“Sanctuary” Policies: What are the Decisions Facing State and Local Governments?

by Andy Ayers*          

The word “sanctuary” has no legal definition; it can refer to a diverse array of state and local policies on immigration enforcement.

This explainer gives an overview of the kinds of state and local policies that are called “sanctuary.”  Policies in this area fall somewhere on a spectrum from full support for immigration enforcement to active resistance.  Many jurisdictions are somewhere in the middle—neither supporting nor resisting federal immigration enforcement, but staying neutral.

State and local governments make four kinds of choices about immigration enforcement:

  • Should they use their resources (personnel, time, and so on) to participate in federal enforcement activities?
  • Should they share information about noncitizens with federal authorities?
  • Should they detain noncitizens at the request of the federal government?
  • Should they grant federal immigration agents access to physical sites controlled by the state or locality?

It is tempting to think of a “sanctuary” as a jurisdiction that answers “no” to these questions.  But real answers are rarely that simple. Every jurisdiction, for example, shares information with federal authorities, regardless of whether it calls itself a “sanctuary.” Thus, the final choice each jurisdiction makes—whether to publicly refer to itself as a “sanctuary”—can be confusing, or even misleading.

No jurisdiction is purely a sanctuary, and no jurisdiction supports federal immigration enforcement to the fullest possible extent. So, to understand the policies behind the word “sanctuary,” we need to understand the range of choices governments make in each category.

I.  Whether to Use Investigative Resources to Support Immigration Enforcement

State and local power to participate in immigration enforcement is limited. The federal government has exclusive power over the regulation of immigration, so states and localities can’t make their own immigration-enforcement laws.[1]  But state law-enforcement officials can participate in immigration enforcement if they choose; for example, it’s generally permissible for state law-enforcement officers to ask questions about immigration status.[2]

Thus, states and localities must make choices about whether to participate directly in federal immigration enforcement by contributing state and local resources like personnel, time, use of equipment, and the money it takes to provide those resources.

The federal government cannot compel local law-enforcement personnel to participate in investigations.[3] So local authorities must make choices about the extent to which they will participate in immigration investigations. States and localities have several options.

Becoming ICE deputies:  287(g) agreementsThe most aggressive way for localities to participate in immigration enforcement is to partner with the federal agency that enforces immigration law, U.S. Immigration and Customs Enforcement (ICE), in what are known as “287(g)” agreements.[4] Under the 287(g) program, the federal government deputizes local law-enforcement agents as agents of ICE.

The 287(g) program is voluntary; no jurisdiction can be required to participate in it.[5] 287(g) agreements are made between ICE and local law-enforcement officials, which means that in New York State, it is independently elected sheriffs who make decisions at the county level.  For cities or towns, it is law-enforcement officials who enter the agreement, but those officials are typically subject to oversight from other elected officials. In New York State, Rensselaer County is currently the only 287(g) jurisdiction.[6]

Although localities operating under 287(g) perform federal immigration-enforcement tasks, the agreements do not provide funding to reimburse the costs of those activities, only the cost of training.

Contributing resources without becoming deputies.  287(g) agreements are only one way in which localities can participate in immigration enforcement. Jurisdictions that want to support immigration enforcement can do so informally, without a 287(g) agreement, by riding along with ICE officers, conducting joint investigations, or by sharing investigative information with ICE.  Many jurisdictions do so.  For example, court officers might help ICE make arrests in state courthouses (advocates have reported this happening in New York State courthouses[7]).

Staying neutral.  Most United States jurisdictions have chosen not to enter into 287(g) agreements. Many have adopted policies under which they do not participate in immigration investigations or share information with ICE.  But these policies almost always have exceptions. For example, if local authorities are investigating a drug-trafficking network, and ICE is investigating some of the same people, most local policies allow the exchange of information. It is difficult to define “neutrality” or “sanctuary” in such situations.

Efforts to undermine federal enforcement.  While most “sanctuary” policies aim for a kind of neutrality—that is, nonparticipation in immigration enforcement—there are cases where localities have more directly attempted to undermine federal enforcement efforts.

For example, the mayor of Oakland in February 2018 made a public announcement warning noncitizens of a planned ICE sweep.[8] It’s unclear what impact this had; Attorney General Sessions accused the mayor of being responsible for “800 wanted criminals that are now at large in that community,” prompting ICE’s local spokesperson to resign, accusing Sessions and agency officials of lying about the impact of the mayor’s statement.[9] In any event, this sort of resistance by local officials is very unusual.

II.  Whether to Detain Noncitizens at Federal Authorities’ Request

Another choice states and localities must make is whether to detain or hold noncitizens in custody at the request of federal authorities.

In some cases, a noncitizen in local custody is the subject of a criminal warrant—i.e., one issued by a judge upon a showing of probable cause to believe that the noncitizen in question has engaged in criminal conduct. Every jurisdiction of which we are aware honors criminal warrants.

But being present in the United States without authorization is not, by itself, a crime.  Therefore, most of the allegedly unauthorized immigrants whom ICE might seek to detain are not subject to criminal warrants. Instead, ICE asks localities to detain them by issuing a document called a “detainer.”[10]

Detainers.  When a state or locality has incarcerated a noncitizen for non-immigration-related reasons, and ICE becomes aware that the noncitizen is in custody, ICE may issue a detainer.  The detainer indicates that there is probable cause to believe that the noncitizen is “removable” (i.e., deportable).

Detainer requests that the state or locality “maintain custody of the alien for a period not to exceed 48 hours beyond the time when he/she would otherwise have been released from [state or local] custody to allow DHS to assume custody.”[11] (The detainer form also requests that the locality give DHS notice before releasing the detainee; see the discussion of information-sharing, below.) Detainers are not a guarantee of deportation; in Texas, for example, only 15% of detainers end up leading to deportation.[12]

Detainers are requests, not commands, so there is nothing unlawful about declining to comply with them. Most “sanctuary” policies include a provision stating that the jurisdiction will not honor detainers.  Some other jurisdictions decline to honor detainers simply because it may be unlawful to honor them.

Is it lawful to comply with detainers?  There is a significant legal question about whether it is lawful for a state or locality to hold a noncitizen in custody beyond the time when there is an independent reason to detain them. It is generally a violation of the Fourth Amendment to hold someone in custody without probable cause to believe they have committed a crime, and immigration detainers offer reason to believe only that the person has engaged in a civil offense. Thus, multiple courts have found it unlawful to comply with detainers, including a trial court in New York State.[13]  The Third Circuit has allowed a person mistakenly held pursuant to an ICE detainer to sue the county for money damages.[14] Because of these precedents, the New York State Sheriffs’ Association advised sheriffs in 2014 not to comply with detainer.[15] I

It is important not to overgeneralize about jurisdictions’ polices on detainers.  Many jurisdictions that generally decline to comply with detainers will comply with them for certain kinds of criminal convictions.  For example, New York City (a prominent “sanctuary”) has a policy of complying with detainers for noncitizens convicted of “one of 170 serious crimes within the last five years—including arson, homicide, rape or robbery—and in cases in which a judge has signed a detainer request.”[16]

Prosecutorial decisions that cause deportation.  Although many jurisdictions refer to themselves as “sanctuaries” because they do not directly turn over noncitizens to ICE, states and localities take many other actions that can lead to deportation. As noted below, whenever a noncitizen is arrested and fingerprinted, ICE receives the information. And when local authorities criminally prosecute a noncitizen, their conviction can often lead to deportation. A large number of crimes can result in noncitizens being removable or inadmissible.[17]

Indeed, the risk of deportation resulting from criminal conviction is so significant that the Supreme Court has found criminal defense attorneys obligated to know, and advise their clients of, the potential immigration consequences of a guilty plea.[18]

Thus, prosecutors’ decisions about what charges to file can result in noncitizens being deported—even those with legal status.  Some prosecutors have adopted policies of trying to charge defendants in a way that minimizes immigration consequences.[19]

III.  Whether to Share Information with Federal Authorities

Many “sanctuary” policies limit the extent to which states and localities will share information about noncitizens with federal authorities.  There are many ways in which states and localities might share information with federal immigration authorities. Some of them are direct, but others are indirect and inadvertent. This section lists some of the main ways in which federal authorities can obtain information about noncitizens from local governments.

Fingerprint checks.  When localities submit fingerprints to the Federal Bureau of Investigation (FBI) to check a person’s criminal history, those fingerprints are automatically shared with the Department of Homeland Security (DHS) to check against its immigration records. And localities cannot ask the FBI to refrain from sharing the fingerprints with DHS.[20]

Thus, every jurisdiction of which we are aware effectively shares noncitizens’ fingerprints with ICE whenever those fingerprints are taken.

Notifying ICE that a detainee will be released.  Immigration detainers, discussed above, request not only that localities hold noncitizens in custody, but also that they “[n]otify DHS as early as practicable (at least 48 hours, if possible) before the alien is released from [state or local] custody.”[21] Again, this is a request, not an order—the federal government lacks the power to compel localities to share information.

Many of the jurisdictions that call themselves “sanctuaries” do not comply with requests for advance notice of release.

The federal government has indicated that it will begin to require, as a condition of grants that many localities receive, that localities certify that they honor requests for advance notice of release.[22]

Allowing ICE to see records. It’s not unusual for ICE to ask to see jail records.[23]  Some jurisdictions require ICE agents to obtain a sheriff’s approval before seeing jail records. Or they might allow ICE to see some jail records but not others.[24]

Sharing criminal and surveillance databases.  A variety of state and local databases contain information about immigration status. For example, some police departments maintain list of suspected gang members, and share these lists with ICE. These lists can incidentally provide information about suspected immigration violations.

Surveillance databases, too, can represent a form of indirect information-sharing with ICE. Many localities use a company called Vigilant Solutions, which operates license-plate databases that compile information about cars’ whereabouts from traffic cameras and other scanners.[25] Participating localities upload license-plate data from traffic cameras; Vigilant can then check its database to see where a given license plate was last seen. Although several of the jurisdictions that participate in the system are “sanctuaries,” Vigilant shares its database with ICE, which means participating municipalities are indirectly granting ICE access to their traffic cameras and other surveillance data.

Access to benefits records.  According to the U.S. Government Accountability Office (GAO), federal authorities have used various databases to locate undocumented immigrants, including “[p]ublic and private databases that record information concerning benefits” and “department of motor vehicle records.”[26] Indeed, ICE agents told the GAO that there was no need to ask non-immigrants to voluntarily provide their address data, because ICE could already find that data through such records.[27]

For some programs, federal access to state databases is automatic. Medicaid, for example, is a joint federal-state program; both federal and state entities have access to shared benefits databases.  And student visas are managed by universities through a system called SEVIS, which is designed to ensure that information about noncitizen students is instantly communicated to federal authorities.

Lawfulness of policies against information-sharing.  Under the Tenth Amendment, the federal government cannot compel states to share information. However, a federal statute (8 U.S.C. § 1373) says that states and localities “may not prohibit, or in any way restrict, any government entity or official from sending” immigration information to ICE. Nor can states and localities prohibiting maintaining immigration status information.[28]

Attorney General Jeff Sessions issued a memo defining a “sanctuary” jurisdiction as one that “willfully” violates § 1373.[29] But no jurisdiction of which we are aware acknowledges an intent to violate § 1373; most “sanctuary” policies prohibit sharing of information “except as required by law,” often specifically providing that the policy should be construed as consistent with § 1373.  (This can make it hard to know exactly what information local employees should share.)

Policies against gathering information. Because of the various ways in which information can be received by federal authorities, many “sanctuary” jurisdictions prohibit their employees from inquiring about immigration status.

Although § 1373 prohibits policies that ban information-sharing, it says nothing about localities’ ability to prohibit their employees from inquiring about immigration status.

IV.  Whether to Grant Access to Government-Controlled Sites

Another kind of decision localities must make is to what extent they will allow immigration authorities to access property or facilities owned by the local government.

Sometimes, localities have no choice: if ICE agents have a criminal warrant, the law requires granting them access.  And we are aware of no jurisdiction that has attempted to avoid compliance with a judicial warrant.

Also, if the locally-controlled property is generally open to the public, it is unclear whether the law allows the locality to deny access to ICE.[30]

The most high-profile controversy over ICE access to sites controlled by state and local government involves courthouses. Controversy has erupted over ICE’s practice of making arrests in or near state courthouses.  State officials have called for the practice to end.[31] But ICE has made clear the practice will continue.

Another kind of government-controlled site includes jails, prisons, and probation offices. Some jurisdictions allow ICE agents to enter their jails or prisons freely, while others require the agents to get prior authorization from the sheriff or some other official. Still other jurisdictions refuse to allow ICE agents into jails unless they produce a criminal warrant. Because unlawful presence is not a criminal offense, so ICE is often unable to produce a criminal warrant.

The federal government has indicated that it will begin to require, as a condition of grants that many localities receive, certification that the locality allows federal agents access to correctional facilities to interview suspected undocumented immigrants.[32]

Significant numbers of arrests happen on public sites. For example, 72 percent of ICE arrests in Colorado between October 2016 and May 2017 occurred at courthouses and probation offices.[33] No jurisdiction of which we are aware has altogether attempted to prohibit ICE from accessing government-controlled sites, and even if it were possible to do so, many ICE arrests happen near such facilities when noncitizens leave or arrive.  Even in “sanctuary” jurisdictions, noncitizens are regularly arrested on sites controlled by the state or locality.

V.  Whether to Use the Word “Sanctuary”

As the discussion above makes clear, the term “sanctuary” is used to apply to a large variety of policies.  Because the term “sanctuary” has no legal meaning, the decision whether to refer to a given jurisdiction as a “sanctuary” is a political one, not a legal one. Different jurisdictions may choose to use the term, or not, for different reasons.

Undoubtedly, some jurisdictions choose to refer to themselves as “sanctuaries” to send a message about their disagreement with federal immigration-enforcement policies. But other jurisdictions may wish to avoid the term precisely because it signals disagreement with those policies. Some jurisdictions may adopt policies similar to those in “sanctuary” jurisdictions for reasons unrelated to immigration policy. For example, they might wish to avoid donating their resources to support federal immigration enforcement, and to avoid potential liability for detaining people pursuant to detainers.

Still other jurisdictions might wish to avoid using the term “sanctuary” because it is misleading. As discussed above, even jurisdictions that identify themselves as sanctuaries typically share significant amounts of information with federal authorities, directly and indirectly, and provide no safe harbor for noncitizens on state-owned properties like courthouses and jails.  Thus, the term may mislead noncitizens or others into thinking that “sanctuary” jurisdictions are zones in which immigration enforcement does not take place.  The term “sanctuary” has many meanings, but in no category does it refer to a complete absence of immigration enforcement.

Resources

For more on detainers, see ICE, “Detainer Policy,” https://www.ice.gov/detainer-policy; the regulations governing detainers are at 8 C.F.R. § 287.7. Another useful resource is Lazaro Zamora, “Sanctuary Cities and Immigration Detainers: A Primer” (Bipartisan Policy Center), https://bipartisanpolicy.org/blog/sanctuary-cities-and-immigration-detainers-a-primer/

For more information on how municipal data practices make information available to federal enforcement authorities, see Sunlight Foundation, Protecting Data, Protecting Residents: 10 Principles for Responsible Municipal Data Managementhttps://sunlightfoundation.com/wp-content/uploads/2017/02/Protecting-data-protecting-residents-whitepaper.pdf.

For more information on § 1373, including information about possible consequences of violating it and recently proposed amendments, see Law Enforcement Immigration Task Force, A Path to Public Safety: Background on 8 U.S.C. § 1373 (Sept. 2017), https://leitf.org/wp-content/uploads/2017/09/Path-to-Public-Safety-Background-on-8-U.S.C.-1373.pdf.

For more information about state and local governments’ role in immigration law, visit our website: www.albanylaw.edu/glc/immigration  

 

Endnotes

* Andy Ayers is Director of the Government Law Center and a visiting assistant professor at Albany Law School.

[1] State and local governments cannot make laws that add punishment for immigration-related offenses to whatever punishment the federal government already imposes. See United States v. South Carolina, 720 F.3d 518, 532-533 (4th Cir. 2013).

[2]  See Arizona v. United States, 567 U.S. __, 132 S. Ct. 2492, 2507-2508 (2012).

[3] State sovereignty prevents the federal government from ordering state law-enforcement officers to implement federal programs. See Printz v. United States, 521 US 898 (1997).

[4] Section 287(g) of the Immigration and Nationality Act is codified at 8 U.S.C. § 1357(g).

[5] U.S. Immigration & Customs Enforcement, “Fact Sheet: Delegation of Immigration Authority Section 287(g),” https://www.ice.gov/287g.

[6] All of the jurisdictions participating in the 287(g) program are listed at https://www.ice.gov/287g.

[7] Felipe de la Hoz & Emma Whitford, “Court Officers Are Aiding in Immigration Arrests, Say Lawyers,” Village Voice (Nov. 16, 2017), https://www.villagevoice.com/2017/11/16/court-officers-are-aiding-in-immigration-arrests-say-lawyers/.

[8] Hamed Aleaziz, “ICE confirms 150-plus arrests in California sweep, slams Schaaf’s early warning,” San Fran. Chronicle (Feb. 27, 2018), https://www.sfchronicle.com/bayarea/article/Reports-of-California-immigration-sweep-are-true-12714833.php.

[9] Meagan Flynn and Avi Selk, “ICE spokesman resigns, citing fabrications by agency chief, Sessions about California immigrant arrests,” Wash. Post (Mar. 13, 2018).

[10] See ICE, “Detainer Policy,” https://www.ice.gov/detainer-policy; see also 8 C.F.R. § 287.7.

[11] ICE, Form I-247A, https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

[12] For statistics on the number of detainers leading to deportation, see Gus Bova, “Myth-Busting Immigration Detainers: They’re Optional, Costly and Rarely Lead to Deportation,” Texas Observer (Feb. 7, 2017), https://www.texasobserver.org/immigration-sanctuary-cities/.

[13] See People ex rel. Swenson v. Ponte, 46 Misc. 3d 273 (N.Y. Sup. Ct. 2014). But see People v. Xirum, 45 Misc. 3d 785, 791 (N.Y. Sup. Ct. 2014) (holding it permissible to detain a defendant for 48 hours when there’s an order of removal).  See generally Lunn v. Commonwealth, 477 Mass. 517 (2017).

[14] Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014); see also Mercado v. Dallas Cnty., 2017 U.S. Dist. LEXIS 5785, *15 (N.D. Tex. Jan. 17, 2017). For a compilation of authorities, see Christine M. G. Davis, Immigration Detainers or Holds Issued Pursuant to 8 C.F.R. § 287.7, 10 A.L.R. Fed. 3d Art. 1 (2016).

[15] Kirk Semple, “New York State Sheriffs Shying Away From Immigration Detention,” N.Y. Times (July 31, 2014), https://www.nytimes.com/2014/07/31/nyregion/new-york-state-sheriffs-shying-away-from-immigration-detention-.html.

[16] Liz Robbins, “In a ‘Sanctuary City,’ Immigrants Are Still at Risk,” N.Y. Times (Feb. 27, 2018).

[17] Shakeer Rahman & Robin Steinberg, “Sanctuary Cities in Name Only,” N.Y. Times (Feb. 15, 2017), https://www.nytimes.com/2017/02/15/opinion/sanctuary-cities-in-name-only.html.

[18] Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

[19] See Corinne Ramey, “Some Prosecutors Offer Plea Deals to Avoid Deportation of Noncitizens,” Wall Street Journal (July 7, 2017).

[20] Fingerprints are shared under the “Secure Communities” program. See ICE, “Secure Communities,” https://www.ice.gov/secure-communities.

[21] ICE Form I-247A, available at  https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf.

[22] See U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, “State Criminal Alien Assistance Program: FY 2017 Program Requirements and Application Instructions,” at page 7,  https://www.bja.gov/Funding/17SCAAP_Program_Requirements.pdf.

[23] Id. at 6.

[24] See, e.g., U.S. Department of Justice, Office of the Inspector General, Audit Division, “Cooperation Of SCAAP Recipients in the Removal of Criminal Aliens from the United States,” at p. 5 (Audit Report 07-07, Jan. 2007), https://oig.justice.gov/reports/OJP/a0707/final.pdf.

[25] April Glaser, “Sanctuary Cities Are Handing ICE a Map,” Slate (Mar. 13, 2018),  https://slate.com/technology/2018/03/how-ice-may-be-able-to-access-license-plate-data-from-sanctuary-cities-and-use-it-for-arrests.html.

[26] Government Accountability Office, Alien Registration: Usefulness of a Nonimmigrant Alien Annual Address Reporting Requirement Is Questionable, at 3 (Jan. 2005),  https://www.gao.gov/assets/250/245208.pdf.

[27] Id.

[28] The statute prohibiting state bans on information-sharing is 8 U.S.C. § 1373. An almost-identical prohibition appears in 8 U.S.C. § 1644.

[29] Office of the Attorney General, “Implementation of Executive Order 13768, ‘Enhancing Public Safety in the Interior of the United States’,” (May 22, 2017), available at  http://apps.washingtonpost.com/g/documents/politics/implementation-of-executive-order-13768-enhancing-public-safety-in-the-interior-of-the-united-states/2445/.

[30] See Noah Manskar, “City Council Members Push Top State Judge To Bar ICE From Courts,” Patch (Feb. 20, 2018), https://patch.com/new-york/new-york-city/city-council-members-push-top-state-judge-bar-ice-courts (quoting Office of Court Administration spokesman Lucian Chalfen as saying that OCA cannot legally “shut down a public building to law enforcement”).

[31] See, e.g., “New York AG Eric Schneiderman and Acting Brooklyn DA Eric Gonzalez Call for ICE to End Immigration Enforcement Raids in State Courts,” (Aug. 3, 2017), https://ag.ny.gov/press-release/new-york-ag-eric-schneiderman-acting-and-brooklyn-da-eric-gonzalez-call-ice-end.

[32] See U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, “State Criminal Alien Assistance Program: FY 2017 Program Requirements and Application Instructions,” at page 7,  https://www.bja.gov/Funding/17SCAAP_Program_Requirements.pdf.

[33] Tory Johnson, “Immigration Arrests at Courthouses Are Under Fire From State Officials,” Immigration Impact (Sept. 28, 2017), http://immigrationimpact.com/2017/09/28/immigration-arrests-at-courthouses-fire-state-officials/.

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U Visa: Guidance for Local Law Enforcement and Investigative Bodies

by Kendra Sena*

Introduction

Immigrants, especially women and children, can be particularly vulnerable to serious crimes like human trafficking, domestic violence, sexual assault, and wage theft.[1] Those without lawful status may be reluctant to report crimes to law enforcement or to assist in the investigation or prosecution of crimes for a variety of reasons, including fear of deportation.[2] To support law enforcement in the prosecution of crimes committed against immigrants, and to facilitate the reporting of those crimes, Congress created the U Visa.[3]

A U Visa is a temporary visa for victims of certain crimes who have been helpful in the investigation or prosecution of the crime. The purpose of the U Visa is to “strengthen the ability of law enforcement agencies to detect, investigate, and prosecute” certain serious crimes and to protect victims.[4]

State and local law enforcement and investigative bodies, such as police, sheriffs, protective service agencies, prosecutors, as well as state and local judges, can help a person apply for a U Visa by certifying that the person was a victim of a crime and is, has been, or is willing to be helpful in the investigation or prosecution of a crime. Such certification is necessary but not sufficient to obtain a U Visa; the Department of Homeland Security (DHS), through U.S. Citizenship & Immigration Services (USCIS), makes the final determination whether to issue a U Visa to an applicant.

The U Visa is an important tool for local governments to build trust with immigrant crime victims and communities and to strengthen enforcement efforts against those who target immigrants. This explainer gives an overview of the U Visa and the role of state and local government officials in the U Visa process.

I. What is a U Visa?

A U Visa is a form of relief that the federal government can grant to victims of certain crimes who have been helpful or are likely to be helpful in the detection, investigation, or prosecution of criminal activity. A U Visa allows a person to remain in the U.S. for up to four years and gives them access to certain benefits, including the right to work. The U Visa does not confer permanent immigration status; only after several years, and if certain conditions are met, may the person apply for Lawful Permanent Resident (LPR) status (i.e., a “green card”), which may provide a pathway to citizenship.

II. What role do state and local government officials play?

State and local enforcement and investigative bodies have a limited but critical role in the U Visa process. To apply for a U Visa, a person must submit, among other things, a certification that they have been the victim of a crime and have been helpful in the investigation or prosecution of a crime. A state or local enforcement or investigative body may certify as much by completing a certification form.

The U Visa certification is a required form that the applicant must include in the U Visa application. But the certification alone is not determinative of U Visa eligibility, and does not itself confer any status or benefit on the applicant. Nor does it speak to the character of the applicant, their eligibility for a visa, or express an opinion as to whether a U Visa should be granted. Instead, the certification serves a limited and targeted purpose:  to verify that the person applying for the visa has been a victim and that they have been, are being, or are likely to be helpful in the detection, investigation, prosecution, conviction, or sentencing of criminal activity.[5]  USCIS, the federal agency charged with reviewing visa applications, makes the final decision regarding U Visa eligibility and issuance.

A person cannot apply for a U Visa without a certification from an enforcement or investigative body. Thus, while the role of state and local government in the U Visa process is limited, the role is crucial. The decision whether to sign a certification is that of the certifying body. It is therefore important that local governments establish policies and procedures regarding U Visa certification.

III. Process for certifying a U Visa

To be eligible for a U Visa, an applicant must submit Form I-918, Supplement B, completed by a certifying agency. The form and its instructions are available on the USCIS website at http://www.uscis.gov. The form must be signed by an official from a certifying agency, and verifies that the applicant was the victim of a qualifying crime, and has been helpful or is likely to be helpful in the investigation or prosecution of criminal activity.

Certifying agencies include state and local bodies responsible for the investigation, prosecution, conviction, or sentencing of the criminal activity, and include (but are not limited to):

  • Federal, state, and local law enforcement agencies;
  • Federal, state, and local prosecutors’ offices;
  • Federal, state, and local judges;
  • Federal, state, and local family protective services;
  • Federal and state Departments of Labor;
  • Other investigative agencies.[6]

The official providing the certification must be:

  • The head of the certifying agency;
  • An official in a supervisory role who has been specifically designated[7] by the head of the certifying agency to issue U Visa certifications on behalf of that agency; or
  • A federal, state, or local judge.[8]

Qualifying crime or qualifying criminal activity includes one or more of the following in violation of Federal, State or local criminal law of the United States:

Abduction Abusive sexual contact
Blackmail Domestic violence
Extortion False imprisonment
Felonious assault Female genital mutilation
Fraud in foreign labor contracting Hostage-taking
Incest Involuntary servitude
Kidnapping Manslaughter
Murder Obstruction of justice
Peonage Perjury
Prostitution Rape
Sexual assault Sexual exploitation
Slave trade Stalking
Torture Trafficking
Unlawful criminal restraint Witness tampering

Qualifying crimes also include “any similar activity,” meaning criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities. Also included is an attempt, conspiracy, or solicitation to commit any of the above and other related crimes.[9]

Helpfulness standard. Helpfulness means the victim possesses information that was, is, or is likely to assist law enforcement or an investigative body in the investigation or prosecution of a crime of which they are the victim.

A current investigation, the filing of charges, a prosecution or conviction are not required in order for a victim of a crime to have been “helpful.” Reporting a crime, even where arrest or prosecution is impossible—when the perpetrator has fled, for example—is still helpful.

In the case of a victim of a crime who is under the age of 16 when the crime first occurs, a parent, guardian or “next friend” of the child may provide the required assistance.[10]  A “next friend” is a person who appears in a lawsuit to act for the benefit of an immigrant who is a child, or is incapacitated or incompetent, or who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. [11]  The next friend is not a party to the legal proceeding and is not appointed as a guardian.[12]

USCIS review. In addition to the certification form, a person seeking a U Visa must submit an application form (I-918, “Petition for U Nonimmigrant Status”) and considerable supporting materials. The applicant must show that they have suffered substantial physical or mental abuse as a result of having been a victim of a qualifying crime, and that they are admissible to the United States. Note that the certifying agency does not have to certify that the victim suffered substantial abuse, nor that they are admissible; the certification form speaks only to the fact that the applicant has been a victim of a qualifying crime and that they are willing to be helpful in the investigation or prosecution of the crime.

As part of its review of the U Visa application, USCIS conducts a thorough background investigation, Federal Bureau of Investigation (FBI) fingerprint and name checks, and a review of the applicant’s criminal history, immigration history, and other background information.[13] USCIS may request additional information from the applicant or certifying agency if questions arise.[14]

The number of U Visas that can be awarded in any year is limited by statute to 10,000.[15]  Once that cap is reached, applicants are put on a waiting list.[16] An analysis of recent adjudications puts the current wait time at over two years for review and placement on the waiting list.[17]

Conclusion

The U Visa is an important tool for local governments to strengthen enforcement efforts against criminals who target immigrants. A strong policy favoring U Visa certifications in appropriate cases communicates to immigrant communities a commitment to protecting victims of crime. Police departments, sheriffs’ departments, prosecutors, protective service agencies, and state and local judges play a vital role in building trust with immigrant communities in order to increase public safety and the effectiveness of the justice system.

Best Practices

  1. Establish a formal policy regarding U Visas for your local government, enforcement body, court, or agency. Train first responders, officers, and other personnel on U Visa eligibility and the process for certifying a U Visa application.
  2. Conduct outreach to immigrant communities and their advocates explaining the U Visa and the agency’s role in certifying U Visa applications.
  3. Ensure fairness by implementing a review process for U Visa certification requests.

Resources

The Department of Homeland Security (DHS) has issued a Resource Guide for Federal, State, Local, Tribal, and Territorial Law Enforcement, that includes a helpful FAQ, available at: https://www.dhs.gov/publication/u-visa-law-enforcement-certification-resource-guide

For an excellent guide for local law enforcement and prosecutors, including a model policy and sample outreach materials, see: http://niwaplibrary.wcl.american.edu/pubs/uvisatoolkit-police-proscutors/

A useful step-by-step guide for family court judges and other judges in NY can be found at: http://immigrants.moderncourts.org/wp-content/uploads/sites/2/2017/04/U-visaCertificationGuidance.pdf

For a compelling case study of one police department’s experience with U Visas, see: http://www.policeforum.org/assets/docs/Subject_to_Debate/Debate2017/debate_2017_junaug.pdf

For more information about state and local governments’ role in immigration law, visit our website: albanylaw.edu/glc/immigration

 

ENDNOTES

* Kendra Sena is the Senior Staff Attorney at the Government Law Center at Albany Law School.

[1] The Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386 § 1513, 114 Stat. 1533 (2000) (codified as amended in various sections of the U.S.C.) [hereinafter VTVPA].

[2] Dep’t of Homeland Sec., U and T Visa Law Enforcement Resource Guide, (last updated Jan. 8, 2016), https://www.dhs.gov/sites/default/files/publications/U-and-T-Visa-Law-Enforcement-Resource%20Guide_1.4.16.pdf [hereinafter DHS Resource Guide].

[3] See VTVPA at 1533-34.

[4] VTVPA at 1533 (“The purpose of this section is to create a new nonimmigrant visa classification that will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes … committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States.”).

[5] 8 U.S.C. 1184(a)(15)(U).

[6] 8 C.F.R. 214.14(a)(2).

[7] In the case of a designated official, USCIS recommends including a letter signed by the agency head that reflects that person with a particular rank or title within the agency has been designated a signing official. See DHS Resource Guide.

[8] 8 C.F.R. §  214.14 (a)(3)(i-ii).

[9] 8 U.S.C. (a)(15)(U)(iii).

[10] 8 C.F.R. § 214.14(b)(2).

[11] 8 C.F.R. § 214.14(a)(7).

[12] Id.

[13] DHS Resource Guide.

[14] Id.

[15] 8 U.S.C. § 1184(p)(2). Certain immediate family members of U Visa recipients may also be eligible for a derivative U Visa. See 8 U.S.C. § 1101(a)(15)(U)(ii).

[16] 8 C.F.R. 214.14(d)(2).

[17] Sarah Bronstein, Changes to U Visa processing in Fiscal Year 2017, Catholic Legal Immigration Network, Inc. (CLINIC),  https://cliniclegal.org/resources/immigration-and-nationality-act-limited-number-u-visas-fiscal-year-2017 .

Renaming the Bridges of New York

By Bennett Liebman
Government Lawyer in Residence
Government Law Center
Albany Law School

New York State government has always had an obsession with the renaming of its major bridges and tunnels, especially naming them after deceased elected officials. We now have the Robert F. Kennedy Bridge (formerly the Triborough Bridge), the Ed Koch Queensboro Bridge, the Hugh L. Carey Tunnel (formerly the Brooklyn-Battery Tunnel), and the Franklin Delano Roosevelt Mid-Hudson Bridge.

Currently we have the saga of the Tappan Zee Bridge which is the bridge on the New York Thruway (the Governor Thomas E. Dewey Thruway) crossing the Hudson River between Tarrytown in Westchester County and Nyack in Rockland County.  The bridge opened in the mid 1950’s as the Tappan Zee Bridge. Governor Mario Cuomo in 1993 proposed a program bill to rename the bridge as the Governor Malcolm Wilson Tappan Zee Bridge, and the state legislature approved the program bill later that year (Ch. 530; L. 1993). Malcolm Wilson was a long time elected official from Westchester County, who served as Nelson Rockefeller’s Lieutenant Governor for more than three terms and for a year as New York’s fiftieth governor. In 1993, the legislature in the bridge-renaming legislation found “that a lasting tribute should be made to honor Governor Wilson’s untiring dedication and outstanding achievements on behalf of the state.”  Governor Mario Cuomo, in approving the legislation, noted that it had been “introduced at my request” and that the renaming “is a fitting tribute to the high standard of public service exemplified by Governor Wilson throughout his 36 consecutive years in public office.” Nonetheless, the state legislature at the close of the 2017 session renamed the Wilson Bridge as the Governor Mario M. Cuomo Bridge, based on the suggestion of Governor Andrew Cuomo.

But nothing in New York compares to the nine-decade saga involving the naming of the Verrazano-Narrows Bridge.  The Verrazano-Narrows Bridge which was completed in 1965 connects Brooklyn with Staten Island at the Narrows, which is the gateway from the Atlantic Ocean to New York harbor. When constructed, the bridge was the largest suspension bridge in the world.

Starting in the 1920’s, there was regular talk about building a bridge at the Narrows.  Throughout that time, the bridge was known as the Narrows Bridge. The talk finally became serious in 1954 as the Port Authority, the Triborough Bridge and Tunnel Authority, and New York City decided to move forward on the Narrows Bridge. In 1995, state legislation was passed authorizing construction of the $220 million “Narrows Bridge.” Robert Moses, who was the czar of metropolitan New York construction at the Triborough Authority, called it “the bridge of my dreams.”

Yet this was just the beginning of the legislative fights involving the bridge. The plan for the bridge involved the condemnation of numerous homes in Bay Ridge in Brooklyn. The Bay Ridge leaders—and Mario Cuomo was one of their attorneys—were able to pass bills in three consecutive years to change the route of the bridge to avoid the condemnations. The bills were vetoed by Governor Harriman in 1957 and 1958 and by Governor Rockefeller in 1959. Eventually eight hundred homes were condemned, and seven thousand people were forced to relocate.

Meanwhile, the Italian Historical Association of America, based in Brooklyn under the active leadership of its founder John LaCorte, began to argue that the Narrows Bridge should rightfully be named for the Florentine explorer Giovanni da Verrazano, who in 1524 was arguably the first white man to explore New York Harbor. Governor Harriman in 1958 (an election year) agreed and proposed the Verrazano Bridge.

In 1959, a reluctant Robert Moses, at the Triborough Authority, agreed to the Verrazano-Narrows Bridge name change. The possible use of the Verrazano name, however, prompted a negative reaction from Staten Island residents, and the Staten Island Chamber of Commerce proposed the “Staten Island Bridge.”  The Staten Islanders questioned the role of Verrazano, and wondered why there was no bridge named specifically for Staten Island.  (After all, there were the Brooklyn, Manhattan, Bronx Whitestone, and Queensboro Bridges.) At the 1959 groundbreaking for the bridge, the Staten Islanders hired a plane carrying the banner, “Name It The Staten Island Bridge” to fly over the ceremonies.

Governor Rockefeller agreed with the Verrazano name and not the Staten Island contingent. The legislature in 1960 formally amended the law to state that the bridge referred to as the Narrows shall be the “Verrazano-Narrows Bridge.” This statutory enactment served to defeat the Staten Islanders and made certain that Robert Moses could not go back on his word and rename it the Narrows Bridge.

This did not end the bridge-naming controversy. People began to question the spelling of Verrazano’s last name. Were there two “z’s” or one “z” in the explorer’s name? The statue of the explorer in Battery Park, a city ferry boat, and the Triborough Authority claimed that the historical evidence supported the two “z” spelling.  The Triborough Authority even erected many two “z” road signs in anticipation of the bridge’s construction.  LaCorte fired back at the Triborough Authority by saying that he had viewed the historical documents in Italy which showed the one “z” spelling to be the proper spelling.  Most importantly, LaCorte had the trump card. The state legislature had spelled the bridge with one “z,” and the one “z” spelling prevailed.

This did not completely stop the Staten Islanders. After the assassination of President John F. Kennedy in 1963, the Staten Island Chamber of Commerce called upon the legislature to name the bridge the “John F. Kennedy Memorial Bridge.” Legislation was introduced to change the name of the bridge in honor of President Kennedy, but it went nowhere. For the first 50 years after it opened, we had the Verrazano (one ”z”) Bridge.

Then came 2016.  A Brooklyn College student named Robert Nash started a petition to rename the bridge with the two “z” spelling.  The petition received significant publicity. Both houses in the New York State legislature introduced legislation to rename the bridge with the two ”z” spelling. The State Senate in 2017 passed the bill, but the Assembly did not act on it.

The one constant here is that these bridge renaming issues will always be with us in New York.  The supply of bridges that can be renamed and the supply of public figures for whom they can be named for is simply inexhaustible.

What Should We Name for Mario Cuomo?

By Bennett Liebman
Government Lawyer in Residence
Government Law Center
Albany Law School

Putting aside the controversy over the renaming of the Governor Malcolm Wilson Tappan Zee Bridge into the Governor Mario M. Cuomo Bridge, what should be named for Mario Cuomo? Let’s face it, several of the renamings of highways, bridges, and other structures in the last decade have made little sense.

Why rename the Tappan Zee Bridge after Mario Cuomo when Mario Cuomo had taken the initiative to name the bridge after Malcolm Wilson? Can anyone envision the subway-centric Ed Koch driving a car over the former Queensboro Bridge that is now the Ed Koch Queensboro Bridge? How can Robert Kennedy—one of the first high-profile campaigners against water and air pollution—have the Triborough Bridge (a bridge that author Robert Caro termed a “traffic machine”) named for him?

The point should be that public figures should have some significant nexus to the monument, building, park, or road which bears their name.[1] That nexus could come from geography, the public works of the public figure, and the interests and avocations of the public figure.

Sometimes, the combination of these factors produces its own synergy. Fiorello La Guardia, while a congressman, served as an Air Force flyer in World War I. As New York City mayor, he helped build and improve the airport that was thoughtfully named for him after his death.

Nelson Rockefeller had the idea to build the Empire State Plaza. The plaza was largely built during his administration. His art collection is a major part of the plaza. He dominated everything in Albany for nearly fifteen years. It makes sense to call the plaza the Governor Nelson A. Rockefeller Empire State Plaza.

So where does that leave Mario Cuomo? On geography, the answer should be Queens County, where he lived from his birth until 1994. You could conceivably add Albany, where he lived during his time as governor, and was noted for rarely spending an evening away from the Governor’s Mansion. Otherwise, you might use Brooklyn, where he went to high school, college, law school, and where his law firm was located, or Nassau County, where he frequently played baseball or softball.

On the public works field, the Carey-Cuomo years were not known for the building of infrastructure.  The state was still recovering from the years of capital construction and borrowing during the Rockefeller administration. You could point to Battery Park City (opened for residential housing in 1983)[2] or Riverbank State Park, which was the first state park in Manhattan and which opened in 1993 while Cuomo was governor.

On the avocation side, Cuomo was known for spending almost all his time working. He was a stay-at- home working governor. His avocations really were baseball and basketball. He had been a minor league baseball player, and often had his driver stop his car to watch kids play baseball. He also was an avid basketball player who played well into his seventies. Nobody should think of naming a golf course after him, and it would be hard to envision Mario Cuomo saying, “Tennis, anyone?”

Trying to harmonize these factors, if you looked at Queens County locations, you might consider the following possibilities: 1. Co-naming the New York Mets stadium/grounds/park with Citi Field. The situation could be akin to the stadium in San Diego, where you have a combination of names for a sporting venue. There you have Jack Murphy Field inside the venue known as Qualcomm Stadium. Name it Citi Field at the Cuomo Park or Citi Field at the Cuomo Grounds.[3] 2. Add the Cuomo name to the Cross Bay Bridge, which connects eastern Queens across Jamaica Bay to the Rockaways. Many of the other significant bridges in the city already are named for individuals or have iconic status like the Brooklyn Bridge and the Williamsburg Bridge. The other bridge to the Rockaways is the Marine Parkway–Gil Hodges Memorial Bridge, which connects Brooklyn to the Rockaways. An intra-Queens bridge which would keep the original name on the bridge would almost seem ideal for Mario Cuomo.[4] If you had to name another bridge for Mario Cuomo, wouldn’t it make more sense to append his name to the other Queens bridges across Long Island Sound, the Throgs Neck Bridge or the Whitestone Bridge? 3. Rename Mario Cuomo’s junior high school, which was Shimer Junior High and is now the site of the Queens Transition Center. 4. The city’s Cunningham Park is located very close to the Cuomo house in Holliswood. It might be possible to name the park after Cuomo, or name at least one of the ballfields for him.[5] 5. Rename Utopia Parkway for Cuomo. This street, which runs through much of Queens, passes right next to Cuomo’s alma mater (St. John’s).[6] The term ‟Utopia” is derived from the book of the same name by St. Thomas More. More, a lawyer-philosopher-statesman, was clearly one of Cuomo’s idols, and a print of a painting of More hung in Cuomo’s office. If you had to name another road for Cuomo, you could also consider the Grand Central Parkway which runs only in Queens and runs close to both his home in Holliswood and St. John’s. You could have the Mario Cuomo-Grand Central Parkway.

If Brooklyn was a possibility, the logical name would be to rename the building where the Second Department, Appellate Division was located after Cuomo. The courthouse at 45 Monroe Place was located four blocks from Cuomo’s law office on Court Street. Given Cuomo’s dedication to the law, this might serve as an appropriate naming opportunity.

If you are looking at infrastructure built during Cuomo’s years as governor, the clear example would be Riverbank State Park. It was conceived and opened during his administration and is clearly one of the most popular non-beach parks in the State system.

Looking at avocations which translate into baseball or basketball, the most logical move would be to name the gym at the Department of Correctional Services Training Academy in Albany after Cuomo. This was the regular site of most of Cuomo’s basketball games.

The other possibility besides the Training Academy would be to name a baseball field at Albany’s Lincoln Park after Cuomo. The Governor’s Mansion is nearly adjacent to the park, and Cuomo would play softball there and jog through the park. While it is always sacrilegious to take any name away from Lincoln, a Mario Cuomo baseball field at Lincoln Park would be more than appropriate. The four 20-story agency buildings which are part of the Governor Nelson A. Rockefeller Empire State Plaza still go by the uninspired names of Agency Buildings 1, 2, 3, and 4. Why not name these buildings after longtime governors such as Mario Cuomo and George Pataki?[7]

There are a host of appropriate naming opportunities for Mario Cuomo. Let’s give him the recognition he merits by basing the naming on his life experiences, his work, his history, and his interests.

 

[1] An exception could be found for a public figure of international prominence. Thus, most any public site could be reasonably named for presidents Eisenhower, Kennedy, and Reagan.

[2] The governing body for Battery Park City is now the Hugh L. Carey Battery Park City Authority.

[3] It should be noted that Cuomo grew up as a Yankees fan.

[4] One issue here is that the Cross Bay Bridge was renamed as the Cross Bay Veterans Memorial Bridge.

[5] Cunningham Park was named for W. Arthur Cunningham, who was elected the New York City Comptroller in 1934 but died of a heart attack in the spring of 1935. This would not be the first time that a facility was renamed after the individual for whom the facility was named faded from public consciousness. Kennedy Airport was officially named for Major General Alexander E. Anderson (even thought it was universally called Idlewild Airport) before the name was changed after the 1963 assassination. Eisenhower Park in Nassau County had initially been named Salisbury Park in honor of the English Earl of Salisbury.

[6] When Cuomo attended St. John’s, the school was in Brooklyn, but he did teach law there at its present location.

[7] Perhaps, it would make sense to name these buildings after the most recent governors in New York who served more than eight years  as governor. These would be Lehman, Dewey, Cuomo and Pataki. (Given that the entire plaza is named for him, it would make little sense to name an individual building for Governor Rockefeller) There already is a state office building named for Alfred E. Smith who served four two-year terms as governor.