Articles Posted in Immigration Relief for Victims of Crime

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On February 12, 2013 the U.S. Senate voted to ratify the Violence Against Women Act by a vote of 78 to 22. This now leaves reauthorization of VAWA up to the members of the U.S. House of Representatives. Last year, both chambers of Congress presented bills that would have renewed VAWA, but differences in provisions regarding gay, immigrant and Native American victims led to inaction. With such overwhelming support in the Senate, and removal of a controversial provision which would have increased the number of U visas, the prospects for Congressional approval are markedly improved.

As an immigration lawyer in Texas, I am often confronted with cases involving women who have been subjected to violence at the hands of their husband or a family member. This has been addressed in the past by the introduction of the U visa program, which grants battered wives, children, or siblings under the age of 18 with a four year visa that allows work eligibility. Currently the number of U visas is capped at 10,000 per year, but Senator Patrick Leahy, who authored the latest version of VAWA, had originally intended to raise this number. In order to receive bipartisan support in the Senate and improve chances of passage in the Republican controlled House, Sen. Leahy left out the U visa changes. He stated that he would seek to enter this provision into immigration reform acts that would be presented later in the year.

The Violence against Women Act was initially passed in 1994 and was reauthorized by Congress in 2000 and 2005. A key provision of VAWA allowed victims of violence to seek entry to the U.S. through the U visa program if they could establish a familial relationship with the abuser, shared residency with the abuser, maintained good moral character and had been a victim of battery or criminal cruelty in the past.

U visas are granted to individuals who have received physical or mental abuse resulting from rape, torture, false imprisonment, or a number of other criminal actions. Applicants must fill out appropriate petitions and receive certification from a law enforcement agency attesting to the applicant’s status as a victim of domestic violence. Although this is established under the Violence Against Women Act, the applicant does not have to be female. Applicants do not need to possess legal immigrant status to apply for U visas.
As a seasoned immigration lawyer in Texas, I often encounter situations where a wife or family member has been criminally abused by someone at their residence. This heartbreaking situation is often complicated by the fact that those involved may not possess proper immigration documentation, which may inhibit seeking help from law enforcement. Now that VAWA appears to be poised for renewal, I am eager to begin recommending to individuals in these situations to continue to apply for U visas.

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As an immigration attorney, I am a keen observer of judicial decisions, especially in cases with unique circumstances. The case of Fofana v. Holder is just such a case; Moussa Fofana sought asylum in the U.S. based on the Convention Against Torture (CAT). He attested that he had been beaten by security forces in his native Republic of Guinea and feared persecution if returned. The original petition to the immigration judge, appeal to the Board of Immigration Appeals (BIA), and his appeal to the U.S. Eighth Circuit Court were all denied.

Moussa Fofana originally attempted to enter the U.S. using a false passport and other fraudulent documents. He went before an immigration judge and testified that he was a Malinke, a persecuted ethnic minority. He also stated that he had joined a political party called Rally of People in Guinea (RPG), in which he obtained a leadership position.
He goes on to testify that he was arrested twice by Guinea security forces who beat, abused and stabbed Fofana. After his release, Fofana stated that he sought medical care. It was following this second arrest that he attempted to gain entry to the United States.
The BIA ruled against Fofana on the basis of inconsistent and implausible documentation and testimony. While testifying that his second arrest took place on April 24, 2002, and following his release two weeks later, he sought treatment from a physician, he submitted a document claiming he received medical treatment on May 22, 2002. Fofana attempted to correct this inconsistency by stating he had actually visited two doctors. The submitted document also did not indicate that Fofana had been stabbed by police, but rather had received an assault and battery.

Furthermore, Fofana stated that the arrests occurred in the aftermath of the national presidential referendum. News reports, however, record the referendum occurring in 2001, a year before of the events described by Fofana. A final contributing factor to the appeals denial was Fofana’s demeanor throughout the proceedings. When asked simple questions, Fofana often responded evasively and became verbally combative.

The Eighth Circuit Court based its decision on the factual findings of BIA, which could not be refuted by the appellant. The inconsistencies in testimony and documentation which led to the decision by the IJ and BIA were not refuted in the testimony to the circuit court. Furthermore, the credibility finding used to make prior decisions was upheld to be admissible and pertinent.

The immigration system is a complex one, but there are a number of important lessons to be learned from cases like Fofana v. Holder. First, be sure of your facts. Secondly, provide documentation that supports your story. Finally, your character is as an important an issue as the facts of the case.

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The U nonimmigrant status is a nonimmigrant (temporary) status that allows non-citizen victims of crime to stay in the United States, obtain employment authorization, obtain permanent resident status, and help certain family members obtain immigrant status as well. As a U visa attorney, I screen all of my clients for the possibility of qualifying for this unique immigration benefit.

What makes the U visa a unique option is that it is available for victims of crime regardless of their current legal status or how they entered the country. It’s also available to those who are involved in deportation proceedings.

Although this immigration benefit is commonly referred to as a “U visa” most clients who are in the United States and qualify will not receive a U visa, but rather, they will be considered to be in U nonimmigrant status. This distinction is important because U nonimmigrant status does not allow people to travel. Visas are needed to travel.

U visa lawyer
are normally looking at several factors to determine if the client qualifies for U status. These factors include:

1. What is the criminal activity and does it fit the U petition requirements?
2. Has the person suffered substantial physical and/or mental abuse?
3. Has the person been helpful, or will the person be likely to be helpful in the criminal investigation and prosecution of the person who committed that crime?
4. Did the criminal activity violate the laws of the United States?
5. Is the person admissible to the United States?
6. Did the crime occur within U.S. territory?

U visa status is available for both men and women. In fact, our law firm has successfully won cases for male clients. U status is granted to individuals who suffer from a variety of crimes — it is not limited to victims of domestic violence.

One of the most difficult aspects of obtaining a U visa is that, unlike VAWA cases where individuals can self-petition, the U visa requires certification from a third party. This certification must be included in the petition and must come from a federal, state, or local agency. Individuals who may do this certification include Judges, law enforcement agents, and prosecutors. The certification must state that the individual seeking U status has been helpful, or is likely to be helpful in the criminal investigation or prosecution of the person who committed the crime. When looking at your immigration options, consider meeting with a lawyer who has experience in U status cases. The U status option is often overlooked by lawyer who do not normally practice in this area of the law but can offer a life-changing benefit to you if you qualify.

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U visa lawyer all over the country are familiar with the struggles faced by victims of crime who do not have legal status under our immigration laws. An article in the San Francisco Daily told the story of Mardoqueu Silva, a Brazilian national who was 21 years of age when his life changed for ever. Illegally overstaying his tourist visa for four years and counting, he took the jobs he could get without papers — he was a pizza delivery man. Mr. Silva 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 twenty-something 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. 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. With the help of his U visa lawyer, this event changed Mr. Silva’s life in the U.S. for ever. He now qualified for a U visa.

The purpose of the U visa is to give victims of certain crimes temporary legal status and work eligibility in the United States for up to four years. The U visa was intended to improve immigrants’ unwillingness to call law enforcement. It makes sense: who wants to call the police only to be deported?

There is a lot of opposition to the U visa. Some have claimed that U visas encourage illegal immigrants to stay in the United States or to come here illegally. Some argue that U visa applicants get benefits out of reporting crimes that U.S. Citizens don’t get — arguing that the U visa rewards people who should not be here in the first place by giving them “residency” or “citizenship.”

But it is important to understand that it does not work that way. There is no “easy” ride for victims of crime. In fact, when an applicant applies for a U visa there are many hurdles to go through before the applicant can even apply, including getting certification of the crime, a sometimes seemingly impossible and complicated legal task. Additionally, if the U visa is approved, the intending immigrant does not get permanent residency. Instead, the U visa applicant gets U visa nonimmigrant status, which in essence means the immigrant gets a work permit for up to four years. However, the benefits do not last for ever.The applicant is only eligible to apply for permanent residency (not citizenship) after three to four years of having his U non-immigrant status. A whole new immigration case and process must be started to begin the residency process. Despite how newspapers and the news describe the U visa, it’s not an “easy” way to get residency. It’s a challenging process that takes time and typically requires the expert knowledge of a U visa attorney.

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