Academic journal article Duke Journal of Gender Law & Policy

VAWA's Unfinished Business: The Immigrant Women Who Fall through the Cracks

Academic journal article Duke Journal of Gender Law & Policy

VAWA's Unfinished Business: The Immigrant Women Who Fall through the Cracks

Article excerpt

I. INTRODUCTION: DOMESTIC VIOLENCE IN LATIN AMERICAN IMMIGRANT COMMUNITIES

Domestic violence is a crime that does not recognize racial, cultural, or socioeconomic barriers. Between 1992 and 1996, there were an average of 960,000 incidents of violence between partners in an intimate relationship per year; most of these victims were women. (1) The case of the Latin American immigrant community is examined later in Part IV of this Note. Although rates of violence between intimate partners are somewhat lower among Hispanics in the United States than the general U.S. population, (2) undocumented immigrants represent a subgroup in the Hispanic community that is more vulnerable to domestic violence, in part because they are less protected by the legal system. (3) In this Note, I will argue that undocumented immigrants fall between the cracks left between American criminal law and federal immigration law. (4) Regardless of their immigration status, all victims of domestic violence are entitled to the protection of local law enforcement. However, they may not seek that protection because of real and perceived risks to their continued presence in the United States. (5) While many battered immigrants are protected by the immigration provisions of the Violence Against Women Act, undocumented women may face the threat of deportation and possible separation from their children if they report their batterers to the police. (6)

Although immigrants, both legal and undocumented, are less likely than other women to report all categories of crime to law enforcement, domestic violence is even more likely than other crimes to remain unreported. (7) Lack of reporting seems, in part, to be due to cultural constraints on battered women. The structure of immigration law, however, is the greatest barrier to reporting crimes of domestic violence. Women who are hoping to obtain legal status through their husbands inevitably fear that reporting abuse will jeopardize their chances for legal immigration, and undocumented women whose husbands or partners are themselves undocumented face the additional threat that their abusers will report them to immigration authorities, and that they will be deported as a result.

II. HISTORY OF PROTECTIONS FOR BATTERED IMMIGRANTS

A. The Historically Gendered Structure of Immigration Law

The historical foundations of United States immigration law reflect the gendered structure of American law generally. Early U.S. immigration laws gave citizen husbands the right to petition for the legal immigration of their noncitizen wives, yet denied the right of citizen wives to petition for their noncitizen husbands. (8) American women who married noncitizen men would, in fact, lose their U.S. citizenship as their identities were merged with those of their husbands via the doctrine of coverture. (9) Noncitizen husbands and wives continued to receive explicitly disparate treatment through the 1940s and the immediate postwar period. (10) Although a few minor changes were made, lawmakers never challenged, or sought to change, "the law's basic notion that one spouse was dominant, and therefore rightfully controlled the other spouse's immigration status." (11)

The 1952 Immigration and Nationality Act (INA) and its subsequent amendments codified immigration law. (12) With the INA, Congress strove to create a facially neutral immigration statute by replacing the terms "husband" and "wife" with the term "spouse." (13) In theory, then, men and women were to be treated equally. In practice, however, the immigration statute retained the structure of one dominant spouse who controlled the immigration status of the other. (14) Thus, as more women than men continued to immigrate through their spouses, (15) the law continued to have a disparate impact on women.

B. Basic Procedure for Immigration as the Spouse of a Citizen or Permanent Resident

One of the easiest and most frequently employed means to legal immigration is through a family relationship. …

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