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U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimization 

Wednesday, Mar 16 2011
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Valencia took out a restraining order against McCain after the incident, but McCain says his boyfriend relented and allowed him to stay overnight several times over the next three weeks. "We were spending time together and trying to reconcile," he says. Then, suddenly, Valencia told McCain he never wanted to see him again.

McCain didn't find out until months later what he believes is the reason for his sudden rejection. Assistant District Attorney Brian Bringardner revealed in an e-mail to McCain's public defender a month before the trial in the summer of 2009 that Valencia "has been told about the option of getting a U visa. I don't know if he has actually applied for one."

During the trial, McCain's public defender argued that Valencia had hit McCain first, and Valencia was pushing forward with the charges only because he wanted a U visa. The jury apparently bought it, acquitting McCain of the misdemeanor domestic violence charge. Still, the DA's office signed off on Valencia's application, Bee says, adding, "We have no control over what the jury is going to do."

"I was absolutely dumbfounded to find out there was such an opportunity" for illegal immigrants, McCain says. "I'm not sure I wouldn't have done the same thing, being in his position. You tried [to become legal] for so long, and it's like a carrot in front of your face." McCain has since moved to Colorado and is no longer in contact with Valencia.

That trial is one of many in San Francisco courts where the U visa has come up. In another 2009 trial, Olegaria B., a Mexican immigrant, accused a Yemeni taxi driver of forcing her to give him a hand job on the way to a New Year's party, public defender Stephanie Wargo says. The friend who hosted the party testified that Olegaria had joked about the incident at the time. But a few days later, she returned to the host's house and asked her to write an affidavit stating she had seen the taxi driver drop her off. The woman, who'd hadn't seen the cab, refused. Olegaria then asked her friend's teenage daughter to write a statement, but she also refused.

Wargo argued to the jury that Olegaria was fabricating the charges of sexual assault to get a visa, which could allow her to bring a child in Mexico to the United States. "I would say the [visa] was the icing on the cake in our case, because she had so many credibility problems," Wargo says. The jury hung, and the district attorney didn't refile charges. Still, Bee says she signed the U visa certification.

The Ninth Circuit District Court ruled in the 2004 U.S. v. Blanco decision that "special immigration treatment ... was highly relevant impeachment material," meaning evidence that can discredit a witness. Yet U visa advocates argue that information about victims seeking the visa is protected under the Violence Against Women Act. They say allowing information about the visa into court hurts legitimate victims by casting doubt on their testimonies — especially in sexual assault cases, where a trial often comes down to whether a jury believes the man or the woman. "I think they're just waving a flag around that will cause reasonable doubt," says immigration attorney Bowyer. "Honestly, most clients call the police before they've ever heard about the U visa."

If witnesses' pending visas are used against them in court, "we go back to where we were before Congress created the U visa," says Leslye Orloff, an attorney and vice president of Legal Momentum, a Washington, D.C.-based legal defense organization for women, who helped legislators craft the law. She says that means perpetrators may go unpunished: "If defense attorneys make that decision [to mention the U visa in court], there may be more legislation needed to cut off their ability to do that."

It's hard to tell whether U visa fraud is truly common, or whether defense attorneys are merely doing a good job of making it seem so. If victims commit perjury or file false police reports, they are susceptible to prosecution and deportation. Plus, some advocates warn applicants they are exposing themselves on their applications by alerting the government that they're in the country illegally. That seems to be unfounded paranoia. USCIS spokeswoman Sharon Rummery says the agency doesn't tell immigration enforcement officers about the applicants it rejects. Attorneys concede that, so far, USCIS has kept its word. Clients whose cases are rejected merely return to living under the radar. Nothing gained, nothing lost.

Mardoqueu Silva never found out whether the man who held a pistol to his head 16 years ago went to jail. But two years ago, his immigration attorney told him to find out whether the police still had a record of the incident. After a three-hour search, a police record room staffer set the official report before him: the 1995 armed robbery of a Geneva Pizza deliveryman in Visitacion Valley.

Silva's attorney mailed his U visa application in September 2009. Six months later, Silva got a call. The thug had done Silva the biggest favor of his life. He and his wife were in. He considers it a godsend: "I couldn't believe something so good could come out of something so bad."

Last year, USCIS reached the 10,000 cap on U visas for the first time. It looks like the agency is on target to meet it again in the 2011 fiscal year, having received 3,331 applications in the first quarter. Anti-immigration groups say that's a lot of work permits in a time that the United States doesn't have enough employment for its citizens. "With unemployment rates the way they are, I think it's hard to justify bringing more workers in for jobs that Americans otherwise would be doing," says Gretchen Pfaff of the Santa Barbara–based Californians for Population Stabilization. "You have to consider the chain migration that comes with that. They can bring in their immediate family, and all those people are now in America needing those jobs."

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Lauren Smiley


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