The Problem With the 'Victim Visa'

Jan. 31, 2013— -- Rosa Gutierrez, a 13-year-old girl living in Waco, Texas, was repeatedly raped two years ago by a 43-year-old man who was once her mother's boyfriend.

Along with her mother, Rosa, whose name we have changed to protect her identity, is residing in the country without authorization. Despite the fear of being deported, Rosa's mother turned her boyfriend of the time into the police. He is now serving a 35-year prison sentence for his crimes, thanks in large part to the testimonies provided by the two women.

But the trauma associated with the incident has not ended for the teen and her mother. Rosa, who was brought to the U.S. as a one-year-old, is not eligible to receive counseling for the abuse under government programs like Medicaid, because she is living in the country without authorization, according to their pro bono attorney Susan Nelson. And Rosa's mother, who was once financially dependent on her daughter's abuser, has found herself unable to find stable work without legal status.

The good news for these women is that there's a special visa, known as the U visa, intended to be used in cases just like these. The visa grants temporary status to undocumented victims of crimes and their close family members if they will cooperate with law enforcement. As part of the process, police or prosecutors are required to sign a form confirming that the victim suffered a crime and will cooperate with local authorities or has done so already.

The bad news, however, is that the district attorney in her town, Abel Reyna, rejected her request for the certification necessary for visa because of his interpretation of the law.

Herein lies one of the major problems with the so called U visa, says Susan Bowyer, the directing attorney of the Immigration Center for Women and Children, the agency which she says assists about one in every 10 victims who are awarded the U visa each year.

"A person can be a victim of a violent crime and cooperate fully with the police in one city but have no chance of getting a certification, while someone in a neighboring city can be knocked unconscious, not even witness the crime because she was unconscious, and be awarded the certification easily," said Bowyer. "It's hugely unfair, arbitrary, irrational, and inconsistent -- but it sure is better than not having it at all."

Like many immigration provisions, U visa law is mandated federally, but implemented inconsistently by local law enforcement. Some advocates, like Bowyer, say that more resources should be devoted to ensuring local law enforcement agencies can carry out U visa certifications consistently to make the program better serve victims in need.

Proponents of U visa say the program makes a difference because it often allows victims to be less financially dependent on their abusers, and more likely to come forward, by granting them four years of legal status, and allowing them to apply for permanent resident status after three years. Advocates say the program also encourages undocumented communities to cooperate with law enforcement.

"When immigrant women feel that coming forward about a crime could get them deported, they keep silent," said Mallika Dutt, a women's advocate and founder of an organization called Breakthrough.

Some cops, like the leadership in the Oakland Police Department (ODP), agree that it has helped them to build a healthier culture of reporting crimes in undocumented communities, where many offenses go unreported.

"We offer U visas as a way to assure them that they don't have to have any fear of us trying to get them deported out of the country," Capt. Johnny Davis of the OPD told The Bay Citizen. "We want to help them solve their crimes."

But another big problem with the visa, according to advocates, is that there simply aren't enough to go around.

Every year exactly 10,000 of these visas are given out. Most of the recipients are women, the majority are from Latin America, and the bulk of the cases involve domestic abuse, Bowyer says. The program, which was put in place in 2000, has hit its cap for three consecutive years. In 2010, there were 10,742 applicants, in 2011, there were 16,768, and in 2012, there were 24,788 -- more than twice the number of spots available. .

A provision to raise the U visa cap to 15,000 in the Violence Against Women Act was opposed last year by a handful of House Republicans who argued that the system is susceptible to fraud and that the bill violated a technical congressional rule, called a "blue slip." In short, House Republican leaders said bills that generate revenue need to originate in the House and because the visas impose a fee on applicants, no new visas could be introduced.

Senator Patrick Leahy (D-Vt.), who has led the fight to reauthorize VAWA, finally caved to Republican pressure, and nixed the provision which would increase the number of U visas.

"There's no blue slip question here," he told reporters at a VAWA press conference earlier this month. "So if [the U visa piece] is not there, let's pass all the rest of it. If I can get 90 to 95 percent of what I want, I'll take that and then fight for the other 5 percent."

The debate over U visas has been largely divorced from the larger debate over comprehensive immigration reform currently happening in Congress -- with one exception. Earlier this week, Senator Leahy pledged to tack the U visa increase onto the larger comprehensive immigration bill currently being discussed. None of the other eight Senators working on the new bipartisan framework have mentioned the increase as part of their plan.

But, prior to invoking the "blue slip" technicality, some Republicans had expressed cynicism about the growing U visa program and attempted to restrict the visas further by mandating that abuses be reported to law enforcement within two months of taking place.

"Most cases should not require the promise of a visa to get people to come forward to report crimes or provide witness testimony," said Ira Mehlman of FAIR of the Federation for American Immigration Reform, a group which seeks to lower immigration levels. "When someone comes forward in those situations, that is not the time for police to ask about immigration status and, as a matter of course, they do not. There is no need to offer rewards to people for them to simply do what is right."

Law enforcement agents aren't technically allowed to ask about a victim's legal status when responding to emergency calls, but this rule is not always followed by police. And regardless of how likely deportation is in these instances, fear over this prospect still inhibits witnesses and victims in undocumented communities from coming forward.

Susan Nelson, the Waco Texas attorney representing Rosa in her fight for a U visa application, believes despite her client's legal status, there's a moral imperative to help victims in Rosa's positions. Nelson says the claims that the system is susceptible to fraud is unfounded, given the fact that its very difficult to even qualify for the program because all crimes must be certified by prosecutors or the police.

Of the four U visa applications Nelson submitted to District Attorney Abel Reyna 's office over the last two years, all were rejected. Rosa's application sat on the desk of District Attorney Abel Reyna for 10 months before he rejected it, according to Nelson.

"U visas are not supposed to be a reward for testimony, but rather an insurance policy to make sure that justice is done," Reyna wrote on his office's Facebook wall in response to an article critical of how he handled the case. Reyna's spokesperson said he was unable to comment for this article due to a very busy court schedule this week.

Although Reyna refused to sign a certification after Rosa's case was closed, other local law-enforcement agents won't issue a U visa while the case is ongoing, because they fear the defendant will lose their desire to cooperate fully without the visa incentive, according to Susan Bowyer. She says part of the hesitation to sign a U visa certification has to do with how undocumented immigrants are viewed by law enforcement.

"The problem is in our country is we loathe undocumented immigrants, and we call them illegals and aliens, and so law enforcement feels very torn, and the question is fraught, about what to do when the victim herself is undocumented," Bowyer says. "And they have to sign under the certification under the penalty of perjury, so it puts a lot of pressure on law enforcement."

Luckily for Rosa, her attorney was able to appeal to other agencies to finally get her certification. Judge Ralph Strother of Wacos 19th State District Court finally issued the visa after Nelson approached local courts as a last resort.

"She didn't ask to be here or ask to be a victim," the judge told the Waco Tribune-Herald. "It was just the right thing to do."

But that doesn't mean Rosa will receive a visa. In just three months, the government has already awarded half of the visas allotted for this year.

"[Rosa and her mother] have some sense of relief now that they've gotten the certification, but we still have a long way to go," Nelson said.