Lancaster woman sues federal government over immigrant status
A 20-year-old undocumented immigrant in Lancaster says she has waited nearly seven years to obtain a visa reserved for victims of abuse. Now she is known as "Jane Doe #1" in a lawsuit against the federal government, alleging officials haven't followed through.
Beginning when she was 8 years old in the Bronx, New York, a neighbor repeatedly sexually assaulted her, she said. Such instances can qualify an undocumented immigrant for a U visa, which was created in 2000 to help crime victims like her.
In 2013, she went to police to tell her story, which is required to obtain the visa. In 2016, she submitted her application.
What followed was radio silence.
"I feel like I’m stuck," said the woman, who asked to remain anonymous because of her immigration status. "I feel like I have no future. I feel like I don’t know what I'm doing. Over the years, I've been having to talk about my experience, reliving it over and over. I feel like I’m stuck in this place where I don’t know where I’m going, and I can’t get on with my life. It’s been hard and too long.”
Following a suicide attempt, she and her mother went to the local Young Women’s Christian Association. Once realizing she was undocumented, the organization sent her to the Pennsylvania Immigration Resource Center in York, which put her in contact with Lancaster-based attorney Dave Freedman.
Freedman and the woman quickly learned that even getting the Bronx District Attorney's Office and the New York Police Department to take her case would be difficult.
"The Bronx did not want to do it because they were afraid that if they were to ever prosecute this guy, they were going to use the U visa certification to impugn the young lady's credibility," Freedman said.
The NYPD insisted the statute of limitations on the case had passed. However, Freedman appealed the decision, and eventually the police commissioner signed off on a certificate of helpfulness, which certifies the individual has been a victim of a crime. The Bronx DA followed suit.
While the U visa was created to aid abuse victims, it also covers the derivative family members through deferred action. This is a critical point in the case, Freedman said, because while the victim and her sister are covered under the Deferred Action for Childhood Arrivals program — which is under threat by the Trump administration and for the women will expire in 2021 — the mother doesn't have such protection.
And as each day passes, fear of being deported continues in the county that is less than an hour from one of the largest U.S. Immigration and Customs Enforcement detention centers on the east coast in York.
The U.S. doles out just 10,000 U visas annually. If the limit has been reached, applicants are supposed to be put on a wait list, which also comes with protection from deportation.
But the application was sent out three years ago. Freedman and the family still don't know if she was ever even put on a wait list.
"This means all of us are going to be less safe," Freedman said. "If people don't report these crimes to law enforcement (because of a lack of trust in the process), the people who perpetuate those crimes are going to do it again and again."
Freedman filed a lawsuit in the U.S. District Court for the Eastern District of Pennsylvania in May claiming the federal government has broken the Administrative Procedure Act by failing to act "in a reasonable time."
"(The U visa process) is not sustainable at all, so that’s why practitioners have started doing federal litigation suits to increase public awareness that U visas are a thing and they may be an option," said Allison Little Sun, who manages the Attorney-Immigrant Survivors Project at PIRC. "But the time it takes is not feasible for people to remain in the U.S."
It often takes years to simply get on the wait list, Little Sun said. And from there, it often takes another handful of years to actually acquire a visa.
Defendants being sued in their official capacity include Keven McAleenan, secretary of the U.S. Department of Homeland Security and L. Francis Cissna, director of the U.S. Citizenship and Immigration Services, as well as other high-ranking officials in Vermont and Nebraska where the U visa application had been sent and transferred.
Last month, the officials, represented by U.S. Attorney William M. McSwain, filed a motion to dismiss the lawsuit. The office declined to comment, as the case is under seal, a spokeswoman said. The court is scheduled to rule on the government's motion on Sept. 18.
Through documents provided to The York Dispatch, there are several reasons given as to why the case should be thrown out.
In court filings, the government argues that there is no reason to prioritize certain U visa applications over others, stating that the plaintiffs "do not allege and cannot show that USCIS has a non-discretionary duty to adjudicate their petitions immediately, ahead of those petitions filed earlier in time by similarly situated petitioners."
The wait time is also no more unreasonable than other petitioners, the government argues. The motion to dismiss includes a reference to the U.S. Citizenship and Immigration Services' lack of resources and "substantial" caseloads.
There has been at least one case in the past year where the courts sided with plaintiffs in a similar situation. In 2018, a judge in the U.S. District Court for the Eastern District of Pennsylvania required the government to adjudicate the individual's work authorization within 90 days.
But there have been no cases where the courts force the government to actually grant or deny a U visa in a specific time frame.
In the motion to dismiss, the government cites a 2005 case in New York's Southern District Court, where the court declared a three-year wait time for a U visa wasn't unreasonable given the USCIS's lack of resources and large caseload.
For Freedman, the program's inefficiency has him scratching his head.
"If unreasonable time is not specified, what stops (the government) from putting them off forever?"
Freedman said if the court were to deny the government's motion to dismiss, the process of discovery would follow, giving him the chance to ask questions and request documents to help argue their case for accelerating the U visa process.
Push-back from the government is expected, he said. But the Lancaster-based attorney said he will continue to fight to force the government to take responsibility and address the lengthy process.
— Logan Hullinger can be reached at firstname.lastname@example.org or via Twitter at @LoganHullYD.