U.S. Citizenship and Immigration Services, the division of the Department of Homeland Security that governs lawful migration into the United States, has greatly increased the number of visas granted to undocumented victims of such crimes as domestic violence and rape. The measure is designed to aid prosecutors in securing witnesses and convictions.
In a four-month period starting in December, USCIS issued 9,500 visas of that type, commonly called the “U Visa.” That’s more than the 8,660 issued all in all of fiscal year 2009, which ended in September. The increase, which comes despite the ongoing political fracas over immigration, signals that the government and prosecutors view the visas as an essential tool when prosecuting alleged criminals. Skeptics worry about the potential for abuse of the visas — that they could be used to reward undocumented immigrants clever enough to dupe law enforcement and possibly put innocent people in jail.
The visas, which are also available to victims’ family members, give recipients legal status for four years and can be renewed, and also allow them to apply for permanent residency after three years. The government caps individual U Visas at 10,000 per fiscal year, but that figure does not include victims’ family members. Pending applications not processed during the current fiscal year are rolled over onto a waiting list for the next year.
Kristen Zipple-Shed, a staff attorney at the St. Frances Cabrini Center for Immigrant Legal Assistance, an affiliate of the Catholic Charities of the Archdiocese of Galveston-Houston, argues that the visas are invaluable in seeking justice for a uniquely vulnerable population. In addition to domestic violence and sexual assault, qualifying crimes include sexual exploitation, kidnapping, incest and genital mutilation.
“They are vulnerable in the criminal justice system, and they are vulnerable in the immigration system," she says. "People who don’t have status might otherwise be afraid to contact law enforcement if they were a victim of a serious crime. They might be afraid to cooperate with police or testify in court."
Others want the government to prove the visas are being used for their intended purposes.
“It could create an incentive to offer information to just get the reward of residency more than an incentive to report crime information,” says Bob Dane, with the Federation for American Immigration Reform, or FAIR. “Reporting crime as you see it is a civic responsibility, after all — we’d hate to see it become a litmus test for whether you get residency.” While FAIR supports legitimate uses of the visa, Dane says, “there is often times lots of abuse, and [there are] unscrupulous attorneys who advise their clients how to use one category of visas which we have been designated for an entirely different purpose.”
Zipple-Shed maintains that a multi-tiered system of checks and balances helps prevent fraud, including requiring what USCIS considers a “certifying agency” to submit affidavits that attest to a victim's allegation. Certifying agencies can include local, state and federal law enforcement officers, counselors, district attorneys offices and medical personnel. “It’s not just a claim that a person who is a victim makes,” she says.
Dane cites the potential for “visa creep” over the years, saying that the U Visas foment fraud similar to that involved with the H1B visas, which were intended to recruit high-tech workers. “What started out as somewhat of a sensible purpose over the years has basically become used and abused on a wholesale basis to displace U.S. workers with computer science and math engineers from China, Pakistan and India,” he says. “So we would certainly keep an eye on the U Visa.”
Maria Garcia-Upson, a spokeswoman for USCIS, says the increase in approvals does not reflect a lax screening process but rather the government’s increasing ability to slice its backlog of all visa applications, not just U Visas. Moreover, in the years leading up to a presidential election, she says, the agency always witnesses a surge in all applications, as people applying wonder what immigration laws will change under a new administration. USCIS also raised its fees for citizenship and visa applications in 2007, she says, which precipitated the onslaught of applications filed before the increase took effect.
More of a concern for defense attorneys is the potential for witnesses to exaggerate claims or promulgate fabrications as a means of finding a safe way to stay on this side of the border. “You know that the temptation is certainly there,” says Roberto Balli, a criminal defense attorney in Laredo, a city that for many immigrants is their first stop in the U.S. Balli says the “word on the street” is that being a victim can get you a visa.
Though advocates point out that the police must vet any allegation, the opportunity remains, Balli says, particularly in sexual crimes. If a woman alleges sexual assault after a consensual encounter, for instance, DNA evidence could be used to bolster the allegation. “I am not saying that the majority of people who are getting these visas are making it up — by no means," he says. "What I am saying is that temptation is there to do it.”
The granting of a U Visa also can undercut the credibility of a witness credibility, just as the lack of such an incentive adds credibility, says Balli, who is also a former prosecutor in the Webb County District Attorney’s Office, where he headed the domestic violence unit for three years.
In 2004, Balli prosecuted a case against Maria Bondac, a Laredo resident who lured pregnant Mexican women to the border town of Nuevo Laredo, Tamaulipas, on the promise of helping them find adoptive parents in Texas for unwanted children. Instead, Bondac smuggled the women across the border in intertubes, then offered to buy their babies for money or gifts, intending to use them as a part of an illegal-adoption scheme.
In that case, Balli says, one of the witnesses refused the U Visa, which strengthened the case against Bondoc and helped secure the conviction. “They didn’t come to the United States to live. They came to the United States to give up their babies through adoption,” Balli says.
Notwithstanding the offer of a visa, the number of victims willing to speak out surprises some in law enforcement. It usually happens when they reach a “crossroads,” says Laredo Police Investigator Joe E. Baeza.
“We encounter a great number of women who are here illegally [and] who either refuse to come forward and press charges or even call the police at all,” he says. “[Then] it reaches a impasse, where it can’t go on any longer. They are convinced by their own children or they reach a point of no return.”