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.

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
Mardoqueu Silva got a U visa last year for getting robbed at gunpoint on a Geneva Pizza delivery in 1995.

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."

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