Colorado Sheriff and Prosecutor Contest State Law Requiring that U Visas Be Rubber-Stamped
In January, a Colorado sheriff and district attorney filed a lawsuit challenging a 2021 state law that imposes requirements designed to force state and local law enforcement agencies to approve certifications for U visas, which are available for certain victims of serious crimes. Now, the U.S. Department of Justice has filed a motion asking to join the lawsuit. This case could be significant, because Colorado is just one of several states where the legislature has passed a similar law. The others are California, Illinois, Nevada, and Oregon. Besides imposing requirements that seem to be contrary to federal law, these state laws likely have increased the number of illegal aliens obtaining U visa protections and work permits — and likely increased the number of fraudulent and frivolous applications as well.
In 2021, the Colorado legislature passed and Gov. Jared Polis signed HB 21-1060. The purpose of the bill was to facilitate the ability of aliens claiming to be victims of crime to get a certification from a state or local law enforcement agency supporting the alien’s petition for a U visa. This certification is a requirement to apply for a U visa...
But statutory flaws, regulatory leniency, and state laws like Colorado’s have increased opportunities for fraudulent and frivolous applications. Under Biden policies — which have not been rescinded by Trump — petitioners can receive the work permit and deportation protection merely for filing the petition, and before any meaningful review of the merits. This has led to a significant spike in applications to more than 40,000 per year and a major backlog in processing that allows even unqualified applicants to receive the benefits. For more on the problems in the U visa program, see this recent report.
The Colorado bill created a strict set of requirements for certifying law enforcement agencies that receive a request from an alleged victim who plans to petition for a U visa. These requirements are clearly intended to result in rubber-stamping of certifications. First, the agency is expected to sign off on the certification within 90 days unless the alleged victim is already in removal proceedings, or if the alleged victim has a family member who will age-out of eligibility, in which case the agency has only 30 days to sign. In addition, the agency is required to presume that the alleged victim has been or will be helpful unless the agency has written documentation of unhelpfulness; this determination is not discretionary. The agencies also must provide information on the U visa process to all victims...
Douglas County Sheriff Darren Weekly and District Attorney George Brouchler (whose district includes Douglas County) maintain in the lawsuit that the state law unlawfully interferes with federal immigration law and the discretion of law enforcement agencies to make “free and honest determinations” about the merits of a U visa case...
Specifically, the lawsuit claims that the state law prevents law enforcement agencies from “considering all factors” in the case, including whether the alien suffered significant harm from the crime, whether the alien has information about the crime that is helpful to the LEA, or whether the alien’s claims of victimization are credible, all of which are key factors in determining eligibility under federal law...
For its part, the Department of Justice is asserting that the Colorado law effectively negates some of the federally established U visa eligibility requirements (specifically helpfulness, by substituting Colorado’s definition for the federal one), eliminates the discretion of law enforcement agencies in certifying, and seeks to thwart federal law. Moreover, DOJ argues that allowing the Colorado law to stand could embolden other states to pass similar laws.
Hats off to D.A. Brauchler, Sheriff Weekly, and the Department of Justice for recognizing the serious problems created by the Colorado law and other similar state laws. The U visa program has become a target for immigration fraud and unnecessarily burdens law enforcement agencies with frivolous requests for certification that have nothing to do with protecting victims or solving crimes.