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U-Visa Class Action Lawsuit Filed

by Peter A. Schey of the Center for Human Rights and Constitutional Law Foundation

On October 17, 2005, the Center For Human Rights and Constitutional Law (CHRCL) filed a class action federal lawsuit against Michael Chertoff, Secretary, U.S. Department of Homeland Security (“DHS”), and one of the agencies that he directs, the U.S. Citizenship and Immigration Services (“CIS”) challenging the defendants’ failure to adjudicate and issue U visas to eligible immigrant survivors of domestic violence and other victims of violent crimes who are assisting or have assisted law enforcement in the investigation or prosecution of criminal offenders. The lawsuit was filed in the U.S. District Court for the Central District of California. A PDF version of the class action complaint is attached.

On October 28, 2000—nearly five years ago—the Victims of Trafficking and Violence Protection Act of 2000 (“Violence Protection Act “) was signed into law. Among other things, the Violence Protection Act permits persons who are victims of serious crimes, and who cooperate with law enforcement in the investigation or prosecution of those crimes, to apply for and receive “U” visas. This provision reflects Congress’s judgment that certain crime victims should be permitted to remain lawfully in the United States both for humanitarian reasons and to bring dangerous, violent criminals to justice.

Despite knowing for nearly five years that they were required to afford crime victims a path to legal status, the Defendants have unlawfully refused and failed to implement the U visa provisions of the Violence Protection Act. Defendants have refused to promulgate regulations, establish procedures or publish application forms by which the victims of serious crimes might apply for U visas. Consequently, crime victims, including the survivors of criminal domestic violence, have no way to apply for the relief Congress has said should be available to them: there is no formal application form, no application fee, no filing instructions, no formal application procedure, nor any DHS officers trained or assigned to adjudicate U visa applications.

When individuals who are prima facie eligible for U visas, including the named Plaintiffs in the lawsuit, have requested U visas and the issuance of U visa regulations, they have instead only been issued Deferred Action Status and work permits. Deferred Action Status is a quasi-legal, non-statutory temporary status equivalent to an exercise of prosecutorial discretion not to seek a crime victim’s deportation or removal: it confers no legal status and simply defers an individual’s deportation from the United States. In contrast, recipients of U visa status, among other benefits, are entitled to travel abroad and, most importantly, may be granted lawful permanent residence after they have held a U visa for three years.

The named Plaintiffs in the recently filed lawsuit include several immigrant women and children living in Texas, Arizona, and California who are the survivors of domestic violence and two victims of vigilante criminal violence. These Plaintiffs have repeatedly requested in writing that Defendants issue them U visas and issue regulations so that they may understand the standards the CIS intends to follow in granting or denying U visas. The Defendants have ignored these written demands. The named Plaintiffs are therefore now seeking judicial relief on behalf of themselves and those similarly situated—namely, crime victims, including survivors of criminal domestic violence, who are eligible U visa applicants—requiring Defendants to issue U visas and regulations implementing the U visa law without further delay, and of course to adjudicate pending applications for U visas in accordance with the Violence Protection Act.

The CHRCL recommends that organizations and agencies representing U visa applicants send CIS written requests for already pending cases (unless this has already been done) specifically requesting that the CIS issue these applicants U visas and promulgate U visa regulations, rather than only requesting “deferred action status” and employment authorization. New applications should be accompanied by cover letters that state that the applicant is prima facie eligible for a U visa and is requesting the prompt issuance of a U visa and U visa regulations with eligibility guidelines, and that Deferred Action Status is only requested in the event that the agency refuses to promptly grant the applicant a U visa. Unless applicants do so, they may not have standing as class members to directly benefit from any judgment or settlement that may result from the lawsuit.

To go to the PDF version of the class suit complaint, click here.

About The Author

Peter Schey is President & Executive Director of the Center for Human Rights and Constitutional Law Foundation. The Foundation serves as a resource to social, legal, religious, and community-based groups throughout the United States and in other countries involved in civil and human rights advocacy.

The CHRCL operates several projects including the Voces Unidas Project ( that currently represents 300 immigrant domestic survivors in four states (CA, AZ, TX, and IL). We hope to expand the project nationwide in 2006. Please feel free to email CHRCL Executive Director, Peter A. Schey, with any questions regarding the lawsuit or the services provided by the Voces Unidas Project: Please email CHRCL Staff Attorneys Michelle Carey or Brigit Greeson-Alvarez with any requests for technical assistance regarding U visas.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.