How Do I Address Immigration Issues and Fear of Deportation?
Sometimes, farmworker sexual violence victims are citizens, permanent residents, guestworkers or other individuals who are lawfully present in the U.S. while other farmworkers are undocumented. Regardless of whether victims are documented, they may fear adverse immigration consequences if they participate in any kind of proceedings against the perpetrator. This is in part fueled by perpetrators who continually threaten to report victims and their family members to immigration enforcement and have them deported if they ever tell anyone about the sexual assault.
This fear also exists because of widespread immigration raids nationwide as well as partnerships between immigration and local law enforcement–known as 287(g) agreements–that permit local officers to enforce immigration law.11 In some of these communities, victims of crime have been reported to immigration authorities for deportation, which has a chilling effect on the willingness of immigrant crime victims to report the crime and cooperate with law enforcement. Know whether you are located in a jurisdiction that has a 287(g) agreement and how immigrant crime victims are impacted.
Additionally, be prepared to inform victims about your local policy regarding reporting to Immigration and Customs Enforcement.
Obtaining legal immigration status therefore dramatically aids victims because it may offer security, work authorization, family reunification and reduction of fear. Recognizing that fear of deportation and law enforcement hindered criminal investigations and prosecutions, Congress created three law enforcement tools to help encourage immigrant victims of crime to come forward and report crimes to law enforcement.
- The U Visa is for noncitizen victims of certain, designated crimes, including but not limited to rape, trafficking, domestic violence, sexual assault, abusive sexual contact, and sexual exploitation. The applicant must have suffered substantial physical or mental abuse as a result of a crime in the U.S., possess information about the crime, and be helpful to law enforcement. Federal, state or local law enforcement completes a certification form that verifies the individual has been, is being or will be helpful to law enforcement in their investigation or prosecution of a crime. The applications are adjudicated by U.S. Citizenship and Immigration Services. The U Visa’s duration is four years and provides for work authorization. After the third year in possession of the U Visa, the U Visaholder is eligible to apply for legal permanent residence. See 8 U.S.C. § 1513 (2008). You should note that:
- “Has been helpful” refers to victims who assisted in an investigation or prosecution that is now closed; there is no time limitation on providing a certification for closed cases;
- Law enforcement agencies nationwide are consistently determining “helpful” to have broad meaning, including reporting a crime and answering first responders’ questions;
- The certification is one small but important part of an extensive application that the victim completes and submits. A victim must also meet other eligibility criteria, pass a fingerprint and immigration records check and qualify for a waiver of any immigration violations; and
- Victims cannot submit a U Visa application without the accompanying law enforcement certification; thus, law enforcement plays a critical role.
- The T Visa is for noncitizen victims of human trafficking, which generally is forced labor, forced prostitution or prostitution of someone under 18 years of age. An applicant must also have complied with reasonable requests in the investigation or prosecution of the trafficking; be present in the U.S. on account of the trafficking; and would suffer extreme hardship if removed from the U.S. Federal, state or local law enforcement completes a certification form regarding the crime and the victim’s compliance with reasonable requests. The applications are adjudicated by U.S. Citizenship and Immigration Services. The T Visa’s duration is three years and provides for work authorization and public benefits after which time the T Visaholder may apply for legal permanent residence. See 22 U.S.C. § 7101-7102 (2008). You should note that:
- Compliance with “reasonable” requests depends on the totality of the circumstances, such as general law enforcement practices and the victim’s fear, maturity and extent of trauma suffered;
- Victims are eligible based on compliance with reasonable requests in the investigation OR prosecution; therefore, a full prosecution is not required. A certification is appropriate even in cases where an investigation is conducted and the trafficker accepts a plea bargain or if there is insufficient evidence to warrant a prosecution.
- Similar to the U Visa, the certification is just one part of an application that requires the victim to submit extensive corroborating evidence. A victim must also meet other eligibility criteria, pass a fingerprint and immigration records check and qualify for a waiver of any immigration violations; and
- Victims may submit applications without a signed law enforcement certification provided they submit other forms of proof of compliance with reasonable requests for assistance from law enforcement, though your assistance makes the process easier for victims.
- An S Visa is available to persons who have knowledge of criminal activity, are assisting law enforcement with the investigation or prosecution and whose presence in the U.S. is necessary for the case. Unlike the other options presented here, the individual does not apply for this visa; a law enforcement agency applies for it on behalf of the individual. 8 U.S.C. § 1255(j)(2) (2008).
Designate someone at your agency to complete U Visa & T Visa certifications. The U Visa certification form instructions state that a certifying official is “the head of the certifying agency OR any person in a supervisory role who has been specifically designated by the head of the certifying agency to issue a U Nonimmigrant Status Certification on behalf of that agency OR a federal, state or local judge.” See Form 918B, U Non-Immigrant Visa Petition. If the certification is not signed by the head of the agency, then evidence of the agency head’s written designation of the certifying official must be attached to the certification. See Instructions for Form 918B, U Non-Immigrant Visa Petition. We suggest that you designate a victim witness coordinator who already has the position and authority to address victims’ needs.
Immigration status generally. Recognizing the justifiably heightened sensitivities that immigrants may have on this topic, issues related to immigration status should be addressed. However, asking victims about immigration status during the early part of your investigation may result in fear and withdrawal, as many immigrants are aware that their lack of status is often used to retaliate against them for bringing criminal and/or civil lawsuits. Once you have established a good rapport and made it clear that you will not report the victim’s immigration status to any other agency, it may be appropriate for you to educate immigrant victims about potential immigration remedies for undocumented victims of sexual violence, such as U, T or S visas. It may also be appropriate to refer the victim to a local immigration attorney.
Do not report victims to immigration enforcement. You will destroy any trust you have within farmworker and immigrant communities. You will undermine the purpose of immigration relief such as S, T and U Visas specifically created to encourage noncitizens to come forward and report crimes against them.
Encourage victims to come forward. Create brochures and radio public service announcements for the farmworker community to educate them of their rights and your role in assisting them. Inform your multidisciplinary team and partnering farmworker organization that your agency is willing to sign certifications for immigration relief and make that person’s contact information available.
- Who else in my agency should be made aware of these law enforcement tools to reduce fear of immigration and law enforcement?
- > Who in my agency has completed a certification for a U or T Visa?
- Who is most appropriate in my agency to be designated as the authorized person to complete U and T Visa certifications?