B. Survey Findings
1. Analysis by Certification Policy Categories
44 See Appendix I.
45 Id.
The survey responses included information on certifying agencies in forty-two states and Puerto Rico. It is important to recognize that the survey includes
information from those attorneys and advocacy agencies seeking certifications, and not from the certifiers themselves. Moreover, certification policies are sometimes ad hoc, and subject to change. Given those disclaimers, the survey respondents have
first-hand information about certification practices as they are the ones interacting with law enforcement certifying agencies on behalf of their clients.
The states with data from the highest number of municipalities include California (104), North Carolina (60), Texas (46), Illinois (31), and Georgia (26).46 The states
which are not represented in the survey data are Delaware, Maine, Mississippi, Montana, North Dakota, South Dakota, West Virginia, and Wyoming.47 A total of 280 attorneys completed the survey. The majority of respondents had attempted to obtain I-918B certification forms between 6-50 times (54%).48
The data on agency practices is found in questions two through ten of the survey which ask attorneys to provide a list of agencies which fit into three categories. These categories are:
• Agencies which refuse to certify I-918B certifications under any circumstances;
• Agencies which refuse to certify I-918B certifications under particular circumstances and/or for particular applicants; and
46 Appendix II
47 Appendix II. One attorney from North Dakota did provide information on the lack of available advocates in North Dakota to provide services for potential U visa petitioners.
48 Appendix II. This includes the category of 6-20 attempts (29%) and 21-50 attempts (25%).
The survey responses include information on certifying agencies in forty-two states and Puerto Rico.
• Agencies which always (or almost always) certify I-918B certifications for applicants who meet the “helpfulness” and statutory crime standards of the statute.49
Respondents identified certifying agencies at the local, state, and federal level, and included police departments, sheriff’s offices, district attorneys, social service agencies at the local and state level, and other federal and state agencies, including judges.
Respondents reported that approximately 165 agencies across the country refuse to certify an I-918B form under any circumstances.50 These agencies are located in thirty-five states.51 Moreover, the data collected in the I/HLP Clinic survey identified six municipalities across the country in which all or almost all certifying agencies in the jurisdiction have a blanket policy against certifying. These municipalities are:
• Gwinnett County, Georgia;
• Rockingham County, North Carolina;
• Dallas, Texas
• South Sioux City, Nebraska
• Riverside, California
• McClennan County, Texas.52
In these counties, immigrant victims are effectively denied access to the U visa remedy provided by Congress as they are unable to fulfill the requirement of obtaining an I-918B certification from law enforcement agencies. Potential U visa applicants from these jurisdictions and others that were not reported in this survey may have an otherwise
49 See Appendix II. Data collected under these categories reflected different experiences for some attorneys than for others for a few agencies. There was also significant overlap between category one and two, refusal to certify and certifying under particular circumstances. In a few surveys attorneys noted that the policy of an agency had changed recently. This data should be used as a guide and those who are uncertain of policies should follow up with the agency for accurate and timely information on certification policies.
50 See Appendix II. B.
51 Id.
52 Id.
particularly strong application for a U visa, but have been denied any opportunity to pursue it as they are unable to receive the required I-918B certification.53
Approximately 80 percent of respondents have worked with an agency whose certifying practices fit into the second category, that is, agencies that have a limited U visa certification policy or otherwise impose additional criteria that go beyond the scope set forth in U visa statute, regulations, or DHS guidance and memoranda.54 Although certifying agencies are afforded discretion as to when they provide I-918B certifications to qualified victims, the respondents of the survey data identify over 190 certifying agencies that certify according to standards that seem to go beyond the scope of what was intended by Congress. For example, advocate and attorney respondents report that:
• Some certifying agencies will issue I-918B certifications only for criminal cases that have occurred within a particular time period. 55
• Other certifying agencies will only provide I-918B certifications if a case is open;
others only or the case is closed.
• Some certifying agencies will only issue I-918B certifications if a case has not gone to prosecution regardless of whether the victim was helpful in the
investigation stage and/or prosecutorial stage.
• Some certifying agencies will only provide I-918B certifications to victims if the case has been prosecuted even when a helpful victim has no control over a District Attorney’s decision whether to prosecute.
• Other agencies will not certify for victims of certain crimes notwithstanding that they are enumerated as qualifying crimes in the U visa statute.56
53 See infra Section Three.
54 Appendix II.
55 Appendix II. C.
• Still other agencies refuse to certify for parents of children who are victimized by an enumerated crime although the statute and DHS guidance declares them eligible as “indirect victims.”57
Victims in jurisdictions in which both the police department and district attorney’s office utilize such time or case-phase limited categories to deny certification are often shuttled back and forth between certifying agencies based on arbitrary time limits and the procedural status of the case against the perpetrator, and are thus prevented from
obtaining a certification from any agency.58 In many instances, responses to the survey reported conflicting information, as agencies were listed in both categories for refusal to certify and certifying under arbitrary standards. These discrepancies are indicative the fact that different advocates have mixed experiences with a particular jurisdiction, and may be caused by the ad hoc and transitory policies of agencies. 59
Such inconsistent procedures and policies add to the problematic phenomenon of
geographic roulette which immigrant victims encounter in attempting to obtain a I-918B certification.
56 Id.
57 Id.
58 See Appendix IV.
59 These mixed experiences of advocates may also be due to the individualized facts of the victim’s case and the discretion of the law enforcement agency to issue an I-918B certification on a case-by-case basis.
Best practices included a sheriff’s office that provided referral services for victims who may be eligible for the U visa, a district attorney’s office that insures that certifications are acted upon in a timely manner, a police department that certifies where a victim has been helpful with the investigation without considering limiting certifications to recent crimes only, and a police department that certifies without concern for whether the case was eventually prosecuted. Such practices reveal the actual and potential benefits which law enforcement, communities, and immigrants share from full and proper implementation of the U visa statute.
Questions eight through ten of the survey asked practitioners to list certifying agencies that always (or almost always) certify I-918B certifications that meet the helpfulness and statutory crimes standards of the U visa statute, and to describe the best certifying practices across the country. The respondents in the survey identify those municipalities in which all or the majority of certifying agencies act within proper
discretion because they certify if the applicant is a victim of a statutory enumerated crime and meets the helpfulness requirement.60 These include:
• San Francisco, California
• Tarrant County, Texas
• Los Angeles, California
• Phoenix, Arizona
• Mecklenburg County, North Carolina.
Moreover, practitioners reported that police departments, Sheriff’s offices, and District Attorney’s offices around the country are seeing the full benefits of community policing by implementing the U visa certification process—a process that builds trust with
immigrant communities. Respondents included examples of practices that demonstrated a commitment to implementation of the U visa program to benefit crime victims and enhance relationships between immigrants and law enforcement. Best practices included a sheriff’s office that provided referral services for victims who may be eligible for the U visa, a district attorney’s office that insures that certifications are acted upon in a timely manner, a police department that certifies where a victim has been helpful with the investigation without considering limiting certifications to recent crimes only, and a
60 See Appendix II. A.
police department that certifies without concern for whether the case was eventually prosecuted. Such practices reveal the actual and potential benefits which law
enforcement, communities, and immigrants share from full and proper implementation of the U visa statute.
The responses to the survey indicate that only three percent of the agencies with which respondents work on U visas have any semblance of an internal appeals process.61 These appeals typically involve an additional level of review by a higher ranking official, or an additional chance for attorneys to advocate to the certifier. Although it is not known from the survey information whether these review processes provide meaningful appeal
oversight, they have the potential to assure that
“certifying agencies to develop internal policies
and procedures so that certifications are properly
vetted.”62 In doing so, such agencies give immigrant
crime victims an opportunity to be heard and
interact with law enforcement in a positive manner consistent with the legislative intent of the statute. Overall the data on certifying agencies across the country indicates certification policies are often in flux, and may drastically differ from county to county and year to year.63 As stated earlier, in some municipalities, all of the certifying agencies in the jurisdiction categorically refuse to certify I-918B forms, while in others all of the agencies fully comply with the statute in certifying when there is a helpful victim of a qualifying crime. The data indicates that in many states, neighboring municipalities have
61 Appendix II.
62 8 CFR 214.14(c)(2)(i).
63 See Appendix II.
The survey data gathered for the purposes of this project indicates that only three percent of the agencies with which respondents work on U visas have any semblance of an internal appeals process.
differing policies. The survey findings suggest that many victims around the United States are truly facing a problem of “U visa geographic roulette.”