Rethinking Indirect Victim Eligibility for U Non-Immigrant Visas to Better Protect Immigrant Families and Communities

I. INTRODUCTION Maria and Claudia are first cousins, and their mothers are sisters. Claudio was born in Mexico. She entered the United States illegally with her mother and Maria's mother when she was only a few months old. Maria was born two years later in the United States. The girls have grown up together. Maria was nine years old and Claudia was twelve when they were both sexually assaulted by Claudia's mother's boyfriend. When their mothers" discovered what had happened, they immediately reported the crimes to the police and obtained civil protection orders against the boyfriend. As a result of the mothers' actions, a criminal investigation was initiated and the boyfriend was recently convicted and sentenced to prison. Once his sentence is served, it is likely he will be deported from the United States. The mothers" of both girls assisted in the investigation and prosecution of the boyfriend, and have sought medical treatment and counseling for their daughters" in order to deal with the traumatic impacts of the assaults. They hope to be able to remain in the United States so that their daughters can stay in school and continue to receive services. They also worry that if they are forced to return to Mexico they will be unable to protect themselves and their daughters from the boyfriend once he has been released from prison. Claudia is eligible to apply for a special visa, a U visa, for immigrant crime victims who have been substantially harmed by violent crime and are willing to help police investigate and prosecute those crimes. Since Claudia is only twelve, she can qualify based on her mother's cooperation with the police on her behalf. Claudia's mother can also be included as a family member on Claudia's U visa petition to obtain legal status herself The police detective who investigated the sexual abuse signed the U visa application form certifying that Claudia was a crime victim and that her mother had assisted the police with their investigation. If Claudia's petition is approved, a U visa will allow Claudia and her mother to remain in the United States, to work legally, and to eventually apply for lawful permanent resident status. Maria and her mother are not so lucky. Because Maria is a U.S. citizen, she is not eligible to apply for a U visa herself. Her mother, therefore, is ineligible to apply' .for legal status as a family' member. In order for Maria's mother to be able to qualify, she must apply as an "indirect victim" of the sexual assault against Maria. In order to be eligible as an indirect victim, she must show that she has been substantially harmed by the crime against Maria, in addition to showing that she has cooperated in the investigation or prosecution of that crime. When Maria's mother asked the same police detective to sign the U visa form in her name certifying that she was a crime victim and had assisted with the investigation of the crime, the detective refused, telling her he could not sign because she was not the victim. Without that certification, Maria's mother cannot be granted a U visa. Unlike Claudia's mother, she must convince the police department and the immigration service that she is herself a crime victim in order to get relief Because her daughter is a U.S. citizen, it is not enough for her to report the crime, cooperate with police, and be a source of strength and support to her young daughter. And if Maria's mother cannot prove that she too has suffered substantial harm, regardless of the terrible harm suffered by Maria and the family's cooperation with law enforcement, she will be ineligible for a U visa and will be unable to remain legally in the United States with her U.S. citizen daughter. ********** The story of Maria and Claudia and their mothers is not unique. (1) It is one of countless similar stories of families trying to navigate their way through the uncertain statutory and regulatory maze of the U non-immigrant visa, or as it is commonly known, the "U visa. …