crime

When Recalling the Trauma of Sexual Violence Is Your Best Shot at a Visa

America's U Visa offers hope to survivors of awful crimes, even under Donald Trump. But applying can be its own kind of nightmare.

by Opheli Garcia Lawler
May 9 2018, 9:34pm

Image by Xavier Lalanne-Tauzia

Angy* is a survivor. She came to the United States from Colombia when she was three, and was sexually assaulted in her new home over a period of years. She never considered reporting the crimes—she was a child and an undocumented immigrant who didn’t know how law enforcement in the United States worked. But as time went on, the abuse intensified. By the age of eight, the extent of the violence required Angy to go to the hospital, though even then, she did not want to inform authorities: it was hospital employees who called the police, who in turn called child services, she recalled in an interview.



After that, Angy remained undocumented as she went through foster care and graduated high school—rarely, if ever, bringing up her childhood abuse. Then, at age 22, Angy tried to secure Deferred Action for Childhood Arrivals (DACA) status; the program seemed like it might provide a degree of stability for her life in the United States. But when Angy disclosed her childhood abuse in a casual conversation with a lawyer, the attorney suggested DACA wasn’t the best choice for her. Instead, she was encouraged to apply for a U Visa—as the victim of a violent crime, the lawyer said, Angy seemed likely to qualify.

Local organizations helped her collect the paperwork and documentation necessary to prove she was a victim in the eyes of the law—an experience Angy described as traumatizing in and of itself. But it paid off: She got papers at the age of 23, ten months after applying.

Not that anyone seemed to understand the pain undergirding her "victory."

"Sometimes, we’re all focused on adjusting our status that we don’t think about the things that we say," Angy told me. "I had a lot of people congratulate me, and tell me that I was so lucky to be able to apply for something without thinking about where that was coming from."

As the headlines of the past seven months have made clearer than ever, sexual misconduct and violence are an epidemic in the United States. But for undocumented people who have been victims of violent sex crimes, these extremely traumatic experiences can become inextricably tied to their futures by way of America’s U Visa application process—one survivors call a mess that often requires them to dig up old wounds at the behest of government scrutiny.

Angy, who is now an activist working with undocumented youth in New York City, has a deep understanding of the way the system works. But while she was going through the process of applying for the U Visa, she experienced a perverse kind of inner turmoil.

"If the crime wasn’t violent enough, if you didn’t report it, now suddenly, you’re blaming yourself for not doing the things that you should have done," she told me. In other words, when the need to prove a certain level of harm is required in order to secure documentation, the traumatic experience of being assaulted can be compounded by feelings of self doubt. Angy recalled thoughts like, "I should have spoken up. Maybe if they would have done this more, if they would have hurt me in a different way, I would have qualified for something."

Meanwhile, proving what Angy referred to as a "certain level of harm" is a multi-step process.

U Visas are available to immigrants, including undocumented people, who "suffered substantial mental or physical abuse and are willing to assist law enforcement and authorities in the investigation or prosecution of the criminal activity." These abuses include abduction, abusive sexual contact, domestic violence, rape, incest, involuntary servitude, and over 22 other crimes. To qualify for a U Visa, notably, the crime must have occurred in the United States or else violated US law.

First, an undocumented person needs to report the qualifying crime to the local authorities—and, crucially, be seen as cooperating in any ensuing investigation. Then they need to fill out the appropriate paperwork: Form I-918 and its supplemental documents serve as verification that the crime occurred and help attest to the victim's participation. These supplements require certification from the local authorities that the person applying has met the requirements of US Citizenship and Immigration Services (USCIS).

U Visas are administered under the Victims of Trafficking and Violence Protection Act, which was created by Congress and advanced by Senators Ted Kennedy and Spencer Abraham in October 2000. It included multiple initiatives to protect undocumented people from various forms of violence including human trafficking, domestic violence and sexual assault. The initiative was a bipartisan one, meant to target a wide variety of issues facing women regardless of their nationality. Around the time he signed the bill into law, President Bill Clinton said it was the "most significant step we've ever taken to secure the health and safety of women at home and around the world."

But after receiving the documentation, which grants temporary residency with the option to apply for a green card, immigrants tend to report mixed feelings about their new status.

The U Visa can give you access to jobs, to financial security, to a sense of safety. But it can come with feelings of guilt—the feeling on part of the applicant that they might be somehow taking advantage of their past. And many who come to the United States were seeking refuge from violence in their own countries, only to experience it again once they arrive here.

"It’s another assault," said Jane Christmas, a mental health counselor who works with U Visa recipients, referring to applicants who encounter new violence when they reach the United States. "They come here thinking that they’ve found a safe place. And then they start thinking that nowhere is safe."

Not that U Visas aren’t a step in the right direction in many ways—lawmakers did recognize real dangers immigrants faced when coming into the United States. Exploitation, theft, human trafficking, and sexual abuse are entirely too common during or after the often-long journey to America. An Amnesty International report found over a six-month period between 2008 and 2009 that nearly 10,000 migrants passing through Mexico were kidnapped. Migrant shelters have estimated that roughly 80 percent of women coming from Central America through Mexico are raped, according to a 2014 investigation by Fusion.

In a country that has criminalized immigration with increasing severity since 1996—and has been ramping up its militarization of that fight under Donald Trump—a U Visa can seem like the least bad option.

But the process is a fraught one. First, filing for a U Visa automatically exposes the applicant’s immigration status. Then there’s the actual bureaucratic nightmare of going through the application, a scenario Angy said took the better part of a year when she applied for her U Visa during the Obama administration. According to immigration lawyers, that saga can now last anywhere from five to seven years. Under Obama, there was an official memo granting many U Visa applicants a temporary stay; under Trump, no such protection is guaranteed, especially if there is a removal order in place for the applicant.

"ICE has been opposing continuances and also refusing to grant discretion for U Visa applicants with removal orders to remain pending the outcome of their visa petitions," explained Cristina Velez, a staff attorney at New York University’s Immigrant Defense Initiative. "I have heard of people getting removed."

A massive backlog has contributed to the possibility of being deported while waiting for the U Visa. The United States limits the number of them available to 10,000 per year. But in 2015, over 35,000 people applied for the U Visa. By the end of 2016, over 150,000 applications were pending—and even though only 3,161 of the 60,710 applications received that year were denied, the rest were stuck in limbo.

"The law has not caught up to real life," said Andres Guerra, a California immigration attorney who's worked over 50 U Visa cases. "That number isn’t useful anymore. Today they are working on cases from 2014."

When reached for comment about survivors' critiques of the program, a USCIS official said the U Visa had "brought relief to thousands of victims while supporting the drive to bring criminals to justice." The official added that while petitioners "must... be willing to help law enforcement authorities in the investigation and prosecution of the criminal activity," the agency "does not place the petitioner in front of adjudicating officers to recount their experiences."

Meanwhile, Brendan Raedy, a public affairs officer and spokesperson for ICE, stated that "the pendency of an application for a U nonimmigrant visa does not pose a legal impediment to removal of an alien subject to an administratively final order of removal. US Immigration and Customs Enforcement has discretion to stay the removal of an alien with a pending application for a U nonimmigrant visa and exercises that discretion pursuant to longstanding policy."

Despite the difficulty of the application process, the complicated relationship survivors of violent crime can have with the U Visa, and the slim chances of receiving a green card, immigrants may feel little choice but to pursue the option if they can. Other programs like DACA are even less certain because they are not firmly established in law, whereas the U Visa program is something that cannot be reversed from administration to administration. The program also has the broadest parameters: Under the statute, factors like how an applicant entered the country, being flagged for prior removal, and criminal history would not automatically exclude someone from eligibility.

Still, Monica*, who received her U Visa in the Obama era, said that under Trump, more women from her Northern California community were hesitant to come forward and seek out resources like the U Visa.

"The most traumatic thing is having to remember your trauma," she said, speaking through a translator while explaining that the process caused her a lot of psychological harm. "Telling your story three to four times, being very detailed in everything that the abuser did. Like it would be great to say that I was able to fix my status through my children or my amnesty, or through an amnesty program, but knowing that it was through an abuser, that's the most painful thing."

The wait, the recitation of past horrors, the fear that you’ll be turned over to ICE officials or that people in your community will judge you—these are just a few of the obstacles people like Monica and Angy have to face. But the alternative, somehow, is worse.

"I would go through the process again," Monica told me. "If there's a chance, an opportunity, a process, to be able to gain a social security number, just to be able to keep my family healthy, to keep my kids safe... I would go through that process. It's the only process that allows me to have a job, take care of my children, and be comfortable."

*Last names were withheld to protect the individuals' identities.

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