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«Battering and Extreme Cruelty: Drawing Examples from Civil Protection Order and Family Law Cases 1 By Leslye E. Orloff, Brittnay Roberts and Stefanie ...»

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Battering and Extreme Cruelty:

Drawing Examples from Civil Protection Order and Family Law Cases 1

By Leslye E. Orloff, Brittnay Roberts and Stefanie Gitler 2

The National Immigrant Women’s Advocacy Project,

American University, Washington College of Law

October 13, 2013

Congress passed the Violence Against Women’s Act (“VAWA”) in part to prevent abused

immigrant spouses who had entered into valid marriages in good faith, and their children, from being locked in abusive homes and relationships. The drafters of VAWA decided that analysis of domestic violence incidents under Department of Homeland Security (“DHS”) regulations with regard to Immigrant Petitions (the “DHS Immigration Regulations”) should not be limited to acts of violence but also include extreme cruelty. Thus, legal immigration status and protections could be obtained through VAWA without requiring that the immigrant spouse or child wait for the abuse to escalate to physical or sexual violence.

The phrase “battery or extreme cruelty” includes a range of behaviors that the DHS Immigration

Regulations define as follows:

“being the victim of any act or a threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury. Psychological or sexual abuse or exploitation, including rape, molestation, incest (if the victim is a minor) or forced prostitution shall be considered acts of violence. Other abusive actions may also be acts of violence under this rule. Acts or threatened acts that, in and of themselves, may not initially appear violent may be part of an overall pattern of violence. 3 “It is not possible to cite all perpetrations that could be acts of violence under certain circumstances. The Service does not wish to mislead a potentially qualified self-petitioner by establishing a partial list that may be subject to misinterpretation. This rule, therefore, does not itemize abusive acts other than those few particularly egregious examples mentioned in the definition of the phrase “was battered by or was the subject of extreme cruelty.” 4 This definition of “battery or extreme cruelty” includes a continuum of abusive activities. Actions that are considered criminal under state law and which provide justification for issuance of a civil protection order or initiation of a criminal prosecution have always been generally the equivalent of “battery” under the DHS Immigration Regulations. When Congress created the battered spouse waiver in 1990 and VAWA protections (self-petitions, suspension ofdeportation, and cancellation of removal) in [1994], it coupled the DHS Immigration Regulations’ definition of battery with the broader range of This document was developed under grant number SJI-12-E-169 from the State Justice Institute. The points of view expressed are those of the author(s) and do not necessarily represent the official position or policies of the State Justice Institute.

We would like to thank Stefanie Gitler and Jeanne Cohn-Conner pro bono counsel at Kirkland and Elis for their assistance in developing this publication.

8 C.F.R.§204.2(c)(1).

Immigration and Naturalization Service, Petition to Classify Alien as Immediate Relative of a United States Citizen or as a Preference Immigrant;

Self-Petitioning for Certain Battered or Abused Spouses and Children, 61 Fed. Reg. 13061 (March 26, 1996).

National Immigrant Women’s Advocacy Project (NIWAP, pronounced new-app) American University, Washington College of Law 4910 Massachusetts Avenue NW · Suite 16, Lower Level · Washington, D.C. 20016 (o) 202.274.4457 · (f) 202.274.4226 · niwap@wcl.american.edu · wcl.american.edu/niwap abuses that constituted extreme cruelty when considering a VAWA immigration case. Extreme cruelty has been historically considered by family courts as a crucial factor in determining the outcome of divorce, alimony, support and custody proceedings.

States have enacted statutes authorizing civil protection orders to provide victims immediate relief from abusive partners as an alternative or adjunct to criminal prosecution. 5 The civil protection orders have their jurisdictional basis in acts of intimate partner violence and are issued to prevent perpetrators from committing future criminal and abusive acts against family members and/or intimate partners. 6 In 1994, the National Council of Juvenile and Family Court Judges created the Family Violence Model State Code that set the standard at the time for development and implementation of state laws designed provide effective criminal and civil justice system responses to domestic violence. 7 The Model Code “treats domestic and family violence as a crime which requires early, aggressive and thorough intervention.” 8 “The Model Code enumerates the range of criminal conduct employed by many perpetrators of domestic or family violence. By the Model Code’s focus of criminals behaviors and threats that constitute that are crimes, attempted to commit or conspiracy to commit a crime that would qualify as domestic abuse under most state protection order statutes and the type of acts that would constitute extreme cruelty but may not reach the abuse levels requirement under states protection order statute. The Model Code offers this detailed list to underscore the breadth of violent crimes and fear-inducing or harmful conduct undertaken by perpetrators of domestic or family violence.





…The Model Code defines “crime involving domestic or family violence” to include one or more of

the following crimes against another family or household member:

• Arson;

• Assault Offenses (Aggravated Assault, Simple Assault, and Intimidation);

• Burglary, Breaking and Entering;

• Destruction, Damage, Vandalism of Property;

• Homicide Offenses (Murder and Non-negligent Manslaughter, Negligent Manslaughter, and Justifiable Homicide);

• Kidnaping, Abduction;

• Sex Offenses, Forcible (Forcible Rape, Forcible Sodomy, Sexual Assault with an Object, and Forcible Fondling);

• Stolen Property Offenses;

• Weapon Law Violations;

• Disorderly Conduct;

Finn, P., and Colson, S. (1990). Civil Protection Orders: Legislation, Current Court Practice, and Enforcement. Washington. DC: U.S. Department of Justice, National Institute of Justice, NCJ 123263; Harrell, A., Smith, B., and Newmark, L. (1993). Court Processing and the Effects of Restraining Orders for Domestic Violence Victims. Washington, DC: Urban Institute; Keilitz, S.L. (1994). “Civil Protection Orders: A Viable Justice System Tool for Deterring Domestic Violence.” Violence and Victims, 9(1), 79–84.; Finn, P. (1989). “Statutory Authority in the Use and Enforcement of Civil Protection Orders Against Domestic Abuse.” Family Law Quarterly, 23(1), 43–73.

See generally, Victoria L. Holt, Civil Protection Orders and Subsequent Intimate Partner Violence and Injury, research funded jointly by the National Institutes of Health, the Centers for Disease Control and Prevention, and the U.S. Department of Justice, National Institute of Justice.( 2004) NCJ 199722; L. Orloff & C. Klein, National Overview and Analysis of All Reported Domestic Violence Case Law and Statutes 21 HOFSTRA LAW REVIEW 801, Symposium Issue on Domestic Violence (August 1994).

National Council of Juvenile and Family Court Judges, Family Violence; Model State Code (1994).

Id at iv.

American University, Washington College of Law 2

• Family Offenses, Nonviolent;

• Stalking; [and]

• Trespass of Real Property…” 9 The Model Code also allowed the opportunity for states to add additional crimes to the list. 10 Over time, state protection order statutes have expanded to offer protection against a larger list of family violence offenses including stalking, harassment, and threats, and attempts to harm family members, household members and intimate partners. However, the analysis conducted to support most protection orders issued in the United States continues to focus on criminal activity. 11 The family court rulings that consider extreme cruelty an important factor in determining whether to provide protection to harmed individuals have other significant considerations in common with VAWA immigration cases. All VAWA self-petitions, VAWA cancellation and VAWA suspension cases require proof of a valid marriage, and family court rulings too involve members of one family or household.

Further, family court rulings focus on US citizens, and these VAWA immigration cases involve immigrant spouses and children who, but for the abuse, would have been able to obtain legal immigration status based on the marriage or the parent-child relationship, if the U.S. citizen or lawful permanent resident spouse of parent had filed for citizenship on the immigrant spouse or child’s behalf.

The following three lists are designed to assist the BIA and immigration judges in better understanding what types of actions and behaviors fall within the definition of “battery or extreme cruelty.” The first list catalogs the criminal behaviors that courts have found sufficient to sustain issuance of a protection order. The second list contains illustrations of abuse from state protection order statutes and case law and from family court rulings that describe behaviors of extreme cruelty which establish and maintain coercive control. 12 The third list provided below catalogues other types of behaviors that family courts have determined constitute or contribute to “extreme cruelty.”

Key:

BEHAVIORS WHICH HAVE BEEN FOUND SUFFICIENT FOR ISSUANCE OF PROTECTION ORDER

Crimes of violence which should support a finding of Battery Behaviors family courts have found to constitute Extreme Cruelty

1. Criminal Behaviors That Constitute Battery This section contains a non-exclusive list that provides examples of the types of criminal activities that state protection order courts have determined support the issuance of a domestic violence protection order. Each of the following activities also constitute battery under U.S. immigration laws as do attempts, threats, and conspiracies to commit such crime or similar criminal activities: This list provides examples from case law that supplement the list of criminal activities described above in the Model Code.

Id at 3.

Id.

For an overview of the range of actions that can lead to issuance of protection orders see, American Bar Association Commission on Domestic

Violence, Standards of Proof for Domestic Violence Civil Protection Orders (CPOs) By State (6/2009) available at:

http://www.americanbar.org/content/dam/aba/migrated/domviol/pdfs/Standards_of_Proof_by_State.authcheckdam.pdf Dutton, M.A. & Goodman, L.A. (2005). Coercion in intimate partner violence: Toward a newconceptualization. Sex Roles, 52, 743-756; Mary Ann Dutton ; Lisa Goodman ; R. James Schmidt, Development and Validation of a Coercive Control Measure for Intimate Partner Violence: Final Technical Report (June 2006) available at: https://www.ncjrs.gov/pdffiles1/nij/grants/214438.pdf

–  –  –

2. Non-Criminal Actions or Behaviors that Demonstrate Coercive Control State family law courts have found that the following behaviors support, or contribute to other factors supporting, the issuance of protection orders. These behaviors illustrate activities that are or can be part of a pattern of coercive control by the perpetrator of the victim. Each of the actions listed below that contribute to a pattern of coercive control have been found by family courts to contribute to or establish extreme cruelty. The factors listed under “coercive demand”, “credible threat”, “surveillance”, and “delivery of consequences” can be extreme cruelty individually and have been found by state family courts to constitute extreme cruelty or have served as a basis for issuance of state domestic violence protection orders.

Clagg v. Clagg, 2009 Ohio 328 (2009); In re CA. S., 828 A.2d 184 (2002); Ankenbruck v. Ankenbruck, 2000 Ohio App. LEXIS 5757 (2000);

Hamilton ex rel. Lethem v. Lethem, 125 Haw. 330 (2011); Jarvis v. Jarvis, 2004 Ohio 1386 (2004); Tortorello v. Tortorello, 113 Haw. 432 (2007); Morris v.

Stonewall, 1999 Ohio App. LEXIS 5356 (1999), Katsenelenbogen v. Katsenelenbogen, 365 Md. 122 (2001), Abriani v. Abriani, 2007 Ohio 3534 (2007); In Re A.L. R-V, Seattle, WA (2010), Attachment B; In Re N.I., File A#XX-XXX-XXX, Denver, Colorado. (2006), Attachment C; In Re P-S-L- File A#XXXXX-XXX Denver, CO (2008) Attachment D; REDACTED File A#XX-XXX-XXX, El Paso. (2008) Attachment E; In Re N.A.J., file AXX-XXX-XXX, Seattle, WA. (2001) Attachment A; De Jesus Paiva v. Aljets, 2003 WL 22888865 (D. Minn. 2003).

Clagg v. Clagg, 2009 Ohio 328 (2009); Ankenbruck v. Ankenbruck, 2000 Ohio App. LEXIS 5757 (2000); State v. Maynard, 2007 ME 79 (2007);

Jarvis v. Jarvis, 2004 Ohio 1386 (2004); Tortorello v. Tortorello, 113 Haw. 432 (2007); Morris v. Stonewall, 1999 Ohio App. LEXIS 5356 (1999).

Ankenbruck v. Ankenbruck, 2000 Ohio App. LEXIS 5757 (2000); Hamilton ex rel. Lethem v. Lethem, 125 Haw. 330 (2011); Thomas v. Morris, 224 W. Va. 661 (2009); Morris v. Stonewall, 1999 Ohio App. LEXIS 5356 (1999).

Clagg v. Clagg, 2009 Ohio 328 (2009); In re CA. S., 828 A.2d 184 (2002); Morris v. Stonewall, 1999 Ohio App. LEXIS 5356 (1999); Rosencrantz v.

Rosencrantz, 2000 Neb. App. LEXIS 320 (2000), Abriani v. Abriani, 2007 Ohio 3534 (2007), In Re Marriage of Stewart, 133 Wn. App. 545 (2006). In Re N.I., File A#XX-XXX-XXX, Denver, Colorado. (2006), Attachment C.

In Re Marriage of Stewart, 133 Wn. App. 545 (2006).

Morris v. Stonewall, 1999 Ohio App. LEXIS 5356 (1999), In Re Marriage of Stewart, 133 Wn. App. 545 (2006).

Morris v. Stonewall, 1999 Ohio App. LEXIS 5356 (1999).

Katsenelenbogen v. Katsenelenbogen, 365 Md. 122 (2001).

In Re Marriage of Stewart, 133 Wn. App. 545 (2006).

In Re Marriage of Stewart, 133 Wn. App. 545 (2006).

Morris v. Stonewall, 1999 Ohio App. LEXIS 5356 (1999); In Re N.A.J., file AXX-XXX-XXX, Seattle, WA. (2001) Attachment A.

In Re Marriage of Stewart, 133 Wn. App. 545 (2006).

Thomas v. Morris, 224 W. Va. 661 (2009);

Frank v. Hawkins, 383 Ill. App. 3rd. 799 (2008); State v. Maynard, 2007 ME 79 (2007);

Frank v. Hawkins, 383 Ill. App. 3rd. 799 (2008);



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