Rethinking indirect victim eligibility for U non-immigrant visas to better protect immigrant families and communities.

• Author: McCormick, Elizabeth M.

1. INTRODUCTION

   Maria and Claudia are first cousins, and their mothers are sisters. Claudio was born in Mexico. She entered the United States illegally with her mother and Maria's mother when she was only a few months old. Maria was born two years later in the United States. The girls have grown up together. Maria was nine years old and Claudia was twelve when they were both sexually assaulted by Claudia's mother's boyfriend. When their mothers" discovered what had happened, they immediately reported the crimes to the police and obtained civil protection orders against the boyfriend. As a result of the mothers' actions, a criminal investigation was initiated and the boyfriend was recently convicted and sentenced to prison. Once his sentence is served, it is likely he will be deported from the United States.

   The mothers" of both girls assisted in the investigation and prosecution of the boyfriend, and have sought medical treatment and counseling for their daughters" in order to deal with the traumatic impacts of the assaults. They hope to be able to remain in the United States so that their daughters can stay in school and continue to receive services. They also worry that if they are forced to return to Mexico they will be unable to protect themselves and their daughters from the boyfriend once he has been released from prison.

   Claudia is eligible to apply for a special visa, a U visa, for immigrant crime victims who have been substantially harmed by violent crime and are willing to help police investigate and prosecute those crimes. Since Claudia is only twelve, she can qualify based on her mother's cooperation with the police on her behalf. Claudia's mother can also be included as a family member on Claudia's U visa petition to obtain legal status herself The police detective who investigated the sexual abuse signed the U visa application form certifying that Claudia was a crime victim and that her mother had assisted the police with their investigation. If Claudia's petition is approved, a U visa will allow Claudia and her mother to remain in the United States, to work legally, and to eventually apply for lawful permanent resident status.

   Maria and her mother are not so lucky. Because Maria is a U.S. citizen, she is not eligible to apply for a U visa herself. Her mother, therefore, is ineligible to apply' .for legal status as a family' member. In order for Maria's mother to be able to qualify, she must apply as an "indirect victim" of the sexual assault against Maria. In order to be eligible as an indirect victim, she must show that she has been substantially harmed by the crime against Maria, in addition to showing that she has cooperated in the investigation or prosecution of that crime. When Maria's mother asked the same police detective to sign the U visa form in her name certifying that she was a crime victim and had assisted with the investigation of the crime, the detective refused, telling her he could not sign because she was not the victim. Without that certification, Maria's mother cannot be granted a U visa. Unlike Claudia's mother, she must convince the police department and the immigration service that she is herself a crime victim in order to get relief Because her daughter is a U.S. citizen, it is not enough for her to report the crime, cooperate with police, and be a source of strength and support to her young daughter. And if Maria's mother cannot prove that she too has suffered substantial harm, regardless of the terrible harm suffered by Maria and the family's cooperation with law enforcement, she will be ineligible for a U visa and will be unable to remain legally in the United States with her U.S. citizen daughter.

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   The story of Maria and Claudia and their mothers is not unique. (1) It is one of countless similar stories of families trying to navigate their way through the uncertain statutory and regulatory maze of the U non-immigrant visa, or as it is commonly known, the "U visa." Congress created the U visa in 2000 in order to encourage non-citizen crime victims to report crimes and to cooperate with law enforcement agencies in the investigation and prosecution of the crimes. (2) Immigrant victims of domestic abuse and other crime are particularly vulnerable in both the criminal justice and immigration systems. Uncertainty as to their immigration status, coupled with fear of removal and resulting separation from family and support networks, frequently make immigrant crime victims reluctant to report their attackers to authorities or to seek medical treatment or other social services. (3) In recent years, as state and local governments and even private vigilante groups have taken on a more active, even if not necessarily authorized, role in the enforcement of federal immigration laws, unauthorized immigrant crime victims or other crime victims living with an unauthorized immigrant family member have become even more afraid to come into contact with law enforcement or government agencies. (4) In many communities, immigrant families have been targeted by criminals who exploit their fear of detection and removal, confident that their victims will not report the crimes. (5)

   In creating the U visa, Congress recognized that unauthorized immigrant (6) crime victims are often reluctant to contact police because they are afraid of being reported to federal immigration authorities and removed from the United States. Freed from those fears, crime victims who might otherwise stay silent would be able to come forward to help law enforcement agencies apprehend and prosecute the perpetrators, while obtaining protection for themselves from further abuse or exploitation, and enhancing overall public safety. (7) In exchange for their cooperation with law enforcement, non-citizen victims who could show that they have been substantially harmed as a result of certain enumerated crimes would be eligible to obtain U non-immigrant status for up to tour years (8) and, eventually, become lawful permanent residents of the United States. (9) In addition, certain family members of the victim would be eligible for relief. (10)

   Although it has been almost a decade since Congress created the U visa, (11) there is still much uncharted territory in the implementation of the statute and regulations, and the adjudication of the visa petitions. This is due in large part to the government's seven-year delay in issuing implementing regulations. (12) In the years before the U visa regulations were issued, one frequently recurring question was whether parents and other non-citizen family members of U.S. citizen victims would be eligible for U visa protection. Since the statute required that the crime victim be an alien, it seemed to exclude from protection the non-citizen family members of U.S. citizen victims. The apparent unavailability of U visa protection for these family members was particularly troubling in cases involving U.S. citizen child victims who, unlike adult U.S. citizens, are not eligible to petition for the legal immigration of their non-citizen parents and siblings. (13) In addition, an increasing number of U.S. citizen children were living in mixed-status families, (14) and the exclusion of more than half of the unauthorized immigrant families in the United States from eligibility for U visa protections seemed inconsistent with the law enforcement and humanitarian purposes of the statute. (15) The statute's unequal protection of immigrant and U.S. citizen children, especially where it worked to discriminate between two children like Maria and Claudia from the same immigrant family and suffering from the same horrible abuse, seemed particularly irrational and unfair. (16)

   A second frequently recurring question regarding victim eligibility for U visas involved family members of victims of murder and manslaughter. The statute includes murder and manslaughter on the list of qualifying crimes for a U visa, (17) so it would seem that Congress clearly intended someone other than the deceased victim to qualify for an immigration benefit. Nevertheless, in the years before the regulations were issued, there was a great deal of uncertainty about who might qualify for a U visa in cases involving murder and manslaughter and under what circumstances. (18) This uncertainty was exacerbated if the deceased person also happened to be a U.S. citizen.

   When the regulations were finally issued, they appeared to resolve some of the uncertainty about U visa eligibility in cases involving U.S. citizen child victims and victims of murder and manslaughter. This was accomplished by expanding the definition of "victim of qualifying criminal activity" to include "indirect victims" of crime in cases involving "murder, manslaughter, or incompetent or incapacitated victims." (19) In those cases, the "alien spouse, child[] under twenty-one years of age and, if the direct victim is under twenty-one years of age, parents and unmarried siblings under eighteen years of age" would also be considered a victim of qualifying criminal activity. (20) Advocates for immigrant crime victims were encouraged by this development, which seemed to provide an avenue to relief for the most vulnerable crime victims while enhancing the capacity of law enforcement agencies to investigate and prosecute the most serious crimes. However, in implementation the "indirect victim" provisions have proven to be an imperfect solution that is misunderstood by advocates and law enforcement agencies working with U visa eligible crime victims, and even by United States Citizenship and Immigration Service (USCIS) adjudicators, creating unnecessary hurdles for immigrant crime victims and their families.

   The challenges in implementing the "indirect victim" provisions have been further exacerbated by an increasingly volatile national debate over illegal immigration, a debate that tends to cast suspicion on all unauthorized immigrants and frequently...