By Anna Pulley
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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."