Human Rights Reporting

Spring 2002 Student Work

Battered women can seek asylum in the United States – but only if husband is a legal migrant

By Beena Ahmad

Imagine that you can’t speak English. You have just arrived in the United States, and you don’t know a soul. Everyone you know is back in India. It’s a lonely time. It doesn’t help that your only family here, your husband, a man you barely know, often flies into inexplicable fits of rage and beats you. You don’t have any money in your pocket and your husband uses your temporary immigrant status as another weapon against you. What do you do?

When Samina Gupta, not her real name, finally decided to get married, she was 46 years old. She had spent her life working as a nurse to help her younger sisters and brothers settle down first in India. Then, her parents encouraged her to find a husband so she would have a place to call her own. The pastor at her church recommended a man from America whose first wife had died and whose second wife had left him. His family often donated money to the church so the pastor assumed that they were religious. Samina never expected that she had waited this long to enter the marriage from hell.

“I thought because I waited this long, he’ll keep me well,” she said. She speaks some English, but mostly Gujarati.

She has faint scars on her arms, where she says her husband scraped her with a screwdriver. He would hit her, kick her and rape her, she says. He also threatened to kill her, she says. She was not allowed to leave the house, and when she suggested that she take nursing courses here so she could work, he beat her. On some occasions, her husband and her father-in-law would take her to some of the sites and they always took pictures. She says that her husband would forcibly make her write letters painting the marriage in a positive light. These letters never made it home to her parents in India.

Instead, she found that her husband had saved these letters and had submitted them, along with the photographs, as evidence against her in court. Her husband also told the judge that she had only married him for his green card status. Samina arrived here on a K-1 temporary immigration visa, and she needs to prove that she was the victim of domestic violence and that she married her husband on “good faith” to receive permanent resident status.

However, Samina didn’t even know enough to get a lawyer to defend herself at the first trial and so she found that she was unable to prove that domestic violence had taken place.

“I thought I was a real victim. Why do I have to worry?” she said.

In India, she said her reputation would have spoken for her. Here, she suspects that her husband’s presentation in court worked in his favor with the judge. However, she is appealing that decision. This time, she has a lawyer she obtained through a non-profit organization for battered South Asian women. She is living in a transitional home in New Jersey sponsored by the organization. In the meantime, she is doing various odd jobs until she can begin training for a job in nursing.

Despite cultural myths that abuse in South Asian households is the norm or acceptable, Samina’s story is typical only in that immigrant victims of domestic violence face special challenges in court. Often, they only have strangers or advocacy groups to guide them through the process of filing for divorce. Complicating things is also the fact that many women are afraid that reporting the domestic violence will jeopardize their immigrant status in this country.

Many women don’t realize that they are offered some protection from Immigration and Naturalization Services’ codes on what constitutes lawful status. Under the Violence Against Women Act of 1998, a woman can still be granted a green card if she can prove that she was subjected to domestic violence. However, the catch is that this is only possible if her spouse is here legally.

“If person has committed battery, the guy can get deported. They can both get deported,” said Leslie Amano, an immigration attorney based in Washington, D.C.

The woman must also prove that her marriage was founded on “good faith.” The difficulty is that INS has a natural inclination to regard these cases with suspicion and for this reason, “good faith” can be difficult to prove.

“There’s a real concern about the safety of battered women, there’s also a concern that some people who don’t want to be around their husbands are claiming to be battered even of they’re not. Women in this situation really need to work with someone who knows,” said John Staas, an attorney in Illinois who often handles cases involving South Asian women.

According to Amano, an easier route to take is often filing for divorce because the woman can avoid discussing deeply personal or shameful matters in public. She can also get around the fact that she might not have documented evidence against her husband, because she might not realize that recourses such as obtaining temporary restraining orders existed.

“When there is abuse, since the abuse can be a little more complicated, filing for
divorce can be easier. Sometimes, the person doesn’t go to the doctor or talk to a friend,” Amano said.

“I see the South Asian context. Divorce is seen as shameful. The attitude seems to be stick with it no matter what. It seems like a little bit of violence might be tolerated, but there are more situations, where the woman keeps blaming herself for it.”

The Western perception that South Asian men, particularly Muslims, commonly rely on violence to subordinate their wives, tends to work to the women’s disadvantage.

“When one accepts that men are culturally authorized to dominate women, it is not far before even violence is sanctioned,” writes Vijay Prashad, a sociology professor at Trinity College in his book, “The Karma of Brown Folk. “The so-called cultural defense is deemed to be legitimate in U.S. courts, so much so that wife killers earn lighter sentences if they can convince the judge and jury that their ‘culture’ sanctions violence to make the wife obedient.”

The “cultural defense” applies most often in criminal cases. In civil cases involving divorce and immigration issues, advocacy groups and lawyers for women push judges to take cultural traditions into account.

For example, judges often don’t understand why women wait so long before filing for a restraining order or why they might seek an order against not just her husband, but her in-laws who live in the house as well. Sometimes, family dynamics play a role in her situation, said Sabena Khan, an outreach coordinator for Sakhi, a South Asian women’s organization. However, not all judges care to take cultural relativism into account.

“Some judges want to hear it. Some say, ‘Don’t give us that cultural crap,” she said.

“We get demonized with that – our whole community gets demonized and people look within cultural things and say the woman is very submissive,” said Anju Bhargava, founder of Asian Indian Women in America. “Just because she doesn’t look straight, eye to eye contact, it doesn’t mean she’s a submissive.”

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