The U Visa - Encuentro Latino, National Institute on Family Violence

Report
The U Visa:
A Tool for Law Enforcement,
Immigrant Victims of Crimes,
and Those Who Work with Them
Gail Pendleton
Co-Director
ASISTA Immigration Assistance
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Goals
Identify who you can help
Identify what you can do
Identify who you will work with (or
need to work with)
A Few Immigration Concepts
Immigrants & Nonimmigrants
Immigrating family members
“Noncitizens”
Who is Undocumented?
Questions
Is being undocumented a crime?
Can undocumented apply to work?
Can undocumented apply to be US
citizens?
Who can apply for Lawful Permanent
Residence (green card)?
How Immigration System Works
DHS: Department of Homeland Security
CIS: Citizenship and Immigration Services
Administrative applications for “benefits”
ICE: Immigration and Customs Enforcement
Investigation/Enforcement inside US
Detention & removal
CBP: Customs and Border Protection
Enforcement coming into US
Airports, border, 100 miles inside border
EOIR: Executive Office for Immigration Review
Realities
Language & accessibility
Information/misinformation
Potential for deportation
Experience in the home country
Economic barriers
Cultural and religious pressure
What Congress Has Done
Access to public benefits
Access to legal services
Access to services (LEP)
Special routes to immigration status
Special Options
Special Immigrant Juveniles
Conditional Residence Waiver
Self-petitioning & Cancellation
U & T Visas
Self-petitioning for parents of US
citizens
Work authorization for nonimmigrant
spouses
U Visa Purpose
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Strengthen
investigation and
prosecution
Protect victims of
crime
U Visa Basic Eligibility Requirements

Victim of qualifying criminal activity;
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Possesses information about that crime;
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Helpful to law enforcement

Substantial physical or mental abuse from
crime;
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Admissible to US or merits waiver

“Any credible evidence”
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U Visa Crimes
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Rape
Torture
Trafficking
Incest
Domestic violence
Sexual assault
Abusive sexual contact
Prostitution
Sexual exploitation
Female genital mutilation
Being held hostage
Peonage
Involuntary servitude
Slave trade
Kidnapping
Abduction
Unlawful criminal restraint
False imprisonment
Blackmail
Extortion
Manslaughter
Murder
Felonious assault
Witness tampering
Obstruction of justice
Perjury
or attempt, conspiracy, or
solicitation, to commit any of
the above mentioned crimes
Certification: Your Client. . .
Is a victim of a qualifying crime
Possesses info on the crime
Is being, has been or is likely to be helpful
NOT substantial abuse and not LEO’s job to
decide this = CIS’ job
NOT admissible, so crimes by victim do not
preclude cert; CIS will decide later
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Who can certify? The Law says
Police officers
Prosecutor
Judge
DHS Officer
State or Federal Agency Employee
The Regs Say. . .
• Must be head of certifying agency, or
supervisory person, or specially designated
by head of certifying agency (call them the
“U supervisor”)
• Other agencies that may certify:
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Child Protective Services
• Equal Employment Opportunity Commission
• Department of Labor
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By signing you are NOT:
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Guaranteeing the issuance of a U-Visa
Guaranteeing that the person issued the U-Visa or
their family will become permanent legal residents of
the US
Issuing a statement or commentary on immigration.
Key Evidence = Certification

Certification by LEO is essential
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If not enumerated crime, LEO must explain on
form or attachment why cited crime fits an
enumerated category based on the facts

If LEO investigated many crimes, should cite
qualifying crime and explain why charged
something else

Supply copy of qualifying crime statute
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How to Analyze Crimes
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List of qualifying crimes is “general categories”
not what crime is titled
What is example of DV crime not called DV?
Law enforcement (LEO) may investigate
qualifying criminal activity though they charge
something else: examples?
Prosecution may be for the non-qualifying
criminal activity alone: example of when this
happens?
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Who is a Crime Victim?
 Direct
victims, “indirect” & “bystander”
 If culpable for qualifying criminal
activity, not eligible
 But other crimes may be OK;

national/public interest waiver (for CIS to decide)
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Indirect Victims: 2 kinds
1 = When direct victim died b/c of murder or
manslaughter
2 = Direct victim is incompetent or incapacitated;
or is under 18
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What is Helpfulness?
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Helpfulness can be
defined many ways.
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A phone call?
Providing pictures?
Enough to write a
report?
Enough to make a case?
Case does not need to
be filed.
Advocate & Attorney Roles
“Substantial physical or mental abuse” from
criminal activity
Applicant’s statement
Form for applicant (Form I-918)
Form for family members (Form I-918A)
Identifying “inadmissibility”
Waiver for inadmissibility
Substantial Abuse
Impairment of emotional or psychological
soundness
Substantial factors include:
the nature of the injury;
severity of perpetrator’s conduct;
severity of harm suffered;
duration of infliction of harm;
permanent or serious harm to appearance;
health, physical or mental soundness.
aggravation of a victim’s pre-existing
conditions.
Practice Pointer
• Nexus between experiencing the
crime and harm is key!
• What behaviors, emotions, etc. do
you see in crime victims that show
they are suffering and/or having
trouble recuperating from the crime?
• Advocates, etc. may be best
positioned to provide this detail
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What Us get
Work authorization
Four years of visa
Can apply for green card after 3 years
What Victims & What to Do?
• Who do you see now that may
qualify?
• How can you help?
• Who do you need to connect with in
your community?
For DAs:
Disclosure Issues
• Witness Prep is crucial
• U-Visa Certification not a guarantee
of status
• Subject to federal scrutiny
• Requires extensive documentation
• Voir Dire is crucial
• Motion in Limine
• Timing and Wording of disclosure
For DAs:
The Tough Questions
• Quid pro quo problem?
• Ways to address institutionally?
• Answering re credibility
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Your role is limited
• DHS decides status, not you
• Applicants must prove other things
• Not signing in exchange for testimony
Resources
• www.Asistahelp.org
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Webinars and technical assistance for members
• Substantive resources on U Visas and VAWA
• VAWA Updates and VAWA Experts listservs
• [email protected]
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Your questions
• Connecting LEOs to CIS
• Finding your counterparts in other places
• Toolkits and suggestions for more tools
• CIS LEO training = Donna Kane
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[email protected]

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