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Saint Louis University Public Law Review





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Congress created the U visa non-immigrant classification to achieve the dual purposes of both strengthening law enforcement’s ability to pursue domestic violence cases and protecting victims. This article reveals how the gatekeeper function of the law enforcement certification in the U visa petition, as set out in the interim final regulations, undermines Congress’s dual purposes and thwarts the statutory framework entirely. The law enforcement certification provisions of the U visa interim final regulations irreparably shift considerable centralized power to law enforcement personnel, subjecting the certification process to inconsistent application and misapplication.

U Visas allow undocumented non-immigrants who are victims of certain qualifying crimes to petition for lawful status if they cooperate in the investigation or prosecution of the criminal activity, as certified by law enforcement personnel. This article reviews the background of the U visa framework, considering why and for whom Congress created the U visa classification and the role of the law enforcement certification in the petition. It explains how the certification process is unique in its threshold significance to the U visa as an antecedent to petition USCIS for U visa relief. It shows how the U visa regulations - promulgated seven years after the statute was enacted - formalize a more rigid structure than Congress intended. The existing framework leaves petitioners in some jurisdictions and in some cases unable to petition for U visa relief merely because of the jurisdiction of the crime and the resulting inability to get a certification in that jurisdiction.

This shift in power is magnified and compounded by the current political, legal, and social status of undocumented immigrants since the U visa legislation was enacted in 2000. Most notably, local law enforcement are playing an increasing and intensifying role in enforcing federal immigration law, dramatically heightening the risks for victims of crime to report qualifying crimes. Law enforcement leaders face new complexities in assisting victims while balancing strong countervailing political pressures to appear “tough on immigration.” This legal framework is problematic in any federal legislative program, but particularly in the U visa legislative scheme.

This article recommends statutory amendments to incorporate a certification bypass procedure, following the T visa model, or alternatively, regulatory modifications to add needed flexibility to the certification procedures and restore the dual purposes that Congress intended. This article concludes that while Congress created the U visa to both help law enforcement agencies pursue criminal acts and protect victims, the certification requirement, as implemented, effectively defeats the victim protections and renders the statutory implementation focused on a singular law enforcement purpose that is not consistent with legislative intent and which is inherently unworkable.



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