U-Visa: Illegal Immigrants Become Legal Residents Via Crime Victimization
By Lauren Smiley
published: March 16, 2011
Jean-Philippe Dobrin
Jean-Philippe Dobrin
Mardoqueu Silva got a U visa last year for getting robbed at gunpoint on a Geneva Pizza delivery in 1995.
Jean-Philippe Dobrin
Each day, San Francisco Inspector Tony Flores gets three to four new U visa applications from alleged victims of crime in the city.
Jean-Philippe Dobrin
Catholic Charities CYO in San Francisco advises a new batch of immigrants each week on the U visa possibility.
Jean-Philippe Dobrin
Christopher Martinez, a immigration services program director at Catholic Charities, says that the nonprofit recently had to start a U visa wait list. It has handled 800 cases.
Subject(s):
Lauren Smiley on U-Visa: Illegal immigrants become legal citizens via crime victimization
The pizza delivery guy glanced at the order for his late-night run. Trouble. In 1995, supreme pizzas were the priciest pies on the menu at Geneva Pizza, a mom-and-pop shop in the Excelsior, and this customer wanted two. Plus, the delivery was for an address near the projects in Visitacion Valley, where $30.05 wasn't pocket change.
Mardoqueu Silva was 21 then, a Brazilian student both model-handsome and choirboy-polite. Illegally overstaying his tourist visa for four years and counting, he took the jobs he could get without papers. So he headed out for the delivery that would change his life.
Silva followed his boss' instructions. Parking in the street and calling to say he'd arrived, he rolled the window down a few inches and told the twentysomething black man who approached in a 49ers jacket and white pants to pay him up front. The man stuffed bills into his hand, and Silva turned to grab the pizzas in the passenger seat.
A .45 handgun was pressed into Silva's temple. His hair stood on end.
"Give me all the motherfucking money and your wallet and get the hell out of the car."
Silva got out, his hands behind his head. He told his assailant that his wallet was in the car, and to take anything you want, just don't shoot. More thugs rushed up and searched his car, snatching his cellphone, and yes, the two pizzas. In less than a minute, it was over.
Silva sped back to the pizzeria and quit on the spot. His boss called the cops. Police officers drove him back to the block of the delivery, where they had several men lying handcuffed on the sidewalk. The police shone a light on them; Silva identified the man in the 49ers jersey, but didn't recognize the rest.
The hold-up haunted him. Silva hates to admit it, but his heart would race when a black man — any black man — sat near him on BART for years afterward. Yet life as an illegal immigrant continued. He married another undocumented Brazilian. He moved out to Tracy. He became a hairdresser, mumbling "Mmhmm" as the clients in his chair complained about illegals this, illegals that.
One day in 2009, Silva was reading the Bible when Romans 13:1 struck him like a lightning bolt: "Let everyone be subject to the governing authorities." He strode into the Oakland office of immigration attorney Robert Lewis and declared he wanted to do something most immigrants would call utterly are-you-kidding-me crazy: He wanted to turn in himself — and his wife — to immigration authorities.
Lewis was taken aback. "I've never heard that in my entire life," Silva recalls him saying. "I said, 'Let's leave it in God's hands. We'll say we are here illegally and we'll let the court decide.'"
Lewis suggested they explore their options first. He lobbed a long line of questions at Silva, including this one: Had he ever been a crime victim?
"Actually," Silva answered,"I have."
The attorney said he would see whether Silva was eligible for a U-1 visa, designed for victims of crime who'd cooperated with law enforcement. In 2009, this was a new program, and Lewis didn't know if it would work. But Silva was willing to try.
The U.S. immigration system has long offered asylum to those who face persecution abroad. But in reauthorizing the Violence Against Women Act of 2000, Congress created a new visa that responded to the violence immigrants face. Domestic violence or sexual assault? Apply here. Robbery or attempted murder? Step right up.
"We have a sick sense of humor here in our office," says Fernanda Bustamante, an attorney on Lewis' team who handled Silva's case. "Like, maybe we should just go tell them to get a job as a pizza deliveryman or walk around Fruitvale with a bunch of money in their hand — of course, that's just totally kidding."
The U visa was intended to improve immigrants' unwillingness to call law enforcement. San Francisco police officers don't inquire about the immigration status of people who report crime, yet the fear persists. Mug a day laborer or beat your wife, the thinking goes —what are the victims going to do? Call 911, so they can be among the more than 300,000 people deported annually? The bad guys go unchecked, police are in the dark about entire swathes of a city, and public safety suffers. Distrust of the authorities only worsened with the recent national rollout of Secure Communities, a federal program that checks the fingerprints of local arrestees against a national database to identify illegal immigrants.
The Department of Homeland Security finally issued regulations to issue U visas in 2007, and started approving them in significant numbers in 2009. In the Bay Area, attorneys, nonprofits, ethnic media, and the applicants themselves are spreading the word that the worst thing that happens to you in the United States may turn out to be the best. To date, 18,654 crime victims, most of whom were in the country illegally, have received the special visas.
Alongside the enthusiasm comes criticism from those who wonder why people who broke the law to be here should be granted legal status for doing what most citizens would do anyway. "How many Americans are victims of violent crime and don't get squat when the trial is over?" says Richard McCain, who was tried and acquitted for domestic violence against his Mexican-born partner. "What does the illegal immigrant get? A chance to live here as an American." Some say it's unfair to those people who wait abroad for years for visas that would allow them to immigrate legally.
Defense attorneys say some applicants are defrauding the system by taking cases to court they otherwise wouldn't in the hope of getting a visa. "Getting status in the United States is such a big deal that it really can create an incentive, sometimes just to exaggerate, and sometimes to flat out fabricate," says Stephanie Wargo, a San Francisco public defender who handled a sexual assault case in which the complaining witness was applying for a U visa. "I don't know the solution, but it is a problem."
Earlier this month, SFPD Inspector Tony Flores walked among tables of California homicide inspectors in a Hilton Hotel ballroom. In a well-tailored black suit and lavender shirt with his gray hair gelled into a peak, he looked every bit the role of a charismatic salesman, selling the middle-aged male cops with beer guts and shaved heads on the idea that the U visa will buoy law enforcement in their jurisdictions.
"I'm trying to change your beliefs," Flores told them. "Some of you feel this person is in the U.S. illegally, why would I help them? Bottom line: If they're a victim in the United States, they're a victim in the United States."
While the federal government issues U visas, local law enforcement plays an indispensable role. Police officers must certify the application, confirming that the person was a victim of one of the eligible crimes or has knowledge of the crime; and "has been helpful, is being helpful, or is likely to be helpful" in the investigation or prosecution.
In San Francisco, the District Attorney's office approves U visa applications if charges are filed in court. The office has signed 290 since it started keeping track in 2008. Yet Flores signs off on cases in which the suspect was never caught or prosecuted — neither of which is required to get the visa. Last year, he certified roughly 150. These days, he receives three to four new applications a day. To keep up, he says, he often has to research them "on my own dime" after his workday investigating domestic violence.
When Flores asked the audience members for questions, they seemed skeptical. Will I get in trouble if they commit a crime after I sign off on the application? "There's no way to stop that, but we can say it's not us [giving them the visa], it's Homeland Security," he answered. What about false reports? Flores admitted that he, too, was skeptical at first. "I was like, 'I'm gonna see a bunch of people making false reports to stay in the country.' I'm not seeing that at all."
Presentation done, Flores walked out into the lobby and said, "That was a tough room."
Since local law enforcement certifies U visas completely at its discretion — there is no federal mandate — the visas have become a Rorschach test for a city's attitude toward illegal immigrants. The San Francisco Police Department abruptly stopped signing the applications in 2008, around the time the city got national blowback for its policy of shielding illegal juvenile drug dealers from U.S. Immigration and Customs Enforcement. After much lobbying by local immigrants' rights advocates, then-Chief Heather Fong restarted the process, and Flores became the U visa czar. Last month, acting Chief Jeffrey Godown issued a department memo noting that all officers responding to crime scenes should tell immigrant victims that they may be eligible. (Not that everyone got the memo: "Never heard of it before," says Capt. Greg Corrales at Mission Station.)
But police in other parts of the country won't sign at all. Many are like the Solano County District Attorney's office, which usually will certify only pending cases, arguing that there's no incentive to keep victims in the U.S. if there is no trial for them to testify in. Agencies can refuse to sign for any reason. Vallejo Police Lt. Ken Weaver says he rejected a petition last month of a woman whose teenage son had slapped her after she told him to get off the computer. "I just read that and I went, 'Are you kidding me?'" he recalls. "I was like, 'That's not the spirit of what this was intended for.'"
Once the application arrives at a United States Citizenship and Immigration Services (USCIS) processing center in Vermont, adjudicators evaluate it and determine whether the victim has shown he or she has suffered substantial harm, either physical or mental, from the crime. Victims can submit medical records and letters from therapists as evidence. If the application is approved, the person receives a work permit and temporary residency status for four years. After the third year, if the person can prove he or she has continued to be helpful in the criminal investigation, she can apply to become a permanent resident.
"It's the humane policy in the immigration system," says self-professed "U-vangelist" Susan Bowyer, directing attorney at the Immigration Center for Women and Children in San Francisco. "You want to have a tangible way of showing [immigrants] you can call the police without fear."
But critics say the system is too generous. "It's not necessary to say, well, since you came forward to do the right thing, that therefore you're automatically entitled to a visa to remain in the United States for the rest of your life," says Ira Mehlman, spokesman for the Federation for American Immigration Reform, a nonprofit that advocates halting illegal immigration. Jessica Vaughan, the director of policy studies at the Center for Immigration Studies, a conservative think tank, especially faults the fact that victims can apply for the U visa even after they've been ordered deported: "It's their last-ditch Hail Mary pass to avoid being sent home."
The visa's inclusiveness doesn't stop at deportees: Victims can get legal status for their spouses and children, even those living in another country. Victims under 21 can sponsor their parents and unmarried siblings under 18. In cases of murder or manslaughter, spouses and children can apply as "indirect victims," even if they didn't witness the crime.
Since 2009, USCIS has issued 18,654 and rejected 5,639 U visas — a 77 percent approval rate. Congress capped the number available annually at 10,000, though that does not include the 14,122 family members of victims who have also received the visas.
All in all, U visas represent a blip in the vast visa system, which churns out more than a million green cards a year. But among immigrants, word about the U visa is traveling fast.
Adolfo Lopez heard about the U visa from a friend he met on 24th Street in the Mission, who passed him the number for his caseworker at the East Bay Sanctuary Covenant. Lopez, an affable 23-year old Guatemalan, called the Berkeley-based immigrant advocacy organization that same day. Lopez says he's had a bad time since crossing into the United States six years ago. A group of teens stole his cellphone in Glen Park. While loading recyclables into his pickup truck last year — his under-the-table job since construction work got slow — a man robbed him at knifepoint. In 2006, he filed a police report after several men shot at him in the Bayview while he was sitting in his truck before beating and robbing him. In a couple of months, Lopez should learn whether he gets a U visa because of the shooting. "Good thing they didn't kill me, or I wouldn't be here to talk about it," he says on a recent morning, sitting in his truck on Newhall Street, across from the site of the crime.
Further south on Third Street, there's a yellow house with a new owner: Rosa Aguilar. In 2003, her husband, Jesus Martinez, walked into the 500 Club, the iconic Mission bar with a twinkling martini glass sign beckoning outside. According to court filings, the bartender put Martinez into a choke hold on the sidewalk until he suffocated. (The bartender later committed suicide; Martinez's mother and Aguilar won a $1 million settlement from the bar in 2006.)
About two years after the incident, a relative told Aguilar how Catholic Charities had helped him get a marriage visa. Aguilar met with caseworkers at the nonprofit, which does low-cost legal work for immigrants of all faiths, who helped her put together her application. A few years later, she received her U status. Life has changed: Aguilar was able to take out a loan to buy her house. She now earns $15 an hour as a hotel housekeeper, and tells her co-workers about the requirements for the visa every chance she gets. "I feel free. I feel safe. I feel life totally changed," she says.
Since the U visa program began, a cottage industry of Bay Area nonprofits has sprung up to process applications, charging up to $1,000 a person. Catholic Charities is one of the largest. The visas have become 50 percent of its caseload, with 800 cases to date. Each Monday, caseworkers give legal advice to a clinic of about 20 immigrants, half of whom come to find out whether they're eligible.
In one recent clinic, Francisco Gonzalez talked to the group in his rapid, Cuban-imbued Spanish. "The U visa is an excellent immigration benefit ... The U visa will forgive someone who has a previous deportation order, who has left and entered the country illegally — obstacles that in any other type of immigration case cannot be overcome." (People convicted of more violent crimes will be approved only in extraordinary circumstances.)
Despite this apparent good news, the meeting's tone was somber. Gonzalez was firm and unsentimental; he reiterated that "I'm not promising anything." He looked over the restraining orders several women pushed across the table toward him and told them they'd need to return with police reports. He identified three viable cases: a Salvadoran mechanic who'd been beaten by youngsters in the Mission; a Mexican produce deliveryman who'd been stabbed 10 years ago on Bayshore; and a teenage girl who had come with her mother, sister, and Child Protective Services caseworker.
Gonzalez told them of another problem: With 400 pending U visa cases at Catholic Charities and only three employees processing them, they'd be the first on a wait list.
The delay didn't seem to bother the deliveryman. His solemn face broke into a smile as he contemplated becoming a legal resident after 17 years: "It means everything to me." The mechanic showed a reporter how his nose is askew after it was broken in the assault, and wiggled his false front teeth to show that his real ones got knocked out. Add that evidence to the police report in his hand, and it would be hard to doubt he's telling the truth.
Yet as more U visa applicants testify in court, defense attorneys are trying to persuade juries that they cannot be trusted.
Richard McCain says he and his Mexican boyfriend, Manuel Valencia, were planning "one last weekend of fun" before getting sober. Instead, it ended in a meth-infused three-way gone wrong, McCain in jail, and Valencia on the path to getting a U visa.
Their case illustrates a new battleground for the U visa: the courtroom. Defense attorneys across the country, and especially in San Francisco, are using pending applications to persuade jurors that witnesses have a motivation to exaggerate charges or push forward with cases they might otherwise abandon. After all, to certify an application, the District Attorney's office must determine that a crime occurred and the person was "helpful" to the prosecution. The District Attorney's Victim Services Division head Maria Bee says she defines "helpful" on a case-by-case basis — by the supposed victim either helping prosecutors outside of the courtroom, or testifying at trial. The federal government doesn't require that the suspect actually be convicted of the charge to issue the visa.
Still, Public Defender Megan Burns says the District Attorney's office uses the visa as a tool. "I think it's just a reality that when the government has a witness that isn't here legally in the United States, and they want their assistance in a criminal case, [a discussion of the U visa] is something that comes up," she says. As for the witnesses, "They're motivated more by the immigration benefit they can receive than the actual truth of what really transpired."
McCain and Valencia had been together for two years and had never had any physical altercations. Yet one night in early March 2009 when both had shot meth, they ended up arguing on a SOMA sidewalk. Valencia, a building manager, testified he swung a bag full of keys at McCain, who then punched him in the mouth. A parking meter attendant witnessed the fight and called cops, who arrested McCain for domestic violence.
Valencia took out a restraining order against McCain after the incident, but McCain says his boyfriend relented and allowed him to stay overnight several times over the next three weeks. "We were spending time together and trying to reconcile," he says. Then, suddenly, Valencia told McCain he never wanted to see him again.
McCain didn't find out until months later what he believes is the reason for his sudden rejection. Assistant District Attorney Brian Bringardner revealed in an e-mail to McCain's public defender a month before the trial in the summer of 2009 that Valencia "has been told about the option of getting a U visa. I don't know if he has actually applied for one."
During the trial, McCain's public defender argued that Valencia had hit McCain first, and Valencia was pushing forward with the charges only because he wanted a U visa. The jury apparently bought it, acquitting McCain of the misdemeanor domestic violence charge. Still, the DA's office signed off on Valencia's application, Bee says, adding, "We have no control over what the jury is going to do."
"I was absolutely dumbfounded to find out there was such an opportunity" for illegal immigrants, McCain says. "I'm not sure I wouldn't have done the same thing, being in his position. You tried [to become legal] for so long, and it's like a carrot in front of your face." McCain has since moved to Colorado and is no longer in contact with Valencia.
That trial is one of many in San Francisco courts where the U visa has come up. In another 2009 trial, Olegaria B., a Mexican immigrant, accused a Yemeni taxi driver of forcing her to give him a hand job on the way to a New Year's party, public defender Stephanie Wargo says. The friend who hosted the party testified that Olegaria had joked about the incident at the time. But a few days later, she returned to the host's house and asked her to write an affidavit stating she had seen the taxi driver drop her off. The woman, who'd hadn't seen the cab, refused. Olegaria then asked her friend's teenage daughter to write a statement, but she also refused.
Wargo argued to the jury that Olegaria was fabricating the charges of sexual assault to get a visa, which could allow her to bring a child in Mexico to the United States. "I would say the [visa] was the icing on the cake in our case, because she had so many credibility problems," Wargo says. The jury hung, and the district attorney didn't refile charges. Still, Bee says she signed the U visa certification.
The Ninth Circuit District Court ruled in the 2004 U.S. v. Blanco decision that "special immigration treatment ... was highly relevant impeachment material," meaning evidence that can discredit a witness. Yet U visa advocates argue that information about victims seeking the visa is protected under the Violence Against Women Act. They say allowing information about the visa into court hurts legitimate victims by casting doubt on their testimonies — especially in sexual assault cases, where a trial often comes down to whether a jury believes the man or the woman. "I think they're just waving a flag around that will cause reasonable doubt," says immigration attorney Bowyer. "Honestly, most clients call the police before they've ever heard about the U visa."
If witnesses' pending visas are used against them in court, "we go back to where we were before Congress created the U visa," says Leslye Orloff, an attorney and vice president of Legal Momentum, a Washington, D.C.-based legal defense organization for women, who helped legislators craft the law. She says that means perpetrators may go unpunished: "If defense attorneys make that decision [to mention the U visa in court], there may be more legislation needed to cut off their ability to do that."
It's hard to tell whether U visa fraud is truly common, or whether defense attorneys are merely doing a good job of making it seem so. If victims commit perjury or file false police reports, they are susceptible to prosecution and deportation. Plus, some advocates warn applicants they are exposing themselves on their applications by alerting the government that they're in the country illegally. That seems to be unfounded paranoia. USCIS spokeswoman Sharon Rummery says the agency doesn't tell immigration enforcement officers about the applicants it rejects. Attorneys concede that, so far, USCIS has kept its word. Clients whose cases are rejected merely return to living under the radar. Nothing gained, nothing lost.
Mardoqueu Silva never found out whether the man who held a pistol to his head 16 years ago went to jail. But two years ago, his immigration attorney told him to find out whether the police still had a record of the incident. After a three-hour search, a police record room staffer set the official report before him: the 1995 armed robbery of a Geneva Pizza deliveryman in Visitacion Valley.
Silva's attorney mailed his U visa application in September 2009. Six months later, Silva got a call. The thug had done Silva the biggest favor of his life. He and his wife were in. He considers it a godsend: "I couldn't believe something so good could come out of something so bad."
Last year, USCIS reached the 10,000 cap on U visas for the first time. It looks like the agency is on target to meet it again in the 2011 fiscal year, having received 3,331 applications in the first quarter. Anti-immigration groups say that's a lot of work permits in a time that the United States doesn't have enough employment for its citizens. "With unemployment rates the way they are, I think it's hard to justify bringing more workers in for jobs that Americans otherwise would be doing," says Gretchen Pfaff of the Santa Barbara–based Californians for Population Stabilization. "You have to consider the chain migration that comes with that. They can bring in their immediate family, and all those people are now in America needing those jobs."
Many advocates express concern that the woeful economy and anti-immigrant zeitgeist will cause lawmakers to more closely scrutinize the program. "We do worry, because we do believe the U visa has opened a lot of doors for people, and given some nice benefits to people who wholly deserve it," says Christopher Martinez of Catholic Charities. "But there's going to be forces out there that say this is too generous."
Meanwhile, Robert Uy, a staff attorney at Asian Pacific Islander Legal Outreach in San Francisco, thinks the visa's law-and-order goal will save it. "Even the most conservative people tend to want people who are committing crimes to be put behind bars," he says.
Silva would likely win over many conservative critics. He attributes his visa to an intervention of God through the U.S. government. He talks about his and his wife's new legal status with the zeal of a convert: "We can now be all that we can be." He got his driver's license. He plans to travel back to Brazil for the first time in 20 years to see his family.
Earlier this month, a Seventh-Day Adventist church in Jacksonville, Fla., offered Silva a position as assistant pastor. He had dreamed about attending theology school for years, but didn't have the immigration papers to do it in good conscience. He accepted. Now he'll have a church full of congregants, many of them immigrants, to whom he can preach the gospel — be it of a forgiving God, or a forgiving visa.
