The Trafficking Victims Protection Act (TVPA) established the U visa, a humanitarian immigration status for survivors of serious crimes who cooperate with law enforcement to report criminal activity. The benefit is intended to serve two symbiotic purposes: provide undocumented victims of crime with humanitarian protection from deportation and strengthen law enforcement’s ability to prosecute crime. A statutory cap of 10,000 annual visas has led to an unanticipated ten-year adjudication backlog for noncitizens applying today.

U visa applicants in removal proceedings are within a system of divided jurisdiction: only the U.S. Citizenship and Immigration Service may adjudicate the U visa, while administrative law immigration judges of the Department of Justice’s Executive Office for Immigration Review (EOIR) have exclusive jurisdiction over removal proceedings. Because the TVPA does not explicitly protect an applicant from deportation during the unanticipated adjudication delay, U applicants remained vulnerable to deportation until their visas were finally issued, contrary to congressional intent. To address this problem, the Department of Homeland Security (DHS) and immigration courts implemented a discretionary framework intended to prevent the deportation of U visa applicants.

This Article is the first to analyze the framework of discretionary relief for U visa applicants across DHS and EOIR. It documents this framework’s vulnerabilities, as evidenced by the inconsistent application and underutilization by agencies under the Bush and Obama administrations, and the vast number of policies implemented to undermine discretion during the Trump administration. This Article argues that relying on an exercise of discretion to protect U applicants undercuts statutory intent. Steps taken under the Biden administration to encourage discretionary protection are promising, but more lasting reform should be implemented to protect immigrant victims of crime and encourage cooperation with law enforcement.

Continue reading Surviving Crime and Facing Deportation: U Visas as a Defense Against Removal in a System of Divided Agency Jurisdiction