U-Visas – Gaining Legal Residency Status as a Crime “Victim”
A “U visa” permits undocumented individuals to gain legal status to remain temporarily in the United States on the basis of her status as the victim of domestic violence, sexual assault, or other qualifying offense, where they assist law enforcement with an investigation or prosecution of the offense. (See Immigration and Nationality Act (8 U.S.C. § 1101 et seq.), as amended by the Immigration Reform and Control Act of 1986 (Pub.L. No. 99-603 (Nov. 6, 1986) 100 Stat. 3359), 8 U.S.C. § 1101(a)(15)(U); see also 8 C.F.R. § 214.14 (2020).) Penal Code section 679.10(c) describes the offenses for which an alleged crime victim can seek this special visa:
(c) “Qualifying criminal activity” has the same meaning as qualifying criminal activity pursuant to Section 101(a)(15)(U)(iii) of the federal Immigration and Nationality Act which includes, but is not limited to, the following crimes:
(3) Human trafficking.
(5) Domestic violence.
(6) Sexual assault.
(7) Abusive sexual conduct.
(9) Sexual exploitation.
(10) Female genital mutilation.
(11) Being held hostage.
(14) Involuntary servitude.
(18) Unlawful criminal restraint.
(19) False imprisonment.
(24) Felonious assault.
(25) Witness tampering.
(26) Obstruction of justice.
(27) Fraud in foreign labor contracting.
See Cal. Penal Code § 679.10(c)
Under this code, law enforcement, including the investigating police agency in which a qualifying crime is reported and prosecutor involved in the case, are able to certify that the alleged victim/reporting party meets the criteria for a “U-Visa” . (See Cal. Penal Code § 679.10(a)). If the undocumented reporting party is deemed to have “been helpful, is being helpful, or is likely to be helpful to the detection or investigation or prosecution” regarding the reported crime, the police agency and/or prosecution “shall” certify that this requirement has been met in U-Visa application form, called “Form I-918, Supplement B”. (See Cal. Penal Code § 679.10(g)).
“Helpfulness” needed to qualify for the U-Visa is presumed where, “the victim has not refused or failed to provide information and assistance reasonably requested by law enforcement”. (See Cal. Penal Code § 679.10(h)). However, if the alleged victim/reporting party “refuses to provide information and assistance when reasonably requested”, the certifying official can withdraw approval regarding the U-Visa, thus disrupting the process and effort to obtain legal status. (See Cal. Penal Code § 679.10(l)).
Not only can the alleged victim or reporting party apply for legal status through the U-Visa process, but also spouses or unmarried children if the alleged victim/reporting party is over 21 years old, or spouses, unmarried children, parents, and unmarried siblings under 18 years if the victim/reporting party is under 21 years old. (See INA § 101(a)(15)(U)(ii)).
Thus, the U-Visa process creates a motive and opportunity for those seeking to gain legal status for themselves and their family members in the United States to fabricate allegations of domestic violence, sexual assault, and other qualifying criminal allegations – and keep up their lie when the process has begun – in order to obtain the benefit of the U-Visa.
While Relevant, Judge’s Have Authority to Exclude Evidence of U-Visa Applications
At trial, an attorney may cross-examine a witness about the witness’s motive to fabricate and bias. (Cal. Evid. Code § 780(f)). “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness,” including by “cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness.” (Davis v. Alaska (1974) 415 U.S. 308, 316). “The partiality of a witness is subject to exploration at trial, and is `always relevant as discrediting the witness and affecting the weight of his testimony.'” (Id.).
Clearly, that an alleged “victim” stands to benefit in the form of legal status in the United States as a result of his or he testimony would appear to be a clear motive to fabricate evidence under Evidence Code section 780(f). Unfortunately, in a recent opinion of People v. Villa (2020) 55 Cal.App.5th 1042, where a trial court excluded a defense attorney from cross-examining the alleged domestic violence victim about her application for a U-Visa, the Court of Appeals ruled that, while the U-Visa application was relevant to the credibility of the witness, that the evidence would unfairly prejudice the jury against the complaining witness, and possibly confuse the jury regarding the issues of the case. (Id. at 1052-1054). The Court concluded:
We conclude, where an abuse victim has provided the same basic testimony about suffering abuse before and after learning of the U visa program, the probative force of the evidence she submitted an application for such a visa is significantly outweighed by the risks of prejudice to the victim and of confusing the jury and taking up undue trial time to explain the potential for bias.
Villa, supra, 55 Cal.App.5th 1054
As a result of this reasoning, the Court ruled that the exclusion of the cross-examination of the alleged victim regarding her U-Visa application was proper and not error.
While Villa is a disturbing case for those falsely accused of domestic and sexual abuse crimes whose complaining witnesses are undocumented and are abusing the U-Visa process for their own self-interest, the California Supreme Court will have the final say as to the power of a Court to exclude such important evidence to impeach such a witness at trial.
Charged with Domestic Violence or Sexual Assault? Call Honeychurch & Boyd
If you are charged with any domestic violence, sexual assault, or related conduct, you need an experienced criminal defense team behind you to assert and defend your rights in Court. At Honeychurch & Boyd, we have assisted the communities of Solano, Yolo, and Napa Counties defend such charges since 1978. Call our Fairfield office today at 707-429-3111 for a free consultation to determine how we can assist you in fighting your case to achieve the best possible result.