America was recently faced with the unedifying spectacle of an undocumented victim of domestic abuse being arrested in a courthouse by federal agents, just minutes after being granted a protective order against an abusive ex-boyfriend. He’d threatened that if she went to the authorities he’d rat her out to immigration, and it very much looks like that’s what ended up happening.
Now more than ever, federal immigration policy is working in direct opposition to the interests of local law enforcement. According to the latest memo from the Department of Homeland Security, almost all undocumented immigrants are at risk of deportation, and many of the basic things that you need to do in order to live as an undocumented immigrant in America, like using a fake Social Security number to be able to work, make you a criminal in the eyes of the federal government. Simply being arrested is reason enough to be deported, even if you are completely innocent of any crime: no presumption of innocence here.
While some cities, like New York, are making it clear they won’t help the federal government deport immigrants, other cities are signing up to help, taking part in what’s known as the 287(g) program. Even sanctuary cities can’t prevent federal agents from going anywhere they want to, and arresting anybody they want to. Which means that the level of fear and apprehension in immigrant communities is running extremely high right now.
In turn, that means an unprecedented level of effective impunity for the perpetrators of crimes against undocumented immigrants, and even for criminal immigrants themselves. In both cases, local law enforcement needs the victims of crime to feel safe coming forward and testifying, but increasingly those victims are unwilling to do so. Art Acevedo, for instance, the police chief of Houston, told the Houston Chronicle that “when you start trying to infuse state or county or local law enforcement into the immigration debate, it tears down bridges of trust that have taken decades to build.” In fact, he says, these policies are very likely to be counterproductive, in that they make “communities less safe from crime and the prospect of a terrorist attack.”
The problem is that immigrant communities tend to underreport criminal activity at the best of times, even when they’re not facing deportation by federal authorities. Right now, rumors are flying around via text message and social media about ICE raids. Many of those rumors are false, but they’re effective all the same in driving some of the most vulnerable people in America further into the shadows, where they can suffer great harm and hardship.
There is one federal program, however, that is designed to encourage individuals to report crimes to law enforcement, without fearing removal. It’s called the U visa.
If you’re a victim of criminal activity, and cooperate with law enforcement in terms of prosecuting the perpetrator, then you can apply for a U visa, which allows you to live and work in the U.S. legally. After three years on a U visa, you can then apply for a green card, and then, once you have a green card, you can eventually become a citizen. The U visa program has been highly successful: Some 60,000 petitions were received in fiscal 2016, and only a tiny minority of them–about 5%–were denied.
But there’s a problem: Only 10,000 U visas are allowed to be issued each year. Everybody else gets added to a constantly growing waitlist. The list, which is many years long, has more than 150,000 people on it–victims of crime, and their family members, who are stuck in legal limbo. Once you’re on the waitlist, you can apply for work authorization, but you still count as an unauthorized immigrant as far as the federal immigration authorities are concerned, and you certainly can’t travel in and out of the country.
One’s years spent on the waitlist are risky. Carolien Hardenbol, the co-director of the Immigration Intervention Project at Sanctuary for Families in New York, explains that anybody on the waitlist is always one arrest away from deportation. “The risk for U visa petitioners is, if that I get caught up in criminal activity in four years’ time, that U visa will never materialize,” she says. Even if you qualified for the visa years ago, you can always un-qualify for it before it finally gets issued.
What’s more, the latest guidance from the Department of Homeland Security explicitly rescinds any “directives, memoranda, or field guidance” that might have protected U visa petitioners from being deported. Only one class of undocumented immigrants still has explicit protection, and that’s the people with DACA status who came into the U.S. as children. People with DACA and people on the U visa waitlist both have work authorization, but the people with DACA don’t have the hope of getting a visa in the future, and the people on the waitlist don’t have the exemption from federal immigration enforcement.
There’s also the fact that U visas aren’t exactly easy to get: You can’t get a U visa by simply being a material witness to a crime. You need to show that you suffered substantial physical or mental harm, for one thing. Which means, again, that if a crime is committed in full view of multiple undocumented immigrants, the witnesses might well be reluctant to cooperate with prosecutors, who in turn will find it quite difficult to achieve a conviction.
There’s little irony in the fact that John Kelly, the new secretary of homeland security, has managed to make the homeland significantly less secure in his first few weeks on the job. Crimes are going to rise, and prosecutions are going to fall, all because of this misguided immigration crackdown. Let’s just hope that the Department of Homeland Security eventually decides to show some mercy to U visa petitioners–the people on the waiting list who don’t have their visas yet. They’ve already suffered serious harm at the hands of mostly violent criminals. They’re the last people that America should be deporting.