The W Visa: A Legislative Proposal for Female and Child Refugees Trapped in a Post-9/11 World

Abstract of The W Visa: A Legislative Proposal for Female and Child Refugees Trapped in a Post-9/11 World Marisa S. Cianciarulo, Reuschlein Clinical Teaching Fellow, Villanova University School of Law This article addresses an urgent humanitarian crisis affecting unaccompanied or abused refugee children and widowed, divorced, abandoned or abused female heads of refugee households. Such women and children suffer the consequences of the post-9/11 U.S. refugee resettlement backlog more severely than the general refugee population. They are far more at risk of life-threatening harm such as trafficking, sexual exploitation and rape. Moreover, they are far less likely to present a threat to U.S. national security than many people who are able to secure visas to the United States quickly and with fewer background checks. Despite their vulnerability and lack of security threat, however, they continue to languish in extremely dangerous refugee camps. This article proposes a solution that would allow such women and children to avoid the resettlement delays and enter the United States through an expedited visa system. The expedited visa system would reduce the refugee backlog and do so in a way that ensures that the most vulnerable refugees receive protection at the earliest possible opportunity

Seventeen Years Since the Sunset: The Expiration of 245(i) and its Effect on U.S. Citizens Married to Undocumented Immigrants

One of the most pervasive myths of U.S. immigration law is that marriage to a U.S. citizen confers citizenship, or at least some form of legal status, upon a foreign national. It is an intuitive notion: that a U.S. citizen enjoys, as part of his or her package of privileges and protections, the right to live anywhere in the United States with a spouse of his or her choosing, and to confer automatically some form of legal status upon that spouse. It comes as a surprise and an affront to many U.S. citizens that their immigration laws do not always comport with this notion. The fact is that no marriage-based adjustment of a foreign national’s immigration status occurs automatically. And significant problems arise for families in which the foreign national spouse entered the United States without inspection. Under current immigration law, foreign nationals who entered the United States without inspection are ineligible to apply for lawful permanent residency in the United States, irrespective of the existence of an approved petition submitted by a U.S. citizen spouse. Such individuals must instead depart the United States and apply for an immigrant visa abroad. This is much more than an inconvenience involving travel and temporary separation from loved ones. Another immigration provision bars any foreign national who has been unlawfully present in the United States for one year or longer from reentering the United States for ten years upon his or her departure from the United States. Only a waiver granted on account of “extreme hardship” to the U.S. citizen spouse can overcome the bar. This Article reviews and critiques the reentry bars and advocates for the resurrection of section 245(i) of the Immigration and Nationality Act, which, prior to its expiration in 1998, allowed undocumented immigrants who married U.S. citizens to adjust their status in the United States rather than have to depart the United States and apply for an immigrant visa abroad. The Article argues that the combined effects of the reentry bars and the unavailability of 245(i) upon the current generation of U.S. citizens seeking to sponsor undocumented immigrant spouses are overly harsh and constitutionally suspect. The Article concludes that truly comprehensive immigration reform legislation must include a permanent reinstatement of 245(i) for immediate relatives of U.S. citizens

Terrorism and Asylum Seekers: Why the Real ID Act Is a False Promise

The Real ID Act, passed on May 11, 2005, is the first post-September 11 antiterrorism legislation specifically to target a group of vulnerable individuals to whom the United States has historically granted protection: asylum seekers. The passage of the Real ID Act led asylum advocates to wring their hands in despair and immigration restrictionists to clap their hands in glee. This Article argues that both sides of the debate may have been justified in their reactions, but not because of the immediate chilling impact on asylum that they seem to expect. With regard to requirements for establishing asylum eligibility, the Real ID Act, rather than imposing new, onerous restrictions on asylum, codifies case law upon which adjudicators, advocates, and government attorneys have been relying for decades. However, several areas of poor drafting, combined with legislative history mischaracterizing the asylum system as a haven for terrorists and suicide bombers, may result in the denial of bona fide asylum applications. This Article provides concrete guidance for adjudicators, advocates, and government attorneys applying the Real ID Act to asylum cases. It examines the case law upon which some of the provisions are based and offers interpretations for unclear provisions. Overall, this Article emphasizes that it is the duty of adjudicators, advocates, and government attorneys to protect victims of persecution

For the Greater Good: The Subordination of Reproductive Freedom to State Interests in the United States and China

This Article provides a comparative analysis of two very different restrictions on reproductive freedom that have startling parallels and similarities. Both China and the United States impose limits on reproductive freedom: China restricts the number of children that families can have, often in ways that violate international law, while some U.S. states have attempted to restrict access to abortion in ways that violate the precepts of Roe v. Wade as well as international law. Both China and U.S. states impose restrictions on reproductive freedom in order to achieve compelling state goals: protecting development and sustainability in China, and protecting prenatal life in the United States. Finally, both China and the United States have means other than severe restrictions on reproductive freedom at their disposal to achieve the governments’ goals: broad access to birth control and sex education. This Article uses the lens of international human rights law to evaluate the concept of subordinating individual reproductive choice to a perception of the common good. Part II provides an overview of the major international instruments addressing individual rights and how they interact with the rights and responsibilities of the state. Part III discusses anti-abortion laws in the United States and the anti-abortion movement’s rationale that protecting prenatal life justifies limiting reproductive choice. Part IV discusses China’s vast and population control system and the government’s rationale that providing a controlled, sustainable population justifies limiting reproductive choice. Part V examines three levels of coercion—compulsory sex education and unrestricted access to contraception, monetary incentive and disincentive programs, and forced abortion and forced child-bearing—and analyzes whether these levels of coercion are consistent with international human rights principles. Finally, the Article concludes that in light of modern access to education and contraception, and the ability to reduce the incidence of unwanted pregnancies via those means, more coercive means are unnecessary (in the case of monetary incentives and disincentives) and unjustifiable (in the case of forced abortion and forced child-bearing)

The W Visa: A Legislative Proposal for Female and Child Refugees Trapped in a Post-9/11 World

This article addresses an urgent humanitarian crisis affecting unaccompanied or abused refugee children and widowed, divorced, abandoned or abused female heads of refugee households. Such women and children suffer the consequences of the post-9/11 U.S. refugee resettlement backlog more severely than the general refugee population. They are far more at risk of life-threatening harm such as trafficking, sexual exploitation and rape. Moreover, they are far less likely to present a threat to U.S. national security than many people who are able to secure visas to the United States quickly and with fewer background checks. Despite their vulnerability and lack of security threat, however, they continue to languish in extremely dangerous refugee camps. This article proposes a solution that would allow such women and children to avoid the resettlement delays and enter the United States through an expedited visa system. The expedited visa system would reduce the refugee backlog and do so in a way that ensures that the most vulnerable refugees receive protection at the earliest possible opportunity

In Tribute: M. Katherine B. Darmer

The editors of the Chapman Law Review respectfully dedicate this issue to Professor M. Katherine B. Darmer

Pulling the Trigger: Separation Violence as a Basis for Refugee Protection for Battered Women

For over a decade, women seeking asylum from persecution inflicted by their abusive husbands and partners have found little protection in the United States. During that time, domestic violence-based asylum cases have languished in limbo, been denied, or occasionally been granted in unpublished opinions that have not provided a much-needed adjudicative standard. The main case setting forth the pre-Obama approach to domestic violence-based asylum is rife with misunderstanding of the nature of domestic violence and minimization of the role that society plays in the proliferation of domestic violence. Fortunately, however, a recent Obama-administration legal brief indicates that women fleeing countries where government are unable or unwilling to protect them from their abusive husbands finally may be able to avail themselves of U.S. asylum law. This article proposes a workable standard for adjudicating such claims. Based in part on psychological research on the dynamics of abusive relationships, particularly the phenomenon known as “separation violence,” this article formulates a particular social group that satisfies the various legal elements for political asylum: “women who have left severely abusive relationships.” This social group is based on research demonstrating that abusers strike out with increased violence when their partners leave the relationships, in many cases even killing them. This article explores the dynamics of abusive relationships, the failure of U.S. adjudicators to understand those dynamics, and the application of international human rights law to domestic violence survivors

Counterproductive and Counterintuitive Counterterrorism: The Post-September 11 Treatment of Refugees and Asylum Seekers

This Article critiques U.S. counterterrorism measures that directly target refugees and asylum-seekers. The United States currently offers protection to individuals and families fleeing persecution through two programs: the overseas refugee resettlement program (available to refugees residing outside the United States) and the asylum system (available to those who apply for refugee protection on U.S. soil). Almost immediately after the September 11 terrorist attacks, the United States implemented a refugee resettlement moratorium that resulted in lengthy delays and the failure to resettle thousands of refugees previously cleared to enter the United States. Several years later, on May 11, 2005, Congress passed the Real ID Act, which included a section entitled Preventing Terrorists from Obtaining Relief from Removal that purported to reform the asylum system but in actuality was nothing more than an awkwardly-drafted codification of existing case law. Both anti-terrorism measures failed to appreciate that none of the September 11 hijackers were refugees, asylees, or asylum-seekers. Moreover, their implementation erroneously linked refugees and asylum seekers with terrorist attacks and mischaracterized the refugee resettlement program and asylum system as havens for suicide bombers. Finally, neither the resettlement moratorium nor the Real ID Act asylum provisions likely have had any significant impact on national security