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The U Visa For Crime Victims

January 16, 2010

Author: Robert Cisneros

Introduction

The U visa provides immigration status to certain victims of certain crimes. It was created in the Victims of Trafficking and Violence Protection Act of 2000, Pub. Law 106-386 § 1513, codified at 8 USCA §§ 1101(a)(15)(U), 1184(o) and 1255(l), and its implementing regulations are at 8 CFR § 214.14.1 The U visa is notable for its expansiveness and for the power afforded law enforcement in its legislative structure.  A crime victim applies for a U visa by filing a petition with the Violence Against Women Act Unit (VAWA Unit) of US Citizenship and Immigration Services (USCIS). The petitioner bears the burden of proof; USCIS must consider all credible evidence in its adjudication.

Which crimes?

The U visa does not cover all criminal activity. Crimes which can form the basis for a U visa are:

  • rape
  • torture
  • trafficking
  • incest
  • domestic violence
  • sexual assault
  • prostitution
  • female genital mutilation
  • involuntary servitude
  • slave trade
  • kidnapping
  • abduction
  • false imprisonment
  • extortion
  • manslaughter
  • blackmail
  • murder
  • felonious assault
  • witness tampering
  • obstruction of justice
  • perjury, and
  • attempt,conspiracy or solicitation to commit any of these crimes

The listed crimes are purposely generic - what constitutes a domestic violence crime will vary from jurisdiction to jurisdiction.  In New York domestic violence crimes include disorderly conduct, harassment, aggravated harassment, stalking, menacing, reckless endangerment, and assault.  See NY Criminal Procedure Act § 530.11 and NY Family Court Act § 812 (listing criminal acts over which Family and Criminal court have concurrent jurisdiction).  Also, in New York crimes of domestic violence include crimes between same-sex couples and other intimates.  See NY Family Court Act § 812(1)(e).

A U visa petition can also be premised on a crime which is similar to a listed crime.  A similar crime is one in which “the nature and elements of the offense are substantially similar” to the listed crime. For example, all New York robberies are similar to the listed crime “felonious assault,” in that all New York robberies are felonies, and all include the use, or threatened use, of force, the quintessential element of assault, as an element of the offense.

The openness, or expansiveness, of the U visa is seen in: 1) the use of generic crime names for the listed crimes, 2) the inclusion of attempt, conspiracy and solicitation to commit a listed crime as a listed crime, and 3) the allowance of a crime similar to a listed crime as a basis for a U visa.

Which victims?

To qualify for a U visa the crime victim must show: 1) that she suffered substantial physical or mental abuse consequent to the crime, 2) that she possesses information about the crime, and, most importantly, 3) that she is being, has been or is likely to be helpful in the investigation or prosecution of the crime.  The U visa is broad: to qualify for the visa the victim must show assistance in the prosecution or investigation of the crime – a conviction is not required for approval of a U visa.

Assistance to Law Enforcement

Proof of the victim’s assistance to law enforcement is supplied in the form of a certification signed by a Judge, or the head of a law enforcement agency, or a person designated by the head and working in a supervisory role,  prosecutor’s office, or other agency responsible for the investigation or prosecution of crimes. In practice, certifications are most commonly signed by the local district attorney or chief of police.

A U visa cannot be approved without the certification. Thus, while the U visa provides immigration status to the crime victim, its viability certification depends, quite directly, on the victim’s utility to law enforcement, and, in turn, upon law enforcement’s good disposition towards the victim.2 

Substantial Physical or Mental Abuse

While what constitutes substantial abuse is determined on a case by case basis, by regulation the following factors must be considered in reaching a determination:

  • the nature of the abuse inflicted or suffered,
  • the severity of the perpetrator's conduct,
  • the severity of the harm suffered,
  • the duration of the infliction of the harm, and
  • the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions.

Note that the presence of one of these factors is not required for a finding of substantial injury. And, a series of acts taken together may be substantial, even where no single act alone is substantial. These guidelines permit a liberal interpretation of what substantial injury is. The last, “series of acts,” rule is particularly well suited to, and arguably was included for, domestic violence cases where the abuse is repeated and follows a pattern, and where incidents may vary in intensity.

“Indirect” Victims

If the direct victim of the crime is deceased, incapacitated or incompetent her immediate family members may petition for U visas as victims, but they have to meet the other U visa criteria.  That is, the applying family member must show that she has information about the crime and has suffered substantial injury consequent to the crime.  For example, the surviving spouse of a vehicular manslaughter victim who sustained significant injuries in the crash that was fatal to his spouse can petition for a U visa.

If the direct victim of the crime is the justice system, as in the listed crimes obstruction of justice, witness tampering and perjury, to qualify for a U visa the victim must show:

  • that she was harmed by the crime, and
  • that the perpetrator committed the crime:
    • to further his abuse and control over her by manipulating the justice system, or
    • to frustrate efforts to bring him to justice for other criminal activity.

For example, a U visa petition could be premised on witness tampering where the accused in a domestic violence case contacts a witness for the prosecution and tells her he will kill her parents in her home country if she testifies against him, and where the witness suffers psychological damage as a result of those threats.

Benefits of the U visa

The U visa has a duration of four years during which the U visa holder is allowed to live and work in the US. After three years in U visa status a U visa holder can apply for adjustment of status to legal permanent resident status (green card holder), and if the application is approved she can live permanently in the US.  Generally, a legal permanent resident is eligible to apply for naturalization as a US citizen after five years.

Immediate family members of the U visa holder, called derivative beneficiaries, may also qualify for U visa status. If the U visa holder, or principal applicant, is over 21 her spouse and children (children is defined as unmarried and under 21) can apply for U visa status.  If the U visa principal is under 21 her spouse, children, parents and unmarried siblings who are under 18 can apply for U visa status.  However, a family member implicated in the crime upon which the U visa is based is ineligible for derivative U visa status. Thus, the spouse of a U visa holder whose visa is based upon a crime of domestic violence committed by that spouse is ineligible for derivative U visa status.

A U visa holder is an alien permanently residing under color of law (PRUCOL) such is eligible for NY Medicaid and Safety Net Assistance.  See Non-Citizen Eligibility for Government Benefits in New York State, http://www.empirejustice.org/assets/pdf/issue-areas/immigrant-rights/immigrant-eligibility-chart.pdf.

Conclusion

The U visa has tremendous potential for crime victims and their families. However, to realize  the promise of the U visa may require creative argument in the interpretation of the statutory and regulatory language.  Moreover, the establishment and the maintenance of robust partnerships with police, prosecutors and other law enforcement agencies whose participation is intrinsic to the U visa process is an essential component of winning these cases.  These partnerships can be developed though open dialogue, training and networking with law enforcement personnel.

For more information on U Visas, contact Rob Cisneros at  rcisneros@law.pace.edu.

Footnotes

1  For a good overview of the legislative and executive history of the U Visa, see the preamble to publication of its implementing regulations at:  Federal Register/ Vol. 72, No. 179 / Monday, September 17, 2007 / Rule and Regulations / pp. 53014 et. seq

2  See Ordonez Orozco v. Chertoff, 2008 WL 5155728 (SD Texas 2008) (law enforcement decision on whether or not to provide a U visa certification was discretionary and Court did not have jurisdiction to review such decision).
 

 





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