Certified Disaster: a Failure At the Intersection of the U Visa and the Child Welfare System

CERTIFIED DISASTER: A FAILURE AT THE

INTERSECTION OF THE U VISA AND THE CHILD

WELFARE SYSTEM

DANIELLE KALIL*

TABLE OF CONTENTS

INTRODUCTION ......................................... 514

I. U NONIMMIGRANT STATUS OFFERS PROTECTION TO IMMIGRANT

VICTIMS OF CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

A. Purpose and History of U Nonimmigrant Status . . . . . . . . 521

B. How U Nonimmigrant Status Works. . . . . . . . . . . . . . . . . 523

C. The Helpfulness Requirement and Law Enforcement

Certif‌ication .................................. 526

D. Def‌ining “Certifying Agency”. . . . . . . . . . . . . . . . . . . . . 529

E. Special Considerations for Child Welfare Agencies. . . . . . 531

II. INCONSISTENT APPROACHES TO U VISA CERTIFICATIONS BY CHILD

WELFARE AGENCIES ................................. 537

A. Disparate Child Welfare Agency Certif‌ication Policies. . . 538

1. Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539

2. Massachusetts & Connecticut.................. 540

3. California & New York . . . . . . . . . . . . . . . . . . . . . . 540

4. Minnesota ................................ 543

5. Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543

* Danielle Kalil is a Clinical Teaching Fellow in the University of Michigan Law School Human

Traff‌icking Clinic. I would like to thank Kim Thomas, Elizabeth Campbell, Suellyn Scarnecchia, Josh

Kay, Sabrina Balgamwalla, Debra Chopp, Eric Sirota, and Megan Richardson for their generous and

insightful feedback. I would also like to thank my colleagues at the Clinical Law Review Workshop,

facilitated by Richard Boswell and Stacy Caplow, as well as participants of the AALS Clinical

Conference Works in Progress Session, for their valuable input into the direction of this article. Finally, I

would like to thank Claire Taigman, Kara Naseef, and the University of Michigan Law Librarians for

their excellent research assistance. © 2021, Danielle Kalil.

513

B. Child Protective Services Duties and Incentives to Evaluate

U Visa Certif‌ication Requests . . . . . . . . . . . . . . . . . . . . . 545

1. Political Considerations ...................... 545

2. Resource Allocation . . . . . . . . . . . . . . . . . . . . . . . . . 546

3. The Need to Incentivize Cooperation . . . . . . . . . . . . . 546

III. IMPACTS OF INCONSISTENT CERTIFICATION POLICIES AND PRACTICES . . 549

A. The Absence of Standards Perverts the U Visa’s Purpose . . 550

B. The Absence of Standards Has Altered the Function of the

Helpfulness Requirement ........................ 552

C. Inconsistent Policies Disparately Impact Similarly Situated

Youth ....................................... 552

D. Agencies are Abdicating their Duties to Minors in their

Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553

IV. THE NEED FOR A NEW STANDARD AND FEDERAL ACCOUNTABILITY . . . . . 554

A. Solutions that Depend on Discretion of State Agencies are

Insuff‌icient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 555

B. A New Standard for Proving Helpfulness . . . . . . . . . . . . . 556

C. Eliminating the Helpfulness Requirement for Minors. . . . . 560

D. Federal Funding of State Child Welfare Agencies to

Compel U Visa Certif‌ication Policies . . . . . . . . . . . . . . . . 561

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564

INTRODUCTION

Immigration policy, and particularly the treatment of immigrant children,

has long been an issue that captivates our national attention. Deferred Action

for Childhood Arrivals (“DACA”), the “surge” of unaccompanied minors,

family separation, and the detention of children have all featured prominently

in the media, and rightly so. But often the obstacles immigrants face in seek-

ing relief happen in a quieter, more mundane fashion that rarely gets atten-

tion. Procedural or regulatory matters that may seem insignif‌icant at f‌irst

blush can result in insurmountable barriers to long-term immigration status

and stability. This article addresses one such aspect of immigration law—U

Nonimmigrant Status (also called the “U visa”)—and how it intersects with

child welfare policy to harm the very immigrant youth it was meant to

protect.

514 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:513

As a young child, Maria escaped violence in Mexico and f‌led to El Paso,

Texas, with her mother.

1

Her mother was physically abusive, but Maria was

afraid to tell anyone. Her mother told her if she called the police, they would

both be deported because they were undocumented. Maria, fearful of being

sent back to a violent country where she had not lived in years, stayed quiet.

One day, Maria showed up to school with visible bruises. She disclosed the

abuse to her school counselor, who made a report to child protective services.

Maria recounted the traumatic details of her mother’s abuse to a child welfare

investigator and was placed in foster care, but all the while she worried talk-

ing to authorities would result in deportation for her or her mother. She was

never asked to speak to the police but continued working with child protec-

tive services as they investigated her mother’s abuse. She even testif‌ied in

court.

Based on her victimization and cooperation with the child protective serv-

ices investigation, Maria could be eligible for U Nonimmigrant Status, a

form of immigration relief intended to protect vulnerable survivors of violent

crime.

2

A U visa would provide Maria with long-term immigration status,

protection from deportation, a path to citizenship in the United States, and

safety from her mother’s retaliation. To be eligible for a U visa, a victim

must demonstrate, among other things, that they were helpful to the agency

investigating the criminal activity of which they were a victim.

3

Maria satis-

f‌ied this when she cooperated with the child welfare investigator and testif‌ied

in court. But to actually apply for U visa relief, Maria would need to get a

signed certif‌ication from child protective services identifying her as a crime

victim who cooperated with their investigation. Any agency that has “crimi-

nal investigative jurisdiction in their respective areas of expertise” may cer-

tify a U visa application, “including, but not limited to, child protective

services.”

4

But child welfare agencies have taken vastly different approaches

to issuing certif‌ications.

5

In some states, it would be easy for Maria to get a

certif‌ication from child protective services. In California, for example, she

would have received the certif‌ication automatically within thirty days.

6

But

because she lived in Texas, Maria was entirely barred from relief. The Texas

child protective services agency categorically refuses to issue U visa certif‌i-

cations, and without it, Maria could not even apply for U Nonimmigrant

1. This case example is emblematic of several real clients I represented while working in Texas. No

real client names have been used.

2. See infra Part I.

3. See infra Part I.

4. 8 C.F.R. § 214.14(a)(2) (2020).

5. See infra Part II. Some states’ child welfare agencies review and issue U visa certif‌ications regu-

larly, following clear, thorough procedures. Other child welfare agencies arbitrarily limit their certif‌ica-

tions or outright refuse to certify U visas. In such states, if a child is not eligible for other forms of

immigration relief and cannot obtain a certif‌ication from a traditional law enforcement agency, they will

have no options to remain in the United States. In other states, there is no clear certif‌ication policy or

protocol.

6. See infra Section II.A.

2021] CERTIFIED DISASTER 515