Jurisprudence

When It’s Up to the Cops if You Get Your Visa

U visas were created to help immigrants report crimes, but the cops often don’t uphold their end of the bargain.

A silhouette of a woman carrying groceries and pulling a wheel cart stuck in the middle of a maze.
Photo illustration by Slate. Images by dannikonov/iStock/Getty Images Plus and Nosyrevy/iStock/Getty Images Plus.

On a winter day in 2016, Carolina Roman stepped into the Consulate of Mexico in Chicago, ready to head back to her hometown in Morelos, Mexico, after seven years of living in the country without documentation. It was a difficult decision for the 33-year-old mother of three. Roman had moved to the U.S. in 2009 and worked a series of minimum wage jobs in hopes of creating more opportunities for her children. She was reluctant to throw away the life she had built for her family in Harvey, Illinois, but she felt she had no other choice.

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In 2015, Roman had discovered that her daughter, a minor, had been raped by the father of her two younger sons. Despite her shock, Roman said, she reported the crime to the Harvey Police Department right away. She then remained helpful to law enforcement throughout the investigation and prosecution process, and ultimately, after a few months, her former partner was sent to prison for the crime. It was, to say the least, a stressful time for Roman and her kids, and their anxieties had been further exacerbated by the fear and uncertainties of living without documentation. By the winter of 2016, Roman had decided to move back to Mexico, away from the place where her daughter had suffered such a trauma and where they could face arrest and deportation any day. She was going to the consulate to get a vehicle permit so that she could drive her family from Illinois to Mexico.

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When Roman conveyed her situation, a consulate employee informed her that she should be entitled to a form of temporary legal residency called a U visa. It is a special kind of immigration relief offered to undocumented immigrants who have cooperated with law enforcement. Her actions after her daughter was assaulted qualified her, the consulate employee told her. And the visa could eventually lead to a green card.

Roman was intrigued. Obtaining legal resident status, she thought, might offer her and her children some much-needed stability and peace of mind. To start off her application, Roman would need to get a signature from the Harvey Police Department to prove that she had been helpful to the officers.

She submitted the certification request in early 2016. But for more than a year, Roman said, she could not get a signature from the police, who ignored her pleas for help after she and her attorney repeatedly visited, called, and emailed the department. “The police gave me the runaround,” Roman said.

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Roman is not alone. Tens of thousands of immigrants seek U visas after being victims of or witnesses to crimes. But their bid for relief and security can turn into a nightmare of anxiety and bureaucracy, due to the unwillingness or inability of local law enforcement officers to comply with their role in the process.

The U visa category was born out of lawmakers’ concerns for those going through the exact same predicament as Roman and her family. In 1994, Congress passed the Violence Against Women Act, the first comprehensive legislation in the U.S. that sought to address domestic violence and other crimes against women. Over the next few years, lawmakers realized that the original legislation did not offer enough protection for immigrant women, who would need to leave the country, sometimes without their children, if they reported being victims of gender-based violence. The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 further exacerbated the risk by making it easier to deport undocumented immigrations. As then­–Massachusetts Sen. Ted Kennedy noted in a 2000 congressional hearing, “Thousands of battered immigrants are again being forced to remain in abusive relationships, out of fear of being deported or losing their children.”

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To close the gap, Congress created the U visa in 2000, which ensured that victims or witnesses of domestic violence, sexual assault, felonious assault, and a number of other qualifying crimes would not be deported if they work with law enforcement to solve the crimes. The first step of the U visa application process includes getting a certification from an agency––a police department, a prosecutor’s office, a court, or another governmental department––that speaks to the applicant’s involvement in the investigation or prosecution process. This supposedly straightforward requirement, however, brings out another challenge that the federal regulation fails to address till this day.

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Under the official guidance set forward by the U.S. Department of Homeland Security, local agencies have complete discretion in deciding whether they want to sign a U visa form. They can enact internal policies to deny any request at will. In response to these lax rules, 15 states have enacted their own laws in an attempt to set a common standard across jurisdictions.

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In Illinois, where Roman lives, the 2019 Voices of Immigrant Communities Empowering Survivors Act now requires local agencies to approve all eligible U visa certifications within 90 days. Officials can only deny a request if there is no evidence that an applicant has been a victim or witness of a qualifying crime. If they do deny the request, they must provide a written notice to the requester outlining why the person does not qualify. Certifiers could be subject to civil and criminal liability if they fail to act in accordance with the state law.

“There are still a lot of places where law enforcement doesn’t know about the certification process,” said Leslye Orloff, the director of the National Immigrant Women’s Advocacy Project at American University, who contributed to the initial drafting of the 2000 U visa law. “And there are places that just won’t do it. They want to stay away from immigration law and they may be anti-immigrant.”

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Over the past decade, Orloff’s team has trained more than 7,300 law enforcement officers and prosecutors in 33 states on the role of local agencies in a U visa application. But even today, she said, she continues to walk into rooms of officers who either do not know the visa category or do not like the idea of helping immigrants obtain legal status, even though the 21-year-old rule exists to incentivize undocumented immigrants to come forward and assist cops. “If they want to fight crime in their communities, then excluding a whole class of people from protection is going to be unsafe to everyone,” Orloff said.

Antonio Flores, for example, has been an officer at the San Francisco Police Department for nearly four decades. He was resistant to the idea of certifying U visa applications when he first attended a mandated training with Orloff’s team in early 2000s, an NIWAP report shows. But then he saw their utility firsthand. According to the report, an undocumented young woman had fallen in love with a violent gang member who raped her, gave her drugs, and trafficked her. Fearing deportation, the woman was reluctant to come forward to the police. What finally got the case rolling was the encouragement from her mother, who previously received a U visa certification from local law enforcement based on a domestic violence case. The mother told her daughter to trust the police, and the daughter’s decision to share her story proved to be crucial to the investigation. With her help, the report said, Flores’ department was able to arrest the criminal and uproot a sex trafficking operation involving minors. Suspicious of the visa category at first, Flores eventually came around and said that such a policy that combines police work and victims’ services could lead to a win for everyone.

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Despite the visa’s proven benefits to law enforcement—the NIWAP found that immigrants who have received a certification and filed a U visa application are 73 percent more likely to participate in the criminal case and 50 percent more likely to file police reports if they experience future crimes—many agencies still decline to offer assistance. A 2018 report by the NIWAP shows that only 35 percent of law enforcement agencies, 68 percent of prosecutors’ offices, and 18 percent of courts said they sign U visa certifications. According to another survey by the project, the reasons officers often cite for not signing the form include that the criminal was not prosecuted, the crime happened too long ago, or the victim did not suffer enough injuries. A number of certifiers also expressed that they would refuse to provide a signature simply because the federal law gives them the authority to deny any request as they see fit. Unless a state law exists to provide more rigorous regulations, certifiers are under no obligation to cooperate with petitioners.

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Austin Kocher, a faculty fellow at Syracuse University’s Transactional Records Access Clearinghouse, carried out his own survey, interviewing sheriffs, police officers, and prosecutors about their opinions on U visas. He concluded that some officers are resistant to the process because of their anti-immigrant sentiments. “I would hear them say ‘I’m not racist, but I’m not going to help you stay in the country because you came illegally,’ ” Kocher said. “A lot of people who are in law enforcement just assume that immigrants are always lying and always trying to take advantage of the system.”

Even states that have passed legislation specifically intended to mitigate this kind of anti-immigrant attitude have had issues enforcing those laws. An analysis of documents obtained through Freedom of Information Act requests for this report shows that out of 16 Illinois agencies––police departments, sheriff’s offices, and prosecutors’ offices––that serve sizable immigrant populations, at least nine of them appeared to have violated the state law by either failing to provide timely responses to U Visa certification requests or imposing arbitrary internal policies to deny signatures to immigrants who have helped law enforcement.

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The Mount Prospect Police Department, for example, rejected seven out of 10 requests that it received in 2019 and 2020 because it has an internal policy to only assist petitioners who are “currently needed to facilitate the prosecution of an active criminal case,” according to records from FOIA requests. Among the immigrant victims who bore the consequences of Mount Prospect’s capricious rule are a woman who suffered a miscarriage due to domestic violence, a woman who was raped in her sleep and had to receive treatment for post-traumatic stress disorder, and the mother of a minor child who was sexually abused. In the last case, the Mount Prospect police refused to sign a second certification request even after the petitioner’s attorney pointed out that its reason for denial was contrary to the law. The department did not return calls for comment.

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“We’ve had this issue for years,” said Rocio Becerril, a Chicago-based immigration attorney whose client could not get a signature from Mount Prospect police. “It’s very, very arbitrary. When this happens, I just wait for these people to retire and get a new chief of police to maybe try again in the future.”

Becerril has also been trying to attain a certification from the Oak Park Police Department for another client who is also a survivor of domestic abuse. She has not gotten a response since she first submitted the request in August 2019. According to Becerril, the police repeatedly told her “I’ll get to it if I get to it.” Becerril has felt stuck as to whether she should send the department a confrontational email about the 90-day limit under the VOICES Act. Even with the law on her side, upsetting the police will likely only make her client’s process more difficult. Shatonya Johnson, the deputy chief of the Oak Park Police Department, responded to my request for comment on these cases: She told me that it should not take this long for someone to hear back before noting that the department was going through a transitional period and processing requests more slowly than usual.

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Other Illinois agencies also have policies that are contrary to the VOICES Act, records show. The Naperville Police Department denied 15 out of 19 requests and follows a written policy that largely disqualifies crimes that happened more than five years ago, even though the guidance says that there should be no time limit. The Elgin Police Department had the same protocol, resulting in 17 unjustified denials in the past two years, although it amended its policy in November to follow the law. In Boone County, State’s Attorney Tricia Smith said she would not provide certification if the case in question is still pending. The DeKalb County Sheriff’s Office would not sign the form if the case is closed.

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“That’s a Catch 22––you’re damned if you do and you’re damned if you don’t,” said immigration attorney Richard Gellersted. “If it was currently pending, they would deny it because he hasn’t fully cooperated, yet when the case concludes and he’s no longer needed, then they deny it for that.”

The list of violations goes on. The McHenry County State’s Attorney’s Office cited petitioners’ own criminal records, the age of the crimes, and the absence of prosecution as reasons for denials. In Rock Island County, the State’s Attorney’s Office declined to sign the form of a victim of armed robbery 120 days after the initial request because of a misspelled name in the police report. Records from the Will County State’s Attorney’s Office and the Champaign County Sheriff’s Office indicate the lack of any response to certain certification requests. Neither office provided clarification for the situations after repeated attempts to contact them.

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“It’s the leadership that sets the tone and the procedure even after the VOICES Act,” said Bethany Hoffmann, a lawyer involved in the drafting of the state legislation. “I think possibly some offices don’t want to do the extra work for the victims.”

If an agency violates state law on U visas, the pathways for the immigrant victim to rectify the situation is very limited, said Paulina Vera, a law professor at the George Washington University. The person could theoretically sue the agency, Vera said, but a lengthy lawsuit would be a big financial and emotional toll on the immigrant, who already has to pay for costly attorney fees for the visa and often risks retaliation from their abusers for reporting them to the police in the first place. Even under the VOICES Act, certifying agencies that violate the law would still have immunity from civil lawsuits or criminal prosecutions unless the petitioners can demonstrate willful or wanton misconduct on the officers’ part.

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About a year after Roman first requested a certification from the Harvey police, she still had not heard back from the department. In March 2017, Roman learned of a community meeting where a local alderman was going to give a statement about the city’s commitment to protecting its immigrant population.

Running out of options, Roman stood up and called out the speaker in front of about 100 attendees. “If you uphold supporting us as a community, how come I’ve been waiting for a year in order to get my certification signed?” she asked the alderman.

“I was so nervous because I thought the police was going to come arrest me and deport me,” Roman said. “But the only way that they would listen to me was if I probed them in public.” After the meeting, a police officer approached her and took down her number. A few days later, the police contacted Roman’s lawyer and sent over the signed form that it could have easily provided months ago. The department did not return calls for comment.

With the certification, Roman was finally able to send her U visa application to the U.S. Citizenship and Immigration Services. But even with the necessary local certification in place, her application still needs to be processed by the federal bureaucracy. Right now, there is a backlog of 142,000 U visa applications waiting for final approval, and even though Joe Biden has proposed raising the annual cap on U visas from 10,000 a year to 30,000 a year, the USCIS is currently handling applications submitted in 2016, according to multiple attorneys. It could easily take more than five years for Roman’s application to get approved.

Roman is currently earning her living as a factory worker at a candy warehouse. She said getting a U visa would greatly expand her opportunities to make a better living. “When I get the U visa, I am going to educate myself so I can get a better job and take care of my family the way I should be,” she said.

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