The U Visa: A Tool for Law Enforcement, Immigrant Victims of Crimes, and Those Who Work with Them

1. 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

2. Goals • Identify who you can help • Identify what you can do • Identify who you will work with (or need to work with)

3. A Few Immigration Concepts • Immigrants & Nonimmigrants • Immigrating family members • “Noncitizens” • Who is Undocumented?

4. 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)?

5. 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

6. Realities

7. Language & accessibility • Information/misinformation • Potential for deportation • Experience in the home country • Economic barriers • Cultural and religious pressure

8. What Congress Has Done • Access to public benefits • Access to legal services • Access to services (LEP) • Special routes to immigration status

9. 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

10. U Visa Purpose • Strengthen investigation and prosecution • Protect victims of crime

11. U Visa Basic Eligibility Requirements • Victim of qualifying criminal activity; • Possesses information about that crime; • Helpful to law enforcement • Substantial physical or mental abuse from crime; • Admissible to US or merits waiver • “Any credible evidence”

12. U Visa Crimes • 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

13. 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

14. Who can certify? The Law says • Police officers • Prosecutor • Judge • DHS Officer • State or Federal Agency Employee

15. 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: • Child Protective Services • Equal Employment Opportunity Commission • Department of Labor

16. By signing you are NOT: • 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.

17. Key Evidence = Certification • Certification by LEO is essential • 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

18. How to Analyze Crimes • 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?

19. 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)

20. 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

21. What is Helpfulness? • Helpfulness can be defined many ways. • A phone call? • Providing pictures? • Enough to write a report? • Enough to make a case? • Case does not need to be filed.

22. 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

23. 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.

24. 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

25. What Us get • Work authorization • Four years of visa • Can apply for green card after 3 years

26. 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?

27. 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

28. For DAs:The Tough Questions • Quid pro quo problem? • Ways to address institutionally? • Answering re credibility • Your role is limited • DHS decides status, not you • Applicants must prove other things • Not signing in exchange for testimony

29. Resources • www.Asistahelp.org • Webinars and technical assistance for members • Substantive resources on U Visas and VAWA • VAWA Updates and VAWA Experts listservs • gailpendleton@comcast.net • Your questions • Connecting LEOs to CIS • Finding your counterparts in other places • Toolkits and suggestions for more tools • CIS LEO training = Donna Kane • Donna.kane@dhs.gov