Achieving a Consistent and Legally Sound U Visa Certification Process in New York Family Courts: A Follow-up to Modern Courts’ 2015 Report – 2016

December 19, 2016, New York, NY – The Fund for Modern Courts today released a report entitled, Achieving a Consistent and Legally Sound U Visa Certification Process in New York Family Courts, which finds there is significant confusion within New York’s Family Court regarding the U Nonimmigrant Status (“U Visa”) certification process. The report clarifies existing applicable law and recommends ways to alleviate confusion and ensure a more consistent and predictable process for U Visa certification in the Family Court.

Achieving a Consistent and Legally Sound U Visa Certification Process in New York Family Courts: A Follow-up to Modern Courts’ 2015 Report – 2016

Family Court judges in New York State play a crucial role as certifying officials for victims of crime seeking U Visas. Family Court is particularly important in the U Visa context because it has jurisdiction over family offense proceedings, a route often preferred over criminal prosecution by victims of abuse.

The Victims of Trafficking and Violence Protection Act of 2000 (“TVPA”) established the U Visa, and it was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes, while also protecting victims of crimes. The TVPA allows victims of certain crimes to seek U Nonimmigrant Status. Judges are authorized to certify that the crime victim has been “helpful” to law enforcement, which is a necessary component of a U Visa application. Without a certification, an applicant will not be granted U Visa relief.

U Visa certifications are submitted to United States Citizenship and Immigration Services (“USCIS”) of the Department of Homeland Security (“DHS”) as part of the U Visa application. DHS, not the Courts, makes the final determination whether to grant a U Visa.

Amelia T.R. Starr, Esq., Chair of the Fund for Modern Courts’ Executive Committee and a primary author of the report said, “We found that flawed practices and uninformed court and judicial personnel are causing the New York Family Court to turn away otherwise qualified U Visa applicants.” For example, New York Family Court judges inconsistently and sometimes incorrectly manage the certifications of “helpfulness” required for U Visa relief. Federal law requires that the certifying official confirm the “helpfulness” of the victim by indicating that the applicant has knowledge of the criminal activity listed and “[h]as been, is being or is likely to be helpful in the investigation and/or prosecution” of the criminal activity.

As a result, Modern Courts issued this report to identify those flawed practices and make specific recommendations including:

  • particularized training for judges and court personnel regarding the U Visa certifications;
  • the creation of a clear, easy-to-follow U Visa desk guide for Family Court judges, with the relevant statutes and regulations regarding U Visa certification
  • and clarifying the scope of judicial authority to certify, as well as the proper evidentiary bases for certification.

Denise Kronstadt, Esq., Deputy Executive Director and Director of Advocacy and Policy at the Fund for Modern Courts and co-author of the report, said, “access to equal justice is a priority for all New Yorkers. A recently formed group of immigration and family court experts, Immigrant Justice in State Courts, is dedicated to collaborating with legal advocates, the judiciary, and court administrators to identify ways that we can collectively bridge the gaps that exist with respect to the complex family-immigration law intersection. We are completing dynamic and new resource materials and training programs on immigration issues in the New York Family Courts, that we hope the court system will adopt for judges and have successfully advocated for an Advisory Council on Immigration Issues in Family Court.”

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