A license to abuse: the impact of conditional status on female immigrants.

• Author: Anderson, Michelle J.

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

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

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

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

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

1. Two Subpopulations of Conditional Residents

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

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

   1. Military Brides

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

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

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

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

      In any intercultural marriage differences in norms, values,

      expectations, and habits may lead to tension and conflict. Social

      pressures (i.e. discrimination) are sometimes an additional burden to

      the interracial couple. . . . Couples who are unable to communicate

      verbally seem more likely in some cases to resort to physical means

      of expressing...