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When domestic violence survivor Nan-Hui Jo sat in a Connecticut immigration office in 2008, she didn’t know that what the immigration officer wasn’t telling her could help her stay in the US legally; that it could save her nine months of jail time; that it could mean not losing custody of her daughter.
In fact, her immigration attorney, Zachary Nightingale, says that during that 2008 interview, a U.S. Citizenship and Immigration (USCIS) officer violated US law by failing to inform Jo that as a domestic violence victim, she was entitled to protection under the Violence Against Women Act (VAWA) and had to be informed of this protection under the International Marriage Broker Regulation Act (IMBRA) of 2005.
Despite the current backlash against undocumented immigrants and efforts to renounce sanctuary cities like San Francisco and Berkeley, advocates say that immigrant victims of domestic violence are one of the most vulnerable groups in the country and that the U.S. government is failing to follow its own laws to protect them.
A December 2014 US Government Accountability Office (GAO)report looked at whether consular officers were providing all of the information required by IMBRA to visa applicants during the visa interview.
In the report, the independent auditing agency which investigates federal government funding and performance indicated that a "review of a sample of K visa applications showed that in about 52 percent of interview case notes (76 of 147), consular officers did not document that they had provided beneficiaries the IMBRA pamphlet as required by State's guidance."
Just how many people are in the same predicament as Jo remains unclear.
“As a Korean immigrant Jo knew very little English at the time and relied on her US-citizen husband to fill out her immigration papers, but her husband was abusive towards her so under US law she had a right to file for a visa without her husband, but she wasn’t informed about this law,” said Nightingale, a San Francisco-based immigration attorney.
Jo came to the US in 2002 on a student visa to study film in Los Angeles, where she met Tamalah Bennett, U.S. citizen. She returned to Korea in 2005 to apply for a K1 (fiancée) visa. She came back to the U.S. that same year and married Bennett. They moved to Connecticut and according to Nightingale, Bennett was abusive, isolating Jo from her friends, keeping her passport and physically beating her.
“He pulled her hair, twisted her arm, and on one occasion, knocked her to the ground, breaking her rib, which required medical attention. Ms. Jo and her husband separated, reconciled, and separated again, in a pattern of manipulation and emotional abuse familiar to domestic violence advocates,” wrote Nightingale in a May 2015 letter to the U.S. Department of Homeland Security (DHS) accusing USCIS of violating Jo’s right to protections under VAWA because of the violence she faced from Bennett.
Bennett did not respond to Al Jazeera America’s interview request.
Nightingale said Jo depended on Bennett for help with paperwork when she applied for permanent residency in June 2006. Her application was denied because the couple did not submit enough supporting documents.
In 2007 Bennett was arrested in Connecticut for domestic violence charges against Jo and a court issued a protective order to protect Jo from her husband.
Uninformed and vulnerable
In August 2007 Jo applied again for a green card, once more counting on Bennett’s assistance.
The Violence Against Women Act allows immigrant spouses who had been victims of domestic violence to apply for legal immigration status without the sponsorship of their abuser spouse, and IMBRA (passed as part of VAWA’s reauthorization in 2005) requires that someone in Jo’s position be informed of that right.
Indeed, in February 2008, while reviewing Jo’s file, immigration officials at USCIS discovered that Jo had been a victim of domestic violence at Bennett’s hands. Nightingale said the protective order is mentioned in that file.
But in June 2008, when Jo and Bennett appeared for an adjustment of status interview at the Connecticut USCIS office (part of the process for Jo to get her green card) no one informed Jo of her rights. The system that was meant to protect Jo failed her, and she’s been paying for it ever since.
Jo told Al Jazeera America that knowing about VAWA protections would have made a big difference.
“I would have tried to find pro-bono legal support to help me understand the system better … I would have definitely made different choices. I would have planned to find ways to build a more independent future for myself here,” Jo said via a translator.
Shortly after the fateful USCIS interview, Bennett and Jo separated. She moved to Sacramento where she met Jesse Charlton, an Iraq veteran, and had a daughter with him.
By this point, Bennett had withdrawn his support for her residency application, so when in 2009 USCIS ordered Jo to leave the country, she thought she had no choice but to comply.
Contacting Bennett, a man they knew was Jo’s abuser, on her immigration status, said Nightingale, constituted a violation of federal law by USCIS, which did not follow IMBRA rules that make it clear that USCIS can’t contact the abusive partner regarding the abused party’s visa process. Again, Jo had no idea how the system was letting her down.
Meanwhile, her relationship with Charlton had also turned violent. During Jo’s child abduction trial in 2014, Charlton, who had suffered a traumatic brain injury while serving in Iraq, admitted that he’d grabbed her by the throat and thrown her against a wall during an argument. Jo called police twice, but officers did not arrest Charlton.
Al Jazeera contacted Charlton but he did not respond.
Fearing Charlton’s temper and with no legal means to stay in the US that she knew of, in 2009 Jo left for Korea with, Hwi, the daughter she had with Charlton. Nightingale says that there wasn’t a child custody order in place at the time, and that his client would not have left the US with her child had she known she could legally stay in the country.
Jo followed immigration officials’ orders and left the U.S., which prompted Charlton to file child abduction charges against her. She was arrested in Hawaii when she legally reentered the US in July 2014 to look for a school for her daughter.
Hwi was taken away from her immediately and remains in her father’s custody.
Jo was tried twice in Yolo County Superior Court on child abduction charges. The first trial resulted in a hung jury and the second in a conviction with a sentence of 175 days in jail and three years of informal probation.
Paying for a flawed system
By the time Jo was released on April 28 from Yolo County Jail, she had served 273 days in jail — 98 days more than her final sentence required. However, as Jo walked out of the jail, she was detained by Immigration and Customs Enforcement (ICE) officers because her 90 day stay under the Visa Waiver Program (which allows nationals from certain countries to enter and stay in the US for 90 days) had expired while she was in jail. She was taken to the ICE detention center inside Yuba County Jail, in California’s central valley.
ICE’s spokesperson Virginia Kice said she could not comment on Jo’s case, which has galvanized 130 immigrant rights and women’s rights groups to rally around her.
The IMBRA pamphlet’s first paragraph describes the need to provide immigrants with the information. It states:
“Immigrants are particularly vulnerable because many do not speak English, are often separated from family and friends, and may not understand the laws of the United States. For these reasons, immigrants are often afraid to report acts of domestic violence to the police or to seek other forms of assistance. Such fear causes many immigrants to remain in abusive relationships.”
“The Department [of State] does not have sufficient information to determine which, if any, applicants did not receive the IMBRA information at the time of their visa interview,” said Ashley Garrigus, spokesperson for the US Department of State’s (DOS) Bureau of Consular Affairs.
Asked whether the DOS has investigated what happens to those who didn’t receive the IMBRA information, Garrigus said, “The Department does not have access to information about criminal activity occurring subsequent to a visa adjudication.”
Although IMBRA required DHS, the Secretary of State, and the Attorney general to develop the pamphlet by 2006, Garrigus says that the IMBRA pamphlet wasn’t approved until 2011 and wasn’t disseminated by consular officers until 2012.
Before the development of the pamphlet consular and immigration officers were required to verbally tell fiancee and spousal visa applicants about IMBRA.
However immigration officials still don’t fully understand and implement IMBRA and Nightingale says Jo and other immigrant women are still not getting this critical information.
Christopher Bentley, a USCIS spokesperson said that his agency does not provide the IMBRA information at adjustment of status interviews and that he is not certain of what it means.
“In all honesty, I’m not sure what the law refers to by ‘adjustment interview,’” Bentley told Al Jazeera America.
He declined to comment on Jo’s case.
‘DHS [Department of Homeland Security] and ICE [Immigration and Customs Enforcement] need to take domestic violence seriously and there is a breakdown of communications about domestic violence across all of these agencies.’
Attorney, Asian Law Caucus
Although the IMBRA pamphlet is now available in 18 languages, the GAO reports that the DOS still does not have a system in place to ensure that consular officers are making sure that K visa applicants receive, read, and understand the IMBRA pamphlet during the in-person interviews.
“DHS [Department of Homeland Security] and ICE [Immigration and Customs Enforcement] need to take domestic violence seriously and there is a breakdown of communications about domestic violence across all of these agencies,” said Saira Hussain, a staff attorney with the Asian Law Caucus.
This argument does not hold water for the prosecuting attorney.
“Even assuming she was a victim of abuse by Mr. Bennett it does not excuse her fleeing with her and Mr. Charlton’s child without letting him know where she was or getting a move away order from the court,” said Steve Mount, Yolo County Assistant Chief Deputy District Attorney, who prosecuted Jo in both trials.
Mount says Jo was not afraid of Charlton or Bennett when she left for Korea and that she was more concerned about “what the Court would do with child custody given her immigration status.”
Nightingale says that Jo’s criminal defense team didn’t receive Jo’s full immigration file from USCIS until April 2015, after she was already convicted in the second trial.
“The full immigration file would have been significant during the criminal trials and it would have been important to know what kind of relationship she had with her US citizen husband,” said Dean Johansson, the Yolo County Deputy Public Defender, who defended Jo in her two criminal trials. “It would have shown that she had no indication at the time that she had any safeguards in the US.”
In the meantime Dennis Riordan, a criminal appellate lawyer working on Jo’s case, is appealing to the California Supreme Court to overturn Jo’s child abduction conviction because of legal errors in the court proceedings. Nightingale says that the conviction increases her risk of being deported to Korea by ICE and being separated from Hwi.
Jo was released from the immigration detention facility inside Yuba County Jail on July 17by the decision of an immigration court judge in San Francisco. However, she‘s still at risk of being deported on the basis of the child abduction conviction.
She’s only been able to see Hwi once, on Aug. 1, in the year that she’s been separated from her daughter.
Jo’s I-360 VAWA self-petition, the process in which she is independently seeking immigration status, was denied in May 2015 because the law required her to file it by March 2013, two years after her marriage Bennett was dissolved. Jo was in Korea in 2013.
“The last 3 months in immigration detention were especially hard. We didn’t get any sunlight and we usually weren't allowed any time to be outside. When you’re inside, it can be very difficult to remember how to stay positive,” said Jo, 43, currently living in the Bay Area.
“I also learned a lot this past year about how many other women are like me, or in much worse situations than me,” Jo said. “I hope that in the future, I can continue to learn more to help women who have experienced domestic violence and face similar challenges as me.”