The article, “The New U Visa” by Lauren Smiley, sheds light on a disconcerting situation in which undocumented migrants have an incentive to level and proceed with false allegations of rape and domestic violence against American citizens. “’Getting status in the United States is such a big deal that it really can create an incentive, sometimes just to exaggerate, and sometimes to flat out fabricate,’ says Stephanie Wargo, a San Francisco public defender who handled a sexual assault case in which the complaint witness was applying for a U Visa. ‘I don’t know the solution, but it is a problem.’”
The article goes on to detail that in the 2000 reauthorization of the Violence Against Women Act, Congress created the U-1 visa. This type of visa allows an undocumented migrant to obtain a visa, that can lead to permanent residence status, if they were the victim of a crime or have knowledge of a crime, and “’has been helpful, is being helpful, or is likely to be helpful’ in the investigation and prosecution.” In essence, this law gives an incentive for illegal immigrants to level criminal accusations against American citizens. “The visa’s inclusiveness doesn’t stop at deportees; Victims can get legal status for their spouses and children, even those living in another country. Victims under 21 can sponsor their parents and unmarried siblings under 18. In the cases of murder or manslaughter, spouses and children can apply as ‘indirect victims,’ even if they didn’t witness the crime”
Prosecutors are using the U-1 visa to help with prosecutions, “’[T]he government has a witness that isn’t here legally in the United States, and they want their assistance in a criminal case, [a discussion of the U visa] is something that comes up’” (quoting Public Defender Megan Burns). Yet, the fact that a witness in a criminal action received some benefit, i.e. relief with a U-1 visa, can be brought up at trial to impeach the witness’s credibility. But, that proposition maybe under threat. “[A]dvocates argue that information about victims seeking the visa is protected under the Violence Against Women Act. They say allowing information about the visa into court hurts legitimate victims by casting doubt on their testimonies – especially in sexual assault cases, where a trial often comes down to weather a jury believes the man or the woman.”
To her credit, Smiley cites (albeit incorrectly) that the Federal 9th Circuit Court of Appeals has determined that “’special immigration treatment…was highly relevant impeachment material…” The case she cites is United States. v. Blanco. It appears to be an unpublished decision, but its analysis is spot on. In that case, the court held that the government has an obligation under the seminal United States Supreme Court case of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to provide exculpatory evidence to a criminal defendant. Blanco also cites Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), in which the U.S. Supreme Court held that impeachment evidence is exculpatory evidence within the meaning of Brady. If women’s and immigrant advocates are successful in excluding this relevant evidence, then we will have a situation where undocumented migrants can fabricate criminal allegations, receive a substantial benefit in the form of U.S. legal residency, and the fact could not be brought up in trial against an American citizen. That, my friends, is disturbing.