WHEN CROSS-EXAMINATION INTO A VICTIM’S IMMIGRATION STATUS CROSSES THE LINE: THE RELEVANCY AND RISK OF PREJUDICE OF U VISA EVIDENCE

By: Nick Wolfson, Volume 104 Staff Member

Although undocumented immigrants are more likely than citizens to be the victims of crimes committed in the United States, undocumented immigrants are less likely to report those crimes to law enforcement.[1] Fear of removal (deportation) is one reason why many victims choose not to report even the most serious crimes.[2] In response to underreporting of criminal activity in undocumented immigrant communities, Congress created the U Nonimmigrant Status, or “U visa” for short.[3] The purpose of the U visa was to encourage undocumented immigrants who had been victims of crimes in the United States to report and fully participate in the investigation of these crimes, rather than suffer in silence out of fear of deportation.[4]

U visas encourage victims to report crimes by offering undocumented immigrants legal status in the United States.[5] To be eligible for a U visa, an undocumented immigrant must satisfy four requirements.[6] First, an applicant, or an applicant’s close family member, must have suffered substantial mental or physical abuse as a result of a qualifying crime.[7] The U visa program includes twenty-eight crimes, specified in the Immigration and Nationality Act (INA), that satisfy the “qualifying crime” requirement.[8] Second, the undocumented immigrant must possess information concerning the criminal activity.[9] Third, she must show she “has been helpful, is being helpful, or is likely to be helpful to [the] . . . authorities investigating or prosecuting [the] criminal activity.”[10] The undocumented immigrant’s helpfulness must also be certified to by a law enforcement agency, such as a prosecutor’s office.[11] Finally, the crime must have occurred in the United States.[12] In exchange for their cooperation with law enforcement, U visa applicants are granted legal status and employment authorization in the United States for four years. After those four years are up, U visa holders may apply to become legal permanent residents (LPR).[13]

The U visa’s “helpfulness” requirement is of particular concern to defendants because, one way to satisfy the “helpfulness” requirement is to testify at trial for the prosecution.[14] After all, prosecutors can, and often do, act as a U visa applicant’s certifying official, stating whether the applicant was helpful or not in the investigation and prosecution of the crime.[15] This certification requirement has been criticized as creating a “quid pro quo system in which unauthorized immigrants face considerable pressure to trade testimony in order to remain in the United States.”[16] In 2013, Diane Black (R-Tenn.), proposed the U Visa Reform Act in the House of Representatives which would have removed the path to LPR for U visa holders. Black commented that “it is not good immigration policy to staple green cards to police reports for those in the country illegally,”  suggesting U visa applicants were fabricating or embellishing crimes to take advantage of the U visa’s path to legal status in the United States.[17] Courts have also recognized the risk of U visa fraud.

One can readily see how the U–Visa program’s requirement of “helpfulness” and “assistance” by the victim to the prosecution could create an incentive to victims hoping to have their U–Visa’s granted. Even if the victim did not outright fabricate the allegations against the defendant, the structure of the program could cause a victim to embellish her testimony in the hopes of being as “helpful” as possible to the prosecution.[18]

The seeming quid pro quo nature of the U visa—testimony in exchange for a U visa—has opened the door for defendants to impeach the credibility of undocumented immigrant victims by suggesting to the jury that the victim is biased or motivated to testify against the defendant because of the immigration benefits she could receive for doing so. The Sixth Amendment, and some states’ rules of evidence, clearly grant defendants the right to cross-examine witnesses for motive or bias,[19] however, a criminal defendant’s right to confront the witnesses against him is not without limits. In her role as “gatekeeper,” the trial judge “retain[s] wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.”[20] Thus, it is ultimately for the trial judge to decide whether to allow a defendant to cross-examine a victim about her awareness of the U visa program. While acknowledging “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested,”[21] defendants should not be permitted to inquire into a victim’s knowledge of the U visa program for impeachment purposes unless a showing has been made that the victim knew about U visas before she reported the crime or that the victim applied, or intends to apply, for a U visa in connection with the crime for which the defendant is now on trial for.

Allowing criminal defendants free reign to ask victims whether they were aware of any immigration benefits they could receive for testifying at trial presents several problems. First, evidence of a witness’s immigration status in a sexual assault or domestic violence prosecution is an ancillary issue which risks confusing the jury; courts would be forced to hold a mini immigration trial just to establish the relevance of this line of inquiry.[22] Second, evidence of a witness’s immigration status or knowledge of U visas risks prejudicing the jury,[23] and Federal Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.”[24] Finally, subjecting undocumented immigrant victims to aggressive cross-examination for exercising their right to report and testify to a crime undermines the purpose of the U visa program, which is to encourage victims to come forward, not retraumatize them, have them disclose their legal status in open court to a jury of their peers, and disincentivize reporting.[25] Given these concerns, trial court judges should take extra precautions to protect victims from this line of inquiry by requiring defendants to show that the victim knew about the potential immigration benefits she could receive before she reported the crime or that the victim applied, or intended to apply for a U visa in connection with the crime.[26] Ultimately, this policy strikes a balance between a criminal defendant’s Confrontation Clause right and the purpose of the U visa to encourage undocumented immigrants to report crimes.

[1] Cora Engelbrecht, Fewer Immigrants Are Reporting Domestic Abuse: Police Blame Fear of Deportation, N.Y. Times (June 3, 2018), https://www.nytimes.com/2018/06/03/us/immigrants-houston-domestic-violence.html.

[2] Id.

[3] Battered Immigrant Women Protection Act, Pub. L. 106-386, § 1502, 114 Stat. 1464 (2000).

[4] Id.

[5] 8 U.S.C. § 1101(U) (2018).

[6] Id.

[7] Id.

[8] Id. These crimes include domestic violence, rape, torture, trafficking, incest, sexual assault, abusive sexual contact, sexual exploitation, felonious assault, and blackmail.

[9] Id.

[10] Id.

[11] 8 C.F.R. § 214.14 (a)(2) (2013).

[12] 8 U.S.C. § 1101(U) (2018).

[13] Id.

[14] Michael Kagan, Immigrant Victims, Immigrant Accusers, 48 U. Mich. J.L. Reform 915, 917 (2015).

[15] Id.

[16] Id.

[17] U Visa Reform Act, H.R. 463, 113th Cong. (2013); U.S. Congressman Diane Black, Black Introduces U Visa Reform Act (Feb. 5, 2013) https://black.house.gov/press-release/black-introduces-u-visa-reform-act.

[18] Romero–Perez v. Commonwealth, 492 S.W.3d 902, 906 (Ky. Ct. App. 2016).

[19] Davis v. Alaska, 415 U.S. 308, 315 (1974); Minn. R. Evid. 616 (“For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.”).

[20] Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

[21] Davis, 415 U.S. at 316.

[22] See State v. Buccheri-Bianca, 312 P.3d 123, 127 (Ct. App. 2013).

[23] State v. Guzman-Diaz, A17-1231, 2018 WL 3520535, at *3 (Minn. Ct. App. July 23, 2018), review denied (Oct. 16, 2018) (finding evidence of immigration status is significantly prejudicial and excludable under Rule 403).

[24] Fed. R. Evid. 403.

[25] See Battered Immigrant Women Protection Act, Pub. L. 106-386, § 1502, 114 STAT. 1464 (2000).

[26] Such evidence, or lack thereof, should be explored at a pretrial evidentiary hearing or during voir dire of the victim outside the presence of the jury.