk of battery. Their problems, however, illustrate the power disparity and particular stresses that may operate in families in which conditional resident status applies.

A. Military Brides

Men stationed overseas in the armed forces may marry women born in foreign countries, sometimes referred to as "war brides." As a result of the deployment of U.S. troops in Asian countries, for example, over 200,000 Japanese, Vietnamese, Thai, Korean, and Filipino women have married U.S. servicemen and immigrated to the United States since World War II.(21)

The frequency of abuse in military families is proportionally much greater than in civilian families.(22) Various stresses associated with military life contribute to the increased risk of battery. The transient nature of military service increases social isolation, preventing family members from establishing roots in a community."(23) Employment and financial pressures, as well as extended separation when active duty soldiers are stationed away from home, add pressure to these families' lives.(24) Perhaps most significant, aggressive values indoctrinated into soldiers encourage them to use physical force to express displeasure when faced with domestic problems.(25)

The severity of domestic abuse in military families "makes the usual" patterns of violence in civilian families pale by comparison.(26) In one study, for instance, those employed in the military used weapons on their wives almost twice as often as civilian batterers, and "three-fourths of the military cases were in the dangerously life-endangering category compared to only about one-third of the civilian cases."(27) Researchers have concluded that "[t]he worst of the civilian cases were the norm for the military cases."(28) What is more, since military wives are traditionally expected to participate in and support their husbands' careers, thus playing a special role in the success or failure of those careers,(29) wives are generally reluctant to report spousal abuse to the military police or other authorities."(30)

These problems may be exacerbated for immigrant women. In addition to aggressive military indoctrination, cultural and linguistic differences between the partners can impede communication and increase frustration.(31) Without the nearby support of family and friends, immigrant women are isolated in a foreign environment.(32) Captain Nancy K. Raiha, an army social worker, explains:

In any intercultural marriage differences in norms, values, expectations, and habits may lead to tension and conflict. Social pressures (i.e. discrimination) are sometimes an additional burden to the interracial couple.... Couples who are unable to communicate verbally seem more likely in some cases to resort to physical means of expressing displeasure and frustration.(33)

These stresses on the military family relationship increase the risk that "men who already have a proclivity for acting out their anger" will do so.(34)

One woman's situation typifies the problems immigrants may face as military brides. Merta met her husband while he was stationed in Greece. They married and moved to Texas. Merta spoke little English. Her husband was obsessively jealous and controlling, and he forbade her to leave the house. Playing on her media-inspired image of the United States, he warned her that the outside world was a "death trap." She was forbidden to leave his side or speak to anyone, and he beat her routinely. Not long before she escaped the relationship, Merta's husband had won a "Sergeant of the Year" award.(35)

B. Mail-Order Brides

"Mail-order brides," women who are advertised in catalogs (the most popular of which is entitled Cherry Blossoms)(36) for marriage to American men, generally come from destitute conditions in parts of Asia."(37) Most are born in the Philippines, a country troubled by political strife and high unemployment."(38) Over 70% of Philippine women live in poverty, thus making them particularly vulnerable to the mail-order industry.(39)

The mail-order bride business appears to be thriving.(40) Approximately 200 companies operate in the United States(41) and an estimated 2000 to 3500 American men find wives through these catalogs each year.(42) In June 1990, the government of the Philippines, alarmed at reports of widespread abuse of Philippine women in other countries, outlawed bride agencies. That move simply drove the mail-order business underground without significantly affecting the international trade.(43)

Mail-order bride relationships begin when a company travels to the Philippines (or another economically troubled country) to recruit women for its catalogs.(44) Bolstered by the promise of a glamorous life in the United States,(45) the company convinces multitudes of young Philippine women(46) to list themselves. Typically, an older American man,(47) having become disenchanted with the changing gender roles of the past few decades,(48) joins a mail-order bride club to find a "beautiful, faithful, Asian Wife."(49) The company sends him a catalog with the pictures, vital statistics, and addresses of potential mates. The man usually conducts a mass mailing to women he finds appealing and continues to write to promising prospects, hoping to "woo" one into marriage."(50) Alternatively, the industry encourages him to travel to the Philippines, mail-order catalogs in hand, to track down women using their listed addresses.(51) Mail-order catalogs offer men scripts to use once in the presence of these women. If all else fails, one publisher explains, a man must be a "beast type." "If she can't be taken by [more subtle] tactics, use speed and force," he writes.(52) "As it is said, action is better than words. But I say, 'action with the combination of words are, the best.' But be careful because you might be charged with rape and risk your reputation."(53)

When these cross-cultural interchanges do result in marriage, unrealistic expectations on both sides often mean severe incompatibility at best, and outright abuse at worst.(54) As Carmencita Hernandez, Chair of the Women's Committee of the National Council of Canadian-Filipino Associations, explains, "[w]hen a Filipino woman--who is stereotyped as meek--stands up for herself, the trouble begins."(55) In one case, a twenty-two-year-old woman named Ngan married a U.S. citizen and immigrated to this country. Ngan was not the picture bride her husband believed he had ordered. "The first time he beat me, I was too afraid to do anything about it," she said. The second assault drew blood. Her neighbors took her to the hospital, and then to an Asian battered women's shelter.(56)

The story of a twenty-four-year-old woman named Raco offers another example. Raco married a U.S. citizen who had courted her by mail for ten years. Soon after she came to this country, he began to beat her because of differences she had with his parents. His assaults worsened because she did not want to bear children immediately. When she became pregnant, "[h]e threatened not to sponsor me for permanent residence if I didn't carry the pregnancy to term," she said. But the violence escalated, even after she decided to have the baby.(57) When she was, six-months pregnant, he beat her so fiercely that she feared for the life of her unborn child and fled to a shelter.(58)

What mail-order brides such as Ngan and Raco have in common with military wives such as Merta is that they are all conditional residents. They face the problems of a statutory framework that gives much of the control over their immigration status to their abusive spouses.

II. THE STATUTORY AND REGULATORY

FRAMEWORK

The statutory scheme of conditional residency that affects Ngan, Raco, and Merta consists of two major legislative acts--the Immigration Marriage Fraud Amendments (IMFA) of 1986 and a battered-spouse amendment to the IMFA of 1988--and subsequent INS regulations implementing those acts.

A. The Immigration Marriage Fraud Amendments (IMFA)

After the 1952 Immigration and Nationality Act, an alien who married a U.S. citizen or LPR could, adjust his or her immigration status and become a legal permanent resident without leaving the country.(59) In recent years, however, legislators have become concerned about incidents of "marriage fraud" in which a foreign national marries a citizen or LPR for the sole purpose of obtaining legal immigration status. Believing that a "tide" of foreign-born persons was gaining legal status in this country through dubious marriages,(60) Congress passed the IMFA of, 1986,(61) which created a series of legal encumbrance for those wishing to marry foreign nationals. The IMFA was passed four days after a larger immigration law package called the Immigration Reform and Control Act (IRCA) of 1986.(62)

The IMFA, which primarily burdened female immigrants, changed the status of aliens who marry citizens or LPR's(63) Before the IMFA, when a U.S. citizen or LPR who married a foreign national petitioned for his immigrant spouse, she was afforded permanent residency.(64) Emboldened by a cross-national survey called "Immigration Marriage Fraud: Controls in Most Countries Surveyed Stronger than in U.S.," which found that seven out of twelve countries surveyed had a revokable conditional resident status bestowed on all noncitizens who married citizens, Congress passed the IMFA to require that a citizen or LPR spouse petition for the "conditional"' resident status of his immigrant spouse.(65) The conditional period commenced on the date the immigrant obtained conditional status, not at the beginning of the marriage.(66) After the INS granted the immigrant conditional resident status, the law mandated that conditional status last for a period of at least two years, during which time the couple must remain married.(67) Administrative delays in visa processing meant that an immigrant's conditional status could continue for four years, or more.(68) If the marriage dissolved at any time during the conditional residency, the immigrant lost conditional status in this country and became a deportable illegal alien.(69)

Once the INS granted conditional status, an immigrant became locked in a narrow procedural corridor. She qualified for legal permanent residence only if she and her spouse jointly petitioned the INS before the end of two years to adjust her conditional status to permanent residence. Both, partners had to participate in a personal interview with the INS.(70) All other options for an immigrant to gain legal status evaporated; as a conditional resident she could not adjust her immigration status on any other statutory grounds.(71) Consequently, in most cases, her ability to remain, legally in the United States depended exclusively on the goodwill of her husband and the continued viability of her marriage.(72)

Under the IMFA, the INS waived the joint petition requirement only in rare cases: the death of the citizen spouse, the showing of good-cause termination, or the showing of extreme hardship from deportation.(73) For a divorced conditional resident to obtain a good-cause waiver to the joint petition phase of the process, she had to demonstrate that she entered the marriage in good faith and that she initiated divorce proceedings for "good cause."(74) The regulations did not indicate whether or not spousal abuse qualified as "good cause."(75) Further, divorce proceedings in "no-fault" divorce states such as California produced little evidence to support a claim of "good cause."(76)

Alternatively, a conditional resident must prove that deportation would subject her to "extreme hardship" resulting from circumstances that arose during her two-year conditional residence.(77) Such a showing is difficult to make, particularly since the INS is unlikely to find extreme hardship except in rare cases."(78) Battering by one's spouse in this country would not qualify one for this kind of waiver because extreme hardship from deportation, not the extreme hardship one endures in a marriage, is what is at issue.(79)

B. The Immigration Act of 1990

On September 27, 1989, the House Judiciary Committee on Immigration, Refugees and International Law held a hearing on the domestic violence occurring in marriages between immigrants and American citizens. Representative Louise M. Slaughter described the abuse of one conditional resident in Rochester, New York who sought her help,(80) and her own dismay when, "Once we looked into her legal options, we realized she had none."(81)

To remedy this dilemma, Representative Slaughter introduced a bill in the House called the Marriage Fraud Amendments Act of 1989.(82) Representative Bruce, Morrison included a version of this bill in § 701 of his comprehensive immigration legislation which passed in November 29, 1990 and became the Immigration Act of 1990.(83) The legislation's purpose was to provide that both battery and extreme cruelty could qualify an immigrant for a waiver of conditional status whenever, during the two-year period, it is alleged and proven. The amended law states that, if a conditional resident demonstrates that "the qualifying marriage was entered into in good faith by the alien spouse" and that "the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse," then the limitations of conditional resident status are removed and the foreign-born spouse is granted permanent legal resident status.(84)

This legislation also eliminated the good cause waiver and provided a waiver based on the termination of a good faith marriage without regard to who initiated the divorce or the reason for the divorce.(85) Desiring that the law cease to be an instrument by which immigrant women were victimized, Representative Slaughter said she hoped the legislation would provide immigrant spouses "an escape from beatings, insults and fear."(86)

C. The INS Regulations

On May. 16, 1991, the INS published "interim" rules"(87) amending the conditional residence regulations to implement the new legislation."(88) The rules established standards by which immigration officers were to process claims for battered-spouse waivers for adjustment of conditional to permanent status. The waiver exception into INS separated the two spheres: physical battery and extreme mental cruelty.(89) Under the new rules, battered spouses are required to prove abuse by providing the INS with certain types of evidence. Proof of physical battery may include "expert testimony in the form of reports and affidavits from police, judges, medical personnel, school officials and social service agency personnel."(90) The regulations mandate that the INS "must be satisfied with the credibility of the sources of documentation submitted in support of the application."(91)

Documentation requirements for claims of extreme mental cruelty are more stringent. The regulations assert that the INS "is not in a position to evaluate testimony regarding a claim of extreme mental cruelty provided by unlicensed or untrained individuals."(92) Thus, waiver applications based on extreme mental cruelty "must be supported by the evaluation of a professional recognized by the Service as an expert in the field."(93) The only professionals recognized by the INS for the purpose of obtaining extreme mental cruelty waivers are "[l]icensed clinical social workers, psychologists, and psychiatrists."(94) The INS reserves the right to "request additional evaluations from expert witnesses chosen by the Service."(95)

The INS received 180 written responses(96) to the interim rules during the month-long public comment period of May 16 to June 17, 1991.(97) Most of those responses were from agencies serving battered women and immigrants.(98) Every written response to the regulations opposed the evidentiary requirements for proving mental cruelty, and nearly half of them objected to the evidentiary requirements for proving physical assault.(99) Not one of the 180 responses supported the rules as they were written.(100) These letters primarily criticized the way in which the INS rules curtailed the intended benefits of the battered-spouse waiver to the IMFA requirements.

III. PROBLEMS WITH THE STATUTORY AND REGULATORY FRAMEWORK

Although Congress attempted to alleviate the suffering of abused immigrant women through the Immigration Act of 1990, the legislation was flawed and incomplete. Unfortunately, the subsequent INS regulations have made the situation worse. The current statutory and regulatory framework--the IMFA of 1986, the Immigration Act of 1990, and the INS regulations--allows husbands to control the petitioning process for women who have not yet obtained conditional status, establishes evidentiary requirements for adjusting from conditional to permanent status that the vast majority of immigrant women can never hope to meet, and ignores the community barriers facing immigrant women as well as immigrants' fear of bureaucratic entanglement.

A. Husbands' Control Over the Initial Petitioning Process

Under the current regulatory framework, a citizen or LPR must petition the INS to establish the legal conditional residence of his immigrant spouse in situations where the marriage is less than two years old. After the two-year conditional residency, a citizen or LPR must join the immigrant in petitioning the INS to adjust her conditional status to permanent residence. This allows a batterer to coerce his immigrant spouse at two points in the process: 1) before he has ever petitioned the INS for the conditional residency of his immigrant wife, and 2) after he has petitioned for her conditional status, but before he agrees to petition jointly to adjust her conditional status to permanent status. Because the battered-spouse waiver of the Immigration Act of 1990 applies only to those already having conditional status, it attempts to eliminate the potential coercion only in the latter cases.

The legislation and subsequent regulations thus fail to respond to the abuse of what is likely the larger population of battered women--those immigrants whose husbands never filed petitions for their legal status.(101) Such women simply "fall through the cracks."(102) Thus, the battered-spouse waiver does not assist all abused immigrant women. It assists only those whose husbands have already petitioned the INS for their conditional status.

Furthermore, delay tactics can prolong a batterer's coercion over his spouse. Unless they can petition for conditional or permanent status themselves, immigrant women can be trapped in abusive relationships for an indefinite number of years.(103)

B.. Unreasonable Evidentiary Requirements

The INS will not accept credible, personal affidavits as adequate proof of extreme mental cruelty (even if such statements are substantiated by other, nonprofessional affidavits).(104) Thus, the, INS regulations arguably create an "impossibly high standard of proof."(105) Immigrant women usually do not turn to the mental health professionals or to the counselors needed to prove mental cruelty.(106) Indications are that many cannot. A survey of the psychiatrists, psychologists, and clinical social workers in the entire Los Angeles area, which has one of the largest concentrations of immigrants in the United States, revealed that there were "very few" bilingual professionals available. Of those available, most were private and would not evaluate clients without charge.(107) Without resources to pay for a translator or social workers, psychiatrists, or psychologists,(108) an abused immigrant cannot prove extreme mental cruelty.(109) Moreover, the evidence required to establish extreme mental cruelty focuses entirely on the mental state of the victim, rather than on the actions of the abuser. A resilient woman who does not clinically evince the debilitating effects of psychological cruelty may not be able to obtain a waiver, even if she deserves one based on the level of abuse she sustains.

In addition to being excessive for immigrant women, the mental cruelty evidentiary requirement may be inconsistent with congressional intent.(110) Representative Bruce Morrison, who sponsored the Marriage Fraud Amendments Act with Representative Slaughter, responded to the INS interpretation of the law by stating, "The INS has a legitimate concern about fraud and they may rightly require corroboration, but the law we passed made no specific requirement for medical or professional evidence.(111) He went on to explain, "Professional standards are probably doing more than Congress asked for or needed. We directed the INS to write protection regulations, not fraud regulations."' (112)

When confronted with the potential discrepancy between congressional intent and the language of the regulations, Bonnie Derwinski, INS Director for Congressional and Public Affairs, stated that "the potential for misuse of the waiver provision dictates the need for some type of evidence beyond the applicant's simple written assertion that he or she felt unfairly treated in a relationship."(113) Representative Slaughter has responded to the INS claims pointedly: the requirement for professional evaluations for claims based on extreme mental cruelty is "obscene" given the fact that the law seeks to address a class of women who, "almost by definition," do not have access to professional help.(114) Many observers have noted that immigrant women are desperate by the time they seek refuge in a shelter."(115) Representative Slaughter has concluded that the INS regulations enact "excessively stringent and unprecedented proof requirements which undermine Congressional intent."(116) Linda Ikeda-Vogel, executive director of the Center for the Pacific Asian Family in Los Angeles, has concluded that, even with the battered-spouse waiver provisions, "Our clients lose out. Immigrant women are [still] at the mercy of their husbands, despite changes in the law."(117)

C. Community Barriers and Fears of Bureaucratic Entanglement

Poverty, lack of access to services, lack of privacy in extended family dwellings and closely knit communities, and fears for their own safety(118) can impede many battered conditional residents from obtaining waivers under the present regulations.(119) Before she calls for help, an immigrant woman must face the possibility of ending her marriage, which means accepting the social consequences attendant to divorce in her community. As in many nonimmigrant communities, strong mores concerning religion, marriage, divorce, family, and gender roles hinder women from stopping domestic violence and ending abusive relationships.(120) In particular, traditional social systems favoring patriarchal relations(121) are strong predictive variables of violence.(122)

The normative goals of any traditional community can clash in a more obvious fashion with other facets of the legal system. Lawyers and counselors may encourage battered immigrants to seek temporary restraining orders (TRO's) to keep abusive spouses away.(123) An immigrant's fear for her own safety(124) may create in her a strong resistance to confrontation.(125) Hence, many women, when faced with a complex bureaucracy that would force them to risk their safety by being confrontational, will capitulate and become undocumented. Others will simply return to their abusers.(126)

One study of undocumented immigrants found that for 64% of Latinas and 57% of Filipinas, the primary barrier to seeking help from social service agencies is the fear of deportation.(127) Immigrant residents are often terrified of authority, and particularly of the INS.(128) Some women do not call the police for fear that their LPR spouses, if charged with wife battery, may be deported.(129) Economic dependence and fear of being forced to leave the country with their children if their spouses were deported(130) keeps other women wary of police. Many would rather stay in abusive relationships than risk facing the INS and deportation.(131)

IV. SOLUTIONS

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.

V. RESULT OF THESE CHANGES

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.

VI. CONCLUSION

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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