Maria Gaspar endured two years of beatings and threats from her boyfriend in Greeley, but she was reluctant to go to police because she was an illegal immigrant.
Gaspar eventually told authorities about the abuse and got a restraining order against her boyfriend. He was deported to his native Guatemala.
Then her real problems began.
Within a couple years, Gaspar was seized by immigration agents and deported, too, leaving her young son and mother behind in Greeley. Back home in Guatemala, the ex-boyfriend tracked her down and beat her again.
Gaspar’s life is now in danger in Guatemala, says Gaspar’s attorney, Christine Hernandez of Denver. Hernandez is trying to help the 27-year-old get a relatively new kind of visa. Called a U Visa, it is given only to noncitizen victims of serious crime who did or will help law enforcement catch the criminals. It gives the victim temporary legal status and the potential to apply for a green card.
Immigration attorneys say the reward at the heart of the U Visa program is justified because it encourages victims to step from the shadows to put away bad guys, thereby making everyone safer.
But some prosecutors, including Weld District Attorney and Republican gubernatorial candidate, Ken Buck, question why an illegal immigrant should be rewarded for doing something any decent, law-abiding citizen would do — helping law enforcement — particularly if they have already provided that help. Buck’s office has been more reluctant to sign off on U Visa requests than some other Front Range judicial districts.
“It’s a tool for prosecutors and law enforcement to make sure that we don’t lose witnesses that are essential to a case,” said Buck, who also is a Republican candidate for U.S. Senate. “It’s not a tool to reward past behavior.”
What Buck and other law enforcement officials think about U Visas matters greatly. To earn one, applicants must first get such an official to sign the “Supplement B Form,” which says the noncitizen was, is, or could be important to the prosecution of the criminal.
Buck’s office routinely rejects B Forms if the noncitizen victim is no longer needed because the case is closed.
But some attorneys who represent U Visa applicants say stances such as Buck’s undermine the statute’s intent — to encourage illegal immigrants to report crimes.
Hernandez, Gaspar’s attorney, is blunt about the reception she feels she got from the Weld County D.A.’s office: “It’s nice you helped us get the bad guy, but screw you.”
And that, Hernandez and other attorneys said, creates a problem for public safety.
“In Weld, immigrant victims get the message that it’s not safe to come forward and report crimes, and the result is everybody in Weld County is not safe,” said Kimberly Baker-Medina, a Fort Collins immigration attorney who’s had cases in Weld County.
Buck said his office acted properly, although he said he’s not familiar with the Gaspar case. He argues that just “because you become a victim of a crime doesn’t mean you win the citizenship or green-card lottery.”
If the attorneys think the illegal immigrant deserves a U Visa, they should apply for it while the case is active, Buck said.
But some attorneys say there are often good reasons to wait, and that the law allows for granting U Visas on closed cases when it says an illegal immigrant may apply if that person “has been, is being, or is likely” to help law enforcement investigate or prosecute the crime.
Alyssa Reed, a Denver immigration attorney, had a B Form request that was denied by the Weld District Attorney’s Office because the criminal case was closed at the time of the application. She subsequently got the B Form signed by a Weld District Court judge.
Like many U Visa petitions, it involved a woman who was the victim of domestic abuse. The woman, who is an illegal immigrant from Central America, now has a U Visa, along with her two children.
Attorneys generally wait until a case is closed to apply for the U Visa, Reed said, because the petition is discoverable evidence. The defense could use the information to cast suspicion on why the victim is pressing charges — suspecting it’s been done just to get a U Visa — and “that could complicate the DA’s ability to prosecute the case.”
Buck calls that a faulty argument. When it comes to jury review of evidence, he said, it would be a “non-factor” if a victim is seeking a U Visa.
“If they think somebody deserves to be in this country because they are an important witness to a case, they should file the U Visa application at the time,” Buck said. “And that argument, in many of these cases, where the case is 10, 12 years old, is just nonsense.”
There is a relatively straightforward approach to B Forms in some Colorado jurisdictions. The Boulder District Attorney’s Office has granted 18 in the past three years, while the Adams County District Attorney’s Office approved eight in 2008, 19 in 2009 and 17 so far this year. Office representatives said they don’t keep track of denials. The First Judicial District in Blackhawk has received three applications since 2008, approving all of them.
The Weld District Attorney’s Office, however, has OK’d just three out of 20 requests in the past three years.
Those three requests were all current cases. But other qualifying agencies take different tacks, exposing the fungible nature of the statute.
In the 17th Judicial District, which covers Adams and Broomfield counties, District Attorney Don Quick has a volunteer coordinator who vets the petitions. The coordinator ensures they meet the requirements of an eligible crime, copies of police reports are attached, and that the victim helped investigators.
“I don’t think philosophical views on immigration impact me,” Quick said. “If they meet these requirements, you sign off on them, and if they don’t, you don’t.”
Stan Garnett, Boulder district attorney, said his office has approved about a half-dozen petitions a year in recent years. The status of a case might ultimately affect the U.S. Citizenship and Immigration Service’s decisions about the application, he said, but “we just decide if (the applicant) is going to be of assistance or have been.”
“From a district attorney’s perspective, it’s not a particularly politicized issue,” Garnett said. “We have information provided to us, and we provide factual information back. It’s not really an immigration matter to us.”
His office has signed one B Form so far this year.
The 17th Judicial District, meanwhile, is on pace to sign off on more forms this year — 17 so far — than the previous high of 19 in 2009.
Quick attributes the increase to more attorneys becoming accustomed to the procedure and filing more petitions. The complexity of the process, he said, makes it difficult for a non-attorney to navigate.
Carol Chambers, district attorney for Arapahoe, Douglas, Elbert and Lincoln counties, said she has not certified many B Forms. “I have declined more than I have certified — I think in all but one case because of the person’s criminal record.”
Her office ensures that the petitioner cooperated in a case, but then takes the added step of running a fingerprint check to see if the person has a criminal record or any aliases.
While Chambers has a reputation as a hard-line prosecutor — she has sought the death penalty against six defendants in four cases, more than any other jurisdiction in Colorado — she said there are some employers who “will exploit people here illegally and tell them that if they report their victimization to police, they will be deported.”
That’s what Gaspar’s then-boyfriend told her when she was being assaulted and beaten in Greeley in 2002 and 2003.
“He knew that I didn’t have papers,” Gaspar said. “That’s why he was always menacing me, saying he was going to call immigration on me if I said anything to the police.”
Now, Gaspar’s attorney has received a B Form signature from a Greeley Police Department captain. So Gaspar will wait to see if UCSIS will approve a U Visa. It usually takes a year to get an answer, Hernandez said. Gaspar says that’s difficult to explain to her 9-year-old son, Andres, a U.S. citizen, who remains in Greeley with his grandmother.
But Gaspar ended a recent call to her son with this hopeful message:
“Do not despair,” she told him. “It won’t take long until I am back — maybe a month or two. I love you very much.”