The New Face of the Coyote: Fraudulent Use of The Violence Against Women Act and California Divorce and Custody Laws

As a few immigrants have realized in recent years, there is a federal law that, especially when combined with popular divorce and child custody statutes across the nation, allows them to relatively easily and quickly acquire permanent residency and even citizenship status in the United States whereas such would have been nearly impossible beforehand, use that immigration status to bring over loved ones from their homeland via family reunification visas, and if they play their cards right, receive spousal and even child support soon after arrival to cover their living and shopping expenses: alas, the American dream, all for the price of a broken heart and a ruined life – not their own, of course.

Though the 20th Century women’s rights movement certainly did not have this type of illicit misuse of the law in mind when it pushed for such federal and state statutes to protect women from domestic violence and other gross symptoms of a sexist society, it is this exact blindness to such potential abuse that created loopholes large enough for a possibly endless parade of miscreants and their lawyers to march through.

The Violence Against Women Act (“VAWA”), among other excellent and necessary protections and provisions, provides immigrant spouses of alleged abusive citizens or permanent residents the ability to leave their spouses and file petitions on their own to acquire permanent residency and hopefully citizenship in the United States. To be able to self-petition, the immigrant spouse must provide some evidence that he/she lived with the host spouse (regardless of the length of time of the marriage or cohabitation), that he/she was abused by the citizen or permanent resident spouse, that the marriage was undergone in good faith, and that the immigrant spouse him/herself is a person of good moral character. There is no requirement that the couple have had a child together, though abused children and their parents may seek immigration refuge under the VAWA law as well. The United States Citizenship and Immigration Services (“USCIS”) provides excellent additional information about VAWA on its webpage linked here.

As noted in a May 2012 article, Immigration Provisions of the Violence Against Women Act, published by the Congressional Research Service, there are serious concerns raised by USCIS adjudicators, INS agents, and victims of immigration marriage fraud about immigrant spouses defrauding their unsuspecting host spouses, the police, family law courts, and the USCIS by misusing VAWA to acquire immigration status as permanent residents and citizens of the USA.

There is a motif that I have read about in various national news reports — such as the November 2010 article on Slate.com entitled “A Husband Spurned: Are a small number of immigrant wives faking domestic abuse to stay in the country?” — and that I have encountered in my own Family Law, Divorce, Child Custody, and Domestic Violence law practice here in the San Francisco Bay Area:  a man of a particular ethnicity seeks a bride overseas in his native homeland. He travels there, meets her, and sincerely believes that they are in love. They return to the USA, apply for immigration benefits for her, and maybe even have a child. He provides her access to his finances, maybe even putting his house or business’s assets and title partly in her name in an effort to help her feel more secure in their partnership.

The wife in this hypothetical example has maintained an ulterior motive all along to simply use the man and VAWA to illegally acquire immigration benefits here in the USA. Suddenly, she begins to hatch her plan. In more extreme cases, she may inflict mild injuries on herself, and then she may make allegations of domestic abuse to the police against her husband. Or she may simply leave the family home one day, take their child and a substantial amount of money and other assets with her, and take refuge in the home of a friend or relative elsewhere in the USA, keeping her location a secret from her bewildered husband. She may then make false allegations of domestic violence against the husband, although she has of course no evidence of such except her own word. She may report her false allegations to the police, to USCIS, and to family law courts, all of which have laws that provide women who are alleged victims of such abuse with a host of protections against the allegedly abusive husband.

Oftentimes, the woman’s allegations suffice to trigger these protections and put the the innocent husband and child in jeopardy of losing each other, and further subject the husband to a host of financial losses and possibly criminal charges related to the wife’s false allegations of domestic violence. While it would be particularly difficult to pin false charges of domestic violence on the husband in this hypothetical because the standard of proof required in criminal cases is much higher than the standard of proof required in family law matters and other civil cases, the mere terror of facing criminal charges along with the damage inflicted in other possible matters, such as a child custody and related family business or property matter, can be emotionally and financially crippling to the husband.

VAWA allows the deceptive wife in this hypothetical situation to petition the US for immigration benefits independently of her husband’s knowledge and assistance. Once granted such provisional and then possibly long-term advantages of VAWA’s protections, the wife may earn the legal right to reside and work in the USA, achieving what may have been her ulterior motive all along. Then the wife may further use her allegations of domestic violence against her husband and use the protections and laws under Divorce and Child Custody laws, such as those in California’s Family Code, to acquire full or majority custody of their child, substantial financial assets as part of her community property rights, and spousal and child support, even though the man is the real victim of the wife’s false accusations and ruse to commit immigration marriage fraud.

I have indeed heard terrible examples of such scenarios on various occasions as part of my Family Law and even as part of my Business, Property, and Criminal Defense practices too, where defrauded men are trying desperately to regain their custodial rights over their children, defend themselves against criminal charges based on false allegations of domestic violence, and sort through the financial damage to their businesses and homes caused by their fraudulent estranged wife. Sometimes, the wife is not alone in her efforts as she may be aided in a conspiracy to commit these fraudulent acts by her family members who also stand to gain from her hoped-for immigration status, such as her parents or siblings in her homeland. After all, once the wife acquires her citizenship in the USA, she can apply for immigration benefits for her immediate family members under family reunification provisions of US Immigration Laws.

Whether she comes from Europe, Asia, Africa, South America, or elsewhere in the world, the wife in this hypothetical example may be acting much like the immigrant-smuggling Mexican border coyote – the name given to the paid guide who helps Central American immigrants survive the Mexican desert and cross over the southern border of the USA. Through her ruse to defraud VAWA and related Divorce and Child Custody Laws in states like California, she seeks to acquire immigration status for herself and her nuclear family in the USA by any means necessary.

While I am a very strong proponent of far more open policies towards immigration, our nation’s lawmakers and courts need to become more aware of those who seek to abuse our nation’s immigration, divorce, and child custody laws through fraudulent schemes such as that outlined by this hypothetical example. The damage done to the life of the defrauded spouse is outrageous, and this must not be permitted to stand uncorrected.

Laws like VAWA and the California Family Code lack sufficient protections and policies to deal with such fraudulent activities in their otherwise noble effort to aid victims of domestic violence. Until such laws are properly amended, fraudsters will continue to take advantage of these loopholes. For example, USCIS officials seem to fail to pay sufficient attention to the evidence reported by the allegedly abusive spouses about the fraudulent schemes and false allegations of their immigrant spouses unless it is corroborated by additional evidence, whereas the same officials do not seem to require corroboration of the immigrant spouse’s allegations of abuse. VAWA’s policies underscore the fact that it may be too risky for immigrant spouses to report domestic violence to the police for fear of possible deportation, particularly in notoriously anti-immigrant states such as Arizona and others. Thus, police reports and other types of official corroboration of the domestic violence allegations are not required by VAWA. This leaves our laws and the hosting spouses more susceptible to immigration marriage fraud and its terrible consequences.

Until the laws are rewritten to either close these loopholes or better still create a far more open-borders solution to immigration which would obviate such types of fraud, the best way to fight the damage caused to you by your fraudulent immigrant spouse is with the assistance of an attorney who can mount evidence to counter-attack their false allegations and raise to the foreground the spectre of fraud and even possibly conspiracy so that the USCIS and the courts can properly handle such crimes and misdeeds.

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