U Visas, T Visas, and Continuing Presence - Utah Crime Victim... · U Visas, T Visas, and Continuing Presence ... motions, expert reports, ... Detection, investigation, prosecution,
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AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
SUPPORT
This project was supported by Grant No. 2015-TA-AX-K051 awarded by the U.S. Department of Justice, Office on Violence Against Women (OVW). The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of OVW.
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
LEARNING OBJECTIVES
◉Articulate the differences between the U Visa, T Visa, and Continuing Presence Status◉Utilize immigration relief tools to enhance
victim participation in the criminal justice system◉Promote victim safety by certifying that
an individual is a victim of a qualifying offenses
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
FEARS AND BARRIERS
◉Deportation●Dangers in home country◉Retaliation●Harm to themselves●Harm to their families◉Police will not listen / respond◉Loss of community ◉Loss of financial support
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
What challenges arise when working with
immigrant victims of crime?
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
CHALLENGES
◉Lack of trust with police and prosecutors ◉Misunderstanding of legal systems●Don’t know their legal rights
◉Difficulty maintaining contact◉Lack of cooperation◉Return to home country
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
as a Crime Fighting Tool
IMMIGRATION RELIEF
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
IMMIGRATION RELIEF
U Visa
T Visa
Continuing Presence
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
LEGISLATIVE INTENT
◉No one in the U.S. should be a victim of crime, especially violent crime◉Offenders prey upon the most vulnerable in our communities, often immigrants ◉We want crimes reported to police● Everyone in the U.S. deserves to be safe● Offenders that victimize the most vulnerable
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
U VISA FACTS
◉Only 10,000/ year can be granted ◉If granted, U Visa is a 4 year stay◉Some U Visa holders will qualify for lawful permanent residency (LPR)◉Path to citizenship is possible, after LPR for 5 years + proof of good moral character
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
U VISA REQUIREMENTS
1. Victim of a qualifying crime2. Possesses information about the crime3. Has been, is being, or is likely to be helpful
a. Detection, investigation, prosecution, conviction, or sentencing
4. Crime occurred in the U.S. or violated U.S. law
5. Suffered substantial physical or mental abuse as a result
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
APPLICATION PROCESS
Certification
Application and Supporting
Documentation
Decision byDHS
Typically takes ~28 months
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
CERTIFICATION
◉Victim must submit signed certification to apply for a U Visa◉Law enforcement certification is just one part of the overall process it does not = citizenship ◉Can be “revoked”
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
WHO CAN CERTIFY?
◉ Federal, state, and local● Law enforcement● Prosecutors ● Judges, Magistrates,
Commissioners
◉ Departments of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC)◉ Child and Elder
Abuse investigators and agencies◉ Other government
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
U VISA REQUIREMENTS• Qualifying criminal activity• Possesses information about the crime• Criminal activity occurred in the U.S. or
violated U.S. LawVictim
• Has been, is being, or is likely to be• Detection, investigation, prosecution,
conviction, or sentencingHelpful
• Substantial physical or mental abuse as a resultHarm
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
OTHER APPLICANTS
◉Parent, guardian, or ”next friend” can apply in certain circumstances●Victim is a minor or incompetent●Look to applicant re: helpfulness◉Bystanders victimization – very limited
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
QUALIFYING CRIMINAL ACTIVITY
Domestic Violence Kidnapping False imprisonment
Sexual Assault Abduction Blackmail
Rape Trafficking Extortion
Incest Involuntary servitude Witness tampering
Prostitution Slave trade Obstruction of justice
Torture Being held hostage Perjury
Female genital mutilation
Peonage Stalking
Felonious assault Fraud in foreign labor contracting
Manslaughter
Attempt, conspiracy or solicitation to commit crime or similar activity
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
HELPFULNESS
Applic
ant
Has been
Is being
Is likely to be
helpful
detection
investigation
prosecution
conviction
sentencing
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
MAKING DETERMINATION
◉Certifying agency determines “helpfulness”◉Helpfulness can include:●Calling 911●Providing a description of offender●Allowing photographs to be taken●Giving information about the offender’s
whereabouts●Statement about prior bad acts
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
NOT REQUIRED
◉Conviction◉Charges filed◉Offender arrested◉Testimony at trial◉Necessary witness◉Within Statute of Limitations◉Offender is identified◉Offender alive
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
HYPOTHETICAL #1
What if an immigrant victim reports being a victim of domestic violence and the offender is deported before he can be arrested?
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
HYPOTHETICAL #2
What if an immigrant victim of sexual assault cannot identify the offender, but gives a physical description and submits to a sexual assault forensic exam?
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
HYPOTHETICAL #3
What if a male victim of armed robbery testifies at the trial of the offender, but the offender is convicted of a lesser offense?
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
HYPOTHETICAL #4
What if a victim of trafficking is recovered during a sting operation and she provides a statement, but does not testify at trial?
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
CERTIFICATION QUESTIONS
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
“UNREASONABLY REFUSED”
◉Provide explanation◉Still can certify that applicant is a victim of qualifying offense and that s/he was helpful at one point◉DHS will provide applicant the opportunity to explain◉DHS makes the ultimate decision
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
CERTIFICATION
◉Prosecutors can sign certification forms●Must be designee◉Any certifying agency can certify at any
time they have probable cause◉Policies regarding certification should
be discussed at partner meetings◉Certifying prosecutor should consider
not being trial prosecutor
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
DISCOVERY
Must provide defense with any materials within the state’s control that may effect the credibility of any witness or that goes to any witnesses motive to lie or bias● Is it within the State’s custody or
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
What is considered within your custody
and/ or control?
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
WITHIN NOT WITHIN
◉Certification form◉Accompanying
documentation (e.g., police reports, photographs, medical records)◉Communications
from immigration attorney◉Attachments provided
to you
◉Application attachments not provided to you ◉ Immigration file
CUSTODY AND CONTROL
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
STATE v. MARROQUIN-ALDANA89 A.3D 519, 525 (ME 2014)
◉Court ruled there was “insufficient justification” to disclose additional documentation when the defense had the certification form◉Provided defense opportunity to cross-
examine victim and call credibility into question◉Court noted the “high level of
protection” given to documents filed with immigration
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
HAWKE V. U.S. DEP'T OF HOMELAND SEC.NO. C-07-03456 RMW, 2008 WL 4460241, AT *7 (N.D. CAL.
SEPT. 29, 2008)
“[T]he strict confidentiality of the Violence Against Women Act still applies to any petitions filed by Mrs. Hawke. While Mr. Hawke's Sixth Amendment right to Compulsory Process permits him access to some information held by the government, it does not permit him to receive absolutely privileged information like any records held by DHS here.”
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
MOTIONS TO COMPEL
◉Concede existence of certification◉Provide copy of certification and accompanying documents when in your custody and control◉Move to quash subpoena for immigration file ●Confidentiality protections ● Impermissible “fishing expedition”●Case law
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
ANALYZE CASE
• Did the offender chose the victim because of a real or perceived vulnerability?
Victim Selection
• Did the offender use the victim’s immigration status to commit a criminal act?
Criminal Act
• Was the victim prevented from reporting the crime to police because of their immigration status?
Escape Detection
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
VICTIM SELECTION
◉Chose a particular area of town to commit crime◉Target victims working in specific venues (e.g., agriculture, hospitality, or construction)◉Victimize known immigrant◉Instill vulnerability by jeopardizing victim’s immigration status
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
CRIMINAL ACT
◉Human trafficking◉Rape by threats◉Power and control within domestic violence relationship◉Threats as part of stalking or harassment◉Witness intimidation or tampering◉Robbery by threat
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
ESCAPE DETENTION
Overt and subtle threats●Deportation●”No one will believe you”●Financial ●Family cohesiveness
Challenges
Strengths
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
PRETRIAL STRATEGIES
◉Preview evidence for judge◉Brief complex legal issues◉Establish evidence that will and will not be admitted at trial◉Encourage pleas◉Requires thoughtful consideration of case well in advance of trial date
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
MOTIONS IN LIMINE
Immigration Status
• Exclusion• Limitation
Other Bad Acts
• Prior threats• Subsequent
threats or intimidation
Experts
• Victim Dynamics
• Immigration Relief
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
IMMIGRATION STATUS
◉Exclude if irrelevant (limited)●No immigration benefit provided●Not relevant to offender’s crime◉Cross-examination will be allowed as to U-Visa application●Limit scope●Opens the door to rebuttal evidence
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
PEOPLE V. ALVAREZALVAREZNO. G047701, 2014 WL 1813302, AT *5 (CAL. CT. APP. MAY 7,
2014), REVIEW DENIED (JULY 16, 2014)
“The visa was a tangential, collateral issue, and allowing evidence about it invited speculation about the legal status of both [victim] and, potentially, defendant, which was completely irrelevant to this case. The trial court was well within its discretion in excluding reference to the visa.”
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
OTHER BAD ACTS
◉Includes prior and subsequent “bad acts” ◉Does not need to rise to the level of criminal activity◉May go to prove motive, knowledge, intent, opportunity, or lack of mistake, self-defense, or accident◉Can be relevant to establish the “nature of the relationship”
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
EXPERT WITNESS◉Victim responses to trauma◉Dynamics of domestic violence
experienced by immigrant victims◉Relationships between offenders and
victims in human trafficking cases◉Victim protections under immigration
law◉Other subjects that may be outside the
common jurors understanding
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
STATE V. OLVERA-GUILLEN2008-OHIO-5416 (OHIO CT. APP. 2008)
◉Court allowed defense to call an expert witness to explain the U Visa process◉Prosecutor’s comments permissible:
“You know there is a very good reason why that U-visa program is in place because without it, people like him,
can have free rein. They rape, pillage and plunder a whole underclass of people in this country simply
because they are illegal aliens, knowing full well that they in their perpetual fear factor and their state of paranoia are not going to go running to the police.”
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
OFFENDER-FOCUSED THEME
PREYING ON THE MOST
VULNERABLE
POWER OVER THE
POWERLESS
AMERICAN DREAM
BECAME A NIGHTMARE
PICKED THE PERFECT VICTIM
BETRAYAL OF TRUST,
FAMILY, AND THE LAW
KNEW THERE WAS NO
WHERE TO TURN
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
VICTIM TESTIMONY
◉Introduce the victim to your jury◉Recreate the reality of the crime ◉Illustrate fear◉Address immigration status and U Visa application◉Emphasize immigration abuse and threats of deportation and/or separation from family
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
CROSS-EXAMINATION
◉Prepare victim for anticipated lines of questioning◉Listen for the defendant to explicitly or implicitly accuse the victim of lying for an immigration benefit
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
REBUTTAL TESTIMONY◉Once the defendant has alleged that
the victim has a motive to lie, the prosecution can introduce the victim’s prior consistent statements about the charged crime◉Door to this testimony call be opened
at any time, but is likely done during cross-examination◉Be prepared with case law and a legal
brief, if appropriate
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
PRIOR CONSISTENT STATEMENTS
◉Non-Hearsay◉Not subject to Crawford◉Any consistent statement ● offered to rebut an express or implied
charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying
● to rehabilitate the declarant's credibility as a witness when attacked on another ground
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
What statements do you usually have from a victim of a crime?
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
VICTIM STATEMENTS
◉911 call◉Statements to first responders◉Interview by detective ◉Comments made to family, friends, or coworkers◉Conversation with service providers●Community-based v. Systems-based
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
CONTINUED PRESENCECONT’D
◉Continuing Presence (CP) is granted for 1 year; can be renewed◉Does not guarantee any of form of long term immigration relief◉Can be revoked
AEQUITAS:THE PROSECUTORS’RESOURCE ON VIOLENCE AGAINSTWOMEN
GOING FORWARD
◉Hold offenders accountable by utilizing immigration relief tools to enhance victim participation in the criminal justice system◉Promote victim safety by certifying that
they are victims of qualifying offenses ◉Articulate the differences between the U