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This article was originally published on December 06, 2007.

Tahirih welcomes Equal Justice Works Fellow to foster full implementation of new regulations

Naima* was brought to the United States from Zambia by her father when she was only 15. He had been physically abusing her for years and attempted to rape her twice shortly after they arrived in the United States. Her father told her that she would be sent back to Africa if she told anyone what he had done.

Naima’s father’s next attack came on what should have been one of the happiest nights of her life—her Senior Prom. He came to pick her up at the end of the evening, and she dozed off in the car, exhausted from the excitement of the long night. When she woke up, she found herself in a dark, swampy, isolated area. Her father commanded her to undress and attempted to force himself on her. This time, no one was around to hear Naima’s screams. She fought back, defending herself with her souvenir prom glass, and she was able to stop her father’s attack.

When she returned to school on the Monday after the sexual assault, Naima found the courage to confide in her school nurse. Together, they reported the incident to the police. Due in large part to Naima’s cooperation, her father was prosecuted on numerous counts of attempted rape and is now in prison.

Naima—and many other women and girls in the United States who are victims of crimes like domestic violence, rape, incest, and sexual assault—was eligible for a specific type of immigration relief available to victims of violent crimes called a U visa.

The U visa was created in October 2000 under the Victims of Trafficking and Violence Prevention Act of 2000. Statutorily, Congress created a mechanism to aid law enforcement by providing a path for non-citizen victims of crime, who assist law enforcement in investigating or prosecuting the perpetrator of the crime, to obtain legal status in the United States. As part of the statute, Congress tasked the Department of Homeland Security (DHS) with issuing implementing regulations for the U visa to allow law enforcement and crime victims to access the visa. These regulations were finally issued on Sept. 17, 2007, after nearly seven years of waiting, lobbying, and advocacy.

As a result of the long delays, Naima was only recently able to obtain a U visa. When she first came to Tahirih three years ago, she was unable to obtain the full protections of a U visa, despite the horrific circumstances of her father’s crime, because the regulations governing the visa had not been issued. Rather, women who came to Tahirih after surviving violent crimes—and who had the courage to help law enforcement ensure the perpetrators were punished—were awarded Interim U Visa Relief, or Deferred Action, a status which required yearly renewals and left victims without permanent legal status.

Since the inception of the U visa, Tahirih has pioneered its use and was in fact the first organization in the Washington, DC area to represent a U visa case. To further its work in protecting this underserved and uniquely vulnerable population of victims, Tahirih, with support from the prestigious Equal Justice Works Fellowship and Arnold & Porter, LLP, brought on a two-year fellow, Natalie Nanasi, who will serve as a staff attorney and conduct targeted advocacy outreach.

Natalie will represent clients that are eligible for U visa protections and work with other organizations and advocates to ensure that the recently approved regulations are fully implemented. The new regulations provide a path to permanent residency and clarify and define certain key terms relating to the U Visa, including:

  • A list of criminal activities under which a victim can be eligible is included in the rule. The list includes domestic violence, female genital cutting, incest, rape, sexual assault, and sexual exploitation. It is a non-exclusive list; any “substantially similar” crime is also eligible.
  • The rules also define who is considered a victim, making provisions for protections for indirect victims of certain crimes and for minor, incapacitated, or incompetent victims.
  • The idea of helpfulness is also clarified, and the rule specifically states that U Visa relief is available to a victim who “has been, is being or is likely to be helpful” to a government official in the investigation or prosecution of criminal activity.
  • The level of abuse or harm a victim must have suffered as a result of the crime is also defined. The rule provides protection for victims that suffered either physical or mental harm, as long as the harm was “substantial.” A multiple factor test is used to determine whether the abuse was substantial—including the nature, severity, duration or permanency of the harm—and no factor is dispositive.
  • The rule permits principal applicants to apply for protection for their derivatives. Applicants under 21 years of age may apply for their spouse, children, parents, and unmarried siblings under the age of 18. Applicants 21 years and older may apply for their spouse and children.
  • Employment authorization is also granted to U visa holders, as is the right to travel outside the United States and to eventually adjust U visa status to permanent residency (although DHS has not yet issued regulations governing the adjustment process).

Although Tahirih applauds the release of the U visa regulations and is heartened by many of its provisions that provide necessary protections to immigrant victims of crime, the rules do contain several troubling provisions, as well. Chief among them is the limitation placed on who is permitted to attest to a victim’s helpfulness; only the head of a law enforcement agency or an individual “specifically designated” by the head of that agency may sign the certification form.

This restriction places a substantial burden on victims, as they are required to navigate the bureaucracies of police departments and prosecutors’ offices to ensure that the agencies designate a certifier. Therefore, since the new regulations, which are currently in effect, were open for public comment until November 16, 2007, Tahirih with the help of pro bono attorneys at Akin Gump Strauss Hauer & Feld LLP submitted comments to address the “designated certifier” issue, as well as other areas of concern in the new regulations.

Tahirih hopes DHS will issue a final regulation that maintains the current protections for immigrant victims of crime while remedying the problems in the rule that prevent women from achieving the fullest protections for which they are entitled.