Yolanda Varona was kidnapped at knifepoint by a jilted former boyfriend. He stripped her naked and drove her into the mountains near San Diego. He raped her; he said if she told anyone he’d kill her children. After hours of pleading, she convinced him to let her go. “I’ll never be the same woman,” she said of that day of terror, more than 10 years ago.
But what happened next may have been even more difficult: despite being an undocumented immigrant, Varona called the police. She helped law enforcement find her attacker and put him in jail. And she went to court to testify.
“I was terrified of presenting myself at court,” Varona recalled. “I imagined that by some terrible injustice, I’d end up being deported.”
It was in order to encourage survivors like Varona to report a crime that Congress created a new class of visa in 2000. U-visas allow undocumented victims of violence who can show that they helped in the investigation or prosecution of a crime to remain in the US legally and eventually obtain a green card.
But a policy change issued in June as part of Donald Trump’s “zero-tolerance” regime, the subject of a major Guardian investigation this week, is undermining the U-visa’s very purpose by deporting crime victims whose applications for the visa are denied. The result, advocates say, is that a program designed to hold violent criminals accountable by offering a modicum of security to undocumented victims has been warped into a system where victims must increase their risk of deportation in exchange for a slim chance of justice.
“It’s unconscionable,” said Cecelia Levin, the senior policy counsel of Asista, an organization that advocates for immigrant survivors of domestic violence and sexual assault. “It contravenes and undermines the intent of establishing that program, which is to encourage people to come forward, which keeps us all safer.”
Michael Bars, a spokesman for the US Citizenship and Immigration Services (USCIS), confirmed the policy change, noting that Trump’s 2017 executive order on “enhancing public safety” mandated that no category of immigrant was exempt from removal proceedings. Previous administrations allowed discretion for immigrants seeking humanitarian relief.
USCIS subsequently issued an update that indicated that humanitarian visa applicants would be exempt from the policy change “at this time”. But advocates remain uncertain whether this exemption applies to U-Visa applicants.
The threat of deportation still hangs over crime victims considering their options.
Hyejin Shim, a case worker at the Asian Women’s Shelter in San Francisco who helps survivors through the application process, said the change in policy will do the opposite of enhancing public safety.
“Taking away legal pathways to citizenship doesn’t mean people will up and leave,” Shim said. “It leads to more trafficking, more assaults, to thinking that you can do whatever you want to undocumented folks.”
According to a report by the ACLU, a sharp increase in arrests by Immigration and Customs Enforcement (Ice) was accompanied by a sharp decrease in immigrants’ willingness to file police reports between 2016 and 2017.
Ice has also officially ramped up its patrols of courthouses, where crime victims must testify in order to qualify for a U-visa. One Colorado attorney told the ACLU that following the release of a videotape of Ice waiting in a courthouse hallway to make an arrest in Denver, 13 women decided not to pursue domestic violence cases against their abusers for fear of deportation. More than half of the judges surveyed by the ACLU reported having cases that were interrupted because an immigrant crime survivor was afraid to come to court.
Meanwhile, a huge backlog in U-visa applications leaves applicants exposed to deportation risk for years before they can even enter a waiting list for a visa.
Congress caps U-visas at 10,000 per year, but in 2017 alone 36,531 applications were filed. As of September, 2018, the backlog stands at 111,676, of which only 3,682 have actually been placed on the waitlist, according to USCIS. The rest – more than 100,000 – remain unopened and unprocessed.
Applicants only become eligible for deferred action (not being deported) and work authorization once they are placed on the waitlist. The current wait period is 48 months.
These wait times are the subject of a series of lawsuits filed by Brad Banias, an immigration attorney in South Carolina, on behalf of immigrants who all have pending, unopened U-visa applications and are subject to detention and removal at any time. Banias’s lawsuit claims that the length of the USCIS U-visa waiting list affects human health and welfare.
The delay, Banias said, “has such a nefarious effect on these folks, because they’re still in the shadows”.
“A police station, a prosecutor, someone out there, in an official capacity, someone that wears blue and wears a badge has said, ‘These people were a victim of a serious crime and at great risk to themselves they came and gave us helpful information to prosecute and we thought they were so good we signed off a piece of paper and effectively acted as their visa sponsor,’” Banias says. “So you’re telling me the police station wants you to be here to help solve a crime but the immigration agency won’t make a decision on it for four years.”
Among the survivors who are stuck in this seemingly interminable limbo is Varona.
She applied for her U-visa in 2016, and expects to wait until at least 2020 for a decision. But unlike some U-visa applicants, Varona no longer fears deportation, because it already happened.
In 2010, three years after she experienced her kidnapping, she was arrested while driving an illegally registered car and quickly deported to Mexico. She hasn’t seen her daughter since. It was only once she was settled in Tijuana that she learned about U-visas through a network of deported mothers, Madres Soñadores.
“The wait for me is torture, it’s agony, it’s not knowing if I’m going to return to my children or not,” Varona said this September, two years into her wait. “It’s as if I am floating in a surreal state. I’ve had such bad luck in my life that I believe sometimes this just won’t be possible.”
This article was amended on 16 October 2018 to clarify that USCIS has recently updated its stance toward humanitarian exemptions for deportation, though it remains unclear whether U-visas are included.