OCEANSIDE — A program that allows undocumented immigrants who are victims of crimes to stay in the country legally is plagued by a backlog of applications and vague criteria that has resulted in uneven cooperation among various law enforcement agencies.
The so-called “U visa” program was implemented six years ago under the Victims of Trafficking and Violence Protection Act approved by Congress in 2000. It was intended to encourage victims of domestic violence, human trafficking and other crimes to cooperate with law enforcement agencies so such crimes could be prosecuted.
To apply for the program, immigrants must get police to sign off on a form that confirms a crime took place and the victim has helped in the investigation. But local immigration attorneys say law enforcement agencies have different standards on when they agree to sign off on the form.
“It’s really frustrating,” said Ashley Arcidiacono, a San Diego immigration attorney who has helped clients with U visa applications. “It’s tricky because, the way the law is written, different law enforcement agencies can come up with their own policies. And they are not always the way Congress had intended the program to work.”
The program also has a limit on the number of visas that can be awarded, 10,000 a year. Ever since the program began, the number of applications submitted has exceeded the cap, creating huge backlog in the program. That can mean years of waiting even if law enforcement agencies sign off on the applications.
Arcidiacono is part of an informal group of local immigration attorneys who meet on a regular basis to talk about U visas and how to approach different law enforcement agencies.
Part of the problem is be that agencies interpret federal guidelines on the program differently. Some are more lenient than others, the attorneys say.
According to the guidelines issued by the Department of Homeland Security, “a current investigation, the filing of charges, a prosecution or conviction are not required to sign the law enforcement certification.” But some agencies, such as the San Diego County Sheriff’s Department, take a stricter view.
The department’s guidelines say that “if an incident was either not significant enough to warrant a referral to the District Attorney, or there was insufficient proof of a crime to warrant referral, then the Sheriff’s Department will not certify the U visa.”
Federal guidelines also state that local law enforcement participation in the program is voluntary because “law enforcement officers cannot be compelled to complete a certification.”
Different standards can lead to different outcomes for immigrant victims of crimes, the attorneys said. But comparing one law enforcement agency to another is difficult because the U.S. Immigration and Citizenship Services, which processes the applications, doesn’t release data on how many applications are approved or denied by each agency.
Several law enforcement agencies in the region said they only began to track the requests in recent years.
For example, Oceanside police officials said the department only started to track the information last year. The San Diego Police Department doesn’t track them at all, a spokesman for the agency said.
According to an article in The Los Angeles Times, Kern County officials approved only four of the 160 certification requests in the past three years. By comparison, Escondido police officials said they received 75 requests last year and approved 69. Oceanside police received 20 requests and approved 15. In Vista, the Sheriff’s Department received received 36 requests and approved 28.
Police officials say they are doing their best to follow the letter of the law.
“In order for us to sign them, certain criteria has to be met, which is spelled out in the application,” Oceanside Police Chief Frank McCoy said. “If the criteria was met, my staff signed it. If the criteria is not met, then we don’t sign it.”
Attorneys said that how the departments interpret the law has a deep impact on their clients’ lives.
While police certification doesn’t guarantee the visa will be approved, the U.S. Citizenship and Immigration Services will not consider the application without it.
For example, Serafina Gonzalez-Lopez, a former Oceanside resident, says she suffered through years of abuse before she got the courage to leave her live-in boyfriend.
The undocumented immigrant mother of three children said she endured beatings and death threats for seven years because her partner told her that he would take away their two daughters and she would never see them again.
“He was a very violent man,” Gonzalez-Lopez said. “I was afraid that he was going to take my daughters if I said anything and asked for help.”
With the help of battered women’s advocates, she was able to leave the abusive relationship in 2013. About a month later, she reported the abuse to Oceanside police and through the courts she obtained a restraining order against her former boyfriend.
An attorney is now helping her apply for a U visa. But Oceanside police have declined her petition, in part because she waited too long to report the abuse that police were unable to conduct an investigation into whether it actually happened, according to city officials.
In a letter to Gonzalez-Lopez’s attorney, City Attorney John Mullen said that “due to the untimeliness of the reporting of the alleged crimes, OPD was unable to determine if Gonzalez-Lopez was in fact a victim of a qualifying crime.”
Prairie Bly, an attorney with the Vista office of the California Rural Legal Assistance, which is representing Gonzalez-Lopez, said it’s common for victims of domestic violence not to report the abuse at the time it happened.
“As in the case of many domestic violence cases, Ms. Gonzalez-Lopez could not, for fear of her and her children’s lives, report her boyfriend’s violent crimes until she found a domestic violence shelter,” Bly said. “Once she was safely relocated, she reported the death threats, beatings and threats to her children.”
Bly said she is considering other options for her client, including asking the judge who granted the restraining order to sign the application.
Arcidiacono, the San Diego attorney, said that while judges are authorized to sign off on U visa applications, they are reluctant to do so because they are often not familiar with the program.
Even if Gonzalez-Lopez’s case is certified, her battle is not over.
According to the U.S. Immigration and Citizenship Services, the number of applications has exceeded the 10,000-visa cap set by Congress in each of the past five years. That has created a backlog of over 45,000 of applications, according agency figures.
In fact, the agency hasn’t processed any applications submitted since December 2013.