Abstract

Excerpted From: Hayat Bearat, I Thought I Would Have a Voice: Unveiling the Barriers Immigrant Survivors of Domestic Violence Face in the United States Courts, 39 Wisconsin Journal of Law, Gender & Society 109 (Fall, 20240 (324 Footnotes) (Full Document)

Noora was eighteen years old when she married Ahmed. She was living in Palestine and their families arranged for their marriage. Ahmed and his life in New York City were described to Noora as the epitome of reaching the American dream: Ahmed was successfully employed as an engineer, owned an apartment in Manhattan, and wanted to get married to someone from Palestine who understood his culture and values and would want to join him in the United States. If Noora accepted, she would be able to join Ahmed in New York shortly after their marriage to study and work. They would eventually have their own children.

The reality of what followed was starkly different. Noora did join Ahmed, but it was several years after they had married. She was eager to join Ahmed, but he told her there were delays in the immigration process outside of his control, he had applied for her green card, and her work authorization was on the way. She boarded a flight to New York, hopeful for her future. To Noora's surprise, Ahmed did not apply for a green card, and she instead came to the United States on a spousal visa which eventually lapsed, leaving her with no lawful immigration status. She got pregnant quickly with their son, and a year later, her daughter. She was not permitted to work or take English courses. She was expected to stay home, cook all the meals, and be the primary caregiver. Ahmed did not have stable work and lived in public housing with his parents and siblings. As soon as Noora moved in with Ahmed and his family, his mother became abusive toward Noora. After their children were born, Ahmed's abuse started.

The police eventually got involved when a neighbor called 9-1-1 upon hearing Noora screaming and children crying. When the police arrived, no interpreter was present, and the children were taken from Noora by Child Protective Services (CPS). The children were held for 48 hours despite legal precedent allowing only very limited circumstances under which CPS can remove children from the home upon their witnessing domestic violence. Noora, who was not a primary English-speaker and did not know the law, anxiously awaited her children's return.

Once reunited with her children, Noora moved into a domestic violence shelter with them. An abuse and neglect case began in family court against Ahmed, and Noora was expected to testify. The matter went to trial and concluded after two years, with a finding of neglect against Ahmed. Noora had to file her own petition for custody and for a final civil protective order, which took another year. Noora obtained sole custody and Ahmed had limited visitation. She also received a five-year civil protective order. She filed a VAWA application and received immigration status and work authorization after four long years.

However, the story does not end there. About a year after I had last seen Noora in court, I received a call from her explaining that she was back in family court, this time to seek visitation rights of her children. Noora explained that she struggled to provide for her children and take care of them on her own. She had left them with her in-laws one day as she went to work, and they refused to return them to her. Because she was so overwhelmed, she did not seek court intervention until months had passed since she had seen her children. She lost custody of her children, after years spent in family court. Noora never engaged in therapy throughout this process due to the stigma revolving around mental health in her community.

Noora's story is just one of many experiences that immigrant survivors of domestic violence encounter in family court. Immigrants have a vision of what their life will look like once they arrive in the United States. The American Dream has long been sought-after globally, desired by many like Noora. That vision does not include having children removed from the home, losing custody, being in family court for several years, and asking the court for protection and intervention. The obstacles and barriers that all survivors face in family court are extensive. However, with immigrant survivors, there are additional challenges.

This Article explores four primary areas in which immigrant survivors of domestic violence face barriers in family court: lack of language access, immigration risks and fears, discrimination and limitations with accessing services and support. The Article analyzes components of Noora's case which led to success and how she was also an outlier when it comes to many of the barriers she faced. And even though Noora's case looked like a success up to a certain point, her success proved to be so fragile that it eventually all fell apart. Although there have been some reform across local, state and federal governments, there are so many obstacles for a survivor to overcome to be successful both in their court case and in their own personal lives. In looking at these obstacles, the Article provides legal reform and frameworks for change to improve the lived experience of a survivor who enters our courts. This Article finds that in order to make the most effective change for immigrant survivors of domestic violence that enter our courts, there has to be an intersecting approach inclusive of academics, legal practitioners and of social service providers.

Section I discusses the language access issues survivors of domestic violence who are not primarily English-speaking encounter in the United States court system. Section II explains some of the fears and risks that survivors such as these experience when going to court. Section III analyzes the cultural and religious implications of going to family court, particularly with respect to Islamophobia. Finally, this Article concludes in Section IV with additional difficulties that survivors experience outside of court, including access to mental health services and support.

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As is reflected through Noora's case, immigrant survivors of domestic violence encounter many barriers while seeking protection from abuse. These barriers--from exclusively-English courthouses, to impending punishment by the immigration and family regulation systems, to rampant cultural and religious discrimination--can only be diminished if our courts and social service providers utilize an intersectional lens when serving immigrant survivors of domestic violence.

Federal law, through the Civil Rights Act of 1964 (prohibits national origin discrimination on the basis of language) and Executive Order 13166 (“Improving Access to Services for Persons with Limited English Proficiency”), mandates access to language services for limited-English-proficient litigants. State courts, however, have only just started to uphold the principle that access to accurate language interpretation is a constitutional due process right. Even in jurisdictions that do provide language access services, such as New York City, there are still major gaps to be filled. Such deficiencies disadvantage immigrants disproportionally, from the very moment they seek court intervention.

Immigrants are also impeded in seeking judicial assistance by fears of intervention by immigration enforcement or the family regulation system upon appearing at court. ICE apprehension at court has historically led to denials of immigration applications and even deportations. The involvement of CPS can lead to failure-to-protect negligence charges and removal of children. Both the immigration and family welfare systems disproportionately impact survivors of color, who often are already oppressed due to systemic racism and cultural discrimination, such as Islamophobia. Further, Islamophobia weaves its way through both the court system, through judicial misinterpretation of Islamic marriage laws, and our society at large.

Finally, immigrant survivors of domestic violence are unable to access social services outside of the court system--whether they are trying to avoid court intervention in the first place, or are trying to rebuild their lives following the conclusion of their court cases. This is inefficient, both for the survivors themselves and the system in general, which wastes resources on court matters which are better resolved outside of court.

As legal advocates, we must examine our immigrant survivor clients' cases through an intersectional lens, taking into account nationality, race, ethnicity, culture, religion, finances, and education, among other factors. We must also continue to advocate for reform, both inside and outside of the court system, with the intention of ending these perpetual, overlapping cycles of inequality. There must be more surveys that are undertaken by organizations who work directly with survivors to showcase where our courts are failing immigrant survivors of domestic violence.

We must also pay close attention to cases like Noora's which appear successful, but are too fragile without the proper support and resources. Access to social services can provide a strong enhancement to an immigrant survivor's life should they end up in our courts. With additional support, and an implementation of all the suggestions included in this Article, immigrant survivors of domestic violence--regardless of whether they are outliers like Noora--will be better equipped to overcome all the barriers that they face both in and out of the courthouse and truly have a voice.

Hayat Bearat, Associate Professor and Director of Domestic Violence Institute at Northeastern University School of Law; New England Law | Boston, J.D., 2014.