Waco Tribune-Herald by Cindy V. Culp
A Waco judge has stepped in to help a young sex abuse victim who is seeking permission to stay in the United States.
McLennan County District Attorney Abel Reyna refused to sign paperwork the 13-year-old girl and her mother need to apply for U-Visas, saying the visas should not be doled out as “rewards” to illegal immigrants who help with the investigation or prosecution of a crime.
The request sat in Reyna’s office for nearly a year before he denied it late last month.
Waco attorney Susan Nelson, who is representing the family pro bono, decided to approach Judge Ralph Strother of Waco’s 19th State District Court as a last resort.
Strother signed the necessary paperwork earlier this week after Nelson made a brief presentation about the case.
“We’re definitely overjoyed,” she said.
The girl provided Waco police with information that led to a 43-year-old local man being convicted for continuous sexual abuse of a child late last year. He pleaded guilty and received a 35-year prison sentence.
The Tribune-Herald is not naming those involved in the case to protect the girl’s identity, as the newspaper does for all sexual assault victims.
The girl’s mother reported the crime despite knowing it could cause the family to come to the attention of immigration authorities.
She came here from Mexico about 12 years ago, when the girl was an infant. Neither has legal permission to be in the United States.
The mother also knew reporting the crime would place the family in financial jeopardy. The abuser was the mother’s longtime boyfriend and provider for the family, which includes four younger children. Since his arrest, the family has lived with a friend as it struggles to afford basic necessities.
Local victims’ advocates referred the family to Nelson in hopes that U-Visas could help them rebuild their lives. Under the U-Visa statute, created by Congress in 2000, permission to live in the United States can be granted to both victims and certain immediate family members.
In the mother’s case, legal status could help her find better employment and support her family. For the girl, it would mean eligibility for government programs, like Medicaid, that would allow her to continue counseling, among other benefits.
Speaking out
Nelson and the girl’s mother spoke out last month after becoming frustrated with the lack of response from Reyna’s office.
Other immigration attorneys have expressed concern about Reyna’s handling of U-Visa paperwork since he took office in January 2011.
Two days after the Tribune-Herald published a story about the case, Reyna rejected the family’s request.
Reyna declined to talk to the Tribune-Herald about his decision. But he recently wrote a post detailing his interpretation of the U-Visa law on his office’s Facebook page.
“A U-Visa is for someone who is in the country illegally and who risks deportation for being cooperative with law enforcement on a case from start to finish,” Reyna wrote. “The Tribune-Herald implies that it is meant as a reward for cooperation, but nothing can be further from the truth. The purpose of the U-Visa is to prevent deportation of a victim at different stages throughout the justice system.”
Reyna continued, “U-Visas are not supposed to be a reward for testimony, but rather an insurance policy to make sure that justice is done.”
Reyna said U-Visa requests also can be certified by police chiefs, sheriffs or judges.
“Lawyers who are seeking this legal status for their clients can simply submit their law enforcement certifications to any of these entities,” Reyna wrote.
That suggestion is not as simple as it sounds. The Waco Police Department has a policy against signing U-Visa paperwork.
The reason, a spokesman has said, is that victims might not follow through in helping prosecutors if police sign.
Although Nelson is pleased Strother took action, she maintains either Waco police or the district attorney was best suited to handle the request. Strother did not hear testimony in the case since the girl’s abuser pleaded guilty, she said.
But Strother said he thinks he was the proper person to certify the family’s request.
If a prosecutor signs such paperwork, even after a case is disposed of, it could appear that certification was done as a pay-off, he said. A defense attorney could argue the alleged victim invented or embellished testimony to get status.
Strother said he will consider any future requests for U-Visa certification on a case-by-case basis. But he was glad he could help Nelson’s client.
“She didn’t ask to be here or ask to be a victim,” Strother said. “It was just the right thing to do.”
Gail Pendleton, an attorney who worked with staff of U.S. Sen. Orrin Hatch, R-Utah, to draft the U-Visa legislation, said she has heard district attorneys argue certification can look like a payoff.
Her response is that cases often require prosecutors to assure jurors a witness doesn’t have ulterior motives. Plus, many cases never make it to the point where a judge becomes involved, through no fault of the victim, she said.
A similar argument can be made for why police are best suited to certify in particular instances, Pendleton said. If a case doesn’t proceed to the prosecution stage, a detective may be the best person to assess cooperation, she said.
But when a community tackles the issue, what’s important is that some avenue of protection is available to illegal immigrants who are victimized, Pendleton said.
Despite the views of some officials, Pendleton said the law had two goals: offering humanitarian relief and encouraging immigrants to work with law enforcement.
2nd goal
That second goal has become even more important during recent years as U.S. Immigration and Customs Enforcement officials have worked more closely with local law enforcement to identify illegal immigrants, Pendleton said. That has made some immigrants more fearful.
“It harms everybody if there is an underground society where crimes can be perpetrated,” said Pendleton, who is co-director of Asista, a national organization that helps professionals working with immigrant crime victims. “I don’t think there’s anything wrong with helping somebody who’s helping the criminal justice system.”
University of Texas School of Law professor Barbara Hines offered a similar view of the U-Visa statute.
There are other legal mechanisms to keep an illegal immigrant in the country to help with a case. Congress did not create U-Visas as a “last resort.” Instead, lawmakers wanted to encourage immigrants to speak up, she said.
“Congress decided who should benefit,” said Hines, who is co-director of UT Law’s immigration clinic. “It’s a federal issue, not a local law enforcement issue where they should be deciding who merits a U-Visa and who doesn’t.”
Among those who most aggressively lobbied for the law were domestic violence groups, Hines said.
They knew battered women often fail to report abuse because of deportation fears. The same dynamic can play out in other types of cases, such as robbers targeting illegal immigrants, she said.
“If you believe in community policing, the community includes undocumented immigrants, especially in Texas,” Hines said.