‘U’ for Uncertainty

U visas exist to protect undocumented victims of crime who cooperate with law enforcement, but recent policy shifts could push them back into the shadows

Undocumented immigrants who are victims of crime are often reluctant to get police involved, even when they’ve suffered violent attacks. The U visa, created by Congress in 2000, was meant to mitigate that problem. U visas protect victims of serious crimes by helping them stay in the country if they cooperate in the investigation or prosecution of the crime. But recent policy shifts could be undermining the program’s goals of encouraging victims to step out of the shadows.


The number of U visa petitions filed nationwide by undocumented immigrants grew dramatically over much of the past decade — from 6,580 in fiscal year 2009 to a high of more than 37,000 in 2017. However, in the past two years, the trend has reversed. Applications fell nearly 20% year over year in FY2019, when petitions totaled 28,364 — the lowest number since 2014. 

A spokesperson for U.S. Citizenship and Immigration Services said the agency wouldn’t speculate on the decrease in filings and that “due diligence in data analysis should be considered here,” noting filings remain in the tens of thousands. The spokesperson added “USCIS has not made any policy changes to the U visa program.” 

But in June 2018, a policy memo from the agency did offer new guidance on issuing documents to begin removal proceedings against foreign nationals in the country. Immigration lawyers say this policy, along with changes at Immigration and Customs Enforcement and the Board of Immigration Appeals, has meant a higher risk of deportation for U visa applicants, and many are advising clients not to apply unless they have, in the words of one attorney, a “slam-dunk case.” 

There are barriers at the local level, too, as U visa petitioners need certification from law enforcement saying the applicant has been, or will be, helpful in solving certain types of violent crimes, including rape, kidnapping, murder and domestic violence. In Colorado, law enforcement’s willingness to grant these certifications has varied from jurisdiction to jurisdiction, but a bill in the state legislature aims to change that.

NEW RISKS, NEW ADVICE

Until recently, U visa applicants who were denied were typically not referred to immigration court for deportation proceedings unless they had a history of serious criminal activity, immigration fraud or prior deportation. But following the June 2018 policy change, attorneys say, immigrants turned down for U visas face a serious risk of removal.

“They are now, in almost 100% of cases, sending the person to immigration court and initiating a case for their deportation,” said attorney Eric Pavri, director of family immigration services at Catholic Charities of Central Colorado. 

The change applied not only to new applications but also to U visa petitions already pending in the system, according to Ashley Harrington, children’s program managing attorney at the Rocky Mountain Immigrant Advocacy Network. That put a lot of people who had already applied at risk, since USCIS has a years-long backlog in U visa petitions. 

“This policy shift affects those cases, too, that were already filed in a different world under a different policy,” Harrington said. 

Before 2018, Harrington said, she could tell clients that the worst that might come from applying would be a visa denial. “As long as you’re not a gang member or a really serious criminal or terrorist, all they’re going to do is deny your application,” she said, “and you will go about your undocumented life in the same way.” 

Now, attorneys are advising U visa seekers differently. 

“If we think that someone has a potentially winnable case but maybe there’s not extremely strong evidence, at this point, we’re counseling those clients not to apply,” Pavri said. “Whereas in the past, we would have said, ‘Go ahead, not much to lose.’”

Harrington said it’s been a mixed bag as to whether clients are still willing to apply for U visas, with some deciding to take the risk while others are unwilling to do anything that might land them in removal proceedings.

She said she has also seen a shift in which cases are approved or denied. “It used to be that we could feel pretty confident about getting really minor criminal history or minor immigration violations waived … and we weren’t really worried about submitting those applications,” Harrington said. But now, she added, even minor infractions and very old criminal history are resulting in denials.

The USCIS spokesperson said the agency has not made any changes to its U visa eligibility requirements. “USCIS reviews every case in accordance with applicable law, regulations, policies and guidelines to ensure consistent adjudications and granting of humanitarian benefits to those eligible under the U visa program,” the spokesperson said.

MORE QUESTIONS, NO EASY ANSWERS

It’s not just people who have been denied U visas who are at risk of deportation. Victims with pending applications also face new risks due to changes in ICE guidance issued in August. 

Previously, if someone with a pending U visa application was arrested by ICE and sought a stay of removal, ICE was required to reach out to USCIS to get a prima facie determination on their U visa case. If it appeared they had a strong case, they would often be granted the stay of deportation while their U visa application worked its way through the system. But since the policy change last summer, ICE no longer has to go to USCIS for that initial determination. 

“ICE is no longer making these requests for prima facie decisions, and instead, their policy is that the applicant can pursue the U visa from outside of the country,” said Joseph & Hall partner Aaron Hall. 

Additionally, a precedent-setting decision from the Board of Immigration Appeals in January, Matter of Mayen, has made it harder to pause or delay immigration court proceedings against someone who is likely to be approved for a U visa.

According to Hall, many U visa applicants have other immigration matters pending, such as an asylum claim or a cancellation of removal case. Previously, judges, attorneys and applicants typically agreed not to move forward on those more complicated matters if the applicant was likely to be granted a U visa anyway, he said. But in light of the Mayen decision, more people will have to go through with complex and time-consuming immigration proceedings, with some at risk of removal.

Hall said he hasn’t yet seen any cases where a client who qualifies for a U visa decides not to apply due to these changes. 

“I have seen more people asking questions about it: What will happen if I apply and it’s not approved? Does that mean I’m going to be turned over to ICE and put into deportation proceedings?” he said.

There are no easy answers to these questions, Hall said, adding, “You can’t guarantee that the U visa application couldn’t draw attention to their case.”

UNCERTAIN CERTIFICATIONS

The The barriers to gaining a U visa begin before a victim even files the petition with USCIS. In order to start the visa application process, a victim needs a law enforcement agency in the jurisdiction where the crime occurred to certify that the victim has been helpful in an investigation or prosecution.

But getting those certifications can be a gamble that comes down to where the crime happened and how willing police, sheriffs and prosecutors in that location are to work with undocumented victims. Some agencies have a blanket policy not to sign the certification forms.

“There is incredible variation among Colorado jurisdictions as to whether or not it is possible a law enforcement agency or a prosecutor’s office will seriously consider and potentially sign those certifications,” said Pavri of Catholic Charities. 

Pavri said a typical case would be a woman who is the victim of domestic violence by her partner. She could call 911, testify against her abuser, have him put in jail and go through all the necessary steps to help law enforcement. But if, for example, she lives a mile outside city limits and a sheriff’s deputy shows up to her house rather than a police officer, she could be out of luck if that sheriff’s department refuses to sign certifications as a rule, Pavri said.

Other agencies and jurisdictions have come up with their own criteria to determine whether the victim is “deserving” of the certification, according to Pavri, and these can include the victim’s own criminal history and even how long it took them to report the crime after it happened.

“That’s incredibly frustrating,” Pavri said. “Because the way that the Immigration and Nationality Act set up the system, the local law enforcement agencies are only supposed to be determining two very specific things that they are in the best position to determine.”

Those two factors are whether the person was a victim of a qualifying crime and whether the victim has been helpful in investigating or prosecuting the crime.

“One big misunderstanding among a lot of law enforcement agencies in our state is that, somehow, signing this certification actually gives a person any kind of legal status. It doesn’t at all,” he said, adding that after the certification is signed, it will still take many years, application forms and background checks by USCIS before the undocumented victim ever gains legal status in the country.

Patricia Soria, Denver office director for the national organization Mil Mujeres, said she has also encountered a lot of variation in Colorado law enforcement agencies’ willingness to provide certification, though Denver has typically been cooperative. But even when law enforcement is willing to sign the certifications, there can still be problems and delays.

“These certifications are not being filled out completely, and they’re not being thorough in stating how [the victim] cooperated with law enforcement,” Soria said. 

Other times, Soria said, clients might not get the certification because they, like many traumatized victims, can only provide vague descriptions of their assailants. But victims aren’t required to lead authorities to an arrest in order to get a certification.

“That is not our clients’ job,” Soria said. “It’s not anyone’s job but law enforcement.”

A FIRST-STEP FIX

A bill introduced in the Colorado legislature this session aims to eliminate some of the uncertainty and arbitrariness in the certification process. The bill, House Bill 1088, passed the House in late February and was introduced in the Senate March 6.

While law enforcement agencies can’t be forced to certify victims for U visas, the bill would require officials to at least respond to the request within a set period of time. It also spells out the factors that may be considered in the certification process, namely, whether the requestor has been the victim of a qualified crime and whether they have been helpful to law enforcement. Additionally, it would require certifying agencies to provide applicants with reasons for denial and require them to provide crime victims with information about the U visa.

Rep. Serena Gonzales-Gutierrez, the bill’s sponsor, said the legislation was inspired by stories from immigration attorneys about the inconsistency between jurisdictions and victims who had waited years to hear back on their certification requests. She said 11 other states have passed similar legislation, including Arkansas, California, Montana and Washington. 

The bill initially drew concerns from some district attorneys but, following negotiations, they reached a neutral stance, Gonzales-Gutierrez said, and she isn’t aware of other opposition to the legislation.

Harrington, the RMIAN attorney, worked with Gonzales-Gutierrez to draft the bill and gather people to testify before the House Judiciary Committee. While the bill might face more resistance in the Senate, she said she’s hopeful it will pass, be signed by the governor and go into effect Sept. 2020. 

But even if the Colorado bill passes, the post-certification barriers would still be there. In addition to the other policy changes in recent years, the government has also become much more restrictive in granting fee waivers for visa applications, according to Pavri and Harrington, which makes it hard for low-income clients like the ones served by Catholic Charities and RMIAN. Application fees can reach thousands of dollars, depending on the forms that need to be filed.

A USCIS backlog of more than 150,000 pending U visa petitions for qualified victims means the application process can now take several years, as opposed to a matter of months a decade ago, when the visas were less well known. When Congress created the program, they set an annual cap of 10,000 U visas for victims, so the backlog can’t be tackled by speeding up processing. USCIS hits the 10,000 limit every year, even though it receives far more applications, and Congress has so far failed to raise the cap.

The obstacles in recent years undercut a visa program that was meant to be a win-win for victims and law enforcement. “Back in 2000… it was law enforcement agencies all around the country who actually were lobbying for this, because they knew that the undocumented immigrant population was often terrified to call the police,” Pavri said. 

“This administration’s policies of putting [U visa-eligible] victims of crime in removal proceedings is a policy that just absolutely goes 100% against Congress’s intent in protecting these victims from deportation and encouraging them to come out of the shadows,” Harrington said.

“And that does not just impact that individual victim, who has now certainly learned her lesson

about cooperating with law enforcement,” she added, “But it sends a chilling effect across the entire immigrant community… and it’s really impacting law enforcement’s ability to do their job and their ability to keep our communities safe.”

— Jessica Folker

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