May 7, 2024
Justice for Undocumented Immigrants Must Include Privacy Protection
Terry Campos, JD (NCVLI); Katelyn Sundstrom, J.D. expected 2025, Lewis & Clark Law School, Meg Garvin, MA, JD, MsT
Undocumented immigrants in the United States are victimized at a disproportionate rate and have unique barriers to seeking justice than non-immigrant crime victims. Specifically, undocumented women and children are “frequently and specifically targeted as victims of rape, torture, kidnapping, trafficking, incest, domestic violence, sexual assault, female genital mutilation, forced prostitution, involuntary servitude, being held hostage, and being criminally restrained.”[1] Due to their status, these victims fear deportation and often fear legal systems generally, creating a reluctance to report crimes and leaving them vulnerable to future victimization.[2]
In part to address these concerns, Congress created 8 U.S.C. § 1367 – a law that creates the U nonimmigrant status (U-Visa).[3] Section 1367 is “intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of noncitizens and other crimes, while also protecting victims of crimes who have suffered substantial mental or physical abuse due to the crime and are willing to help law enforcement authorities in the investigation or prosecution of the criminal activity.”[4]
Under the law, undocumented immigrant victims of crime may petition for a U-Visa, which provides special legal status that protects them from deportation and allows them to legally work in the United States, in exchange for their cooperation with law enforcement regarding the investigation of their victimization. A U-Visa application contains substantial personal information such as prior victimizations and mental health,[5] and because of this, the law makes it confidential.
Unfortunately, defendants often seek to use the U-Visa’s protections against victims during criminal prosecutions by subpoenaing the victim’s U-Visa application, including its sensitive, personal information. Ramirez v. Padilla-Suazo is one such example.
In this New Mexico case, the defendant requested disclosure of the U-Visa applications of a minor victim’s parents arguing that the parents were using fabricated allegations of sexual assault to obtain benefits through the U-Visa process.[6]
Despite New Mexico’s constitutional and statutory rights for victims to “be treated with fairness and respect for the victim’s dignity and privacy throughout the criminal justice process” and “to be reasonably protected from the accused throughout the criminal justice process”, the trial court approved the disclosure of the U-Visa applications.
If allowed to stand, these victims would have to provide private information in response to the defendant’s mere allegation that there may be exculpatory evidence contained within the records.
Fortunately, the victim is represented by the New Mexico Victims’ Rights Project, and through counsel the victim sought appellate review. In their petition, the victim’s counsel argued:
[I]f the Petitioners must choose between protecting the privacy of the records protected by federal law and providing those records to the Defendant, they will be forced into an impossible choice and may choose to stop cooperating in the prosecution of this case. No one should be forced to abandon a search for justice in a criminal matter because of pressure to reveal protected information.[7]
NCVLI submitted an amicus curiae brief in support of the victims arguing: (a) that New Mexico statutory and constitutional victims’ rights prohibit the disclosure of U-visas; and (2) that the congressional intent that U-visas protect immigrant victims is irreconcilable with the trial court’s decision. The case is pending.
Vigilance in protecting the rights of all victims is critical for all of us!
[3] 8 U.S.C. § 1367
[4] Victims of Criminal Activity: U Nonimmigrant Status, U.S. Citizenship and Immigration Services
[5] U Visa applications contain questions that include whether the victim has ever engaged in prostitution, illegal gambling, assisting an alien illegally enter the country, received or anticipates receiving public assistance, abused an illegal drug, voluntarily participated in a totalitarian political party, and whether the applicant has a physical or mental disorder that has or may cause a threat to self or others. See USCIS Form I-918, Petition for U Nonimmigrant Status, available online at http://www.uscis.gov/files/form/i-918.pdf (last accessed Mar 1, 2024).
[6] Ramirez v. Padilla-Suazo, No. S-1-SC-39966
[7] VERIFIED PETITION FOR EMERGENCY WRIT OF SUPERINTENDING CONTROL AND REQUEST FOR STAY, D-1116-CR-2020-00835, 14 (2023).
