Stories from the front: Seeking refuge for battered immigrants in the violence against women act

Northwestern University Law Review

Volumn 92, Issue 2, 1998, Pages 665-704

  Kelly, Linda ^a  

^a NONE

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EID: 0345759348     PISSN: 00293571     EISSN: None     Source Type: Journal    
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References (282)

1. This story and the others in this Article come from my experience as a supervising professor with the St. Thomas University School of Law Immigration Clinic and other professional and personal experiences I have had serving battered women. Names have been changed or omitted.
2. Congress passed VAWA as part of the Violence Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified as amended in scattered sections of Immigration and Nationality Act, 8 U.S.C.). The more recent 1996 Illegal Immigration Reform and Immigrant Responsibility Act, Pub L. No. 104-208, 110 Stat. 3009 (1996) (IIRIRA), places limitations on VAWA relief. See Linda Kelly, Domestic Violence Survivors: Surviving the Beatings of 1996, 11 GEO. IMMIGR. L.J. 303 (1997); Juan P. Osuna, The 1996 Immigration Act: Adjustment of Status, Battered Spouses, Legalization, and Related Issues, 74 INTERPRETER RELEASES 137 (1997).
3. Congress passed VAWA as part of the Violence Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994) (codified as amended in scattered sections of Immigration and Nationality Act, 8 U.S.C.). The more recent 1996 Illegal Immigration Reform and Immigrant Responsibility Act, Pub L. No. 104-208, 110 Stat. 3009 (1996) (IIRIRA), places limitations on VAWA relief. See Linda Kelly, Domestic Violence Survivors: Surviving the Beatings of 1996, 11 GEO. IMMIGR. L.J. 303 (1997); Juan P. Osuna, The 1996 Immigration Act: Adjustment of Status, Battered Spouses, Legalization, and Related Issues, 74 INTERPRETER RELEASES 137 (1997).
4. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
5. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
6. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
7. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
8. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
9. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
10. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
11. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
12. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
13. For earlier discussions of the unique problems faced at the intersection of domestic violence and immigration, see Janet Calvo, Spouse-Based Immigration Laws: The Legacies of Coverture, 28 SAN DIEGO L. REV. 593 (1991); Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241, 1246-50 (1991) [hereinafter Crenshaw, Mapping the Margins ]; Kimberle Crenshaw, Panel Presentation on Cultural Battery, 25 U. TOL. L. REV. 891, 894-95 (1995) [hereinafter Crenshaw, Panel Presentation ]; see also Felicia E. Franco, Unconditional Safety for Conditional Immigrant Women, 11 BERKELEY WOMEN'S L.J. 99 (1996) (criticizing Immigration Marriage Fraud Amendments (IMFA), as well as improvements and problems created by VAWA); Margaret M.R. O'Herron, Ending the Abuse of the Marriage Fraud Act, 7 GEO. IMMIGR. L.J. 549 (1993) (criticizing the conditional residency provisions created by IMFA and lengthy waiting period for residency due to visa preference system); Leslye Orloff et al., With No Place to Turn: Improving Legal Advocacy for Battered Immigrant Women, 29 FAM. L.Q. 313 (1995); Deborah Weissman, Protecting The Battered Immigrant Woman, 68 FLA. B.J. 81 (1994) (discussing cultural, socioeconomic, and legal barriers facing immigrant women); Susan Girardo Roy, Note, Restoring Hope or Tolerating Abuse? Responses to Domestic Violence Against Immigrant Women, 9 GEO. IMMIGR. L.J. 263 (1995) (discussing cultural and legal issues relating to domestic violence against immigrant women).
14. See Jane Murphy, Lawyering for Social Change: The Power of the Narrative in Domestic Violence Law Reform, 21 HOFSTRA L. REV. 1243 (1993). "[The] legal system's failure to respond effectively seems directly linked to the inability of the predominately male decision makers to understand the victim's need for protection. It is, therefore, an issue where legal storytelling can help create the kind of empathic understanding needed to produce meaningful reform." Id. at 1247.
15. Id. at 1267-68 (relying on stories in Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991)); see also Mari Matsuda, Beside My Sister, Facing the Enemy: Legal Theory out of Coalition, 43 STAN. L. REV. 1183 (1991) (discussing difficulty decisionmakers have understanding problems that have not personally affected them and the need for stories and a coalition approach to encourage empathy).
16. Id. at 1267-68 (relying on stories in Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH. L. REV. 1 (1991)); see also Mari Matsuda, Beside My Sister, Facing the Enemy: Legal Theory out of Coalition, 43 STAN. L. REV. 1183 (1991) (discussing difficulty decisionmakers have understanding problems that have not personally affected them and the need for stories and a coalition approach to encourage empathy).
17. Murphy, supra note 4, at 1268. Yet, while stories help change cultural and legal stereotypes of battered women, there is still a reluctance to using them, as the listener often will filter them through the derogatory stereotypes he or she has of abusers and victims. Mahoney, supra note 5, at 8 nn.30-32.
18. 142 CONG. REC. S4286-02, 4397 (daily ed. Apr. 29, 1996) (statement of Sen. Wellstone during proceedings and debates on the Immigration Control Financial Responsibility Act of 1996, S. 1664, 104th Cong. (1996)) (recounting stories of two battered women who were unable to leave their husbands because of financial dependence). The 1996 welfare reform efforts culminated in the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996) [hereinafter Welfare Act]. IIRIRA also modified certain provisions of the Welfare Act for battered immigrant women. For further discussion of these modifications, see Kelly, supra note 2; Osuna, supra note 2, at 141-44.
19. See Calvo, supra note 3, at 598-600.
20. For example, the female spouses of U.S. citizens and residents remained admissible despite health-related exclusionary grounds and national and numeric quotas. See id. at 598-603 (discussing immigration law from the early 1900s through 1950s).
21. Id.
22. Mackenzie v. Hare, 239 U.S. 299 (1915) (upholding the Citizenship Act of March 2, 1907, which provided that any American woman who marries a foreigner takes his nationality). Citizenship could be regained only upon termination of the marriage. Id. at 307 (discussing provision of Citizenship Act of 1907 that allowed American woman to resume citizenship upon termination of the relationship). Congress could deem marriage an expatriating act through its plenary power over sovereign matters. Congress ultimately repealed this statute in 1922. See Act of Sept. 22, 1922, ch. 411, §§ 1-3, 42 Stat. 1021-22; see also Act of Mar. 3, 1931, ch. 442, § 4, 46 Stat. 1511-12. For further discussion of the plenary power and expatriation by marriage, see Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens' Rights, 41 VILL. L. REV. 725, 752-53 n.137 (1996); David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. PITT. L. REV. 165, 208-09 (1983); Kikuyo Matsumoto-Power, Aliens, Resident Aliens, and U.S. Citizens in the Never-Never Land of the Immigration and Nationality Act, 15 HAW. L. REV. 61, 71 (1993).
23. Mackenzie v. Hare, 239 U.S. 299 (1915) (upholding the Citizenship Act of March 2, 1907, which provided that any American woman who marries a foreigner takes his nationality). Citizenship could be regained only upon termination of the marriage. Id. at 307 (discussing provision of Citizenship Act of 1907 that allowed American woman to resume citizenship upon termination of the relationship). Congress could deem marriage an expatriating act through its plenary power over sovereign matters. Congress ultimately repealed this statute in 1922. See Act of Sept. 22, 1922, ch. 411, §§ 1-3, 42 Stat. 1021- 22; see also Act of Mar. 3, 1931, ch. 442, § 4, 46 Stat. 1511-12. For further discussion of the plenary power and expatriation by marriage, see Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens' Rights, 41 VILL. L. REV. 725, 752-53 n.137 (1996); David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. PITT. L. REV. 165, 208-09 (1983); Kikuyo Matsumoto-Power, Aliens, Resident Aliens, and U.S. Citizens in the Never-Never Land of the Immigration and Nationality Act, 15 HAW. L. REV. 61, 71 (1993).
24. Mackenzie v. Hare, 239 U.S. 299 (1915) (upholding the Citizenship Act of March 2, 1907, which provided that any American woman who marries a foreigner takes his nationality). Citizenship could be regained only upon termination of the marriage. Id. at 307 (discussing provision of Citizenship Act of 1907 that allowed American woman to resume citizenship upon termination of the relationship). Congress could deem marriage an expatriating act through its plenary power over sovereign matters. Congress ultimately repealed this statute in 1922. See Act of Sept. 22, 1922, ch. 411, §§ 1-3, 42 Stat. 1021- 22; see also Act of Mar. 3, 1931, ch. 442, § 4, 46 Stat. 1511-12. For further discussion of the plenary power and expatriation by marriage, see Linda Kelly, Preserving the Fundamental Right to Family Unity: Championing Notions of Social Contract and Community Ties in the Battle of Plenary Power Versus Aliens' Rights, 41 VILL. L. REV. 725, 752-53 n.137 (1996); David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. PITT. L. REV. 165, 208-09 (1983); Kikuyo Matsumoto-Power, Aliens, Resident Aliens, and U.S. Citizens in the Never-Never Land of the Immigration and Nationality Act, 15 HAW. L. REV. 61, 71 (1993).
25. Recognizing the coverture notion of "dominance of the husband" in a marital relationship, a woman's marriage to a foreigner was "tantamount to expatriation," forcing her to assume such consequences as residence abroad. Mackenzie, 239 U.S. at 310-12.
26. Immigration and Nationality Act of 1952 (1952 Act), Pub. L. No. 414, 66 Stat. 166 (1952). See Calvo, supra note 3, at 603-05.
27. Calvo, supra note 3, at 603-05. In modifying and consolidating prior immigration laws, the legislators responsible for the passage of the 1952 Act considered the issue of inequality. In a 1950 report, the Senate Judiciary Committee concluded that "there is no justification for according different treatment to the sexes under the immigration laws" and a recommendation was made that "the laws be amended to remove all such inequalities." Id. at 604 (quoting S. REP. No. 81-1514, at 417 (1950)). For discussion and criticism of family and spouse-based immigration categories, see T. ALEXANDER ALEINKOFF ET AL., IMMIGRATION PROCESS AND POLICY, 125-28, 175-89 (3d ed. 1995); John W. Guendelsberger, Implementing Family Unification Rights in American Immigration Law: Proposed Amendments, 25 SAN DIEGO L. REV. 253 (1988); John W. Guendelsberger, The Right to Family Unification in French and United States Immigration Law, 21 CORNELL INT'L L.J. 1 (1988); Kelly, supra note 11; Matsumoto-Power, supra note 11; Hiroshi Motomura, The Family and Immigration: A Roadmap for the Ruritanian Lawmaker, 43 AM. J. COMP. L. 511 (1995). For further history of U.S. immigration laws, see generally ALEINKOFF ET AL., supra, at 41-66.
28. Calvo, supra note 3, at 603-05. In modifying and consolidating prior immigration laws, the legislators responsible for the passage of the 1952 Act considered the issue of inequality. In a 1950 report, the Senate Judiciary Committee concluded that "there is no justification for according different treatment to the sexes under the immigration laws" and a recommendation was made that "the laws be amended to remove all such inequalities." Id. at 604 (quoting S. REP. No. 81-1514, at 417 (1950)). For discussion and criticism of family and spouse-based immigration categories, see T. ALEXANDER ALEINKOFF ET AL., IMMIGRATION PROCESS AND POLICY, 125-28, 175-89 (3d ed. 1995); John W. Guendelsberger, Implementing Family Unification Rights in American Immigration Law: Proposed Amendments, 25 SAN DIEGO L. REV. 253 (1988); John W. Guendelsberger, The Right to Family Unification in French and United States Immigration Law, 21 CORNELL INT'L L.J. 1 (1988); Kelly, supra note 11; Matsumoto-Power, supra note 11; Hiroshi Motomura, The Family and Immigration: A Roadmap for the Ruritanian Lawmaker, 43 AM. J. COMP. L. 511 (1995). For further history of U.S. immigration laws, see generally ALEINKOFF ET AL., supra, at 41-66.
29. Calvo, supra note 3, at 603-05. In modifying and consolidating prior immigration laws, the legislators responsible for the passage of the 1952 Act considered the issue of inequality. In a 1950 report, the Senate Judiciary Committee concluded that "there is no justification for according different treatment to the sexes under the immigration laws" and a recommendation was made that "the laws be amended to remove all such inequalities." Id. at 604 (quoting S. REP. No. 81-1514, at 417 (1950)). For discussion and criticism of family and spouse-based immigration categories, see T. ALEXANDER ALEINKOFF ET AL., IMMIGRATION PROCESS AND POLICY, 125-28, 175-89 (3d ed. 1995); John W. Guendelsberger, Implementing Family Unification Rights in American Immigration Law: Proposed Amendments, 25 SAN DIEGO L. REV. 253 (1988); John W. Guendelsberger, The Right to Family Unification in French and United States Immigration Law, 21 CORNELL INT'L L.J. 1 (1988); Kelly, supra note 11; Matsumoto-Power, supra note 11; Hiroshi Motomura, The Family and Immigration: A Roadmap for the Ruritanian Lawmaker, 43 AM. J. COMP. L. 511 (1995). For further history of U.S. immigration laws, see generally ALEINKOFF ET AL., supra, at 41-66.
30. Calvo, supra note 3, at 603-05. In modifying and consolidating prior immigration laws, the legislators responsible for the passage of the 1952 Act considered the issue of inequality. In a 1950 report, the Senate Judiciary Committee concluded that "there is no justification for according different treatment to the sexes under the immigration laws" and a recommendation was made that "the laws be amended to remove all such inequalities." Id. at 604 (quoting S. REP. No. 81-1514, at 417 (1950)). For discussion and criticism of family and spouse-based immigration categories, see T. ALEXANDER ALEINKOFF ET AL., IMMIGRATION PROCESS AND POLICY, 125-28, 175-89 (3d ed. 1995); John W. Guendelsberger, Implementing Family Unification Rights in American Immigration Law: Proposed Amendments, 25 SAN DIEGO L. REV. 253 (1988); John W. Guendelsberger, The Right to Family Unification in French and United States Immigration Law, 21 CORNELL INT'L L.J. 1 (1988); Kelly, supra note 11; Matsumoto-Power, supra note 11; Hiroshi Motomura, The Family and Immigration: A Roadmap for the Ruritanian Lawmaker, 43 AM. J. COMP. L. 511 (1995). For further history of U.S. immigration laws, see generally ALEINKOFF ET AL., supra, at 41-66.
31. See Act of October 3, 1965, Pub. L. No. 236, 79 Stat. 911 (1965); see also Calvo, supra note 3, at 605-06.
32. See Calvo, supra note 3, at 605-06.
33. See id.
34. Pub. L. No. 99-639, 100 Stat. 3537 (codified as amended in scattered sections of INA, 8 U.S.C.). See Calvo, supra note 3, at 606-12.
35. INA § 216(a), (g), 8 U.S.C. § 1186a(a),(g) (1994). Such legislation was based upon an Immigration and Naturalization Service (INS) study which claimed that 30% of the marriages in marriage-based immigrant petitions were fraudulent. This study was later revealed to be flawed. See infra note 119 and accompanying text discussing such studies. While the conditional residency provisions apply in theory to both the spouses of U.S. citizens and lawful permanent residents, they currently do not apply in practice to the spouses of lawful permanent residents. As the spouses of lawful permanent residents are subject to a visa limitation backlog with a wait currently longer than two years, at the time of finally acquiring residency they have been married longer than two years and thus not subject to conditional residency. See INA §§ 201(a)(1), 203(a)(2), 8 U.S.C. §§ 1151(a)(1), 1153(a)(2); see also, e.g., Immigrant Visa Preference Numbers for March 1997 (reproduced in 74 INTERPRETER RELEASES 312) (establishing current wait of four years for spouses of lawful permanent residents).
36. See INA § 216(a)(1), 8 U.S.C. § 1186a(a)(1).
37. See INA § 216(b)-(d), 8 U.S.C. § 1186a(b)-(d). See generally Calvo, supra note 3, at 606-08.
38. See INA § 216(c)(3)(A)(ii), 8 U.S.C. § 1186a(c)(3)(A)(ii). In the discretion of the Attorney General, these second interviews may be waived. See INA § 216(d)(3), 8 U.S.C. § 1186a(d)(3). In the author's experience, if the paperwork is complete and the petition well documented, these interviews typically are waived. See also ALEINKOFF ET AL., supra note 14, at 184.
39. INA § 216(b)(2), 8 U.S.C. § 1186a(b)(2) (providing for termination of permanent residence for failing to complete requirements at end of period of conditional residency). See Calvo, supra note 3, at 606-08. IMFA did provide for limited exceptions to the requirement of the lawful spouse's participation in the final steps of the filing of the petition to remove conditions and subsequent interviews. As initially passed, IMFA allowed for the waiver of joint filing if the U.S. citizen or lawful permanent resident spouse died, or if the alien spouse could meet the requirement of the extreme hardship or good faith, good cause waiver. Contrary to congressional intent, these waivers were not interpreted to apply to a spouse simply upon evidence of being battered by her lawful husband. See Calvo, supra note 3, at 608-11.
40. See Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class, 42 UCLA L. REV. 1509, 1549-50 (1995). Noting that since the 1930s the majority of immigrants have been female, Calvo emphasizes how laws such as IMFA disproportionately effect women. Calvo, supra note 3, at 614-16.
41. See CHRIS HOGELAND & KAREN ROSEN, DREAMS LOST, DREAMS FOUND: UNDOCUMENTED WOMEN IN THE LAND OF OPPORTUNITY 12-13 (1990);
42. Johnson, supra note 24, at 1551; see also Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing the ability of gender neutral laws to perpetuate gender discrimination and violence). Apart from legislation, social services for abused women also risk failing to consider the intersection of immigration and domestic violence, thus falling short of effectively helping battered immigrant women. See Naomi Cahn & Joan S. Meier, Domestic Violence and Feminist Jurisprudence: Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339, 358 (1995); Crenshaw, Mapping the Margins, supra note 3, at 1262-65; Crenshaw, Panel Presentation, supra note 3, at 900-01; Johnson, supra note 24, at 1552; Debbie Lee, Accessibility: Serving a Changing Community, in DOMESTIC VIOLENCE IN IMMIGRANT AND REFUGEE COMMUNITIES: ASSERTING THE RIGHTS OF BATTERED WOMEN (Deeana Jang et al. eds., 1991).
43. Johnson, supra note 24, at 1551; see also Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing the ability of gender neutral laws to perpetuate gender discrimination and violence). Apart from legislation, social services for abused women also risk failing to consider the intersection of immigration and domestic violence, thus falling short of effectively helping battered immigrant women. See Naomi Cahn & Joan S. Meier, Domestic Violence and Feminist Jurisprudence: Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339, 358 (1995); Crenshaw, Mapping the Margins, supra note 3, at 1262-65; Crenshaw, Panel Presentation, supra note 3, at 900-01; Johnson, supra note 24, at 1552; Debbie Lee, Accessibility: Serving a Changing Community, in DOMESTIC VIOLENCE IN IMMIGRANT AND REFUGEE COMMUNITIES: ASSERTING THE RIGHTS OF BATTERED WOMEN (Deeana Jang et al. eds., 1991).
44. Johnson, supra note 24, at 1551; see also Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing the ability of gender neutral laws to perpetuate gender discrimination and violence). Apart from legislation, social services for abused women also risk failing to consider the intersection of immigration and domestic violence, thus falling short of effectively helping battered immigrant women. See Naomi Cahn & Joan S. Meier, Domestic Violence and Feminist Jurisprudence: Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339, 358 (1995); Crenshaw, Mapping the Margins, supra note 3, at 1262-65; Crenshaw, Panel Presentation, supra note 3, at 900-01; Johnson, supra note 24, at 1552; Debbie Lee, Accessibility: Serving a Changing Community, in DOMESTIC VIOLENCE IN IMMIGRANT AND REFUGEE COMMUNITIES: ASSERTING THE RIGHTS OF BATTERED WOMEN (Deeana Jang et al. eds., 1991).
45. Johnson, supra note 24, at 1551; see also Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing the ability of gender neutral laws to perpetuate gender discrimination and violence). Apart from legislation, social services for abused women also risk failing to consider the intersection of immigration and domestic violence, thus falling short of effectively helping battered immigrant women. See Naomi Cahn & Joan S. Meier, Domestic Violence and Feminist Jurisprudence: Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339, 358 (1995); Crenshaw, Mapping the Margins, supra note 3, at 1262-65; Crenshaw, Panel Presentation, supra note 3, at 900-01; Johnson, supra note 24, at 1552; Debbie Lee, Accessibility: Serving a Changing Community, in DOMESTIC VIOLENCE IN IMMIGRANT AND REFUGEE COMMUNITIES: ASSERTING THE RIGHTS OF BATTERED WOMEN (Deeana Jang et al. eds., 1991).
46. Johnson, supra note 24, at 1551; see also Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L.J. 2117 (1996) (discussing the ability of gender neutral laws to perpetuate gender discrimination and violence). Apart from legislation, social services for abused women also risk failing to consider the intersection of immigration and domestic violence, thus falling short of effectively helping battered immigrant women. See Naomi Cahn & Joan S. Meier, Domestic Violence and Feminist Jurisprudence: Towards a New Agenda, 4 B.U. PUB. INT. L.J. 339, 358 (1995); Crenshaw, Mapping the Margins, supra note 3, at 1262-65; Crenshaw, Panel Presentation, supra note 3, at 900-01; Johnson, supra note 24, at 1552; Debbie Lee, Accessibility: Serving a Changing Community, in DOMESTIC VIOLENCE IN IMMIGRANT AND REFUGEE COMMUNITIES: ASSERTING THE RIGHTS OF BATTERED WOMEN (Deeana Jang et al. eds., 1991).
47. Pub. L. No. 101-649, 104 Stat. 4978 (1990 Act).
48. While the waiver was primarily created as a result of domestic violence against female alien spouses, the provision is gender neutral. Consequently, both male and female conditional resident aliens who are in abusive relationships may avail themselves of this provision. See INA § 216(c)(4)(C), 8 U.S.C. § 1186a(c)(4)(C). While proof of mental cruelty had initially required the report of a professional, this requirement was removed in 1994 through VAWA. VAWA § 40702 (codified at INA § 216(c)(4), 8 U.S.C. 1186a(c)(4)). INS is now directed to "consider any credible evidence." Id. To the extent such waiver recognizes abuse as not only physical violence but also mental cruelty, the waiver reflects acceptance of more modern, expansive definitions of domestic violence which encompass factors beyond physical violence. For discussion of the development of definitions of domestic violence beyond incident focused, see infra notes 162-66 and accompanying text.
49. See Calvo, supra note 3, at 612-13; Crenshaw, Mapping the Margins, supra note 3, at 1247-50; see also Janet Calvo, The Violence Against Women Act: An Opportunity for the Justice Department to Confront Domestic Violence, 72 INTERPRETER RELEASES 485 (1995) (providing a brief summary of the history prior to VAWA and VAWA's development); Michelle J. Anderson, Note, A License to Abuse: The Impact of Conditional Status on Female Immigrants, 102 YALE L.J. 1401, 1416-20 (1993) (arguing that even the domestic violence exception to joint filing of the petition to remove conditions on residency does not eliminate dependence on spouses as it contains a high evidentiary burden and fails to account for cultural barriers).
50. See Calvo, supra note 3, at 612-13; Crenshaw, Mapping the Margins, supra note 3, at 1247-50; see also Janet Calvo, The Violence Against Women Act: An Opportunity for the Justice Department to Confront Domestic Violence, 72 INTERPRETER RELEASES 485 (1995) (providing a brief summary of the history prior to VAWA and VAWA's development); Michelle J. Anderson, Note, A License to Abuse: The Impact of Conditional Status on Female Immigrants, 102 YALE L.J. 1401, 1416-20 (1993) (arguing that even the domestic violence exception to joint filing of the petition to remove conditions on residency does not eliminate dependence on spouses as it contains a high evidentiary burden and fails to account for cultural barriers).
51. See Calvo, supra note 3, at 612-13; Crenshaw, Mapping the Margins, supra note 3, at 1247-50; see also Janet Calvo, The Violence Against Women Act: An Opportunity for the Justice Department to Confront Domestic Violence, 72 INTERPRETER RELEASES 485 (1995) (providing a brief summary of the history prior to VAWA and VAWA's development); Michelle J. Anderson, Note, A License to Abuse: The Impact of Conditional Status on Female Immigrants, 102 YALE L.J. 1401, 1416-20 (1993) (arguing that even the domestic violence exception to joint filing of the petition to remove conditions on residency does not eliminate dependence on spouses as it contains a high evidentiary burden and fails to account for cultural barriers).
52. See Calvo, supra note 29, at 485.
53. Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant; Self-Petitioning for Certain Battered or Abused Spouses and Children, 61 Fed. Reg. 13,061 (1996) [hereinafter Self-Petitioning].
54. One year earlier, Janet Calvo had already noted the difficulties posed to battered immigrants by the delay of the regulations. Calvo, supra note 29, at 487-88.
55. For a discussion on the restrictions placed on VAWA through the passage of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, see generally Kelly, supra note 2.
56. Recognizing VAWA's intent, INS Commissioner Doris Meissner noted that prior to VAWA the abuser "often force[d] family members to stay in abusive relationships by falsely promising their victims that they will petition on their behalf for permanent resident status in the future, or by threatening their victims with deportation - creating a cycle of continuing abuse." Lena H. Sun, Battered Immigrants Gain Ally Against Abusers; New INS Rule Lets Spouses, Children Seek U.S. Residence Status on Their Own, WASH. POST, Mar. 27, 1996, at A3 (quoting Commissioner Meissner).
57. It comes as no surprise that in the first seven months of fiscal year 1997, less than 500 VAWA self-petitions had been filed. See Paul W. Virtue, INS Executive Commissioner, Office of Programs, Supplemental Guidance on Battered Alien Self-Petitioning Process and Related Issues (May 6, 1997), reproduced in 73 INTERPRETER RELEASES 971 (June 16, 1997). Janet Calvo forewarned of such limited possibilities for VAWA prior to the passage of the regulations. Calvo, supra note 29, at 486. As an alternative to self-petitioning, VAWA created a new form of suspension of deportation. VAWA § 40703. This provision was initially codified at INA § 244(a)(3), 8 U.S.C. § 1254(a)(3) (1994). However, with the passage of IIRIRA in 1996, this form of relief, while virtually intact, has been recodified and renamed "cancellation of removal." IIRIRA § 304 (codified at INA § 240A, 8 U.S.C. § 1229b); see also IIRIRA § 308(a)(7) (repealing INA § 244). The basic requirements of "cancellation of removal" for battered immigrants are: 1) inadmissible or deportable under certain grounds; 2) battery or extreme cruelty by a citizen or permanent resident spouse or parent; 3) physical presence in the United States for a continuous period of three years; 4) good moral character for the past three years; 5) extreme hardship to the alien, alien's child or alien's parent (if the alien is a child). IIRIRA § 304 (codified at INA § 240A(b)(2), 8 U.S.C. § 1229b(b)(2)). Unlike self-petitioning, no showing of good-faith marriage is explicitly required. As few cases are known to have been adjudicated under this provision, a lengthy discussion of this form of relief is beyond the scope of this Article. To the extent, however, that the "cancellation of removal" (formerly known as suspension of deportation relief as created by VAWA) and self-petitioning share similar requirements, subsequent comments made in the context of self-petitioning may be instructive.
58. INA § 204(a)(1)(A)(iii), 8 U.S.C. § 1154(a)(1)(A)(iii); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii); 8 C.F.R. § 204.2(c)(1)(i)(E), (c)(1)(vi), (c)(2)(iv) (1996); Self-Petitioning, 61 Fed. Reg. 13,061, 13,065-66 (1996). Similar provisions exist for alien children. See INA § 204(a)(1)(A)(iv), 8 U.S.C. § 1554(a)(1)(A)(iv); INA § 204(a)(1)(B)(iii), 8 U.S.C. § 1154(a)(1)(B)(iii); 8 C.F.R. § 204.2(e)(1)(i)(E), (e)(1)(vi), (e)(2)(iv). It is important to note that separate petitions of the alien spouse and alien child are not required given the "following or accompanying to join" theory of immigration law. See Self-Petitioning, 61 Fed. Reg. at 13,068; 8 U.S.C. § 1153(d); STEPHEN H. LEGOMSKY, IMMIGRATION LAW AND POLICY 127 (2d ed., 1997) (citing 22 C.F.R. §§ 40.1(a),42.53(c); 9 FOREIGN AFF. MANUAL §§ 42.42 n.2.1 (1992)). The provisions of VAWA written for children, therefore, contemplate the limited situation in which there is no alien spouse filing a petition. For that reason, and to the extent that the provisions for spouses and children have essentially the same requirements, I will discuss my thoughts on VAWA in the context of petitions made by spouses. It should be noted, however, that it may be more difficult for children to independently make similar petitions given children's youth and their reliance on their lawful parents.
59. INA § 204(a)(1)(A)(iii), 8 U.S.C. § 1154(a)(1)(A)(iii); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii); 8 C.F.R. § 204.2(c)(1)(A), (c)(1)(iii), (c)(2)(ii); Self-Petitioning, 61 Fed. Reg. at 13,062-63. Similar provisions exist for the alien children of abusive U.S. citizens or lawful permanent residents. See INA §204(a)(1)(A)(iv), 8 U.S.C. § 1154(a)(1)(A)(iv); INA § 204(a)(1)(B)(iii), 8 U.S.C. § 1154(a)(1)(B)(iii); 8 C.F.R. § 204.2(e)(1)(i)(A), (e)(1)(ii), (e)(1)(iii), (e)(2)(ii).
60. INA § 204(a)(1)(A)(iii)(I), 8 U.S.C. § 1154(a)(1)(A)(iii)(I); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii); 8 C.F.R. § 204.2(c)(1)(i)(H), (c)(1)(ix), (c)(2)(vii); Self-Petitioning, 61 Fed. Reg. at 13,068.
61. INA § 204(a)(1)(A)(iii)(I), 8 U.S.C. § 1154(a)(1)(A)(iii)(I); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii); 8 C.F.R. § 204.2(c)(1)(i)(D), (c)(1)(v), (c)(2)(iii); Self-Petitioning, 61 Fed. Reg. at 13,065. Similar provisions for children of U.S. citizens and lawful permanent residents are at INA § 204(a)(1)(A)(iv), 8 U.S.C. § 1154(a)(1)(A)(iv); INA § 204(a)(1)(B)(iii), 8 U.S.C. § 1154(a)(1)(B)(iii); 8 C.F.R. § 204.2(e)(1)(i)(D), (e)(1)(v), (e)(2)(iii).
62. INA § 204(a)(1)(A)(iii), 8 U.S.C. § 1154(a)(1)(A)(iii); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii). For the good moral character requirement for children, see § 204(a)(1)(A)(iv), 8 U.S.C. § 1154(a)(1)(A)(iv); INA § 204(a)(1)(B)(iii), 8 U.S.C. § 1154(a)(1)(B)(ii). The setting of a three-year period on the good moral character requirement was pursuant to regulation. See 8 C.F.R. § 204.2(c)(1)(i)(F), (c)(1)(ii), (c)(1)(vii), (c)(2)(v), (e)(1)(i)(F), (e)(1)(vii), (e)(2)(v); Self-Petitioning, 61 Fed. Reg. at 13,066.
63. INA § 204(a)(1)(A)(iii)(II), 8 U.S.C. § 1154(a)(1)(A)(iii)(II); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii); 8 C.F.R. § 204.2(c)(1)(i)(G), (c)(1)(viii), (c)(2)(vi); Self-Petitioning, 61 Fed. Reg. at 13,067. For extreme hardship towards petitioning children, see INA § 204(a)(1)(A)(iv)(II), 8 U.S.C. § 1154(a)(1)(A)(iv)(II); INA § 204(a)(1)(B)(iii)(II), 8 U.S.C. § 1154(a)(1)(B)(iii)(II); 8 C.F.R. § 204.2(e)(1)(i)(G), (e)(1)(viii), (e)(2)(vi). See Crenshaw, Mapping the Margins, supra note 3, at 1251.
64. Battery or extreme mental cruelty includes, but is not limited to being the victim of any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor), or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under certain circumstances, including acts that, in and of themselves, may not initially appear violent but that are a part of an overall pattern of violence. The qualifying abuse must have been committed by the citizen or lawful permanent resident spouse, must have been perpetrated against the self-petitioner or the self-petitioner's child, and must have taken place during the self-petitioner's marriage to the abuser. 8 C.F.R. § 204.2(c)(vi). Commissioner Meissner's comments reaffirmed that nonviolent acts or indirect acts not "deliberately used to perpetrate extreme cruelty against the self-petitioner" would be insufficient. See Self-Petitioning, 61 Fed. Reg. at 13,065; see also statutory and regulatory provisions on abuse supra note 36 and accompanying text.
65. Such a definition fails to recognize that domestic violence is about "doing power," with the occurrence and frequency of physical violence directly against the petitioner being a minor factor. Mahoney, supra note 5, at 93. As Martha Mahoney explains: [B]attering is power and control marked by violence and coercion. A battered woman is a woman who experiences the violence against her as determining or controlling her thoughts, emotions, or actions, including her efforts to cope with the violence itself. Many, many women experience such violence in our society. The precise response of any woman is likely to be determined by her life circumstances and family situation. Id. For further criticism of the use of an incident-focused definition of abuse in VAWA, see infra notes 167-71 and accompanying text.
66. Self-Petitioning, 61 Fed. Reg. at 13,068.
67. Id.; see also 8 C.F.R. § 204.2(c)(2)(iv).
68. Self-Petitioning, 61 Fed. Reg. at 13,066.
69. Id. Former INS Executive Associate Commissioner Alexander Aleinikoff's memorandum is consistent with these remarks, suggesting that a claim of "battery or extreme mental cruelty" may be met without demonstrating physical abuse. T. Alexander Aleinikoff, Implementation of Crime Bill Self-Petitioning for Abused or Battered Spouses or Children of U.S. Citizens or Lawful Permanent Residents (Apr. 16, 1996), reproduced in 73 INTERPRETER RELEASES 737 (May 24, 1996).
70. Self-Petitioning, 61 Fed. Reg. at 13,066.
71. Self-Petitioning, 61 Fed. Reg. at 13,068.
72. INS Form 1-360 (Rev. Mar. 7, 1996).
73. As of May 7, 1997, the INS has instructed that all VAWA self-petitions are to be mailed to the INS Vermont Service Center. Attempts to personally file with a local INS office will be refused. Pursuant to such memo, a case received by the Vermont service center may be subsequently transferred to the local INS office when an interview is deemed appropriate. See Virtue, supra note 35. However, in the author's experience, the Vermont Service Center has not been inclined to transfer cases.
74. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, VIOLENCE BETWEEN INTIMATES: DOMESTIC VIOLENCE 8 (1994) (reporting results from National Crime Victimization Study; available on the Internet at 〈http://www.ojp.usdoj.gov/pub/bjs/ascii/vbi.txt〉). "Shame or fear of reprisal" were other reasons commonly cited for failing to report violence. Id. at 1; see also Mahoney, supra note 5, at 11-12; infra notes 54-61 and accompanying text explaining individual denial and failure to report.
75. See Jenny Rivera, Domestic Violence Against Latinas by Latino Males: An Analysis of Race, National Origin and Gender Differentials, 14 B.C. THIRD WORLD L.J. 231, 243-44 (1994). The Department of Justice reports that victims believe police respond faster to calls regarding stranger violence than those involving intimate violence and are more likely to "take a report" on stranger violence calls. BUREAU OF JUSTICE STATISTICS, supra note 53, at 8.
76. Responsible for assisting pro se individuals in securing restraining orders, I routinely witnessed women enduring these waits while working as a staff attorney for the Family Legal Services Unit for the Seventeenth Judicial Circuit in and for Broward County, Florida.
77. Mahoney, supra note 5, at 65-70. Separation assault is the attack on the woman's body and volition in which her partner seeks to prevent her from leaving, retaliate for the separation, or force her to return. It aims at overbearing her will as to where and with whom she will live, and coercing her in order to enforce connection in a relationship. It is an attempt to gain, retain, or regain power in a relationship, or to punish the woman for ending the relationship. It often takes place over time. Id. at 65-66. The reality of separation assault is so grave a concern that Professor Mahoney suggests that a duty to warn of the heightened danger of violence that accompanies separation may exist when encouraging women to leave violent relationships. Id. at 77. Mahoney introduces the notion of separation assault in the hopes of having our intertwined cultural and legal perceptions of battering change so that it is understood as part of the subordination continuum experienced by women. Id. at 94. So great is the fear of violence at the time of separation that an "underground railroad" has developed through the banding together of battered women's shelters and service providers in order to help battered women escape their abusers in safety. Additionally, the U.S. Postal Service is required to cooperate in maintaining the confidentiality of an abused person's address. See Martha Davis & Susan Kraham, Protecting Women's Welfare in the Face of Violence, 22 FORDHAM URB. L.J. 1141, 1153 n.80 (1995).
78. Ardy Friedberg, "I'm Sorry It Had to End Like This"; Man Who Shot Daughter and Self Dies; Girl Very Critical, SUN-SENTINEL, Aug. 22, 1996, at 1B; Scott Glover et al., Police: Chase Ends When Dad Shoots Girl, Self in Head; Man Had Called Wife to Threaten Suicide, SUN-SENTINEL, Aug. 21, 1996, at 1A; Linda Kelly, Murder-Suicide "Could Have Been Prevented", MIAMI HERALD, Aug. 29, 1996, at 24A (Readers' Forum); Sarah Talalay, Girl Shot by Dad Taken Off Life Support, SUN- SENTINEL, Aug. 23, 1996, at 8B.
79. Ardy Friedberg, "I'm Sorry It Had to End Like This"; Man Who Shot Daughter and Self Dies; Girl Very Critical, SUN-SENTINEL, Aug. 22, 1996, at 1B; Scott Glover et al., Police: Chase Ends When Dad Shoots Girl, Self in Head; Man Had Called Wife to Threaten Suicide, SUN-SENTINEL, Aug. 21, 1996, at 1A; Linda Kelly, Murder-Suicide "Could Have Been Prevented", MIAMI HERALD, Aug. 29, 1996, at 24A (Readers' Forum); Sarah Talalay, Girl Shot by Dad Taken Off Life Support, SUN- SENTINEL, Aug. 23, 1996, at 8B.
80. Ardy Friedberg, "I'm Sorry It Had to End Like This"; Man Who Shot Daughter and Self Dies; Girl Very Critical, SUN-SENTINEL, Aug. 22, 1996, at 1B; Scott Glover et al., Police: Chase Ends When Dad Shoots Girl, Self in Head; Man Had Called Wife to Threaten Suicide, SUN-SENTINEL, Aug. 21, 1996, at 1A; Linda Kelly, Murder-Suicide "Could Have Been Prevented", MIAMI HERALD, Aug. 29, 1996, at 24A (Readers' Forum); Sarah Talalay, Girl Shot by Dad Taken Off Life Support, SUN- SENTINEL, Aug. 23, 1996, at 8B.
81. Ardy Friedberg, "I'm Sorry It Had to End Like This"; Man Who Shot Daughter and Self Dies; Girl Very Critical, SUN-SENTINEL, Aug. 22, 1996, at 1B; Scott Glover et al., Police: Chase Ends When Dad Shoots Girl, Self in Head; Man Had Called Wife to Threaten Suicide, SUN-SENTINEL, Aug. 21, 1996, at 1A; Linda Kelly, Murder-Suicide "Could Have Been Prevented", MIAMI HERALD, Aug. 29, 1996, at 24A (Readers' Forum); Sarah Talalay, Girl Shot by Dad Taken Off Life Support, SUN-SENTINEL, Aug. 23, 1996, at 8B.
82. Friedberg, supra note 57, at 1B.
83. See Mahoney, supra note 5, at 4. It is a common misconception that battered wives are unfit parents. See Cahn & Meier, supra note 26 at 351-53, nn. 36-47; Joan S. Meier, Notes from the Underground, Integrating Psychological and Legal Perspectives on Domestic Violence in Theory and Practice, 21 HOFSTRA L. REV. 1295, 1307-10 (1993).
84. For further discussion of Sonya's case, see supra note 1 and accompanying text; infra note 63 and accompanying text.
85. Women have been characterized as creatures whose decisions are based on more than selfish interests. See Mahoney, supra note 5, at 19. "In fact, mothers continually make decisions on the basis of extended, collective, multiple self-interest (their children's as well as their own, their husbands' as well as their children's)." Id.; see also Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectives from the Women's Movement, 61 N.Y.U. L. REV. 589, 614-15 (1996).
86. "Self-petitioners who submit affidavits are urged, but not required, to provide affidavits from more than one person." Self-Petitioning, 61 Fed. Reg. at 13,068 (1996). The language in the regulations is more restrictive suggesting that affidavits may only be obtained from public officials such as "police, judges and other court officials, medical personnel, school officials, clergy, social workers, and other social service agency personnel." 8 C.F.R. § 204.2(c)(2)(iv) (1996).
87. An abuser may personify a friendly, loving husband in public, contributing to beliefs that his abused wife is incredulous. See Cahn & Meier, supra note 26, at 344, 354-56; Davis & Kraham, supra note 56, at 1149; Mahoney, supra note 5, at 47-48; Meier, supra note 59, at 1302-03. For the problems traditionally associated with viewing domestic violence as a private issue, see infra notes 155-61 and accompanying text.
88. See Crenshaw, Mapping the Margins, supra note 3, at 1248 (noting the difficulties created when a battered immigrant and her spouse live with his family).
89. On the history of the intersectionality issues raised by domestic violence and immigration, see supra notes 18-35 and accompanying text.
90. The "double subordination" of battered immigrant women was also present in the Immigration Marriage Fraud Act (IMFA) prior to the creation of waivers for the two-year joint filing requirement for battered immigrants. See Crenshaw, Mapping the Margins, supra note 3, at 1247; Crenshaw, Panel Presentation, supra note 3, at 894. For further discussion of IMFA, see supra notes 18-26 and accompanying text.
91. The "double subordination" of battered immigrant women was also present in the Immigration Marriage Fraud Act (IMFA) prior to the creation of waivers for the two-year joint filing requirement for battered immigrants. See Crenshaw, Mapping the Margins, supra note 3, at 1247; Crenshaw, Panel Presentation, supra note 3, at 894. For further discussion of IMFA, see supra notes 18-26 and accompanying text.
92. HOGELAND & ROSEN, supra note 25, at 60-61 (Survey Project of Filipina, Latina and Chinese undocumented women in the Bay Area of California, a survey sponsored by the Coalition for Immigrant and Refugee Rights and Services with the Immigrant Women's Task Force). As one interviewer involved with this project reported, "Many of the women I interviewed were afraid to tell the truth about their husbands because they thought that someone would come and take him away to jail and she would not have anyone to support her and the children." Id. at 62. Such fears are heightened by the passage in IIRIRA of a provision allowing for the deportation of domestic violence offenders. IIRIRA § 350 (codified at INA § 237(a)(2)(e)). For a discussion of this new provision, see Kelly, supra note 2.
93. See, e.g., Rivera, supra note 54, at 245-46 (discussing history of excessive physical force by police officers against Latinos and the predictable denial of wrongdoing by such authorities).
94. Id. at 249.
95. See id. at 246. The use of language barriers as a proxy for discrimination has been well articulated. See, e.g., Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269 (1992).
96. Rivera, supra note 54, at 257. Rivera recognizes that differences based on race and culture are both internal, such as the non-English language spoken, and external, such as the manner in which a specific racial or ethnic group is treated. Id. at 234.
97. For further discussion of anti-foreigner sentiment, see infra notes 122-54 and accompanying text.
98. See Crenshaw, Panel Presentation, supra note 3, at 894. Nineteen percent of the battered immigrant and refugee women interviewed in the project of Hogeland and Rosen reported never talking to anyone about the violence. HOGELAND & ROSEN, supra note 25, at 61.
99. Sixty-four percent of the immigrant and refugee women interviewed who acknowledged domestic violence problems reported fear of deportation. See HOGELAND & ROSEN, supra note 25, at 64-65.
100. Id. at 64.
101. The anti-immigrant sentiment of the federal government is evident in two recent pieces of federal legislation: IIRIRA and the Welfare Act. See supra notes 2, 7 (discussing IIRIRA and the Welfare Act). For a discussion of the restrictions placed on immigrants by California's Proposition 187, see generally Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187, 70 WASH. L. REV. 629 (1995); Johnson, supra note 24; Gerald Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425 (1995).
102. The anti-immigrant sentiment of the federal government is evident in two recent pieces of federal legislation: IIRIRA and the Welfare Act. See supra notes 2, 7 (discussing IIRIRA and the Welfare Act). For a discussion of the restrictions placed on immigrants by California's Proposition 187, see generally Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187, 70 WASH. L. REV. 629 (1995); Johnson, supra note 24; Gerald Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425 (1995).
103. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
104. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
105. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
106. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
107. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
108. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
109. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
110. When called for questioning by the INS, Victor Cordero left word with his new employer that he was returning to Peru, but Lillian Cordero, Victor's estranged wife, simply disappeared. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 B.Y.U. L. REV. 1139, 1140-44. For further discussion of the Zoe Baird nomination and the plight of the Corderos, see Thomas L. Freidman, The Overview; Clinton Concedes He Erred on Baird Nomination, N.Y. TIMES, Jan. 23, 1993, at A1; Linda Himelsteim, The Baird Aftermath: INS Summons Peruvian Couple, LEGAL TIMES, Jan. 25, 1993, at 1; Illegal Worker Disappears, N.Y. TIMES, Jan. 23, 1993, at A8. On the similar controversy surrounding the subsequently failed nomination of Kimba Wood and scrutiny of other politicians, see Alien II: Another Candidate Falls, ATLANTA J. & CONST., Feb. 6, 1993, at A1; Sergio Garcia-Rodriguez, Burdening the Care Giver, RECORDER, Feb. 24, 1993, at 9; Marcy Gordon, Cabinet Members Say They Didn't Hire Illegal Aliens, ASSOC. PRESS, Feb. 9, 1993; Michael Putzel, Judge Wood Withdraws as Candidate at Justice; Babysitter Had Been in U.S. Illegally, BOSTON GLOBE, Feb. 6, 1993, at 1.
111. For an excellent fictional account of such fear, see T. CORAGHESSAN BOYLE, THE TORTILLA CURTAIN (1995).
112. See, e.g., HOGELAND & ROSEN, supra note 25, at 60; Crenshaw, Mapping the Margins, supra note 3, at 1247-49.
113. IIRIRA § 384, 8 U.S.C. § 1367 (1994).
114. See Crenshaw, Panel Presentation, supra note 3, at 894; Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36 (1995). The problem created in giving a battered woman "cultural latitude" is the risk of the same considerations being demanded by the abusive spouse. Recognizing the traditionally accepted notions of male patriarchy and domination of the family can lead to the mitigation of punishment for domestic violence perpetrators and perhaps their acquittal. See Maguigan, supra, at 77-80, 94- 95, 98. Culture, then, becomes a double-edged sword, allowing improved consideration for the abused woman, but at the risk of mitigating the impact of any efforts to end domestic violence or recognize it as an unequivocal wrong. See id. at 77-78; Cahn & Meier, supra note 26, at 358-59; Rivera, supra note 54, at 251. See generally Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV, 1311 (1991) (exploring how Pacific-Asian culture decriminalizes violence against women).
115. See Crenshaw, Panel Presentation, supra note 3, at 894; Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36 (1995). The problem created in giving a battered woman "cultural latitude" is the risk of the same considerations being demanded by the abusive spouse. Recognizing the traditionally accepted notions of male patriarchy and domination of the family can lead to the mitigation of punishment for domestic violence perpetrators and perhaps their acquittal. See Maguigan, supra, at 77-80, 94- 95, 98. Culture, then, becomes a double-edged sword, allowing improved consideration for the abused woman, but at the risk of mitigating the impact of any efforts to end domestic violence or recognize it as an unequivocal wrong. See id. at 77-78; Cahn & Meier, supra note 26, at 358-59; Rivera, supra note 54, at 251. See generally Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV, 1311 (1991) (exploring how Pacific-Asian culture decriminalizes violence against women).
116. See Crenshaw, Panel Presentation, supra note 3, at 894; Holly Maguigan, Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?, 70 N.Y.U. L. REV. 36 (1995). The problem created in giving a battered woman "cultural latitude" is the risk of the same considerations being demanded by the abusive spouse. Recognizing the traditionally accepted notions of male patriarchy and domination of the family can lead to the mitigation of punishment for domestic violence perpetrators and perhaps their acquittal. See Maguigan, supra, at 77-80, 94-95, 98. Culture, then, becomes a double-edged sword, allowing improved consideration for the abused woman, but at the risk of mitigating the impact of any efforts to end domestic violence or recognize it as an unequivocal wrong. See id. at 77-78; Cahn & Meier, supra note 26, at 358-59; Rivera, supra note 54, at 251. See generally Nilda Rimonte, A Question of Culture: Cultural Approval of Violence Against Women in the Pacific-Asian Community and the Cultural Defense, 43 STAN. L. REV, 1311 (1991) (exploring how Pacific-Asian culture decriminalizes violence against women).
117. See Crenshaw, Panel Presentation, supra note 3, at 897 (discussing comments of Leona Lamante, Director of Everywoman's Shelter in Los Angeles); Crenshaw, Mapping the Margins, supra note 3, at 1257.
118. See Crenshaw, Panel Presentation, supra note 3, at 897 (discussing comments of Leona Lamante, Director of Everywoman's Shelter in Los Angeles); Crenshaw, Mapping the Margins, supra note 3, at 1257.
119. See Rivera, supra note 54, at 241. The Latina community's willingness to recognize and deal with the pervasiveness of domestic violence within its own community is limited by its notions of privacy and patriarchy. Id. at 255.
120. See id. at 241.
121. HOGELAND & ROSEN, supra note 25, at 48-49.
122. The U.S. Department of State's most recent annual report on international human rights violations charges that "[violence against women, both in and outside the home, a particularly widespread and entrenched violation of women's rights, is either legally permitted or simply allowed to continue in many countries and is by no means restricted to the developing world." U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 xix (1997) (report submitted to Senate Comm. on Foreign Relations & House Comm. on International Relations, 105th Cong. 1st Sess.) [hereinafter COUNTRY REPORTS]. The latest country reports provide a detailed discussion of human rights conditions in 194 countries, including an assessment of the magnitude of domestic violence and its treatment in each country. Some care, however, must be taken in reading the reports because U.S. foreign policy objectives are commonly recognized to limit objective reporting. See, e.g., Dorothy Q. Thomas, Women's Human Rights: From Visibility to Accountability, 69 ST. JOHN'S L. REV. 217 (1995) (examining women's rights from an international perspective with a critical assessment of the U.S. response). Many other valuable sources exist that report on domestic violence and its treatment worldwide. See, e.g., UNITED NATIONS, THE WORLD'S WOMEN: 1970-1990, TRENDS & STATISTICS 19-20 (1991) (providing statistics on domestic violence and other types of violence experienced by women in numerous countries and the varying responses of governments); HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, THE HUMAN RiGHTS WATCH GLOBAL REPORT ON WOMEN'S HUMAN RIGHTS 341-409 (1995) (reporting on domestic violence against women in Brazil, Russia, and South Africa in addition to including a discussion of the international legal protections available and general recommendations); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS 19-71 (Joanna Kerr ed., 1993) (discussing varying treatment of domestic violence within the context of women's human rights studies completed on Latin America, Africa, Muslim countries, South Africa, Pakistan, and Canada); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994) (arguing for obligation of states under both international and customary law to protect women's human rights); Rimonte, supra note 81 (analyzing domestic violence and its treatment in Asia and the Pacific Rim); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993) (highlighting efforts made to address violence against women and intimate violence within international human rights doctrine and practice).
123. The U.S. Department of State's most recent annual report on international human rights violations charges that "[violence against women, both in and outside the home, a particularly widespread and entrenched violation of women's rights, is either legally permitted or simply allowed to continue in many countries and is by no means restricted to the developing world." U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 xix (1997) (report submitted to Senate Comm. on Foreign Relations & House Comm. on International Relations, 105th Cong. 1st Sess.) [hereinafter COUNTRY REPORTS]. The latest country reports provide a detailed discussion of human rights conditions in 194 countries, including an assessment of the magnitude of domestic violence and its treatment in each country. Some care, however, must be taken in reading the reports because U.S. foreign policy objectives are commonly recognized to limit objective reporting. See, e.g., Dorothy Q. Thomas, Women's Human Rights: From Visibility to Accountability, 69 ST. JOHN'S L. REV. 217 (1995) (examining women's rights from an international perspective with a critical assessment of the U.S. response). Many other valuable sources exist that report on domestic violence and its treatment worldwide. See, e.g., UNITED NATIONS, THE WORLD'S WOMEN: 1970-1990, TRENDS & STATISTICS 19-20 (1991) (providing statistics on domestic violence and other types of violence experienced by women in numerous countries and the varying responses of governments); HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, THE HUMAN RiGHTS WATCH GLOBAL REPORT ON WOMEN'S HUMAN RIGHTS 341-409 (1995) (reporting on domestic violence against women in Brazil, Russia, and South Africa in addition to including a discussion of the international legal protections available and general recommendations); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS 19-71 (Joanna Kerr ed., 1993) (discussing varying treatment of domestic violence within the context of women's human rights studies completed on Latin America, Africa, Muslim countries, South Africa, Pakistan, and Canada); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994) (arguing for obligation of states under both international and customary law to protect women's human rights); Rimonte, supra note 81 (analyzing domestic violence and its treatment in Asia and the Pacific Rim); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993) (highlighting efforts made to address violence against women and intimate violence within international human rights doctrine and practice).
124. The U.S. Department of State's most recent annual report on international human rights violations charges that "[violence against women, both in and outside the home, a particularly widespread and entrenched violation of women's rights, is either legally permitted or simply allowed to continue in many countries and is by no means restricted to the developing world." U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 xix (1997) (report submitted to Senate Comm. on Foreign Relations & House Comm. on International Relations, 105th Cong. 1st Sess.) [hereinafter COUNTRY REPORTS]. The latest country reports provide a detailed discussion of human rights conditions in 194 countries, including an assessment of the magnitude of domestic violence and its treatment in each country. Some care, however, must be taken in reading the reports because U.S. foreign policy objectives are commonly recognized to limit objective reporting. See, e.g., Dorothy Q. Thomas, Women's Human Rights: From Visibility to Accountability, 69 ST. JOHN'S L. REV. 217 (1995) (examining women's rights from an international perspective with a critical assessment of the U.S. response). Many other valuable sources exist that report on domestic violence and its treatment worldwide. See, e.g., UNITED NATIONS, THE WORLD'S WOMEN: 1970-1990, TRENDS & STATISTICS 19-20 (1991) (providing statistics on domestic violence and other types of violence experienced by women in numerous countries and the varying responses of governments); HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, THE HUMAN RiGHTS WATCH GLOBAL REPORT ON WOMEN'S HUMAN RIGHTS 341-409 (1995) (reporting on domestic violence against women in Brazil, Russia, and South Africa in addition to including a discussion of the international legal protections available and general recommendations); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS 19-71 (Joanna Kerr ed., 1993) (discussing varying treatment of domestic violence within the context of women's human rights studies completed on Latin America, Africa, Muslim countries, South Africa, Pakistan, and Canada); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994) (arguing for obligation of states under both international and customary law to protect women's human rights); Rimonte, supra note 81 (analyzing domestic violence and its treatment in Asia and the Pacific Rim); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993) (highlighting efforts made to address violence against women and intimate violence within international human rights doctrine and practice).
125. The U.S. Department of State's most recent annual report on international human rights violations charges that "[violence against women, both in and outside the home, a particularly widespread and entrenched violation of women's rights, is either legally permitted or simply allowed to continue in many countries and is by no means restricted to the developing world." U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 xix (1997) (report submitted to Senate Comm. on Foreign Relations & House Comm. on International Relations, 105th Cong. 1st Sess.) [hereinafter COUNTRY REPORTS]. The latest country reports provide a detailed discussion of human rights conditions in 194 countries, including an assessment of the magnitude of domestic violence and its treatment in each country. Some care, however, must be taken in reading the reports because U.S. foreign policy objectives are commonly recognized to limit objective reporting. See, e.g., Dorothy Q. Thomas, Women's Human Rights: From Visibility to Accountability, 69 ST. JOHN'S L. REV. 217 (1995) (examining women's rights from an international perspective with a critical assessment of the U.S. response). Many other valuable sources exist that report on domestic violence and its treatment worldwide. See, e.g., UNITED NATIONS, THE WORLD'S WOMEN: 1970-1990, TRENDS & STATISTICS 19-20 (1991) (providing statistics on domestic violence and other types of violence experienced by women in numerous countries and the varying responses of governments); HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, THE HUMAN RiGHTS WATCH GLOBAL REPORT ON WOMEN'S HUMAN RIGHTS 341-409 (1995) (reporting on domestic violence against women in Brazil, Russia, and South Africa in addition to including a discussion of the international legal protections available and general recommendations); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS 19-71 (Joanna Kerr ed., 1993) (discussing varying treatment of domestic violence within the context of women's human rights studies completed on Latin America, Africa, Muslim countries, South Africa, Pakistan, and Canada); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994) (arguing for obligation of states under both international and customary law to protect women's human rights); Rimonte, supra note 81 (analyzing domestic violence and its treatment in Asia and the Pacific Rim); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993) (highlighting efforts made to address violence against women and intimate violence within international human rights doctrine and practice).
126. The U.S. Department of State's most recent annual report on international human rights violations charges that "[violence against women, both in and outside the home, a particularly widespread and entrenched violation of women's rights, is either legally permitted or simply allowed to continue in many countries and is by no means restricted to the developing world." U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 xix (1997) (report submitted to Senate Comm. on Foreign Relations & House Comm. on International Relations, 105th Cong. 1st Sess.) [hereinafter COUNTRY REPORTS]. The latest country reports provide a detailed discussion of human rights conditions in 194 countries, including an assessment of the magnitude of domestic violence and its treatment in each country. Some care, however, must be taken in reading the reports because U.S. foreign policy objectives are commonly recognized to limit objective reporting. See, e.g., Dorothy Q. Thomas, Women's Human Rights: From Visibility to Accountability, 69 ST. JOHN'S L. REV. 217 (1995) (examining women's rights from an international perspective with a critical assessment of the U.S. response). Many other valuable sources exist that report on domestic violence and its treatment worldwide. See, e.g., UNITED NATIONS, THE WORLD'S WOMEN: 1970-1990, TRENDS & STATISTICS 19-20 (1991) (providing statistics on domestic violence and other types of violence experienced by women in numerous countries and the varying responses of governments); HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, THE HUMAN RiGHTS WATCH GLOBAL REPORT ON WOMEN'S HUMAN RIGHTS 341-409 (1995) (reporting on domestic violence against women in Brazil, Russia, and South Africa in addition to including a discussion of the international legal protections available and general recommendations); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS 19-71 (Joanna Kerr ed., 1993) (discussing varying treatment of domestic violence within the context of women's human rights studies completed on Latin America, Africa, Muslim countries, South Africa, Pakistan, and Canada); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994) (arguing for obligation of states under both international and customary law to protect women's human rights); Rimonte, supra note 81 (analyzing domestic violence and its treatment in Asia and the Pacific Rim); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993) (highlighting efforts made to address violence against women and intimate violence within international human rights doctrine and practice).
127. The U.S. Department of State's most recent annual report on international human rights violations charges that "[violence against women, both in and outside the home, a particularly widespread and entrenched violation of women's rights, is either legally permitted or simply allowed to continue in many countries and is by no means restricted to the developing world." U.S. DEP'T OF STATE, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1996 xix (1997) (report submitted to Senate Comm. on Foreign Relations & House Comm. on International Relations, 105th Cong. 1st Sess.) [hereinafter COUNTRY REPORTS]. The latest country reports provide a detailed discussion of human rights conditions in 194 countries, including an assessment of the magnitude of domestic violence and its treatment in each country. Some care, however, must be taken in reading the reports because U.S. foreign policy objectives are commonly recognized to limit objective reporting. See, e.g., Dorothy Q. Thomas, Women's Human Rights: From Visibility to Accountability, 69 ST. JOHN'S L. REV. 217 (1995) (examining women's rights from an international perspective with a critical assessment of the U.S. response). Many other valuable sources exist that report on domestic violence and its treatment worldwide. See, e.g., UNITED NATIONS, THE WORLD'S WOMEN: 1970-1990, TRENDS & STATISTICS 19-20 (1991) (providing statistics on domestic violence and other types of violence experienced by women in numerous countries and the varying responses of governments); HUMAN RIGHTS WATCH WOMEN'S RIGHTS PROJECT, THE HUMAN RiGHTS WATCH GLOBAL REPORT ON WOMEN'S HUMAN RIGHTS 341-409 (1995) (reporting on domestic violence against women in Brazil, Russia, and South Africa in addition to including a discussion of the international legal protections available and general recommendations); OURS BY RIGHT: WOMEN'S RIGHTS AS HUMAN RIGHTS 19-71 (Joanna Kerr ed., 1993) (discussing varying treatment of domestic violence within the context of women's human rights studies completed on Latin America, Africa, Muslim countries, South Africa, Pakistan, and Canada); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994) (arguing for obligation of states under both international and customary law to protect women's human rights); Rimonte, supra note 81 (analyzing domestic violence and its treatment in Asia and the Pacific Rim); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993) (highlighting efforts made to address violence against women and intimate violence within international human rights doctrine and practice).
128. See supra note 86.
129. See, e.g., Rimonte, supra note 81, at 1314 n.10 (discussing the few countries in Asia and the Pacific Rim that have programs, including Taiwan, India, Thailand, Japan, the Philippines, and Korea); see also supra note 85 and accompanying text.
130. See Rimonte, supra note 81, at 1317-19.
131. Self-Petitioning, 61 Fed. Reg. at 13,062 (1996).
132. See citations of relevant statutory and regulatory provisions supra notes 37-39 and accompanying text.
133. See discussion of the dynamics of domestic violence infra notes 155-66 and accompanying text.
134. In support of VAWA petitions, the National Lawyer's Guild Immigration Project has compiled material which includes a listing by the Centers for Disease Control of the bureau in each state that maintains birth records, so that battered immigrants and their advocates can directly request the birth certificates of U.S.-born citizen husbands. Centers for Disease Control and Prevention, Where to Write for Vital Records in New Relief for Battered Immigrant Women and Children Under the 1994 Violence Against Women Act (National Immigr. Proj. of the Nat'l Lawyers Guild ed., undated material) (on file with author). Records may also be obtained from the federal courts maintaining jurisdiction over naturalization ceremonies. See INA § 310, 8 U.S.C. § 1421 (1994). See generally IRA J. KURZBAN, IMMIGRATION LAW SOURCEBOOK: A COMPREHENSIVE OUTLINE AND REFERENCE TOOL 814-15 (5th ed. 1995).
135. 8 C.F.R. § 204.1(g)(3)(1996).
136. Id.
137. See citations of relevant statutory and regulatory provisions supra notes 37-39 and accompanying text.
138. In satisfying the showing of the petitioner's relation to the abuser, the petitioner must show primary evidence consisting of "a marriage certificate issued by civil authorities and proof of the termination of all prior marriages, if any, of both the self petitioner and the abuser." 8 C.F.R. § 204.2(c)(2)(ii). Even this seemingly routine requirement presents difficulties as the battered immigrant may have limited information regarding the abuser's previous marriage terminations. To establish common residency, the documents suggested are "[e]mployment records, utility receipts, school records, hospital or medical records, birth certificates of children born in the United States, deeds, mortgages, rental records, insurance policies, affidavits or any other type of relevant credible evidence of residency may be submitted." 8 C.F.R. § 204.2(c)(2)(iii); Self-Petitioning, 61 Fed. Reg. 13,061, 13,065 (1996). Similar documents are suggested to satisfy the good-faith marriage requirement. 8 C.F.R. § 204.2(c)(2)(vii); Self-Petitioning, 61 Fed. Reg. at 13,068.
139. 8 C.F.R § 204.2(c)(2)(ii)-(iii). By contrast, the domestic violence evidence requirement suggests the petitioner's testimony is acceptable as a final resort. See supra notes 43-52 and accompanying text.
140. See discussion of the fear of public recognition supra notes 90 and accompanying text.
141. Janet Calvo notes a similar problem met by the battered woman attempting to waive the joint petition for removal of conditions on residency through the good faith exception. Calvo, supra note 3, at 629-30. For further discussion of conditional residency, see supra notes 18-29 and accompanying text.
142. See supra notes 98-99 and accompanying text.
143. See citations of relevant statutory and regulatory provisions supra notes 36-39 and accompanying text.
144. See citations of relevant statutory and regulatory sections supra note 41 and accompanying text.
145. INA § 204(a)(1)(A)(iii)(II), 8 U.S.C. § 1154(a)(1)(A)(iii)(II); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii); see also citations of accompanying provisions supra note 41 and accompanying text.
146. The extreme hardship test developed with the relief of suspension of deportation. See INA § 244(a)(1), 8 U.S.C. § 1254(a)(1). Since IMFA, the extreme hardship test is also a waiver for joint filing of the petition to remove conditions on residency. See INA § 216(c)(4), 8 U.S.C. § 1186(c)(4); see also Calvo, supra note 3, at 634; discussion of IMFA supra notes 18-29 and accompanying text. The extreme hardship standard is defined by case law, not statute. See INS v. Wang, 450 U.S. 139 (1981) (stating that extreme hardship may be narrowly interpreted within the discretion of the Attorney General); see also KURZBAN, supra note 92, at 604-07; Stephanie Marks, A Practitioner's Guide to Suspension of Deportation, IMMIGR. BRIEFINGS (June 6, 1993); Calvo, supra note 3, at 634-37. For the VAWA applicant, "extreme hardship" to the alien or the alien's child withstood the passage of IIRIRA under both the self-petitioning procedure and the form of cancellation of removal (previously referred to as suspension of deportation) available to battered immigrants. IIRIRA § 304 (codified at INA § 240A(b)(2), 8 U.S.C. § 1229(b)(2); INA § 204(a)(1)(A)(iii)(II), 8 U.S.C. § 1154(a)(iii)(II); INA § 204(a)(1)(B)(ii), 8 U.S.C. § 1154(a)(1)(B)(ii)); see also supra notes 35-41 (discussing VAWA requirements and IIRIRA's elimination of suspension of deportation and replacement with cancellation of removal). It should be noted that the test of extreme hardship used to pursue the most common form of suspension of deportation pursuant to INA § 244(a)(1), 8 U.S.C. § 1254 (requiring seven years physical presence, good moral character, and extreme hardship to the alien or lawful spouse, child, or parent) was replaced when IIRIRA eliminated suspension of deportation. Suspension of deportation under INA § 244(a) was replaced with "cancellation of removal." IIRIRA § 304; see also IIRIRA § 308(a)(7) (repealing INA § 244). However, in replacing the traditional form of suspension of deportation with heightened requirements for cancellation of removal, the "extreme hardship" test of suspension was replaced with the tougher standard of "exceptional and extremely unusual hardship" to the qualifying lawful family only, not to the alien herself. IIRIRA § 304 (codified at INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1)) (additional requirements include 10 years of physical presence and good moral character); see also 142 CONG. REC. H10841, H10896 (daily ed., Sept. 24, 1996) (stating that the basis for heightening hardship standard was BIA's recent over-liberalization of the extreme hardship test in Matter of O-J-O, Int. Dec. #3280 (BIA 1996)).
147. See Matter of Ige, Int. Dec. #3230 (BIA 1994) (stating that the decision to permit a U.S. citizen child to remain in the United States is the parents' personal decision because the only hardship to consider upon child is that of adjusting to life in foreign country). As summarized in the INS Guidelines on VAWA, other limits on extreme hardship are found in Matter of Sipus, 14 I&N Dec. 229 (BIA 1972) (economic deprivation as result of deportation insufficient), Lee v. INS, 550 F.2d 554 (9th Cir. 1977) (loss of job insufficient), Matter of Uy, 11 I&N DEC. 159 (BIA 1965) (difficulty of readjustment to life in native country insufficient), Self-Petitioning, 61 Fed. Reg. 13,061, 13,067 (1996).
148. See. e.g., Matter of Ige, Int. Dec. #3230 (BIA 1994); Matter of O-J-O, Int. Dec. #3280 (BIA 1996).
149. See Matter of O-J-O, Int. Dec. #3280 (BIA 1996).
150. See 8 C.F.R. §204.2(c)(1)(viii) (1996); see also Self-Petitioning, 61 Fed. Reg. at 13,067 (encouraging consideration of abuse and enumerating such examples as availability of legal, social, and medical services for domestic violence in native country).
151. For discussion of the increased possibility of a battered woman losing custody of her children, see supra notes 59-61 and accompanying text.
152. See INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i); INA § 203(a)(2)(A), 8 U.S.C. § 1153(a)(2)(A); INA § 204(a)(1)(A)(i), 8 U.S.C. § 1154(a)(1)(AXi); INA § 216(c)(1), 8 U.S.C. § 1186a(c)(1).
153. For the relevant statutory and regulatory cites, see supra note 40 and accompanying text. Generally, a person may be found to be without good moral character if he or she 1) is a habitual drunkard; 2) is engaging in prostitution; 3) is smuggling; 4) is practicing polygamy; 5) has been convicted of or has admitted to certain crimes of moral turpitude; 6) has given false testimony for immigration benefits; or 7) is denied for discretionary other reasons not specifically enumerated. See INA § 101(f), 8 U.S.C. § 1101(f); 8 C.F.R. § 204.2(c)(2)(v), 204.2(e)(1)(vii); Self-Petitioning, 61 Fed. Reg. at 13,066, 13,075-76.
154. INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i); INA § 203(a)(2)(A), 8 U.S.C. § 1153(a)(2)(A); INA § 204(a)(1)(A)(i), 8 U.S.C. § 1154 (a)(1)(A); INA § 216(c)(1), 8 U.S.C. § 1186a(c)(1). Of course, all aliens applying for residency must overcome all grounds of inadmissibility, which include prohibitions on residency for the commission or conviction of specific criminal acts. INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) (providing exclusion for criminal offense of moral turpitude, criminal offense relating to controlled substances or drug trafficking, multiple criminal convictions with aggregate sentences to confinement of five years, and convictions for prostitution).
155. See INA § 101(0(1), 8 U.S.C. § 1101(f)(1).
156. Concurrent with BIA case law, the INS has recognized the connection between domestic violence and certain acts that would otherwise constitute violations of good moral character. For example, if a woman was forced by her abusive husband to engage in prostitution, she may not be without good moral character. See Self-Petitioning, 61 Fed. Reg. at 13,066 (relying on Matter of M-, 7 I&N Dec. 251 (BIA 1956)). For support of extending the acceptance of such a connection between abuse and acts which would otherwise prevent a positive good moral character finding, see infra notes 217-22 and accompanying text.
157. See, e.g., Franco, supra note 3, at 121.
158. See LENORE WALKER, THE BATTERED WOMAN 19 (1979); Mahoney, supra note 5, at 11. U.S. Health and Human Services Secretary Donna Shalala declared "[d]omestic violence ... an unacknowledged epidemic in our society." Jill Smolowe, When Violence Hits Home, TIME, July 4, 1994, at 20 (quoting Secretary Shalala).
159. See LENORE WALKER, THE BATTERED WOMAN 19 (1979); Mahoney, supra note 5, at 11. U.S. Health and Human Services Secretary Donna Shalala declared "[d]omestic violence ... an unacknowledged epidemic in our society." Jill Smolowe, When Violence Hits Home, TIME, July 4, 1994, at 20 (quoting Secretary Shalala).
160. The theories characterizing a battered woman as a masochist or pathological were used to explain why a woman stayed in an abusive relationship at the turn of the century when common law rejected the legality of chastisement. See Meier, supra note 59, at 1301. Preconceptions about the battered wife as pathological still unfortunately persist today. See id. at 1301-02; see also discussion of stereotypes of battered woman supra note 59 and accompanying text; infra notes 184-92 and accompanying text discussing the same.
161. In 1985, Congress passed IMFA after INS Commissioner Alan Nelson testified before the Sen-ate immigration subcommittee that nearly 30% of all immigrant petitions based on marriage involved "suspect marital relationships," and such information was included in a House Judiciary Report. See LEGOMSKY, supra note 36, at 148-49 (relying on S. Hrg. 99-325, 99th Cong. 35 (1985); H.R. Rep. No. 99-306, at 6 (1986)). However, in subsequent investigations of the report relied upon by Commissioner Nelson, it was discovered that the results were skewed as only categories of marriages initially thought to involve risk were involved in the study and the 30% figure revealed not the percentage of "actual" fraud, but the percentage of "suspected" fraud. Id. (relying on 65 INTERPRETER RELEASES 25-26 (1988)). One INS official, David Nachtsheim, later revealed in a deposition that the INS recognized that the survey "was statistically invalid and lacked any probative value regarding the actual incidence of fraud." Id. (relying on 66 INTERPRETER Releases 1011 (1989)). For further discussion of IMFA, see supra notes 18-26 and accompanying text.
162. See discussion of the extreme hardship and good moral character requirements supra notes 103-15 and accompanying text.
163. See generally Siegel, supra note 26 (discussing the perpetuation of discriminatory attitudes towards battered woman).
164. 130 U.S. 581 (1889).
165. See Chae Chan Ping, 130 U.S. at 581. Petitioner had been a lawful permanent resident of the United States for 12 years. Id. at 582. After leaving the United States with the statutorily required certificate to re-enter, petitioner was denied re-entry, the certificate being declared "void and of no effect" as a result of the Chinese Exclusion Act that became effective in his absence. Id. 124 LISA SEE, ON GOLD MOUNTAIN 43 (1995). Winning the 1876 election, Rutherford Hayes declared "the present Chinese invasion" to be "pernicious and should be discouraged. Our experience in dealing with the weaker races - the Negroes and Indians . . . is not encouraging . . . . I would consider with favor any suitable measures to discourage the Chinese from coming to our shores." Id. at 43. For other comments on the discriminatory treatment of the Chinese during this period, see LEGOMSKY, supra note 36, at 19-21.
166. See SEE, supra note 124, at 44. It also seems significant that the Chae Chan Ping case is still traditionally referred to by its discriminatory title, The Chinese Exclusion Case.
167. Id.
168. 149 U.S. 698 (1893).
169. See Fang Yue Ting, 149 U.S. at 698 (upholding unsuccessful challenge to an amendment to the Chinese Exclusion Act allowing the deportation of a Chinese resident if he or she could not obtain a certificate of residency or demonstrate through the testimony of "one credible white witness" that he or she was a lawful U.S. resident). Although challenging the plenary power being awarded to Congress, Justice Brewer's dissenting opinion also reflected racist attitudes. Accepting the majority decision against the "obnoxious Chinese," Justice Brewer's only concern was with how the plenary power would be exercised against other classes and people. Id. (Brewer, J., dissenting); see also Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186, 1189-90 (1985). For a discussion of Fong Yue Ting, see Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and The Porous Border of the Plenary Power Doctrine, 22 HASTINGS CONST. L.Q. 1087, 1129 (1995).
170. See Fang Yue Ting, 149 U.S. at 698 (upholding unsuccessful challenge to an amendment to the Chinese Exclusion Act allowing the deportation of a Chinese resident if he or she could not obtain a certificate of residency or demonstrate through the testimony of "one credible white witness" that he or she was a lawful U.S. resident). Although challenging the plenary power being awarded to Congress, Justice Brewer's dissenting opinion also reflected racist attitudes. Accepting the majority decision against the "obnoxious Chinese," Justice Brewer's only concern was with how the plenary power would be exercised against other classes and people. Id. (Brewer, J., dissenting); see also Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186, 1189-90 (1985). For a discussion of Fong Yue Ting, see Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and The Porous Border of the Plenary Power Doctrine, 22 HASTINGS CONST. L.Q. 1087, 1129 (1995).
171. See Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886); see also Kelly, supra note 11 (proposing a "constitutionally humane" approach to the question of family unity in immigration law).
172. Fong Yue Ting declared the "inherent and inalienable right of every sovereign and independent nation" to maintain the country's safety. Fong Yue Ting, 149 U.S. at 711; see also Chinese Exclusion Case, 130 U.S. at 609 (finding the inherent power of the political branches over immigration affairs).
173. See Gotanda, supra note 128, at 1188; Neil Gotanda, Asian American Rights and the "Miss Saigon Syndrome" in ASIAN AMERICANS AND THE SUPREME COURT: A DOCUMENTARY HISTORY 1096-1099 (Hyung-Chan Kim ed., 1992).
174. See Gotanda, supra note 128, at 1190 (attaching to foreignness the concept of "unassimilable strangers").
175. 169 U.S. 649 (1898).
176. Wong Kim Ark, 169 U.S. at 649; Gotanda, supra note 130, at 1097.
177. The Chinese who were "of a distinct race and religion, remaining strangers in the land, unfamiliar with our institutions, and apparently incapable of assimilating with our people, might endanger our good order, and be injurious to the public interests." Wong Kim Ark, 169 U.S. at 731 (quoting Fong Yue Ting, 149 U.S. at 717 (Fuller C.J., Harlan, J., dissenting)); see also Gotanda, supra note 131, at 1097. Lisa See's commentary on the exclusion of the Chinese in the 1800s also acknowledges the country's perception of the Chinese as "totally unassimilable." SEE, supra note 124, at 44. For discussion of current efforts to deny Fourteenth Amendment citizenship to children of undocumented aliens, see infra note 152 and accompanying text.
178. See Wong Kim Ark, 169 U.S. at 731-32 (Fuller, C.J., Harlan, J., dissenting); see also Gotanda, supra note 128, at 1190.
179. 323 U.S. 214 (1944).
180. See Gotanda, supra note 131, at 1097-98.
181. Korematsu, 323 U.S. at 223. Writing in dissent, Justice Murphy angrily found the exclusion of the Japanese "goes over 'the brink of constitutional power' and falls into the ugly abyss of racism." Id. at 233 (Murphy, J., dissenting); see also Gotanda, supra note 131, at 1097-98.
182. Korematsu, 347 U.S. at 223.
183. Id. See id. For a historical discussion of Korematsu and the treatment of Japanese Americans, see, for example, PETER IRONS, JUSTICE AT WAR (1983) and compare Gotanda, supra note 128. For a recent work of fiction based upon America's distrust of individuals of Japanese descent during the World War II era, see DAVID GUTERSON, SNOW FALLING ON CEDARS (1994).
184. Id. See id. For a historical discussion of Korematsu and the treatment of Japanese Americans, see, for example, PETER IRONS, JUSTICE AT WAR (1983) and compare Gotanda, supra note 128. For a recent work of fiction based upon America's distrust of individuals of Japanese descent during the World War II era, see DAVID GUTERSON, SNOW FALLING ON CEDARS (1994).
185. See INA § 311, 8 U.S.C. § 1422 (1994). See generally Gotanda, supra note 128, at 1191; LEGOMSKY, supra note 36, at 1044.
186. 347 U.S. 483 (1954).
187. 347 U.S. 497 (1954).
188. See Gotanda, supra note 128, at 1191.
189. For a discussion of immigration law's condonation of discrimination against the fundamental familial and marital rights of aliens and their lawful family, see, for example, Kelly, supra note 11; Matsumoto-Power, supra note 11. See also Murphy, supra note 4, at 1249-51 (recognizing the nonexistent corollary between legal and social change by highlighting the ever increasing gap between blacks and whites in income levels, life expectancy, and infant mortality rates despite landmark legal decisions).
190. 472 U.S. 846 (1985).
191. Jean, 472 U.S. at 846. The majority justified its refusal to reach the constitutional question based on its finding that the nondiscriminatory language of the governing statutes and regulations was sufficient to prevent discriminatory parole practices. Id. at 853. Dissenting in Jean, Justice Marshall concluded that it was necessary to provide petitioners with a Fifth Amendment right to "parole decisions free from invidious discrimination" as the provisions relied upon by the majority did not ensure nondis-criminatory practices. Id. at 858 (Marshall, J., dissenting). Initially a panel of the Eleventh Circuit had found "selective and discriminatory enforcement" of parole policies for Haitian detainees. Jean v. Nelson, 711 F.2d 1455, 1484 (11th Cir. 1983). For a discussion of that decision, see Taylor, supra note 128, at 1142-43.
192. Jean, 472 U.S. at 848 (discussing Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984)(en banc)).
193. The Eleven Circuit's Jean en banc court decision has been influential in preventing aliens from raising due process and equal protection claims in order to challenge immigration laws governing admission or entry. See Taylor, supra note 128, at 1142-43.
194. In 1996, the Republican platform, as a result of the efforts of California Governor Pete Wilson, included a plank denying citizenship by birth on U.S. soil to children of undocumented aliens. See Marc Lacey, Move to Limit Citizenship Gains Support, L.A. TIMES, June 11, 1995, at A1; Gregory Rodriguez, The Browning of California, THE NEW REPUBLIC, Sept. 2, 1996, at 18; Jim Specht, Congress to Tread into Issue of Citizenship for Illegal Immigrants' Kids, GANNETT NEWS SERV., Dec. 1, 1995, available in LEXIS, News Library, ALLNWS file; Jim Specht, Officials Worry Immigration Plank Will Hurt GOP in Border States, GANNETT NEWS SERV., Aug. 12, 1996, available in LEXIS, News Library, ALLNWS file; The Promise of the Republican Platform, WASH. TIMES, Aug. 12, 1996, at A20; see also LEGOMSKY, supra note 36, at 1055-70 (discussing jus soli). Anti-immigrant sentiment was also clearly present in 1996 with the passage of the Illegal Reform and Immigrant Responsibility Act and the Welfare Act. For a collection of essays discussing the recent anti-immigrant sentiment, see IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES (Juan F. Perea ed., 1997). See also Kelly, supra note 2.
195. In 1996, the Republican platform, as a result of the efforts of California Governor Pete Wilson, included a plank denying citizenship by birth on U.S. soil to children of undocumented aliens. See Marc Lacey, Move to Limit Citizenship Gains Support, L.A. TIMES, June 11, 1995, at A1; Gregory Rodriguez, The Browning of California, THE NEW REPUBLIC, Sept. 2, 1996, at 18; Jim Specht, Congress to Tread into Issue of Citizenship for Illegal Immigrants' Kids, GANNETT NEWS SERV., Dec. 1, 1995, available in LEXIS, News Library, ALLNWS file; Jim Specht, Officials Worry Immigration Plank Will Hurt GOP in Border States, GANNETT NEWS SERV., Aug. 12, 1996, available in LEXIS, News Library, ALLNWS file; The Promise of the Republican Platform, WASH. TIMES, Aug. 12, 1996, at A20; see also LEGOMSKY, supra note 36, at 1055-70 (discussing jus soli). Anti-immigrant sentiment was also clearly present in 1996 with the passage of the Illegal Reform and Immigrant Responsibility Act and the Welfare Act. For a collection of essays discussing the recent anti-immigrant sentiment, see IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES (Juan F. Perea ed., 1997). See also Kelly, supra note 2.
196. In 1996, the Republican platform, as a result of the efforts of California Governor Pete Wilson, included a plank denying citizenship by birth on U.S. soil to children of undocumented aliens. See Marc Lacey, Move to Limit Citizenship Gains Support, L.A. TIMES, June 11, 1995, at A1; Gregory Rodriguez, The Browning of California, THE NEW REPUBLIC, Sept. 2, 1996, at 18; Jim Specht, Congress to Tread into Issue of Citizenship for Illegal Immigrants' Kids, GANNETT NEWS SERV., Dec. 1, 1995, available in LEXIS, News Library, ALLNWS file; Jim Specht, Officials Worry Immigration Plank Will Hurt GOP in Border States, GANNETT NEWS SERV., Aug. 12, 1996, available in LEXIS, News Library, ALLNWS file; The Promise of the Republican Platform, WASH. TIMES, Aug. 12, 1996, at A20; see also LEGOMSKY, supra note 36, at 1055-70 (discussing jus soli). Anti-immigrant sentiment was also clearly present in 1996 with the passage of the Illegal Reform and Immigrant Responsibility Act and the Welfare Act. For a collection of essays discussing the recent anti-immigrant sentiment, see IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES (Juan F. Perea ed., 1997). See also Kelly, supra note 2.
197. In 1996, the Republican platform, as a result of the efforts of California Governor Pete Wilson, included a plank denying citizenship by birth on U.S. soil to children of undocumented aliens. See Marc Lacey, Move to Limit Citizenship Gains Support, L.A. TIMES, June 11, 1995, at A1; Gregory Rodriguez, The Browning of California, THE NEW REPUBLIC, Sept. 2, 1996, at 18; Jim Specht, Congress to Tread into Issue of Citizenship for Illegal Immigrants' Kids, GANNETT NEWS SERV., Dec. 1, 1995, available in LEXIS, News Library, ALLNWS file; Jim Specht, Officials Worry Immigration Plank Will Hurt GOP in Border States, GANNETT NEWS SERV., Aug. 12, 1996, available in LEXIS, News Library, ALLNWS file; The Promise of the Republican Platform, WASH. TIMES, Aug. 12, 1996, at A20; see also LEGOMSKY, supra note 36, at 1055-70 (discussing jus soli). Anti-immigrant sentiment was also clearly present in 1996 with the passage of the Illegal Reform and Immigrant Responsibility Act and the Welfare Act. For a collection of essays discussing the recent anti-immigrant sentiment, see IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES (Juan F. Perea ed., 1997). See also Kelly, supra note 2.
198. In 1996, the Republican platform, as a result of the efforts of California Governor Pete Wilson, included a plank denying citizenship by birth on U.S. soil to children of undocumented aliens. See Marc Lacey, Move to Limit Citizenship Gains Support, L.A. TIMES, June 11, 1995, at A1; Gregory Rodriguez, The Browning of California, THE NEW REPUBLIC, Sept. 2, 1996, at 18; Jim Specht, Congress to Tread into Issue of Citizenship for Illegal Immigrants' Kids, GANNETT NEWS SERV., Dec. 1, 1995, available in LEXIS, News Library, ALLNWS file; Jim Specht, Officials Worry Immigration Plank Will Hurt GOP in Border States, GANNETT NEWS SERV., Aug. 12, 1996, available in LEXIS, News Library, ALLNWS file; The Promise of the Republican Platform, WASH. TIMES, Aug. 12, 1996, at A20; see also LEGOMSKY, supra note 36, at 1055-70 (discussing jus soli). Anti-immigrant sentiment was also clearly present in 1996 with the passage of the Illegal Reform and Immigrant Responsibility Act and the Welfare Act. For a collection of essays discussing the recent anti-immigrant sentiment, see IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES (Juan F. Perea ed., 1997). See also Kelly, supra note 2.
199. In 1996, the Republican platform, as a result of the efforts of
200. HOGELAND & ROSEN, supra note 25, at 28. For further discussion of anti-immigrant sentiment, see id. at 14-25 (discussing discrimination against Latinas, Chinese, and Filipinos).
201. See Kelly, supra note 2 (describing IIRIRA's response to battered immigrants in 1996 as being influenced by competing interests to end domestic violence and curb illegal immigration).
202. See Mahoney, supra note 5, at 11-12.
203. See id. at 12-13; Meier, supra note 59, at 1311; see also G. Chezia Carraway, Violence Against Women of Color, 43 STAN. L. REV. 1301, 1304 (1991) (observing that prosecutors of rape cases are more desirous of filling jury with men than women, as women tend to be less empathetic to victim and tend to acquit rapist).
204. See Meier, supra note 59, at 1311.
205. See. e.g., Siegel, supra note 26, at 2180 (arguing that domestic violence has undergone "preser-vation through transformation"). Previously accepted as a husband's marital prerogative, domestic violence is now protected by the notion of marital privacy. Professor Siegel suggests that this may not be the result of ill intent, but rather the result of good faith actions to preserve "domestic harmony." Id.; see also Honorable Karen Burnstein, Naming the Violence: Destroying the Myth, 58 ALB. L. REV. 961, 964-65 (1995) (arguing that the failure to recognize domestic violence as public issue may serve to condone it); Mahoney, supra note 5, at 12-13 (arguing that support for privacy may be explained as an effort to protect the institution of marriage and the tradition of subordinating women). Such criticisms, in conjunction with the development of the feminist and civil rights movements, have led to increased efforts to develop a strong public response to domestic violence. As of 1992, 14 states and the District of Columbia had laws mandating arrest in crimes of domestic violence. See BUREAU OF JUSTICE STATISTICS, supra note 53, at 9. The Department of Justice also reported that 47 states and the District of Columbia allow for warrantless probable-cause arrest in domestic violence cases. Id. For discussions on the development of such policies, see EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE, THE CRIMINAL JUSTICE RESPONSE 153-65 (1996); Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1857-65 (1996); Meier, supra note 59, at 1303-04; Elizabeth M. Schneider, Making Reconceptualization of Violence Against Women Real, 58 ALB. L. REV. 1245, 1250-51 (1995). For a criticism of the unique effects of "strong public policy" on battered immigrants, see Kelly, supra note 2.
206. See. e.g., Siegel, supra note 26, at 2180 (arguing that domestic violence has undergone "preser- vation through transformation"). Previously accepted as a husband's marital prerogative, domestic violence is now protected by the notion of marital privacy. Professor Siegel suggests that this may not be the result of ill intent, but rather the result of good faith actions to preserve "domestic harmony." Id.; see also Honorable Karen Burnstein, Naming the Violence: Destroying the Myth, 58 ALB. L. REV. 961, 964-65 (1995) (arguing that the failure to recognize domestic violence as public issue may serve to condone it); Mahoney, supra note 5, at 12-13 (arguing that support for privacy may be explained as an effort to protect the institution of marriage and the tradition of subordinating women). Such criticisms, in conjunction with the development of the feminist and civil rights movements, have led to increased efforts to develop a strong public response to domestic violence. As of 1992, 14 states and the District of Columbia had laws mandating arrest in crimes of domestic violence. See BUREAU OF JUSTICE STATISTICS, supra note 53, at 9. The Department of Justice also reported that 47 states and the District of Columbia allow for warrantless probable-cause arrest in domestic violence cases. Id. For discussions on the development of such policies, see EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE, THE CRIMINAL JUSTICE RESPONSE 153-65 (1996); Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1857-65 (1996); Meier, supra note 59, at 1303-04; Elizabeth M. Schneider, Making Reconceptualization of Violence Against Women Real, 58 ALB. L. REV. 1245, 1250-51 (1995). For a criticism of the unique effects of "strong public policy" on battered immigrants, see Kelly, supra note 2.
207. See. e.g., Siegel, supra note 26, at 2180 (arguing that domestic violence has undergone "preser- vation through transformation"). Previously accepted as a husband's marital prerogative, domestic violence is now protected by the notion of marital privacy. Professor Siegel suggests that this may not be the result of ill intent, but rather the result of good faith actions to preserve "domestic harmony." Id.; see also Honorable Karen Burnstein, Naming the Violence: Destroying the Myth, 58 ALB. L. REV. 961, 964-65 (1995) (arguing that the failure to recognize domestic violence as public issue may serve to condone it); Mahoney, supra note 5, at 12-13 (arguing that support for privacy may be explained as an effort to protect the institution of marriage and the tradition of subordinating women). Such criticisms, in conjunction with the development of the feminist and civil rights movements, have led to increased efforts to develop a strong public response to domestic violence. As of 1992, 14 states and the District of Columbia had laws mandating arrest in crimes of domestic violence. See BUREAU OF JUSTICE STATISTICS, supra note 53, at 9. The Department of Justice also reported that 47 states and the District of Columbia allow for warrantless probable-cause arrest in domestic violence cases. Id. For discussions on the development of such policies, see EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE, THE CRIMINAL JUSTICE RESPONSE 153-65 (1996); Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1857-65 (1996); Meier, supra note 59, at 1303-04; Elizabeth M. Schneider, Making Reconceptualization of Violence Against Women Real, 58 ALB. L. REV. 1245, 1250-51 (1995). For a criticism of the unique effects of "strong public policy" on battered immigrants, see Kelly, supra note 2.
208. See. e.g., Siegel, supra note 26, at 2180 (arguing that domestic violence has undergone "preser- vation through transformation"). Previously accepted as a husband's marital prerogative, domestic violence is now protected by the notion of marital privacy. Professor Siegel suggests that this may not be the result of ill intent, but rather the result of good faith actions to preserve "domestic harmony." Id.; see also Honorable Karen Burnstein, Naming the Violence: Destroying the Myth, 58 ALB. L. REV. 961, 964-65 (1995) (arguing that the failure to recognize domestic violence as public issue may serve to condone it); Mahoney, supra note 5, at 12-13 (arguing that support for privacy may be explained as an effort to protect the institution of marriage and the tradition of subordinating women). Such criticisms, in conjunction with the development of the feminist and civil rights movements, have led to increased efforts to develop a strong public response to domestic violence. As of 1992, 14 states and the District of Columbia had laws mandating arrest in crimes of domestic violence. See BUREAU OF JUSTICE STATISTICS, supra note 53, at 9. The Department of Justice also reported that 47 states and the District of Columbia allow for warrantless probable-cause arrest in domestic violence cases. Id. For discussions on the development of such policies, see EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE, THE CRIMINAL JUSTICE RESPONSE 153-65 (1996); Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1857-65 (1996); Meier, supra note 59, at 1303-04; Elizabeth M. Schneider, Making Reconceptualization of Violence Against Women Real, 58 ALB. L. REV. 1245, 1250-51 (1995). For a criticism of the unique effects of "strong public policy" on battered immigrants, see Kelly, supra note 2.
209. Meier, supra note 59, at 1311. Such attitudes have limited the potential of legal reform efforts. See id.
210. See Cahn & Meier, supra note 26, at 354.
211. Meier, supra note 59, at 1311.
212. As Lenore Walker described: A battered woman is a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without any concern for her rights. Battered women included wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. WALKER, supra note 117, at xv; see also Mahoney, supra note 5, at 28-34 (describing the emphasis on physical violence in the early definitions of Lenore Walker, Mary Ann Douglas, Angela Browne, and Mildred Pagelow).
213. WALKER, supra note 117, at 55-70. This final "honeymoon stage" would soon be followed by more tension building, leading ultimately to more incidents of acute battering. Id. 164 See Mahoney, supra note 5, at 53-55 (criticizing legal literature for failing to focus on the "power and control, domination and subordination" dimensions of battering, and suggesting that perhaps these aspects are ignored because society readily accepts as "traditional" the man's superior and woman's subordinate position in a marriage); see also EMERSON DOBASH & RUSSELL DOBASH, VIOLENCE AGAINST WIVES ix (1979) (recognizing the patriarchal nature of domestic violence). Such an emphasis on battering not as violence but as part of a larger effort of the batterer to gain power and control is a fairly recent phenomenon. See Meier, supra note 59, at 1317-22; see also Carraway, supra note 156, at 1305-07 (arguing for the redefinition of violence against women of color to include such conditions as "economic violence, cultural violence, legislative violence, medical violence, spiritual violence, emotional violence, and educational violence" in order to be aware of the variety of powers working against women of color); Mahoney, supra note 5, at 28-34 (reviewing and criticizing physical violence definitions).
214. See Meier, supra note 59, at 1318.
215. Id. (quoting Evan Stark, Framing and Reframing Battered Women, in DOMESTIC VIOLENCE: THE CRIMINAL JUSTICE RESPONSE 287, 290 (Eva Buzawa ed., 1993)). Despite the inclusive nature of a control-focused definition of domestic violence, it may be criticized as too intangible to be useful in the legal system and fraught with its own potential for stereotypes of abusers and abused. See Meier, supra note 59, at 1316-21. Yet recognizing these tensions should not prevent decisionmakers from finding a workable solution to help change legal and societal misconceptions of violence. See Mahoney, supra note 5, at 34.
216. See explanation of the self-petitioning process supra notes 30-115 and accompanying text
217. See description of the public record preference emphasized by administrative regulation supra notes 43-52 and accompanying text.
218. Without clear instruction, Commissioner Meissner's remark that the suggested list of public records evidence is not exhaustive will do little to encourage the acceptance of alternative evidence. Self-Petitioning, 61 Fed. Reg. 13,061, 13,066 (1996). See discussion of limited potential for such remarks given the overriding emphasis upon public documentation supra notes 43-52 and accompanying text.
219. For a discussion of the trivialization of domestic violence, see supra notes 155-57, 160-61, and accompanying text.
220. For a discussion of the "good faith" marriage requirement of VAWA, see supra notes 91-101 and accompanying text.
221. A refugee is defined as: Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Such definition is also the basis upon which a person may be granted asylum. See INA § 208, 8 U.S.C. § 1158(b)(1). For clarity and consistency purposes, I will use the term "refugee" throughout this discussion. The United Nations 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees (Protocol) provide the basis for the U.S. statutory definition of refugee. In 1968, prior to the U.S. Refugee Act of 1980, the United States had acceded to the 1967 Protocol and in so doing had indirectly acceded to the 1951 Convention as modified. See United States Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) [hereinafter Refugee Act]. For further discussion of the development of refugee law, see OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES (Geneva, 1992) [hereinafter UN HANDBOOK], See also, DEBORAH E. ANKER, THE LAW OF ASYLUM IN THE UNITED STATES: A GUIDE TO ADMINISTRATIVE PRACTICE AND CASE LAW (2d ed. 1991), KURZBAN, supra note 93, at 207-97; LEGOMSKY, supra note 34, at 748-952; Kristine M. Fox, Note, Gender Persecution: Canadian Guidelines Offer a Model for Refugee Determination in the United States, 11 ARIZ. J. INT'L & COMP. L. 117, 119-22 (1994).
222. A refugee is defined as: Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Such definition is also the basis upon which a person may be granted asylum. See INA § 208, 8 U.S.C. § 1158(b)(1). For clarity and consistency purposes, I will use the term "refugee" throughout this discussion. The United Nations 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees (Protocol) provide the basis for the U.S. statutory definition of refugee. In 1968, prior to the U.S. Refugee Act of 1980, the United States had acceded to the 1967 Protocol and in so doing had indirectly acceded to the 1951 Convention as modified. See United States Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) [hereinafter Refugee Act]. For further discussion of the development of refugee law, see OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES (Geneva, 1992) [hereinafter UN HANDBOOK], See also, DEBORAH E. ANKER, THE LAW OF ASYLUM IN THE UNITED STATES: A GUIDE TO ADMINISTRATIVE PRACTICE AND CASE LAW (2d ed. 1991), KURZBAN, supra note 93, at 207-97; LEGOMSKY, supra note 34, at 748-952; Kristine M. Fox, Note, Gender Persecution: Canadian Guidelines Offer a Model for Refugee Determination in the United States, 11 ARIZ. J. INT'L & COMP. L. 117, 119-22 (1994).
223. A refugee is defined as: Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). Such definition is also the basis upon which a person may be granted asylum. See INA § 208, 8 U.S.C. § 1158(b)(1). For clarity and consistency purposes, I will use the term "refugee" throughout this discussion. The United Nations 1951 Convention Relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees (Protocol) provide the basis for the U.S. statutory definition of refugee. In 1968, prior to the U.S. Refugee Act of 1980, the United States had acceded to the 1967 Protocol and in so doing had indirectly acceded to the 1951 Convention as modified. See United States Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) [hereinafter Refugee Act]. For further discussion of the development of refugee law, see OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES (Geneva, 1992) [hereinafter UN HANDBOOK], See also, DEBORAH E. ANKER, THE LAW OF ASYLUM IN THE UNITED STATES: A GUIDE TO ADMINISTRATIVE PRACTICE AND CASE LAW (2d ed. 1991), KURZBAN, supra note 93, at 207-97; LEGOMSKY, supra note 34, at 748-952; Kristine M. Fox, Note, Gender Persecution: Canadian Guidelines Offer a Model for Refugee Determination in the United States, 11 ARIZ. J. INT'L & COMP. L. 117, 119-22 (1994).
224. For recognition of such problem in the refugee context, see, for example, Matter of Mogharrabi, 19 I&N Dec. 439, 443-46 (BIA 1987); Matter of Dass, 20 I&N Dec. 120, 124-27 (BIA 1989); UN HANDBOOK, supra note 172, at ¶¶ 195-205.
225. See Mogharrabi, 19 I&N Dec. at 445; see also UN HANDBOOK, supra note 172, ¶¶ 203-04.
226. Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1285 (9th Cir. 1984). On the limited evidence other than testimony available to demonstrate persecution, see also Turcios v. I.N.S., 829 F.2d 720, 723 (9th Cir. 1987); Mogharrabi, 19 I&N Dec. at 445; UN HANDBOOK, supra note 172, at ¶ 196; KURZBAN, supra note 93, at 277-79; LEGOMSKY, supra note 29, at 870-81.
227. Bolanos-Hernandez, 767 F.2d at 1285.
228. See Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989); In re S-M-J, Int. Dec. #3303 (BIA 1997); UN HANDBOOK, supra note 172, at ¶ 205(a)(ii).
229. For discussion of this change, see supra note 52 and accompanying text. See also discussion of Sonya's and other clients' evidentiary problems supra notes 36-115 and accompanying text.
230. See Nancy Kelly, Gender-Related Persecution: Assessing the Asylum Claims of Women, 26 CORNELL INT'L L.J. 625, 630 (1993).
231. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
232. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
233. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
234. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
235. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
236. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
237. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
238. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
239. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
240. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
241. UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GUIDELINES ON THE PROTECTION OF REFUGEE WOMEN (July, 1991) [hereinafter UNHCR GUIDELINES] . For discussion of the UNHCR GUIDELINES, see Phyllis Coven, Dep't of Justice, Memorandum on Considerations for Asylum Officers Adjudicating Asylum Claims From Women (May 26, 1995), reproduced in 72 INTERPRETER RELEASES 781 (June 5, 1995); Kelly, supra note 179, at 660-66; Nancy Kelly et al., Guidelines for Women's Asylum Claims, 71 INTERPRETER RELEASES 813 (June 27, 1994). The UNHCR GUIDELINES resulted from the recognition that nearly 80% of refugees and displaced persons are women and children and that therefore particular attention needed to be paid to their lack of proper treatment. See Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN 59 (1996), Beijing Declaration and the Platform for Action, A/CONF. 177/20, Oct. 17, 1995, ¶¶ 135-36 (extract reproduced as Document 127, in THE UNITED NATIONS AND THE ADVANCEMENT OF WOMEN: 1945-1996, at 681); Berta Esperanza Hernandez-Truyol, Women 's Rights as Human Rights - Rules, Realities and the Role of Culture: A Formula for Reform, 21 BROOK. J. INT'L L. 605, nn.156-58 (1996). For a discussion of the international documents focusing on discrimination and violence against women, see generally Hilary Charlesworth et al., Feminist Approaches to International Law, 85 AM. J. INTL. L. 613 (1991); Rebecca J. Cook, Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, 30 VA. J. INT'L L. 643 (1990); Rebecca J. Cook, State Responsibility for Violations of Women's Human Rights, 7 HARV. HUM. RTS. J. 125 (1994); Pamela Goldberg & Nancy Kelly, Recent Developments: International Human Rights and Violence Against Women, 6 HARV. HUM. RTS. J. 195 (1993).
242. Coven, supra note 180, at 3. For discussion of gender-related persecution, see generally Kelly et al., supra note 180; Karen Musalo, In Re Kasinga. A Big Step Forward for Gender-Based Asylum Claims, 73 INTERPRETER RELEASES 853 (1996); Fox, supra note 172; see also In re Kasinga, Int Dec. #3278 (BIA 1996) (recognizing women who fear female genital mutilation as a "particular social group" within the definition of a refugee).
243. Coven, supra note 180, at 1, n.2.
244. While such guidelines and other international documents may not be legally binding upon the United States, the UNHCR Guidelines have been relied upon by the INS in issuing direction to its Asylum Officers. See id. at 2-3 (discussing the Convention of the Elimination of Discrimination Against Women; UN Declaration on the Elimination of Violence Against Women; UNHCR Guidelines on the Protection of Refugee Women; and Canadian Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution). For further discussion of the moral and legal obligation of the United States under international documents, see generally Margaret P. Karns & Karen A. Mingst, The Past as Prologue: The United States and the Future of the UN System, in THE UNITED NATIONS SYSTEM: THE POLICIES OF MEMBER STATES 410 (Chadwick F. Alger et al. eds., 1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517, 519 (1992); Kelly, supra note 179, at 660, n.170.
245. While such guidelines and other international documents may not be legally binding upon the United States, the UNHCR Guidelines have been relied upon by the INS in issuing direction to its Asylum Officers. See id. at 2-3 (discussing the Convention of the Elimination of Discrimination Against Women; UN Declaration on the Elimination of Violence Against Women; UNHCR Guidelines on the Protection of Refugee Women; and Canadian Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution). For further discussion of the moral and legal obligation of the United States under international documents, see generally Margaret P. Karns & Karen A. Mingst, The Past as Prologue: The United States and the Future of the UN System, in THE UNITED NATIONS SYSTEM: THE POLICIES OF MEMBER STATES 410 (Chadwick F. Alger et al. eds., 1995); Karen Engle, International Human Rights and Feminism: When Discourses Meet, 13 MICH. J. INT'L L. 517, 519 (1992); Kelly, supra note 179, at 660, n.170.
246. UNHCR GUIDELINES, supra note 180, at 41, ¶ 72.
247. Id. (noting, for example, the problems inherent in interpreting one's unwillingness to make eye contact). See generally Kelly et al., supra note 180, at 823.
248. UNHCR GUIDELINES, supra note 180, at 41, ¶ 72. See generally Kelly et al., supra note 180, at 823.
249. Accompanying the early definitions of domestic violence was the notion of "learned helplessness" which suggested that the domestic violence victim was unable to leave the violent relationship because, over time, she had been conditioned to be weak and subservient in order to survive. The notion of learned helplessness was developed by Martin Seligman through studies on animals in the late sixties, which would "raise the ire of today's animal rights activists." See Mahoney, supra note 5, at 39 n.170 (quoting EDWARD GONDOLF & ELLEN FISHER, BATTERED WOMEN AS SURVIVORS: AN ALTERNATIVE TO TREATING LEARNED HELPLESSNESS 13 (1988)). On learned helplessness, see also WALKER, supra note 117, at 45-48; Cahn & Meier, supra note 26, at 354-55.
250. See Cahn & Meier, supra note 26, at 343-44 (describing common stereotypes about battered women that they are "weak, passive, or pathological for 'staying' with the abuser").
251. See Cahn & Meier, supra note 26, at 354. In zealously representing clients, attorneys also need to check their own preconceptions and misconceptions. Id. at 346-51. For a discussion of the problems inherent in over-simplistic attempts to characterize a battered woman as helpless victim or provoking agent, see Hanna, supra note 158, at 1882-85; see also supra notes 59-61, 155-61 and accompanying text noting problems raised by stereotypes of battered women.
252. See Cahn & Meier, supra note 26 (discussing teaching methods in a clinical law school setting, such as efforts to combat stereotyping of domestic violence survivors).
253. Rivera, supra note 54, at 240. Latinas are also presented as "innocent virgins." Id. (recalling the characters of Maria and Anita in the movie West Side Story). Alternatively, the image of "Latino males as hot-blooded, passionate, and prone to emotional outbursts is legendary. 'Macho' is the accepted -and expected - single word description synonymous with Latino men and male culture." Id. (citations omitted).
254. See id. at 243-44; see also discussion of victim blaming and violence minimization supra notes 155-66 and accompanying text.
255. For the recognition that testimony may suffice as objective evidence to prove refugee status, see Matter of Mogharrabi, 19 I&N Dec. 439, 443-46 (BIA 1987); Matter of Acosta, 19 I&N Dec. 211, 224 (BIA 1985).
256. UNHCR GUIDELINES, supra note 180, at 43, ¶ 75. See generally Kelly et al., supra note 180, at 823.
257. UNHCR GUIDELINES, supra note 180, at 41, ¶ 72. See generally Kelly et al., supra note 180, at 823.
258. UNHCR GUIDELINES, supra note 180, at 41, ¶ 72. See generally Kelly et al., supra note 180, at 823.
259. UNHCR GUIDELINES, supra note 180, at 41, ¶ 72. See generally Kelly et al., supra note 180, at 823.
260. UNHCR GUIDELINES, supra note 180, at 41, ¶ 72. See generally Kelly et al., supra note 180, at 823. 199 UNHCR GUIDELINES, supra note 180, at 43, ¶ 75. See generally Kelly et al., supra note 180, at 823.
261. UNHCR GUIDELINES, supra note 180, at 42, ¶ 72. See generally Kelly et al., supra note 180, at 824.
262. See Mahoney, supra note 5, at 36.
263. See id.
264. See id.
265. See id. at 36-37; WALKER, supra note 117, at 55; see also description of the battering relationship supra notes 162-66 and accompanying text.
266. See discussion of characteristics of an abusive relationship supra notes 162-66 and accompanying text.
267. UNHCR GUIDELINES, supra note 180, at 41, ¶ 72. See generally Kelly et al., supra note 180, at 823-24.
268. See Meier, supra note 59, at 1312-14 (explaining effects of PTSD on battered women).
269. See id. at 1313-14 (explaining ways in which information about a battered woman's PTSD can be helpful in the litigation context).
270. See id. at 1312 (describing PTSD symptom of "hyperarousal").
271. See id. at 1312 (describing PTSD symptom of "constriction").
272. See id. at 1313-14.
273. See id. at 1314 (discussing drawbacks of PTSD as explanation of conduct of battered women).
274. UNHCR GUIDELINES, supra note 180, at 42, ¶ 72. See generally Kelly et al., supra note 180, at 824.
275. UNHCR GUIDELINES, supra note 180, at 42, ¶ 72.
276. See discussion of power and control dimensions and limited information a battered woman may have which may effect the valid marriage determination supra notes 91-101 and accompanying text.
277. See 8 C.F.R. § 204.1(g)(3) (1996). If the petitioner is unable to present primary or secondary evidence, the INS will attempt to electronically verify the abuser's citizenship or immigration status from information in its own computerized records. See id.; see also review of the difficulty in verifying an abuser's status supra notes 92-95 and accompanying text.
278. See discussion of extreme hardship and good moral character requirements supra notes 102-15 and accompanying text
279. See H.R. 1133, 103d Cong. (1993) (the bill passed 421-0); see also H.R. REP. No. 103-395 (1993); Janet Calvo & Martha Davis, Congress Nears Approval of Legislation to Protect Abused Aliens, 70 INTERPRETER RELEASES 1665 (1993).
280. H.R. 1133, § 241(a).
281. H.R. REP. NO. 395, at Section-by-Section Analysis of Title II, Subtitle D, § 241. See supra notes 152 and accompanying text (discussing current anti-immigrant sentiment which may prevent any future legislative efforts to amend VAWA).
282. See Self-Petitioning, 61 Fed. Reg. 13,061, 13,066-67 (1996); see also Calvo, supra note 3, at 643 (encouraging a liberal interpretation of the extreme hardship exception to the joint filing requirement for conditional residents); discussion of the limited interpretations of extreme hardship and good moral character supra notes 102-115 and accompanying text.