For Shadow Victims of Violence, the “U Visa” Can Help

One of the biggest fears held by undocumented victims of physical or sexual abuse is that they will be treated like Isaura Garcia.

Two years ago, she called the police after her boyfriend shoved her, hit her and threw her out of the house. It wasn’t the first time. Garcia had been to the emergency room several times after he’d beaten her.

When the police arrived, she tried to explain in broken English what had happened. But the police arrested Garcia instead of her boyfriend, blaming her for the fight.

Garcia was fingerprinted and booked into jail. Under a new policy, known as Secure Communities, her fingerprints were sent to Immigration and Customs Enforcement, which determined she was undocumented.

The charges of assault were dropped once the police realized Garcia was the victim, not the perpetrator. But because she was already on ICE’s list, she was slated for deportation back to Mexico and away from her young son.

Once the ACLU intervened with a public protest, ICE dropped its deportation proceedings. Because she’s a domestic violence survivor, Garcia qualified for what’s known as a “U visa,” which allows victims of sexual abuse, human trafficking and other crimes to remain legally in the United States if they help law enforcement in the investigation, and one day apply for citizenship.

Garcia is currently living in Los Angeles, waiting for the paperwork to come through, her attorney said.

But even now, Garcia told the ACLU, had she realized that she could be deported after dialing 911, “I never would have called.”

Two Programs, Two Policies

The U.S. has issued U visas since 2008, as part of a provision under the Violence Against Women Act. Applications have spiked in the past few years. By law, only 10,000 may be issued each year, but last year U.S. Citizenship and Immigration Services, or USCIS, received more than 24,000 applications. The program is intended to encourage the cooperation of people in the community like Garcia, who can help police apprehend violent offenders.

But immigration attorneys say that there are many more victims of abuse who don’t come forward, or are arrested anyway and deported, because of the Secure Communities program, which launched in 2008 but went into effect nationwide this year. These attorneys say that the program works at cross-purposes to the U visa, driving victims of domestic violence and other crimes back underground.

Secure Communities works like this: When police officers arrest someone, they take their fingerprints. The prints are also sent to ICE, which can place a detainer on anyone who appears to be undocumented, and begin processing them for deportation.

ICE says its priority is to deport criminal offenders. But of the 400,000 people ICE deports each year, last year only 55 percent had criminal convictions. Earlier this year, ICE released 2,000 detainees to cut costs — most of whom didn’t lawfully need to be detained in the first place, outgoing ICE director John Morton told Congress.

The Chilling Effect

Local law enforcement’s involvement with ICE has made many Latinos more wary of local police, according to a recent survey (pdf) of both American and foreign-born Latinos. The survey was conducted by the University of Illinois Chicago in the metro areas of Chicago, Los Angeles, Houston and Phoenix.

Of those surveyed, 44 percent said they are less likely to contact police if they have been a victim of a crime, for fear that officers will ask about their immigration status. That number rises to 70 percent among undocumented immigrants, but remained high for American citizens and legal foreign residents.

Domestic violence victims are already less likely to report abuse than other crime victims, and immigration attorneys say that the increased threat of deportation, for themselves or their partner, can make it even less likely for them to call the police.

Often, victims want the abuse to stop — but they don’t want to subject their partners to deportation, especially if they have children together.

“Deportation is banishment,” said Julie Dinnerstein, an attorney with Sanctuary for Families’ Immigration Intervention Project. “It’s qualitatively different than a prison sentence. Nobody gets a life sentence for simple assault without a weapon, yet banishment is a lifetime sentence. And that is more severe than anyone would get for a simple assault.”

The Immigration Dragnet

For many undocumented immigrants who experience abuse, the threat of deportation is very real. Marisol Arriaga, a staff attorney at the Legal Aid Society in New York, said that her practice has already begun to shift in the last two months that Secure Communities has been in effect in that state.

In the past, Arriaga said her clients — usually victims of domestic violence or human trafficking — were referred to her by women’s shelters and advocacy groups.

Now, defense attorneys call Arriaga from Rikers’ Island, where abuse victims were arrested by police with their perpetrator, and then were held on an ICE detainer for deportation.

“It provides teeth to what we’ve already known are a batterer’s threats,” Arriaga said. “In the past, batterers would say, ‘I’m going to get you arrested and deported and keep the kids.’ Now, [Secure Communities] is creating a really easy mechanism to make that a reality.”

Arriaga said it’s also changed the way she counsels her clients on working with law enforcement. “I have to be honest with them. There is a possibility that you will get arrested, and that will lead to an ICE hold,” she said. “If that was one of my biggest fears, and I didn’t want to be separated form my children — even for five days, because it meant my batterer would get custody of my kids — I don’t know that I would make the call.”

ICE’s New Rules

It’s now against ICE policy to deport someone known to be the immediate victim or witness to a crime — particularly victims of domestic violence and human trafficking, according to a June 2011 memo issued by the office.

The memo instructs ICE officers, special agents and attorneys to “exercise all appropriate prosecutorial discretion” to avoid deporting witnesses and victims of crime. In cases where law enforcement books a domestic violence victim into jail — something that happens “regularly,” according to the memo — ICE agents should avoid processing them for deportation. (Read the full memo here (pdf).)

Since the memo took effect, ICE agents make decisions on whether to deport individuals “as appropriate, on a case-by-case basis,” said Dani Bennett, an ICE spokeswoman.

Bennett said ICE “works closely” with state and local law enforcement to help make them aware of the U visas. The office also has a hotline that immigration attorneys or people in the community can call to report deportation or detention concerns: 1-888-351-4024

Despite these policies, ICE’s changes “haven’t made much an impact, from my perspective,” said Kate Desormeau, a staff attorney at the ACLU’s National Immigration Project. The policy memo in particular is “a very weak end fix, and doesn’t give any comfort to people who know that ICE is still going to get their fingerprints when they get arrested.”

When U Visas Work

The U visas have helped many victims — often women — escape abuse.

Ester Flores was first brought to the U.S. from Mexico as a young child. She grew up in California and married her high-school sweetheart. But he used drugs, and became abusive, according to police reports from that time.

“It’s sad to say, but sometimes I would count the days, to see how many would go [by] before he would hit me,” she said. After enduring years of abuse, Flores finally found a way to leave her husband.

One day, she came home to find him hiding in the closet, waiting for her. He beat her until her face was bloodied and swollen. When she was able to escape, she fled with her son and called the police. Her husband was arrested, and ultimately deported.

An immigration center told Flores she might be eligible for a U visa. She applied in January 2011, and it came through in five months. “Everything changed in the blink of an eye,” she said. She could legally work, and found a job as a dispatcher for a locksmith company.

She got a driver’s license and plans to go back to school to earn a degree in cosmetology. She’ll be able to apply for residency next year. Her son is earning good grades in school.

“I’m stronger now, and I’m not scared,” she said. “I really appreciate life.”

A Long Wait

The rising number of applications has created a backlog for U visas, immigration attorneys say, that now leads to about a 15-month wait. Because applicants don’t yet have legal status, they aren’t allowed to work during that time, making it difficult for them to get by.

When the Violence Against Women Act came up for renewal last year, a Senate amendment was introduced to temporarily increase the number of U visas issued. House Republicans killed the bill, in part out of protest over the proposal. It was ultimately removed for the final version of the law, which was reauthorized in February this year.

There is a 2008 law that allows U visa applicants to receive work permits while they wait for a verdict on their immigration status. But USCIS hasn’t ever issued one, immigration attorneys say.

Applicants do wait a year or longer for their cases to be processed, USCIS said in a statement. “Due to the current processing time, USCIS is exploring options for getting work authorization cards into the hands of qualified applicants more quickly.”

While they wait for U visas, women with U.S. citizen children can apply for food stamps and rental subsidies for their kids, and can stay in shelters designed for families. But single women and men have fewer options, and often slip back into the underground economy, working under the table at a Laundromat or a restaurant and living in homeless shelters.

Stephanie*, an immigrant in New York, escaped an abusive relationship and applied last August for a U visa. She’s been waiting 10 months so far.

“In addition to the emotional scars of what happened, really only going back to work and feeling part of a working environment do you begin to put back the pieces of your life,” she said — something she’s struggled to do.

“You really feel in limbo. It’s been tremendously difficult to cope.”

*Stephanie asked that her name and identifying details be withheld to avoid further complications with her application.