National Public Radio has aired, and published on its website, a piece dealing with the backlog of "U" visas — visas made available, on a limited basis, to aliens who are victims of crime. Because there is a cap on the issuance of such visas (as common sense dictates that there ought to be), the backlog has now reached nearly 200,000.
Needless to say, NPR has chosen to publicize the plight of an individual and his family in the most sympathetic way possible — an illegal alien who alleges that he was raped while locked up in jail awaiting turnover to federal immigration authorities. If one is to believe the story, there are indeed some troubling aspects to the case — such as a missing video that might have proven that the rape took place.
On the other hand, there apparently is also no other cogent evidence to show that the rape did take place, and NPR chooses not to tell us exactly why the man was locked up in the first place. Was it simply because the sheriff's office arrested him as an illegal alien (which is implied by the story), or was it because they took him into custody on criminal charges that NPR has chosen not to explore or reveal to its listeners/readers?
We also don't know if the videotape is, in fact, missing or, as often happens in both government and the private sector, it was wiped clean for reuse after a set period of time, when no one alleged wrongdoing and it appeared there was no reason to retain it for evidentiary use.
In any case, putting aside the disturbing facts of this particular case, it's worth spending a moment considering the use of the U visa. As the NPR article notes, the application is triggered only after concurrence by state or local police or prosecutors; aliens cannot simply apply on their own. However, as the article also notes,
Federal officials make the final decision on who gets a visa, but the process often starts at the local level, with this form.
The rules give local law enforcement a lot of leeway. They can sign off even if criminal charges haven't been filed. [Emphasis added.]
The alien's attorney is quoted as saying, "The role of law enforcement in this whole process is really the biggest problem."
Such an assertion is baseless; the requirement is there to ensure at least some measure of integrity in the process. Should the federal government grant crime-victim visas to aliens based simply on their, or their paid private attorneys', say-so, rather than that of the police and prosecutors involved?
In fact, despite the requirement, the very fact that the applications are so oversubscribed, as compared with their yearly cap, suggests that police and prosecutors are, if anything, overly lenient when showing their amenability to sign off on requests for the visas. The problem is in the way the statute has been written. Section 101(a)(15)(U) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1101(a)(15)(U), contains this language:
(III) the alien (or in the case of an alien child under the age of 16, the parent, guardian, or next friend of the alien) has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official, to a Federal, State, or local prosecutor, to a Federal or State judge, to the Service, or to other Federal, State, or local authorities investigating or prosecuting criminal activity. [Emphasis added.]
There's a lot of latitude — quite probably too much — in the phrase "is likely to be helpful". After all, it's no skin off their nose to police or prosecutors if they sign off on the application and later decide not to pursue charges against the perpetrator. Backlogs aren't their business or concern. Better safe than sorry by ensuring that a potential witness/victim is favorably inclined to cooperate, right?
Despite the language of the statute (unless and until amended, as it ought to be, to remove that indefinable and useless prospective phrase), one way for federal authorities at U.S. Citizenship and Immigration Services (USCIS), who are charged with adjudicating U visa applications, to limit the problem is by using their discretion as a matter of policy, to put those applications in which a criminal case has actually been initiated at the top of the pile. Who could argue with this prioritization when applications significantly exceed availability?
Some might say that eliminating the possibility of keeping prospective victim witnesses around to testify at trial is short-sighted, particularly for long and complex cases. That might be true if "U" visas were the only mechanism to achieve that goal. They aren't, and in fact probably aren't even the best for that purpose, since once a "U" visa granted, there isn't really a way to take the visa back if the victim then reneges on his or her commitment to cooperate.
Immigration parole, something used so cavalierly and in utter defiance of the statutory language by the Obama administration, is a much better mechanism for prospective victim witnesses than the "U" visa. Section 212(d)(5) of the INA, 8 U.S.C. § 1182(d)(5), provides in part that:
(A) The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit. [Emphasis added.]
The phrase "significant public benefit" has long been understood to include requests by police and prosecuting officials to ensure the availability of alien victims and witnesses for investigative and trial proceedings. And, unlike "U" visas, grants of parole are specific, time-limited, and subject to renewal or revocation. The latter is especially useful in situations where the victim/witness becomes recalcitrant and refuses to cooperate with authorities as the time for trial comes near.
One other thought: There has been so much discussion about sanctuaries, about whether police and sheriffs who cooperate with federal immigration authorities are damaging community trust, even though there is no empirical data that proves this happens. On the contrary, there is some reason to believe that the victims of sanctuary policies are often immigrants themselves, because recidivist alien criminals who return to the streets frequently reside in immigrant communities.
It would be a small thing, but USCIS, as one of the several subordinate Department of Homeland Security agencies involved in immigration compliance and enforcement, could take a step in the right direction by requiring specific biographical data on who the accused perpetrators of the crime necessitating the U visa might be. This is one way of discerning whether it is aliens who have victimized other aliens.