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Update on the 'U Visa' Litigation

Monday, May 05, 2008

  • By: Peter Schey
  • Organization: Center for Human Rights and Constitutional Law
  • Source: California

Background

In summary, the U visa law was passed by Congress in 2000 to provide visas for undocumented migrant victims of serious crimes who cooperate with law enforcement to put violent criminals in jail. An applicant may be granted a U visa for past, present, or anticipated future cooperation with the investigation OR prosecution of one of several serious crimes defined in the statute. See attachment for details. After an immigrant has had U visa status for three years, the immigrant can apply for lawful permanent resident status, and five years after that for citizenship.

We first sued DHS Secretary Chertoff in 2005 in the case entitled Rodriquez Ruiz v. Chertoff, Cv. No. EDCV 05-0966 (Central District of California) because after five years the DHS had still not issued U visa regulations or an application form, and instead was only issuing something called "interim relief' to a small number of applicants.

We agreed to dismiss that case in early 2006 after (1) USCIS agreed to issue a policy memorandum stating that when a U visa was approved in the future it would be back-dated to the time when the applicant was granted "interim relief" so that the required three years of U visa status before an applicant may apply for lawful permanent resident (green card) status would commence when the applicant was granted "interim relief," rather than later when granted U visa status, and (2) USCIS convinced Congress to give them until June 2006 to issue the U visa regulations.

Filing of current litigation

When USCIS failed to issue regulations in 2006, we again sued in March 2007, this time in federal court in San Francisco (Catholic Charities CYO v. Chertoff, Cv. No. 07-01307-PJH). Co-counsel includes the Asian Pacific Islander Legal Outreach (San Francisco), the Public Law Center (Santa Ana, CA), Central American Resource Center (Los Angeles), pro bono counsel Bustamante and Associates (Los Angeles), pro bono law professor James Eyster, and Sanctuary for Families (NY).

Plaintiffs include several organizations serving migrant crime victims including our domestic violence project Voces Unidas (Voces Unidas provides legal assistance and technical support on matters involving immigrant crime victims and domestic violence- see www,vocesunidas.org for information including a database of resources available to advocates and immigrant victims of violent crimes and survivors of domestic violence), Catholic Charities CYO of San Francisco, International Institute of the East Bay, Sanctuary For Families, the Diocesan Migrant & Refugee Services, Inc. (El Paso), and eighteen migrant crime victims eligible for U visas, most residing in the Bay Area. The main focus of the new lawsuit, brought as a nationwide class action, was the USCIS's failure for seven years to issue U visa regulations and an application form, or to take steps to remedy the 7-year delay in issuing U visas.

In June 2007 the government filed a motion to dismiss all claims. We filed an extensive opposition in July. A court hearing was held August 15, 2007, in San Francisco. The government lawyers sheepishly told the judge that on that very day Secretary Chertoff was "signing-off" on U visa regulations (no coincidence, of course!). Despite this assurance from the government's lawyers, the judge nevertheless refused to dismiss any of the claims raised in the lawsuit. She ordered the government to provide monthly reports on their progress in getting the regulations and an application form issued, said hopefully this would get done promptly, and scheduled another hearing for January. As you know, the regulations were issued shortly thereafter and migrants could begin filing for U visas in October 2007. For the first time several thousand migrant crime victims were actually able to apply for U visas.

First Amended Complaint

Next we reviewed the public comments submitted to the USCIS in response to the interim U visa regulations and in February 2008, with the judge's permission, we filed a First Amended Complaint including several of the key issues advocates raised in their comments:

(1) The new regulations do nothing to "recapture" the 70,000 visas lost during the government's 7-year delay (the statute authorizes 10,000 visas per year);

(2) the regulations do not include procedures for applicants to apply for permanent resident status (though people who earlier had "interim relief" for three years are supposed to be able to apply for LPR status immediately;

(3) the regulations do nothing to accelerate the ability of people who should have been granted lawful permanent resident status a few years ago to apply for US citizenship sooner than the normal five year wait;

(4) the regulations provided no protection for derivatives of U visa applicants when either the crime victim or a relative of the crime victim was "aging out" by turning 21 (but would not have aged out if the U visas had been issued earlier);

(5) the regulations impose an unreasonable requirement that U visa certifications showing that the applicant is a victim of a crime and cooperated with a law enforcement agency must be signed by the head of the agency or someone designated by the head of the agency, rather than by the officers actually involved in the investigation or prosecution;

(6) the regulations only permit applicants to use law enforcement certifications signed within the past six months before the application is filed;

(7) the regulations improperly require that U visa derivative family members apply separately for annual work authorization and pay a fee when work authorization should be automatic and without a fee;

(8) the DHS (and ICE, CIS, etc.) itself fails to issue U certifications (that it requires applicants to obtain in order to file a U visa application) when DHS itself is the investigating agency of a crime (for example in immigrant smuggling cases that involve false imprisonment, sexual assaults, extortion, or crimes by DHS employees including Border Patrol, etc.) and

(9) the regulations (and the statute) do not permit the undocumented parents of a US citizen crime victim child to apply for derivative status, only the undocumented parent of an immigrant child crime victim (this violates the equal protection guarantee of the Fifth Amendment).

DHS's motion to dismiss

In March 2008 the government filed a comprehensive motion to dismiss all claims in the First Amended Complaint. The government argues, in summary, that (1) since the Secretary of Homeland Security may issue U visas in his "discretion," the government is free to issue regulations or not, (2) now that the government has issued regulations, no one can challenge the content of those regulations, (3) the government can handle the "age-out" problems raised in the First Amended Complaint any way that it wants, (4) the DHS can issue U certifications itself or not, as it sees fit, (5) the U visa law does not create a "private right of action" available to applicants, and therefore no one can ever sue the government over anything it does to implement the U visa law, no matter how illegal its actions may be, (6) the law's and regulation's failure to extend U visa status to the undocumented parents of US citizen crime victim children is rational and therefore Constitutional, (7) the government has no obligation to take remedial steps to address the injuries caused by its seven year delay in issuing the U visa regulations and application form, (8) the government can impose whatever restrictions it wants on who can sign law enforcement U visa certifications because the statute does not explicitly state that the government may not do so, etc.

Our opposition filed April 30, 2008 (copy attached) hopefully rebuts each of these positions. A hearing is scheduled in federal court in San Francisco on June 4, 2008, 9 am before Judge Phyllis Hamilton. We have filed a motion for class certification but the judge will not address our request until she has resolved the government's new motion to dismiss the case.

Since many of the arguments the government makes are the same ones they made in their 2007 motion to dismiss that the judge rejected, we are somewhat optimistic that several of our legal claims will not be dismissed. However, if the case is dismissed, we'll recommend appeal to the Ninth Circuit Court of Appeals. If the case is not dismissed, we will have the right to conduct depositions of government officials, and demand to receive copies of government documents relating to U visa policies and practices, and assume the DHS will then want to discuss a nation-wide settlement of our claims as typically happens when their motions to dismiss are denied in our major class action cases.

Several thousand migrant victims of violent crimes in the U.S. will benefit from this case annually by applying for U visas, and then lawful permanent resident status, thus ending their undocumented status, making it far easier for them to access legal remedies, work with lawful authorization, travel abroad legally thus avoiding the dangers of illegal entry, and being far more able to remove themselves from abusive and violent situations.

Please feel free to email Angela Viramontes aviramontes@centerforhumanrights.org or pschey@centerforhumanrights.org if you have any questions.

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