She Helped Convict Her Rapist. ICE Deported Her Anyway.
Nancy did not expect to be deported after she reported her rape to the police. The mother of four from Mexico thought she had done everything right: She had helped US authorities prosecute and expel a convicted criminal, even testifying in court against her former partner responsible for the assault.
She was a survivor, not a perpetrator. Moreover, the longtime Michigan resident had applied for legal status through a visa designed specifically for people like her: undocumented victims of crimes in the United States.
But protection never came. Instead, amid a years-long backlog in processing applications and Trump’s hard-line immigration policies, Nancy was made a priority for deportation as a result of a misdemeanor conviction—prompted, Nancy says, by a false accusation by her attacker—and a separate charge for illegal reentry.
And so, after 18 years living in the United States, Nancy, 39, was forced to return to Mexico last April. Her children, who are all American born, followed her a couple of months later to a country they barely know. “They have killed my children’s future, the life they had, and the dreams I had for them,” the Nancy said recently from Mexico. “My children are not to blame for any of that.”
Nancy’s case is now in limbo, one in an ever-growing pool of pending U-visa applications. Created in 2000 under the Victims of Trafficking and Violence Protection Act, the U visa provides temporary status to immigrant victims of certain crimes—such as domestic violence, sexual assault, and trafficking—who have suffered physical or mental abuse and cooperate with law enforcement in a criminal case. In creating the protection, Congress hoped it would help law enforcement investigate and prosecute crimes committed against undocumented immigrants, while also safeguarding victims who come forward against deportation.
The visa allows recipients to live and work in the United States for four years and become eligible for a green card after three years of continuous presence in the country. But because of extremely slow processing times and a statutory annual cap of 10,000 visas—a limit advocates see as arbitrary and insufficient given the growth in applications—the backlog is now more than 134,000 pending cases.
Once that 10,000 limit is met, as has happened every year since 2009, eligible applicants are placed on a waiting list and granted deferred action, which means they can remain lawfully in the country and apply for a work permit until a visa becomes available. But at present, the US Citizenship and Immigration Services (USCIS) is taking more than four years to even review an application, according to the latest official estimate.
Meanwhile, undocumented immigrants are at risk of enduring further abuse or being deported and separated from family members. With Trump’s stringent enforcement priorities in effect, immigrants who may have once been left alone while their U-visa applications were being processed now fear being targeted. Rather than focusing on the White House’s stated priority of “removing violent gang members, criminals and predators,” ICE is regularly going after vulnerable immigrants, including victims of domestic violence with ties to the United States.
Back in Mexico, Nancy is trying to eke out a living while waiting for a final decision about her U visa. Earning just 1,300 pesos ($70) a week as a refrigeration-machine operator in a Monterrey factory, Nancy struggles to make ends meet. On top of rent and utilities, she has to pay out-of-pocket for her eldest son’s asthma treatment and medicine for the other children, who lately have developed skin rashes on their legs, arms, and foreheads as a result of bacterial infections.
With only the children’s US Social Security numbers as official documents, Nancy said she can’t sign them up for the Mexican public health-care or school system. Ranging in age from 6 to 14, the children spend most days watching TV or wandering around the nearby potato and corn fields. “It’s hard for a mother to see that you can’t give your children what they need,” Nancy said.
The same violence that Nancy endured in the United States prompted her to flee Mexico in the first place. At the age of 17, she was sexually assaulted and held hostage by an older man in Veracruz. “You’re worth nothing,” she recalled him saying. “All that happens to you, you deserve it.”
Nancy entered the United States for the first time in 2001 by crossing the treacherous Sonoran desert to Phoenix, Arizona. Thinking about seeing her brother in Michigan kept her going for three days without food or water. “I just wanted to arrive. I just wanted to leave everything behind,” she said.
But when her father died in 2008, Nancy returned to Mexico. By then, she had a 3-year-old son and a daughter only 40 days old. The children stayed with their grandmother, when, months later, Nancy decided to cross back to the US in search of work to buy medication and oxygen for her sick son. She tried and failed to traverse the border many times. On one occasion, Customs and Border Protection apprehended and fingerprinted her before returning her to Mexico—that single instance would determine her deportation almost a decade later.
In her final, successful attempt at crossing the border, Nancy said, she was kidnapped by the Zetas cartel. In an unfurnished house, cartel members held her and other captive migrants at gunpoint while calling families to extort $6,000 for their release.
Afraid to get her brother involved, Nancy instead gave her captors the phone number of a Guatemalan friend in Michigan who paid the Zetas to set her free. That man would become her partner and the father of her two youngest children. He also paid for Nancy’s two children in Mexico to come to the United States. But those were a rare moments of kindness in a relationship otherwise punctuated with violence. On one occasion, after Nancy suggested that she might be pregnant, her partner accused her of lying and kicked her in the stomach repeatedly as she lay helpless on the floor. That night, Nancy started feeling sick and a bleeding led her to the emergency room, where an ultrasound confirmed the pregnancy.
Such violent acts were often accompanied by psychological abuse. “If we had to go to the store, [he] would force me to leave my children locked in a room,” Nancy later wrote in a declaration to support her U-visa application. “He would say: ‘You know what will happen if you get upset or try to go against what I’m saying’.”
One night in 2012, Nancy swallowed an excessive number of pills in a bid to end her life. She woke up two days later in the hospital and was admitted to the psychiatric unity. The following week, as Nancy checked in with a doctor, she learned she was expecting her fourth child.
After giving birth, Nancy found the strength to leave her abusive partner. But she later returned to the house, only this time she slept in a separate bedroom with a door that locked. Despite the relationship’s being over, the abuse continued, culminating in the rape in 2016 that set off a chain of events that would see both Nancy and her former partner deported.
The assault happened as Nancy tried to sleep after returning with a migraine from a 12-hour shift at a restaurant. Having persuaded Nancy to open the bedroom door, the man grabbed her by the shoulders, threw her on the bed, and held her by the neck as he forced himself on her. Nancy said that the following morning, her attacker told the children as they were getting ready to go to school: “If I don’t return today, it’s because your mom put me in jail, she’s mean.”
She said her then 12-year-old son replied, “No, the mean one here is you. I know what you did last night.”
That afternoon, Nancy went to the police, where she was interviewed and screened for sexual assault. When she returned home to get the children, her abuser had already been arrested. (He would later plea “no contest” to a criminal-sexual-conduct charge.)
Nancy went on to testify against her attacker. But during his court hearing, he accused her of committing welfare fraud, a felony. In May 2017, she was arrested and, with no proof of her innocence, pleaded down to a misdemeanor instead.
After serving time in the Kent County jail—during which a relative of her abusive ex-partner looked after her four children—Nancy was transferred to a federal prison, where US Marshals informed her that she was being charged with reentry after deportation.
Nancy’s conviction did not disqualify her for a U visa, as petitioners can request that criminal records and previous immigration violations be waived. So, in January 2018, she applied for a stay of removal with ICE, providing information about the benign nature of the criminal charge against her and explaining her fear of returning to Mexico.
“My four children are U.S. citizens, they have no one here who will be able to care for them,” she wrote, adding: “I know that if I was to go to Mexico, [my abuser] would appear there and I can assure he is capable of murdering my children and I.”
Nancy hoped her pleas would find a sympathetic ear. But three months later, she was deported back to Mexico. “The removal of individuals convicted of any criminal offense is an ICE interior immigration enforcement priority,” ICE stated in a letter denying her stay request.
Under previous administrations, ICE followed policy guidance encouraging a favorable look at cases involving immigrant victims and witnesses of crimes. Although these memos remain in effect, cases like Nancy’s paint a different scenario.
Leslye Orloff, director of the National Immigrant Women’s Advocacy Project, explained that prior to Trump’s becoming president, decisions were “made at the local and senior level to not waste government time and resources in enforcing immigration law against victims.”
But, she said, “That philosophy has changed.”
In January of last year, a lawsuit was filed on behalf of three Mexican women—all long-term US residents—seeking to halt their imminent deportations. The suit argued that their removal before their U-visa applications were final violated the intention of Congress to protect victims and help them assist law enforcement.
Despite claiming that they would suffer irreparable harm if separated from their children (one of who has autism), two of the women in the lawsuit have since been deported to Mexico.
The third woman, Liz, has been hiding in a sanctuary church for over a year, accompanied by her seven children, who are now experiencing anger and anxiety issues. “They don’t know the harm they have done to me and my family,” she explained over the phone.
Liz, whose real name has been withheld to protect her from ICE reprisals, came to the United States as a child in 1986, and has twice been denied appeal to a deportation order she received more than a decade ago. Her only remaining option is a pending U-visa application with USCIS as a victim of domestic violence, but it could take years before the agency reaches a decision on her case. In the meantime, all she can do is wait.
Another Mexican mother, Maria Portugal, has been waiting for more than three years. Having long since divorced an abusive husband, the Wisconsin resident was hoping the U visa would lift the threat of a decades-old deportation order. Instead, the application may have put her a step closer to being returned to Mexico. Last July, her lawyer, Matthew Gillhouse, received an unexpected phone call in relation to an illegal-firearms investigation involving Portugal’s second husband. Gillhouse said that during that conversation, an ICE investigator warned that if his client’s estranged husband didn’t turn himself in to the US Marshals, they would pick up Portugal.
“They were using her as leverage to get to somebody else,” Gillhouse said. “We didn’t know if it was an idle threat or a real threat, but they wanted to scare the hell out of this woman who is a single mother of five.”
Portugal said, “I’m afraid they will follow through on their threat and come after me and separate me from my children, especially my youngest.” ICE declined to comment on Portugal’s case.
It could be another full year before USCIS adjudicates on Portugal’s application. In the past, Gillhouse said, on average his clients were granted a U visa nine months after having filed their paperwork.
“These cases take so long that families fall apart,” Gillhouse said. “It’s unconscionable that people should be forced to stay in limbo without the ability to work waiting for a resolution.”
The lawyer also said that he had never seen a case before in which ICE had issued threats in order to catch someone they were looking for. “Hopefully, it’s not part of the new normal,” he added.
Advocates say that if such instances do become the new normal, it will likely have a chilling effect on undocumented victims of crime, who could help authorities keep their communities safe. A recent survey conducted by the National Immigrant Women’s Advocacy Project reported a 31 percent annual decline in U visa filings for 2017. Law-enforcement agencies have also reported a decline in victims’ willingness to cooperate on criminal cases.
“They are strengthening the hand of a rapist and domestic-violence perpetrator in the community,” Orloff said.
In a recent survey conducted by the National Immigrant Women’s Advocacy Project, victim-service providers reported a 31 percent decline in U visa filings in 2017 compared to 2016. Law-enforcement agencies have also reported a decline in victims’ willingness to cooperate on criminal cases. And, for the first time since the U visa was created, the number of petitions received by USCIS decreased in 2018.
With U visa applicants’ not being protected from deportation, attorneys are concerned that applying for the benefit might be too risky. And new USCIS policy guidance could incentivize immigrant victims of crime to remain further in the shadows. Since November, the agency has started issuing notices to appear, the first step in removal proceedings, when an application for a benefit is denied. “Back in the day, we knew a denial of a U visa would not place you in removal proceedings,” Wisconsin immigration attorney Alicia Armstrong said. “We’re really concerned about USCIS having the power to issue a notice to appear in these cases. It’s changed the game.
USCIS did not respond to requests for comment. But the agency’s ombudsman noted in its annual report from 2017 that processing delays leave applicants “without resolution and often without status for a lengthy period of time.”
While Nancy is in Mexico, her U visa application remains active, even if she doesn’t qualify for a work permit being abroad.
“That’s the only relief she has at this point,” said Nancy’s immigration attorney, Catherine Villanueva, from the Michigan Immigrant Rights Center.
To help pass the time, Nancy’s children watch the popular game show Escape Perfecto on TV. There, the contestants have to run against time and overcome challenges to haul prizes from a cage before a door closes. As the competition progresses, they have to make a decision between escaping with what they already have or risking everything for a better prize.
It’s a choice that Nancy understands. If the wait becomes too much to bear, Nancy said, she is willing to risk taking the journey through the border again.
Her oldest son dreams of becoming a game programmer, her 6-year-old daughter wants to be a veterinarian, and the younger boy entertains the most ambitious aspiration: to become the president of the United States so he can open the borders for everyone. “I dream that they will have a career one day,” Nancy said. “I want them to think big. Then, it will have been worth going through all of this suffering.”