Thread: Lawyers file suit to demand visas for immigrant crime victim

www.sfgate.com

Lawyers file suit to demand visas for immigrant crime victims
- By LAURA WIDES, Associated Press Writer
Wednesday, October 19, 2005


(10-19) 00:08 PDT Los Angeles (AP) --

Lawyers for undocumented immigrants who've been victims of violent crimes filed a federal lawsuit against the Department of Homeland Security for failing to issue protective visas Congress created five years ago.

The 2000 law approved visas for victims of violent crimes who cooperate with law enforcement investigations or prosecution of crimes. The visas allowed them to remain in the United States and apply for permanent residency after three years. But regulations detailing how to apply for the U-visa were never published, and no visas have ever been issued.

"Congress enacted the law with the dual goal of making communities safer ... and as a humane gesture to those immigrants who cooperate with law enforcement agents," said Peter Schey of the L.A.-based Center for Human Rights and Constitutional Law, one of three groups that filed the suit here. "How can the government expect immigrants to comply with the law when it is not complying with its own laws?"

The suit was filed Tuesday on behalf of nine immigrants from California, Texas and Arizona, including several children. Attorneys in the case are seeking class action status.

Homeland Security's U.S. Citizenship and Immigration Services, which issues visas, declined to comment on the suit.

"We're looking at taking our time to ensure that the final regulations we put out are concise and clear and complete," said USCIS spokesman Chris Bentley.

Regulations for a similar visa created under the same law, which allows victims of human trafficking to remain in the United States, were issued in 2002. Schey said there's no excuse for the government to take this long on the U-visa.

Gail Pendleton, a Boston-based immigration attorney and co-chair of National Network to End Violence Against Immigrant Women, said she believes the delay is emblematic of the nation's ambivalence over immigration.

Jorge Rodriguez Ruiz, 20, of Oaxaca, Mexico, is among the plaintiffs in the case. In April, he and six others say they were attacked by a man who held them at gunpoint for half an hour at a rest stop in Maricopa County, Ariz., before authorities intervened.

Rodriguez and the others gave sworn statements to police and received department certificates confirming their cooperation, though the man was never prosecuted. Rodriguez is now facing deportation.

"I am here representing not only myself, but also my companions who were detained at gunpoint with me, and all other immigrant victims of crime in the United States who have helped the police," he said in Spanish at a press conference Tuesday.

People who apply for the U-Visa can obtain "deferred action" status, which offers some protection and allows them to work. But they cannot leave the country, and it's not clear whether time under the deferred status will count toward permanent residency.

As of Tuesday, 3,011 people had requested the deferred action status, including family members of victims, and 2,132 requests were granted, Bentley said.

Still, a significant number of immigrants who are already in deportation proceedings are not receiving the deferred action, Pendleton said.

And USCIS has done little to publicize the visas, meaning many immigrants don't know they can apply, Schey said.

Here is some additional information about "U" visas.


http://www.narika.org/uvisa.html

U VISA RELIEF STILL ELUDES SOUTH ASIANS IN NEED

In October 2000, Congress passed and President Clinton signed the Victims of Trafficking and Violence Prevention Act of 2000 (VTVPA). It provides an immigration remedy to alien victims of crimes, “including rape, torture, kidnapping, trafficking, incest, domestic violence, sexual assault, female genital mutilation, forced prostitution, involuntary servitude, being held hostage or being criminally restrained.� According to the law, if victims report these crimes and participate in the prosecution, they will be eligible for a U visa. After maintaining a U visa for three years, a crime victim may be eligible to apply for permanent residence.

The U visa is a crucial provision of this new law. It is particularly useful to domestic violence survivors who remain in abusive relationships because they have no other way to obtain their green card except through their spouse. The Violence Against Women Act (VAWA) allows those married to a Legal Permanent Resident (LPR) or a U.S. Citizen (USC) to self-petition if they can prove that their spouse abused them and meet several other criteria. Congress originally passed this law partially because they recognized the consequences for an abused woman who returned to her home country.

VAWA, however, does not apply to domestic violence survivors who are married to someone on a non-immigrant visa such as an H-1B or a F-1 student visa. It does apply to someone whose spouse is out of status. VAWA also does not protect people who are abused by partners to whom they are not married. The U visa would give these people an opportunity to leave an abusive relationship and obtain an independent visa to stay in the United States.

Unfortunately, after the VTVPA was passed, the administering agency, the Immigration and Naturalization Service of the U.S. Department of Justice (INS), failed to issue the necessary regulations that will instruct aliens on how to apply for this relief. More than two years have passed since President Clinton signed the law and still immigration advocates have no guidance for U visas. Consequently, local offices are generally not processing any applications even for interim relief under the U visa.

The INS thus keeps in limbo women who have been abused on a daily basis. The crimes against them often go unreported. This often happens because domestic violence survivors know that if they make a police report, their batterer could be put in removal proceedings. With no concrete immigration remedy available to them, many feel that this is a tremendous risk to take. Consequently, the INS delay is in effect keeping women in abusive relationships and placing their lives in even more danger.

This delay has greatly impacted the South Asian community. At Narika, many of the callers are on H-4 visas because their abusive spouse is an H-1 B holder. Others are married to abusive spouses who have fallen out of status completely. For South Asian domestic violence survivors, a U visa is one of very few options to legally remain in the U.S. Immigration advocates nationwide are trying to encourage the INS to enforce this law that Congress created with the intent of assisting crime victims. However, this delay clearly sends a message that the INS does not envision protecting domestic violence survivors as one of their priorities.





http://www.nilc.org/immlawpolicy/obtainlpr/oblpr039.htm


Congress creates new "T" and "U" visas for victims of exploitation
Immigrants' Rights Update, Vol. 14, No. 6, October 19, 2000

By passing the Victims of Trafficking and Violence Protection Act of 2000, which includes the Violence Against Women Act of 2000, Congress created two new categories of nonimmigrant visas, the "T" and "U" visas.

T visas are available to individuals who are victims of "a severe form of trafficking in persons." Severe forms of trafficking include sex trafficking of persons under 18 years of age, or recruiting or obtaining persons for labor or services through the use of force, fraud, or coercion "for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery." Nearly all grounds of inadmissibility may be waived in these cases, and individuals granted T visas may adjust to LPR status three years after they are granted the T visa. There is a limit of 5,000 T visas that may be issued in one year, and 5,000 adjustments of T-visa holders that may be granted. This numerical restriction applies only to principals and not to spouses, sons, daughters, or parents of the principal immigrant.

The other visa created by the act is the U visa, which is available to immigrants who are either victims of or who possess information concerning one of the following forms of criminal activity: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage holding, 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 one of these offenses. A federal, state, or local official must certify that an investigation or prosecution would be harmed without the assistance of the immigrant or, in the case of a child, the immigrant's parent. Nearly all grounds of inadmissibility may be waived in these cases, and individuals granted U visas may adjust to LPR status three years after they are granted the U visa. There is a limit of 10,000 U visas that may be issued in one year, applicable only to principals and not to dependents.

Applicants for the T visa will be granted expanded access to government benefits regardless of their immigration status. To qualify, a trafficking victim must either be under 18 years old or obtain certification from the U.S. Dept. of Health and Human Services (HHS) that

she is willing to assist in every reasonable way in the investigation and prosecution of trafficking perpetrators (neither actual cooperation nor even the existence of an investigation is required; the victim must merely show willingness to cooperate); and
she has made a bona fide application for a T visa that has not been denied (or she has been granted permission by the attorney general to stay in the U.S. to assist in a prosecution of traffickers).
Although the language of the act is somewhat imprecise, it appears that those who meet the conditions listed above will be eligible for all programs funded or administered by federal agencies (including HHS, the U.S. Dept. of Labor, and the Legal Services Corporation) to the same extent as refugees. In the case of food stamps and Supplemental Security Income, trafficking victims will be eligible to an even greater degree. As a practical matter, qualifying trafficking victims should be eligible for refugee-specific programs (such as those administered by HHS's Office of Refugee Resettlement) and for all non-refugee-specific federal programs on the same basis as U.S. citizens.





http://www.ilrc.org

U VISAS: Immigration Relief

for Victims of Certain Crimes


FREQUENTLY ASKED QUESTIONS

The following provides brief answers to frequently asked questions about U visas. This is only a general summary of information about U visas. If you are considering submitting a request for U visa relief, please visit the National Immigration Project of the National Lawyers Guild website: at www.nationalimmigrationproject.org.

â–º What is a U Visa?

The U visa was created by the Victims of Trafficking and Violence Prevention Act, enacted in October 2000. It is available to noncitizens who 1) have suffered substantial physical or mental abuse resulting from a wide range of criminal activity, and 2) have been helpful, are being helpful or are likely to be helpful with the investigation or prosecution of the crime. The U visa provides eligible immigrants with authorized stay in the United States and employment authorization.

â–º Are U Visas Available?

Not exactly. U visas cannot be issued until the Department of Homeland Security (DHS) issues regulations making them available. Until then, no one is receiving an actual U visa. However, in the meantime, the DHS has made an interim form of relief available. It is referred to as "U nonimmigrant status interim relief" or "U visa interim relief." Eligible individuals who request U visa interim relief can receive deferred action, which would also allow them to obtain employment authorization.

â–º Who Is Eligible For U Visa Interim Relief?

There are four basic eligibility requirements for U visa interim relief:

The immigrant has suffered substantial physical or mental abuse as a result of having been a victim of certain criminal activity;
The immigrant possesses information concerning that criminal activity;
The immigrant has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution the criminal activity; and
The criminal activity described violated the laws of the United States or occurred in the United States.


â–º Who Is NOT Eligible For U Visa Interim Relief?

Currently, the guidance from DHS states that the Vermont Service Center (VSC) cannot grant interim relief to noncitizens in immigration proceedings. The guidance also suggests that noncitizens with "aggravated felonies," as defined in immigration law, also are not eligible, nor are "absconders" (noncitizens with a final removal order.) Also, if a noncitizen is currently in a valid non-immigrant status, she is not eligible for deferred action unless she relinquishes her existing status.

Please contact Sally Kinoshita (sally@nationalimmigrationproject.org) or Gail Pendleton (gail@nationalimmigrationproject.org) if you have clients in these categories to discuss strategies for helping your clients!

â–º What Criminal Activities Are Covered By the U Visa Interim Relief?

In order to qualify for U Visa interim relief, the immigrant must be the victim of one or more of the following crimes or any similar activity in violation of Federal State, or local criminal law: 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.



? What Kind of Documents Should Be Submitted With A U Visa Interim Relief Request?

As there is no official "form" for requesting U Visa interim relief, each U visa interim relief application will look different and must be tailored to each individual case. However, each application should include the following elements (* = mandatory):

NOTE: ALWAYS KEEP A COPY FOR YOUR FILE.

â—? Cover letter*

Every application should include a cover letter summarizing everything included in the application. The cover letter should act as a road map to the entire application.

� Applicant’s Declaration*

Declarations should be detailed, describing the abuse and how the applicant meets each U visa requirement. IT DOES NOT NEED TO BE NOTARIZED.

â—? Personal Information*

The application should include some form of personal identification (such as translated copy of a birth certificate, an I-94 etc.)

â—? Documentation Regarding Criminal Activity*

U Visa Certification Form* (sample form at www.nationalimmigrationproject.org, go to U Visa section).
Police report of crime
Copy of the crime as stated in applicable penal code.
Restraining Order and related declarations used to obtain the restraining order.
â—? Documentation of Substantial Physical and/or Mental Abuse*

Detailed in the applicant’s declaration*
Declarations of witnesses to abuse
Declarations of police, health care workers etc.
Medical reports documenting the effects of physical or mental abuse to applicant
Reports or evidence of appointment with counselors, shelters etc.
Photographs that document the abuse
â–º What is a Law Enforcement Certification?

The law enforcement certification is essential to the U visa application. It is best to obtain the certification during the investigation or prosecution of the criminal activity while the evidence is fresh. The certification must come from a Federal, State, or local law enforcement official, prosecutor, judge investigating or prosecuting the criminal activity. There is no official certification form. The certification, which may come in the form of a letter or other form created by the applicant’s representative, must be signed by the law enforcement official within the past six months and include the following information:


â—? it must state that the immigrant was a victim of one or more crimes protected under U visa;

â—? it must identify the crime(s); and

â—? it must verify the victim is, has been, or is likely to be helpful to the prosecution or investigation of the criminal activity.

The National Immigration Project of the National Lawyer’s Guild has made a sample certification form available online along with an explanation for law enforcement officers of the form and its purpose at www.nationalimmigrationproject.org. Click on U visa.



â–º Where Do I Send My Request for U visa Interim Relief?

Requests for U visa interim relief should be sent to:

U.S. C.I.S. Vermont Service Center
VAWA Unit, Box 1000
75 Lower Welden Street
St. Albans, VT 05479-0001

All Requests Should Be Clearly Marked In Large Letters: DO NOT OPEN IN THE MAILROOM.


â–º What Form Do I Use To File A U Visa Interim Relief Request?

There is no official form to apply for U visa interim relief. For a summary of what a U visa interim relief application should include, please see the section above entitled, What Kind of Documents Should Be Submitted With A U Visa Interim Relief Request?

â–º Is There A Filing Fee For Requesting U Visa Interim Relief?

No. A filing fee has not been assigned to the U visa interim relief request.


â–º Can I Qualify For U Visa Interim Relief If I Was A Victim Of A Past Crime?

Yes. Victims of past crimes are still eligible for U visa interim relief, assuming that the applicant meets the U visa requirements.


â–º Will I Be Eligible For a Work Permit/Employment Authorization If I Am Approved for U Visa Interim Relief?

Yes. If a U visa interim relief request is approved and deferred action is granted, the applicant will be notified that s/he may submit an I-765, Application for Employment Authorization. The I-765 should be filed with VSC with proof that the applicant has an economic need for employment. The applicant will be required to renew the employment authorization each year. An I-765 may be filed concurrently with the request for U visa interim relief. An applicant must submit the appropriate filing fee with the I-765, unless an appropriate request for a fee waiver accompanies the application.


â–º Will U Visa Interim Relief Make Me Eligible For Lawful Permanent Residency Status (a Green Card)?

Not yet, possibly in the future. The U visa interim relief is not an actual U visa, it is only interim relief until the U visa regulations are written and U visas are issued. Therefore, a U visa interim relief holder is not eligible to apply for lawful permanent residency/green card.

Once the regulations are written and actual U visas are issued, a U visa holder may become eligible for lawful permanent residence. After three years, a U visa holder may apply for lawful permanent residence, if s/he has maintained continuous residence in the U.S. for at least three years, and if it is determined that his/her continued presence in the U.S. is justified on humanitarian grounds, ensures family unity, or is otherwise in the public interest. The adjustment application will be denied if it is determined that the U visa holder unreasonably refused to assist with a criminal investigation or prosecution.


â–º If I am Granted Deferred Action Through a Request for U Visa Interim Relief, Will My Deferred Action Last Indefinitely?

No. Deferred action is valid for a period of one year unless it is terminated earlier for reasonable cause and upon appropriate notice. A request for an extension of deferred action must be submitted every year before its expiration.


â–º If I have a pending or approved application for deferred action through a request for U visa interim relief, may I travel outside of the United States?

Not advisable. Travel is always risky. There is no procedure in place at this time for U visa interim relief applicants or recipients to receive advance parole or some other permission to travel. If someone leaves and comes back, they may not be able to get back into the country.


â–º Am I at Risk for Deportation or Removal if I Submit a Request for U Visa Interim Relief?

Maybe. Anyone who is not in valid status in the United States, who submits an application or request to the DHS, runs the risk of being placed in removal proceedings if they are not eligible for any form of immigration relief.

Those at greatest risk are individuals requesting U visa interim relief who are clearly ineligible for a U visa and individuals with aggravated felonies. Those cases will be referred to Immigration and Customs Enforcement and a possible "Notice to Appear" for removal proceedings may be issued.

In addition, U visa applicants must show they are not "inadmissible." DHS may deny status to applicants who have committed visa fraud, made false claims to United States citizenship, or been convicted of a crime. These are only examples of things that make applicants inadmissible. Even though there is a waiver, you should not file applications in such cases without consulting an experienced U visa mentor. Again, please contact Sally Kinoshita (sally@nationalimmigrationproject.org) or Gail Pendleton (gail@nationalimmigrationproject.org) with these questions.

FINALLY, UNTIL WE KNOW WHAT THE REGULATIONS SAY, ANY APPLICATION FOR INTERIM RELIEF MAY EXPOSE AN APPLICANT TO EVENTUAL REMOVAL. ALTHOUGH WE WILL CHALLENGE THE REGULATIONS IF THEY DENY STATUS TO PEOPLE CONGRESS INTENDED TO HELP, DHS MAY REMOVE NONCITIZENS BEFORE WE SUCCEED.


â–º Can a U Visa Interim Relief Recipient Obtain Relief For His/Her Family Members?

Possibly. An immigrant who receives U visa interim relief may be able to obtain relief for his/her spouse, children, and parent (in the case of a child applicant under the age of 16). However, the eligible family member must prove extreme hardship if removed from the United States and provide a certification that states the investigation or prosecution would be harmed without their assistance.


â–º Are U Visa Interim Relief Requests Confidential?

Yes. Information included in the U visa interim relief request may not be disclosed or used by anyone other than sworn officers of the Department of Homeland Security (DHS). Furthermore, determination of a U visa interim relief request cannot be based solely on information provided to the DHS by someone who has battered or abused the applicant.

http://www.vdare.com/allen/t_visas.htm

July 07, 2004

[b]T Visasâ€â€

This is more bs being brought on by the open borders lobby. It's just ridiculous. Illegal aliens shouldn't get squat. I'm sorry they were victims of heinous crimes or their smugglers treated them badly, but if they hadn't decided to break the law by coming into this country illegally in the first place then maybe, just maybe they wouldn't have been victimized in the first place. Maybe if they came here legally then they wouldn't have to go through all of these risks. Gee what a concept.

All of these problems would be solved if the worthless politicans would get off their arses, seal off the borders and enforce our immigration laws to a T.