Oana Marina (née Lucescu), our second featured attorney in our profile series, immigrated to the U.S. from Romania in 2002. Since joining the team at George P. Mann & Associates in 2011, Oana has handled a plethora of diverse cases and legal matters, including challenging USCIS cases and writing briefs for the Board of Immigration Appeals (BIA). Her favorite area of focus, however, is one of the most challenging and sensitive in all of immigration law practice – U-Visa and VAWA (Violence Against Women’s Act) applications.
The U-Visa is a nonimmigrant visa meant for victims of certain crimes committed in the U.S. The most common cases include victims of domestic violence, felonious assault, robbery, and sexual assault. To apply, one must be a victim of an enumerated crime, possess information about the crime, and be, have been, or likely be helpful in the investigation or prosecution of the crime. A certification from the law enforcement agency must attest to the above. Additionally, the victim must demonstrate that they suffered substantial harm, physical or mental/emotional. Also, generally, the victim must be a person of good moral character.
The U-Visa option exists in order to safeguard against the vulnerabilities involved with being both the victim of a crime and having illegal status. Many undocumented immigrants hesitate to report crimes out of fear that they could be deported. The U-Visa encourages the applying immigrant to be a helpful part of the law enforcement process while ensuring their safety.
The benefits of U-Visas are numerous. Along with work authorization, one can apply for a green card after continuous physical presence in the U.S. for three years in U-status, and continued cooperation with law enforcement. Another benefit is that Immigration & Customs Enforcement (ICE) cannot deport someone with a pending U-Visa. Also, “derivative beneficiaries,” such as spouses and other qualified family members of direct victims are eligible for relief.
Oana believes that U-Visas are, for the most part, an excellent option for victims of crimes, but they have one major drawback that can seriously hinder the process of applying. A mandatory component of the application is the U-Visa certification, which must be obtained from a law enforcement agency responsible for the investigation, prosecution, conviction or sentencing of the qualifying criminal activity. The problem is, U-Visa certification is a required part of the application, while it is only optional for law enforcement officials to sign. As such, law enforcement can arbitrarily decide not to sign off the certification. In one case in our office, for example, the U-visa seeker was the father of a minor child killed in a drunk driving accident. He was otherwise eligible for U status because he was the indirect victim of a qualifying crime and the harm – the death of his daughter – was obvious. The prosecutor’s office declined our request for U-Visa certification, based on a subjective judgment of our client’s eligibility. And this is not an isolated case. One prosecutor’s office in the area will sign certifications only for victims of domestic violence.
Oana believes the way to solve this problem is to limit the discretion of law enforcement officials. One should not be able to compel someone to complete a certification, but instead of allowing unwillingness to be arbitrary, the law should require certifying agencies to reasonably justify their refusal. Furthermore, there should be an avenue for administrative review of that refusal. “This way, fewer potential U-Visa cases would be cut off from the beginning simply because of the arbitrary opinion of a single law enforcement official,” Oana explained. As of right now, the only way Oana found to help her clients when the prosecutor’s office refuses to sign is to get the certification from the police instead.
One of Oana’s favorite success stories is that of a Nigerian client whose mother first hired us in 2012 to represent her while she was detained by ICE. Our client was sneaked into the U.S. by her U.S. citizen husband, to whom she was religiously married to in Nigeria, but never legally married in the U.S. Throughout their relationship and the births of their three U.S. citizen children, the husband demonstrated his escalating propensity for physical, verbal, and emotional abuse. Anytime he lashed out at our client, he would threaten to report her to ICE, since she was undocumented, if she called the police. The violence in their relationship culminated in March 2012, when after a physical argument, she threatened to report him to authorities. He decided to report her first.
Our client was taken into ICE custody and placed in removal proceedings. The GPM team had to quickly figure out what kind of relief from deportation was available. Worse still, our client’s children were still with her abusive husband while she was detained; thankfully, after several reports of his abuse, Child Protective Services removed them from the home and placed them in the care of our client’s mother.
The most challenging aspect of this case was how to demonstrate that our client was eligible for relief based on her clearly being a victim of domestic violence. She certainly had the physical signs of having been abused, but she was detained, had not filed a police report (necessary for U-visa), and she had no proof of being legally married. This last factor made her ineligible for VAWA – a self-petition immigrant visa meant specifically for battered spouses and children of U.S. citizen abusers. The entire team was involved in this case, from visiting her in jail, to working with ICE, local police and child protective services, filing papers with the Immigration Court, and with USCIS.
Our client was eventually interviewed by police officers and filed a report while she was in jail. This became the basis for the U-visa certification, and coupled with the physical and emotional signs of abuse she displayed, she became eligible for U status. By July of 2012, we had filed the U-visa application and requested to expedite adjudication. Upon filing, she was no longer at risk of being deported, but ICE would still not release her per their discretion. By the time her U-Visa approval came in the mail in October 2012, she was immediately released, and her removal case terminated. Now, nearly three and a half years later, she lives happily with her children and is applying for her green card, harbored away from her abusive past.
When asked why she practices immigration law, Oana replied, “It fits me, because I am an immigrant myself and I’d like to think that I have a very good understanding of where immigrants are coming from.” Oana enjoys working on U-Visa cases because of the human element. Due to the higher degree of sensitivity and emotional poignancy involved, one has to be both an attorney and a counselor in these cases, someone who “works with people, not just papers.” And apparently, she has the formula figured out – Oana has a near-perfect success rate for U-Visa approvals since she began working on them in 2011.