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U Nonimmigrant Visa Application by Alexa Rodriguez: Case Law

Case(s) Indicating The Jurisdiction For Adjudication and Criteria for Judge(s)

  Matter of Yauri
  • USCIS has exclusive jurisdiction to adjudicate applications for adjustment of status; the BIA generally lacks authority to reopen proceedings under final orders of exclusion, deportation or removal; and the Board will not generally exercise its discretion to reopen proceedings sua sponte for an arriving alien to pursue adjustment of status.
  Matter of Sanchez-Sosa
  • This case sets criteria for immigration judges considering continuances for U applicants in proceedings. See ICE memoranda for procedure for requesting prima facie determinations from VSC.

Case Indicating that Immigration Judges have a duty to inform aliens appearing before them about their potential eligibility for U-Visa

U.S. v. Resuleo-Flores Not Reported in F.Supp.2d, 2012 WL 761701N.D.Cal.,2012.March 07, 2012

  • ...issue of whether Immigration Judges (“IJs”) have a duty to inform aliens before them about the alien's potential eligibility for U–Visas. The parties have briefed that issue. A second hearing was held on March 2, 2012. Having read the papers and...
  • ...order (the “2008 Removal”) by alleging that the immigration judge (“IJ”) failed to inform her of her eligibility for a U–Visa as a victim of violence; she attacks the February 10, 2010 removal order (the “2010 Removal”) by alleging that the..
  •  U Visas are a relatively common form of relief that should trigger an IJ's notice when facts so present themselves. “It is in this situation that the IJ's expert attention to the facts of a particular alien's case can make the difference between pursuing an available avenue of relief and missing it altogether.” Id. The Court finds that U–Visasfall within the due process obligations of IJs to inform those before them of potential relief from deportation

Case(s) Indicating That USCIS Has Sole Discretion Over Issuance of U Visa

USCIS has sole discretion to determine evidentiary value of U Visa application materials.

Mondragon v. U.S. United States District Court, W.D. North Carolina, Carolina Charlotte Division. March 02, 2012 839 F.Supp.2d 827 2012 WL 882546 

 

Torres-Tristan v. Holder  656 F.3d 653  C.A.7,2011. September 01, 2011

  • Background: Department of Homeland Security (DHS) reinstated earlier order to remove alien, citizen of Mexico. Alien sought “U Visa” to prolong his unlawful stay in United States. United States Citizenship and Immigration Services (USCIS) denied U Visa and also denied alien's waiver application. Alien petitioned for judicial review.
  • Petitioner refers several times in his brief to being “entitled” to a U Visa. A person who meets the statutory criteria is only eligible for such a visa, not entitled to one as a matter of right. The relevant statutes and regulations leave the final decision to the discretion of DHS. See 8 U.S.C. § 1101(a)(15)(U) (the Secretary of Homeland Security determines whether petitioner has fulfilled statutory criteria); 8 C.F.R. § 214.14(c)(4)(giving USCIS “sole discretion” to determine the “evidentiary value” of the materials submitted by a petitioner); 8 C.F.R. § 214.14(c)(5)(i) (“If USCIS determines that the petitioner has met the requirements for U–1 nonimmigrant status, USCIS will approve Form I–918.”).

Geminiano-Martinez v. Beers Slip Copy, 2013 WL 6844717 D.Nev.,2013. December 13, 2013

  • The DHS' Immigration Regulations set out the specific petitioning procedures for a U Visa. See 8 C.F.R. § 24.14(c) (“Application procedures for U nonimmigrant status”). The regulations state that U.S. Citizenship and Immigration Services (“USCIS”) FN2 has “sole jurisdiction over all petitions for U nonimmigrant status.” 8 C.F.R. § 214.14(c)(1). The regulations also explain that “USCIS will determine, in its sole discretion, the evidentiary value of previously or concurrently submitted evidence....” 8 C.F.R. § 214.14(c)(4)(“Evidentiary standards and burdens of proof”). Thus, U Visas are “committed to USCIS' discretion by law” and “the applicable statutes do not mandate a particular outcome or confer any established or protected interest in the grant of a ‘U’ visa[.]” See Catholic Charities CYO v. Chertoff, 622 F.Supp.2d 865, 880 (N.D.Cal.2008), aff'd 368 F. App'x. 750 (9th Cir.2010). Petitioners may appeal a denial of a U Visa to the USCIS Administrative Appeals Office (“AAO”). 8 C.F.R. § 214.14(c)(5)(ii).

Case Reflecting U Visa Requirements/ Qualifications

In re Certification Form for U Visa for Movant Nunez-Ramirez   Slip Copy, 2013 WL 6273961
  • To qualify for U visa status, the Secretary of DHS must determine that an alien meets several statutoryrequirements:
  • (I) the alien has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity described in clause (iii) [8 U.S.C.A. § 1101(a)(15)(U)(iii) ];
  • (II) the alien ... possesses information concerning criminal activity described in clause (iii)
  • (III)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 described in clause (iii); and
  • (IV) the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States....
  • 8 U.S.C.A. § 1101(a)(15)(U)(i) (emphasis added). The relevant “criminal activity” is defined as follows:
    (iii) the criminal activity referred to in this clause is that involving one or more of the following or any similar activity in violation of Federal, State, or local criminal law: rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; stalking; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment; blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; fraud in foreign labor contracting (as defined in section 1351 of Title 18); or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes[.]
 
 



Case(s) Indicating That The I-918 Supplement B Certification Approval or Denial Is Discretionary

Ordonez Orosco v. Napolitano 598 F.3d 222 C.A.5 (Tex.),2010. March 02, 2010

  • Background:Applicant for U–Visa, as victim of particular crime who later could help United States law enforcement officials to investigate or prosecute that crime, filed action against Secretary of Department of Homeland Security, officer with United States Immigration and Customs Enforcement (ICE), unnamed supervisory ICE officers, and United States of America seeking writ of habeas corpus, declaratory judgment, permanent injunction, and asserting various other claims. The United States District Court for the Southern District of Texas, Andrew S. Hanen, J., dismissed action. Applicant appealed.
  • Holding: The Court of Appeals, Garwood, Circuit Judge, held that decision to decline to issue law enforcement certification for alien to qualify for “U visa” as victim of criminal activity under Victims of Trafficking and Violence Protection Act (VTVPA) was discretionary.

 

Bejarano v. Homeland Sec. Dept. 300 Fed.Appx. 651 C.A.11 (Fla.),2008. November 14, 2008

  • Background: Alien, a Columbian citizen, sought writ of habeas corpus and declaratory and injunctive relief, challenging decision of United States Citizenship and Immigration Services (USCI) to decline to issue “U visa” to him under the Victims of Trafficking and Violence Protection Act.
  • ..., jurisdiction over the grant or denial of a U visa to Bejarano rests with the United States Citizenship and Immigration Services (USCI), and any decision by the certifying official to sign or decline to sign the status certification is discretionary. See 8 C.F.R. § § 214.14(a)(12), (b), (c)(4)

Case Indicating Factors Considered When Looking At Substantial Physical or Mental Abuse

Villegas v. Metropolitan Government of Nashville 907 F.Supp.2d 907 M.D.Tenn.,2012. September 20, 2012
  • 912. As to whether Plaintiff “suffered substantial physical or mental abuse,” the regulations concerning “substantial physical or mental abuse” state: The alien has suffered substantial physical or mental abuse as a result of having been a victim of qualifying criminal activity. Whether abuse is substantial is based on a number of factors, including but not limited to: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions. No single factor is a prerequisite to establish that the abuse suffered was substantial. Also, the existence of one or more of the factors automatically does not create a presumption that the abuse suffered was substantial. A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level

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