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Survivors of Domestic Violence and Other Criminal Attacks Get Their Day in Court

The U.S. Court of Appeals for the Seventh Circuit this week held that immigration judges may grant waivers of inadmissibility to immigrant victims of crime seeking to obtain U visas and avoid removal.

The court’s ruling, the first of its kind in any circuit court of appeals, will protect due process and make more comprehensive the judicial process for immigrant victims of crime seeking immigration protection, who require waivers to overcome barriers wrought by past actions like immigration misrepresentation or convictions.

“U visas were created by Congress to help law enforcement and protect immigrant victims of crime,” said Chuck Roth, director of litigation, Heartland Alliance’s National Immigrant Justice Center (NIJC). “Today’s decision ensures that immigrant victims who face deportation are able to fully present their waiver requests before an immigration judge who can weigh the evidence, hear live testimony from the applicant and other witnesses, and make an informed decision about whether the waiver should be granted.”

NIJC client L.D.G. sought U visa protection after she and her children were kidnapped and assaulted in Illinois in 2006, and subsequently were subjected to threats that forced them to close their business. With the family thrust into poverty, and unknown to L.D.G., her husband began dealing drugs—a mistake which led to L.D.G.’s conviction when police found drugs in the couple’s car and home. L.D.G. pled guilty and served probation before DHS placed her in deportation proceedings in 2007. L.D.G. applied for a U visa, a form of protection available to immigrants who are victims of crimes, as well as a waiver so that the government would consider her case in spite of her conviction.

When U.S. Citizenship and Immigration Services (USCIS) denied the waiver, she asked the immigration judge assigned to her case to consider her waiver. He found he lacked jurisdiction over the waiver and ordered L.D.G. deported.

The Seventh Circuit, however, found that the statute contains two waivers that U visa applicants may use to excuse factors that prevent them from receiving U visas. While one of those waivers may only be issued by USCIS, immigration judges have concurrent jurisdiction over the other waiver. Even though USCIS denied L.D.G.’s waiver application, the immigration judge can determine whether she qualifies for the other waiver.

“This is a terrific result for our client,” said Megan E. Thibert-Ind, associate at McDermott Will & Emery LLP, who provided pro bono representation as L.D.G.’s lead attorney before the Seventh Circuit. “She will now have her day in court, and an opportunity to convince an immigration judge to grant her the discretionary waiver provided by law.”

Read the Seventh Circuit's ruling in L.D.G. v. Holder