US deporting crime victims while they wait for special visa

For victims of crime on U.S. soil who are living here illegally, a special visa program encourages them to help solve their cases and catch criminals, and often provides their only clear path to citizenship.

But as Republican President Donald Trump’s administration has taken a harder line on immigration, U.S. Immigration and Customs Enforcement appears to be stepping up the detention and deportation of people who have applied for the so-called “U visa.”

“These cases come up on the regular,” said Cecelia Friedman Levin, senior policy counsel at ASISTA, a group that works with advocates and attorneys helping immigrant survivors of violence. “What that does, to my mind, is undermines the spirit of the protection to begin with.”

Through the program, petitioners are able to get a visa, and then a green card, before eventually applying for citizenship. But because of a long process and apparent policy shifts – something ICE denies but for which advocates have provided evidence – immigrants are now being swept up before they have a chance to legalize.

Their applications are still active even after they’re deported, but they can be separated from their families for years while they wait. And advocates argue some applicants came to the U.S. after fleeing violence or threats in their home countries and face danger if they return home, even temporarily.

Most important, they say, an undermined U visa program discourages the reporting of crimes committed here because immigrants are less likely to come forward as victims. That, they say, leaves perpetrators on the street to offend again.

Some of those fingered for deportation have also committed crimes of their own – often minor ones – while living in the country illegally and came to authorities’ attention that way. But the program’s guidelines are clear: Even commission of some serious crimes doesn’t always disqualify an applicant. Only extreme charges such as genocide and Nazi persecution completely bar a candidate. People with a criminal history must file an additional waiver with their petitions but aren’t automatically banned.

Bernardo Reyes Rodriguez, who lived in Ohio until recently and who qualifies for a U visa through his wife, came to the United States because of death threats from what he believes were members of drug cartels looking for money. He said he came to U.S. authorities’ attention for deportation because of a misdemeanor driving conviction. Now he is in Mexico, separated from his pregnant wife and his 8-year-old stepson, while he waits what could be years in a place where he feels unsafe.

“What I know is in Cincinnati,” he said. “I make my whole life there. I have my family there.”

Another U visa applicant who came to the U.S. illegally and was shot during a mugging in Kansas was deported to Honduras; he told The Associated Press gang members recently climbed onto his bus and shot the driver in the back of the head.

Recently retired ICE Acting Director Thomas Homan, in a late April interview with the AP, denied any changes to U visa protocol. On June 21, the Department of Homeland Security, which oversees both ICE and U.S. Citizenship and Immigration Services, wrote “there have been no changes to … policies or procedures regarding the detention of victims or witnesses of crimes.”

Homan could not say for certain whether someone with a pending U visa petition could be deported.

“It’s case by case, right?” he said. “Is the person a national security threat, a public safety threat? Do they have criminal convictions? How strong is the U visa case? I could not possibly answer that question.”

ICE did not respond to questions from the AP in July about why misdemeanors would result in deportation or about the apparent uptick in such removals.

There is no official count of how many immigrants are being affected, but the AP interviewed several attorneys nationwide who see a pattern.

Cincinnati-based lawyer Deifilia Diaz said five clients were forced to leave. Alicia Kinsman, managing attorney at the Connecticut Institute for Refugees and Immigrants, had one in removal proceedings, and another attorney in Wisconsin reported her client was facing deportation. Los Angeles-based lawyer Alma Rosa Nieto said that as a legal analyst for Telemundo, she now fields questions she never received before about relatives who have been removed despite pending U visa petitions.

It’s also taking longer these days for U visas to get approved, meaning there is that much more time for authorities to deport people while they wait.

U visas – one of many visa classifications identified by letters, numbers or a combination of both – were established by Congress in 2000 as part of the Victims of Trafficking and Violence Protection Act. They are limited to 10,000 per year to crime victims themselves, in addition to some for qualifying family members, such as Reyes Rodriguez. The program has grown in popularity, and USCIS recently has been giving out around 18,000 visas total per year. By the end of the first quarter of fiscal year 2018, there were over 200,000 petitions pending.

USCIS tells petitioners not to inquire about applications unless they date back further than mid-2014, and immigration enforcement no longer seems to always take a pending petition into account when choosing whether to deport someone, advocates say. That would break from past practice, and a court ruling.

A 2011 memo from John Morton, then the ICE director, said that in most cases concerning an immigrant who is a crime victim and does not pose security concerns, have a serious criminal history or threaten public safety, “exercising favorable discretion, such as release from detention and deferral or a stay of removal generally, will be appropriate.”

And a decision by the Department of Justice’s Board of Immigration Appeals in 2012, prompted by a related ruling by the 9th U.S. Circuit Court of Appeals in 2010, established that most U visa petitioners in removal proceedings should be able to remain stateside while they wait for their visa to be approved.

But now, the Department of Justice under Attorney General Jeff Sessions is discouraging or altogether nixing the discretion judges once had, said Sarah Pierce, a policy analyst at the nonpartisan Migration Policy Institute.

“This is part of a larger trend in this administration,” she said, “of not respecting the individuals who are qualified to apply for immigration benefits while they’re also in removal proceedings.”

Meanwhile, if a petitioner has a final order of removal, ICE will now give USCIS only five days to respond saying a U visa application is credible before moving forward with deportation, according to minutes from a teleconference between USCIS and the American Immigration Lawyers Association. That time frame was the minimum allowed back in 2009, before the 9th Circuit decision and 2011 memo, and when the number of pending petitions was around 20,000, not 200,000.

Today, that window, Pierce said, is an “insane turnaround in the immigration world.”

Gustavo Mendoza, the Honduran who was shot in the leg by two men trying to rob him, came to authorities’ attention after he was arrested for violating a domestic violence protection order his ex-girlfriend later dropped. He remains in Honduras.

Reyes Rodriguez, 25, came to the United States from Michoacan, Mexico, when he was 18. The area where he grew up was rife with corruption, kidnapping and violent threats toward people who appeared to have money.

His mother and sister, he said, received such threats, and his family insisted he move to the United States for his safety. He came to the U.S. illegally in 2010, met Jeniffer Reyes in 2012 and married her in 2015.

His wife, who moved here as a child and whose family overstayed a U.S. visa, had been abused by the father of her first child. After cooperating with police, she filed a U visa petition for herself and Reyes. In spring 2017, ICE agents showed up at the couple’s home after Reyes Rodriguez was convicted of reckless driving a year before. He told them about the pending visa but was arrested anyway.

Then, after a judge said he could wait for the visa in Mexico and it became clear he would be deported, he and Jeniffer left voluntarily.

The couple would sometimes speak in English after their return to Michoacan, Jeniffer said, which made them targets because locals assumed they were wealthy. Reyes Rodriguez’s mother started getting text messages with threats her son would be killed unless she paid up.

In March this year, after the couple felt Mexican police had trivialized the threats and Jeniffer discovered she was pregnant, they decided to return to the U.S.

Jeniffer traveled to Texas first; smugglers were supposed to bring Reyes Rodriguez to join her. After five days, Reyes Rodriguez called to tell her he had been caught while crossing and would serve jail time before being deported. He was sent back to Mexico at the end of June.

Now, Jeniffer is five months pregnant. Every day, she said, her 8-year-old son asks where Reyes Rodriguez, the man he considers his father, went.

“I know eventually we have to tell him what’s going on,” she said. “But it’s not right now.”

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Associated Press reporter Kate Brumback in Atlanta contributed to this report.

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