Immigrants without legal status are often vulnerable to crime, because they’re afraid of going to law enforcement and being deported. This is why Congress authorized a special program called the U visa almost 20 years ago. It enables them to remain in the U.S. and work if they can prove they were helpful to investigators or prosecutors.
“It helps create community partnerships with law enforcement and helps keep perpetrators of violence off the street,” said Suzanne Tomatore, coordinator of the Immigrant Justice Project at the City Bar Justice Center.
The U visa was part of the Victims of Trafficking and Violence Prevention Act of 2000. It’s grown so popular that last fall there were 87,000 applications pending, nationally, because the government has a cap of 10,000 U visas each year. This means applicants now wait years for approval, and a few thousand applicants each year are denied.
Now that Pres. Donald Trump is strengthening border protections and limiting travel, attorneys who deal with victims of domestic violence worry their clients will be too afraid to apply for U visas. They also describe tremendous anxiety among those who have already applied and are waiting for final approval.
“They’re worried that somebody’s going to come to their door and pick them up and move them from the United States and separate them from their children who, many times are U.S. citizens,” said Susanna Saul, managing attorney of Her Justice, a nonprofit legal service organization for low income women. “It’s hard to give any assurance now.”
Waiting in Fear
Michelle is one U visa applicant who is living with that anxiety. She would not give her real name, or even her country of origin — except to say that she is from the Caribbean — because of her immigration status.
In 2014, Michelle said her husband was beating her on a regular basis. But she was too afraid to call the police. “At that point I had overstayed my visa,” she explained. “He’s the person who’s paying the bills... I felt like there was nothing for me to do and just accept it.”
But when her son told his preschool teachers about the abuse, everything came out in the open. Michelle was questioned by the Administration for Children’s Services. Despite her being in the U.S. unlawfully, she learned she could qualify for a U visa because she was a victim of domestic violence.
Michelle eventually got an order of protection against her husband and a letter from the Administration for Children's Services stating that she had cooperated with law enforcement. But that was two years ago. She and her now seven-year-old son are still waiting for a U visa.
In the meantime, they're staying at a homeless shelter near Midtown Manhattan where Michelle said they sometimes don't have heat or hot water and also don't have a kitchen.
“To be honest, like, I prefer to be beaten,” she said, adding that at least she would have permanent housing, clothes and the ability to cook for her child.
She also worries Pres. Trump could have her deported, because her application for a U visa is now in the hands of the federal government.
“I’m in a shelter. So for me it’s easy for them to just come and get me,” she said. “And what’s going to happen to my kid? It’s terrifying.”
Tomatore, of the City Bar Justice Center, said she’s been telling women like Michelle that they should be safe from deportation if they’ve already filed an application for a U visa. “It will offer a defense to removal,” she explained. “So it does protect the individuals who have applied.” She also urged others to apply.
Attorneys who represent immigrant crime victims were spooked recently when ICE agents arrested a woman in Texas who was reporting domestic abuse, though it's not known if she was seeking a U visa. The government said the woman had previous criminal convictions.
Nonetheless, attorneys believe the U visa program is safe because it can’t be scrapped by the president alone. Changing it would take approval from Congress.
Two Republican lawmakers — Sen. Chuck Grassley and Congressman Bob Goodlatte — did send a letter to the Department of Homeland Security in December asking about the potential for fraud in the U visa program. Neither would talk to WNYC about whether this means they intend to propose any changes.
Regardless of their concerns, New York Republican Congressman Dan Donovan believes the program is worthwhile. He was previously the Staten Island district attorney, and saw victims who cooperated enough to qualify for U visas.
“I thought it was very worthwhile and I suspect it’s hard to measure how many lives were protected, or how many people were not abused further because of the program,” he said.
WNYC asked the White House if Pres. Trump has any opinion on the U visa program, but we didn’t hear back.
Problems in Family Court
Advocates for victims of domestic are also concerned about another, local issue relating to U visas. Late last year, the Fund for Modern Courts released a report finding “significant confusion” among the city’s family court judges when crime victims ask them to sign certifications for U visas.
“The problem that we face with some family court judges is that they think that they are making immigration decisions,” said Terry Lawson, director of the family and immigration unit at Bronx Legal Services. “They don’t fully understand what their role is in this process. And so I’ve had judges that have denied my request for reasons that really don’t make sense.”
The certification is like a letter of recommendation, stating a victim has cooperated with law enforcement. It’s a crucial part of the application, which is sent to United States Citizenship and Immigration Services for final approval.
Here in New York, certifications can be signed by district attorneys, the NYPD, the Administration for Children’s Services and a few other agencies. The city has taken steps in recent years to train its agencies about the process.
But family court judges are not controlled by the city, and each judge may have different interpretations of the guidelines. For example, Judge John Hunt in Queens wrote an opinion last year in which he denied a certification for a U visa because he thought the victim should have asked the NYPD, instead. The judge declined a request for an interview by WNYC.
It’s hard to know how often family court judges deny requests for certification, because the court system doesn’t keep any records of their decisions. But WNYC found other data indicating victims may be reluctant to ask a family court judges for help with U visas.
In 2016, more than 2200 requests for U visa certifications were submitted to district attorneys, and city agencies including the NYPD. But only 110 requests were made to family court judges in all five boroughs.
“I’m surprised it is as low as it is,” said Lawson. She said the numbers could mean attorneys are steering clients to other agencies, when possible, because of concerns about some family court judges. And not all requests for certification are appropriate for family court, depending on the case.
Lawson is a member of the Advisory Council on Immigration Issues in Family Court, which is planning to give courts additional U visa guidelines soon.
That help is welcome, according to Ann Marie Jolly, Deputy Administrative Judge for New York City Family Court. She said judges already receive training on U visas but, "each judge interprets the facts and the law based on what they’re presented with.”
She also said she would look into tracking what happens to each request for U visa certification. “We have been recognizing the need to maintain data,” she said.
Getting the Visa
Victims who eventually receive a U visa said it can make an enormous difference in their lives.
In 2011, a young Dominican immigrant who had overstayed her visa said she was routinely beaten by her boyfriend. She asked that we call her Maria because she's still afraid of him.
Maria went to the police and the Bronx district attorney. But the criminal case against her abuser was taking a long time. Her attorney, Terry Lawson, encouraged her to turn to a family court judge to get her U visa certification signed because she had already gone there for an order of protection.
A year later, Maria got a U visa and later she received a green card, enabling her to gain permanent legal status. She now works and attends college.
“This is sort of like, life-giving me something good after going through something bad,” she stated.
She said her abuser eventually spent several months in jail, once the criminal case was resolved. But attorneys who work with survivors of domestic violence said many crime victims don’t want to go that route.
"There are a lot of undocumented immigrants, especially now, who are wary of going to NYPD, who are wary of cooperating with the district attorney," said Saul, of Her Justice.
But family court is part of the civil system. Saul said this makes it a preferred choice for victims who also don't want their abusers to get a criminal conviction and wind up being deported, cutting off financial support.
Given the current anxiety in immigrant communities, she said immigrant victims may need family court more than ever to help them get on the path to legal status.