U Visas, T Visas, and Continuing Presence - Utah Crime Victim... · U Visas, T Visas, and...

© 2017 AEquitas: The Prosecutors’ Resource on Violence Against Women 1

AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN

U Visas, T Visas, and Continuing Presence

UTILIZING IMMIGRATION RELIEF TO ENHANCE

OFFENDER ACCOUNTABILITY


AEQUITASAVAILABLE 24/7 VIA TELEPHONE AND/OR EMAIL

TECHNICAL ASSISTANCE

• Case consultations

• Research

TRAININGS

• Live• Online

RESOURCES

• Recorded webinars

• Model briefs, motions, expert reports, etc.

• Sample VoirDire questions, expert examinations, etc.



SUPPORT

This project was supported by Grant No. 2015-TA-AX-K051 awarded by the U.S. Department of Justice, Office on Violence Against Women (OVW). The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of OVW.


LEARNING OBJECTIVES

◉Articulate the differences between the U Visa, T Visa, and Continuing Presence Status◉Utilize immigration relief tools to enhance

victim participation in the criminal justice system◉Promote victim safety by certifying that

an individual is a victim of a qualifying offenses


What barriers and fears exist for

immigrant victims of crime to report?



FEARS AND BARRIERS

◉Deportation●Dangers in home country◉Retaliation●Harm to themselves●Harm to their families◉Police will not listen / respond◉Loss of community ◉Loss of financial support


What challenges arise when working with

immigrant victims of crime?


CHALLENGES

◉Lack of trust with police and prosecutors ◉Misunderstanding of legal systems●Don’t know their legal rights

◉Difficulty maintaining contact◉Lack of cooperation◉Return to home country



as a Crime Fighting Tool

IMMIGRATION RELIEF


IMMIGRATION RELIEF

U Visa

T Visa

Continuing Presence


LEGISLATIVE INTENT

◉No one in the U.S. should be a victim of crime, especially violent crime◉Offenders prey upon the most vulnerable in our communities, often immigrants ◉We want crimes reported to police● Everyone in the U.S. deserves to be safe● Offenders that victimize the most vulnerable

must be held accountable


Community-police relations

Prosecutions

Reporting of crimes

Safety of victims and communitiesImprove


U VISA FACTS

◉Only 10,000/ year can be granted ◉If granted, U Visa is a 4 year stay◉Some U Visa holders will qualify for lawful permanent residency (LPR)◉Path to citizenship is possible, after LPR for 5 years + proof of good moral character


U VISA REQUIREMENTS

1. Victim of a qualifying crime2. Possesses information about the crime3. Has been, is being, or is likely to be helpful

a. Detection, investigation, prosecution, conviction, or sentencing

4. Crime occurred in the U.S. or violated U.S. law

5. Suffered substantial physical or mental abuse as a result



APPLICATION PROCESS

Certification

Application and Supporting

Documentation

Decision byDHS

Typically takes ~28 months


CERTIFICATION

◉Victim must submit signed certification to apply for a U Visa◉Law enforcement certification is just one part of the overall process it does not = citizenship ◉Can be “revoked”


WHO CAN CERTIFY?

◉ Federal, state, and local● Law enforcement● Prosecutors ● Judges, Magistrates,

Commissioners

◉ Departments of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC)◉ Child and Elder

Abuse investigators and agencies◉ Other government

agencies

“law enforcement” & “law enforcement agency” =



U VISA REQUIREMENTS• Qualifying criminal activity• Possesses information about the crime• Criminal activity occurred in the U.S. or

violated U.S. LawVictim

• Has been, is being, or is likely to be• Detection, investigation, prosecution,

conviction, or sentencingHelpful

• Substantial physical or mental abuse as a resultHarm


OTHER APPLICANTS

◉Parent, guardian, or ”next friend” can apply in certain circumstances●Victim is a minor or incompetent●Look to applicant re: helpfulness◉Bystanders victimization – very limited


QUALIFYING CRIMINAL ACTIVITY

Domestic Violence Kidnapping False imprisonment

Sexual Assault Abduction Blackmail

Rape Trafficking Extortion

Incest Involuntary servitude Witness tampering

Prostitution Slave trade Obstruction of justice

Torture Being held hostage Perjury

Female genital mutilation

Peonage Stalking

Felonious assault Fraud in foreign labor contracting

Manslaughter

Attempt, conspiracy or solicitation to commit crime or similar activity



HELPFULNESS

Applic

ant

Has been

Is being

Is likely to be

helpful

detection

investigation

prosecution

conviction

sentencing


MAKING DETERMINATION

◉Certifying agency determines “helpfulness”◉Helpfulness can include:●Calling 911●Providing a description of offender●Allowing photographs to be taken●Giving information about the offender’s

whereabouts●Statement about prior bad acts


NOT REQUIRED

◉Conviction◉Charges filed◉Offender arrested◉Testimony at trial◉Necessary witness◉Within Statute of Limitations◉Offender is identified◉Offender alive



HYPOTHETICAL #1

What if an immigrant victim reports being a victim of domestic violence and the offender is deported before he can be arrested?


HYPOTHETICAL #2

What if an immigrant victim of sexual assault cannot identify the offender, but gives a physical description and submits to a sexual assault forensic exam?


HYPOTHETICAL #3

What if a male victim of armed robbery testifies at the trial of the offender, but the offender is convicted of a lesser offense?



HYPOTHETICAL #4

What if a victim of trafficking is recovered during a sting operation and she provides a statement, but does not testify at trial?


CERTIFICATION QUESTIONS


“UNREASONABLY REFUSED”

◉Provide explanation◉Still can certify that applicant is a victim of qualifying offense and that s/he was helpful at one point◉DHS will provide applicant the opportunity to explain◉DHS makes the ultimate decision



Why do you think it is set up this way?


REASONS FOR REFUSAL

◉Fear◉Threats or intimidation◉Family pressure◉Family unity◉Financial ◉Known v. unknown◉Victim-offender dynamics

Totality of the Circumstances

Nature of Victimization

Fear of Offender

Trauma

Force, Fraud, and Coercion



WITNESS TAMPERING

◉Work together to detect signs● Change in frequency of contact● Missed appointments● Recantation or minimization

◉ Investigate● Follow up with victim● Contact victim advocate, immigration attorney,

others that had contact with victim● Interview friends, neighbors, and family● Jail calls


WHEN TO CERTIFY?

Uponreceipt?

After charges are

filed?

Upon conviction?


TIMELINE

◉Certification must be included in the initial application to DHS◉Once certification is received and

processed, the applicant’s file is flagged as a U Visa applicant • Immigration

proceedings will not be initiated

• Offender can not intimidate with threats



What are the effects of certifying early?

PROS CONS


PROSECUTION STRATEGIES



TOPICS

Screening and Certification

Discovery

Pretrial Litigation

Trial Strategies


What types of power and control do you see

in your cases?


IMMIGRATION RELATED ABUSE

◉ Refusal to file immigration papers ◉ Threats/ attempts to withdraw an

immigration case ● Family or work based visas◉ Forcing survivor to work with false

documents◉ Threats/ attempts to have victim deported◉ Calls to DHS to turn victim in or have

victim’s case denied


Power and Control

Threats of Deportation

Witness Intimidation


CERTIFICATION

◉Prosecutors can sign certification forms●Must be designee◉Any certifying agency can certify at any

time they have probable cause◉Policies regarding certification should

be discussed at partner meetings◉Certifying prosecutor should consider

not being trial prosecutor


DISCOVERY

Must provide defense with any materials within the state’s control that may effect the credibility of any witness or that goes to any witnesses motive to lie or bias● Is it within the State’s custody or

control?●Does it go to the witness’ credibility,

bias, or motive to lie?



What is considered within your custody

and/ or control?


WITHIN NOT WITHIN

◉Certification form◉Accompanying

documentation (e.g., police reports, photographs, medical records)◉Communications

from immigration attorney◉Attachments provided

to you

◉Application attachments not provided to you ◉ Immigration file

CUSTODY AND CONTROL


STATE v. MARROQUIN-ALDANA89 A.3D 519, 525 (ME 2014)

◉Court ruled there was “insufficient justification” to disclose additional documentation when the defense had the certification form◉Provided defense opportunity to cross-

examine victim and call credibility into question◉Court noted the “high level of

protection” given to documents filed with immigration



HAWKE V. U.S. DEP'T OF HOMELAND SEC.NO. C-07-03456 RMW, 2008 WL 4460241, AT *7 (N.D. CAL.

SEPT. 29, 2008)

“[T]he strict confidentiality of the Violence Against Women Act still applies to any petitions filed by Mrs. Hawke. While Mr. Hawke's Sixth Amendment right to Compulsory Process permits him access to some information held by the government, it does not permit him to receive absolutely privileged information like any records held by DHS here.”


MOTIONS TO COMPEL

◉Concede existence of certification◉Provide copy of certification and accompanying documents when in your custody and control◉Move to quash subpoena for immigration file ●Confidentiality protections ● Impermissible “fishing expedition”●Case law


Is the victim’s immigration status ever

relevant to the prosecution’s case?



ANALYZE CASE

• Did the offender chose the victim because of a real or perceived vulnerability?

Victim Selection

• Did the offender use the victim’s immigration status to commit a criminal act?

Criminal Act

• Was the victim prevented from reporting the crime to police because of their immigration status?

Escape Detection


VICTIM SELECTION

◉Chose a particular area of town to commit crime◉Target victims working in specific venues (e.g., agriculture, hospitality, or construction)◉Victimize known immigrant◉Instill vulnerability by jeopardizing victim’s immigration status


CRIMINAL ACT

◉Human trafficking◉Rape by threats◉Power and control within domestic violence relationship◉Threats as part of stalking or harassment◉Witness intimidation or tampering◉Robbery by threat



ESCAPE DETENTION

Overt and subtle threats●Deportation●”No one will believe you”●Financial ●Family cohesiveness

Challenges

Strengths


PRETRIAL STRATEGIES

◉Preview evidence for judge◉Brief complex legal issues◉Establish evidence that will and will not be admitted at trial◉Encourage pleas◉Requires thoughtful consideration of case well in advance of trial date



MOTIONS IN LIMINE

Immigration Status

• Exclusion• Limitation

Other Bad Acts

• Prior threats• Subsequent

threats or intimidation

Experts

• Victim Dynamics

• Immigration Relief


IMMIGRATION STATUS

◉Exclude if irrelevant (limited)●No immigration benefit provided●Not relevant to offender’s crime◉Cross-examination will be allowed as to U-Visa application●Limit scope●Opens the door to rebuttal evidence


PEOPLE V. ALVAREZALVAREZNO. G047701, 2014 WL 1813302, AT *5 (CAL. CT. APP. MAY 7,

2014), REVIEW DENIED (JULY 16, 2014)

“The visa was a tangential, collateral issue, and allowing evidence about it invited speculation about the legal status of both [victim] and, potentially, defendant, which was completely irrelevant to this case. The trial court was well within its discretion in excluding reference to the visa.”



OTHER BAD ACTS

◉Includes prior and subsequent “bad acts” ◉Does not need to rise to the level of criminal activity◉May go to prove motive, knowledge, intent, opportunity, or lack of mistake, self-defense, or accident◉Can be relevant to establish the “nature of the relationship”


EXPERT WITNESS◉Victim responses to trauma◉Dynamics of domestic violence

experienced by immigrant victims◉Relationships between offenders and

victims in human trafficking cases◉Victim protections under immigration

law◉Other subjects that may be outside the

common jurors understanding


STATE V. OLVERA-GUILLEN2008-OHIO-5416 (OHIO CT. APP. 2008)

◉Court allowed defense to call an expert witness to explain the U Visa process◉Prosecutor’s comments permissible:

“You know there is a very good reason why that U-visa program is in place because without it, people like him,

can have free rein. They rape, pillage and plunder a whole underclass of people in this country simply

because they are illegal aliens, knowing full well that they in their perpetual fear factor and their state of paranoia are not going to go running to the police.”



Where can you find an expert?


DYNAMICS IMMIGRATION

Experience working with immigrant victims● DV Shelter ● Advocates● Rape Crisis Center● Investigators

◉ Immigration attorney◉ Law Professors◉ Other attorneys that

have experience with immigration issues (e.g., family law, legal aid)

POSSIBLE EXPERTS

Best Practice: Do not use any expert that is involved with the case or has worked with the victim


When do you start talking about

immigration status?


Jury Selection

Educate

Uncover biases

Establish trust

Manage expectations

Leadership


OFFENDER-FOCUSED THEME

PREYING ON THE MOST

VULNERABLE

POWER OVER THE

POWERLESS

AMERICAN DREAM

BECAME A NIGHTMARE

PICKED THE PERFECT VICTIM

BETRAYAL OF TRUST,

FAMILY, AND THE LAW

KNEW THERE WAS NO

WHERE TO TURN


VICTIM TESTIMONY

◉Introduce the victim to your jury◉Recreate the reality of the crime ◉Illustrate fear◉Address immigration status and U Visa application◉Emphasize immigration abuse and threats of deportation and/or separation from family



CROSS-EXAMINATION

◉Prepare victim for anticipated lines of questioning◉Listen for the defendant to explicitly or implicitly accuse the victim of lying for an immigration benefit


REBUTTAL TESTIMONY◉Once the defendant has alleged that

the victim has a motive to lie, the prosecution can introduce the victim’s prior consistent statements about the charged crime◉Door to this testimony call be opened

at any time, but is likely done during cross-examination◉Be prepared with case law and a legal

brief, if appropriate


PRIOR CONSISTENT STATEMENTS

◉Non-Hearsay◉Not subject to Crawford◉Any consistent statement ● offered to rebut an express or implied

charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying

● to rehabilitate the declarant's credibility as a witness when attacked on another ground



What statements do you usually have from a victim of a crime?


VICTIM STATEMENTS

◉911 call◉Statements to first responders◉Interview by detective ◉Comments made to family, friends, or coworkers◉Conversation with service providers●Community-based v. Systems-based


Which of these statements would

normally be admissible?



When is a victim typically advised of immigration

relief benefits?

Victim statements including 911 call and statements to first responders,

friends, family, and advocate

Motive to Lie

Rebut charge that victim is lying to get U Visa

Use these statements

Establish Timeline


EXAMPLE REBUTTAL

◉“Defense counsel asked you about your application for a U Visa, when did you first hear about the U Visa?”● “After speaking with detective, I spoke

with an advocate at the police station”◉“Prior to speaking with the advocate, did you provide the detective with an recorded statement?”


PROS CONS


T VISAS FOR VICTIMS OF HUMAN

TRAFFICKING


T VISA FACTS◉ 5,000 T Visas allowed per year◉ For victims of severe forms of human

trafficking◉ Issued by the U.S. Citizenship and

Immigration Services (USCIS)◉ Allows victim to reside in the U.S. for 4 years● Employment authorization ● Derivative T Visas for certain relatives

◉ Possibility of adjustment of status to permanent resident at end of 3 years



MAJOR DIFFERENCE

T Visa Access

to Benefits


T VISA PROCESS

IdentificationContinuous Presence/

*Endorsement

Application and Supporting

Documentation

Decision by DHS

Typical length ~4 - 6 months


REQUIREMENTS

◉Applicant is a victim of severe form of trafficking◉Victim is in the U.S. because of trafficking●Responds to “reasonable requests for

collaboration” with investigation●Hardship upon return to home country



TRAUMA EXCEPTION◉At USICS’ discretionary, they may issue

T Visa without cooperation● Victim unable to cooperate due to

physical or psychological trauma◉Application must include an affirmative

statement from victim●Describing trauma ● Encouraged to provide evidence; e.g.

letter from professional who can attest to the victim’s mental state


CONTINUING PRESENCE


CONTINUED PRESENCE◉ Temporary immigration status provided to

victims of trafficking who are “sponsored” by federal law enforcement◉ LE initiates application immediately after

identifying victim; cooperation is not required◉Upon approval by Dept. of Health and

Human Services● Allows victim to access federal and state benefits● Work authorization● Cooperation is required to access these benefits



CONTINUED PRESENCECONT’D

◉Continuing Presence (CP) is granted for 1 year; can be renewed◉Does not guarantee any of form of long term immigration relief◉Can be revoked


GOING FORWARD

◉Hold offenders accountable by utilizing immigration relief tools to enhance victim participation in the criminal justice system◉Promote victim safety by certifying that

they are victims of qualifying offenses ◉Articulate the differences between the U

Visa, T Visa, and Continuing Presence

JaneAndersonAttorneyAdvisor

1100HStreetNW,Suite310Washington,DC20005

P:(202)596-4229F:(202)393-1918

[email protected]

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