Evelin was pregnant when she says her boyfriend assaulted her by punching her in the stomach. She was living in the United States illegally but went to police in Gaston County and pressed charges.
Her actions made her eligible for a U visa, which grants immigrants living here illegally the right to remain in the country for four years and seek permanent residence. Federal lawmakers created the program 15 years ago to encourage immigrants in the country without permission to report crimes to police.
But Gaston County District Attorney Locke Bell refuses to let crime victims such as Evelin receive the visas, even though the program was meant to help them.
Bell said that if a crime victim is Latino and the accused is also Latino, he will not certify visa applications that come through his office. Evelin came to North Carolina from Honduras, and her ex-boyfriend is from Mexico.
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Without confirmation from Bell, Evelin and other victims of domestic violence, rape, human trafficking and about two dozen other serious crimes cannot obtain U visas.
In an interview, Bell said he would only certify cases for Latino immigrants who are victimized by non-Latino assailants.
He said Congress passed the law to protect immigrants, who often move into crime-prone neighborhoods and fear deportation if they call police.
“It was never intended to protect Latinos from Latinos,” Bell said. “It was designed to protect them from high-crime areas.”
Legal experts said that’s a misreading of the law. Eligibility for the program, they said, does not take into account the victim’s or the assailant’s race.
Deborah Weissman, a UNC-Chapel Hill law professor, said she believes Bell’s actions violate federal laws banning discrimination based on race.
“It’s an astounding statement,” Weissman said about Bell’s view of the program. “There is no context that could provide a legal justification for it.”
Even so, U.S. Citizenship and Immigration Services, the federal agency that oversees the program, says it has no power to force Bell to change his practice. In a written statement, the agency said prosecutors and other law enforcement officials are under no legal obligation to certify paperwork for immigrants. The rules give local law enforcement complete discretion over which cases they will verify, the federal agency said.
Congress created the U visa in October 2000 with bipartisan support as part of the Victims of Trafficking and Violence Protection Act. The law is meant to help police investigate sexual assaults, human trafficking and other crimes.
The federal government each year grants a maximum 10,000 U visas to people who can prove they suffered substantial physical or mental harm. More than 26,000 people applied last year.
Applicants start by getting local police, the district attorney’s office or a judge to sign paperwork confirming they were victims of serious crimes and continued to cooperate with investigators and prosecutors.
The documents go to the federal government, which conducts background checks and determines whether to issue the visa.
But many qualified applicants are never considered because local law enforcement officials decide not to certify their cases, according to a recent study by the UNC-Chapel Hill School of Law Immigration/Human Rights Policy Clinic. Rules used by police departments, prosecutors and others are inconsistent and sometimes at odds with the intent of the law, the study found.
Researchers identified more than 160 agencies that can certify applications – such as district attorney’s offices and police departments – but refuse to help immigrants in the country illegally apply for U visas.
More than 190 other such agencies deny immigrants certification based on rules that are not part of the law, the study said. Some rejected requests because the case was closed or the crime happened long ago even though the statute sets no such limits.
Weissman, who helped produce the report, said in some cases law enforcement is practicing racial discrimination.
“They will say, ‘We want to send them back,’ or some say, ‘We don’t like Mexicans,’ ” Weissman said. “You won’t believe what comes out of law enforcement’s mouth. It is a tremendous weakness in the law.”
CMPD: Race not considered
The Pew Hispanic Center estimates the population of immigrants in North Carolina without permission is about 325,000.
Bell said he doesn’t know how many applications for U visa verification his office confirms or denies.
Charlotte-Mecklenburg police Maj. Diego Anselmo said the department receives 20 to 40 requests a week for U visa certification. CMPD verifies applications in about half the requests it receives, Anselmo said. The other half are denied or referred to the Mecklenburg County District Attorney’s Office because there has been an arrest in the case, he said.
Asked if CMPD takes into account the victim’s or assailant’s race, Anselmo said, “No, no. Absolutely not.”
“The rules are simple,” he added. “Does the crime qualify and did the petitioner continually cooperate with the investigation.”
John Pinnix, a Raleigh immigration attorney and past president of the American Immigration Lawyers Association, said lawmakers initially believed it was good to give local authorities broad discretion to determine if immigrants were helpful and suffered substantially from crime.
That has produced unintended consequences for crime victims, Pinnix said.
Some police and prosecutors wrongly assume they are deciding whether the person stays in the country instead of the federal government, he said.
“I suspect there has not been a whole lot of training done,” Pinnix said.
On March 11, attorneys for Evelin sent Bell a letter seeking certification for her U visa application. She is identified by her first name only because she fears deportation.
Bell’s office rejected the request. “Assault on a Latino by a Latino is not the rationale for the statute,” he wrote, according to a document provided by Evelin’s attorneys.
Charlotte attorney Theodore Maloney, who is representing Evelin, said he was stunned because in every domestic violence U visa case he has handled in the past seven or eight years, the victim and the assailant have been the same race.
The policy could hit victims of domestic violence especially hard. Maloney said many of his Latino clients, such as Evelin, do not speak English, making it far less likely they would date or marry someone who doesn’t speak their native language.
“Race is never mentioned in the statute,” Maloney said. “It’s offensive someone with this much power has chosen this response.”
Told that some people may view his U visa policy as discriminatory, Bell defended his position. He said he did not understand how anyone could conclude it was racist.
“In my position, I have to make decisions that people don’t like,” Bell said. “This is one of them.”
A hard life
Evelin, now in her 30s, came to North Carolina to escape domestic violence.
Speaking through an interpreter, she said she grew up in Honduras, where she attended college with plans to become a nurse. But she said her father was abusive, and she and her sister left the country in 2005.
Evelin crossed the border illegally and came to North Carolina with the help of her brother who was already living here.
In 2006, she said she met Pedro Lopez Morales, and the cycle of domestic violence continued.
The couple lived together, and during arguments, Evelin said he began punching, kicking and pulling her by the hair. Fed up and fearing for her safety in 2007, Evelin said she called police.
Morales was charged at the time with assault on a female and was deported.
Evelin said she decided to seek a U visa earlier this year to help build a better life. The visa would allow her to get a driver’s license, go back to college and get a job in nursing.
She once again is living in fear of her ex-boyfriend. Evelin said he recently came back to the United States and earlier this week came to her home. She said he accused her of seeing another man and repeatedly kicked her.
Evelin said she called 911, and he fled. However, she said she wasn’t sure she was going to file another police report. Advocates say giving immigrants a chance to obtain a U visa makes it more likely they will report crimes to authorities and make them less fearful of working with the justice system.
She remains upset that Bell refuses to certify her application for a U visa.
“It’s unfair,” Evelin said. “It’s unjust. He needs to remember we are all humans.”
U visa program
The Victims of Trafficking and Violence Prevention Act (VTVPA) became federal law with bipartisan support in 2000. The law created a special visa that allows immigrants in the country illegally to stay and work in the United States for up to four years and apply for permanent residence.
The program is meant to help law enforcement investigate domestic violence, human trafficking and other serious offenses by encouraging immigrants to report crimes without fear of deportation.