Seeking Citizenship in the Shadow of Domestic Violence: The Double Bind of Proving "Good Moral Character"
Nancy E. Shurtz*
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Maria is a Mexican national and resides in the United States on a Trade NAFTA (“TN”) work visa. She falls in love with Bob, a U.S. citizen, and after a brief courtship, they marry. They immediately file a joint petition with the U.S. Citizenship and Immigration Service (“USCIS”) for issuance to Maria of a Conditional Residence (“CR”) Card, the transitional status that acts as prelude to Permanent Resident (“Green Card”) standing. After an interview, Maria is issued her CR card. The couple files their federal taxes jointly and also shares joint bank accounts. However, Bob controls the household finances, manifested by demands that Maria relinquish her paychecks to him as well as provide a strict accounting of her expenditures. Bob operates a cash-based business and does not report all of his taxable income. Bob’s domination over Maria soon turns physical, beating her when she does not comply with his dictates. Maria separates from Bob, and upon this action, Bob writes a retaliatory letter to the immigration authorities, seeking to withdraw their joint petition for Maria’s permanent residency. This could result in Maria’s deportation.
This Article examines the challenges facing Maria and others in like positions—seeking citizenship through legitimate legal channels—yet seeing those efforts jeopardized by the specter of domestic violence and compounded by legal standards that require demonstration of “good moral character,” most specifically in the context of tax compliance. Maria is caught in several applications of the dilemma known as the “double bind.” In the present instance, she must show proof of a good-faith marriage and a measure of “togetherness” in order to use her U.S. citizen husband as her principal anchor in the naturalization process. On the other hand, if she remains in an abusive environment, she places herself in a position of imminent danger. Prevailing professional advice in such cases would counsel Maria to flee her abuser and obtain a divorce as soon as possible. However, pursuit of a divorce for a person in Maria’s position presents new obstacles. Such proceedings are financially costly, executed in hostile domestic environments, and must often surmount state laws that apply restrictive constraints on noncitizens. A divorce action must also satisfy federal standards that the marriage was not initially entered into with fraudulent intent.
Additional general citizenship requirements include demonstration of “good moral character.” In practice, one of the most conspicuous manifestations of this is compliance with tax laws. In Maria’s case, her filing of a joint return may be viewed favorably by immigration authorities as proof of a good-faith marriage. On the other hand, Bob’s underreporting of his income may well constitute a fraudulent tax return, which (if discovered) could expose Maria to liability for the subsequent delinquent tax and damage her position as an upstanding citizenship candidate. The conditions (both personal and legal) that contribute to these “double bind” situations are examined more fully in the subsequent discussions.
*Benard A. Kliks Chaired Professor, Faculty of Law, University of Oregon School of Law; B.A., 1970, University of Cincinnati; J.D., 1972, Ohio State University; LL.M. (in Taxation), 1976, Georgetown University Law Center.