Family Courts as Certifying Agencies: When Family Courts Can Certify U Visa Applications for Survivors of Intimate Partner Violence

By Sylvia Lara Altreuter

Abstract

Undocumented intimate partner violence survivors living in the United States have limited options for immigration relief. One of the only avenues open to them is the U Visa: a nonimmigrant visa established by the Battered Immigrant Women Protection Act of 2000. To apply for a U Visa, a survivor must prove to immigration authorities that she was the victim of a crime; suffered substantial abuse; and was, is, or is likely to be helpful in the investigation of her abuser. The statute requires that all U Visa applications be certified by an appropriate official who testifies to the applicant’s helpfulness with the investigation. This certification is a tremendous obstacle for survivors: agencies are under no legal obligation to provide these certifications, the procedure to obtain them is often complicated and time consuming, and the decision-making process is opaque. Moreover, many undocumented survivors fear involvement with the criminal courts or police out of fear of their abusers and deportation.

In response, survivor advocates approach certification creatively and seek certification from less obvious authorities. Undocumented survivors are more likely to be involved in family court proceedings—seeking orders of protection from, or adjudicating custody and visitation disputes with, their abusers—than criminal proceedings. Advocates have likewise turned to family courts to certify U Visa applications. Family courts are unclear on whether they are authorized to certify these applications and are often reluctant to make a final decision.

This Note proposes that family courts are empowered by statutory language and history to certify U Visa applications for undocumented survivors. After a textual and legal process analysis of the statutory provisions regarding U Visa certification, this Note proposes guidelines for practitioners seeking U Visa certification from a family court and for family court judges ruling on these applications.