Sara lived with her family in a war-torn country. Her family is not wealthy, and Sara stopped attending school after age 12. When Sara was 20 years old, Sam, a 32-year-old U.S. citizen, traveled to Sara’s home country to visit his family who lives in that country, and while there, he met Sara through mutual friends. Sam and Sara quickly married in Sara’s home country. Sara and her family were excited about her future and thrilled her spouse had connections to their home country, and the couple soon moved to the United States, where Sam lived.

Once in the United States, Sara felt lonely and isolated because she didn’t speak any English and did not have family in the community. Her isolation and the language barrier meant that Sara depended on Sam for social contact and financial support; Sam leveraged this dependence for additional power. Soon, Sara felt even worse because Sam worked long days, leaving her alone in their home and expecting her to clean and cook all the time. When Sara didn’t cook or clean things the way Sam liked, he would berate her – yelling and even throwing things. After a few months, his violence became physical.

After one year of marriage, Sara and Sam had a child together. Sam’s abuse of Sara worsened after their daughter was born. Soon after their daughter’s second birthday, Sam apologized to Sara for the abuse and told Sara that as a way of making up with her, he had bought tickets for them to travel to her country of origin to visit Sara’s family.

Sara, Sam, and their daughter flew to Sara’s country of origin. Sara’s family met them at the airport and took Sara back to their home. Sara believed Sam would be following them with their daughter. Instead, he took their daughter on a flight back to the United States. When Sara realized what had happened, she immediately tried to book her own flight back to the United States to be with her daughter. It proved difficult to navigate this process: Sara realized that Sam had lied about her immigration status in the United States and she could not afford a plane ticket. Sara remained in her war-torn country of origin, trying to contact a U.S. embassy and save money for a flight back to the United States. This type of experience is called “transnational marriage abandonment.”

What is Transnational Marriage Abandonment?

For the purposes of this discussion, transnational marriage abandonment (TMA) is defined as a type of abuse in which an abuser abandons the victim-spouse in that victim-spouse’s country of origin, without means to return to the United States. The abuser, who is usually a U.S. citizen or lawful permanent resident, then has sole access to shared children who remain in the United States and all the couple’s assets. TMA might occur after survivors have spent many years in the United States in an abusive marriage, perhaps isolated from the world outside their home and made to perform intense domestic labor for their spouse and the spouse’s family in the United States. (This article uses “she” and “her” pronouns when discussing survivors of TMA because almost all these individuals are women or girls.)

TMA is not a new occurrence, but improvements in technology have made it more likely that survivors who are abandoned abroad can contact domestic violence agencies and even lawyers in the United States to begin the process of returning to the United States to be with their children. TMA has been observed throughout the United States, and it affects survivors from countries all over the world. Still, there is no data on the frequency of this type of abuse, making it crucial for lawyers to be aware of the issue and advocate for survivors.

Lawyers might come into contact with TMA survivors because legal issues emerge when these survivors discover that the abuser lied about the survivor’s immigration status or when survivors return to the United States only to find the abuser has obtained a foreign divorce judgment, leaving him with sole custody and full physical placement of shared children along with all property. These scenarios of international abandonment might surprise lawyers and leave them uncertain whether or how to help. This article provides background to familiarize lawyers with this complicated issue. Indeed, lawyers who work with immigrant and refugee communities should familiarize themselves with TMA and be prepared to use innovative legal strategies outlined here to empower survivors.

Context of TMA and Similar Family Law Matters

TMA bears similarities to another type of abuse called abusive international marriage (AIM), which Hmong advocates in Wisconsin have observed, studied, and defined:

“‘Abusive international marriages’ refers to the practice of older men residing in the US marrying under-age girls in Asian counties. Abusive criteria include: age differences between the couple that can range from 20 to 70 years; men’s duplicity in declaring their true marital situation in the US; wives in the US coerced into divorce; and the sexual victimization of young girls.”¹

Within AIM is a subset of situations referred to as marry and dump, which is “the practice of abandoning a new bride soon after marriage, within 2 or 3 months, without providing her (or a child conceived in the marriage) any economic support. Untraceable husbands then return to the US on the pretext of filing immigration papers for the new bride, but these women are essentially permanently abandoned.”²

Building on Hmong advocates’ concepts of AIM and marry and dump, culturally specific domestic violence agencies working with Muslim survivors began to narrow in on a similar trend: spousal abandonment or TMA. In contrast to marry and dump, in which survivors are left in their countries of origin after several months, without ever having been in the United States, TMA survivors might live in the United States for many years before they are abandoned. The fact pattern advocates are observing most often in Wisconsin is the following:

“A couple residing in the U.S. travels to their country of origin, the man returns to the U.S. leaving his wife behind, often without proper documentation. The husband files for divorce and the wife often does not contest due to lack of information or misinformation provided by the husband. Due to the lack of information and proper legal representation the wife may lose her right to alimony, child support, and equitable distribution of marital assets.”³

This type of abuse further marginalizes some of the most vulnerable people in our communities. These survivors are immigrants, often undocumented immigrants, with limited English proficiency, few financial resources, and few or no ties to the places where they live in the United States. When they are then abandoned in their countries of origin, their abusers can leverage power and control with impunity.

Immigration Issues for TMA Survivors

The legal issues that TMA survivors face primarily concern immigration and family matters, which are further complicated by abandonment abroad and the intersecting nature of immigration and family law. Often, immigration-related issues are the first to affect TMA survivors, and this can occur whether the survivor is still abroad or has reentered the United States. A survivor who is abandoned outside the United States must gain some type of immigration status to reenter the United States.

Why Immigration Presents Problems. Getting immigration status can be difficult for a number of reasons: 1) The abuser may have falsely told the survivor that she had immigration status, such as being a lawful permanent resident. 2) The abuser might have taken any immigration documents and even identification documents that the survivor had. 3) Even if the survivor has immigration status in the United States, a survivor abandoned in a war-torn country where embassies are closed will not be able to get necessary documents to return to the United States. 4) Even if the survivor has immigration status and access to necessary documents, in many countries where survivors are abandoned, it is difficult for women to find employment. 5) Whether or not a survivor gets a job, it will take a very long time to save enough money to afford traveling back to the United States.

Those survivors who do manage to reenter the United States might need assistance obtaining more long-term immigration status through humanitarian immigration-relief options.

How Lawyers Can Help with Immigration Problems

A lawyer who is contacted by a TMA survivor who is still abandoned abroad should try to connect the survivor to a culturally knowledgeable domestic violence advocate in the community where she lived in the United States. Likewise, it can be useful to connect the survivor to an attorney in her country of origin – this person may be able to help the survivor navigate embassies and processes to obtain appropriate documentation while in that country.

When lawyers are contacted by TMA survivors who have returned to the United States, a full immigration consultation is the best starting point. Some of these survivors originally came to the United States on visitor visas and then overstayed the visa time limits. Others may have gained immigration status through their marriage. However, abusers often lie about survivors’ immigration status, and survivors’ lack of knowledge or information might require a lawyer to investigate to determine a survivor’s immigration status.

The three most likely paths to more permanent status in the United States for TMA survivors – whether they remain abroad or have returned to the United States – are a VAWA self-petition, T nonimmigrant status, and U nonimmigrant status.

VAWA Self-petition. A Violence Against Women Act (VAWA) self-petition has the benefit of allowing petitions from survivors not currently in the United States, which would be necessary for those survivors still abroad. Under VAWA, an abused spouse or intended spouse can file a self-petition for immigration status if she meets certain requirements, generally the following⁴:

• The petitioner had a qualifying relationship, in the case of TMA, as the spouse, intended spouse, or former spouse (if the marriage was terminated by death or divorce related to the abuse within two years before filing the petition) of an abusive U.S. citizen or lawful permanent resident.

• The petitioner was subjected to battery or extreme cruelty by the U.S. citizen or lawful permanent resident during the relationship.

• The petitioner resided with the abusive U.S. citizen or lawful permanent resident.

• The petitioner is of good moral character.

It is important to be aware that although residency in the United States at the time the petition is filed is sometimes considered a requirement,⁵ there are exceptions under 8 U.S.C. § 1154(a)(1)(A)(v) and (B)(iv) for cases in which “an alien … is the spouse, intended spouse, or child living abroad of a citizen [or lawful permanent resident] who…” is a member of the U.S. government or military or, of greatest relevance to TMA, “has subjected the alien or the alien’s child to battery or extreme cruelty in the United States…” (emphasis added). With this provision in mind, even a TMA survivor who is still abroad should be able to file a VAWA self-petition based upon the domestic violence suffered from the U.S. citizen or lawful permanent resident spouse while the survivor was living in the United States.

T Nonimmigrant Status. T nonimmigrant status for victims of a severe form of trafficking in persons could be an option for those TMA survivors who were trafficked as part of their victimization in the United States. Determining whether a person qualifies for this status requires careful, fact-specific analysis of the case. The requirements, in general, are that the applicant:

• Was a victim of a severe form of sex or labor trafficking;

• Is physically present in the United States, a territory, or a port of entry due to trafficking;

• Complied with reasonable requests from a law enforcement agency in investigating or prosecuting the human trafficking (unless the trafficking occurred when the victim was under the age of 18 or physical or psychological trauma prevented cooperation);

• Would suffer extreme hardship if removed from the United States; and

• Is admissible to the United States.⁶

Two barriers to T nonimmigrant status for TMA survivors are proving a severe form of trafficking and the physical presence requirement. Unfortunately, when trafficking victimization occurred within an intimate partnership alongside domestic abuse, proving the trafficking victimization often is difficult. Then, for TMA survivors, their abandonment outside the United States will pose problems to the physical presence requirement, especially if the survivor is still abroad.

U Nonimmigrant Status. For those TMA survivors who reported their abuse as a crime, U nonimmigrant status could be an immigration option. The general requirements for U nonimmigrant status are that the applicant:

• Suffered substantial physical or mental harm as a result of certain criminal activity that occurred in the United States, for example, sexual assault or domestic violence;

• Possesses information about the crime;

• Has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the crime; and

• Is admissible to the United States.⁷

Practical constraints might prevent TMA survivors from gaining U nonimmigrant status. For example, TMA survivors often experienced extreme isolation in the United States, have limited English proficiency, and might fear law enforcement officers – factors making it unlikely that they would report the crimes they experienced to law enforcement agencies. Although a TMA survivor could, theoretically, report the crime that occurred in the United States while they are abroad, it would be much more difficult for law enforcement agencies to take the report and move forward with it.

While a VAWA self-petition, T nonimmigrant status, and U nonimmigrant status could all be options for TMA survivors, the VAWA self-petition is perhaps most broadly applicable. The VAWA self-petition is designed specifically for survivors of domestic abuse, and it thus better accounts for power and control dynamics that might be present in TMA. For instance, unlike T nonimmigrant status and U nonimmigrant status, the VAWA self-petition poses no requirement to report the abuse or cooperate with subsequent investigation or prosecution – requirements that could be a barrier for many TMA survivors who are isolated from community resources or are fearful of police officers. Additionally, in contrast to the other two immigration options discussed in this article, the VAWA self-petition explicitly accounts for those survivors who are outside the United States but were abused in the United States, making it accessible even for those TMA survivors still stuck abroad.

Family Law Issues for TMA Survivors

TMA survivors often find themselves with family law issues, too. Getting divorced is one way for the survivor to obtain distance and safety from the abuser and receive an order on legal custody and physical placement of shared children. However, this process can be made more difficult when the abuser claims either that there was never a marriage or that there is already a divorce judgment from the country where the marriage occurred.

A first inquiry into a divorce is whether the marriage was a civil marriage or a cultural-traditional marriage. The government provides a record for civil marriages. For cultural-traditional marriages, a record might be provided by a religious institution or there might be no record. Some countries recognize cultural-traditional marriages as legal marriages; other countries do not. If the country in which a cultural-traditional marriage takes place recognizes it as legal, the United States typically will, too. When a marriage was cultural instead of civil, a survivor might face some additional barriers in pursuing a family law case. For instance, she may need to find “secondary” (that is, nongovernmental) evidence that the marriage occurred (for example, affidavits from wedding guests) and evidence that it was recognized as legal by the government in that country.

When an abuser obtains a foreign divorce without providing notice to the survivor, the divorce judgment typically grants the abuser sole custody, all or majority physical placement, and all property. This “divorce” should not be recognized in courts in the United States if the survivor did not have notice and opportunity to appear, but the foreign judgment can complicate and slow down the divorce case in the United States.

Section 767.21(2) of the Wisconsin Statutes, titled “Actions in courts of foreign countries,” states the following: “Any court of this state may recognize a judgment in any action affecting the family involving Wisconsin domiciliaries, except an action relating to child custody, by a court of competent jurisdiction in a foreign country, in accordance with the principles of international comity” (emphasis added). In TMA cases, a foreign divorce judgment would most likely deal with child custody and the survivor likely received no notice, in violation of “principles of international comity,” preventing Wisconsin courts from recognizing that divorce.

When initiating a divorce in Wisconsin, lawyers should consider the applicability of Wisconsin’s domestic abuse presumption, Wis. Stat. section 767.41(2)(d), which states, “If the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery… or domestic abuse... there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party.”

Invoking this presumption might be difficult because TMA survivors likely did not document the abuse they experienced. A lawyer could seek the assistance of a domestic violence advocate, an expert witness, or both to explain why a survivor might struggle to relay her experiences. Additionally, in contrast to TMA survivors, typically, the abusers in these situations are well-respected members of the community who have gainful employment, financial resources, and an understanding of how to navigate the court system.

In addition to invoking the domestic violence custody presumption, lawyers should advocate for the safety of the TMA survivor and her children as the paramount concern for physical placement decisions under Wis. Stat. section 767.41(5)(bm). A lawyer must build trust with the survivor, understand her unique vulnerabilities, believe her experiences, and help to relate those experiences to the relevant statutes so that a family court order is protective and empowering.

Conclusion

Ultimately, TMA is a form of abuse in which abusers use their spouses’ lack of immigration status as a means of power and control. As in Sara’s case, this can be exacerbated when language and cultural barriers are present. TMA also creates agonizing hardship when children are involved and a parent’s relationship with the child is effectively terminated through the survivor being abandoned.

TMA can deeply complicate and entwine immigration and family law cases. As TMA cases emerge, it is vital for lawyers to analyze each one individually to find the best immigration and family law options and outcomes. It is equally important to grow a community around supporting TMA survivors by observing the commonalities between these cases to determine best practices.

Endnotes

1 Chic Dabby-Chinoy, Asian Pacific Inst. in partnership with Wis. Refugee Fam. Strengthening Project, Abusive International Marriages: Hmong Advocates Organizing in Wisconsin (2012), www.api-gbv.org/resources/abusive-international-marriages-hmong-advocates-organizing-wisconsin/.

2 Id.

3 Maha Alkhateeb, Peaceful Families Project, sponsored by Asian Pacific Inst. on Domestic Violence & Battered Women’s Just. Project, Islamic Marriage Contracts: A Resource Guide for Legal Professionals, Advocates, Imams, and Communities (2012), www.api-gbv.org/resources/islamic-marriage-contracts/.

4 U.S. Citizenship & Immigration Servs. (USCIS), Abused Spouses, Children, and Parents, www.uscis.gov/humanitarian/abused-spouses-children-and-parents.

5 See e.g., 8 C.F.R. § 204.2.

6 USCIS, Victims of Human Trafficking: T Nonimmigrant Status, www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-human-trafficking-t-nonimmigrant-status.

7 USCIS, Victims of Criminal Activity: U Nonimmigrant Status, www.uscis.gov/humanitarian/victims-of-human-trafficking-and-other-crimes/victims-of-criminal-activity-u-nonimmigrant-status.

» Cite this article: 95 Wis. Law. 22-27 (November 2022).