Testimony before the New York City Council Committee on Immigration, regarding Best Practices for NYC Agencies, Courts, and Law Enforcement Authorized to Certify Immigration Victims for U and T Visas

September 13, 2017

Thank you for the opportunity to testify before you today regarding the best practices for NYC Agencies, Courts, and Law Enforcement Authorized to Certify Immigrant Victims for U and T visas. My name is Shani Adess, and I am a supervisor in New York Legal Assistance Group’s Matrimonial and Family Law Unit (“FLU”). NYLAG provides free legal services to New York’s most vulnerable populations in various civil legal matters, including comprehensive direct civil legal services to immigrant survivors of domestic violence, child abuse, child neglect, and trafficking.

My testimony today will focus on focus on the need for 1) written, publicized policies detailing the procedures and processes for requesting certifications from all city agencies, 2) implementing practices that will enable requestors who are denied certifications an opportunity to appeal such denials, and 3) delineating a method to request an expedited review in urgent cases. Training certifiers who are reviewing cases will help to streamline processes, and ensure cases are adjudicated in accordance with the relevant law. Collaboration with local immigrant legal service providers will help ensure that best practices are used when creating these new policies and trainings.

Background on U Visas

Congress recognized, in creating U nonimmigrant status, more commonly referred to as the “U visa,” the interest our government has in encouraging law enforcement to engage with immigrant communities, in part to strengthen their ability to investigate and prosecute certain crimes, including domestic and sexual violence. Recognizing the obstacles that existed, and further recognizing the public good that individuals serve when they come forward to report criminal activity, Congress created a pathway to permanent residency for certain crime victims. See BIWPA, § 1513(a)(2)(A); New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, 72 Fed. Reg. 53,014 (Sept. 17, 2007) (codified at 8 C.F.R. pt. 103, 212, 214, 248, 274a, and 299).

The U visa serves multiple public interests. First, it has strengthened the ability of law enforcement to investigate and prosecute criminal activity by providing protections to undocumented victims and witnesses who might have otherwise been hesitant to come forward for fear of deportation. This makes individuals, families, and our city more safe, ensuring that perpetrators are identified and prosecuted and not able to continue to cause harm to others, and by providing victims and their families with access to protection and services.

Upon obtaining employment authorization, and eventually permanent status if eligible, a U visa recipient is able to access higher earning jobs, higher education, and public resources if necessary, fostering the ability and safety of them and their families’ stability, and safety, while allowing them to continue to contribute to our community, city, and state.

U Certifications, Best Practices & Current Issues

The U visa remains a relatively new form of relief, created in 2000, with the first U visas issued in 2009. City agencies, law enforcement, District Attorney’s offices and our courts have had to rapidly create procedures to evaluate the consistently increasing number of U certification requests each year. Many agencies, working with legal service advocates, have revised these procedures over time. Still some issues remain. Some of the biggest issues are: the inconsistent policies and practices among agencies, leading to vastly different wait times and, at times, even different results for otherwise similarly situated clients; the lack of public dissemination of information regarding U visa relief and the process to request certification, inhibiting the ability of people who don’t currently have a legal service attorney to obtain certifications and access to relief; and the need for training of certifiers on the guidelines for issuing U certifications.

In order to ensure that all individuals who are eligible are able to request U visa relief, each certifying agency in NYC should have a clear, written policy, regarding the procedure to request a U certification that is publically available and easy to access. Crime victims should be able to obtain information regarding their possible eligibility for U visas, even if they don’t currently have an attorney representing them. A pro se individual should be able to navigate each agency’s procedures just as a represented individual could, but without written policies in easily accessible locations, this is impossible.

  1. Written, Public Procedures

NYLAG has repeatedly seen clients with police reports from nearly two decades ago, ACS cases from a decade ago, and criminal and family court matters just as aged, who were never advised on the proper procedures for U certification. For example, we assisted a survivor of domestic violence who cooperated with the NYPD and District Attorney in 2009. She came to us eight years later for an immigration consultation. Had she applied in 2009 for a U visa, she would be a permanent resident today. Instead, due to long wait lists for U visa applications, she is still awaiting employment authorization. Other clients have come to us who may have been eligible for relief, but we were unable to obtain certifications because their files had been lost or destroyed after so much time, so their cooperation cannot be verified.

Publicizing U visa relief and certification request policies is essential to ensure crime victims are not forced to overcome even more obstacles just to seek the protection this law was meant to provide. Transparency regarding agency policies and practices will also ensure that a qualifying crime victim has the same opportunity to receive a certification from one agency as another, and will increase access to immigration relief to many eligible New Yorkers.

Each agencies’ policies should address: 1) the process for requesting a certification, 2) processing times for certification requests, 3) an appeals process in the case of a denial, 4) a method for which to request expedited review for urgent cases, and 5) a designated person or place to contact if there is an issue with the implementation of these written policies.

For the purposes of oral testimony- I am going to focus on the need for an appeals process, and a method for expedited review

  1. Process to Request

Currently, each agency has its own separate procedure for requesting a signed U certification. For example, the NYPD and ACS require a request, by mail and email respectively, with an explanation of eligibility including supporting evidence, while each District Attorney’s office follows their own procedure, with greatly different timelines on replies, and the Family Courts have a memorandum on policies for request which was only circulated internally. Local legal service providers collaborate to keep an informal updated list of agencies’ certification procedures, but procedures and points of contact change frequently, making it hard to create a formalized version. Further anyone outside this small legal community would find it near impossible to ascertain the differing procedures from one agency to another.

  1. Timeline to evaluate cases

Processing times for responses to certification requests vastly differ. Some agencies respond within two weeks. The NYPD has created a policy that they will respond within 45 days. ACS does not set forth a timeline, but currently responses are taking over 6 months. Without an estimated timeline for review, clients who may be able to seek certifications from multiple agencies are not able determine which agency is their best option to receive a timely certification. Advocates are left waiting, without any information as to the status of the request, for sometimes as long as eight months. Without set timeframes, advocates are unable to follow up on cases with agencies that are outside the normal processing times for review.

The impact of having to wait these extra months is substantial. Only 10,000 principle U visa applications are approved each year. They are evaluated in the order they are received. Once deemed eligible, a person is placed on a waitlist, which is currently 97,746 persons long.

The agencies who issue U certifications are often under-resourced, so expanding the agencies permitted to issue certifications, to include the Department of Education, the Department of Corrections, and the Civil Complaint Review Board, for example, would help ease this burden slightly.

  1. Appeals

Each agency should have an appeals process if an initial request for certification is denied. At this time, only one agency, the NYPD, has a method to appeal a denial of a U certification request.

The NYPD established an appeals process in 2016 after speaking with advocates in the legal services community. After this process was established, 48 cases that were previously denied on appeal in 2015 were then approved on appeal. Without an appeals process, there would have been no way to remedy these 48 incorrect denials. That means these 48 people, and countless others who submitted requests at other agencies with no recourse to appeal, would have had to continue living undocumented, despite being likely eligible for a green card one day had they only obtained this certification.

In order for the appeals process to be effective, a clear basis for any denial of a U certification request must be provided to the requestor. This rarely, if ever, happens. For example, the NYPD, while listing a basis for the denial, often just checks a box without any further information regarding what made them determine it should be denied due to negative criminal history of requestor, a troubling basis our colleagues in this field have testified about at length, or that it was a non-qualifying criminal act, or the client wasn’t in fact helpful. This overbroad checklist does not provide enough information to determine if an appeal is warranted.

For example, lack of helpfulness is not necessarily a bar to a certification, as both federal guidelines and NYPD policies direct that “reasonable refusal” to be helpful should be taken into account. Other times, after receiving denials for the criminal activity not being a qualifying crime, we have been able to unearth evidence a police report was not been filled out correctly or translated. NYLAG has had a number of clients who clearly wrote in Spanish on the second page of the Domestic Incident Report  reports such as “He hit me”, “He punched me” “He has threatened to kill me” but as this was not translated to English, it was classified as a “verbal dispute.” As attorneys, we were able to assess because we understand how to read DIR’s, how to determine if the crime has been classified correctly, and we can understand the difference in the explanations in English versus Spanish. Not everyone has access to the same resources. While the NYPD has done more than many agencies in establishing an appeals process, failure to issue denials that clearly state the basis for the denial is just as troubling as not having an established appeals process at all.

  1. Method expedited review

For most requests, a thirty day processing time is reasonable, but for certain cases where there is imminent risk of deportation or an opportunity to be released from detention and reunified with family, thirty days may be too long to prevent irreparable harm. While many agencies have ad-hoc or informal mechanisms to request expedited review for urgent cases, few agencies have developed a public, clear process to submit these requests.

NYLAG represented a mother of three United States Citizen children, who was a survivor of severe domestic violence at the hands of the father of her children. ACS investigated the violence, and our client cooperated fully. Our client had a final deportation order from decades ago, when she was a minor, and had been reporting to supervision with an immigration officer since being arrested, and then cleared of charges, in 2014. Two months ago, she was told to pack her bags and bring her children with her in October for her next check in, as she would be deported. NYLAG was able to coordinate with ACS to expedite the U certificate request, so that proof of filing would exist before she had to return to immigration enforcement. Without this, she, and perhaps her USC children, would have almost certainly been deported.

Due to the current immigration environment, immigrants are being detained in increasing frequency, and those with prior orders of removal or who have been present for less than two years are at risk of imminent removal. Others, still, may remain in detention unless they can prove to a Judge or ICE that there are positive discretionary reasons for there release, for example, a pathway to lawful permanent residency. A U certification is significant proof of this. At times, we may have only 48 hours to obtain and submit such proof to prevent a deportation of a person who has a right to seek permanent status here, who has suffered in our country and who has bravely come forward to assist law enforcement, who often have developed deep ties in their communities, with family members and supportive services all here in the United States.  Having one person deported who had a right to a U visa, quite simply, is too many for the public good to which they have contributed and the human cost the deportation causes.

  1. Training

Often the people reviewing certification requests are not specially trained on the clearly detailed parameters of eligibility, the intent behind the U visa, and their role in the larger process of a person who is seeking immigration relief.  This may resolve outstanding questions as to what they are actually certifying: simply that this person was a victim of qualifying criminal activity, and that they cooperated in the investigation or prosecution of that criminal activity, and what the certification is used for: simply the aforementioned fact, not the person’s good moral character, whether they suffered the substantial harm required by statute. It is within immigration officials’ purview to determine whether the person merits a U visa and immigration relief within the United States.[1]

Directed trainings, in coordination with advocates from different crime victim and immigrant service agencies in New York City, is the only way to ensure that certification requests are processed in line with legal guidelines, and that all people who are victims of qualifying criminal activity, and who cooperate in the investigation or prosecution of that criminal activity, are able to obtain a certification, petition for a U Visa, and obtain a pathway to employment authorization and permanent status in the United States.

Conclusion

With increasingly anti-immigrant policies and statements from our executive branch and federal immigration agencies, immigrant communities are becoming fearful of coming forward and seeking assistance and protection from legal systems.  It is even more important now that our local government, city officials, and law enforcement agencies come forward with a clear, affirmative message: that they continue to protect all New Yorkers, regardless of their immigration status.  

In doing so, we have a unique opportunity to 1) increase access to protection through the U and T certification process, through community engagement, education, and clearly published written procedures, 2) ensure that each agency has adequate policies in place to evaluate cases in a timely fashion, provide detailed information in the case of any denial that clearly delineates the basis for that denial, implement an appeals process, and have a method for expediting requests in urgent situations, and 3) implement best practices to ensure that our mutual goals for enforcing public safety and providing protection to undocumented immigrant victims of crimes who have cooperated with law enforcement, city agencies, and courts, continue to be met.

Thank you for the opportunity to testify today.  We look forward to working with the City Council and the Administration to improve the U and T certification processes in New York City.

[1] For example, NYPD still refuses to issue a certification if a victim only cooperated with their investigation, but did not continue to cooperate in the criminal prosecution. Especially in cases of domestic violence, trafficking, or child abuse, there are many serious safety concerns that may exist that may serve as an obstacle to continued, active, cooperation in direct eyesight of the perpetrator. This reluctance does not negate their assistance in the investigation of the criminal activity by NYPD, and the statutes and regulations do not require the victim of crime to be helpful in both the investigation and prosecution, but rather requires cooperation in the investigation OR prosecution of a crime.  INA § 101(a)(15)(U)(i)(III).