Sunday, October 11, 2015

California’s U Visa Bill Signed Into Law

The Los Angeles Times reports that Gov. Jerry Brown has signed SB 674, a state bill that could meaningfully impact the ability of some undocumented crime victims to obtain immigration relief in the form of a U visa if they were helpful to law enforcement. 

Federal immigration law permits noncitizen to apply for a U visa if they were the victims of certain criminal activity (specifically enumerated in the immigration statute), suffered substantial physical or mental abuse as a result, and show a requisite level of helpfulness to law enforcement in the detection, investigation or prosecution of the crime.  8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14.  However, to meet a threshhold showing of helpfulness, federal law requires U visa applicants to obtain a certification from law enforcement attesting to the applicant’s helpfulness.  Although providing a certification in no way guarantees that the applicant will receive a U visa, the law enforcement certification is required and applications are typically rejected by USCIS if they do not include the certification.  Moreover, the immigration agency and courts have made clear that the decision by law enforcement whether to provide the U visa certification is completely discretionary.  As a result, a striking level of inconsistency exists across law enforcement agencies.  Some agencies (such as the Kern County, CA Sheriff’s Office) appear to have blanket policies against signing U visa certifications.  In other jurisdictions, law enforcement agencies have readily embraced the U visa’s potential to encourage immigrant crime victims to report crime and view the U visa certification process as consistent with community policing models aimed at building trust between communities and police.  Other agencies adopt a range of policies, including choosing not to sign if the criminal activity is too old, if the investigation or prosecution is open, if the applicant appears to have been a defendant or suspect in unrelated matters, if the requestor does not pay a processing fee, and so on.

SB 674, sponsored by State Senator Kevin de Leon, will require, upon request, that eligible law enforcement agencies provide U visa certifications to immigrant crime victims who have been helpful, are being helpful, or are likely to be helpful in the detection, investigation, or prosecution of certain crimes.  SB 674 further establishes a rebuttable presumption that victims who have “not refused or failed to provide information and assistance reasonably requested by law enforcement” have met the requisit level of helpfulness for certification.  Finally, the bill sets time limits on law enforcement agencies’ response times to requests for U visa certification, requiring certifiers to process certification requests within 90 days in cases where applicants are not in removal proceedings, and 14 days where removal proceedings have begun.  The bill also contains reporting requirements. 

-JKoh

https://lawprofessors.typepad.com/immigration/2015/10/californias-u-visa-bill-signed-into-law.html

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