New Statutory Due Process Rights for Immigrant Victims in Massachusetts

By David Emer, Esq.

The Massachusetts Legislature added a new law – G.L. c. 258F, §§ 1-4 – to the General Laws on victim rights in 2021. [1] General Laws chapter 258F is the first victim rights’ law enacted by the Legislature in over a decade.[2] The new statute stands at the intersection of federal and state law on immigration.

Federal law permits immigrant victims of certain violent crime or severe forms of human trafficking to petition the United States Citizenship and Immigration Services (“USCIS”), for a “U” or “T” visa. The “U” visa grants lawful status to victims of specified violent crimes who have “suffered substantial physical or mental abuse as a result of having been a victim of criminal activity.”[3] The “T” visa grants lawful status to victims of “a severe form of trafficking in persons.”[4] [It is essential for] Immigrant victims who intend to petition for lawful status under the federal “U” and “T” visa programs must/can/should obtain certification that they have been helpful in the investigation or prosecution of serious crimes (“Certification”) The federal “U” and “T” visa laws require designated, government officials to evaluate and authorize certifications that support immigrant victims’ visa requests.[5] Certifying entities include the attorney general, district attorneys’ offices, state and local police departments, and the Department of Children and Families, among other entities.[6]

The recently enacted state law – G.L. c. 258F – standardizes the role that Massachusetts state and local law enforcement agencies play in certifying that certain victims of violent crime or severe forms of human trafficking have been helpful in the investigation or prosecution of serious crimes.[7]

Before the Massachusetts Legislature enacted G.L. c. 258F, the federal law creating the certification requirement did not establish a standardized process for evaluating certification requests. Due to the absence of federal, statutory due process, some immigrant victims of crime experienced “delays and confusion” when requesting certification.[8] With the enactment of G.L. c. 258F, Massachusetts became the 17^th state or territory to provide statutory due process for certification requests for victims who intend to petition for legal status under the federal “U” and “T” visa programs.[9]

The Federal “U” Visa

In 2000, Congress enacted the Victims of Trafficking and Violence Protection Act.[10] That Act created the “U” visa. Local or state certification is a prerequisite for an immigrant to petition for the “U” visa to the federal government.[11]

If the victim obtains certification and files a petition with the federal government, there is an estimated wait time of five to ten years for adjudication.[12] The long wait is due to the federal statutory annual cap of 10,000 “U” visas that may be granted.[13] In June 2021, however, the USCIS implemented a new policy to grant employment authorization and deferred action to those with pending applications meeting specified requirements.[14] Deferred action’s “defining feature” is the decision to defer removal (i.e. deportation) and to notify the affected immigrant of that decision.[15] Before conferring these benefits, the USCIS conducts an initial review of the application to determine the “petitioner’s compliance with initial evidence requirements and successful completion of background checks.”[16] Significantly, the USCIS does not grant employment authorization or deferred action under this expedited review to a petitioner unless they  have complied with the initial evidence requirements, which includes a “U” visa certification.[17] Thus, the expedited review makes the timeliness of state or local certification play an even more significant role in the process, as petitioners may be able to access benefits sooner.

After a victim obtains a “U” visa, the federal government may grant permanent residence to the victim if the victim’s “continued presence in the United States is justified on humanitarian grounds, to ensure family unity, or is otherwise in the public interest.”[18]

“Congress created the visa to encourage crime victims to report crimes and assist law enforcement with investigation and prosecution.”[19] Without “U” visas, more crimes committed against immigrants would be unreported because “[t]he fear of deportation for an undocumented person is realistic and too often determinative in a victim’s decision to report a crime.”[20] In cases of domestic violence, abusers “use the victim’s immigration status as a sword, threatening to call immigration authorities if the victim reports” the criminal activity.[21] Thus, the “U” visa is critical to public safety.

The Federal “T” Visa

The same 2000 federal law that created the “U” visa also created the “T” visa. Local or state certification is not a prerequisite for an immigrant to petition for the “T” visa, but certification “shall be considered.”[22] In some circumstances, the victim must also show that they have “complied with any reasonable request for assistance” from law enforcement investigations.[23] If a victim obtains a “T” visa, the USCIS may grant permanent residence to the victim. [24] The annual statutory cap on “T” visas is 5,000.[25] Unlike the “U” visa, however, “[i]n the years since its inception, the T visa program has been underutilized, leading to concern that it is not reaching its intended beneficiaries.”[26]  The enactment of G.L. c. 258F may cause district attorneys’ and police to gain increased knowledge of “T” visas that can be shared with trafficking victims in Massachusetts.

G.L. c. 258F’s Two Provisions on Statutory Due Process

Certification Policies

General Laws chapter 258F affords immigrants two statutory due process provisions when seeking certification for a “U” or “T” visa. The first provision requires certifying entities to “adopt a policy for completing and signing nonimmigrant status certification forms” for those who intend to seek “U” or “T” visas.[27] Those policies must be clear about how the agency assesses whether the victim “has been helpful, is being helpful, or is likely to be helpful” in the investigation or prosecution of qualifying crimes.[28]

Certifying Entity Timeliness Standard 

The second statutory due process provision governs timeliness. The certifying entity must respond to a certification request within 90 days in one of the following ways:[29]

1. complete and sign the certification form[30]
2. deny the request without prejudice that explains “the reason that the request does not meet the requirements of the certifying entity’s policy”[31]
3. provide a written explanation that the certifying entity is delayed in responding with a projected time frame for a response.[32]

If the certifying entity responds that there is a delay, the delay must be caused by “extenuating circumstances outside the control of the certifying entity.”[33]

Court Enforcement of G.L. c. 258F’s Statutory Due Process

G.L. c. 258F contains no express enforcement mechanism. Under Massachusetts law, the absence of an enforcement mechanism within a particular statute does not mean that the statute is unenforceable. G.L. c. 249, § 4 provides that a civil action in the nature of certiorari may be appropriate where a “proceeding [is] not otherwise reviewable by motion or by appeal.”[34]Interpreting G.L. c. 249, § 4, the Supreme Judicial Court (the “SJC”) has recognized that agencies sometimes make quasi-judicial decisions and sometimes make decisions involving the “exercise of administrative discretion.”[35] The SJC has not had occasion to interpret G.L. c. 258F yet; however, the SJC following its interpretation of G.L. c. 249, § 4,  may conclude that certifying entities are making quasi-judicial decisions because they relate to “whether the proceeding culminates in an individualized determination of a party’s entitlement to some benefit.”[36] Here, that benefit is the state or local entity’s certification decision. A victim may bring a certiorari civil action in the superior court or the supreme judicial court.[37]

Conclusion

The statutory due process provided by G.L. c. 258F has the potential to alter the life trajectories of immigrants who are victims of violent crime or human trafficking. As a result, if certifying entities faithfully execute the newly-enacted G.L. c. 258F, Massachusetts immigrants may obtain employment authorization, deferred action and ultimately visas faster. This new law illustrates how statutory due process matters.

[1] The Legislature added G.L. 258F through St. 2021, c. 24, § 65. The new law became effective July 1, 2021.
[2] In 2010, the Legislature added the preceding chapter in the General Laws on victim rights, G.L. c. 258E. G.L. c. 258E established harassment prevention order proceedings.
[3] See 8 U.S.C. § 1101(a)(15)(U)(i)(I) (providing for “physical or mental abuse” requirement); see also 8 U.S.C. § 1101(a)(15)(U)(iii) (listing qualifying criminal activity).
[4] See 8 U.S.C. § 1101 (a)(15)(T)(i)(I); see also  22 U.S.C. § 7102 (defining “severe form of trafficking in persons” with respect to sex trafficking and labor trafficking).
[5] 8 U.S.C. § 1184 (p)(1) (“The petition filed by an alien under section 1101(a)(15)(U)(i) of this title shall contain a certification from a Federal, State, or local law enforcement official, prosecutor, judge, or other Federal, State, or local authority investigating criminal activity described in section 1101(a)(15)(U)(iii) of this title”).
[6] Id.; see also 8 C.F.R. § 214.14(a)(2) (including “child protective services, the Equal Employment Opportunity Commission, and the Department of Labor” in the definition of “certifying agency”).
[7] See G.L. c. 258F, § 1 (defining “certifying entity” as “a law enforcement agency, prosecutor or other state or local entity that has the authority to detect, investigate or prosecute severe forms of trafficking in persons or criminal activity”). Federal law also permits federal or state judges to certify helpfulness. See 8 U.S.C. § 1101(a)(15)(U)(i)(III).
[8] Fact Sheet on S.D. 240/ H.D. 1160: An Act Promoting Safety for Victims of Violent Crime and Human Trafficking (on file with the author).
[9] Jurisdictions that have enacted similar legislation to Massachusetts’s G.L. c. 258F are listed by effective date: N.Y. Soc. Serv. Law § 483-dd (November 1, 2007); Vt. Stat. Ann. tit. 13, § 2663 (July 1, 2011); La. Stat. Ann. § 46:2162 (June 24, 2013); Wyo. Stat. Ann. § 6-2-709 (July 1, 2013); Del. Code Ann. tit. 11, § 787 (n) (June 30, 2014); Ind. Code Ann. § 35-42-3.5-4 (July 1, 2015); Mont. Code Ann. § 44-4-1503 (July 1, 2015); Ark. Code Ann. § 12-19-104 (July 22, 2015); N.D. Cent. Code Ann. § 12.1-41-18 (August 1, 2015); Cal. Penal Code § 679.10-11 (January 1, 2016); R.I. Gen. Laws Ann. § 11-67.1-22 (July 18, 2017); Wash. Rev. Code Ann. §§ 7.98.005-7.98.900 (June 7, 2018); VI ST tit. 14, § 151 (July 9, 2018); 5 Ill. Comp. Stat. Ann. 825/1 – 825/30 (January 1, 2019); Nev. Rev. Stat. Ann. §§ 217.550-217.590 (July 1, 2019); Md. Code Ann., Crim. Proc. §§ 11-930-11-931 (October 1, 2019); Conn. Gen. Stat. Ann. § 46b-38b (g) (5) (July 1, 2021).
[10] Victims of Trafficking and Violence Protection Act of 2000, P.L. 106-386, 114 St. 1464.
[11] See 8 C.F.R. § 214.14(c)(2); see also Danielle Kalil, Certified Disaster: A Failure at the Intersection of the U Visa and the Child Welfare System, 35 Geo. Immigr. L.J. 513, 524 (2021) (“The certification does not guarantee eligibility for a U visa but is required in order to apply for this status.”)
[12] Deborah E. Anker, U and T visas, Law of Asylum in the United States § 1:15 (2021 ed.).
[13] 8 U.S.C. 1184(p)(2)(A).
[14] USCIS Policy Manual, Volume 3, Part C, Chapter 5, available at https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5. (accessed March 13, 2022).
[15] Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1911 (2020).
[16] USCIS Policy Manual, supra.
[17] U Nonimmigrant Status Bona Fide Determination Process FAQs, Question and Answer # 17, available at https://www.uscis.gov/records/electronic-reading-room/u-nonimmigrant-status-bona-fide-determination-process-faqs (accessed March 13, 2022).
[18] 8 U.S.C. § 1255(m)(1)(B).
[19] Meza Morales v. Barr, 973 F.3d 656, 658 (7th Cir. 2020).
[20] Yvette Lopez-Cooper, En Qué Te Puedo Ayudar? When Is A Crime Victim Helpful? Using California’s Immigrant Victims of Crime Equity Act (Senate Bill 674) to Define the U Visa’s Helpfulness Requirement, 53 Cal. W. L. Rev. 149, 162 (2017).
[21] Id. at 173 (internal citation omitted).
[22] 8 U.S.C. § 1184(o)(6) (“In making a determination under section 1101(a)(15)(T)(i)(III)(aa) with respect to an alien, statements from State and local law enforcement officials that the alien has complied with any reasonable request for assistance in the investigation or prosecution of crimes such as kidnapping, rape, slavery, or other forced labor offenses, where severe forms of trafficking in persons (as defined in section 7102 of Title 22) appear to have been involved, shall be considered.”) (emphasis added).
[23] 8 U.S.C. § 1101(a)(15)(T)(i)(III)(aa).
[24] 8 U.S.C. § 1255(l).
[25] 8 U.S.C. § 1184(o)(2).
[26] Anker, supra.
[27] G.L. c. 258F, § 2.
[28] 8 U.S.C. § 1184 (p)(1).
[29] G.L. c. 258F, § 3.
[30] G.L. c. 258F, § 3(i).
[31] G.L. c. 258F, § 3(ii).
[32] G.L. c. 258F, § 3(iii).
[33] Id.
[34] G.L. c. 249, § 4.
[35] See City of Revere v. Massachusetts Gaming Comm’n, 476 Mass. 591, 600, 605 (2017).
[36] Id. at 600.
[37] See G.L. c. 249, § 4.
[38] See Beacon Residential Mgmt., LP v. R.P., 477 Mass. 749 (2017).

David Emer is the legislative director and general counsel to the Senate Chair of the Legislature’s Joint Committee on the Judiciary. In that role, David drafts, analyzes and makes recommendations on legislation pending before the Committee. The Committee helped craft the bill that the Legislature ultimately enacted as G.L. c. 258F. Before working for the Legislature, David was a litigation associate at Nutter for nearly a half decade. At Nutter, David successfully argued for stronger tenant rights for domestic violence survivors before the Supreme Judicial Court. [38]