Saturday, May 3, 2008

U Visa Litigation Update

To: Advocates assisting immigrant crime victims
Fm: Peter Schey, Center for Human Rights and Constitutional Law
Subject: Update on the "U visa" litigation (immigrant victims of violent crimes)

This is an update on the U visa litigation, Catholic Charities CYO v. Chertoff, Cv. No. 07-01307-PJH, pending in the United States District Court for the Northern District of California. This case has already provided benefits for several thousand abused migrant crime victims, and we hope will provide a remedy for several thousands more in the future.

Background

In summary, the U visa law was passed by Congress in 2000 to provide visas for undocumented migrant victims of serious crimes who cooperate with law enforcement to put violent criminals in jail. An applicant may be granted a U visa for past, present, or anticipated future cooperation with the investigation OR prosecution of one of several serious crimes defined in the statute. See attachment for details. After an immigrant has had U visa status for three years, the immigrant can apply for lawful permanent resident status, and five years after that for citizenship.

We first sued DHS Secretary Chertoff in 2005 in the case entitled Rodriquez Ruiz v. Chertoff, Cv. No. EDCV 05-0966 (Central District of California) because after five years the DHS had still not issued U visa regulations or an application form, and instead was only issuing something called “interim relief’ to a small number of applicants. 

We agreed to dismiss that case in early 2006 after (1) USCIS agreed to issue a policy memorandum stating that when a U visa was approved in the future it would be back-dated to the time when the applicant was granted “interim relief” so that the required three years of U visa status before an applicant may apply for lawful permanent resident (green card) status would commence when the applicant was granted “interim relief,” rather than later when granted U visa status, and (2) USCIS convinced Congress to give them until June 2006 to issue the U visa regulations.

Filing of current litigation

When USCIS failed to issue regulations in 2006, we again sued in March 2007, this time in federal court in San Francisco (Catholic Charities CYO v. Chertoff, Cv. No. 07-01307-PJH). Co-counsel includes the Asian Pacific Islander Legal Outreach (San Francisco), the Public Law Center (Santa Ana, CA), Central American Resource Center (Los Angeles), pro bono counsel Bustamante and Associates (Los Angeles), pro bono law professor James Eyster, and Sanctuary for Families (NY).

Plaintiffs include several organizations serving migrant crime victims including our domestic violence project Voces Unidas (Voces Unidas provides legal assistance and technical support on matters involving immigrant crime victims and domestic violence— see www,vocesunidas.org for information including a database of resources available to advocates and immigrant victims of violent crimes and survivors of domestic violence), Catholic Charities CYO of San Francisco, International Institute of the East Bay, Sanctuary For Families, the Diocesan Migrant & Refugee Services, Inc. (El Paso), and eighteen migrant crime victims eligible for U visas, most residing in the Bay Area. The main focus of the new lawsuit, brought as a nationwide class action, was the USCIS’s failure for seven years to issue U visa regulations and an application form, or to take steps to remedy the 7-year delay in issuing U visas.

In June 2007 the government filed a motion to dismiss all claims. We filed an extensive opposition in July. A court hearing was held August 15, 2007, in San Francisco. The government lawyers sheepishly told the judge that on that very day Secretary Chertoff was “signing-off” on U visa regulations (no coincidence, of course!). Despite this assurance from the government’s lawyers, the judge nevertheless refused to dismiss any of the claims raised in the lawsuit. She ordered the government to provide monthly reports on their progress in getting the regulations and an application form issued, said hopefully this would get done promptly, and scheduled another hearing for January. As you know, the regulations were issued shortly thereafter and migrants could begin filing for U visas in October 2007. For the first time several thousand migrant crime victims were actually able to apply for U visas.

First Amended Complaint

Next we reviewed the public comments submitted to the USCIS in response to the interim U visa regulations and in February 2008, with the judge’s permission, we filed a First Amended Complaint including several of the key issues advocates raised in their comments: 

(1) The new regulations do nothing to “recapture” the 70,000 visas lost during the government’s 7-year delay (the statute authorizes 10,000 visas per year);

(2) the regulations do not include procedures for applicants to apply for permanent resident status (though people who earlier had “interim relief” for three years are supposed to be able to apply for LPR status immediately;

(3) the regulations do nothing to accelerate the ability of people who should have been granted lawful permanent resident status a few years ago to apply for US citizenship sooner than the normal five year wait;

(4) the regulations provided no protection for derivatives of U visa applicants when either the crime victim or a relative of the crime victim was “aging out” by turning 21 (but would not have aged out if the U visas had been issued earlier);

(5) the regulations impose an unreasonable requirement that U visa certifications showing that the applicant is a victim of a crime and cooperated with a law enforcement agency must be signed by the head of the agency or someone designated by the head of the agency, rather than by the officers actually involved in the investigation or prosecution;

(6) the regulations only permit applicants to use law enforcement certifications signed within the past six months before the application is filed;

(7) the regulations improperly require that U visa derivative family members apply separately for annual work authorization and pay a fee when work authorization should be automatic and without a fee;

(8) the DHS (and ICE, CIS, etc.) itself fails to issue U certifications (that it requires applicants to obtain in order to file a U visa application) when DHS itself is the investigating agency of a crime (for example in immigrant smuggling cases that involve false imprisonment, sexual assaults, extortion, or crimes by DHS employees including Border Patrol, etc.) and

(9) the regulations (and the statute) do not permit the undocumented parents of a US citizen crime victim child to apply for derivative status, only the undocumented parent of an immigrant child crime victim (this violates the equal protection guarantee of the Fifth Amendment).

DHS’s motion to dismiss

In March 2008 the government filed a comprehensive motion to dismiss all claims in the First Amended Complaint. The government argues, in summary, that (1) since the Secretary of Homeland Security may issue U visas in his “discretion,” the government is free to issue regulations or not, (2) now that the government has issued regulations, no one can challenge the content of those regulations, (3) the government can handle the “age-out” problems raised in the First Amended Complaint any way that it wants, (4) the DHS can issue U certifications itself or not, as it sees fit, (5) the U visa law does not create a “private right of action” available to applicants, and therefore no one can ever sue the government over anything it does to implement the U visa law, no matter how illegal its actions may be, (6) the law’s and regulation’s failure to extend U visa status to the undocumented parents of US citizen crime victim children is rational and therefore Constitutional, (7) the government has no obligation to take remedial steps to address the injuries caused by its seven year delay in issuing the U visa regulations and application form, (8) the government can impose whatever restrictions it wants on who can sign law enforcement U visa certifications because the statute does not explicitly state that the government may not do so, etc.

Our opposition filed April 30, 2008 (copy attached) hopefully rebuts each of these positions. A hearing is scheduled in federal court in San Francisco on June 4, 2008, 9 am before Judge Phyllis Hamilton. We have filed a motion for class certification but the judge will not address our request until she has resolved the government’s new motion to dismiss the case.

Since many of the arguments the government makes are the same ones they made in their 2007 motion to dismiss that the judge rejected, we are somewhat optimistic that several of our legal claims will not be dismissed. However, if the case is dismissed, we’ll recommend appeal to the Ninth Circuit Court of Appeals. If the case is not dismissed, we will have the right to conduct depositions of government officials, and demand to receive copies of government documents relating to U visa policies and practices, and assume the DHS will then want to discuss a nation-wide settlement of our claims as typically happens when their motions to dismiss are denied in our major class action cases.

Several thousand migrant victims of violent crimes in the U.S. will benefit from this case annually by applying for U visas, and then lawful permanent resident status, thus ending their undocumented status, making it far easier for them to access legal remedies, work with lawful authorization, travel abroad legally thus avoiding the dangers of illegal entry, and being far more able to remove themselves from abusive and violent situations.

Please feel free to email Angela Viramontes aviramontes@centerforhumanrights.org or pschey@centerforhumanrights.org if you have any questions.

bh

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Comments

Sir,

I had filed the petition for u-visa on 19 Nov 2007 and I recd a notice of action during th last week of Nov 2007,stating that the receiving date as 29 Nov 2007 and also the acceptance of the the form I-765 and also they exempted the fee.My finger printing was done 18 Dec 2007.After that I have not recd any communication.When I go to their web site.It always states that My case was recd on 29 Nov 2007 and is pending.

Therefore,I request you to inform me What should I do.Actually.I wanted to file for u-visa during Feb 2007.But I never knew the process till I saw the news on the TV during the last week of Oct 2007. Thanks to your effort which brought this subkect on the TV.

Once I filed the petition and finger printing was over.I am waiting for the past four months for EAD.So that I can seek a googd job and also wish to state that the job was waiting for me.But now that opportunity is lost.

I thank you for your effort to help the humanity.

Thank You,

Regards,

A.Ravi Nair

Posted by: A.Ravi Nair | May 12, 2008 1:54:22 AM

Sir,

I had filed the petition for form 1918 and from1765{category(C14)} for u-visa on 06 Nov 2007 and I recd a notice of action during th last week of Nov 2007,stating that the receiving date as 28 Nov 2007 and also the acceptance of the the form I-765 and also they exempted the fee.My finger printing was done 28 Dec 2007.After that I have not recd any communication.When I go to their web site.It always states that My case was recd on 28 Nov 2007 and is pending.

Therefore,I request you to inform me What should I do.Actually.I wanted to file for u-visa during Feb 2007.But I never knew the process till I saw the news on the TV during the last week of Oct 2007. Thanks to your effort which brought this subkect on the TV.

Once I filed the petition and finger printing was over.I am waiting for the past six months for EAD.So that I can seek a googd job and also wish to state that the job was waiting for me.But now that opportunity is lost.

I thank you for your effort to help the humanity.

Thank You,

Regards,

loveleen chander

Posted by: LOVELEEN CHANDER | May 14, 2008 4:41:55 PM

Sir,

I had filed the petition for form1918 for u-visa on 06 Nov 2007 and I recd a notice of action during th last week of Nov 2007,stating that the receiving date as 28 Nov 2007 and also the acceptance of the the form I-765 and also they exempted the fee.My finger printing was done 28 Dec 2007.After that I have not recd any communication.When I go to their web site.It always states that My case was recd on 28 Nov 2007 and is pending.

Therefore,I request you to inform me What should I do.Actually.I wanted to file for u-visa during Feb 2007.But I never knew the process till I saw the news on the TV during the last week of Oct 2007. Thanks to your effort which brought this subkect on the TV.

Once I filed the petition and finger printing was over.I am waiting for the past six months for EAD.So that I can seek a googd job and also wish to state that the job was waiting for me.But now that opportunity is lost.

I thank you for your effort to help the humanity.

Thank You,

Regards,

loveleen chander

Posted by: LOVELEEN CHANDER | May 14, 2008 4:53:46 PM

Does any know what is happening with these U visa. i have a pending application since late Septempter 2007 and biometrics done before thanks giving of 2007.
I you have the same experience let me knoe or if yours is different let me know too.
Kay

Posted by: Kay longe | Jun 10, 2008 5:44:33 AM

My I-918 and I-765 are pending since February 25, 2008. A month ago I did submit I-192 with out request (RFE). For 6 months there are no updates on my case yet.

Posted by: T.D. | Aug 18, 2008 3:16:19 PM

My u-visa application was submitted at the end of May 2008. I was called in for biometrics in the middle of July 2008. From that time to present, I would like to know the status of my application and how long it would be before I could receive work authorization and a social security number?

Posted by: a t p | Aug 22, 2008 9:20:58 AM

My u-visa application was submitted at the end of May 2008. I was called in for biometrics in the middle of July 2008. From that time to present, I would like to know the status of my application and how long it would be before I could receive work authorization and a social security number?

Posted by: a t p | Aug 22, 2008 9:21:43 AM

I have filled my I-918/I-918B on December 2007 but my NOA's says that they got it in January 2nd 2008, my Biometrics were done in Jan 29th 2008 and since that date I have not received any updated. Not sure what to do next.

Any help will be really appreciated.

Posted by: Rony Gonzalez | Oct 7, 2008 9:41:19 AM

Hello Sir:
I want to ask you what is the next step for me after having the interim relief since 2003, I just found out about the new regulations. Do I need to file for an adjustment of status, or the green card? I already have five work authorization cards, I need to renew the current one I have, but I am not sure if I should go for the green card instead. Thank you very much for all the hard work and support for all the immigrants in the US. Thank you again for your time reading this comment.
Sincerely,
Claudia Ceballos

Posted by: Claudia Ceballos | Nov 12, 2008 9:35:30 AM

dear sir :
My u-visa application was submitted at july 23rd 2008,it was pending for over 9 months now , i wonder how much longer we should waitting?
how long is the regular waitting time for U visa cases?Thank you for your time reading this comment.

Posted by: amy lin | Apr 29, 2009 9:22:19 PM

In response to the commentators, I have two clients who have recently received their U Visas after waiting approximately 1 year following submission of their I-918 forms.

Posted by: John | Jun 8, 2009 11:16:56 AM

Hi I wanted to now if you can apply for a u visa with a child abbuse case.The police dosnt want to sign the certification form wat can i do.

Posted by: Maria Jaimes | Nov 5, 2009 3:25:16 PM

I noticed that those granted T-Visa Staus are eligible to receive Federal Financial Aid including their family members to go to school,while those with U Visa Status are not eligible. Is there a reason why they are both treated differently? It also happen with the issue of tarveling abroad, T-Visa holders are give advance parole and U-Visa are not. I really want to know why

Posted by: ASN | Feb 11, 2010 7:19:17 PM

Yes I was also wondering why people with U visa and T visa status were treated differently?

Posted by: I-20 visa Los Angeles | Feb 19, 2010 10:03:19 AM

Just some information for those who interesting in an adjustment of status from U-visa. I came to US as a fiancee and didn't marry the petitioner, after 3 years he was convicted in Domestic Violence Assault. In 2004 I applied for U-visa interim relief deferred action and my case was pending till regulations were published. Then I applied for an actual U-visa in January of 2008. At the mean time I got married and my case for adjustment of status was denied (in 2006)and USCIS put me in removal process. Judge delayed my deportation a few times (she was waiting for the results on my pending case). On December 24, 2009 I got my visa approved. Deportation was canceled after I applied for a Green Card in April 2, 2010 and on July 2 of 2010 I got a Green Card in the mail, after 4 months with out interview (may be because I had it long time ago and my I-130 was approved).

Posted by: Tanya | Aug 16, 2010 9:43:31 PM

What is the difference between U Visa and US Visa? Im confused.

Posted by: Renew Green Card | Apr 26, 2011 1:44:06 AM

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