Immigration Article of the Day: Surviving Crime and Facing Deportation: U Visas as a Defense Against Removal in a System of Divided Agency Jurisdiction by Alison Coutifaris, Georgetown Immigration Law Review

Surviving Crime and Facing Deportation: U Visas as a Defense Against Removal in a System of Divided Agency Jurisdiction by Alison Coutifaris, Georgetown Immigration Law Review, Forthcoming

Abstract

The Trafficking Victims Protection Act (“TVPA”) established the U visa, an immigration status for survivors of serious crimes who cooperate with law enforcement. The benefit is intended to serve two symbiotic purposes: provide undocumented survivors of crime with humanitarian protection from removal (i.e., deportation) and strengthen law enforcement’s ability to prosecute crime. An annual statutory visa cap has caused a ten-year adjudication backlog.

U visa applicants in removal proceedings are within a system of divided jurisdiction: only the United States Citizenship and Immigration Service may adjudicate the U visa, while administrative law immigration judges of the Executive Office for Immigration Review (“EOIR”) preside over removal proceedings. Because the TVPA does not explicitly protect an applicant from deportation during adjudication, U applicants remained vulnerable to removal until their visas were finally issued, contrary to congressional intent. To address this problem, the Department of Homeland Security (“DHS”) and immigration courts implemented a discretionary framework intended to prevent the deportation of U visa applicants.

This article is the first to analyze the framework of discretionary relief for U visa applicants across DHS and EOIR. It documents this framework’s vulnerabilities, as evidenced by its inconsistent application and underutilization and the vast number of policies implemented to undermine discretion during the Trump administration. This article argues that relying on an exercise of discretion to protect U applicants undercuts statutory intent. While the Biden administration has encouraged discretion, more lasting reform should be implemented to protect immigrant victims of crime and encourage cooperation with law enforcement.

KJ