Non-Precedent AAO Decision Holding that Cooperation in Obtaining Order of Protection Can Meet U Visa Requirement

U-Visa petition, myattorneyusa.com

 

Introduction

In order to obtain a U nonimmigrant visa, a petitioner must be the victim of qualifying criminal activity, have suffered substantial physical or mental abuse as a result of the victimization, and have cooperated with all reasonable requests from law enforcement or other qualifying agencies in the investigation and/or prosecution of the criminal activity.

Domestic violence is one type of criminal activity that may qualify an individual for a U visa. However, not all domestic violence cases lead to prosecution. In this article, we will examine an interesting unpublished decision of the Administrative Appeals Office (AAO) dealing with whether obtaining an order of protection constitutes qualifying cooperation with and helpfulness to law enforcement. While the United States Citizenship and Immigration Services (USCIS) said no in the instant case, the AAO reached a different conclusion.

Although the AAO decision is non-precedential and therefore not binding on other adjudications, its reasoning on why cooperating with authorities in order to obtain an order of protection against an abuser can constitute cooperation for purposes of a U visa petition may be instructive as a general matter. It is, however, important to remember that each case is unique.

The Decision

The decision that we will discuss was filed on March 17, 2015, by the AAO at the Vermont Service Center Office. You may follow along with our discussion by reading the decision PDF, uploaded here for your convenience [PDF version]. We indicate which pages of the decision we are discussing in each section header in this article.

Petitioner's Immigration Background: Page 4

The petitioner, a native and citizen of Mexico, claimed to have first entered the United States without inspection in May 1992 by using a false permanent resident card. She stated that she was voluntarily removed in January 1998, but subsequently reentered without inspection.

Factual and Procedural History Related to Victimization: Page 4

The petitioner testified that her husband:

Slapped and pushed her, pinched her arms and legs, and pulled her hair on various occasions;
Threw objects at her (e.g., his screwdriver, his cell phone, and his watch) which left impressions in the wall;
Broke her car window, hit her head, and tore her earring out of her ear (on one occasion);
On the same night of the above incident, pinned her down in bed, began hitting her i head, and only stopped when his brother's wife came up the stairs;
Perpetrated sexual abuse against her; and
Threatened to kill her, have her deported, divorce her, and take the children away from her on multiple occasions.

On March 11, 2011, the petitioner called the police after her husband punched her in the jaw. As a result of the punch, her dental bridge became detached, her lip bled, and her jaw hurt. The police involved the Illinois Department of Children and Family Services in the case because the petitioner's children were present during the incident. The petitioner stated that she cooperated with both the police and the Illinois Department of Children and Family Services. She obtained an order of protection against her husband as a result of this incident.

Factual and Procedural History Related to U Visa Petition: Page 4-5

The petitioner filed a Form I-918, Petition for U Nonimmigrant Status with an accompanying Form I-918, Supplement B (law enforcement certification). The Supplement B was signed by an Associate Circuit Court Judge of the Illinois Municipal District Court on January 6, 2012. The judge (or certifying official) indicated the following on the Supplement B:

The criminal activity of domestic violence occurred in 2011;
The petitioner was helpful in the investigation of the qualifying domestic violence criminal activity;
The petitioner had not been required to provide further assistance; and
The petitioner had not unreasonably refused to assist law enforcement authorities in the investigation or prosecution of the qualifying criminal activity.

On September 11, 2013, the USCIS director issued a request for evidence based on the information in the Supplement B. Specifically, the certifying official requested evidence on whether the petitioner continued to be helpful in the investigation and/or prosecution of the qualifying criminal activity. In response to the request for evidence, the petitioner submitted the following:

Relevant police reports and a copy of the documents and transcript of the hearing for the order of protection issued against her husband; and
A statement from the certifying official that the petitioner attended all court hearings and provided testimony in pursuit of the order of protection.

The police report submitted by petitioner's counsel stated that she had refused to sign complaints against her husband on the night of the incident because she was worried about the potential financial repercussions.

After considering the evidence submitted in response to the request for evidence, the director denied the U visa petition based on lack of helpfulness to law enforcement. The main reason for the denial was that the petitioner refused to pursue criminal charges against her husband, instead opting only to pursue an order of protection. The director wrote the following statement in the decision: “[O]btaining a protection order, in itself, does not qualify as reporting criminal activity to law enforcement. It also does not demonstrate helpfulness to law enforcement nor does it establish that you possess information about criminal activity.”

AAO Finds that Petitioner Was Helpful: Pages 5-6

The AAO reviewed de novo (from the beginning) whether the petitioner was helpful. For the forthcoming reasons, the AAO determined that the petitioner was helpful, and accordingly withdrew the director's decision.

The AAO began by discussing the relevant statutory and regulatory background of U nonimmigrant classification. It stated that “U nonimmigrant classification is based on cooperation between a victim and a certifying agency investigating or prosecuting criminal activity.” Under section 214(p)(1) of the Immigration and Nationality Act (INA), certifying authorities include prosecutors and judges. The implementing regulation for this statute, 8 C.F.R. 214.14(a)(3)(ii), clarifies that state and local judges may be certifying officials.

Section 101(a)(15)(U)(iii) of the INA lists qualifying crimes for U nonimmigrant classification. The AAO explained that these crimes “are not related to any specific state laws, but instead are written broadly.” In the preamble to the U visa implementing regulations (see 72 FR 53014, 53018 (Sep. 17, 2007)), the USCIS described section 101(a)(15)(U)(iii) as providing “a list of general categories of criminal activity” and stated that “[a]ny similar activity to the activities listed may be a qualifying criminal activity.”

Based on the statutes and applicable regulations, the AAO held that “[t]he director's statement that 'obtaining a protection order, in itself, does not qualify as reporting criminal activity' misstates the applicable standard and is hereby withdrawn.”

Regarding the instant case, the AAO wrote that “the judge in this case determined through his investigation of the facts that the qualifying crime of domestic violence had occurred.” In order to help the judge reach this conclusion, the petitioner provided testimony at her hearing. The AAO held that “[t]he petitioner's testimony and participation in the hearing to obtain her order of protection against her husband is cooperation with a certifying agency under the applicable statutes and regulations.” The AAO noted that the certifying official indicated that the petitioner did not unreasonably refuse to provide further assistance to the certifying agency or otherwise refuse to cooperate. Based on this certification, the AAO held that “she cooperated with a certifying agency and fulfilled the helpfulness element of section 101(a)(15)(U)(i)(III) of the [INA].”

In a footnote, the AAO discussed a separate basis for the director's denial. The director wrote that “the certification only indicates that you helped with the protection order; as you refused to press charges for the crime itself.” The AAO concluded that this statement was erroneous. It explained that the police reports stated that the petitioner provided police with details of the assault against her when they interviewed her. While the report did state that the petitioner refused to sign a complaint against her husband, the AAO found that “the director mischaracterized this information as unreasonable refusals to assist law enforcement in the investigation or prosecution of the certified crimes.” To this effect, the AAO noted that the police report specified that the petitioner refused to sign the complaint because she relied on income from her husband's job, and that losing that income would negatively affect the wellbeing of her and her children. Furthermore, the AAO concluded that the police report contained no indication in the police report that the police found her refusal to sign the complaint unreasonable or that it adversely affected their investigation and/or prosecution of the criminal activity.

For the foregoing reasons, the AAO withdrew the director's determination that the petitioner had not met the helpfulness requirement of section 101(a)(15)(U)(i)(III). The AAO remanded the record to the director for consideration of the petitioner's Form I-192 waiver of inadmissibility application and for the entrance of a new decision on her Form I-918 petition for U nonimmigrant classification.

Conclusion

Although the AAO's decision in the instant case is non-precedential, it is nevertheless an interesting and noteworthy analysis of the U visa statute as applied to an alien seeking a U visa as the victim of domestic violence. It is not uncommon for an order of protection to play a large role in a U visa petition filed by a domestic violence victim. The most significant part of the instant case was the AAO's conclusion that cooperation in obtaining an order of protection can, in and of itself, constitute helpfulness for purpose of a U visa petition. The decision may be instructive in cases where the USCIS denies a U visa petition on similar or identical grounds.

However, in addition to the fact that the decision is non-precedential, it is important not to over-read into the AAO's application of its conclusions about the U visa statutes and regulations to the particular facts of the instant case. First, in many cases where a petitioner relies on an order of protection but where there was no prosecution, there may be questions as to whether the petitioner suffered the requisite harm from the qualifying criminal activity to qualify for a U visa. In the instant case, that issue was uncontested, but this point does arise in many similar U visa cases. Secondly, the AAO found it significant that neither the police nor the certifying official found the petitioner's refusal to sign a complaint against her husband to be unreasonable, and the police evidently did not request further assistance after that initial interview. Had this been different, it is possible that the AAO would have reached a different conclusion with regard to the petitioner's helpfulness.

A victim of criminal activity who is interested in pursuing immigration protection should consult with an experienced immigration attorney. An experienced attorney will be able to assess the case and determine whether the individual may be eligible for some form of protection, including a U visa. If the crime victim pursues relief, an experienced attorney will be able to advise him or her on how to meet the statutory and regulatory requirements and properly file all of the forms in pursuance of such relief. When seeking a U visa, it is important to cooperate with all reasonable requests for assistance from law enforcement and other certifying officials. To learn more about various forms of immigration protection for crime victims, please see our website's growing collection of articles on the subject [see category].