Surviving crime and facing deportation: U visas as a defense against removal in a system of divided agency jurisdiction

• Author: Alison J. Coutifaris
• Position: Clinical Teaching Fellow and Supervising Attorney, Center for Applied Legal Studies (CALS), Georgetown University Law Center
• Pages: 909-961

SURVIVING CRIME AND FACING DEPORTATION:

U VISAS AS A DEFENSE AGAINST REMOVAL IN A

SYSTEM OF DIVIDED AGENCY JURISDICTION

ALISON J. COUTIFARIS*

ABSTRACT

The Trafficking Victims Protection Act (TVPA) established the U visa, a

humanitarian immigration status for survivors of serious crimes who cooper-

ate with law enforcement to report criminal activity. The benefit is intended

to serve two symbiotic purposes: provide undocumented victims of crime

with humanitarian protection from deportation and strengthen law enforce-

ment’s ability to prosecute crime. A statutory cap of 10,000 annual visas has

led to an unanticipated ten-year adjudication backlog for noncitizens apply-

ing today.

U visa applicants in removal proceedings are within a system of divided ju-

risdiction: only the U.S. Citizenship and Immigration Service may adjudicate

the U visa, while administrative law immigration judges of the Department of

Justice’s Executive Office for Immigration Review (EOIR) have exclusive ju-

risdiction over removal proceedings. Because the TVPA does not explicitly

protect an applicant from deportation during the unanticipated adjudication

delay, U applicants remained vulnerable to deportation until their visas were

finally issued, contrary to congressional intent. To address this problem, the

Department of Homeland Security (DHS) and immigration courts imple-

mented a discretionary framework intended to prevent the deportation of

U visa applicants.

This Article is the first to analyze the framework of discretionary relief for

U visa applicants across DHS and EOIR. It documents this framework’s vul-

nerabilities, as evidenced by the inconsistent application and underutiliza-

tion by agencies under the Bush and Obama administrations, and the vast

number of policies implemented to undermine discretion during the Trump

administration. This Article argues that relying on an exercise of discretion

to protect U applicants undercuts statutory intent. Steps taken under the

Biden administration to encourage discretionary protection are promising,

* Clinical Teaching Fellow and Supervising Attorney, Center for Applied Legal Studies (CALS),

Georgetown University Law Center. The author is grateful for invaluable feedback from Philip Schrag,

Andrew Schoenholtz, Dennis Fan, Sarah Paoletti, Carmen Maria Rey, and Constantinos Coutifaris.

© 2022, Alison J. Coutifaris.

909

but more lasting reform should be implemented to protect immigrant victims

of crime and encourage cooperation with law enforcement.

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 911

II. U NONIMMIGRANT STATUS ............................. 914

A. Legislative History and Purpose ................... 914

B. Statutory Requirements .......................... 916

C. Agency Guidance and Regulatory Framework. . . . . . . . . 918

1. Creation of the U Waitlist. . . . . . . . . . . . . . . . . . . . . 920

2. USCIS Bona Fide Determination and Adjudication . . . 921

III. SPLIT JURISDICTION FOR U PETITIONERS IN REMOVAL ........... 924

A. DHS Discretionary Framework .................... 925

1. Discretion Provided by Regulation .............. 925

2. ICE Guidance on Exercising Discretion. . . . . . . . . . . 926

B. EOIR Framework and Erosion of Discretionary Tools. . . . 929

1. Termination .............................. 930

2. Administrative Closure . . . . . . . . . . . . . . . . . . . . . . 931

3. Continuances .............................. 932

4. Proposed Regulations and Policy Memo.......... 935

5. Status Docket ............................. 937

C. Impact of Split Jurisdiction Framework on Elena. . . . . . . 938

1. Trump-Era Outcome ........................ 938

2. Biden Administration Impact .................. 941

IV. CRITIQUES OF SPLIT JURISDICTION DISCRETIONARY SYSTEM . . . . . . . 942

A. Harm to Survivors of Crime and Law Enforcement Efforts . 943

B. Undermines Agency Goals of Administrative Efficiency . . . 948

V. RECOMMENDATIONS FOR REFORM ........................ 950

A. Statutory Amendments .......................... 951

1. Eliminate the Statutory Cap . . . . . . . . . . . . . . . . . . . 951

2. Explicitly Protect U Petitioners from Removal ...... 955

B. Agency Reforms ............................... 957

910 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:909

1. DHS Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957

2. Reforms at EOIR ........................... 960

VI. CONCLUSION ...................................... 961

I. INTRODUCTION

Elena and her abusive husband, Honduran citizens, entered the United

States without inspection in 2005. A year later, Elena gave birth to a child

within the United States. In 2016, following a particularly violent abusive

episode, Elena reported her husband’s brutality to the police. As a result, he

was charged with assault. After Elena cooperated with law enforcement dur-

ing prosecution, her husband pleaded guilty, was transferred to immigration

custody, and was deported to Honduras.

Elena was left without any source of income and began working long hours

to support her family. She moved into a room in an apartment shared with

another undocumented family. Five years later, immigration enforcement

officers entered the apartment looking for her roommate, but initiated re-

moval proceedings—administrative law proceedings to determine whether a

noncitizen may be deported—against everyone present. Elena consulted with

an immigration attorney, who helped her file a petition for U nonimmigrant

status, a four-year visa for survivors of serious crimes who cooperate with

law enforcement.

Elena is now caught between two branches of the immigration system. On

the one hand, U.S. Citizenship and Immigration Services (USCIS), the sub-

agency of the Department of Homeland Security (DHS) responsible for law-

ful immigration in the United States, has sole jurisdiction to consider her U

visa petition. At the same time, an administrative immigration judge of the

Department of Justice (DOJ)’s Executive Office for Immigration Review

(EOIR) is tasked with determining whether (1) she is removable and

(2) whether she is eligible for any form of immigration benefit that may allow

her to remain legally in the United States.

U Nonimmigrant Status, colloquially known as the U visa, is a form of hu-

manitarian immigration status available to noncitizen survivors of serious

crimes who have suffered substantial harm and cooperate with U.S. law

enforcement to report those crimes. Congress envisioned the U visa as a

mechanism to protect undocumented women and children suffering from

domestic violence in the shadows out of fear that they would be deported if

they sought law enforcement assistance or left their abusers.

1

Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1518, § 1502

(a)(3) (2000). In fact, almost 80 percent of U visa applicants have no lawful immigration status at the time

of filing. U.S. CITIZENSHIP & IMMIGR. SERVS., U VISA REPORT: U VISA DEMOGRAPHICS (2020), https://

perma.cc/7VGY-TMRK (analyzing data through FY 2019) [hereinafter U VISA DEMOGRAPHICS REPORT].

The U visa also

provides protection to immigrant victims of other violent and coercive

1.

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