Immigrants can apply for a special visa to stay in the United States if they’re victims of a crime and assist investigators.
The visas are intended to make particularly vulnerable victims feel safe and willing to come forward and help investigators solve crimes, because it gives them a shot at legal status.
But if the Pierce County Sheriff’s Department handled the case, immigration attorney Cynthia Irvine tells her clients not to bother. The department routinely declines to sign paperwork that victims need to get the visas, she and other local immigration lawyers say.
“I’ve gotten to the point where I tell clients to not even try,” said Irvine, head of the Washington State Chapter of the American Immigration Lawyers Association. “I feel guilty taking their money when I’m almost certain they’re (Pierce County) going to deny.”
Sheriff’s officials say they do approve the requests, but only if the victim is needed for the investigation. They say they consider the visas a law enforcement tool, not something primarily to help immigrants.
“If a case is not going to be pursued or adjudicated, or if a witness or a victim is not needed for the case to proceed, then the reason for a victim or witness to remain in the country is no longer present,” Sheriff Paul Pastor said in a statement.
“It is my understanding that the program is to further the interests of the criminal justice system and not the interest of immigration.”
The federal law that created the special immigration status, called U visas was passed in 2000. The visas allow immigrants who are crime victims and who help the investigation of the crimes stay legally in the United States for four years and, after three years, seek a green card.
The law is meant to help both law enforcement and crime victims, according to the website for U.S. Citizenship and Immigration Services, which reviews U visa applications.
“The legislation,” the agency states, “was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity.
“The legislation also helps law enforcement agencies to better serve victims of crimes.”
Attorney Chelan Crutcher, who had a case denied by the Sheriff’s Department last year, describes U visas this way:
“It’s a tool that can encourage people to come forward and feel safe talking to the police when there’s a crime. It’s sort of an incentive in some way, but more importantly, it allows immigrants to feel like they should talk and they’re going to be protected when they do.”
DISCRETION TO DECLINE
To apply for a U visa, a crime victim needs paperwork (called a certification) that explains the crime, and verifies that he or she helped with the investigation.
In Pierce County, that’s where the Sheriff’s Department comes in.
Undersheriff Rob Masko and Deputy Prosecutor Cort O’Connor, a legal adviser to the agency, review the requests each month. They don’t make the decisions lightly, they say.
“The allegations that there are blanket denials are false,” O’Connor said. The department is just exercising its discretion over whether to sign, Masko said in an interview before his retirement at the end of June.
“They think everything they send us we should just sit there and sign,” he said of the immigration attorneys. “They don’t think the Sheriff’s Department should exercise any discretion, and that’s contrary to the federal law.”
The department doesn’t keep statistics of how many requests are approved or denied, O’Connor and Masko said, but in May they signed three certifications and declined to sign two. Getting about five requests a month is typical, they said.
At the request of The News Tribune, Irvine asked the roughly 500 members of her immigration attorney group how many had had U visa certification requests denied by the Sheriff’s Department since June 2016.
The lawyers who responded came up with 10 cases that were denied and one that was approved.
For comparison, a Tacoma police legal adviser said the department approved 44 requests since June 2016 and denied nine.
Seattle police approved 125 and denied five, a spokesman said. The King County Sheriff’s Office approved 90, denied nine, and was still reviewing 58.
Masko and O’Connor said many attorneys send requests for crimes sheriff’s officials don’t think qualify for the visa.
“We need to talk with each other, because clearly there is some misunderstanding going on,” O’Connor said.
The immigration attorneys argue that, under the federal law’s provisions, the Sheriff’s Department doesn’t need to decide whether a crime qualifies.
“Really, all they have to do is say: ‘Yes, this person cooperated,’ or ‘No, this person didn’t cooperate,’” Crutcher said.
Tacoma police legal adviser Mike Smith said the agency tends to sign U visa certifications, “unless there’s something that is blatantly fraudulent.”
He thinks there was confusion when the program started about law enforcement agencies’ role.
His advice to his department?
“Don’t get caught up in whether or not we’re actually giving someone the visa,” he said, adding the certification is just one step in that process.
Irvine said she first noticed the Pierce County Sheriff’s Department was turning down requests for certifications about a year ago, when she and other attorneys started receiving what looked like a form letter denying their requests.
“The same canned language,” she said.
That’s also about the time Masko and O’Connor started reviewing the requests. Before that, others at the Sheriff’s Department handled them.
When attorneys asked why a request was denied, they were not given an explanation, Irvine said.
“They just say: ‘It’s in our discretion to decline, we decline,’” she said.
That’s true. The federal law gives law enforcement agencies the discretion to sign as many or as few U visa certifications as they want, no matter the circumstances.
Irvine said she knows of no other places in Washington that deny as many requests as Pierce County.
“We have our places that are a little more difficult than others, but I’m not aware of any place that just across the board says no to everyone like Pierce County is doing,” she said.
“... These are domestic violence victims, sexual abuse victims. These are cases that get certified in other areas.”
‘WE HAVE NO OTHER OPTIONS’
One of the Pierce County cases denied was that of a Graham-area man, named Jose.
He asked to have his last name withheld, because he said he worked with the police in Mexico and fears cartel members could target him. He also doesn’t want to hurt his immigration status or that of his children, he said.
Jose and his attorney, Chelan Crutcher, said he asked the Sheriff’s Department to sign his certification after his 14-year-old daughter stabbed him with a pair of scissors during an argument. She ran away from home after, and he called police.
“His daughter was having major issues, and even though he was terrified she was going to get deported, he didn’t feel like he had another choice,” Crutcher said.
She thought it would be an easy U visa case, but it wasn’t.
“To me it seemed crazy when they denied his request,” Crutcher said.
Asked why that happened, O’Connor and Masko said that by the time Jose applied for the certification they didn’t need him anymore.
“The criminal case was already resolved,” O’Connor said.
That doesn’t stop the department from approving a request, Crutcher and other local immigration attorneys note.
Federal law says it’s OK to apply for a U visa, no matter how long it’s been since the crime was committed or whether the crime is going to be prosecuted.
They also point out that getting a certification signed doesn’t guarantee a visa will be issued, it’s just part of the application process. U.S. Citizenship and Immigration Services makes the final decision.
In Jose’s case, a U visa is the only way he can pursue legal residency, Crutcher said.
“We have no other options for him,” she said. “It leaves him in a really vulnerable position.”
Jose said his daughter, now 15, is doing well after therapy.
But the 43-year-old single father worries about the family’s future.
As the perpetrator of the crime, his daughter wouldn’t have benefited from a U visa, but he had hoped it could help his 12-year-old son get legal residency.
“Sometimes I feel bad, because he’s asking me: ‘Hey, Pa, what happens if I need to go to university or college, and they’re asking me for a (Social Security) number?’” Jose said.
He works for a roofing company but would prefer to do database work, or something in the aerospace industry. That’s not an option without legal status.
“I didn’t know that those guys are so hard signing papers,” Jose said of Pierce County.
SIGNED, SENT, AND WAITING
In August, the Sheriff’s Department signed a certification for Marie, who asked to be identified by her middle name. A domestic violence victim, she said she fears retaliation from her abuser.
With Marie’s help, police arrested her ex-husband after he assaulted her, and he was deported. Her sister later told her about the U visa program, and they called attorney Shannon Underwood in 2013.
“This is probably the longest by far that it’s ever taken us to get one of these done,” Underwood said.
The attorney said their first certification request was in 2013 to the prosecutor’s office. O’Connor said he had no record of Marie making a 2013 request, but did have one of a request July 19, 2016.
Her certification was signed Aug. 8.
The department agreed to sign, O’Connor said, because when the request was reviewed her ex-husband had a pending misdemeanor assault case and prosecutors might have needed Marie in the future.
Meanwhile, she sent off the certification with her U visa application, which is pending.
And it will be for awhile: The United States has a 10,000-person cap for U visas, which means a waiting list.
With the time needed to process the application and make it through the waiting list, it takes four or five years to get a U visa, attorneys say. Three years after that, a visa recipient can apply for a green card.
Should her visa be approved, Marie thinks she’d like to be a nurse.
“I think it would open some doors to that,” she said.
It also would give her family security, said Marie, who’s remarried and has three children.
“It’s very important for us, obviously, to be here,” she said. “To be together.”
Marie said she hopes Pierce County officials consider how the decision to sign certifications affects families.
“They should know every case is different,” she said, “but I believe every case is similar in that we definitely had to go through something so horrific, and then to not know if you’re going to be able to stay here, it puts fear in you.”