November 20, 2007

Mr. Robert Blackwood

Adjudications Branch Chief

U.S. Citizenship & Immigration Services

101 W. Congress Ave.

Chicago, IL 60605

Dear Mr. Blackwood:

Over the course of the past year, your office has instituted a policy of denying an entire category of battered immigrant women the possibility of adjusting their status and moving forward with their lives notwithstanding the fact that these women are approved self-petitioners under the Violence Against Women Act (VAWA)[1].  Specifically, the Chicago District Office will not provide requested relief to victims of domestic violence who entered the United States without authorization after April 1, 1997 unless they can establish a nexus between their unlawful entry and the abuse or mental cruelty that formed the basis of their successful VAWA petition.  This policy violates both the spirit and the letter of the law.  On behalf of our clients, the National Immigrant Justice Center[2] (NIJC), World Relief - Chicago, and Life Span Center for Legal Services & Advocacy request that your office abandon the current policy and revert to your past practice of permitting all approved self-petitioners to adjust status regardless of when their entry occurred.  Your past practice was, in fact, the better practice and one which was in accordance with the law and reflected Congressional intent.  For the reasons outlined below, it should be reinstated.

VAWA was enacted as a measure intended to prevent domestic violence and to curtail the harm that women suffer as a result of such abuse.  Congress sought to ensure that all women would benefit from VAWA's provisions and, with that objective in mind, the legislation included provisions that were specifically crafted to offer relief to immigrant victims of domestic violence.  The law recognizes that immigrant women are particularly vulnerable to abuse because of linguistic and cultural barriers that impede their ability to seek protection or access justice.  In addition to being beaten or subjected to extreme mental cruelty, these women are frequently held hostage by threats of deportation and economic subservience compounded by their inability to gain work authorization.  Their unlawful status in this country prevents them from seeking recourse from government officials.  VAWA was designed to address these obstacles and, in 2000, Congress introduced amendments that expressly clarified this objective. 

Specifically, Congress noted that:

(1) the goal of the immigration protections for battered immigrants included in the Violence Against Women Act of 1994 was to remove immigration laws as a barrier that kept battered immigrant women and children locked in abusive relationships;

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(3) there are several groups of battered immigrant women and children who do not have access to the immigration protections of the Violence Against Women Act of 1994 which means that their abusers are virtually immune from prosecution because their victims can be deported as a result of action by their abusers and the Immigration and Naturalization Service cannot offer them protection no matter how compelling their case under existing law.

Sec. 1502 Public Law 106-386, dated October 28, 2000.  On January 5, 2006, President Bush signed the Violence Against Women Act 2005 into law.  This legislation reaffirmed Congress's intent to strengthen protections for immigrant victims of domestic violence and "eliminate[] some of the major obstacles immigrant crime survivors face in achieving safety and legal immigration status."[3]  Denying an entire category of battered immigrant women the possibility of adjusting their status, a result that is guaranteed under your office's current policy, undermines the steps Congress has taken to address a serious social issue.  Moreover, these blanket denials create uncertainty and fear among women who might, as a result, fail to avail themselves of the protections contemplated by the law.  In short, the current policy runs counter to what Congress intended, leaves many battered immigrant women in a sort of legal limbo, and plays into the hands of abusers who, it is safe to say, will use these denials as a weapon to instill fear in their victims.

Congress clearly envisioned that women who came under the purview of VAWA's protections would be able to adjust their status.[4]  VAWA 2000 amended INA §245(a) to expressly permit VAWA self-petitioners to adjust their status.  The statutory provision referencing VAWA self-petitioners does not distinguish between those who entered after April 1, 1997 and those who entered prior to that date.  In fact, there are no sound reasons why such a distinction should be made nor does the legislative history related to the amendment contain anything that would justify limiting relief to battered immigrant women on this ground.  Admittedly, the law provides that adjustment of status be conditioned on a showing of admissibility. 

At the time that Congress enacted the amendment to INA §245(a), INA §212(a)(6)(A) was already in place. This statutory provision, which became effective on April 1, 1997, renders "inadmissible" individuals who entered the country without inspection. However, admissibility is not governed exclusively by INA §212(a):  the plain language of the statute expressly recognizes that exceptions exist.[5]   Thus, although the general rule is that entry without inspection makes a person inadmissible, INA §245(a) provides "otherwise" than INA §212(a)(6)(A) provides, and under the savings clause, INA §245(a) governs rather than INA §212.

This interpretation mirrors the reasoning adopted by the Government when it resolved a similar tension between INA §245(i) and INA §212(a)(6)(A). INA §245(i) permits individuals who "entered the United States without inspection," INA §245(i)(1)(A)(i), to adjust status upon the payment of a $1000 penalty.  Thus, the problem arose for the then-INS, whether INA §245(i) would permit someone to adjust status if they were inadmissible under INA §212(a)(6)(A) for having unlawfully entered the country. INA §245(i) does not expressly exempt such individuals from the general requirement of admissibility; but it is evident that every single person who entered without inspection was inadmissible under INA §212(a)(6)(A)(i), so that to read §212(a)(6)(A)(i) as barring adjustment would render that part of INA §245(i) inoperable. The Government's conclusion was that the specific language of INA §245(i) implicitly waived the general language of INA §212(a)(6)(A)(i). The reasoning in INA §245(i) cases is based on the savings clause of INA §212(a) "Except as otherwise provided in this Act" language. Legal Opinion, Martin, General counsel, INS, CO 245(i), CO 212(a)(6)(A) (Feb. 19, 1997), reprinted in 74 Interpreter Releases 499, 516-22 (March 24, 1997) (see attached). See also, Perez-Gonzalez v. Ashcroft, 379 F. 3d 783, 791 (9th Cir. 2004).

The conflict between INA §245(a) and INA §212(a)(6)(A)(i) is precisely the same as that between INA §245(i) and INA §212(a)(6)(A)(i).  Your office's reading of INA §212(a)(6)(A)(i) to bar victims of domestic violence from adjustment of status under INA §245(a) undermines Congress's clear language permitting victims of domestic violence to adjust even if they had not been "admitted or paroled."   There is absolutely nothing in the 2000 Act or VAWA 2005 that suggests Congress intended to arbitrarily bar an entire category of battered immigrant women from the protections afforded under the law based on the date they entered this country.  To the contrary, Congress relied on the Agency's interpretation of INA §212(a)(6)(A) as not barring adjustments governed by INA §245. 

On behalf of our clients, the undersigned organizations urge you to reconsider the policy of the Chicago District Office as it impedes the intent of Congress and prevents victims of domestic violence from obtaining lawful status in the United States.  We will take appropriate legal action, if necessary.  But we would implore you not to waste the resources of our federal courts in litigating this matter.  We look forward to your response. 

Sincerely,

Mary Meg McCarthy, Director

National Immigrant Justice Center

[1] The Violence Against Women Act applies equally to women and men.

[2] The National Immigrant Justice Center, a partner of Heartland Alliance for Human Needs & Human Rights, serves approximately 8,000 clients per year in direct service, advocacy and impact litigation.  With a staff of 40 attorneys and paralegals and more than 700 active pro bono attorneys, the National Immigrant Justice Center is one of the largest legal service provider for low-income immigrants and refugees in the country.  Our comprehensive program provides legal services to immigrants, asylum seekers, unaccompanied immigrant children, survivors of human trafficking, and immigrant victims of domestic violence.

[3] American Bar Association, Commission on Domestic Violence, "VAWA 2005 Guide for Attorneys."

[4] Statement of Sen. Kennedy, 146 Cong. Rec. S10170 (daily ed. Oct. 11, 2000) (the bill provides "vital legal protections like 245(i)," and providing for adjustment allows a self-petitioner "to obtain her green card here, where she has the support and protection of family and access to the domestic violence counseling she needs"); Statement of Sen. Abraham, 146 Cong. Rec. S10219, S10220 (daily ed. Oct. 11, 2000) ("[I]n this bill, we establish procedures under which a battered immigrant can take all the steps he or she needs to take to become a lawful permanent resident without leaving this country" and a self-petitioner "should be allowed to complete the process of becoming a lawful permanent resident here in the United States without facing these risks").

[5] The first words of INA §212(a) are "Except as otherwise provided by this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States."